Another general technique for implementing the recommended social policy is regulation. The distinguishing feature of this technique is that it institutionalizes the availability of the drug. By establishing a legitimate channel of supply -and distribution, society can theoretically control the quality and potency of the product. The major alternatives within this approach lie in the variety of restraints which can be imposed on consumption of the drug and on the informational requirements to which its distribution can be subject.

We have given serious consideration to this set of alternatives; however, we are unanimously of the opinion that such a scheme, no matter how tightly it might restrict consumption, is presently unacceptable.

1. Adoption of a Regulatory Scheme at this Time Would Inevitably Signify Approval of Use

In rejecting the total prohibition approach, we emphasized the symbolic aspects. In essence, we do not believe prohibition of possession for personal use is necessary to symbolize a social policy disapproving the use. Theoretically, a tightly controlled regulatory schemes with limited distribution outlets, significant restraints on consumption prohibition of advertising and compulsory labeling, could possibly symbolize such disapproval. Our regulatory policy toward tobacco is beginning to slowly to reflect a disapproval policy toward Cigarette smoking. Nonetheless, given the social and historical context of such a major shift in legal policy toward marihuana, we are certain that such a change would instead symbolize approval of use, or at least a position of neutrality.

The Commission is concerned that even neutrality toward use as a matter of policy could invest an otherwise transient phenomenon with the status of an accepted behavior. If marihuana smoking were an already ingrained part of our culture, this objection would be dispelled. However, we do not believe that this is the case,. We are inclined to believe, instead, that the present interest in marihuana is transient and will diminish in time of its own accord once the major symbolic aspects of use are deemphasized, leaving among our population only a relatively small coterie of users. With this possibility in mind, we are hesitant to adopt either a policy of neutrality or a regulatory implementation of our discouragement policy. The law would inevitably lose its discouragement character and would become even more ambiguous in its rationale and its enforcement.

The effect of changing a social policy direction may be seen with tobacco policy. In recent years, society has ostensibly adopted a policy of discouraging cigarette smoking. This new policy has been implemented primarily in the information area through prohibition of some forms of advertising and through compulsory labeling. Yet, the volume, of cigarettes used increased last year. We believe that the failure of the new policy results from the fact that it supplants one that formerly approved use. This set of circumstances argues against any policy which would be regarded as approval of use, including a regulatory scheme. It is always extremely difficult to transform a previously acceptable behavior into a disapproved behavior.

2. Adoption of a Regulatory Scheme Might Generate a Significant Public Health Problem

We noted above that institutionalizing availability of the drug would inevitably increase the incidence of use, even though that incidence might otherwise decrease. Of greater concern is the prospect that a larger incidence of use would result in a larger incidence of long term heavy and very heavy use of potent preparations.

There are -now approximately 500,000 heavy users of less potent preparations in this country, representing about 2% of those who ever tried the drug. Even if the prevalence of -heavy use remained the same in relation to those who ever used, this at-risk population would inevitably increase under a regulatory scheme. If the emotional disturbances found in very heavy hashish users in other countries were to occur in this country, the adverse social impact of marihuana use, now slight, would increase substantially.

We have acknowledged that society, nonetheless, chose to run such a risk in 1933, when Prohibition was repealed. But alcohol use was already well-established in this society, and no alternative remained other than a regulatory approach. In light of our suspicion that interest in marihuana is largely transient, it would be imprudent to run that risk for marihuana today.

3. Adoption of a Regulatory Scheme Would Exacerbate Social Conflict and Frustrate a Deemphasis Policy

A significant segment of the public on both sides of the issue views marihuana and its "legalization" in a highly symbolic way. Any attempt to adopt a regulatory approach now would be counterproductive in this respect. The collision of values resulting from such a dramatic shift of policy would maintain the debate at a highly emotional level and would perpetuate the tendency to perceive marihuana use as a symbol of the struggle between two conflicting philosophies.

4. Not Enough Is Known About Regulatory Models In This Area

Advocates of legalization of marihuana are often inclined to propose a licensing scheme or an "alcohol model" without offering a specific program of regulation taking all the variables into account. Responsible policy planning cannot be so cursory. Consequently, we have given serious study to the many issues presented by such a scheme and to the nation's experience with other drug licensing schemes. On the basis of our inquiry, we are convinced that such a step should not be taken unless a realistic assessment of the efficacy of existing schemes and their potential application to marihuana indicates it would be successful. Such an assessment raises a number of disturbing questions.

The regulatory approaches which this nation has used in the cases of alcohol and tobacco have failed to accomplish two of their most important objectives: the minimization of excessive use and the limitation of accessibility to the young. Despite the warning and restraints on distribution and consumption, more than 50 million Americans smoke cigarettes regularly, and more than nine million Americans are "problem" drinkers. We have previously cited data indicating how many of our children begin habits which have been legally forbidden to them. Since the young user and the chronic user of marihuana are of primary concern to our public health officials, the lack of success with alcohol and tobacco discourages an assumption that the regulation of supply would minimize use by the younger generation.

Another important purpose of a regulatory scheme is to channel the product through a controlled system of supply and distribution. In that way the quality and quantity of the substance can be regulated. The efficacy of such a scheme as applied to marihuana is questionable.

Cannabis can be grown easily almost anywhere in the United States with little or no human assistance. Even if a legitimate source of supply were established, it is likely that many persons would choose to ignore the legitimate source and grow their own, the purity of which would not be in question. If such a practice were illegal, the necessity for a concerted governmental eradication program is raised, which would involve a monumental law enforcement effort. According to the U.S. Department of Agriculture, there are presently an estimated five million acres of wild marihuana growing in this country and an undetermined number of acres under cultivation.

Yet, if such a practice were not forbidden, the revenue-raising, product-control and consumption-restriction features of a regulatory scheme would be threatened. Instructive to note is the fact that intensive regulation of alcoholic beverage production 'has not eliminated illicit production. During 1970, in fact, 5,228 illegal stills were destroyed by the Alcohol, Tobacco and Firearms Division of the U.S. Treasury and 5,279 persons were arrested. In 1971, 3,327 illegal stills were destroyed and 5,512 persons were arrested.

Another disturbing question is raised by the issue of potency regulation. Most advocates of legalization stipulate potency limitations as one feature of their scheme. Presumably they would limit the THC content of the regulated product. This is not an easy undertaking. Especially when cannabis is so easily grown and a black market is so easily created, we are dubious about the success of a regulatory scheme distributing only a product with low THC content. Again, attention must be paid the prospect of increased hashish use under a regulatory scheme; merely stipulating potency control is not sufficient. As we noted in Chapter II, the heavy, long-term use of hashish is a source of major concern to the Commission from both private and public health standpoints.

These are a few of the problems confronting the policy-maker if be seeks to devise an effective regulatory system of distribution for what is, in fact, a universally common plant. Our doubts about the efficacy of existing regulatory schemes, together with an uncertainty about the permanence of social interest in marihuana and the approval inevitably implied by adoption of such a scheme, all impel us to reject the regulatory approach as an appropriate implementation of a discouragement policy at the present time.

Future policy planners might well come to a different conclusion if further study of existing schemes suggests a feasible model; if responsible use of the drug does indeed take root in our society; if continuing scientific and medical research uncovers no long-term ill effects; if potency control appears feasible and if the passage of time and the adoption of a rational social policy sufficiently desymbolizes marihuana so that availability is not equated in the public mind with approval.