Ways to Consider Non-Medical Cannabis - Reasoning from Conceptual Analogues

by Austin Lawrence

Abstract

Cannabis legislation and regulation is a complex undertaking. This paper provides a framework for organizing approaches to thinking about cannabis regimes by considering the psychoactive commodity analogues of alcohol, tobacco and natural health products. An understanding of the characteristics and semantic spaces that have been applied in the development of regimes to control currently legal psychoactive commodities can be instructive in rationalizing and organizing the dialogue related to the legalization of psychoactive cannabis.

Author’s Note

The views expressed are those of the authors and do not necessarily reflect those of Public Safety Canada.  Correspondence concerning this report should be addressed to: Research Division, Public Safety Canada, 340 Laurier Avenue West, Ottawa, Ontario, K1A 0P8; email: PS.CSCCBResearch-RechercheSSCRC.SP@canada.ca.

Acknowledgements

The assistance of Anton Maslov (Research Advisor, Public Safety Canada) in brainstorming and discussing ideas for this report, as well as his editorial comments, were much appreciated. The author would also like to thank Dr. Megan Bettle (Director, Office of Drug Science and Surveillance, Health Canada), Angela Bressan (Researcher, Justice Canada) for their constructive advice and suggestions, and Douglas May (Director, Research Division, Public Safety Canada).

Introduction

Background

Cannabis and its byproducts are the most widely used illegal psychoactive substances in the world, with roughly 125 million users and suppliers of cannabis products in 2011 (Caulkins et al, 2012). Canada has one of the highest prevalence rates of cannabis use in the world, with 34% of Canadians having used cannabis as a drug during their lifetimes, including 11% of those 15 years and older having used it in 2013 (Health Canada, 2015).

The Liberal Party platform included a commitment to “legalize, regulate, and restrict access to marijuana” and further, “remove marijuana consumption and incidental possession from the Criminal Code, and create new, stronger laws to punish more severely those who provide it to minors, those who operate a motor vehicle while under its influence, and those who sell it outside of the new regulatory framework” (Liberal Party of Canada, 2016).Footnote1

A reading of the Liberal Party of Canada (2016) policy position indicates the goals are to:

The government has committed to wide-ranging consultations with stakeholders, experts and the public on how to best legalize non-medical cannabis. Thus, the goals and objectives of legalization may be refined and/or be modified in the future.

Objective

With the goal of identify approaches and considerations for consultation and policy discussion, the objective of this report was to: a) identify the similarities and differences between psychoactive cannabis and analogous legal substances consumed for their psychoactive properties; and, b) describe the characteristics applied when discussing or fashioning regimes related to the control of these substances.

The methodology applied was that of an informal literature review. Materials associated with the regulation of analogous legal psychoactive natural substances were scanned, as well as issues raised in recent reportage and court cases regarding non-medical cannabis. This was mainly accomplished as a by-product of researching the paper “Cannabis Performance Metrics for Policy Consideration: What Do We Need to Measure?” (Maslov, et al, 2016). The identified materials were examined for thematic similarities and differences, with examples provided to illustrate some of the identified considerations.

Discussion

Humans often reason by analogy. It is one of the most commonly used forms of inductive reasoning. In analogical reasoning the perceived similarities between certain sets of fact patterns are used to infer that an impact yet to be observed will also be the same for the two examples; the inference being that the treatment of, or reaction to, both examples should be similar. This line of reasoning is particularly relied upon when faced with novel situations. Using analogy and metaphor in political and policy discourse is particularly frequent.

From the mid-1800s until today, there are three primary commodity analogues that people have used to discuss how cannabis should be treated under legislation or regulation: alcohol; tobacco; and natural health products.Footnote2

The ways people have described what is important about how to think about these substances and the social behaviors that surround them can be classified along a number of axes: 1) form that the commodity takes; 2) exchange mechanism used; 3) market level; 4) privacy of behavior; 5) motivation for use; 6) demographic group; 7) governance (level of government); and 8) economic sphere of practice (industry or sector).

