History of drug laws

As discussed in class, drugs have been a part of the human experience from the beginning. Most of the regulation during that time was through social sanctions and responses to intoxication (rather than sanctions for use).

More official proclamations against the use of various substances have occurred over the centuries (including laws forbidding the consumption of coffee, smoking of tobacco, etc.) In this country, the restriction of use and distribution of drugs on a Federal level is less than 100 years old. Previous to 1914, any restrictions were on the State or local level, and those restrictions were few and far between and commonly targeted to use by certain groups.

What I'll do here is trace the development of legal control over drugs to give you an idea of how we came to where we are now. (Don't memorize specific years. I won't ask you, "What law was passed in 1938?" However, the chronology is important for understanding how these regulations have developed (and how relatively recent most of them are. Also, you'll need to know what the major drug acts did. Major acts will be marked in red.))

History of drug laws and restrictions in U.S.

1830's
In Massachusetts, first law to limit alcohol availability in U.S.-- forbade selling to Indians.

1850's
Between 1851 and 1855, 13 states passed alcohol prohibition laws. By 1868, 9 had repealed them. Same pattern later. Again, laws aimed partially at those who were partaking rather than on the drug itself.

1875
San Francisco Ordinance banning the operation or visiting of opium dens. Again, the drug itself not banned, only a particular setting (aimed at controlling use among Chinese immigrants).

1897
Tea Importation Act-- possibly first consumer protection law. Test incoming loads for quality. (How done? By tasting, of course).

At this point, there are no Federal laws governing use or distribution of any drug (medicinal or recreational). Substances such as heroin, morphine, and cocaine are readily available and sold as part of "patent" medicines to cure everything from menstrual cramps to toothaches in children.

However, times are beginning to change. The morality movement against alcohol has begun to take hold in various areas of the country. Also, concerns about the use of opium and cocaine beyond medicinal uses is gaining attention. The Federal government was much less activist in controlling behaviors at the turn of the century, however, and very narrowly saw its province as dealing with interstate commerce. Accordingly, the U.S. government was very slow at responding to what was seen by some as a crisis, and was actually involved in the exportation of opium into China and the Philippines. At the beginning of the 20th century, the stage is set for greater Federal response to drugs and their use.

1906
Food and Drug Act enacted-- strictly a "labeling law"-- only affected misbranded foods and drugs. Main concern was "patent medicines" that could be made up of tar, animal secretions, cocaine, heroin, or whatever and no one would know. As far as the law was concerned, the medicine could contain all of these as long as it was labeled properly.

Around this time the fear of Chinese opium dens coupled with stories of supposed cocaine-fueled violence by Blacks down South-- topped by an inflammatory and unsubstantiated accounts to Congress of how cocaine was leading to the raping of White women by Black men-- lead to calls for further restrictions.

1907
From 1907 to 1919, 39 states enacted prohibitions and only 2 repealed, showing a resurgence in the Prohibition movement. Some of this was fueled by religious prejudice, with the prohibitionists being Protestant using Irish-Catholics as examples of decadent drunkenness. 64% of Americans lived in "dry" territory.

1912
Hague Conventions-- calling for international regulation of opium. U.S., who convened international meeting at The Hague because of growing concerns about opium use at home, called on the carpet for not having any drug restrictions of its own. This led to the enacting of the Harrison Tax Act.

1914
Harrison Tax Act-- Direct response to Hague Conventions to deal with "narcotics." Keeping in line with the view of the Federal government's role in interstate commerce, this act was a tax and only a tax (NOT a prohibition, as it is often misinterpreted as doing.) Under the act, physicians were able to "minister to patients" and "...drugs obtained by addicts were to be secured through registered physicians." That meant that at this time, addiction was legally seen as a medical issue rather than a punishable, behavioral one. Coca and cocaine were inappropriately identified in this Act as narcotics.

1920's
Jan. 16, 1920-- 18th Amendment (Volstead Act; alcohol prohibition) was ratified; took effect 1/16/21. Helped launch suffragette movement since women were instrumental in the passage of this act.

