BESIDES choosing lawmakers, on November 4th voters in three American states and the District of Columbia considered measures to liberalise the cannabis trade. Alaska and Oregon, where it is legal to provide “medical marijuana” to registered patients, voted to go further and let the drug be sold and taken for recreational purposes, as Colorado and Washington state already allow. In DC, a measure to legalise the possession of small amounts for personal use was passed. A majority of voters in Florida opted to join the lengthening list of places where people can seek a doctor’s note that lets them take the drug. However, the measure fell just short of the 60% needed to change the state constitution. Even so, that such a big state in the conservative South came so close to liberalising shows how America’s attitude to criminalising pot has changed.

After this week’s votes only 27 states outlaw all sale or possession of marijuana. In the rest, a thriving “canna-business” is emerging (see article): trade in the drug is escaping the grasp of organised crime and becoming normal, just as alcohol did after the end of Prohibition. But even as moves to legalise and regularise the business continue at state level, the federal government and Congress remain dead set against the drug. A panoply of federal laws to curb the marijuana trade remain in place; and in recent months the Drug Enforcement Administration has raided cannabis dispensaries in California that are operating under state licences.

The cannabis industry is now in a legal no-man’s-land. In some states the distinction between medical and recreational use is hazy: just fake a back problem and you can join the ranks of licensed pot-heads. Entrepreneurs are creating a range of products that is, literally, mind-blowing: not just smokes, but cannabis cakes, chocolates and massage oils. Yet even where state governments allow people to partake of the weed for pleasure, growers and sellers face the constant threat of seizure or arrest by the Feds. National laws make it hard for them to open bank accounts or get credit, and thus to rent premises or invest in production. They cannot sell across state lines.

This makes it harder for the business to distance itself from the criminal underworld, which is one of the main purposes of legalisation. It also has safety implications. Smaller states will struggle to monitor quality standards and set safe doses for the huge variety of marijuana products coming to market. The federal Food and Drug Administration—the world’s foremost regulator of drug safety—refuses to inspect the cottage industry for fear of legitimising it. (Strangely enough, such qualms do not deter the Internal Revenue Service, which readily taxes the proceeds.)

Marlboro, man

Opponents of legalisation are happy to see the business stay small, amateurish and nervous. They argue that if it got into the hands of giant corporations with big marketing budgets, as tobacco and alcohol have, pot use would surge. However, the weed business is already vast—worth some $40 billion by one estimate—and it is largely in the hands of gangs that, unlike big, stockmarket-listed firms, would not hesitate to sell dodgy stuff, to youngsters as well as adults. A legal, well-regulated pot industry would be a safer, less crime-infested one, but it would not necessarily be a bigger one: tobacco use has plunged as regulation has been tightened and public education about its health risks has improved.

The federal government and Congress should face up to the reality that across swathes of America, pot is now all but legal—and voters want it that way. They should redirect their efforts to making it as well-regulated as booze and cigarettes.