Commodities

Cannabis was made illegal in 1923 under the Narcotics Drug Act Amendment Bill, as a "new drug" (Daniel, 2014). Before 1923 the use of cannabis was legal in Canada. This cannabis use was mainly in the form of medical preparations or patent medicines. The federal responsibility for the oversight of food and drugs in Canada predates Confederation, but was initially confined to ensuring that food and drugs were not adulterated. The Proprietary or Patent Medicine Act (1909) was the first legislation to register medicines, which it limited to secret-formula, non-pharmacopoeial packaged medicines. This Act was the beginning of the protection of the public against medically-active drugs administered without medical supervision. Following the establishment of a federal Department of Health in 1919, the Food and Drugs Act was introduced in 1920. By the late 1920s, Regulations developed under the Act established specific requirements for licensing pharmaceutical products (Health Canada, 2007). It is not clear whether the federal government or the newly formed Department of Health specifically regulated any cannabis preparations prior to 1923.

The initial impetus for making drugs illegal in Canada came from activists in the Social Gospel and Temperance Movements who had been primarily campaigning against the consumption of alcohol. Their targets also included public health campaigns and moral “crusades” against tobacco and other drugs, particularly opium. Milder stimulant drugs, such coffee and tea, were eschewed by some in these movements and endorsed as harmless alternatives by others. Some commenters believe that cannabis was classified as a prohibited drug by legislators almost as an afterthought, possibly due to influences from American law enforcement (House, 2003).

Thus, when Canadians first started consuming cannabis products they did so as easily accessible commercial medicines or, what we would call today, natural health products. However, by the 1920s, largely through advocacy by Prohibitionists, cannabis became more analogized to alcohol than a natural health product. While the production and consumption of alcohol was eventually re-legalized, the establishment of a category of illegal psychoactive plant-based drugs remained, with subsequent plants, fungi and chemical preparations joining cannabis in illegality.

There are a number of similarities and differences between alcohol, tobacco and natural health products that are cited when analogizing them to cannabis.

Legal

Legal psychoactive commodities can range from those that society considers relatively innocuous, such as foods and beverages that may contain caffeine, casein, or various sugars, to more risky medically-active natural health products, to the main legal psychoactive commodities of alcohol and tobacco, which are generally recognized as often involving significant social and individual harms (Nutt et al, 2010).

Alcohol

Drawing analogies between alcohol and cannabis is common, particularly when less restrictive cannabis policy positions are advanced during public legalization or decriminalization discussions.

Tobacco

Drawing analogies between tobacco and cannabis is common, particularly when cannabis policy is becoming more restrictive due to criminalization efforts.

Natural Health Products

As described in the background section, before it was criminalized in Canada cannabis was treated as what is known today as a ‘natural health product’ (Spicer, 2002). Today “natural health products” cover things such as vitamins and minerals, herbal medicines, homeopathic preparations, energy drinks, probiotics, other food products like amino acids and essential fatty acids, and many alternative and traditional medicines, such as Chinese medicines (Health Canada, 2012a; Health Canada, 2012b). Natural health product regulations specifically exclude plants and chemicals listed as ‘controlled substances’ under the Controlled Drugs and Substances Act (CDSA). Natural health products are not recognized by the medical establishment as being pharmaceutical medicines, although they do meet the legal definition of a drug under the Food and Drugs Act. However, natural health products are acknowledged to be used by the public as treatments and/or have a notable impact on human physiology or cognition.

It is often in the category of natural health products that plants, fungi, animals and chemicals first appear that are later scheduled as controlled substances. This can occur in a number of different ways. The CDSA has scheduling criteria that reflect pharmacology, abuse liability, as well as evidence of harms. Scheduling can be related to an increase in the frequency of recreational use and/or a rise in adverse reactions being treated in hospitals, particularly in a demographic that has not traditionally used the product. Scheduling can also be driven by Canada’s participation in international drug conventions, often supported by evidence presented for use of a substance in another country.

