The Tyranny of Regulation

Probably one of the most potent arguments in favour of drug law reform is based on the idea of taking control of the huge trade in drugs from the uncontrolled criminal gangs and properly regulating that trade to ensure a consistent product. Now any form of regulation needs laws to base the regulation on and some authority body to oversee it all, so it’s hard to escape the idea that this is all a role for government.

So what’s the problem? Isn’t this the fit and proper role for laws and ultimately governments when it comes to drugs?

Throughout the history of the cannabis law reform movement a very vocal wing has insisted on “full legalisation”, we used to call it “The Cabbage Model” because, the argument went, cannabis should be treated just like any other vegetable and sold freely without any kind of restriction. The argument has some merit in that if cannabis were sold on the market by the Kilo it would take the big money out of the cannabis trade.

Indeed it is only because of our present prohibition policy that ‘drug plants’ such as cannabis have any great value at all, prohibition has made what are really only weeds worth (probably) more than their weight in gold.

Could this ever work? Well it did used to as I saw for myself in 1993 when I visited Cambodia. Of all the terrible problems that country experienced in the couple of decades before my visit, cannabis clearly wasn’t one of them:

Phnom Penh, Cambodia 1993

Me holding a sack of Cambodian ganja on Phnom Penh market, 1993

But of course, it is constantly argued that cannabis has the potential to be dangerous for some people and hence regulation of the strength (or more accurately potency) is such a strong counter for the “Reefer madness” claims used by the government to justify its prohibition policy.

The logic is simple – drugs can be dangerous, prohibition increases those dangers greatly and it’s the government’s job to reduce danger with public policy.

One respected commentator, Julian Buchanan, doesn’t think this is a good tactic. Julian is no anarchic “free the weed” idealist. His CV on his blog makes interesting reading

I worked at the ‘coalface’ as a drugs worker at a time when the country was overwhelmed by the ‘heroin epidemic‘ and was instrumental in conceptualizing and promoting an alternative ‘risk reduction’ approach (Buchanan & Wyke 1987) challenging the dominant abstinence approach. Our risk reduction philosophy was adopted by Merseyside Probation in a new drug policy document and as a founder member of one of the largest multi-agency community drugs teams in the UK (the South Sefton Drugs Team)


I left probation work to further my research and writing as Lecturer at Liverpool University, then Senior Lecturer at University of Central Lancashire (England) and Glyndwr University (Wales) where I was eventually appointed Professor. In 2011 pursuing a lifestyle change I moved to the Institute of Criminology Victoria University of Wellington, (New Zealand).

So when he writes The problem isn’t drugs it’s drug policy: State control and regulation isn’t the solution to that problem. he probably has a good reason to do so. He takes issue with the Transform line summarised by a recent meme

Transform meme
Transform meme

He argues that accepting this logic could lead to Prohibition 2.0.

The key message that ‘drugs’ are not safe and potentially dangerous is misleading and inaccurate.  It perpetuates prohibition propaganda that fuels the fear and hype that demonises ‘drugs’.

Julian isn’t talking about just cannabis here, but all drugs – across the board. More than that he’s making the argument that the whole idea of ‘drugs’ is something of a false construct and of course he is right, cannabis has nothing in common with cocaine other than the workings of the Misuse of Drugs Act. Indeed, this hypocrisy is demonstrated pretty much every day by people who should know better by use of the term “Alcohol and drugs”; alcohol obviously isn’t one of these ‘drug’ things. He makes the perfectly valid point that many things are potentially dangerous – salt and peanuts for example – should they also be regulated?

But he goes on to say

So what about ‘drugs’– is the reform movement seriously suggesting having an unregulated coffee, or an unregulated glass of wine, chewing khat or coca leaves or smoking unregulated homegrown cannabis is somehow unsafe and potentially dangerous?

Well, yes. It’s easy of course to pick a hole in his argument here because wine is a very regulated product. Sure, you can make your own plonk but not to sell it. A wine market which consisted of my mates elderberry would have very different social consequences than the present highly regulated trade.

