Why Some Drugs Are Legal And Others Are Not

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Article Overview:

In understanding why some drugs are legal and others are not, it’s important to consider the full spectrum that drugs cover in human life: political, economic, legal, scientific, biological, psychological, and everything in between. Figuring out who is responsible for setting what drugs apart, and how those decisions are influenced and changed, answers questions about the role and effects of chemical substances, both good and bad, in society today.

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Who Criminalizes Drugs?

One of the reasons why certain drugs are legal and others aren’t is that the FDA meticulously sorts the hundreds of different types of drugs by their chemical composition, the effects they have, and what their primary and secondary purposes are. This applies equally to the cold medication a person can pick up off a shelf, to prescription medication that requires a doctor’s signature, and even to drugs that are illegal to own. This organization allows the FDA to ensure that drugs are adequately regulated, so that, for example, a drug maker cannot sell its products as a treatment for a different condition that what the FDA has said it can do (so-called “unapproved” or “off-label” marketing), and so law enforcement agencies are properly empowered to go after the manufacturers and sellers of illegal drugs.[2], [3]

In terms of chemical composition, the benzodiazepine class of drugs can be looked at as an example. Scientists understand that what makes a benzodiazepine a benzodiazepine is that, at a molecular level, it is a benzene ring fused to a seven-member diazepine ring.[4] Once this standard is established, other drugs that match that description, like diazepam, flurazepam, and alprazolam can be put into the benzodiazepine category.

In the United States, the responsibility of legalizing or criminalizing drugs lies with the Food and Drug Administration (FDA).[1] As part of its considerations, the FDA evaluates two criteria:

  • Whether the drug diagnoses, alleviates, cures, prevents, or treats a disease
  • Whether the drug affects how a person’s body functions

Regulating Cough Medicine

Benzodiazepines are prescription drugs, but even simple over-the-counter medication is subject to the same process. OTC drugs are low enough in dosage that doctors and the FDA can trust that consumers will not abuse the products, but there is still the risk. Some OTC drugs can be taken excessively (The Fix writes of how some addicts drink NyQuil for the alcohol content), and some OTC drugs can interact negatively with other medicines, even worsening pre-existing medical conditions.[5], [6]

For that reason, every form of medication – from the drugs a doctor prescribes to treat cancer pain, to the drugs that soothe an upset stomach or a sore throat – is regulated by the FDA.

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Cough medications with less than 200 milligrams of codeine could be placed in Schedule V

Benzodiazepines, other prescription drugs, and OTC drugs are all legal (if tightly controlled). The FDA is also the decision maker on illegal drugs, those with prohibitively high likelihoods for abuse, and those that have no acceptable medical use. In the same way that scientists determine the nature of legal drugs to identify their uses and dangers, scientists determine what types of substances fall into the category of “too dangerous to legalize.” They make their recommendations to the FDA, which presents its case to the Department of Health and Human Services, which, in turn, directs the Department of Justice – specifically, the Drug Enforcement Administration – to schedule a drug on a scale of I to V.[7]

Drugs in Schedule I are out-and-out illegal, with no allowable provisions whatsoever for their manufacturing, distribution, or possession, such as heroin, ecstasy, and LSD.[8] Drugs in Schedule V have genuine medical applications, with a potential for abuse that the DEA feels is acceptably low; however, their chemical nature still requires regulation. Certain cough medications, for example, have codeine in them; codeine, as a narcotic, is a Schedule II drug, but cough medications with less than 200 milligrams of codeine could be placed in Schedule V.[9]

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The Marijuana Debate

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On most points of drug policy, the DEA and the FDA see eye to eye. But when it comes to a drug like marijuana – federally illegal, decriminalized in some states, legalized in others, and only available with a prescription in yet others – the murky territory between legal and illegal drugs becomes equal parts clear and confusing.