Importers and retailers will sometimes publicly market these types of products as home care products (such as the cathinones marketed as ‘bath salts’), lifestyle products (such as diviner’s sage marketed as ‘incense’), or a food (such as kratom or betel nut being sold in ethnic grocery stores as ‘spices’); often to get around enforcement actions or delay scheduling under the CDSA. However, in the popular imagination these types of products more clearly fall into the category of natural health products, since they are not consumed primarily for calories or as beautifying aids, but are instead used for their physiological and cognitive effects, and are not yet categorized by the authorities as illegal drugs.

As the substances in the category of natural health products are extremely diverse, it is difficult to characterize them as a group. In fact, most natural health products are not psycho-active; only a small sub-set of them are. However, amongst this sub-set, there are many psychoactive plants that are used traditionally in cultures around the world or historically as social and ritual inebriants or entheogens.Footnote3,Footnote4These are the products considered to be analogous to cannabis from this category. They mainly include the ones that are still in the natural health products category, such as kava kava, calamus root, and skullcap, but we can conceptually consider those that are in the process of being, or have been, criminalized, such as diviner’s sage and khat.

Illegal

Cannabis

This analysis does not go into detail regarding the validity or the degree of difference or similarity between any of the cannabis analogues. Much more data and study would be required to firmly justify any given analogy. Further, due to the complexity of data, number of variables, and priority given to different factors, the selection of the analogue can become a cultural or ideological decision, since any number of rational arguments could be advanced. Finally, the selection of any one analogue presupposes a value judgment that cannabis should also be legislated or regulated according to the current regime for the analogous commodity, which can bias the selection of the comparator.

Table 1 provides a summary of the characteristics outlined for psychoactive cannabis and the most commonly cited analogues. This visual summary also provides a subjective indication of the degree to which a certain characteristic is apparent.

Table 1: Characteristics of Cannabis versus Analogues
      Legend*
+ = stronger characteristic
- = negligible characteristic
Social PrevalenceFootnote7 Ease of home production Consumption of Concentrated Forms Treated as Food Behaviour Changes Second Hand Concern Religious Use Criminal Opportunity Used for Health Purposes
Alcohol +++ +++ +++ ++ +++ ++ + + +
Tobacco ++ + + - - +++ + ++ -
Natural Health Products - - + + ++ + + - +++
Cannabis + ++ ++ + +++ ++ + +++ ++

*subjective assessment of the author

Plant-based drugs

There are a large number of plant- and fungi-based drugs that have been made illegal. These have been linked by analogy to cannabis, or themselves have been linked to the legal psychoactive analogues of cannabis listed above. Notable examples of such substances are coca leaf, khat, diviner’s sage, ayahuasca preparations, peyote cactus, and psilocybin containing mushrooms. This paper does not focus on these analogies, or drugs that are currently planned to remain illegal. However, it should be noted that once cannabis is legalized, arguments by analogy from substances of this type to cannabis may be made. This discursive shift has already started to occur with support for the legalization of the medicinal and non-medicinal use of psilocybin mushrooms and other hallucinogens (Kreb 2015), as well as for the social use of khat (Lallanilla, 2013).

Form

The form the commodity takes along the path from production to consumption is often relevant to legislative and regulatory regimes. Since they are both plants, cannabis and tobacco appear to have the most similarity in this regard, although roughly congruent divisions could be made for alcohol and many natural health products.

In the case of marijuana, the various following forms can result in differences in treatment under varying regulatory scenarios:

For alcohol similar types of categories would include dried and wet yeast cultures, prepared fermentation kits, partly fermented products, fully fermented products, ice ‘distilled’ products, heat distilled products, chemically-produced dry powdered products; and mixtures of concentrated products with adjuncts. The categories for tobacco are fairly similar to cannabis, but differ slightly due to the biology of the plant and common consumption techniques.

