The difference between legal and illegal drugs is about history and business, but not science

Back in grad school, I took my daily SSRI and departed for the archives to write a history of the War on Drugs. I imagined it was going to be a sensational account of Latin American cartels, corrupt DEA officers, and deadly side effects in the highest echelons of foreign policy. Two years later, here’s what I have: a confusing mix of hypochondria and iatrophobia and a story of bureaucracy, businessmen slapping each other on the back, and nationalized morphine production during WWII. I found war, and there were drugs. But instead of the Nixonian counteroffensive, in looking for the origins of the War on Drugs I was led to the birth of the modern pharmaceutical industry.

The current distinction between drugs classes as legal and illegal has little to do with their substance per se and everything to do with a confluence of court rulings, prison expansion, and business interests. It developed side-by-side with the pharmaceutical industry and the federal drug policing apparatus, then known as the Federal Bureau of Narcotics, in the early part of the twentieth century. Each used the other to fortify its own positions of power. But the useful il/legal distinction was nearly destroyed during the Second World War, due to the urgent necessity of opium stockpiling for use by the Army, only to emerge stronger and more politically potent than ever.

In a time of war, the FBN began the first in a long series of collaborations with pharmaceutical conglomerates and drug cartels, which continued in some form throughout the twentieth century. To achieve national security objectives, the drug enforcement agencies that divided cartels from corporations by legal fiat collaborated to produce drugs for which they otherwise threw people in prison. These alliances strengthened the power of these agencies to determine the public understanding of what was legal and what wasn’t. They also allowed the feds to work with drug companies and cartels alike during the Cold War to develop various chemical military technologies and leverage on-the-ground power. But this double-dealing led to schizophrenic outcomes. Most spectacularly, during the Second World War, the U.S. Treasury Department gold vaults held 3,000,000 pounds of raw Macedonian opium, while the military was court-martialing G.I.s for marijuana use.

At the turn of the century, the U.S. had no federal drug-policing agency. Pharmaceutical manufacturers were dispersed into small independent businesses that produced and prescribed as they saw fit. But as a public drug reform movement denouncing the widespread sale and use of opiates gained steam, drug manufacturers were forced to define and defend the realm of “legitimate” production and sale of pharmaceuticals. Scandalous paper headlines related the horrors of drug addiction and adamant reformers began condemning the medical profession as a whole. Previously dispersed drug manufacturers, pharmacists, and medical practitioners were forced to come together and defend their legitimacy in the public eye to ensure continued profits and to preempt undesirable legal or government intervention. This collusion proved good for some and fatal for others — “quacks” were weeded out and, when the dust cleared, a handful of self-proclaimed professional drug producers controlled the market.

Once “legitimate” drugs had been clearly defined for the public, a whole other category of drugs became not only illicit but, for the first time, illegal. The innocuously named Harrison Act of 1914 was the first piece of national anti-narcotic legislation passed in the U.S. Although the Harrison Act only regulated drug sales through a poorly-enforced system of record-keeping, it codified the distinction between “dangerous” drugs and drugs “for medical or scientific purposes.” While the categories of medical or “ethical” drugs and illegal/“criminal” drugs quickly came to acquire a powerful moral currency, both were hasty products of negotiations over laws like the Harrison Act. The two categories were united at birth, only taking on meaning and material power in relationship to one another. In particular, they were expedient agreements between the government and the newly united pharmaceutical industry, as the latter worked to ensure that narcotic regulation (now inevitable thanks to the scandals raised by the reform movements) would take a shape that was convenient to business.

The contrast between the Harrison Act and the earlier (defeated) Foster Bill shows how the pharmaceutical industry shaped the first federal drug-regulation legislation. The Foster Bill was championed by Dr. Hamilton Wright, the commissioner appointed by the State Department to represent the U.S. at international conventions on opium regulation. Wright seems to have sincerely believed in the need to control all drug traffic, “medical” and “non-medical,” and the Bill, presented to Congress in 1910, provided a powerful structure of domestic regulation and enforcement, particularly targeting opium, cocaine, marijuana, and chloral hydrate. However, the National Drug Trade Conference met for the first time in 1913 specifically to organize against the Foster Bill. The defeat of Foster signaled the emergence of an organized pharmaceutical interest, capable of acting politically to protect its needs. Foster’s replacement with the Harrison Act was their first success.

