The trend among justice professionals — lawyers, judges, criminologists, members of police forces — who examine more liberal drug policies is moving increasingly away from only the legalization of "soft" drugs as an ideal solution, for three reasons. First, this position does not counter the negative effects of existing repression. Secondly, the negative image of those who use currently illicit drugs is not changed by this approach. Finally, decriminalizing only soft drugs increases the difficulty of establishing a sane and coherent public health policy that applies to all use of drugs. Such a policy, given the shortage of clear pharmacological distinctions between drugs now legal or illegal, would increase the confusion caused by drug laws. Legalization of all drugs, according to many authors, meets the criteria of recognizing the equal right of all to free choice.

Health professionals, even those who recognize the validity of these arguments, are not sufficiently persuaded to encourage adopting a more liberal policy. Medical professionals recognize that lack of quality or concentration control is the major difficulty in coping with drug related problems. In the same way, during Prohibition times, poor quality and overproof liquor caused alcohol poisoning, and made responsible alcohol use an impossible goal. Nevertheless, the fear predominates that with legalization, public health might deteriorate.

According to the experience of medical practitioners, public health objectives are difficult to meet. The drug user with whom social, medical, or psychological professionals are acquainted is likely to make poor choices. Health education has been ineffective in changing their drug use habits, even those that are destructive to themselves or others. Laws and penal sanctions are at times necessary to discourage irresponsible use of certain legal drugs. This is why driving while intoxicated became a criminal offense, and why smoking is restricted in public places. In addition, health professionals, considering current usage habits of legal drugs, fear the introduction of new legal drugs.

To reconcile both civil rights and public health issues requires that both legal and health policies be reexamined. A legal concern for civil rights requires that the use of criminal sanctions to resolve behavior problems be only a last resort, and that the current repressive laws applied to illicit drug use be changed. A medical concern for public health requires that the use of medication to solve health problems should be only a last resort. As a result, current drug prescription policies and other aspects of a public health system that encourages "the pharmaceutical solution," rather than responsible health habits, should be reexamined with an eye toward better management of the entire drug spectrum.

With this dual focus, I propose paying attention to some particular concerns as we attempt to answer the question: which drug policy will satisfy and integrate both public health and civil rights requirements? The question is addressed, not answered, and I welcome your comments and contributions.

I will open by examining the arguments that rationalize restrictions on two types of consumption of legal drugs: driving while under the influence of alcohol, and smoking in public places. Next, I will address the effects of an expanded drug marketplace given current usage habits. I will then describe selected regulatory models, and close by returning to these arguments, with regard to reconciling requirements of both public health promotion and civil rights protection.

Restriction of Behavior that May Be Harmful to Others

When we debate liberalization of drug policies, the first limitation established is usually that repression of behavior that harms others is justified. This argument gives the state the right to intervene, to regulate the behavior of an individual whose drug use endangers the health or life of another. If this consideration is a true justification of repressive laws, expectant mothers whose consumption of drugs endangers the health or life of a fetus should be penalized. On a larger scale, industrial and other polluters of air and water should be severely restricted. How far are those who promote legal restrictions as a first resort willing to go?

To determine whether legal restrictions are inescapable, even as a last resort, we may examine restrictions on the use of alcohol and tobacco. Their inclusion is pertinent, since an expanded drug marketplace implies new drugs to smoke and, inevitably, new drugs being consumed while driving.

The Drinking and Driving Debate

Alcohol awareness campaigns aimed at eliminating drunk driving demonstrate little effectiveness. To reduce drunk driving by even a small percentage requires the addition of severe criminal sanctions, and the imposition of compulsory programs for drunk drivers. Is this repressive response justified?

The policy that makes driving under the influence of alcohol a criminal offense is, in fact, an extension to legal drugs of the "war on drugs" strategy. When a behavior is judged as a problem, making a criminal of the person who adopts that behavior is seen as a fitting response. The fact that impaired faculties cause slower reflexes, which cause accidents, is sufficient to make an individual a criminal. But those who hold this viewpoint generally ignore the fact that improving vehicle and road conditions would greatly reduce accidents. Furthermore, this logic makes compilers of accident statistics a little automatic in assigning responsibility for accidents to alcohol. In the same way, to justify criminal sanctions against drug use, illicit drugs have been blamed for an entire spectrum of so-called deviant behaviors. The concept of impaired faculties is also ambiguous. A very tired driver, or one who has taken a handful of aspirin or cold tablets, is equally impaired but does not face criminal charges. In other words, this debate focuses too much on criminalizing individuals and on restricting the use of a product, in this case alcohol. In the same way, proponents of the "war on drugs" strategy claim that criminalizing users of substances declared illicit by law will prevent addiction.