Intersections

Regulatory responses to cannabis around the world are diverse (CCSA, 2015) and are further diversifying rapidly. These cannabis regimes are on a continuum from full criminalization with maximum legal sanctions applied for most types of offences to nearly full legalization where full commercialization exists alongside minor penalties for the remaining decriminalized offences. It is not the intent of this paper to provide a description of these regimes or the advantages, disadvantages or possible concerns with them. Rather, this paper outlines conceptual approaches to discussing the establishment of such regimes.

By generally comparing how and where regulatory regimes differ between, and over time for, alcohol, tobacco, natural health products, and cannabis, a number of axes for the intersection of the qualities that are often considered in these legislative and regulatory regimes can be observed. In the following section this paper outlines the major conceptual categories where legislative, regulatory or enforcement responses differ. This discussion will use the term “regime” for the legislative and regulatory framework for the governance of behaviors associated with the psychoactive commodity.Footnote9

Exchange Mechanism

The exchange method through which the commodity is transferred between people is often considered to be important under different regimes. These methods of exchange include:

These methods of exchange can become more complex, through processes such as contract or communal exchange. For instance, in proxy production the labour and capital used to create the commodity are transferred to the consumer, but the actual commodity is not because they are considered to own it throughout the production process. This can happen with various cooperative arrangements. The commodity is viewed as being owned by the consumer from start to finish as an arrangement of contract. If no payments are made, this can be similar to a gift. If payments only covering the cost or labour and capital are provided, the situation is similar to barter. If payments for profit are provided, the situation is similar to sale. (For instance, some jurisdictions allow for-profit business to provide the service of assisting in the production of alcohol outside of the home at “U-brew” establishments under particular circumstances. Some medical marijuana regimes allow for cooperative, not-for-profit growing with, or on behalf of, others.)

Market Level

In many regimes, the legality or regulations can often differ by market segment. General, common classifications for these market segments are at the levels of:

Privacy

The degree of privacy related to consumption often distinguishes between elements of a regime. These usually include the categories of:

Motivation

The motivation of the user of the commodity is taken into account in many regimes. The four major categories of use are:

Demographic

The social characteristics of the consumer population are often a distinguishing feature of the regime. These include:

Some of these differences in regime that are related to demographic characteristics may be indirectly applied through proxies. The main example of such a situation is when a demographic identity is associated with a population that is reflected in a social geography or location. In this case demographic characteristics are indirectly, geographically distinguished. For instance, if only certain neighborhoods have a policy applied to them or a policy may apply only around certain institutions (such as schools or sites were addicts consume the commodity). Although rarely explicit, the social geography of place associated with criminal and morally-disputed social behaviours, such as the use of legal and illegal psychoactive drugs, can indirectly reflect differences in how a regime is applied to people that are from a different economic class or from a varying ethnicity.

Historically, other types of social categories, such as occupation (i.e., Christian priest or rabbi, a soldier), gender (i.e., being a man), might also characterize more or less restriction on behavior related to a commodity under different regimes. Due to social changes, some of these common markers of difference have less relevance today than earlier in the last century.

Space

Some social theorists term the conceptual frameworks people use to develop meaning in their thinking “semantic spaces” (Masucci, 2016). How concepts are divided, and in what frameworks they are discussed, matters greatly as a social process because the dialogue shapes resultant social behavior.

Legislation, regulation and enforcement of regimes related to psychoactive commodities can be discussed in many different ways, as people negotiate the social meaning of the use and control of a substance. Conceptually, in terms of both legal and illegal, psychoactive commodities, our society has determined that the highest level concepts for intervention regarding control of social behavior surrounding these substances are in the ‘spaces’ of governance and of practice.

