A Drink And A Toke: Can Alcohol And Marijuana Just Get Along?

 September 28, 2015 Hilary Bricken Displayed with permission from Above The Law  Hilary Bricken
September 28, 2015 Hilary Bricken Displayed with permission from Above The Law Hilary Bricken

It has long been speculated that “Big Alcohol” doesn’t get along with the burgeoning marijuana industry in the U.S. The logic is that marijuana is a substitute for alcohol and will eventually seize a good piece of the “happy hour market share” from the beer, wine, and spirits industry. It’s ironic because alcohol and marijuana share a similar social and historical path — alcohol, once criminalized and politically demonized, came back from its failed prohibition via states’ rights and a tax and regulate model and marijuana is doing the same thing.

But the whole idea that marijuana is a substitute for alcohol is potentially flawed. In May 2014, the National Bureau of Economic Research conducted a study in states with medical marijuana that showed alcohol consumption had actually increased:

Emory University-based researchers used data from the National Survey on Drug Use and Health from 2004 to 2011, looking at states that implemented some form of medical marijuana legalization over those years . . . The more surprising finding was that the availability of medical marijuana increased the number of days in which adults over 21 binge drank (defined as having more than four drinks per day) by 6-9%. It did not, however, have any effect on underage drinking.

Neither this one study nor cannabis’s and alcohol’s shared history mean that they will make for good bedfellows, but it is reasonable to believe that the two industries can get along. Could the two possibly find a middle ground with marijuana-infused spirits? Maybe. But it’s pretty unlikely at this point.

Marijuana remains a federally illegal controlled substance, and no alcohol maker, supplier, or brewery regulated by the federal Alcohol and Tobacco Tax and Trade Bureau is going to risk making marijuana-infused alcohol. If they did, they would probably lose their federal licensing and they would be putting their shareholders at risk of incurring accessory liability under the federal Controlled Substances Act.

Assuming bigger alcohol companies and breweries are out, how will risk-loving home brewers that combine cannabis with alcohol be treated in cannabis-legal states? Will such an activity fall under a state’s alcohol or cannabis laws, or both? As I’ve previously written, there still exists among regulators considerable trepidation about marijuana edibles and infused products, so throwing alcohol into the mix likely will cause a state-regulatory firestorm. I am not aware of any state with rules that would allow for licensing and distributing THC-infused beer, wine, or spirits.

I am also skeptical about the public rallying around the mixing of marijuana and alcohol. I can just hear a politician (Carly Fiorina, perhaps?) proclaiming that America now wants stoned and drunk drivers on its streets. Though the legendary reasonable person can judiciously indulge in both at once, there will be at least one poster child to ruin it for everyone else.

So, when it comes to the “King of Bud,” alcohol and marijuana will likely stay in their respective industry corners for now.

Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.