Recreational marijuana use, explains the Washington Post, is legal in four states (Washington, Oregon, Colorado, and Alaska) and the District of Columbia; in 21 states, marijuana is legalized in some form.[10] At the federal level, however, cannabis is a Schedule I controlled substance, on par with heroin.[11]

Marijuana being illegal at such a high level has been a source of consternation for scientific and policy groups for some time. In 2015, the Brookings Institution issued a report that criticized the restrictions a Schedule I classification placed on the medical research that could be done with cannabis.[12] With marijuana receiving the highest possible level of regulation, it is virtually off limits to scientists who might be interested in its applications in the public health sphere. For example, the American Academy of Pediatrics has petitioned the US government to reorganize marijuana as a Schedule II drug, which would still control its production and distribution, but allow for greater research for medical purposes.[13]

As recently as August 2016, the National Conference of State Legislatures similarly asked the federal government to downgrade marijuana’s scheduling. Making marijuana out to be among the most illegal drugs in the country imposed “substantial” burdens and barriers to businesses, banks, and credit unions that are part of the legal marijuana industry.

Grounded in Science

The calls to reconsider marijuana’s illegal status on the federal level are significantly loud, but in fall 2016, the government controversially refused to alter its position. Acting DEA Administrator Chuck Rosenberg defended the drug approval process of the FDA, saying that it has “worked effectively in this country for more than 50 years,” and praising the process for being “grounded in science.”

Being “grounded in science” is at the heart of this debate. It goes a long way in explaining what’s behind some drugs being legal, some drugs being legal with caveats, and some drugs being simply illegal. For example: Rosenberg pointed out that the FDA has made it clear that there are no accepted medical uses for marijuana in America, which is the smoking gun for the reason that it is federally illegal. The FDA does not usually approve of plant-based substances as drugs; most of the substances the FDA greenlights are individual chemical compounds.

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The Washington Post provides an illustration: Penicillin is a drug approved by the FDA. The penicillium mold, on the other hand, is not. If that is the standard by which the FDA operates, then its refusal to reconsider the illegality of cannabis is logical.

It is a point that Rosenberg concedes. In his letter to two state governors who had petitioned for marijuana’s reclassification, Rosenberg admits that “the scientific understanding about marijuana [could change],” which would prompt the government to re-examine its position. Until then, the DEA “will remain tethered to science.”

The science surrounding the regulation of marijuana has long been a subject for criticism. Two years after the former DEA administrator testified before Congress in 2012 that marijuana’s health effects were no different to those caused by other illegal drugs, The New York Times excoriated her comments for “neatly [illustrating] the vast gap between antiquated federal law enforcement policies and the clear consensus of science,” which is that “marijuana is far less harmful to human health than most other banned drugs” – including some that it shares a Schedule I classification with. Marijuana, argues the Times, does not cause fatal overdoses; it likely does not cause cancer; and while there is the risk of addiction, that risk is low; and its status as a “gateway drug” is exaggerated.[14]

While a number of studies have suggested that marijuana is “safer than alcohol or tobacco,” Chuck Rosenberg at the DEA says that marijuana’s schedule status isn’t about the health risks (or lack thereof) presented by cannabis.[15] Breaking with his predecessor, Rosenberg agreed that marijuana is “less dangerous than some substances in other schedules,” but the Schedule I designation isn’t only about how dangerous a drug is. Schedule I drugs, he says, are more about the medical designations that the DEA uses to decide how to regulate a drug.

Even that explanation, however, brings up the increasing range of research that shows marijuana, in its plant form, has demonstrated effectiveness in treating chronic pain.[16] Because of the growing calls to rethink marijuana’s legal status, a number of states have decided to go their own way in drafting policies for medicinal uses of marijuana, and some of those policies are contrary to the federal government’s policies.

The Bureaucratic Catch-22

Individual states might feel emboldened to strike out on their own, because according to CBS News, as many as 76 percent of doctors approve of using medical marijuana.[17] Even researchers who created a study for the New England Journal of Medicine were surprised at the level of support that doctors expressed for giving marijuana to patients if it would help them obtain relief from serious problems.[18] State governments are very reluctant to get between doctors and their patients, and have therefore authorized legal frameworks for doctors to treat their patients as they best see fit.

One would assume that this would be enough for the government to agree that marijuana does not need to be federally illegal anymore, but then comes what the Washington Post calls “a classic bureaucratic Catch-22.” The DEA is unable to change the legal status of marijuana until such time that the FDA determines that marijuana can be used medicinally; the FDA cannot determine that marijuana can be used medicinally because of the tight restrictions around marijuana – restrictions that are in place via DEA scheduling, which the DEA cannot change until it gets the okay from the FDA.

