The ‘Black Market’ Problem In Cannabis (Op-Ed)

“We shouldn’t equate black with illegal and we shouldn’t use the term ‘black market’ as a synonym for illegal market.”

By Cat Packer, Cannabis Regulators of Color Coalition

As someone who identifies as Black and as an advocate for the end of marijuana criminalization and its harms, I’m constantly reminded of the relationship between racism, marijuana prohibition and policing. As such, when I hear the term “black market” used to describe illegal marijuana markets, I take issue with the normalization of black being used as a synonym for illegal.

I first began to understand the relationship between racism and marijuana laws while in law school at The Ohio State University after enrolling in a course on cannabis, law and policy where I explored the origins of prohibition and its enforcement.

I learned the chief architect of marijuana prohibition, Harry Anslinger, regularly made racist comments, once stating, “Reefer makes darkies think they’re as good as white men. The primary reason to outlaw marijuana is its effect on the degenerate races.”

I learned President Richard Nixon’s “War on Drugs” wasn’t really about drugs at all, but was an intentional effort to criminalize Black people and disrupt their communities.

I read reports from the American Civil Liberties Union and the Drug Policy Alliance making clear disparities experienced by Black and Latino populations due to marijuana enforcement were not isolated, but widespread and happening all across the United States. I learned despite roughly equal usage rates, Blacks are 3.73 times more likely than whites to be arrested for marijuana. Moreover, people of color experience discrimination at every stage of the criminal legal system and are more likely to be stopped, searched, arrested, convicted, harshly sentenced and saddled with a lifelong criminal record.

And I read Michelle Alexander’s The New Jim Crow, where she articulated, “Nothing has contributed more to the systematic mass incarceration of people of color in the United States than the War on Drugs.”

These revelations were a part of what motivated me to pursue policy reforms acknowledging and addressing racism after graduating. However, it wasn’t until I was actually engaged in advocacy, I came to see the term “black market” as problematic.

In 2017, after successfully coordinating a state-wide campaign to pass cannabis legalization in California, I was working in Los Angeles as a policy coordinator for the Drug Policy Alliance and was eager to learn more about both the local communities adversely impacted by marijuana enforcement and the local marijuana market, considered at the time to be the largest in the world.

At this time, few states had adopted laws to legalize cannabis for adults 21 and older or had begun formally acknowledging the harms of the war on drugs, or marijuana prohibition, particularly its disproportionate impact on Black, Indigenous and people of color (BIPOC) communities.

It was while attending a local industry event, I decided using the term “black market” to describe the illegal marijuana market was no longer appropriate. At this particular event, a group of existing medical marijuana businesses were trying to organize support around their proposal to have exclusive access to participate in the adult-use market, once adult-use sales became legal under state law.

When the event’s discussion shifted to the topic of enforcement, I assumed there would be at least some mention or general discussion regarding the harms of the war on drugs or the impact marijuana policing had on BIPOC communities. I was wrong.

Instead, individuals discussed concerns their business profits would suffer if they had to compete with the “black market” and then began discussing what actions would be necessary to eliminate the “black market.”

In a room mostly filled with white men, one stood up and said, “Yes, we have to protect the white market.” I remember thinking in my head, whispering to myself and then asking out loud, “What the hell is a white market?” Without hesitation, a second white man explained, “black is illegal and white is legal.”

To be fair, I hadn’t thought critically about the term “black market” until I heard the term “white market” used in this context, seeing first-hand how normalized it had become for folks to equate black with illegality and white with legality.

Months later, I would go on to be appointed to serve as the first executive director of the City of Los Angeles Department of Cannabis Regulation—a position I held for almost five years. During my time as a local regulator, I made a point to ensure neither the department nor its staff used the term “black market.” I would also explain to policymakers, regulators, journalists, industry participants and other stakeholders why I felt the term was problematic and would ask them to use another term.

Most of the time, my explanation and request would be relatively well received.

