End the War on Drugs—Including Nicotine
Libertarians are no doubt dismayed by the FDA’s recent ban on Juul vaping products (although the current status of the ban is unclear) and the news that the Biden administration is planning to mandate lower nicotine levels in cigarettes. But libertarians shouldn’t be the only ones opposed to state-enforced nicotine restrictions.
For one, all liberals recognize a right of bodily autonomy: “my body, my choice.” If it’s your body, it’s your choice to put nicotine in it even if it’s harmful. By analogy, if it’s your car, it’s your choice to put sugar in the gas tank even if it’s harmful.
Indeed, the right of bodily autonomy entitles people to make far more harmful decisions than smoking. You may decline a life-saving blood transfusion, so it’s hard to see why you may not smoke high-nicotine cigarettes—a choice that will result in significantly fewer life years lost.
A standard reply to this argument alleges that the decision to smoke tends not to be rational. Smokers may lack adequate information about the risks of smoking, be unduly optimistic about their own long-term health prospects, or assign too much weight to immediate benefits compared to future harms. If they did form and act on accurate beliefs about smoking, they wouldn’t choose to smoke. So by preventing someone from smoking high-nicotine cigarettes, we’re merely enabling them to get what they really want.
Let’s concede for argument’s sake that the decision to smoke is not rational. This concession still doesn’t clinch the case for paternalistic cigarette regulation. Liberals tend not to subject rights to a competence or rationality test. The freedom of association entitles you to marry partners of your choice. But evidence indicates that newlyweds display optimism bias when evaluating the long-term prospects for their marriage. Still, public officials lack the moral authority to coercively interfere with your marriage choices, even if they were good at it. Similarly, deontologically-minded defenders of democracy think you have the right to vote for your favored candidate even if you—like many voters—are uninformed and biased when casting your vote.
What about the non-paternalistic arguments for nicotine restrictions? All of these can be addressed with more narrowly focused policies. For instance, the concern that second-hand smoke will harm others justifies smoking restrictions in public spaces, but not private ones. (You may play excessively loud music at home, but not at the park.) The claim that smokers are a fiscal burden on others isn’t supported by the evidence, but at most that would be a reason to restrict access to state-funded benefits rather than to restrict the right to control how you use your body. And the problem of illegal sales to underage buyers can be solved without universal restrictions on nicotine—rather we can simply increase penalties on those who make the illegal sales.
There’s also a strong consequentialist case against paternalistic policies like nicotine restrictions. First, it’s not enough to look at a single bias in isolation. Different biases may interact in an offsetting way. For instance, Mario Rizzo and Glen Whitman discuss evidence indicating that most smokers overestimate the risk of smoking; thus “the degree of [a smoker’s] overestimation of health risks can offset the degree of his present bias such that his smoking is optimal.”
Bans on high-nicotine products bring social costs as well. All of the familiar consequentialist reasons that speak against drug prohibition in general speak against nicotine restrictions in particular. Since both buyers and sellers are motivated to circumvent the restrictions, the illicit transactions just move underground. (Higher taxes on cigarettes have already incentivized smuggling.) Consequently, producers have stronger incentives to sell fraudulent or defective products because buyers can’t report the issue without implicating themselves in a crime. And as the risk of selling a drug rises, so too does the incentive to sell more concentrated forms. A ban on high-nicotine cigarettes can, paradoxically, make smoking less safe.
Moreover, insofar as the restriction works, it will make high-nicotine cigarettes scarce—thereby driving up the price and creating an incentive to supply more. This, in turn, motivates a counterbalancing increase in state power (as we saw in the case of alcohol prohibition) and a diversion of resources away from more valuable uses.
As the war on drugs illustrates, an expansion of state power involves an expansion of opportunities for state abuse. For example, SWAT raids are disproportionately likely to target minority communities. Black Americans are disproportionately likely to be arrested and incarcerated for drug offenses.
Nicotine restrictions will also result in more interactions with the police. Yale Law Professor Stephen Carter tells his students “never to support a law they are not willing to kill to enforce,” given that “the police go armed to enforce the will of the state, and if you resist, they might kill you.” Carter specifically discusses the case of Eric Garner, who was killed by a New York City police officer for illegally selling cigarettes. Even if you like the idea of nicotine restrictions in principle, you should be very wary of putting them into practice.