The Harrison Act, in contrast to Foster, simplified records, omitted chloral hydrate (a sedative that was frequently misprescribed and used recreationally in the late 19th century) and cannabis, and allowed exceptions for physicians to prescribe drugs without keeping records, among other things. Broadly, it ensured that government regulation would not limit the commercial activities of powerful pharmaceutical companies. Instead it would complement them by eliminating smaller businesses from the trade and enshrining the professional authority of licensed manufacturers.

While the Harrison Act of 1914 initially lacked teeth, by the 1920s it had led to the formation of the first federal regulatory agencies charged specifically with policing the criminal trafficking of drugs. The first of these agencies was the Narcotics Division of the Treasury Department, formed in 1923, which was eventually replaced by the Federal Bureau of Narcotics in 1930. Harry J. Anslinger was immediately appointed as commissioner of the Bureau. Under Anslinger, colloquially known as America’s “Drug Czar,” the Bureau began to enforce the new drug regulation norm both at home and abroad.

In the wake of the Harrison Act, the positive work of drug development was reserved solely for the pharmaceutical industry, while the federal government, through the law enforcement powers of the FBN, publicly concerned itself with the negative project of policing the criminal realm to decrease the flow of illegal drugs into and throughout the country. This division of drugs into the legal/ethical and illegal/criminal spheres would serve as an important foundation for the wartime expansion of drug development in the legal realm, which was now understood and accepted as a private domain of scientific expertise.

World War II was a moment of dramatic escalation of government involvement in drugs. Sulphates, morphine, and quinine kept soldiers healthy, and during the Second World War the government actively oversaw their development, purchase, and distribution through the Federal Bureau of Narcotics. During and after the war, the FBN pursued two seemingly contradictory goals. On the one hand, the Bureau enforced strict, moralizing legislation to make narcotics a dangerous social evil and traffickers in and users of narcotics as criminals. This had been the main activity of the Bureau since its inception and was its explicit reason for existence. However, with the outbreak of WWII, the Bureau also began working closely with the pharmaceutical industry to develop and produce narcotics.

In Directive No. 10 of October 6, 1942, the Chairman of the War Production Board delegated to the FBN full authority over the production, manufacture, and distribution of narcotic drugs, and to authorize their allocation in the manner and to the extent deemed “in the public interest and to promote the national defense.” The Bureau’s dealings with both legal and illegal narcotic trafficking during the war are detailed in their annual publication Traffic in Opium and Other Dangerous Drugs. The major portion of each annual report is devoted to sensational accounts of the criminal policing activity of the Bureau. However, with the outbreak of the war a different type of Bureau activity appeared. Rather than simply punishing those engaged in illegal trafficking, the Bureau began to actively participate in the traffic of opium, specifically for wartime morphine production.

Seizures of illegal drugs fueled the medical needs of the army during WWII. While the Bureau conducted research on favorable growing conditions for the opium poppy, they also reported on a different type of research taking place in the armed forces, one that could justify crackdowns on illegal drugs, specifically marijuana. In 1944, they reported that

Thirty-five confirmed marihuana addicts came under observation during a period of 7 months at an Army Air Forces regional station hospital. They present a serious problem in their failure to perform any useful duties, in breaches of discipline, in constant need for medical attention…In effect, they felt and acted like enemy aliens toward society.

The Bureau assumes that war was not a variable in the experiment. Even suicidal behavior gets read as a product of marijuana use, rather than the effects of war on a young soldier. As an example of the nefarious effects of marijuana addiction, the report notes that “one of them, after being informed that he was to be returned to duty, strung himself up by a sheet that night and almost succeeded in committing suicide.” Both observation of “marihuana addicts” and Bureau research on opium cultivation were war-fueled and federally-funded drug research. While the former would go on to support civilian punishment for illegal narcotics and drug addiction, the latter activity, at the time shrouded in secrecy, was an important shift in the Bureau’s mission: not just the regulation but the production of narcotics.