Since Harrison Act was a tax, enforcement taken over by treasury department during 1920's along with alcohol prohibition enforcement. An over-zealous interpretation of law developed-- not just collect taxes and insure registration, but it took on a prosecutorial position. Strict interpretation saw the prosecuting of doctors that prescribed to addicts, no longer seeing addiction as a medical issue. Over a short period of time, the Treasury Dept. refused to register other sellers (even though allowed by law), and closed public health clinics that administered to addicts (since not considered legitimate medical purpose). Two times as many drug (opiates and cocaine) arrests as for alcohol during this time.

During this time, marijuana use was popular in some areas (cities)-- at "tea dens"-- since marijuana legal and alcohol was not. Some references to use by Mexican-Americans, but use and concern about it low. In 1926, however, a series of reports from New Orleans linking marijuana with crime piqued public concern.

1933
Dec. 5, 1933-- 21st Amendment overturning 18th Amendment (Prohibition). Realized that, while drinking and alcoholism had gone down, organized crime had become stronger; willful violation of law was rampant; and, with the Depression, tax money was wanted. Sales did not reach pre-prohibition levels, however, until after WW-II.

1935
36 states with laws regulating use, sale, or possession of marijuana. By 1936, all 48 states had laws. Increasingly, violent crimes blamed on marijuana use. By 1937, it was touted as the "foremost menace to life, health and morals in America."

1937
Marijuana Tax Act-- Only a tax! While not making it illegal, by taxing grower, distributor, seller and buyer, it made it virtually impossible to get. (The Act specified only one species of cannabis, and although all contain the same active ingredients, they are impossible to tell apart after processing, making enforcement impossible as well). The STATE laws then made it illegal. HOWEVER, in 1969, the Supreme Court ruled the Tax Act unconstitutional because for it to be followed, the user or seller would have to declare self, thus incriminating self, in violation of the 5th Amendment. Use dropped markedly until late 1950's/early 1960's.

Up to this point, then, any control of drugs at the national or Federal level involves taxation-- the tool used to control commerce. However, views toward the Federal government fundamentally changed following the Great Depression and during World War II. A view that the government should play an active role in protecting the citizenry developed. Along with that grew changes in how drugs were regulated:

1938
Food, Drug and Cosmetic Act-- At this time, sulfa drugs commonly used as antibiotics, which could not be taken easily because there was no liquid form. In search of a liquid form, a chemist found that one sulfa drug (sulfanilamide) dissolved in diethylene glycol. Unfortunately, diethylene glycol causes kidney poisoning and this drug killed 107 people before being pulled off the shelves in 1937. Reason for it being pulled off? A true elixir, as it was advertised to be, contained alcohol. By the 1906 Food and Drug act, the drug needed to be properly labeled; it did not have to be safe. The chemist committed suicide; the company paid the largest fine in the history of the existing 1906 law; and the 1938 Act was enacted saying that drugs or cosmetics had to be tested for toxicity before marketing. Also, adequate directions for use needed to be on package and made first mention of "use by instruction from physician only"-- in other words, prescription vs. non-prescription med's.

Kefauver-Harris Amendments (1962)-- It wasn't until 1962, on the heels of the Thalidomide situation (a drug given to pregnant women for morning sickness that caused severe birth defects), that amendments were added stating that a drug had to be effective for what it was intended and that approval had to be given before trials on humans could be conducted, thus creating the Food and Drug Administration (FDA). Investigation of existing drugs' effectiveness began in 1964-- by 1974, 6133 drugs had been removed for ineffectiveness. This is important because it marks direct involvement of the federal government in the safety and effectiveness of a product-- a much more activist stance than in 1900. We now take for granted that a drug or medical device has passed such scrutiny. It is, however, quite recent in our history.