There are three other factors that could be more effectively addressed: how to make vehicles safer, how to improve the safety of highways or streets, and how to create programs not aimed at drinking and driving — many who drink responsibly drive safely by adapting their driving strategies to compensate for slower reflexes, just as a tired driver adjusts his or her driving — but aimed at teaching drivers to drive responsibly, to consider their degree of risk to others. Preventive policies should be studied to determine whether such an objective can be achieved, instead of qualifying driving as impaired because of some arbitrarily assigned blood alcohol level.

It would certainly be naive to expect preventive programs, by themselves, suddenly to result in responsible driving. An adult generation is already on the road, teaching their driving practices to their children. Many use this consideration to insist that, even with a change to preventive strategies, with safer roads and vehicles, driving while intoxicated should be a criminal offense. But criminal to what degree, in the face of new definitions of impairment, and in anticipation of an expanded drug marketplace?

Current penalization of individuals who drive with a certain blood level of alcohol is shortsighted, and copies the "war on drugs" model. In fact, criminalization here is not being used as a last resort. Greater economic pressure could be applied before criminalization is considered. This can take the form of insurance premiums scaled according to the individual's driving record, the loss of driving privileges, etc. Positive economic pressure could also be applied: reducing the cost of insurance for persons who demonstrate safe driving practices. The automobile industry may be positively influenced in the same way: rewarding the company that reduces accident consequences by producing safer vehicles. Driving practices, road and vehicle safety should be improved through education and economic sanctions, before penal sanctions are applied. These measures better reconcile public health issues with civil rights concerns.

Let us examine now the public smoking debate.

The Ban on Smoking in Public Areas

The public smoking debate reflects the same concerns as the foregoing example of driving while intoxicated. Is a policy of penalizing smokers for smoking in restricted areas, and of restricting smoking in certain areas, a policy based on concern for public health? Do the effects of second hand smoke, or the possibility that smokers may burn holes in carpets and furniture, or the creation of odors that some find objectionable, or the increased risk of fire justify such restrictions from a health point of view?

Health professionals argue that although tobacco may be ingested as snuff, or by chewing, the popular method of consuming tobacco is by smoking and it would be difficult to change these cultural norms. They also argue, and correctly, that forcing persons to change their methods of tobacco consumption is not a public health policy. But this would satisfy the demands of non-smokers, who are in fact opposed to smoke, not smoking. Even the most aggressive non-smokers are not concerned with the health of tobacco users. Smokers are ostracized because their mode of consumption pollutes the air of others. Many drugs now illicit are consumed by smoking, and the issue of their regulation will be affected by choices made in the public smoking debate. How legitimate are restrictions on smoking? Are tobacco restrictions used as a last resort in health promotion, and does their use respect the rights of tobacco consumers?

Here again, many of the features of the "war on drugs" model are evident. The anti-smoker campaign focuses on the use of a particular product, and on penalizing its users. Relative degrees of pollution caused by smokers, compared with that caused by industrial emissions, for example, are not considered. This is not a repudiation of the problem of second-hand smoke. We need a clean air campaign. But instead of focusing on smokers, this could focus on poor air quality in sealed buildings, aggravated by efforts to economize on energy costs, which result in further reductions in ventilation. This environment, even without smoke, is far more dangerous to health than a well ventilated environment, in which people who smoke would only disturb those nearest to them.

From this wider perspective, smoking probably should be restricted under certain conditions. This should not occur as a war on tobacco users, however, nor justified as a strategy to reduce tobacco use by its restriction. For health reasons, smoking may be restricted in areas that cannot be adequately ventilated, for example in some buses.' For security reasons, smoking may be restricted in areas where inflammatory materials are stored or handled. For economic reasons, owners of buildings, homes or cars may wish to restrict smoking on their property.

