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Cornell Journal of Law and Public Policy

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This article advances a new theory of drug regulation that addresses two previously unexamined questions: how law-makers are able to regulate drugs differently irrespective of the dangers the drugs may pose and independent of their health effects, and the process followed to achieve this phenomenon. For example, although tobacco products are the leading cause of preventable death in the U.S. they can be bought and sold legally by adults, while marijuana, a substantially safer drug, is subject to the highest level of drug control. This article posits a conceptual model for making sense of this dissonance and applies this model to the regulation of four common drugs: cocaine, marijuana, tobacco and anabolic steroids. Although much has been written on the topic of licit and illicit drug regulation, none of the scholarship in this literature has attempted to explain through an examination of pharmaceutical, illicit, and over-the-counter drugs how the apparent inconsistencies and incoherence of the U.S. system of drug control have been achieved and sustained. This work fills the gap in this literature by proposing an innovative and comprehensive theoretical model for understanding how drugs can become “medicalized,” “criminalized” or deemed appropriate for recreational use, based upon little or no empirical evidence regarding the pharmacodynamics of the drug.