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FDA’s New Rules Against Smoking

Guy Bentley on the latest front in the racist War on Drugs

The sun has set on the Golden Era of Tobacco, much like the bygone Golden Era of Hollywood. Perhaps once movie stars stopped smoking cigarettes on the Silver Screen, audiences found the activity less glamorous. Or perhaps the dramatic decline in smoking rates was a more rational response by consumers and celebrities alike to new information about the dangers of tobacco products.

However, the regulators at the FDA are not content with people’s free and informed choices. They have moved to ban menthol-flavored cigarettes, along with many flavored “vape” cartridges, in the name of public health and (of course) protecting the children.

Guy Bentley , Director of Consumer Freedom Research at the Reason Foundation, has been the “voice of reason” in multiple respects on this issue, calmly and rationally pointing out the facts that regulators have ignored, such as…

  • E-cigarettes have helped countless adults quit smoking.
  • Vaping is far less dangerous than traditional cigarette smoking.
  • Menthol bans will disproportionately affect African Americans.

And last, but not least, the continuation of failed prohibition policies — this time applied to cigarettes instead of alcohol or drugs — creates yet more victimless crimes and empowers law enforcement to abuse their power in new and creative ways.

Remember the cautionary tale of Eric Garner, detained and ultimately suffocated to death by a policeman for selling “loosies” outside a corner store? Bentley reminds us of this, and other flaws with the seemingly “liberal” policy of protecting people from themselves.

Guy joined me to review the evidence on relative harms to adults and children of various nicotine and tobacco products, and put the proposed FDA rule in its proper historical and modern context.

Listen or ready the summary below:


Free to Choose

What do Grover Norquist and Al Sharpton have in common? It’s a short list, no doubt, but it turns out they agree on one thing, which affects almost all of us. They both oppose a policy that restricts the individuals freedom to choose what kind of nicotine products they put in their own bodies.

Government always finds a way to deprive people of pleasure, or at least tax it, and they have now turned their attention to e-cigarettes and menthol (mint-flavored) cigarettes. This is a repeat of the Prohibition Era policies that have always failed, and yet the newest front in this failed War on Free Consumer Choice has been opened.

In Congress, for example, there is new legislation to massively increase taxes on e-cigarettes. Guy, what are e-cigarrettes for the uninitiated?

The modern generation of e-cigarettes were first invented in China in the early 2000s, but they have become much more sophisticated with hundreds of different companies and thousands of brands, flavors and devices.

It’s a device that heats and aerosolizes a liquid solution of nicotine, propylene glycol, and/or some flavor. There’s no tobacco leaf used whatsoever and there’s no combustion. Unlike a cigarette where you set it on fire and inhale, smoke, this is aerosolizing a liquid solution.

Guy emphasizes this point because it means that e-cigareetes are much safer and less carginocenic than regular smokes. Nicotine doesn’t give you lung cancer, inhaling smoke does.

Once you get rid of the process of burning, you slash the amount of toxic chemicals you’re breathing into your body. It’s estimated that e-cigarettes pose 5% of the risks of cigarettes.

Now, nicotine is not illegal. It’s not a poison. It’s a substance that is allowed to find its way into the human body. If a human gets nicotine from the outside world into the body of the human, no one other than perhaps that human is harmed. There’s no externality involved.

The Free Market Miracle of the E-Cigarette

Why were e-cigarettes at first invented?

The modern day e-cigarettes a great example of free market innovation in promoting public health. A Chinese chemist named Hon Lik, who was a very heavy smoker himself, saw that he was going the same way as his father, who had died of smoking-related diseases. Lik tried the patches, gum, and nicotine, which don’t work for about 95% of people who are .trying to quit smoking

So he decided to build a better mouse trap, by combining electronics and chemistry to wean himself off of combustible cigarettes.

This sparked an innovation revolution, first filtering through message boards and the internet, before companies started to investing in entrepreneurs, starting businesses, and making these products better for consumers.

Guy says his came as a threat to both the pharmaceutical industry, selling nicotine replacement therapies, and Big Tobacco, which saw their profits threatened.

By taking away withdrawal symptoms, e-cigarettes make quitting smoking easier — kind of like the perfect cure. E-cigarettes were invented to improve public health — to fix an acknowledged worldwide problem that smoking tobacco kills people.