Except for areas that cannot be adequately ventilated, no government legislation should restrict smoking for reasons of public health. Public health reasons, instead, should motivate the legislation of building standards that ensure adequate air circulation. Smoking may be restricted for economic reasons: to lower the cost of fire insurance, for example, or to reduce the cost of replacing furniture or carpets with cigarette burns. But restrictions for economic reasons should be clearly identified, and not introduced by government in the name of public health. In privately owned areas such as restaurants, owners must themselves determine the degree of comfort clients enjoy on their property, and the means by which they provide such comfort. The customer is free to choose the restaurant that suits him. The most effective way to pressure any business into providing better ventilation, or a nonsmoking area, is to boycott it.

A clear definition of the reasons for smoking restrictions allows rights to be fully respected — those of smokers as well as those of building owners — and prevents the type of hysteria that prevails among some nonsmokers. Economic concerns, security concerns, and public health considerations should be spelled out in restrictions.

If second-hand smoke is a real concern, a taxation policy that rewards consumption of nicotine by means other than smoking might be introduced.

An Expanded Drug Marketplace

In a drug marketplace regulated to ensure quality control, with a distribution system that satisfies certain public health objectives, we may safely predict the disappearance of some of the drugs in current usage, either because of changed market conditions, or because of their poor quality. Some drugs will be refined, or sold in lower concentrations, to facilitate more responsible use. This prediction is based on the precedent of prohibition's end in the United States during the nineteen-thirties. Legalized alcohol did not include moonshine. Quality products were legalized at proofs that allowed the public a less intoxicating initiation into alcohol use. Legalization greatly reduced prices, and restricted sale of alcohol to stores meeting precisely defined criteria. In the same way, one would hope that the knowledge of traditional users of drugs now illicit would be recognized to establish appropriate usage norms.

Medical professionals see this as wishful thinking by justice professionals, who forget the market trends of drugs currently in legal supply, and overlook the probable appearance of a wide range of synthetic products. New products, manufactured by pharmaceutical corporations, would probably dominate an expanded drug marketplace since pharmaceutical companies can produce at lower costs, have the facilities to test for effects and quality control, and can offer a greater variety in mood altering effects.

Those who foresee this wave are concerned that mood altering drugs will be used in new ways, not only for recreational purposes, but to enhance work capacity or work related activities. The following example is suggested: an employer who requires overtime of his employees furnishes a "pep" pill to facilitate longer performance. This example can hardly be qualified as an exaggeration. Already, pharmaceutically produced infant sedatives and children's tranquilizers are marketed. Will the increased availability of these drugs be followed by an increased demand for adaptation to workplace needs, through chemical alteration of our moods or those of our children? Drug use to enable adaptation to workplace requirements is hardly a novel idea. Drinking a dozen cups of coffee per day, consuming fast food vending machine products — high in sugar and low in nutritive value — because there is no time to eat properly, medicating oneself for stomach irritations caused by coffee, fast food, stress, or medication taken for stress, are all examples of chemical adaptation to the needs of the workplace. Fear of a new drug use problem is unnecessary; fear that current legitimate drug habits will continue is sufficient. New drugs may even be an improvement if less toxic drugs, produced to achieve the same effect, replace more dangerous substances.

Taking the concerns of health care professionals into account will be positive, if this prevents our assuming that the current regulatory models would be satisfactory with a more liberal drug policy. Health concerns are justified. At present, women and elderly persons are overmedicated per capita. The working population and their children use drugs to cope with or to facilitate employment requirements. Users are not warned about the impact of drugs they use, with serious repercussions in the case of long term usage of prescription drugs. Limiting the examination of a new drug marketplace to drugs that may be used recreationally, demonstrates a concern for morality, not for public health. Often, those who condemn recreational use of illicit drugs avoid examining their own use of and attitudes toward legal drugs. Health professionals are correct in fearing the introduction of new drugs, especially synthetics, if they are used the same way that drugs are currently consumed, whether prescribed or illicit.

This argument does not, however, refute a more liberal policy in the interests of public health. It does signify that a more liberal drug policy, to address the concerns of public health, must also be applied to current drug prescription practices. It is clear that whether or not new drugs proliferate in a drug marketplace will depend, among other things, on the degree of commercialization that is permitted, and on the role drugs play in changing living habits. This is the question addressed in the next part of my exposé.

In the following section, I will analyze some regulatory models for a more liberal drug policy to determine whether these do, in fact, integrate civil rights and public health concerns.