1965
Drug Abuse Control Amendments-- referred to amphetamines, barbiturates and LSD (added in 1968) as "dangerous drugs" and allowed for FDA to recommend to Department of Health, Education, and Welfare to control them and other drugs that may later be deemed a problem. This is the first direct prohibition of a drug decreed by the Federal Gov.

1966
The last "dry" state (Mississippi) went "wet" in 1966.

1970
Comprehensive Drug Abuse Prevention and Control Act of 1970 (Controlled Substance Act of 1970)-- Specifically stated that drugs under act were now under Federal jurisdiction and dealt with both narcotics and other "dangerous" drugs. Also dealt with prevention and treatment. Treated marijuana differently-- making a separate commission to study this and report in 1972. Continuing with the trend started in 1965, and in contrast to early acts, this one was to control drugs directly, not through taxes-- moving enforcement out of Treasury to Justice and established the Drug Enforcement Agency (DEA). Attorney General in charge of enforcement; but Health, Education, and Welfare (through the FDA) in charge of defining what needs to be controlled, considering:
1) pharmacologic actions
2) other scientific knowledge about it and related drugs.
3) risk to public health
4) dependence (psychic or physiologic) potential
5) whether the drug was a pre-curser for other drugs listed.
Alcohol, nicotine, and caffeine excluded.

The 1970 Controlled Substances Act brought about our current approach to drugs. Addiction and drug use are now squarely in a behavioral realm with the government's role being in enforcement. The laws that followed 1970 have been to strengthen or expand the Controlled Substances Act:

1972
Marijuana recommended to be downgraded to misdemeanor. (Previously, states treated as felony resulting in extreme penalties). Oregon first state to do so in 1973-- resulting in small increase in use. Other states followed (inc. Minn.) In 1970's, Carter administration worked toward Federal decriminalization.

1984, 1986
Drug Analogue (1984) and Anti-Drug Abuse (1986) Acts-- The Drug Analogue act was enacted to deal with "designer" drugs, allowing immediate classification of a substance as a controlled substance. Previous to this, people were avoiding prosecution with chemically altered versions of controlled substances with similar drug effects because they didn't appear on the Schedules. The Anti-drug abuse act focused on penalties for trafficking.

1988
Omnibus Drug Act (a.k.a., "Chemical diversion and trafficking act")-- added registration requirements on airplanes and boats, dealt with arms sales, money laundering, and added death penalty for murder connected with drug-related felony. Toughened penalties for users and allowed for confiscation of vehicles used in distribution.

1990s
Legislation and litigation regarding tobacco has taken on a new twist, with cigarette manufacturers being challenged for health costs associated with use of their product. This has led to settlements with numerous states, notably the Minnesota settlement in 1998. Further, the Food and Drug Administration proposed in 1996 to place tobacco under its control (excluded in the Controlled Subst. Act and also the Pure Food and Drug Act that established the FDA.) The FDA maintains that cigarettes are a "nicotine delivery device" and, therefore, similar to any other drug product. Congress has disagreed and the cigarette manufacturers have challenged this in the courts. The Clinton administration has sided with the FDA. The Supreme Court heard arguments on this matter in Fall, 1999. The Supreme Court decided against the FDA being able to regulate tobacco, citing the Controlled Substances Act as deliberately excluding tobacco from the FDA's control. Congress would need to act to change the law.

1996
The Comprehensive Methamphetamine Control Act restricts access to chemicals and equipment used in the manufacture of methamphetamine and increases penalties for possession of these plus the manufacture and/or sale of the drug. The Combat Meth Act of 2005 amended the Controlled Substances Act to make pseudophedrine (the active ingredient in Sudafed and a necessary ingredient for home meth production) a Schedule V drug to limit amounts that can be purchased and requiring I.D. This amendment has been credited with a significant drop in home meth production. However, distribution has shifted to cheaper sources from, predominantly, Mexico.

The text goes through a similar timeline, splitting medicinal controls from drug abuse controls after 1914. You should be familiar with this material before contributing to the drug criminalization/legalization discussion.