The wartime demand for legal and illegal drugs created a new, intimate relationship between the FBN, the U.S. pharmaceutical industry, and the military. As the U.S. government contemplated entering World War II, it seemed to face a dilemma. How could they acquire and store opium in mass quantities, a raw material that was both subject to international regulations and publicly deemed illicit (thanks to the activities of the FBN)? In fact, it turned out to be easy: the FBN simply waived enforcement of the laws private industry had drafted to protect its business interests, and the pharmaceutical companies drew on the traffickers’ networks to provide opium for the government.

Pharmaceutical manufacturers purchased opium abroad and then re-purchased this same opium from the government’s own Defense Supplies Corporation. The three companies involved in the stockpiling agreement, Merck, Mallinckrodt Chemical Works, and the New York Quinine and Chemical Works, Inc., would then “sell it (opium processed into various products) to the trade or to the government as the occasion might demand,” an arrangement that continued throughout the war. The FBN managed to stockpile roughly three years worth of opium by 1941. And as the gold vaults in the Treasury Department were empty at that time, the government decided to use them for storing the illegal narcotic.

On this note, Federal Security Administrator Paul V. McNutt congratulated the pharmaceutical manufacturers, informing them that “as a result of your action, 3,000,000 pounds of raw Macedonian opium is cached today in the vaults of the Treasury in Washington,” yet felt it relevant to admit that, unfortunately for those in the Treasury, “having all that opium there has its drawbacks. Even through hermetically sealed tins, lead retainers and heavy packing boxes, the place smells.” However

…smell or no smell, that is a three year backlog for our morphine supply. It exists because major units of your industry faced facts. They invested three million dollars of real money in those facts. Drugs were your business. Foreign policy was the business of the President and the Secretary of State. The drug industry gained ground.

The redolent image of canned opium in place of bullion stuck in the minds of drug execs and narcs alike. The most enduring legacy of opium stockpiling was not the actual material assembled, but a powerful new affiliation between the federal government, specifically the drug enforcement arm, and private pharmaceutical manufacturers like Merck, a company that is still doing a lively business. These bonds would carry over into a postwar world where the line between public and private was (and is) increasingly, lucratively, blurred.

During WWII, George W. Merck, the President of Merck pharmaceuticals, was put in charge of the federal government’s biological warfare preparations. These preparations included highly classified trials at various sites throughout the country to develop new pharmaceuticals and other chemical agents. Other pharmaceutical trials were less covert: a 1945 issue of Life magazine praised the malaria experiments then being conducted at Illinois’

for more on the Stateville clinical trials see Bernard Harcourt’s “ Making Willing Bodies

Stateville prison, where an entire prison cell was filled with infected mosquitos. This was only one of the many WWII era clinical trials conducted using prisoners. We can only speculate that a good number of these experimental subjects were behind bars for possession of illegal narcotics.

It has been estimated that drug related crimes currently account for roughly one third of the U.S. prison population. At the same time, prescription drug sales continue to skyrocket, with a particularly sharp increase over the past decade (up by about 250 percent). The distinction between legal and illegal drugs (and the respective bureaucracies that flourished around it) has produced highly lucrative spheres: prisons overwhelmingly populated by drug offenders, a major (primarily U.S.) market for illegal drugs, and, at the same time, an ever-expanding arena of R&D, patenting, and marketing for pharmaceuticals (tested on those desperate enough to enter clinical trials, enjoyed by those able to afford them).

Clearly the distinction between legal and illegal drugs is arbitrary: one could draw parallels between the recreational use of drugs like Adderall and the illegal drugs brought to major U.S. cities by cartels—through Texas and on into the major markets of cities like Chicago and New York. It’s more interesting once you see how this irony came into being. The origins of drug cartels go hand in hand with the growth of one of the most powerful global industries, whose political reach now extends into very high levels of government, and the way that this industry managed to carve out a publically legitimate sphere for itself, to distinguish itself from the dealers who, at far greater risk to themselves and those unfortunate enough to live out their lives in impoverished countries like Mexico and neighborhoods like South Chicago, also medicate a huge portion of the U.S. population.

The history of illegal drugs is inseparable from the history of the legal ones produced by the pharmaceutical industry. There is no hard chemical difference between the two. What remains is a distinction that’s been constructed socially and legally, though this makes the distinction no less important or “real.” Pharmaceuticals are taken recreationally, minor drug possession charges fill prisons, and, as with opium stockpiling, the boundary between legal/illegal remains unstable yet ruinously persuasive.