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Early Regulation and a New (Drug) Deal

During the last decades of the nineteenth century, Progressives sought to institute reforms to empower the federal government to regulate commerce in ways that protected workers, consumers, and the public. Progressive regulation grew to touch many facets of American life, such as the temperance movement and the push for workers’ rights. It also shaped early efforts to regulate food and drugs.

The American medical system of the nineteenth century was largely unregulated and doctors were often poorly trained. Little standardization was applied to the elixirs the medical community used to treat conditions and diseases. Patient safety was threatened. The medical community and state governments began to consider ways in which the quality and delivery of medicine and medical products could be improved.

The Government Steps in as Regulator

In 1906 Congress passed the Pure Food and Drug Act, one of the nation’s first efforts to regulate and standardize commercial drugs, food, and other products. The focus was on the branding, packaging, and adulteration of such products. The law, which empowered the U.S. Department of Agriculture’s Bureau of Chemistry to test and regulate substances, had a clear impact on marijuana. “Drugs” in the law are substances defined “in accordance with the standards of strength, quality, and purity” in the United States Pharmacopeia or National Formulary (USP–NF), a two-volume compendium of “public pharmacopeial standards for chemical and biological drug substances, dosage forms, compounded preparations, excipients, medical devices, and dietary supplements.”1 Published annually by the United States Pharmacopeial Convention, the USP-NF is the Holy Bible for pharmacists; until 1942, marijuana had its own chapter and verse.

The Pure Food and Drug Act did not outlaw marijuana, nor even tax it. Essentially it allowed the Agriculture Department to put standards in place to ensure its safe use. In fact, as long as the USP-NF included marijuana, the substance was legal and regulated under the act. However, the act did mark the expansion of the federal government’s regulatory power into a new arena—an expansion that would eventually be upheld by the U.S. Supreme Court. It put the federal government in the business of controlling drugs, a power that would only grow over time.

In fact, shortly thereafter Congress passed what came to be known as the Opium Exclusion Act of 1909 in response to racially motivated disputes with Chinese immigrants in the West. This act banned the import of opium and its derivatives into the United States. Over time the banning of opium imports would be expanded to other drugs.

In 1914 Congress passed the Harrison Act, named after its chief sponsor, Representative Francis Burton Harrison (D-N.Y.), which created a prescription registry and imposed a special tax of one dollar per year for anyone manufacturing, distributing, or dispensing opium and cocaine.2 It allowed the government to keep an account of prescriptions written for such substances and prescribed criminal penalties for doctors who violated the act by dispensing or possessing such substances without permission or without paying requisite taxes. In fact, doctors were prosecuted under this law. Physicians undertook efforts to have the law overturned on constitutional grounds, but a series of Supreme Court rulings upheld it.

These laws not only flexed the regulatory muscle of the U.S. government but also marked a period in American history in which drug control policy was executed through taxation. Criminalization of drug use did not come via prohibition of possession, distribution, or production. Instead, during this period criminal charges were pinned on those skirting tax requirements. This system reflects a type of government power still used today—the use of tax penalties or incentives to stimulate preferred behaviors. Tax policy can be an effective behavioral incentive in not requiring but spurring individuals to make specific choices that the government believes creates social benefits. People are allowed to purchase cigarettes, but the federal and state governments impose taxes in efforts both to generate revenue and to reduce use. Conversely, the government offers tax deductions for people who attend college, own a home, and make energy-efficient improvements to their dwellings.

In the case of drug policy, a taxation regime sought to raise revenue and incentivize certain behaviors among consumers and doctors; namely, doctors would no longer prescribe opium as a maintenance drug for those experiencing dependence.3 Much of the regulation of drugs during the early part of the twentieth century fell to the Bureau of Chemistry, but as drug control policy expanded in scope, the administrative state regulatory structure expanded as well. In 1922 the Narcotic Drugs Import and Export Act (more commonly referred to as the Jones-Miller Act) established the Federal Narcotics Control Board and limited the importation of opium and cocaine into the United States except as authorized by the board (composed of the secretaries of state, treasury, and commerce). It expanded criminal penalties for illegal importation and put restrictions on the ability to export narcotic drugs.