Governance

The social decision to control or not control a behavior at a particular level of governance is a function of historical and cultural negotiation, which is often guided by politics and solidified in law. In Canada today, particular legal, regulatory and enforcement responses fall more or less within the responsibility of different levels of government. So too will social control mechanisms be constrained to different levels of government.  However, there are many shared areas of governance. Therefore, there is significant room for negotiation as to jurisdictional responsibility under which any element of a regime could fall.

The history of the control of alcohol and tobacco in Canada generally follows the pattern that municipalities will be first with by-laws, which are later expanded or rationalized provincially, territorially or federally. Sometimes a provincial, territorial or federal government provides a framework for different local actions on an area of policy. Concerns regarding other psychoactive substances (such as natural health products or substances that become scheduled as controlled substances) may follow a similar pattern of local to regional to national concern. However, other psychoactive substance that are not alcohol or tobacco are less likely to be accompanied by formal responses at lower levels of governance, instead being responded to at higher levels of governance.

Regimes for commodities of this type often distinguish responses according to the following jurisdictions:

Practice

Within, or alongside, level of governance, the industries or social sectors involved in the activity of production, distribution or consumption of the commodity can be relevant to how a policy regime is implemented. Industries and social sectors are often legislated and regulated differently from one another, even if governed at the same level of governance. How new activities for an industry or sector are treated can be influenced by past trends in that industry or sector.

Currently, there is only one separate, formal listing for the cannabis industry by Statistics Canada under the North American Industry Classification System (NAICS), where it is classified as: “Agriculture, forestry, fishing and hunting : Crop production : Other crop farming : All other miscellaneous crop farming” (Statistics Canada, 2012). This classification was originally drafted to cover the cultivation of low THC cannabis, or “hemp,” for edible seeds or fibre. This classification groups cannabis more with tobacco, than alcohol or natural health products.

There are many other industries or social sectors which could include cannabis. In fact, the majority of the top level NAICS categories could conceivably apply to some element of a cannabis regime.  Provided below are some illustrative examples of relevant industries or social sectors. This list is in no way exhaustive.

There are instances where the treatment of a commodity analogue can change temporarily in an industry or social sector to improve efficiency in that industry or sector, or for a similar purpose. This happened when alcohol was prohibited nationally as a temporary wartime measure in Canada between 1918 and 1920. However, such cases are rare, and usually also involve other reasoning and motivations for the temporary shift in regime.

Illustrations

In the preceding discussion three commodities analogous to cannabis were identified. There are roughly 10 types of forms that cannabis can take. There are five main variables that intersect when people discuss and implement regimes to legislate and regulate the analogous commodities. And, there are five levels of governance and more than seven industrial or social sectors that could be involved.

Each combination of factors should be considered and addressed in the development of cannabis policy. The number of unique possible situations for policy consideration is upwards of 16,000; calculated, in turn, by multiplying the number of cannabis forms by the number of intersections. These possible situations can be examined against at least five levels of governance and seven sectors to determine where regulatory or legislative action might be required, resulting in at least 560,000 unique possible combinations for policy analysis. Cannabis legislation and regulation is obviously a complex undertaking.

While there may logically be 560,000 possible combinations for policy analysis, in practicality there are far fewer. This is because in regulatory or legislative frameworks the most rare or hypothetical combinations are not addressed, and follow-up reviews and case law is relied upon to fill any gaps that become apparent later. There is also the common approach of grouping similar situations together regardless of the other overlapping considerations. For instance, there might be a decision to take the same approach to any of the 10 forms of cannabis when it comes to people of a similar age category. A reduction in complexity may also occur if a decision is made to treat some categories identically, such as providing no exceptions or differences to a regime based on user motivation. Further, certain factors may not be addressed as unique elements of a regime, but instead implicitly reserved for other regulatory or legislative regimes. For instance, cases of cannabis theft dealt with as a regular property crime under the Criminal Code or the commerce of machinery and equipment dealt with under relevant federal, provincial, and territorial legislation.

