There is a potentially useful coalition of libertarians and left-leaning reformers who want serious change on drug policy. The observation that the drug prohibition has been a miserable failure is becoming more and more mainstream. The notion of total drug legalization has even gotten nods from some of the Democratic presidential hopefuls (notably Pete Buttigieg and Tulsi Gabbard). I think that turning this change in attitude into actual policy change is going to require some hard thinking and soul-searching. I will try to write this post constructively, self-conscious that libertarians have different ideas about how markets work than leftists. The bottom line is that, frankly, leftists need to give serious thought to how a legal drug market is going to work. We can't simply bemoan the cruelty of using the government's police powers to beat and detain people. We can't stop at decrying the racial inequities of drug policing. Stopping short of full legalization would lead to a regime in which the government simply declines to prosecute the drug war, but no stable, legitimate market is allowed to establish itself. Without changing the law to positively permit drug commerce, there would still be a black market. Suppliers and sellers would still be operating underground, and traffickers who are especially blatant and open about their business would probably still be subject to the occasional prosecution. I don't think anyone wants a "brown bag" drug market. This would entail leaving in place many of the features of the black market that make it so costly in human terms. Systematically disrupting the supply chain, even with inconsistent/infrequent prosecution, would cause drug supplies to fluctuate wildly in quality and dosage, which is what leads to the very high overdose rates that we are seeing today. At some point we need to have a positive vision for a legal drug market, rather than simply allowing one to pop up in the negative space of inconsistently enforced or unenforced drug laws. (To be clear, I'm not using the word "positive" to mean we have to personally approve of drug commerce or be happy about it.)
My target audience for this post includes left-leaning drug reformers and libertarians who have discourse with them. There are two ways for this post to be demeaning, and I strive to stay conscious of and avoid them. One is for me to condescendingly pretend that leftish notions of big business and corporate power are legitimate. If I don't think they are, I should say so clearly (assuming I have any respect for my audience). The other is for me to simply lecture leftists about how they should be libertarian. That would be a pointless waste of time. I seek rather to start from our shared, agreed-upon observations about the failure of American drug policy and expand outward from there.
For an example of the conflict between the libertarian an left visions of drug policy, see this video of a panel discussion between Jeff Miron and Maia Szalavitz. (Two people I greatly admire, I should mention.) It's not at all contentious, and I think they 99% agree on drug policy. But for the relevant part, the single but telling note of discord, skip to the last three or four minutes. Szalavitz is generally positive about drug legalization, but mentions her hesitation with respect to "commercialization" of drugs. She says she doesn't want to see "Phillip-Morris Fentanyl." Miron responds appropriately. He points out that in the 1950s cigarette companies actually competed on safety. They advertised that "my brand will kill you less quickly than the competitors' brand", and subsequent to these ad campaigns overall consumption of tobacco went down. Consumers in a free ("commercialized") market can also openly discuss relative risks with their doctors, Consumer Reports can do brand comparisons, and so on. Contra Szalavitz, a fully free and commercialized market supplies drug consumers with useful information. It would keep them safer.
Another place where I encounter generally good commentary on the drug war with some facile leftism dashed in is the Narcotica podcast. They have interesting guests and they totally get that we can't keep prohibiting drugs. They understand that black markets cause dealers to prefer fentanyl because it's less bulky, and that the illegality of heroin is what allows dealers to "overrule" their customers' preference for heroin. They push decriminalization, needle exchanges, and supervised injection facilities. But once in a while they'll throw in some gibberish about those bastard pharmaceutical companies. It isn't often clear whether they are expressing some kind of legitimate grievance about a specific practice or policy regarding pharmaceuticals, or whether they are indulging knee-jerk anti-business leftism.
I could dredge up other examples. Joe Rogan hosted a debate/discussion between Alex Berenson and Dr. Michael Hart on his podcast. Berenson is vehemently anti-cannabis, Rogan is famously pro (and so is Dr. Hart). In the middle of a rather contentious discussion about the "dangers" of cannabis, they suddenly discovered their unanimous contempt for the pharmaceutical industry. Berenson says that there's a cold place in hell for opioid manufacturers, and Rogan bemoans that in the United States (unlike in most other countries) pharmaceutical companies have the right to communicate with their potential customers via advertising. Rogan is generally anti drug war and even advocates for drugs being a positive force in people's lives. I want to ask where he expects the drugs to actually come from. Would there not be large chemical firms producing pharmaceutical-grade drugs under his preferred legal regime? Would these firms be prohibited from communicating in any way with the public? Is the status quo of underground production what he has in mind?