At this time, opium was seen as a worldwide problem, and the Jones-Miller Act was passed to comply with the International Opium Convention (1912) that emerged from the First International Opium Conference (1912). Fears about addiction to opium were legitimate, but opium also elicited xenophobic fears about Asian immigrants and cultures. With this act, U.S. drug control policy began to shift away from an explicit taxation regime, as the early elements of drug prohibition were introduced.

Planting the Seeds of Marijuana Prohibition

By the late 1920s the existing drug regulation apparatus needed reform. In 1927 Congress reorganized the Bureau of Chemistry, the government’s most authoritative drug regulator, and renamed it the Food, Drug, and Insecticide Administration. This agency served as a new regulatory body and operated alongside its law enforcement peer, the Narcotics Commission, which was housed in the Bureau of Prohibition. In 1930 the name of the new regulatory body was shortened to the Food and Drug Administration (FDA).

The year 1930 brought other, more dramatic, administrative changes. Congress passed H.R. 11143, the Porter Narcotic Bill, named after its sponsor, Congressman Stephen G. Porter (R-Pa.).4 This law closed the Narcotics Control Board and transferred all the powers of the Narcotics Commission from the Bureau of Prohibition to the new Bureau of Narcotics within the Treasury Department. It gave the bureau broad law enforcement jurisdiction over the control of narcotic drugs in the United States. That administrative change, and the personnel choices that followed, were significant and had lasting effects.

On the recommendation of Congressman Porter, President Herbert Hoover selected as the first commissioner of the newly established Bureau of Narcotics Harry J. Anslinger, a veteran of the Bureau of Prohibition whose early career had focused primarily on enforcing laws banning alcohol under Prohibition.5 The new appointment allowed Anslinger to transfer the criminalization of alcohol to other substances.

Anslinger’s tenure began in late summer 1930 and lasted into the Kennedy administration. He may not have been America’s first drug warrior, but he was certainly among its most passionate and the one who had the greatest impact on drug policy in the twentieth century. He would play a central role in managing drug policy in the United States, ensuring that the power of the state and the specter of prohibition were ever expanding.

Commissioner Anslinger’s drug portfolio was broad, but he had a special interest in marijuana. His activities in service of his antimarijuana cause came to include touring the country and giving speeches to police groups, civic organizations, and others detailing the reasons marijuana was anathema. Anslinger engaged many of the same types of groups—women, police, local civic organizations—that composed the temperance movement, despite America’s failed experience with alcohol prohibition. In many ways the two movements functioned similarly. Like alcohol, marijuana was painted as a scourge on society, ruining the moral fabric of America, breaking up families, and decreasing Americans’ capacity for gainful employment.

Anslinger used or manipulated data to come up with creative statistics and compelling anecdotes. His publicly cited “statistics” likely were “generalized from arrest rates or, perhaps, simply guessed.”6 If his use of statistics was creative, his marijuana narrative was over the top. In one 1937 essay Anslinger wrote, “No one knows, when he places a marijuana cigarette to his lips, whether he will become a philosopher, a joyous reveler in a musical heaven, a mad insensate, a calm philosopher, or a murderer.”7 The essay is a stream of vignettes in which young people who use marijuana rob, rape, and murder strangers, police officers, and even members of their own families.

Racism became commonplace in Anslinger’s discussion of marijuana, including coded language such as “The cigarettes may have been sold by a hot tamale vendor” or “Marijuana found a ready welcome … in a closely congested section of New York.”8 Anslinger could also be more explicit in his insinuations: “Marijuana was introduced into the United States from Mexico, and swept across America with incredible speed.”9

This personal crusade combining scare tactics and racial overtones was quite effective at both the state and federal levels. Early in his tenure, Anslinger strongly supported passage of the Uniform State Narcotic Act of 1932 (its language had been drafted by the National Conference of Commissioners on Uniform State Laws), which pushed states both to unify their narcotics laws and to include cannabis under the “narcotic” designation. The act prescribed criminal punishments for those violating the laws at the state level.