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According to CBS News, as many as 76 percent of doctors approve of using medical marijuana

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The only resolution to this gridlock is the US Congress, which can amend the Controlled Substances Act in order to make an exception for marijuana (and would then require a presidential signature). This appears to be the theoretical way forward, but there is no agreement on how exactly to do it. Instead, an alternative might be to grant a special provision for marijuana as a Schedule I drug, opening up access to researchers who want to study how cannabis can be used in the treatment of, for example, post-traumatic stress disorder, while still maintaining that marijuana would technically be illegal.

The federal debate about legalizing marijuana takes place against the backdrop of a number of states, such as California, Massachusetts, Arizona, and Nevada, going to the polls on whether to allow residents to buy and use marijuana recreationally. Assuming the measures pass, the cracks between respective federal and state policies on cannabis will grow even wider; and doctors, patients, researchers, and corporations will likely be caught in the crossfire.

Economic Terms

In answering the question as to why some drugs are legal, while others remain off limits, economics is a big factor. When marijuana is the drug in question, the legislatures of Colorado and Washington kept money in mind when deciding to legalize its recreational production, sale, and consumption. It also explained why the Department of Justice chose not to prevent the respective state governments from approving voter-driven measures to roll back laws that criminalized casual cannabis consumption. The New York Times quoted the deputy attorney general as saying that “economic terms” were behind the Justice Department’s laissez-faire approach.[19]

How much money Colorado and Washington stood to make from letting themselves regulate marijuana made a big difference in determining what drugs to allow and what drugs to clamp down on. In Colorado, for example, estimates were as high as $67 million in taxes, so much so that Entrepreneur wrote that the figure far exceeded the state’s initial budget.[20] Similarly, Washington is facing budget deficits of nearly $3 billion, so the expected windfall of $700 million that would come from regulating recreational marijuana was a key factor in deciding that cannabis would enjoy the same legal protection as alcohol.[21], [22]

Evolving Cultures

In Washington, the movement to allow casual pot consumption was spurred in large part by the densely liberal populations in and around the Seattle area, whose large growth pulls the rest of the state – traditionally conservative in nature – toward the political left.[23] This could be seen as a reflection of an evolution of national cultural attitudes toward drug use, and how this is another answer to the question of the reasons behind different drugs having different legalities. For example, Gallup has twice asked Americans if they felt that using marijuana should be made legal. The first time was in 1969, and just 12 percent of survey respondents said “yes”; the second time was in 2013, when 58 percent of respondents said “yes.”[24] In 2016, one in eight Americans admitted to smoking marijuana, a number that comes out to 13 percent of the American population, which is almost double the figure from when Gallup first asked that particular question in 2007.[25]

The Washington Post puts the number in a different context: 13 percent of the US population is 33 million people, all active marijuana users. If they all lived in one state, that hypothetical state’s population would be bigger than Texas’s population and only behind California’s population.[26]

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In a 2014 CNN/ORC International poll, 64% of respondents between 18 and 34 supported marijuana legalization

Given the weight of the numbers, the pendulum of legality has shifted ever more in marijuana’s favor, and politicians and legislatures are moving to keep up with a younger generation of voters who are more likely to favor cannabis regulation.[27] The Huffington Post predicted that a “huge segment” of the 2016 voters in America will be millennials, citing a 2014 CNN/ORC International poll whereby 64 percent of respondents between 18 and 34 supported marijuana legalization; perhaps unsurprisingly, only 31 percent of respondents aged 65 and up favored marijuana.[28]

The Gathering Momentum

This year might well be the tipping point in larger American culture about the legality of marijuana. Newsweek suggested that decriminalizing (or even outright legalizing marijuana) could be a theme for the national and state elections, primarily because younger voters might demand that their candidates (and opponents) address the issue.[29] Obviously, partisan politics plays a big role in this determination. Gallup found that 73 percent of people who vote Democrat tend to support more liberal marijuana laws, while only 35 percent of typical Republican voters felt the same way.[30] American Prospect predicted that the question of making marijuana legal would be the “gay marriage of the 2016 presidential election,” partly because nearly every politician who threw their hat into the ring made a statement about their positions regarding cannabis decriminalization and/or regulation.[31]