I discuss other examples here and here. A lot of people on the left opposed California's 2010 ballot initiative to fully legalize pot because they were worried about the "McDonaldization of cannabis." This can't be too uncommon a viewpoint, because a very trendy lefty friend of mine in grad school, someone who I know was a weed smoker, expressed a similar view to me in person. He claimed that companies can create specific addictions to their own products, such that (for example) his wife had cravings for a very specific brand of cigarettes (as opposed to being addicted to tobacco in general). He even claimed that fast food chains can instill cravings for their French fries and other items specifically. My friend preferred that weed remain illegal for these reasons. Now, it's true that brands differentiate themselves, and that people can have cravings for their preferred brand. But the notion that companies can exert this kind of insidious control over their customers is just beyond paranoid. Apparently a lot of people are walking around with their heads full of these implausible notions of market power, as if big, sophisticated companies can run roughshod over their impressionable customers. This ideology (if you can call it that) manifests as a reflexive revulsion to business. Unless confronted and dispelled, these bizarre notions of market power are going to make meaningful drug reform difficult.
Many people in the drug reform community are positive on harm reduction. They recognize that some people will continue to use drugs no matter how hard we try to stop them, and the only way to stop them from hurting themselves is to give them clean, sanitary means of getting high. I want to really push the idea that full legalization of drug commerce is the ultimate in harm reduction. Harm reductionists want drug users to have access to drug-testing kits. Guess what? In a legal market the drug testing is already done before you even buy the drugs. The drugs have dosing information and warnings about counter-indications written on the packaging. Alcoholic beverages are typically sold with information about the alcohol content, except when misguided laws forbid it. The phenomenon of accidentally buying fentanyl or buying heroin that's ten times stronger than you thought just doesn't happen in a legal market. Even in the absence of regulation, firms that misrepresent what they are selling would be subject to enormous civil and criminal penalties. You don't even need a litany of government regulations to make this work. A generalized, standard anti-fraud statute gets us 99% of the way there. (In fact, even non-statutory anti-fraud common law gets us most of the way there!) Harm reductionists are also very positive on needle exchanges, programs that allow IV drug users to obtain clean needles and dispose of their used ones. Keep in mind that these are only necessary because wrong-headed "anti-paraphernalia" legislation makes it illegal to buy and sell needles. Hospitals have standardized protocols for handling and disposing of used needles, because they are legitimate businesses operating in the light of day. They want their staff and their customers, their patients, to not worry about stepping on or accidentally grabbing a used needle. Presumably a legal pharmacy for recreational drugs would provide the same services for customers who required needles. Consider safe injection facilities. In my opinion, these are a set of useful services that would likely be provided in a legal drug market. Every other dangerous product has ancillary services that can be purchased to make the product safer. Gun owners an attend a gun safety course, sometimes for free or sometimes for a fee. Indoor trampoline parks have "minders" who observe customers and make sure the shenanigans don't get out-of-control. Public pools usually have lifeguards. Oh, there are accidental shootings, trampoline injuries, and drownings, but these outcomes are made far less common because these safeguards are available. In a recent post I discussed Michael Pollan's book How To Change Your Mind. Pollan discusses his long search for the right spirit guide for his psychedelic journey. He interviewed several before settling on one. He actually rejected one who'd made a too-flippant comment about safety. (Something to the tune of: "What would you have done if your panicking client had been experiencing a real heart attack?" "Oh, I'd just bury them will all the other bodies. We're already out in the middle of the woods.") The lesson here is that there are generally ancillary services that can make potentially dangerous products safer, and the market provides it. Remarkably, this is true even when the government is making a determined effort to stamp out that market.
The incredible thing about harm reduction is that many of these services are provided for free. In fact, people who run needle exchanges or safe injection facilities are volunteering their time and exposing themselves to significant legal risk. Many of these people have actually been arrested numerous times. Imagine how much more harm reduction service we'd see if providers were allowed to charge a positive price for them. Drug reformers sometimes stop short of endorsing full legalization because they are concerned about insidious behaviors of profit-maximizing businesses. I think they are simply not contemplating that a profit-maximizing business would sell useful things to its customers, like safety-improving services. They want to keep their customers alive, even if they're run by cartoonishly greedy businessmen.
I hope that all of the above is at least suggestive that we need to permit a legal market for drug commerce. It is simply untenable to keep using the government's police powers to stamp out drug markets. But I also want to argue against a form of de facto drug prohibition that has sprung up in recent years. State attorneys general have been suing the pharmaceutical companies that manufacture prescription opioids. Class action suits have also been filed. We need to think hard about what the legal safe harbor is for a company that wants to manufacture opioids or other potentially addictive drugs. That is, assuming we want someone to pick up the torch and manufacture clean, legal drugs for recreational users, how do we clear out the legal mine fields? How do we assure them that they won't be promptly sued in "wrongful death" suits? We would need to establish an ironclad legal principle that individual users of drugs are legally responsible for their own misuse. When large numbers of individuals foolishly harm themselves, there is an unfortunate tendency to find a single, large, deep-pocketed entity at the nexus and hold them "accountable." Indulging this kind of scapegoating would plunge us back into a black market with all the associated problems. A legal regime in which every drug manufacturer has a giant "SUE ME" sign painted on its back is not much better than one in which police are actively shutting them down. Somehow we need to hold this knee-jerk "Fuck big pharma!" impulse in check. Otherwise, we're back to the world of unclean drug labs in filthy trailers and wildly fluctuating dosages that lead to so many overdose deaths.