What follows here are examples of how intersecting factors influenced a current or historical approach to analogous commodities. The examples illustrate the types of issues for policy consideration when approaching reforms to the cannabis regime. For the ease of reference, categories for consideration have been italicized, while individual considerations are highlighted in bold text, as per the discussion above.

Alcohol – Motivation – Governance

After the passage of the federal Canada Temperance Act in 1894, municipal governments were given the power to forbid the sale of alcohol by a majority vote of their citizens. Thus, both federal and municipal levels of governance were involved. This targeted alcohol consumption by motivation, focusing on use that was recreational or related to alcoholism (i.e., dependence).  However, legal exemptions were allowed for spiritual (termed “sacramental”) and medicinal use. This distribution was generally controlled by the medical establishment or was concentrated in the Catholic or Jewish communities, although corruption in these systems and diversion was common.

Currently, under legalized alcohol regimes in Canada, separate regulatory categories can exist for “sacramental” alcohols, like Kosher wine. However, the category of “medicinal” alcohol does not exist, but has been replaced by the industrial regulation of alcohol as an ingredient in medicines, not as a medicine itself. Other regulatory categories related to health have been added to alcohol sales, which fall more under demographic and ethical communities than motivation (e.g., labelling and regulations related to the production of organic and vegan alcohols).

Tobacco – Demographic – Governance

The age demographic at which tobacco can be purchased and consumed is generally regulated at the provincial / territorial level. When this governance occurs, the age categories tend to be divided into two categories: youth / children versus adults. The age at which restrictions on selling tobacco to young people and their possession of tobacco is generally 18 years old in Alberta, Saskatchewan, Manitoba, Q​uébec, Nunavut and the Northwest Territories, while it is 19 years old in the rest of the country (FindLaw, 2016).

However, when it comes to the unintentional consumption of secondhand tobacco smoke, age-related laws become more complex, with location often becoming a proxy for a control measure. For instance, secondhand smoking may be disallowed due to differences in the privacy of consumption locations, which may have their own demographic restrictions. An example is the cut-off age restricting being in a private vehicle with a tobacco smoker being limited to either those of 16, 18 or 19 years of age in several different provincial or territorial jurisdictions, with other provinces not regulating this issue at the provincial level but instead allowing municipal by‑laws to exist on the issue (FindLaw, 2016).

Alcohol – Market level – Governance

A “dry” community is one that severely restricts both the consumption and trade in alcohol. A “damp” community is one in which the private consumption of alcohol is allowed, but not the trade in alcohol. In a “wet” community, both the consumption and trade in alcohol is permitted.

In Canada, the prohibition of alcohol has gone through a number of stages and been governed at different levels, starting with some local municipal bans in the late 19th century, continuing with provincial bans in the early 20th century, to national prohibition (a temporary wartime measure) from 1918 to 1920. Most of these bans were repealed by the 1920s, although alcohol was illegal in Prince Edward Island until 1948. Remaining bans on alcohol in Canada are mainly confined to rural and Indigenous communities.

An example is Natuashish, an Innu community in Labrador which voted in January 2008 to make the community dry, and giving the RCMP the authority to charge people caught bringing alcohol into the community. Since that time, the RCMP continues to seize alcohol from people disembarking from airplanes and boats destined to the community (Koren, 2012).

There are also other Inuit and First Nations communities that are currently dry. In other damp communities, alcohol controls differ by market level, where personal production and consumption may be allowed, but where the wholesale or retail market is disallowed. In these communities, much alcohol must be flown in subject to air freight and additional charges. Thus, personal production and consumption may also be regulated through the purchase of permits to allow alcohol or its precursors to be transported into the community.

Alcohol – Market level – Practice

Provinces and territories have different building codes, used to regulate architecture and the safety and security of structures. There can also be municipal by-laws that are similar, usually strengthening and further restricting practice. Thus, governance will be at the provincial and municipal level, for a specific practice in industries such as real estate.

