Tag: Wayward press

The FDA, the CDC, and five Senate Democrats, cheered on by anti-tobacco advocacy groups, are viewing-with-alarm new statistics about the use of e-cigarettes. It may turn out that concern is warranted, but for now I’d advise everyone involved to exhale slowly and calm down. Based on what’s now known, it looks to me as if over-regulation poses a bigger risk to public health than under-regulation.

The market for e-cigarettes - devices that deliver nicotine vapor without the cloud of particulates, polycyclic aromatic hydrocarbons, ammonia, and hot gasses that a cigarette provides, and without the smell - is growing rapidly, among adolescents as well as adults. Many adults are switching from cigarette smoking to e-cigarette use, while many adolescents seem to be heading directly to e-cigs or using both forms at once.

Of course, you’d expect the availability of a new form of nicotine delivery with attractive features to increase total nicotine use. But the the risks of nicotine are a tiny fraction - almost certainly less than 10%, arguably even lower than that - of the total health risks of smoking. If e-cigarettes substitute for smoking, the health benefits are likely to be very large. Even if they substitute for not smoking or for quitting, the damage is likely to be limited.

And yes, some e-cigarettes may be improperly manufactured and contain some of the same noxious chemicals contained in regular cigarettes, though even then at orders-of-magnitude lower doses. And it’s possible that it will turn out that chronic inhalation of one or more of the liquids now used as vehicles will turn out to cause currently-unsuspected health damage. In principle, you couldn’t know that the devices are safe without exposing large numbers of people to them and waiting 50 years.

The FDA’s desire to have enough authority to require e-cigarette sellers to manufacture them properly and label them accurately, to limit marketing aimed at minors, and to be able to force the removal of unsafe product from the market, seems quite reasonable. What’s not reasonable, and what is likely to be bad, on balance, for health, is the idea that anything that delivers nicotine vapor should have the same rules applied to it as an actual cigarette.

For example: one of the current goals of the anti-smoking movement is to ban menthol cigarettes; all other flavors are already banned. But there wasn’t ever much of a market for vanilla or cherry-flavored cigarettes, or even for clove-flavored cigarettes. Menthol, by contrast, accounts for something like a third of all cigarettes sold, and a much higher proportion than that among African-Americans. Many menthol smokers, according to surveys, say they’d rather quit smoking altogether than switch to regular. That, of course, would be good news on the health front. But the bad news is that menthol smokers who don’t want to switch and find they can’t quit will instead swell the customer base of the already-flourishing markets for illicit (untaxed) tobacco products. As Peter Reuter has pointed out, banned drugs lead to nasty black markets, and there’s no reason to think that banned cigarettes won’t do the same.

Maybe that price - in the form of criminal revenue, enforcement expenditure, arrest, incarceration, and illicit-market violence and corruption - is worth paying for the health benefits of reduced smoking. (Recall that a 5% shrinkage in cigarette use would, in the long run, mean 20,000 fewer tobacco-related deaths per year.) But you’d much rather have the benefit without paying the price. If displaced menthol smokers have menthol e-cigarettes available as a substitute, their interest in illicit menthol-flavored normal cigarettes would be that much less.

And that’s why I’m nervous about the possibility that the FDA, in a rulemaking expected soon, will “deem” that e-cigarettes are cigarettes for regulatory purposes, which would mean that a ban on menthol smokes would include a ban on menthol e-cigs.

None of this is simple or straightforward. I can imagine myself, five years from now, bitterly regretting not having spotted the e-cigarette menace before it got out of control. But regulations can do harm as well as good, and what I’m not hearing right now is much willingness to think carefully and proceed with caution. The principle of aggregate harm minimization, net of benefits (and nicotine does have benefits, including at least a temporary cognitive boost) still seems to me the right approach, for nicotine no less than for cannabis or cocaine. Unless and until someone can point to demonstrated and serious risks, rather than speculative ones, e-cigarettes ought to be thought of mostly as a part of the solution rather than as a part of the problem.

