Nowhere to Now, Where? Reconciling Public Cannabis Use in a Public Health Legal Framework

Abstract

As states continue to legalize recreational cannabis, most have continued to heavily restrict where consumption of newly licit cannabis is permitted. In 2021, New York became the first state to permit open, outdoor public consumption of cannabis. All other legalizing states either restrict lawful annabis use to private property or allow a small number of licensed venues for consumption outside of public view, the latter approach borrowed from alcohol control. In contrast, a few legalizing jurisdictions outside of the United States have adopted an approach adapted from tobacco control that allows limited outdoor public use but prohibits indoor public use.

Each regulatory option presents individual and population health risks that reflect the complex intersection of health, social inequities, and community norms. Cannabis consumers face uncertain, but potentially significant, health risks from use. Additionally, the relative availability of
lawful use locations is inextricable from existing inequities in policing practices and housing. Those who do not use cannabis but are exposed to others’ use face possible harms from secondhand smoke and from intoxicated behaviors due to use. Such risks are similarly prone to inequitable distribution due to existing employment and housing patterns. Communities as a whole also face risks. Among others, changing cannabis norms may increase the prevalence or intensity of cannabis use, and concentration of cannabis outlets in under-resourced communities may also prove detrimental to community health, as seen in the distribution of tobacco and alcohol outlets.

Each public use approach carries attendant risks, but a regulatory framework based on the tobacco control model best balances the protection of public health and the promotion of equity and social justice. This model recognizes the parallels between cannabis and tobacco (in addition to those between cannabis and alcohol). Restricting indoor public cannabis use while allowing limited outdoor public use provides a pathway to mitigate the public health risks of cannabis legalization by leveraging an approach that has proven effective in the tobacco context at reducing secondhand exposures and denormalizing smoking behavior.

Keywords: cannabis, marijuana, drug policy, legalization, tobacco, alcohol, substance use, law, policy, public health, public health law, health law, housing, equity, smoking, secondhand smoke