Hillary Clinton, for example, opposed marijuana’s legalization in the buildup to her 2008 presidential run, but adopted a different, “evolved” position when she ran again in 2016, suggesting that the successful efforts in Colorado and Washington could serve as a preview for national legalization.[32]

To that point, “No one,” says the New York Post, “can deny the gathering momentum behind the [marijuana] legalization movement,” and much of that movement is driven by young people (who “overwhelmingly support marijuana legalization”) and even older voters, for whom keeping pot illegal is not a political priority.[33]

Battling in the Media

On the other hand, the Christian Science Monitor called on the federal government to intervene before more states switched sides on marijuana, citing the “negative spillovers” of Colorado’s legalization, such as criminal organizations conducting their own illegal pot-growing operations in the shadow of the now-legal marijuana industry, and the state leading the rest of the country in monthly marijuana use among minors. Cannabis use among teenagers has declined across the country, the Monitor writes, but it may be on the rise in Colorado.

For these reasons, concludes the Monitor, “some sort of national action is needed,” before Colorado’s “experiment” will harm other states or its own youth.[36]

The battle to legalize marijuana plays out in the media. The Huffington Post, known for its liberal approach to news and current events, listed some of its reasons for cannabis to be regulated:

  • Cannabis is comparably safer than many substances that are legalized and regulated, such as alcohol and tobacco.
  • Marijuana is not as addictive as most illegal drugs and even some legal drugs.
  • The National Cancer Institute has spoken in favor of medicinal marijuana.[34]
  • The evidence to suggest that marijuana is a “gateway drug” to more dangerous substances is circumstantial.[35]

Big Pharma vs. Marijuana Reform

Traditionally conservative sections of the media are not the only organizations calling for marijuana to be kept off the legal table. In Florida, for example, where the pharmaceutical industry has considerable economic and political clout, an effort in 2014 to propose regulating cannabis was narrowly defeated, as opponents spent over $6 million to campaign against it. According to US News, a good deal of that money came from pharmaceutical corporations, who resisted – very strongly – the threat of the marijuana industry moving in on their local monopoly of the painkiller market.[37] Fewer doctors prescribe painkillers in states where medicinal marijuana can be used as an alternative; and fewer painkiller prescriptions means less revenue for the pharmaceutical companies.[38]

History repeated itself in 2016, when the Florida Medical Association opposed a second attempt to legalize medical marijuana. The CEO of the group released a statement that spoke to “the lack of scientific evidence” that cannabis has legitimate medical applications. The Miami New Times noted that the statement did not mention that the conference at which the Florida Medical Association made its decision was sponsored by PhRMA, “one of the pharmaceutical industry’s largest trade organizations,” which has spent millions of dollars – $18 million in 2013 – to shut down marijuana reform proposals across the country.

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PhRMA, has spent millions of dollars – $18 million in 2013 – to shut down marijuana reform proposals across the country

Another example in 2014 was the annual convention of the Community Anti-Drug Coalition of America (CADCA) in Washington, DC – sponsored by Purdue Pharma, the pharmaceutical giant that makes OxyContin, the painkiller that has been implicated in thousands of overdose deaths across the country.[39] One of the speakers at the convention was Senator Patrick Kennedy, who warned against the “inconsistency” of “trying to improve mental health and reduce substance abuse disorders” by “[legalizing] a third drug.”

The Nation notes that Kennedy, a member of the famous Kennedy family of American politics “did several stints in rehab,” while, as a US congressman, he had been abusing prescription medication, including OxyContin – the signature drug manufactured by the company that was sponsoring the anti-drug (and anti-marijuana reform) convention.[40], [41]

The Real Reason

This, says The Nation, is “the real reason pot is still illegal,” and it might be just the tip of the iceberg. CADCA, and other groups opposing the legalization of marijuana, are largely funded by pharmaceutical manufacturers, which had led to CADCA taking a much softer approach on the topic of prescription medication abuse – which the Centers for Disease Control and Prevention call an “epidemic” – and abstaining from calling for guidelines in how easily the addictive and potent medications are prescribed. This is even while numerous state governments try to solve the problem about how to control the abuse of legal drugs. When drug prevention groups petitioned the Food and Drug Administration to reconsider approval of powerful and potentially dangerous medication (like Zohydro, manufactured by Alkermes, a major supporter of CADCO, and a drug that Forbes magazine called “super potent” and “too dangerous”), CADCA and the Partnership for Drug-Free Kids, one of its main partner organizations, did not join in.[42], [43]

On the other hand, CADCA and partner organizations have strongly and actively campaigned against marijuana reform, going so far as to opposing even the most limited of legalization measures. Many of CADCA’s sponsors and supporters may have a vested interest in their stances.