Some Regulatory Models

The liberalization of drug policy immediately suggests consideration of drug marketing policies: what can be drawn from current models of legal drug regulation?

Pharmaceutical marketing practices for prescription drugs have certainly not prevented irresponsible distribution. Products whose effects were little known have been marketed, and inappropriate advertising is supplie& to doctors. Many persons have become addicted to, or suffered toxic effects from, prescribed drugs. Third world countries, where labelling and dosage regulations are undeveloped, have suffered most from pharmaceutical marketing practices. Pharmaceutical corporations promote the model of the "miracle cure" to treat all ailments, rather than a model of responsible living to cope with life's shortcomings, or a model of responsible self-medication that can be applied to all drug use, including alcohol, tobacco, or coffee. Patients are conditioned to see a doctor who does not prescribe medication as not taking their ailments seriously, and consult other doctors until they find one who will provide the "right" pill. Furthermore, pharmaceutical salespersons generally work on a commission basis. What interest have they in reducing drug use to adequate levels, or in distributing contradicatory information to a prescriber?

For this scenario to change, a new drug marketplace must not operate on classical commercial principles, that is, principles of creating markets and increasing consumer demand to generate continued profits. Marketing regulations for prescription drugs have demonstrated their ineffectiveness in promoting informed use, in preventing addiction, or in meeting public health concerns. In the current health system, the consumer is inadequately informed about the drug he or she consumes, and about drugs in general. Consider briefly the general ignorance concerning side effects of aspirin or weight loss medications. Consumers are not taught to monitor their bodies' responses to drugs, to regulate their intake, or to ask questions about the products promoted by their health care system.

Does the regulation of alcohol present a more effective model? It at least offers the advantage of generating a tax income, which could be applied toward helping persons with alcohol problems. But active advertising to increase alcohol consumption, cultural consumption norms, and indirect advertising (such as sponsorship of sports) all convey a message that associates alcohol use with male virility, maturity, and positive social status. Initiation into alcohol use has become an obligatory part of the "rites of passage" from youth to adulthood. This ritual aspect applied at one time to smoking, but it has been demonstrated that decreased adult smoking is followed by reduced teenaged smoking.

In summary, two elements of current licit drug use regulation suggest conflict with the public health promotion model. First, there is a lack of consumer information or control over products prescribed for him, both of which he needs to use any product responsibly; second, products the consumer is by law permitted to use are aggressively marketed. Let us consider some new regulatory models, restricting commercialization to "passive marketing," and allowing the consumer to manage his or her own drug consumption.

"Passive marketing" of drugs is a term coined by Caballero to describe regulations restricting advertisement that encourages production, sale or consumption of drugs. This implies the suppression of both direct and indirect advertisement, brand naming of drugs, and product competition; the introduction of taxation, and not as a source of government income; the establishment of a regulatory body to control prices, quality, distribution, etc. Some authors, such as Mitchell, consider the suppression of advertising a poor weapon unless consumer awareness is increased. Mitchell explains that advertising orients persons toward the use of a particular brand of product, not toward use of the product in general. If public information does not teach self management of drug use, commercialization will reinforce existing habits. This prompts Mitchell to challenge the prescription regulatory system, and to examine instead a model that permits individual autonomy in drug choice, where all drugs are accessible, but in which their usage is discouraged by taxation or rationing. In this model, taxation and rationing applies to all drugs, from aspirin, coffee, and alcohol, to cocaine and new synthetic products. The person whose drug consumption is lower would be allowed to benefit financially, by cashing in his ration cards. This would act as an incentive for the public to become better informed concerning their specific drug needs.

Without further elaboration of current or projected drug regulatory models, or analysis of their strengths and weaknesses, the foregoing observations allow us to return to the purpose of this presentation: to address the difficulty of integrating civil rights protection with the promotion of public health.

Health Promotion and Protection of Civil Rights of Drug Users

The first element that arises, when we think about health concerns and concern for civil rights, is that a look at drug legalization involves not only consideration of current penalties for use of illicit drugs, but also commercial marketing practices of licit drugs. For too long, discussion of illicit drug use and the search for a more liberal model has been limited to a recreational aspect, and to comparison with alcohol. To satisfy a health promotion perspective, different strategies must be devised. A model of drug liberalization that addresses both public health and civil rights issues would be resisted by those profiting from the sale of both legal and illicit drugs.

