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AVAILABILITY

The National Commission on Marihuana and Drug Abuse identified four models of availability for psychoactive substances: The first involves no special controls at all; the substance is treated in the same way as other [unregulated] market commodities. Under the second approach, the substance is subject to special controls but remains lawfully available for self-defined [or nonmedical] purposes. The third model limits availability to specific purposes, generally to medical and research uses only. Under the fourth approach, the substance is not legally available at all except perhaps for narrowly circumscribed use in research. The first two models can be characterized as regulatory approaches (because the substance is legitimately available for nonmedical or self-defined purposes) and the second two as "prohibitory" approaches (because the substance is not available for self-defined or nonmedical purposes). Tobacco and alcohol are lawfully available for nonmedical uses, but they are subject to variable regulatory controls designed to affect the product, place, and conditions of consumption. (Only the solvents and INHALANTS—glue, lacquer, thinner, ether, gasoline, nitrous oxide—are essentially uncontrolled.) However, most psychoactive substances (legally denominated controlled substances) are subject to prohibitory controls; with the one minor exception of PEYOTE, which has been available to members of the Native American Church for sacramental uses—this means their availability is limited by law to medical and research uses.

Alcohol.

The availability of alcohol is governed by alcoholic beverage controls (ABC) that vary from state to state. ABC agencies view their primary responsibilities as providing an orderly market for the distribution of alcoholic beverages, controlling criminal involvement in the market, and generating tax revenues. Since the 1960s, the trend has been to liberalize restrictions on access to, and availability of, alcohol in order to facilitate private choice, to protect commercial interests, and to raise revenue. Only since the late 1980s have some ABC agencies shown any inclination to use their regulatory authority to influence the prevalence pattern, and circumstances of consumption. Relevant aspects of ABC regulation include pricing and/or taxation policies, zoning, and rules regarding hours and days of sale.

Direct regulation, under the authority of ABC boards, is not the only method by which the law can influence the conditions under which alcohol is available. For example, one way to discourage retail sellers of alcohol from selling the substance to a person already intoxicated is to hold them legally liable for injuries subsequently caused by the intoxicated consumer, even after leaving the premises. Although the legal theory has changed over the years, the risk of liability for commercial suppliers under so-called DRAM SHOPLIABILITY LAWS is relatively well established. Moreover, the courts of several states have extended liability to the hosts of social events who served alcohol to "obviously intoxicated" guests who then cause injuries in their intoxicated condition.

Tobacco.

For the most part, the public health dimensions of tobacco regulation have been reflected only in product, package, and advertising requirements designed to facilitate informed consumer choice. Only since the late 1980s has the federal government moved toward a policy that unequivocally establishes reduced consumption as its goal. Although a national prohibition is unlikely in the foreseeable future, several regulatory initiatives are being undertaken at all levels of government. For example, states will not receive federal money for mental health and substance-abuse services, unless they implement a plan for enforcing bans against the distribution of tobacco products to minors. Many localities have banned vending machines. In addition, several states have raised cigarette excise taxes with the aim of reducing consumption, and the federal excise tax has been increased by a substantial amount, with the dual aims of reducing smoking and raising revenue.

In 1996, the federal Food and Drug Administration (FDA) asserted jurisdiction over traditional tobacco products under the Food, Drug and Cosmetic Act, on the theory that tobacco products are intentionally marketed to satisfy consumers' addiction to nicotine. Based on this interpretation of the Act, the FDA adopted regulations prohibiting the distribution of tobacco products to minors and, as discussed below, restricting the marketing of tobacco products to youths. Although the U.S. Supreme Court ruled in 2000 that the FDA did not have jurisdiction over traditional tobacco products under existing law, it is only a matter of time before Congress confers such authority.

In addition, smokers or their survivors have sued tobacco companies, with mixed success, seeking damages for smoking-induced disease or death. In 1998 the major tobacco companies entered into a Master Settlement Agreement with the state attorney general, agreeing to pay $246 billion to the states over the duration of 25 years to settle lawsuits seeking to recover the states' costs of treating smoking-related diseases. Obviously, imposing liability on manufacturers for the adverse health consequences of smoking can have a major impact on the economics of the industry. In this instance, the indirect regulation of tobacco by the tort system has exerted a more potent influence on industry behavior than many direct regulatory alternatives, such as pricing policies, outlet limitations, or tar and nicotine limitations.

Controlled Substances.

The manufacture and distribution of OPIATES, COCAINE, CANNABIS (MARIJUANA) stimulants, depressants, and hallucinogenic substances outside medical and scientific channels are unlawful under both federal and state "controlled substance" laws. The production and distribution of these substances within medical and scientific channels are subject to varied levels of restrictions based on their "potential for abuse" and their level of accepted medical use under the CONTROLLED SUBSTANCES ACT of 1970. The wisdom of these prohibitions, especially in relation to cannabis, has been questioned by some on the grounds that the suppression of nonmedical use is not a legitimate governmental objective, and if it is, that the costs of the prohibitions exceed the benefits of the reduced consumption they achieve.