In Ontario, the provincial Building Code includes specific regulations for building and maintaining premises that produce or store specific forms of concentrated alcohol. Not only is the production market level covered by the Code, but also the retail level. The Ontario Building Code also regulates “dining, alcoholic beverage and cafeteria space” businesses. There are no similar regulations in this code for tobacco. However, there are municipal by-laws regulating places where tobacco or other social herbal smoking takes place (Collier, 2015), as well as ventilation systems and related construction (at least historically).

However, both of these illustrations do not cover related instances of other exchange mechanisms at the same level. For instance the personal production of concentrated forms of alcohol is prohibited if heat is used in production, but there are no clear regulations if the use of freezing is used to concentrate the alcohol (mainly because distillation is defined by the process used, not the ultimate concentration of alcohol in the final product). There are also no specific building code requirements for the legal home production of beer and wine, beyond regular requirements for food preparation at private residences.

Tobacco – Exchange mechanism – Governance

The federal Excise Act and the Tobacco Act regulates many elements of the tobacco regime in Canada. At the market level of production, home production is allowed so long as “the quantity of product manufactured in any year does not exceed 15 kg for the individual and each member of the individual’s family who resides with the individual and who is 18 years of age or older” (Excise Act, 1985). The exchange mechanism for this tobacco can only be personal production or gift. It does not appear that a person can make a gift to a business or that advertising can be involved in the gifting process in any way. The Act does not distinguish by motivation of use, such as providing an exemption for spiritual uses.

Natural Health Products – Market level – Practice

Hemp essential oil with minimal, legal levels of THC or other cannabinoids are manufactured through steam distillation. They are used in the aromatherapy and related personal care product industry, in the food industry, as well as a natural health product (Samara Botane, 2015).

However, distillation apparatus used in the essential oil industry can also be used to produce ‘scientificconcentrates, in forms such as hash oil and ‘dabs.’ This type of equipment is being marketed and used by medical marijuana manufactures, as well as by legal recreational producers in the United States. To date, this use appears to mainly be at the wholesale and production market levels, since the apparatus is quite expensive. The author could find no evidence that the practice of using specialized equipment for the extraction and concentration of the chemical constituents of plant products was differently regulated in any industrial or social sector.

Alcohol – Privacy – Governance

While the legal drinking age in British Columbia is 19 years old, the provincial law does allow parents or legal guardians to allow minor children in their own private residence to consume alcohol under appropriate supervision (Buckley, 2014). Thus, an exemption is made for a certain demographic under certain conditions of privacy where there is a particular exchange mechanism used (i.e., gift).

Tobacco – Market level – Practice

Neither the Tobacco Act nor the Excise Act mentions the term “seed” in the context of the tobacco regime. Thus, the practice or types of market exchange mechanisms allowed regarding the transfer of the seed form of tobacco germplasm is relatively unrestricted in Canada, regardless of industry or social sector, market level, or degree of privacy.

Conclusion

The development of a legalized regime for cannabis is a very complex undertaking. The numbers of factors for policy consideration are immense.

Reasoning by comparison and using analogies can simplify consultation, discussion and debate surrounding cannabis policy. However, reasoning using analogues may also create inherent biases towards particular constellations of policy options. This natural tendency can be mitigated. Presented in this paper are the general categories of importance that lay behind the thinking that has been used in the development of analogous policy regimes. Understanding these categories allows us to be more rational in how cannabis policy reform is discussed and to interrogate the assumptions embedded in arguments made by analogy. Also, how cannabis legalization is discussed and what is decided can very well become important as a precedent and analogue for future discussions regarding decriminalizing or legalizing other illicit plant-based drugs. Thus, before a statement is made comparing cannabis to an analogue, it is prudent to closely consider the similarities and differences between the two, as well as the implied policy associations. When studying any policy issue regarding a cannabis regime or analogous regime, the categories laid out in this paper can be used to precisely describe situations that should be grouped similarly or situations for differential treatment.