When I saw Dylan Scott’s story reporting that some Colorado officials were claiming “tacit approval” from the Justice Department for going ahead with the taxed and regulated cannabis market approved by Colorado voters, I was puzzled about exactly what was being claimed.

On the one hand, the Justice Department, in the many months since the Colorado and Washington initiatives passed in November, has not publicly announced that it is going to shut down the Colorado and Washington systems entirely. By its silence, the Department has allowed the state governments to proceed with time-consuming and expensive preparations. If the Department were now to announce that it was asking the courts to find that the Controlled Substances Act pre-empted the entire scheme, or that it was going to ask for injunctions against license applicants, that would certainly be a dirty trick. If that’s what “tacit approval” means, the substance of Scott’s story is correct, bu it doesn’t contain much news.

Nor did the actual sourcing and quotations seem to suggest otherwise. Of the two sources, the State Senator is very unlikely to be privy to whatever’s being said behind closed doors, and the nameless “official” doesn’t really say anything except what I said in the paragraph above: The feds know what’s going on, and haven’t yelled “Stop!” yet, so it’s unlikely they’re going to yell “Stop!” tomorrow.

None of that implies that the people getting licenses to grow and sell pot in Colorado and Washington - licences, that is, to commit felonies under Federal law - would be safe from prosecution.

On the other hand, it was also possible that Scott had learned something I didn’t know about actual negotiations, and that there had been a real nod-and-wink promise that the feds wouldn’t mess with state-licensed activity unless it involved real bad guys or interstate shipments. That would have surprised me, but I couldn’t rule it out.

My membership card in the Blogger’s Guild forbids me, of course, from Picking Up the Damned Phone and doing actual reporting. But I was a drug policy analyst a long time before I became a blogger, and some of the people I talk to in my policy-analyst hat actually know what’s going on.

So I can now say with confidence that no one at DoJ has given the government of Colorado any promises of non-interference with the activities of Colorado’s licensees. There have been discussions involving state and federal officials, but no negotiations of the “If you do X and Y we’ll let your people alone” variety. (I don’t have direct knowledge with respect to Washington State; any contacts with the feds are the province of the Governor’s office and the state AG’s office rather than with the people I know at the Liquor Control Board. But when I spoke of “negotiations” with DoJ, a state official hastily corrected that to “discussions.”)

That seems to me like a big missed opportunity; had the federal government presented the two state governments with list of demands, as conditions of federal acquiescence with the new commercial cannabis-distribution systems, there would have been very strong incentives pushing state officials to meet those demands. Once Washington and Colorado have regulations in place and start issuing licenses, retro-fitting the terms of a bargain into that process gets much, much harder.

The right way, in my view, to implement such a bargain would be through the “contractual agreements” provided for in 21 U.S.C. 873.

The problem with stories such as Scott’s is that they will be eagerly seized on by legalization advocates. When and if the DEA starts busting state-licensed growers and dealers, we will hear the same screams of “bait and switch” we heard when the feds, having announced that they didn’t intend to go after patients and caregivers in the medical marijuana markets but would concentrate on large, for-profit operations, in fact busted some large-scale, for-profit growers in California.

No, that doesn’t mean I think every target of those raids deserved it, merely that the charge of “double-cross” was utterly bogus, and known to be so by those familiar with the situation. The people I chiefly feel sorry for are those who believed that advocates’ claim that the feds had given everyone a green light, and found out the hard way they were wrong.

So: If you’re considering entering the cannabis business in Washington or Colorado, you should do so only if you’re willing to take a risk - an unknown risk, and only partly controllable by keeping your actions discreet - of spending a long spell behind bars.

And: If you’re an activist, or have any influence with the Administration or with Members of Congress, don’t imagine that the job of reconciling federal law with state-level legalization is more or less complete and that you can now relax. All the hard work remains to be done.