A particularly controversial aspect of cannabis regulation has been its classification as a Schedule I drug under the Federal Controlled Substances Act and its state counterparts. Schedule I is the most restrictive classification, reserved for drugs without any accepted medical use. Critics of the law have argued that marijuana is medically useful to treat glaucoma, AIDS wasting syndromes, and other conditions, and several states have adopted laws that aim to legitimize bonafide medical uses under state law. These laws have created the unusual situation in which any effort to make marijuana available for medical uses could be prosecuted as a violation of federal law. The Institute of Medicine of the National Academy of Sciences has identified promising avenues of therapeutic use for the active constituents of cannabis and has recommended further research.

INFORMATION REGULATION

A government aiming to discourage what it perceives as unhealthy or unsafe behavior is not likely to be satisfied with the influence of its own messages and may seek to regulate communication by others within the bounds of the First Amendment, which protects freedom of speech. This can be done in two ways. First, the government may require individuals or organizations to convey the government's desired message. Laws requiring product manufacturers to include information on or with their products have become a standard feature of health and safety regulation. In recent years, mandatory package warnings have been utilized as a means of informing consumers about the dangers of tobacco and, more recently, of alcohol use. Second, government may ban communication of messages that it regards as undesirable. For example, laws banning false or misleading advertising are common, but government may choose to go a step further—to suppress a message because it is thought to encourage unhealthy or socially disapproved drug, alcohol, or tobacco-using behaviors. Examples include the federal ban on broadcast advertising of cigarettes and state laws that ban alcohol advertising. Public-health advocates have urged the federal government to prohibit all forms of tobacco advertising. Whether such prohibitions actually affect the level of consumption (as opposed to product choice) remains controversial. The FDA's 1996 Tobacco Rule, which was invalidated by the Supreme Court in 2000, would have restricted the advertising of tobacco products to a text-only format, and would also have banned other forms of promotional activity that are thought to make use of tobacco products attractive to children and adolescents. The tobacco companies agreed to abide by some of these marketing restrictions in the Master Settlement Agreement executed in connection with the suit brought by the attorney generals of these states.

Proposals have also been made to move beyond advertising into the area of entertainment programming, eliminating messages that portray smoking and drinking in an attractive way. Clearly, such initiatives would raise serious constitutional questions concerning free speech.

Governments have also occasionally attempted to purge the environment of messages that are thought to encourage illicit drug use. For example, one provision of the Model Drug Paraphernalia Act (drafted by the federal drug enforcement agency as a model for states to enact) specifically bans paraphernalia advertising. In 1973, the Federal Communications Commission (FCC) threatened to revoke the licenses of radio stations whose lyrics were thought to encourage illicit drug use.

DIRECT REGULATION OF CONSUMER BEHAVIOR

A decision to discourage nonmedical drug use—and to proscribe transactions outside medical channels in order to restrict availability for such use—does not necessarily entail a decision to proscribe and punish unauthorized consumption. Values of individual freedom weigh very differently in the two contexts.

From the perspective of libertarian philosophy, it has been argued that the criminalization of private use (and possession for such use) of drugs is categorically illegitimate, and the criminal prohibition should be limited to behavior that endangers others. This, also leads to a discussion of the ways in which drugs might affect others. Even if criminalization is not categorically objectionable, the costs of it may exceed the benefits. The National Commission on Marihuana and Drug Abuse relied on such a cost-benefit assessment in 1972 when it recommended the decriminalization of possession of marijuana for personal use. A few states have decriminalized the possession of marijuana, although they have usually substituted a civil fine. Some of the states that took this action subsequently recriminalized the possession. Aside from marijuana, possession of all other controlled substances is a criminal offense in all states as well as under federal law. In addition, the possession of alcohol by underage consumers is an offense in most states. Even if the possession or use of a substance is not categorically proscribed, prohibitions can be utilized to deter and punish socially harmful behavior or to provide leverage to coerce individuals into treatment. Public smoking laws and laws prohibiting driving while intoxicated (or while having a certain level of blood alcohol content) provide the prime examples.

DECLARATION ASPECTS OF LEGAL REGULATION

Government sends messages by its actions as well as its words. By declaring conduct illegal or by using any of the other instruments of legal intervention described above, the government expresses and formalizes social norms. However, knowledge of the official preferences may actually encourage the disapproved behavior among disaffected, outsider groups. Measuring such symbolic effects is difficult because of the need to isolate these hypothesized effects from other influences on attitudes and beliefs.

Arguments drawing on the declarative aspects of legal regulation are routinely employed by proponents of restrictive controls over the availability and consumption of alcohol, tobacco, and other drugs. Criminal sanctions against the simple possession of controlled substances are frequently regarded as indispensable symbols of social disapproval. Such arguments have been prominent in debates concerning the decriminalization of possession of marijuana. Moreover, graded or stratified penalty schemes, which punish the possession of "more harmful" drugs more severely than that of "less harmful" drugs, may be favored because they denote the relative seriousness of these transgressions. Public SMOKING bans and antiparaphernalia laws seem to be particularly designed to reinforce attitudes unfavorable to smoking and recreational drug use.

Statements of legal rules can serve an educational role even if they do not penalize the undesired behavior. Minimum-drinking-age laws (which prohibit the distribution of alcohol to youth) provide a good example because they denote the norm even if the youthful drinker is not punished. Similarly, bans on alcohol or tobacco advertising might be enacted to erase a possible symbol of social approval even if the proponents did not believe that such bans would directly reduce consumption.

(SEE ALSO: ; Alcohol; Dram Shop Liability Laws; Minimum Drinking Age Laws; ; Policy Alternatives)

RICHARD J. BONNIE