The WTO: the stoner's new best friend.

The law, lawyers, and the court.
March 17 2005 2:27 PM

World Weed

The WTO—the stoner's new best friend.

In the United States, possession and distribution of marijuana is nominally illegal. But you don't have to be Tommy Chong to know that pot's legal status is cloudy and confused. Growing and using "medical" marijuana is legal in 11 states, and in cities like San Francisco it's easy enough to find locally grown product. In addition to being inconsistent, as critics have long pointed out, the federal ban is also irrational. It treats marijuana differently than similar products for no obvious reason. People use prescription drugs, pot, and alcohol for the same purposes: to get high, relax, and dull pain. The consequences of abuse are similar: crashed cars, disease, and lots of wasted time. So, what makes marijuana special?

The irrationality of U.S. marijuana policy is not news. Support of legalization has made bedfellows of people like Willie Nelson and William F. Buckley Jr., backed up by Richard Posner and Dr. Dre. And a Supreme Court decision on whether the federal laws can trump state statutes in this area is expected any day. But the strange status of marijuana may also bring down the scrutiny of a different entity altogether: the World Trade Organization and its powerful condemnation of inconsistent national laws. The American ban on marijuana is what the WTO calls "a barrier to trade," raising the question: Can U.S. marijuana policy survive the tough scrutiny of world trade law?

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WTO scrutiny of American drug laws may sound far-fetched, but then until recently so did WTO scrutiny of U.S. gambling or tax laws. U.S. gambling laws, like drug laws, are erratic: Online casinos are strictly prosecuted, but state lotteries and Las Vegas are tolerated. Citing such inconsistency, last November the WTO declared American gambling enforcement an "illegal barrier to trade in services." The fate of these gambling laws may be a guide to the future of American marijuana laws.

Do such WTO decisions have any teeth? Yes, because unlike other international bodies the WTO understands punishment. In his tenure as U.S. president, George W. Bush has obeyed exactly one international court decision: a WTO ruling that shot down his protections for American steel. The reason even Bush listens to the WTO is that the organization knows the one thing politicians fear: angry industries, especially farmers. The WTO has the power to authorize punitive economic sanctions, and those inevitably target politically sensitive exporters—like Florida orange growers or Midwestern wheat. And to such threats even the United States responds. Just as the mob gets what it wants by threatening your family, the WTO targets farmers, and for politicians that's even scarier.

Two WTO principles spell trouble for U.S. drug laws. The WTO demands that countries treat foreign products the same as domestic ones (the "National Treatment" principle); and it demands that when chemicals or drugs are banned, those bans be based on good science (the "Beef Hormone" principle). Both these requirements may present a problem for the United States in the pot wars, because neither science nor logic has ever played much of a role in American crackdowns on "reefer madness."

Consider "national treatment." The basic idea is that the United States cannot tax Canadian rye whisky at $10 a bottle without doing the same to Kentucky bourbon. Under WTO law, taxing one but not the other is illegal discrimination. The analogy to marijuana is clear: Local marijuana-growing enjoys quasi-legal status in the United States, but the import of foreign marijuana is strictly banned. In trade terms, that's called illegal discrimination in favor of local producers. Does it matter that the medical-marijuana laws are the rogue efforts of a handful of states like California and Montana? No, said the WTO in its online casino case—while state laws may give rise to this inconsistency, federal systems are fully accountable for state action.

U.S. states, moreover, are protecting a valuable industry. Estimates are unreliable, but the organization NORML in 1998 estimated the domestic weed industry at $15 billion, making it the nation's fourth largest: larger than the tobacco and cotton, but smaller than soybeans and corn. When local laws happen to protect a valuable local industry against imports, the WTO becomes suspicious.

"Beware the Killer Drug 'Marihuana'—a powerful narcotic in which lurks: Murder! Insanity! Death!" This warning, from a 1930s U.S. government poster, raises a central U.S. defense to WTO charges: Doesn't the United States have the right to protect its citizens against harmful drugs? Yes, countries do have explicit permission to enact health-protecting trade-restrictive measures (in trade lingo, "sanitary and phytosanitary measures"). But import bans must also be supported by scientific risk analysis. And merely saying "Murder! Insanity! Death!" is usually insufficient.

That's what the Europeans found out when their ban on hormone-fed beef was struck down by the WTO in 1998. Europeans have long been suspicious of American cattle fed growth hormones, believing that eating hormone-laden beef leads to premature sexual development. But the WTO struck Europe's beef-hormone ban for want of good science. In WTO language, Europe failed to supply a "risk assessment that reasonably supports or warrants the import prohibition."

There's a difference: Unlike with hormone beef, no one denies that marijuana is harmful when abused. As with tobacco or alcohol, the United States clearly has the right to enact some controls. The problem may be justifying the distinct U.S. treatment of marijuana's health risks. The WTO rules can be read to demand that products of similar risks be treated similarly, and a cannabis pill may be a market substitute for prescription drugs, alcohol, and tobacco. All are harmful: Prozac makes people suicidal, alcohol destroys livers, and cigarettes * are cancerous and as addictive as crack. What, the WTO may ask, makes marijuana so different?