Let us be clear people can be harmed by some drugs, but we must also acknowledge most harm is exacerbated by prohibitive and intolerant drug policies, and the level of risk posed by different drugs varies enormously according to the interplay between the substance, the person (set) and the environment (setting).

So Julian agrees that the things we call ‘drugs’ can indeed be dangerous – not in any kind of simplistic broad brush way of course and some more than others. He also accepts that prohibition makes the problems worse. Thus far he is agreeing with the Transform meme.

But he goes on to say

When drug use and drug markets have become particularly unsafe and potentially dangerous, it is not because the state hasn’t intervened, but it’s because of state intervention; by imposing severe law enforcement and military measures to prevent the use of some drugs, while promoting other drugs such as pharmaceuticals, alcohol, caffeine, tobacco and sugar.

Again that is true, but the problem isn’t that the government has intervened, but that its’ done so in the wrong way. By restricting the production and trying to ban the sale of ‘drugs’ all we have done is to create the very conditions for the criminal trade, as I said above by giving weeds a high monetary value. Drugs didn’t do this, prohibition did. Before the war on drugs criminals had no involvement with the drugs trade.

So Julian makes this argument against the campaign for government regulation of the drugs trade

While regulation could mean the state may approve and legally regulate a much wider range of drugs, while still prohibiting a small group of so-called dangerous drugs, the state may also continue to prohibit possession of unregulated drugs. Under a Regulation model that prioritises quality control, the state may insist that Big Pharma are the only state approved dealers and therefore it would be an offence to be in possession of any drug from an unregulated source – and that could include home-grown cannabis for example.

This is what he calls “prohibition V2.0” and if that happened then yes, it would be an undesirable measure, but there’s no reason it should. For example it’s not illegal to possess bootleg vodka although to do so is very unwise. It is of course illegal to sell it and to produce it yourself.

Strict regulation is needed for businesses not people, but even then, government has a poor record of regulating the pharmaceutical (Fentanyl the source of many fatal overdoses is a regulated drug), alcohol and tobacco industry, so placing hope in the State to sensibly regulate ‘drugs’ in a manner that protects human rights and promotes harm reduction is at best optimistic. The risk is that the state who have resolutely maintained a draconian and austere system of drug prohibition for five decades will pursue a model of regulation that will punish possession, production and/or cultivation of unapproved drugs for personal use.

Yes, well. Julian does accept here that strict regulation of the trade is needed, so despite the impression he gives he is not against regulation entirely and if regulation of the trade is to happen then surely governments have to be doing it?

What Julian really objects to is regulation of the consumer.

The key here I think is that demand for drugs has to be allowed and catered for and the supply of those drugs is what needs to be properly regulated. People are dying from fentanyl overdoses because heroin is restricted to the point it can only be obtained  on the ‘black’ market which is rich and powerful enough to undermine the regulation of Fentanyl. But if the regulation of fentanyl isn’t good enough, that isn’t an argument for saying it shouldn’t be done at all.

Julian’s point about “setting” is very valid, as the “Rat Park” experiment demonstrated much of the problems ascribed to heroin addiction can be put down to poverty and the need for escape from terminally hopeless lives. That doesn’t mean heroin is totally safe of course, just that “setting” makes a very big difference to the outcomes. Further evidence to support that comes from the work of Dr John Marks on Merseyside in the early 80’s who managed to turn around heroin addicts lives by giving them heroin on a maintenance basis. So instead of trying to prevent escapist drug use perhaps we should put more effort into eliminating poverty and hopelessness.

So Julian is certainly right to claim the huge problems we see with ‘drugs’ these days are largely due to the regime we’ve imposed on their use, the war on drugs.

But is he right to oppose calls for government regulation?

In my view, an open invitation for state regulation is likely to continue to result in disproportionate law enforcement measures imposed on the poor, the indigenous and minority groups for possession of ‘unapproved’ drugs.

Sadly the people we need to deal with in the law reform campaign are politicians; often they are people with no experience of the things they legislate on and whose only real skill is the ability to get elected, which as Douglas Adams pointed out in the Hitch Hikers Guide to the Galaxy, is precisely the wrong skill for doing the job. He does have a point.