Quit or Die: A Hit to Harm Reduction

The parallels to the Alcohol Prohibition Era are work noting. People thought we could “fix” the evils of alcoholism by criminalizing it, but instead they turned everyday Americans into criminals. We weren’t happy enough with small time crime, so we invented organized crime in the form of a black market. Here, however, the illicit substance is not a social ill like alcohol but a cure for a public health problem.

This plays into the idea of harm reduction, whereby e-cigarettes crowd out more harmful cigarettes. Why does the government feel the need to get involved?

E-cigarettes faced early opposition from the traditional anti-smoking movement, [which seems to want] not just the elimination of cigarettes but of all recreational nicotine — a drug with a similar risk profile as caffeine when divorced from cigarette smoke. There is this massive industry trying to regulate and tax nicotine out of existence, including safer alternatives to cigarettes.The prohibitionist approach of the mainstream tobacco control public health movement in the United States — heavily funded by Michael Bloomberg — is “either quit nicotine entirely or continue smoking cigarettes until you die.”

Fortunately, the public health movement has become interestingly spit on this question today, and many are genuinely interested in e-cigarettes as a safe nicotine alternative.

We don’t need to continually tax smokers — often the poorest people in society. We can use harm reduction strategies that we’ve used, for instance, in fighting STDs with condoms [rather than abstinence only education].

For the Bloombergs out there, what is the strongest case one can make for the harms of nicotine?

They argue that nicotine is addictive and might harm the adolescent brain like shorter attention spans or inability to defer gratification. There’s also some suggestive evidence that nicotine addiction might facilitate other addictions like marijuana, or alcohol.

The Unlearned Lessons of Prohibition

As with all kinds of risks, we hope that society in the form of parents, etc. will set standards of behavior to help kids avoid the dangers of addiction. Yet with prohibition, we sent that activity underground and create a black market.

We now know what a failure the War on Drugs was, although we could have learned the lesson from alcohol prohibition. Now, we are not learning either lesson in repeating the failure with what we’re about to do with e-cigarettes.

What is likely to be the result of banning or hyper-regulating these products (which is tantamount to banning them)?

The main attack has been on flavored e-cigarettes – flavors other than tobacco — because it’s alleged that these are more appealing to kids. It’s true that most kids who vape chose flavored products, but most adults who are trying to quit smoking also vape flavored products because they’re trying to get away from tobacco flavors. I know this myself. I quit smoking thanks to vaping, and so did my mother actually, my fiance, and most people opt for non-tobacco flavors.

Many states have already banned flavored e-cigarettes while others have tried and failed. But because the FDA regulates e-cigarettes, and manufactures have to go through an multi-million dollar process to get their products approved, only the biggest companies can comply. So, only the big tobacco companies can survive.

The FDA has only authorized a handful of e-cigarettes and they’re all in tobacco flavors.

Unfortunately it looks like they might not authorize any flavored e-cigarettes, which in essence would be prohibition. People who are currently using those products are going to go back to smoking cigarettes. You could not have a worse public health outcome than somebody who’s already switched to e-cigarettes going back to smoking.

Guy also notes that this new prohibition category will lead to black markets of imported vapes, and people making their own e-liquid mixtures, which will not have the correct product standards. You won’t be able to sue the manufacturer in court and there won’t be any accountability. There is no consumer warranty on the black market or product liability insurance, and there is zero regulation.

As we learned from drugs and as we’re about to learn from e-cigarettes, once you ban a product that is in demand, rather than apply reasonable regulation, you deny the users any governmental protection, and you deny society any reasonable level of taxation — only for the benefit of saying, “We did our best, we prohibited another bad product.”

The Backdrop of Declining Smoking Rates & UK’s Success with Harm Reduction

Has any other product been as successful as e-cigarettes in helping people quit smoking, without compromising freedom?

Two major factors have gotten smoking rates down:

  1. People learn smoking is bad for you at a young age. Smoking rates have been going down since the 60s. As more young people stop smoking, it compounds over time.
  2. Cigarette taxes have driven down cigarette consumption, but they’re far less effective than often claimed. This is because cigarettes are an inelastic good, i.e., it takes an unusually high price to make consumers reduce their consumption.

In the UK, the government was initially going to ban e-cigarettes but their public health arms began researching these products and found that they were far safer, so now the UK officially promotes harm reduction.

There are even vape shops in British hospitals.

