Draft Three, Section 4.2

4.2 Positive and Negative Licensing

Drug policy researcher Mark Kleiman (1992, pp. 98-101) has distinguished between positive and negative licenses. A positive license is one in which the default condition is unlicensed, where a would-be consumer must take some positive steps to opt in, to become licensed. A negative license shifts the default, so that adults automatically have the right to purchase alcohol, say, but that right can be revoked in the face of alcohol-related misbehavior or for other reasons (perhaps even voluntarily, as with self-exclusion). Familiar licensing regimes such as those for driving or fishing are of the positive variety, in that steps must be taken to acquire a license. Positive licenses, once obtained, can be forfeited for misconduct, in the manner that drivers who break traffic laws can have their licenses revoked. Any alcohol regulatory scheme that mandates an opt-in buyer’s license presumably would possess similar features, in that the license could be revoked in the wake of misbehavior.

An alternative to a buyer’s alcohol license is a negative licensing system like the exclusion options of section 3: the default is that adults are licensed buyers, but they can lose, for cause or voluntarily, their privilege to purchase. Under a negative buyer licensing system, all purchasers would have to be screened (as they would with positive licensing) at the time of purchase, to ensure they had not lost their purchasing privilege. If instead the exclusions concern consumption, then continuous monitoring or frequent testing can implement the negative license or exclusion. Negative licenses backed up by testing require that only the proscribed individuals need be involved, by submitting to the requisite tests. Everyone else, including sellers and entitled adults, can take no notice of the banned users. This advantage comes at a cost, however. Alcohol licensing regimes that involve some participation by all consumers can serve to put troubled drinkers into contact with counseling and treatment options. Removing the bulk of consumers – many of whom might be at risk of having problems related to their alcohol use – from the regulatory regime makes it more likely that problems will escalate before help is sought or mandated. Further, shortfalls (including unavoidable shortfalls) in the enforcement of exclusion might militate in favor of a buyer licensing system that offers more enforcement options.