The Nation reports that many of the representatives at the convention “have a financial state in the status quo,” coming from law enforcement agencies, pharmaceutical businesses, and nonprofit organizations that receive their funding by way of federal drug prevention grants. Even the Partnership for Drug-Free Kids, one of the sponsors of CADCA, is largely supported by Purdue Pharma and Abbott Laboratories, which manufactures Vicodin.

‘It’s Money’

While money is a big factor in why some drugs are legal and others are not, it is the direction of the money that tells its own story. State governments are reaping in tens of millions from legal pot taxes, but according to data from the Justice Department, law enforcement agencies took in almost $1 billion in arrests related to marijuana between 2002 and 2012. The Nation writes that federal grant programs gave some police departments over $2.4 billion to fund operations against marijuana distribution.

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Federal grant programs gave some police departments over $2.4 billion to fund operations against marijuana distribution

A retired Los Angeles Police Department Deputy Chief put the reason behind many police organizations lobbying against marijuana reform quite simply: “It’s money.” In the state of Washington, a local drug task force worries that it may lose the funding it gets in assets that it would normally seize from marijuana sellers. In 2012, such assets accounted for $200,000, or 15 percent of its funding (in previous years, that amount has been over $1 million); but with Washington’s voters choosing to legalize pot, the task force has had to cut its funding by 15 percent, and expects to lose millions in revenue that it would otherwise claim from pot growers and dealers.[44]

The quote from the retired LAPD Deputy Chief puts the whole question of why some drugs are legal and others are not into stark contrast: It’s money, and a drug like marijuana (which enjoys greater public acceptance than most other substances) exemplifies this. State governments are already budgeting how they can use the tens of millions of dollars from pot taxes; law enforcement agencies in those same states fear that a huge chunk of their revenue could vanish if pot becomes legal. Big pharmaceutical corporations are ready, willing, and able to throw exorbitant sums of money against marijuana reform campaigns, ensuring their own dominance in the medicinal market. What’s really behind the legality of some drugs over others often boils down to how much money can be made from them.

[1]Regulatory Information.” (June 2012). U.S. Food and Drug Administration. Accessed October 8, 2016.

[2] “The FDA Just Lost a Lawsuit That Could Change How Drugs Are Regulated.” (August 2015). Gizmodo. Accessed October 8, 2016.

[3]What Makes a Drug a Drug?” (October 2013). InteliHealth. Accessed October 8, 2016.

[4]Barbiturate Drugs.” (2003). Elmhurst College. Accessed October 8, 2016.

[5]Over-the-Counter Medicines.” (n.d.) Medline Plus. Accessed October 8, 2016.

[6] “NyQuil Was My Gateway Drug.” (April 2013). The Fix. Accessed October 8, 2016.

[7]Scheduling of Drugs Under the Controlled Substances Act.” (March 1999). United States Drug Enforcement Administration. Accessed October 8, 2016.

[8]List of Schedule I Drugs.” (n.d.) Drugs.com. Accessed October 8, 2016.

[9] “Drug Classifications, Schedule I, II, III, IV, V.” (August 2016). MedShadow. Accessed October 8, 2016.

[10] “State Marijuana Laws Map.” (May 2016). Governing. Accessed October 8, 2016.

[11] “Why The DEA Just Said ‘No’ To Loosening Marijuana Restrictions.” (August 2016). Washington Post. Accessed October 8, 2016.

[12] “Ending The U.S. Government’s War On Medical Marijuana Research.” (October 2015). Brookings Institution. Accessed October 8, 2016.

[13] ” American Academy of Pediatrics Reaffirms Opposition to Legalizing Marijuana for Recreational or Medical Use.” (January 2015). American Academy of Pediatrics. Accessed October 8, 2016.

[14] “What Science Says About Marijuana.” (July 2014). The New York Times. Accessed October 8, 2016.