Analogues have been regulated and legislated at all levels of government, in many cases on the same issue. Notwithstanding that there are traditional areas of constitutional responsibility for certain functions of governance in Canada, historically there has been much flexibility in selecting a level of government at which to constrain behaviours surrounding psychoactive substances. Generally speaking, if a higher level of government decides to legislate or regulate, the regulations of the higher level of government are less restrictive than the formal legislation or regulations that some lower levels of government may decide to implement. However, in these situations where lower orders of government are more liberal regarding a substance their policy orientation will be expressed through differential enforcement of regulations and/or legislation. Another tendency is that in areas where a higher level of government is silent or unclear (perhaps as a result of court decisions), a lower order of government may regulate and legislate to constrain behaviour. Discussions regarding cannabis legalization will likely proceed partly through the analysis and comparison of the complex patchwork of legislation and regulation currently applied to alcohol, tobacco, and natural health products. As this occurs, a basic understanding of the characteristics and semantic spaces that have been applied will prove extremely instructive in rationalizing and organizing the dialogue related to the legalization of psychoactive cannabis.

Bibliography

Footnotes

  1. 1

    The Liberal Party of Canada platform was published on-line in 2015. However, the web site indicates a copyright update to 2016. Thus, although the content referenced was disseminated in this form in 2015, it must be referenced as 2016.

  2. 2

    Both alcohol and tobacco are psychoactive substances, while only a sub-set of natural health products are psychoactive.

  3. 3

    An “inebriant” is a substance or agent that causes intoxication. “Intoxication” is a state where one loses control of one’s regular mental faculties and behavior as the result of the ingestion of a chemical substance.

  4. 4

    An “entheogen” is a chemical substance that is used in a spiritual, religious or shamanic context to encounter the divine, enter into an alternative reality, or achieve a transcendent or numinous state.

  5. 5

    Non-psychoactive cannabis, or “hemp,” is raised for both fibre and the nutritive seeds. Hemp seeds are high in protein and produce edible oil, and are used as a food.

  6. 6

    While cannabis may be viewed medicinally in various forms of traditional medicine, particular sub-cultures, or be recognized in a populist manner as having medicinal benefits, Health Canada’s reviews of medical science indicate that cannabis is not a legitimate pharmaceutical product (personal communication).

  7. 7

    “Social prevalence” is a subjective category summarizing usage rates and the degree to which consumption, and talking about or images of consumption, are encountered in the course of daily life.

  8. 8

    Failure of these types of concentration methods can cause catastrophic injury and fire.

  9. 9

    Please note that this discussion does not describe what type of analysis would be required after an intersection of characteristics is identified; essentially describing a policy issue for consideration. Such analysis could include a review of what is known regarding the prevalence of patterns of behavior, impacts or the risks associated with the area of concern. Examples include medical dangers to users (such as heightened risks of mental illness), accident dangers to others (such as with drunk driving), etc.

  10. 10

    There is an emerging literature regarding the abuse of, and dependence upon, marijuana. This is being complemented by ever more publications on the medical uses for cannabis. These health-related motivations for use have hitherto been the main areas of governmental focus under shifting policy regimes surrounding the medical use of marijuana. For more information see Maslov et al, 2016.

  11. 11

    For instance, allowances or requirements for informative labelling and related standards regulating product claims are part of the wine industry in some jurisdictions. One example is that certain wines are clarified using products that are refined forms of fish or crustacean parts, which is not acceptable to some vegetarians or vegans.

  12. 12

    For instance, if a business allows the smoking of one legal commodity but not another – say tobacco but not legal cannabis, or only allows particular people that are legally entitled to consume the commodity to do so – say by allowing the consumption of alcohol and tobacco together, but not alcohol and cannabis.

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