Isn’t drug legalization the answer to the fentanyl crisis?

Bradley Tusk


Imagine you’re the head of the Sinaloa cartel (congrats, we know this has always been your wildest dream). Your goal is clear: to make as much money as you possibly can before you’re killed/convicted/otherwise deposed. Your only guiding principles are profit maximization and staying alive. Nothing else matters.

The last twenty years haven’t been so great. You lost the weed market to legalization. Purdue and other big players in pharma made all the money on Oxycontin, Xanax, Demerol. So you need to increase margins to make up for lost sales. Along comes your solution: fentanyl.

Fifty times more potent than heroin, 100x stronger than morphine, if you cut your cocaine or heroin or MDMA with fentanyl, you can make the drug even stronger while bringing down your overall production costs and materially increasing your profit margin. Sure, killing your customers isn’t a great business model since you need them to serve as recurring sources of revenue, but the demand for drugs is so high, it’s not a good enough argument to change your incentives.

Because fentanyl is both highly potent and profitable, it became a mainstay ingredient in many narcotics, wreaking havoc among users. According to the CDC, over 150 people die of fentanyl overdoses in the U.S. every single day. In total, more than 2/3rds of all overdoses involve fentanyl. If you’re an American health official or policymaker, this is a problem.

Health officials can’t call you and say, “Listen cartel boss, this is a problem, we need you to change the ingredient mix.” The DEA already fails to seize most drugs coming across the border, so they can’t solve the problem by controlling the supply. They can’t change the economic incentives for the cartels. But they can change the supplier — and along the way, create a new class of manufacturers whose incentives are completely different.

Let’s say cocaine or heroin or MDMA were legal like marijuana or alcohol. Most people would prefer to buy something legally and safely than in a crackhouse or a dark corner of a park somewhere. They would especially prefer the legal alternative if the risk of death via fentanyl no longer exists (assuming the legal product is competitive enough on price). So just like Diageo and AB InBev and Brown-Forman are multi-billion dollar public companies held to a host of SEC, FDA, FTC and other legal standards, if those companies or other mass product producers like Unilever or Kraft or Johnson and Johnson started making legal cocaine, they could easily replace the cartel as the supply (as powerful and ruthless as you are, you’re no match for capitalism).

And unlike you, the cartel boss, Unilever can’t increase their margins by cutting the product with fentanyl, because their leadership would be immediately prosecuted and imprisoned for life. Their company would go out of business. Their shareholders would revolt and then lose their shirts. Their incentives are totally different — Unilever can’t take the same risks as the Sinaloa cartel, so it either accepts a lower profit margin on the product or — because they are operating legally — they don’t have to worry about all of the costs of smuggling, soldiers, weapons and bribes, so that offsets the loss anyway. In other words, just like grain alcohol isn’t an ingredient in anything you’d find in the liquor store, legalization and corporatization of the drug trade leads to the elimination of the widespread risk of fentanyl.

Now, obviously, this all requires a massive normative shift that finally accepts the War on Drugs as a complete and utter failure, recognizes that our system of incarceration of drug users and dealers accomplishes virtually nothing other than destroying lives and wasting the taxpayers’ money, recognizes that by keeping drugs illegal, it creates the opportunity and incentive for gangs, street crime, violence and guns that otherwise wouldn’t exist (there’s no gang wars over alcohol), etc…

The tax revenue from the sale of drugs can be used instead for mental health treatment, addiction recovery, and just generally trying to give people better lives (not to mention the hundreds of billions we’d save on lower law enforcement and prison costs). So legalization equals no more fentanyl, no more war on drugs, no more street gangs and rampant violence around drugs, no more mass incarceration — none of that. It also means that we are now tacitly telling adults that it’s okay to use cocaine or heroin or MDMA. And that, of course, comes with its own major set of risks and problems from endorsing the use of highly addictive narcotics to making hard drugs more accessible to more people to twenty other problems.

And while saying “we can’t control it so we might as well legalize it, tax it and regulate it,” makes sense on paper, watching New York State’s disastrous rollout of cannabis legalization doesn’t inspire much confidence that regulation can work (although most states have managed the process much, much better). Given the ineffective attempts in New York so far to shut down illegal cannabis dispensaries, law enforcement had better have the ability to shut down any dispensaries selling harder drugs. So to put it mildly, even if you are willing to accept the trade offs involved in legalization, this isn’t an easy decision to make or to execute — and that doesn’t even begin to cover what it would take politically to actually pull this off.

However, this column isn’t about how to construct a winning campaign to legalize drugs. We can discuss that another time. This is to make the argument that the only logical solution to the fentanyl crisis is drug legalization — that changing the incentives of the producers by changing who the producers are and what they can get away with is the only way to remove fentanyl from the product mix.

For now, it’s just an argument on paper. But so far, in looking at all of the ways our leaders have proposed dealing with the fentanyl crisis (mainly just passing harsher and harsher penalties, which achieves nothing), it may be the best — and only — option we have.



Bradley Tusk

Venture capitalist, political strategist, philanthropist and writer.