DEA Criminalization of 'Fake Marijuana' Repeats Mistakes of Past Prohibitions

Hours before Washington closed down for Thanksgiving, the Drug Enforcement Administration announced that it would use emergency powers to ban an herbal product known as "K2" for one year while the agency studies whether Congress should make the ban permanent.

Over the past year, K2 has appeared in convenience stores and novelty shops across the country. Although K2 is sold as incense, the combustible herbal mixture is sprayed with synthetic chemicals that are thought to mimic the effects of marijuana when smoked.

People who ordinarily enjoy marijuana are trying K2 because it was not a crime to use it. But scientists familiar with K2 have suggested that marijuana is much safer. It is ironic that a product like K2 was consumed legally even though it is not clear what the effects of using it are, while it is a crime to use marijuana even though the drug has established medical value and has undergone exhaustive study.

Spurred on by reports that K2 use is becoming more widespread, state lawmakers in fifteen states have enacted criminal penalties for possessing or distributing the product. Many other states are weighing similar bans of K2. Now, the DEA is giving credence to public hysteria that has rocketed K2 from being an unknown product to a front-page headline in less than a year.

Choosing to add K2 to the growing list of banned substances is a disappointing indication that the Obama administration is willing to rely on the same failed approach to psychoactive drugs that has fueled the destructive war on drugs.

Rather than take control of K2 production, marketing and sales, the Obama administration is ceding control of the K2 market to the illicit market. Letting criminals decide what goes into K2 isn't exactly a winning public health strategy.

Citizens rely on government to protect public health by monitoring the quality and ingredients of drugs, enforcing labeling requirements and regulating drug distribution and sales. Widespread concern that little is known about the synthetic chemicals contained in K2 products underscores the need for rigorous government research.

The government should be aggressively investigating K2, ensuring the safety of K2 products, and regulating adult sales - much like it does for alcohol and tobacco. Instead, the Obama administration is shrugging off these responsibilities and passing the problem to prosecutors.

Prosecutors and police have waged the war on drugs on behalf of lawmakers for nearly forty years. Enforcing marijuana prohibition, in particular, has wasted billions of dollars in taxpayer money.

We know from marijuana prohibition that law enforcement has no control over the drug market and the criminals who run it. Plus, researchers point out that hundreds of other known synthetic chemicals will easily reach store shelves once K2 is banned.

The sensible policy response to K2 is to create effective regulatory controls on sale and possession. California and Maine have passed legislation that formally regulates and taxes adult sales of salvia divinorium -- another product with psychoactive properties -- and criminalizes salvia sales to minors.

By choosing to ban K2 outright, lawmakers are committing millions of taxpayer dollars to investigate, prosecute and incarcerate K2 users. We simply cannot afford to expand the war on drugs at a time when budgets are in the red and the United States incarcerates more people than any country in the world.

We deserve a new direction for drug policy, and the question on how to respond to K2 is the perfect opportunity to change course.