[15] “Marijuana May Be Even Safer Than Previously Thought, Researchers Say.” (February 2015). Washington Post. Accessed October 8, 2016.

[16] “Marijuana May Have Limited Medical Value. That’s Okay.” (June 2015). Vox. Accessed October 8, 2016.

[17] “Survey: 76 Percent Of Doctors Approve Of Medical Marijuana Use.” (May 2013). CBS News. Accessed October 8, 2016.

[18] “Medicinal Use of Marijuana — Polling Results.” (May 2013). New England Journal of Medicine. Accessed October 8, 2016.

[19]U.S. Won’t Sue to Reverse States’ Legalization of Marijuana.” (August 2013). The New York Times. Accessed October 10, 2016.

[20]Colorado Begins Legal Marijuana Sales, Collecting Marijuana Tax.” (January 2014). Tax Foundation. Accessed October 10, 2016.

[21]Legal Pot in Washington Bringing in Even More Tax.” (November 2014). The Huffington Post. Accessed October 10, 2016.

[22]Marijuana To Boost Washington State Tax Revenue by $25M in the Next Year.” (September 2014). CBS Seattle. Accessed October 10, 2016.

[23] “Washington’s Liberal-Voting Counties Are The Ones Growing The Fastest.” (July 2016). Seattle Times. Accessed October 10, 2016.

[24] “In U.S., 58% Back Legal Marijuana Use.” (October 2015). Gallup. Accessed October 10, 2016.

[25] “One in Eight U.S. Adults Say They Smoke Marijuana.” (August 2016). Gallup. Accessed October 10, 2016.

[26] “Gallup: More Than 33 Million American Adults Currently Use Marijuana.” (August 2015). Washington Post. Accessed October 10, 2016.

[27] “One Surefire Way For Hillary Clinton To Shore Up Support Among Young Voters.” (September 2016). Washington Post. Accessed October 10, 2016.

[28]How Marijuana May Influence the 2016 Election.” (January 2014). Huffington Post. Accessed October 10, 2016.

[29]2016 Will be the Marijuana Election.” (March 2015). Newsweek. Accessed October 10, 2016.

[30]Republican Views on Marijuana.” (November 2014). Republicanviews.org. Accessed October 10, 2016.

[31]Marijuana Legislation Will Be the Gay Marriage of the 2016 Presidential Election.” (January 2014). The American Prospect. Accessed October 10, 2016.

[32]Hillary Clinton Evolves on Another Issue.” (June 2014). National Journal. Accessed October 10, 2016.

[33] “American Voters Are Waiting To See How Colorado’s Pot Experiment Turns Out.” (March 2016). New York Post. Accessed October 10, 2016.

[34] “Cannabis and Cannabinoids (PDQ®)–Patient Version.” (May 2016). National Cancer Institute. Accessed October 10, 2016.

[35] “This Is Why Marijuana Should Be Legal Everywhere.” (October 2013). Huffington Post. Accessed October 10, 2016.

[36] “Why US Can’t Ignore Colorado’s Pot “Experiment”.” (January 2016). Christian Science Monitor. Accessed October 10, 2016.

[37]Who’s Really Fighting Legal Weed?” (December 2014). US News & World Report. Accessed October 10, 2016.

[38] “One Striking Chart Shows Why Pharma Companies Are Fighting Legal Marijuana.” (July 2016). Washington Post. Accessed October 10, 2016.

[39] “The Oxy Epidemic Shows What Happens When Addictive Drugs Are Easily Available.” (January 2016). Mother Jones. Accessed October 10, 2016.

[40]Rep. Kennedy Was Hooked on Oxy-Contin.” (March 2007). USA Today. Accessed October 10, 2016.

[41]The Real Reason Pot Is Still Illegal.” (July 2014). The Nation. Accessed October 10, 2016.

[42] “Understanding the Epidemic.” (June 2016). Centers for Disease Control and Prevention. Accessed October 10, 2016.

[43] “Is The Super Potent New Opiate Painkiller Zohydro Just Too Dangerous?” (February 2014). Forbes. Accessed October 10, 2016.

[44] “Pot Legalization Crimps Funding of Drug Task Forces.” (January 2014). The Wall Street Journal. Accessed October 10, 2016.