I would explain the illegalization of marijuana was driven by racism against Black and Latino communities.

I would explain how marijuana and drug policies helped to militarize local law enforcement and were a driving force behind the over policing, and often, deadly policing, of BIPOC communities.

I would explain how marijuana arrests and related collateral consequences devastated individuals, families and whole communities, particularly BIPOC communities.

And I would explain how within these communities, instead of investments in healthcare, education, housing and employment, government officials often diverted resources to law enforcement and prisons.

Folks would often admit they had never thought about Black people or their experiences with racism when using a term equating black with illegal, but could understand why—given the racist origins of marijuana prohibition laws and the impact marijuana policing had on BIPOC communities—it was now considered problematic.

Many folks would ask what term I thought was appropriate. I would normally follow up by asking, “What are you actually trying to describe? A market that is illegal? Unlicensed? Unregulated? The market existing before legalization or regulation?” Notably, for many folks what they meant was illegal. I’d say, “Well then consider saying what you mean, don’t say black when you mean illegal.”

For some folks, raising awareness around the issue was enough to change their behavior. Repeatedly, folks told me they would catch themselves saying it, and even if it had already come out of their mouths, they would acknowledge the term, in this context, was problematic and then follow up with a replacement term. Other folks would tell me they not only stopped using the term themselves, but if and when they heard the term used, they would use it as an opportunity to explain to others why it was inappropriate and ask others to choose another term as well.

However, sometimes my requests for folks to replace the term were dismissed entirely or met with hostility. I once visited Seattle, Washington to speak on some of the challenges and opportunities associated with state reforms; during my speech, like most of the speeches I would give at the time, I made a pitch to the audience to consider replacing the term “black market” with a more appropriate term.

After I left the stage and sat down, the next speaker, who was a white male and an elected official, took the podium. He immediately made reference to my request not to equate black and illegal and said “Tomato, Tomahto.” Some members of the audience chuckled, others audibly gasped in disbelief and then a lone voice yelled from the back “They’re not the same!” There, I was the only Black person in attendance.

It’s been over five years since I made the decision to not use the term and to proactively ask others to do the same. Fortunately, I’m not alone in recognizing why it’s problematic to equate black with illegality.

Nonetheless, the use of the term is still widespread, especially in marijuana-related journalism where headlines like “Why hasn’t legal weed killed the marijuana black market?” and “The black market strangled California’s legal weed industry. Now it’s coming for New York” are commonplace.

As evidenced in these headlines, black is not only posited as antithetical to legal, but by using the term black market alongside verbs like “killed” and “strangled,” the term black market is being personified in ways even more problematic.

Although I acknowledge there are more salient issues needing to be addressed, this is also important. Plus, this is a pretty basic ask. Across the United States it is important our language evolves alongside related marijuana reforms. Marijuana policing has already been successful in fulfilling its racist intentions, we don’t need the additional baggage of the everyday use of a term that equates black with illegal, despite Black people’s experiences with systemic racism in policing and the legal system.

We shouldn’t equate black with illegal and we shouldn’t use the term “black market” as a synonym for illegal market. If you are a policymaker, regulator, journalist, industry participant or other stakeholder involved in or impacted by marijuana policy reform, I challenge you to do better.

If we can all speak with the same language and respect each other, we are all better positioned to break free from the shackles of failed prohibitionist policies and actualize a future where marijuana laws and policies aren’t driven by racism, but are instead, by directly acknowledging and addressing racism, designed to improve the lives of all individuals and communities.

Cat Packer is the director of drug markets and legal regulation at the Drug Policy Alliance, vice chair of the Cannabis Regulators of Color Coalition and a distinguished cannabis policy practitioner in residence at The Ohio State University Moritz College of Law’s Drug Enforcement and Policy Center. From 2017 to 2022, Cat served as the first executive director of the City of Los Angeles Department of Cannabis Regulation.