Contrast that with the 2009 Tobacco Control Act under the Obama administration, which made the FDA responsible for the regulation of all tobacco products, and erected this enormous regulatory barrier. The two groups who worked most closely on this legislation to get it passed the Campaign for Tobacco Free Kids and Phillip Morris: the world’s biggest cigarette company and the United States biggest anti-smoking group.

To go back to Prohibition Era, this is a classic “Bootleggers and Baptists” scenario, where the Baptists who were against alcohol wanted it prohibited, along with the bootleggers who could make money off prohibition. Phillip Morris thought that it could comply with FDA regulations and hurt its [smaller] competitors. I don’t think there’s ever been a more sinister alliance in the history of DC swamp land.

E-cigs were deemed tobacco products in 2016, so now the FDA is obligated to examine their costs and benefits — they have to determine whether they are beneficial to public health as a whole. That standard includes users and non-users, which is a completely irrational standard. E-cigarettes have to pass a huge burden to even get approved for sale, and they are forbidden from informing the public that they’re safer than cigarettes unless they pass another huge regulatory process called the Modified Risk Tobacco Product Application.

The regulation has put us in a dangerous situation where most of the public thinks e-cigarettes are as bad or worse than traditional cigarettes, and where it’s impossible for most e-cigarettes to come to market.

The Racism Inherent to Prohibition Policies

The history of drug regulation in our country started with something called the Harrison Narcotics Act, around 1913, directed at Asians who were in great disfavor in our country at the time. There was a bias against specifically Chinese opium users, as well as African American marijuana users. The New York Times worried in news articles that marijuana made them better pistol shots and made them sex-crazed. There was an embarrasing and profound racial element to prohibition.

Tell us about the racial component of cigarette bans.

Recently, the FDA put out a proposed rule to ban the sale of menthol cigarettes and flavored small cigars. This is reminiscent of the sentencing discrepancies between crack and powder cocaine — both were addictive and potentially dangerous drugs, but one was disproportionately used by black Americans and the other disproportionately used by whites, and one was treated much more harshly than the other.

The FDA wants to ban menthol cigarettes because they say that they are more appealing to youth than regular cigarettes. They say that it’s harder to quit and easier to start, and that they’re disproportionately used by African-Americans and that leads to health disparities.

In fact, the latest data show that more than 60% of kids who smoke (very few kids smoke these days — around 1.5% of kids smoke every 30 days), the vast majority used non-menthol cigarettes. States with the highest menthol consumption actually have the lowest youth smoking rates.

A new study just came out from Vanderbilt University, ironically just a week before FDA announced its potential prohibition, showing that there’s no difference in quit rates between menthol and non-menthol smokers, and there’s no difference in quit rates between African-American and white smokers.

On the last point, it is particularly slimy for the FDA to cloak a prohibition in the language of equity. There’s no difference in the smoking rate between black and white adults, and African-American youth are less likely to smoke than either whites or Hispanics.

African Americans do, however, smoke menthols at higher rates. Hence we return to the question of why Grover Norquist finds himself aligned on the taxation and criminalization of menthol cigarettes, with the Reverend Al Sharpton.

The ACLU has spoken out against this because as they’ve rightly pointed out, whenever prohibitions are introduced, they are disproportionately targeted at minorities. [Banning menthols] gives law enforcement the pretext to investigate suspected individuals for other reasons, like guns, drugs, etc.. There will be more police interactions in the wake of menthol prohibition.

If you ban menthol cigarettes, then the illicit market will necessarily be concentrated in African-American communities, and therefore policing will be concentrated in African-American communities.

Instead of criminalizing peaceful behavior, the government should be providing information and allowing people to make their own decisions. Beyond this, is anything else needed or is it enough to allow those who wish to be free of smoking to be given the one tool that has been the most effective?

First, we need to make it easier for companies to apply and get authorization from FDA to sell e-cigarette products. Second, the FDA needs to actively tell the public that e-cigarettes are safer than combustible cigarettes.

You don’t need to subsidize e-cigarette companies. You don’t need to do anything in favor of the e-cigarette industry. Just let it be a fair level playing field.

Follow Guy Bentley on Twitter, and be sure to subscribe below for weekly programs and “cliffnotes” summaries for popular libertarian book summaries.


-- • host of The Bob Zadek Show on 860AM – The Answer.

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