Anslinger also was able to motivate Congress to act. In 1937 Congress passed the Marihuana Tax Act (using the then-current spelling). It was the first time the federal government used the word in any formal context. This law required anyone who “imports, manufactures, produces, compounds, sells, deals in, dispenses, prescribes, administers, or gives away marihuana” to register with the government and purchase a tax stamp from the Department of Treasury. Failure to do so resulted in sometimes draconian fines and terms of imprisonment. The Marihuana Tax Act of 1937 was an early U.S. government effort to criminalize all behavior involved in marijuana production. It would be just the beginning.

Prior to and during Anslinger’s reign atop of the Bureau of Narcotics, America’s approach to marijuana changed dramatically. In the years after the Mexican-American War (1846–48), as hundreds of thousands of Mexican immigrants streamed across the border, racial tensions heated up. As Americans sought a pretext to vilify this new immigrant community, they found an ideal culprit in marijuana, a more common crop south of the border and a substance used for a variety of purposes in Mexican culture at the time. Starting early in the twentieth century, fear and anti-immigrant sentiment prompted state-level bans on cannabis; this movement accelerated during Anslinger’s tenure and was harmonized after passage of the Uniform State Narcotic Act in 1932. While the federal government sought to tax and regulate drugs, states began outlawing them, particularly marijuana.

Although many Americans bought into Anslinger’s propaganda about the evils and dangers of marijuana, it failed to convince everyone. The passage of the Marijuana Tax Act of 1937 and subsequent regulatory legislation like the Federal Food, Drug, and Cosmetic Act of 1938 also met with some resistance, and some medical professionals, public officials, and politicians pushed back.10 The most notable, highest-profile challenge to Anslinger came from Fiorello La Guardia, the mayor of New York City who formed the La Guardia Committee to study the effects of marijuana in the United States and examine Anslinger’s claims. In 1944 the committee published the La Guardia Report. Compared to the information pouring out of the Bureau of Narcotics, the information contained in this report was stunning. It declared that marijuana was not addictive, that marijuana use was not motivating major crimes, and that use among children was not common. Ultimately, the report declared that “The publicity concerning the catastrophic effects of marihuana smoking in New York City is unfounded”—a clear rebuke of Anslinger.11

Anslinger was not pleased; the backlash was severe. As Martin Lee profiles in Smoke Signals: A Social History of Marijuana—Medical, Recreational, and Scientific, Anslinger’s response was multifaceted. He called the La Guardia Report a “government-printed invitation to youth and adults—above all teenagers—to go ahead and smoke all the reefers they feel like. ” Anslinger also lobbied the American Medical Association and the American Pharmaceutical Association to publicly criticize the report, effectively neutering its impact.12 This was just one battle among many in the policy discussion around marijuana specifically and drugs more generally.

Some in the medical community sought to deal with marijuana users through treatment programs. In fact, the Porter Act explicitly directed the Surgeon General to create and administer treatment facilities for drug addicts. Others still felt that the most effective drug policy was a revenue-based regulatory system. For Anslinger, that was not enough—criminalization was the only option. Ultimately, criminalization won the day. To achieve this end, Anslinger constantly conveyed to Americans and, more important, to Congress the notion that marijuana use was widespread and growing and that the most effective strategy to deal with it was punishment. He scored victories before Congress in 1951 with the passage of the Boggs Act and in 1956 with the Narcotics Control Act. The Boggs Act set mandatory minimum prison sentences for drug law violators. The Narcotics Control Act increased those penalties. By the late 1950s, drugs, and in particular marijuana, were legal but very difficult to procure legally (through a doctor), and procuring pot illegally resulted in serious punishment. The criminalization of drugs in the United States was in force and Harry Anslinger was in command, continuing to push for stricter laws and peddling scare stories and statistics to advance his cause.