So what does Julian propose?

Before we even begin the tricky process of asking the state to regulate drugs we must first and foremost, rally reform to abolish Prohibition and restore the human right to possess, produce and/or cultivate any drug for personal use without threat, punishment, or incarceration by the state. Once this is secured then we have a strong foundation to begin to secure a suitable model of regulation, although at present the detail of the desired model for regulation is worryingly vague.

I find this logic really annoying, partly because it’s idealistically right, but it doesn’t take into account of where we are now. I live in Norwich, a place renowned for bad transport links. A long-standing joke in these parts is “If you want to get there, don’t start from here”. That seems to be the logic of Julian’s argument.

We have to find a way to kill off the illegal trade in these things we’ve called ‘drugs’ and yes that clearly means ending prohibition. It is also true that to do this we have to allow people to do what they want with their bodies and therefore to have some kind of access to their drug of choice. The issue is how do we get from the mess we have now to where we both want to be? We do have to start from where we are, we can’t go somewhere else first. Would it really be a good idea to allow anyone to produce any drug with no regulation at all, even if only for personal use?

In any case, if you allow production then you have created supply to others by default.

To completely remove all consumer restrictions on all drugs without introducing any kid of regulation of the supply side would offer the forces of free enterprise a wonderful business opportunity, which it would grab with both hands. While it is true that this would solve a lot of the problems we see now with the illegal trade, it would open the doors to mass exploitation  of a different but no less problematic type.

In addition we do limit access to approved forms of drugs now of course, at least in as much as we only allow the sale of approved forms. This is especially true of alcohol. Of course we are free to home-brew with certain constraints, home distilling is not allowed for example.

Hence I argue that getting the regulatory regime right first of all is important. While I agree with Julian’s reservations about the demand for regulation being perhaps vague it is surely the right direction of travel? I also share his distrust of politicians and we do need to be wary of them in this as in all aspects of life.

Julian also seems to be arguing that there should be no restrictions on the way ‘drugs’ are used. In this country we’ve seen great success with the smoking ban for example so I would say there is room for discussion on that aspect.

All of this of course has to be on a substance by substance basis, what’s good for one ‘drug’ is not necessarily good for another. So as an across the board policy it’s not as simple as perhaps Julian suggests or implies.

Because of all of this I find his conclusion hard to support:

If, in an attempt to win support for drug policy change, we collude with these myths: that drugs per se are inherently unsafe; that drugs per se are potentially dangerous; that drug are sold by gangsters; and that state regulation and control is the solution to the problems caused by state prohibition; then we sabotage human rights based reform by perpetuating myth, misunderstanding and misinformation, and we embark on a journey that is more likely to lead to Prohibition 2.0.

The other problem with that argument is it doesn’t appeal to everyone because a lot of people don’t see the issue as a case of human rights. There is a substantial body of opinion out there who want to see ‘drugs’ controlled as effectively as possible, who for a variety of reasons do not want to see ‘drugs’ widely used. These people may see the world very differently to Julian – or indeed myself – but they are persuadable that prohibition is a failed regime because it fails to achieve the control over drugs they desire. It’s actually easy to argue that a properly regulated trade would do a lot better job in this regard.

For me the aim is to end the prohibition madness of the war on drugs, to do that we have to appeal to the widest spectrum of opinion as possible. By arguing against regulation as an aim of the drug law reform movement Julian is arguing against possibly our strongest, most persuasive argument. His concerns are valid, but they don’t amount to a reason not to pursue regulation as a key tactic for drug law reformers.


UKCIA is a cannabis law reform site dedicated to ending the prohibition of cannabis. As an illegal drug, cannabis is not a controlled substance - it varies greatly in strength and purity, it's sold by unaccountable people from unknown venues with no over sight by the authorities. There is no recourse to the law for users and the most vulnerable are therefore placed at the greatest risk. There can be no measures such as age limits on sales and no way to properly monitor or study the trade, let alone introduce proper regulation. Cannabis must be legalised, as an illegal substance it is very dangerous to the users and society at large.