A legal market cannot be designed for substances whose ordinary use is the harm

The argument

Opponents argue that the regulatory model supporters rely on does not transfer to this case. Regulation of a consumer product works by separating an acceptable use from a dangerous one, so that rules can permit the first and exclude the second: a dose limit, an age restriction, a safety standard, a warning on the label. The model assumes there is a way of using the product that does not produce the harm the regulator is concerned about. For substances with high dependence liability, opponents argue, no such separation is available. The harm consists in using the substance as it is designed to be used, with repetition and escalation following from its effects rather than from any misuse, so there is no ordinary case for a regulator to permit and no distinct abuse for it to prohibit. A legal market therefore cannot be designed to deliver the outcome its advocates describe. The practical consequences follow from that. A licensed seller asked to refuse its most dependent customers is being asked to turn away the source of most of its revenue, which either will not happen or will happen only under supervision intensive enough to raise its own objections. If such customers are refused, they return to an illegal supplier, which means the parallel trade legalisation was meant to end persists for precisely the group most at risk, while the legal market absorbs the lighter users whose harm was smallest. Opponents argue that this is the worst available distribution of the two markets.

Premises

Counter-arguments

Supporters reply that the same objection would apply to alcohol, where dependence liability is high and regulation nevertheless does substantial work through strength labelling, licensing conditions, drink-driving law and taxation, none of which requires separating a safe use from an unsafe one. They add that a residual illegal market serving dependent users would still be smaller than the market prohibition sustains at present, and that the comparison should be drawn against that market rather than against a hypothetical in which the trade does not exist.

Rejecting the premises

[Rejecting P1] The account of regulation is narrower than the practice. Regulators also restrict supply, price and availability precisely where no safe use can be specified, as prescription-only control does, and the premise does not consider that model. [Rejecting P2] That no separation exists is asserted across the whole class, and the class is not uniform: dependence liability varies widely among the substances a full legalisation would cover, so the premise generalises from its hardest case. [Rejecting P3] The residual market objection assumes the comparison is with no illegal market rather than with the one prohibition now sustains. A smaller parallel trade serving dependent users would be an improvement on the premise's own reasoning rather than a reason against the change.