"Libertarians are no doubt dismayed by the FDA’s recent ban on Juul vaping products"
I'm dismayed by $5 gas, the inability to direct my own education dollars, or the threat of nuclear war.
I have a really hard time being dismayed by the fact that a product that targets kids with advertisements on Nickelodeon to turn them into lifelong smokers is being restricted. I don't think that would be at the top of the John Galt list of things to be DISMAYED about.
"By analogy, if it’s your car, it’s your choice to put sugar in the gas tank even if it’s harmful."
If you put something wrong into your gas tank you might have an accident on the highway and injure yourself, those in your car, and those in surrounding cars. This is actually a good analogy for reckless drug use.
"The claim that smokers are a fiscal burden on others isn’t supported by the evidence"
Is based on data that it kills them before they've been on Medicare for too long...
"but at most that would be a reason to restrict access to state-funded benefits rather than to restrict the right to control how you use your body."
Are there any real world examples of this we can draw on, because it seems like a total pipe dream to me.
My Dad smoked right up until his heart attack, and smoking played a role in that heart attack. I remember flushing his cigarettes down the toilet as a child because I didn't want him to die. I don't really see how an early death would have been what he wanted, nor that it would have had no effect on anyone else (obviously it would have affected my family, just as his heart attack did). My Dad knew better but got addicted young, when the heart attack forced him to go cold turkey he never went back.
He's a fairly libertarian guy, but I don't think he's dismayed about banning child cigarettes.
“never to support a law they are not willing to kill to enforce”
In Singapore they apply the death penalty to anyone caught with illicit drugs in quantities greater than a single person might use personally for one use. They fought a War on Drugs and won decisively. They have none of the supposedly impossible enforcement issues you claim are inevitable.
Look, I'm pretty flexible on what both drug laws should be and what enforcement should be. I think that trying to control things like alcohol and tabacco that are very entrenched in our society is very difficult. But that doesn't mean we can't tax it and provide some restrictions (you can't buy alcohol after the 7th inning because they want people to sober up before they drive home).
I can also buy that criminalizing the possession of a small amount of illegal drugs for personal use isn't something the cops should be wasting their time on.
What's less important than this or that detail of the War on Drugs is the cultural acknowledgement that drugs are bad. They diminish the human person. John Galt would not be a stoner. The libertarian parties obsession with pot brings out the absolute worst in it. When I think about what more freedom would allow me to do, I imagine becoming a better person. Not dissipating myself.
I believe that libertarians obsess with drug laws because it allows them to align themselves with progressives and that makes them feel good and get a cheap rush, not because it represents the most pressing issues for a pro-freedom agenda.
If you want to get DISMAYED about something, there are a lot bigger fish to fry out there.
I agree with much of this, but I think the best justification for paternalistic restrictions on addictive products is that it *isn’t* just the body of the person who makes the choice to smoke. The body is shared by the 20 year old, the 40 year old, and the 60 year old, but the 20 year old is the only one who currently makes decisions about it, that the 40 year old and 60 year old will have to live with. When we regularly see choices that 20 year olds make that go against the stated wishes of the 40 and 60 year olds that inherit that body, it makes sense to put in place regulations that help restore the balance of interests in this shared property. Co-owned property usually can’t be damaged without permission from all owners. In this case, some of the owners aren’t capable of speaking (yet) so we don’t want to insist on explicit consent from them, but it makes sense to at least raise the bar so that only unusually motivated 20 year olds can do the thing that 40 and 60 year olds usually regret.
This is why suicide prevention is usually a good thing - it doesn’t make sense to allow a momentary time slice to destroy everything that future time slices of the person could enjoy (there’s usually nothing to gain by *legally* restricting suicide, but there’s a lot to gain from talking people out of it and putting barriers at salient high points people might jump from and having extra safety around pills and firearms).
That said, it seems clear that the ban on Juul is a bad idea, and the restriction of nicotine content may be too. (Though there’s probably a case for mandating the availability of cigarettes of a variety of nicotine levels, particularly in combination with Mark Kleiman’s proposal that people be allowed to set regulations for *themself* that they can change with 30 days notice.)