The second element that appears is that a policy of "passive marketing," whether through a system of taxation, purchase limits, price controls, sales restrictions, rationing, could reduce drug supplies and favor reduced drug demands. A real reduction in demand, however, would require that a genuine health promotion campaign accompany "passive marketing" practices — a campaign of prevention and adequate information that permits consumers greater autonomy with regard to the entire drug spectrum.

In any case, since inequalities will probably persist, problems of loneliness, stress, and anxiety will not be resolved by currently developing living trends. Drug use therefore will not suddenly disappear. On the contrary, it is possible that as living conditions further deteriorate, more and more drugs will be used to permit coping with reality, in quantities depending on users' faith in the ability of a drug to facilitate such adaptation. This could have a positive or a negative impact, bringing harmony in some cases and creating imbalances in others. Variations in drug consumption as a function of social class and living circumstances are already evident from recent health investigations.

This consideration suggests a third and, for this presentation, final question: May a state legislate the health of its citizens, including its unborn citizens, by forcing the public to assume the cost of medical care through taxation or more direct means? Some say yes: drug users should regulate their usage and pay taxes if their usage incurs social costs, medical costs, costs of treating children whose fetal or infant health has been neglected. Others say no: environmental pollution, chemical food additives, and deteriorating standards of living are in fact responsible for the poor state of general health, for lowered immunity, and for increased drug use. The state and the industries responsible for pollution should assume health care costs.

I will leave you with an example that illustrates how complicated this question can become, and which I hope will promote your feedback.

A patient arrives in hospital suffering from obesity, ulcers, and lung damage. The patient has a high stress occupation, a poorly balanced diet, and a considerable coffee, cigarette, and soft drink habit. Who gets billed for his care? Should tobacco taxes be used for the care of his lungs, and coffee and soft drink taxes for the treatment of his ulcer? Why should these drugs be held responsible for the person's lifestyle, and why should all drug users be taxed because of this patient's overindulgence? In a state that assumes the cost of health care, can we force this patient to have his problems treated, to change his living habits, to adjust his diet, to quit smoking because of his cost to society? By what criteria is his health judged? Should preventive programs be compulsory, and should doctors have more authority over our lives? Conversely, should the matter of the State's assuming health costs be challenged: would being financially accountable for one's own health costs force citizens to manage their physical health? How should we deal with a pregnant woman who smokes heavily? Does she pay for costs incurred when her child develops asthma? Does she pay extra for a Caesarian delivery, which is more commonly indicated for women who smoke? Should she be considered a criminal? Or should a public health policy be limited to providing citizens with adequate information on the effects of drugs, and to promoting sane living habits?

In truth, there is much to debate here. The integration of public health issues with respect for rights and freedoms of drug users, in the context of a liberalized policy, is complicated. One must not only analyze the modifying of current drug policies; one must also analyze current drug marketing policies.

Discussions between justice and health professionals, in their effort to avoid confusion of drug effects with motives for drug consumption, and with effects of current repressive laws, have opened a Pandora's box. The need for a strategy to replace the current "war on drugs" is evident. How to be at peace with the entire range of drugs is a far more complex issue, requiring much more serious investigation and a far greater degree of innovation. Furthermore, in terms of strategies, it is clear that political and media concerns are better satisfied by a spectacular war on drugs, or by treatment programs whose effects are visible if shortlived, than by peaceful intervention through the promotion of health.

If we as a group can devise a program for liberalization that demonstrates economic as well as health benefits, the probability that our concerns will receive attention is greatly increased. The interest and participation of all present at this conference permits me to believe that we are standing on the threshold of developing such an active and positive strategy.

Line Beauchesne, Ph.D., is an associate professor in the Criminology Department at the University of Ottawa, Canada and Vice-president of MAP (Mouvement pour des alternatives et la politique antidrogues).

References

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Alexander, Bruce K. (1990) Peaceful Measures: Canada's Alternatives to the War on Drugs. Toronto: University of Toronto Press. In press.

Beauchesne, Line (1986) L'abus des drogues - Les programmes de prévention chez les jeunes. Québec: Presses de l'Université du Quebec.

Blackwell, Judith C., and Patricia G. Erickson (Eds) (1988) Illicit Drugs in Canada, a Risky Business. Canada: Nelson.

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Footnotes
1 Translated from French text by M. Crow.
2 Double decker buses in England provide sufficient ventilation