I can feel the eye-roll and exasperated groan coming, so let me try to preempt it. "The legal safe harbor", one might reply, "is 'Don't misrepresent the risks of your product and don't engage in aggressive marketing.' Just don't be deceptive and you're legally protected." The legal claim against Purdue Pharma, who manufactured Oxycontin, is that it understated the "addiction risk" of Oxy. Supposedly they were solely responsible for the rising opioid-related deaths. (Of course I dispute this narrative. See here, here, and here.) I would like to see a more thorough and numerate discussion of how this risk was "misrepresented". I just finished reading Sam Quinones' Dreamland for the second time. He repeatedly says that Purdue's marketers claimed that the addiction rate was "less than 1%." Supposedly this was based on a letter to the editor in the New England Journal of Medicine that was taken out of context (see here, citation 17 and the discussion of it). A lot of people are claiming that this letter was taken out of context, that the data wasn't generalizeable outside a clinical setting, etc. But the claim that "less than 1%" of opioid users become addicted holds up extremely well. A very large study (568,000 patients) found a total misuse rate of 0.6%; see Jeff Singer's write-up here. Addiction is much rarer still than mere misuse (By the way, misuse also means "medical use not as directed by a doctor, so it includes people who aren't using recreationally but rather are using left-over pills from a previous prescription for sudden pain. Not all of that 0.6% is recreational drug use.) Let's try to get a rough estimate of how often prescription opioids lead to addiction with government data. Looking at the SAMHSA data from 2015, there were about 85 million prescription opioid users in the past year (taking the 97.5 million admitting to "any use" and subtracting the 12.5 million admitting to "misuse", and keep in mind the caveat that misuse doesn't mean recreational use). There were about 2 million people who'd had a pain reliever use disorder within the past year. Now, a substantial majority of prescription opioid abusers never in fact had a prescription (78% according to this study), and the SAMHSA data itself suggests that only about 25% of opioid abusers get their pills from a doctor. Let's say a quarter of the 2 million people with a past year opioid use disorder had a legitimate prescription, about 0.5 million. Crudely dividing 0.5 million people with a recent opioid use disorder by 85 million legitimate prescriptions yields 0.59%. According to the government's own data, the "less than 1%" claim holds up pretty well. Or forget about the adjustment for addicts who never had a prescription and divide all 2 million people with a use disorder by 85 million legitimate prescriptions. This yields 2.3%, which is certainly higher than 1% but still in the ballpark. I stress that these are only the roughest of estimates, crudely dividing the addicted population by the total number of "exposed" individuals. I am happy to consider other ways of quantifying. (Does the case against Purdue and other opioid manufacturers rest on whether the "risk" is really less than 1%, perhaps slightly above 1% or perhaps closer to 2%? My general observation is that accusations against these companies are completely innumerate, anecdote-based, and not even interested in such questions. But I don't know how else you'd establish that someone "understated" a risk except by somehow quantifying it and comparing it to the original claim. The actual lawsuits against them don't even bother to make a numerate case for their claims.) Besides, prescription opioid abuse didn't seem to rise at all during the relevant period when the sheer tonnage of legal opioids was skyrocketing. It seems that Purdue was on solid ground. Even if the "less than 1%" figure hadn't held up as new studies were done, it was arguably the best information available at the time. They were selling an FDA-approved drug using FDA-approved marketing scripts. There needs to be some kind of safe harbor for such a company to operate, such that they can't be sued out of existence for subsequent events that weren't foreseeable at the time.
Suppose I'm wrong in my opinion of Purdue. Maybe their pharm reps strayed too far from their scripts, and corporate management did too little to reign them in. Or maybe you think prescription opioids are more harmful and addictive than I've implied. We still need to think about what a legal safe harbor looks like. If there is legitimate disagreement about the company's culpability, any ambiguity should generally be resolved in favor of the company. At the very least, any fines or penalties should be proportionate. As it is right now, Purdue and other opioid manufacturers are facing multi-billion dollar lawsuits and filing for bankruptcy. Anyone who is cheering this on with a "Yeah, fuck big pharma!" needs to think hard about where our drugs are supposed to come from. Suppose you think the companies that are being sued out of existence deserve what they're getting. But then remaining manufacturers see the writing on the wall and shutter their factories. Who is going to supply drugs to legitimate chronic pain patients? There are many people whose only escape from chronic pain is a high-dose prescription opioid. Suppose these lawsuits chase all existing manufacturers and suppliers out of the U.S. market. Would you start up a company? Would you be willing to shoulder the legal risk as a CEO, assuming you could get some capital to start up a company? Or if this is easier, imagine finding yourself in the CEO chair at an existing company after all other manufacturers have exited the market. How does it feel? Are you thinking, "Woo hoo! Zero competition!" Or is it more like, "I'm going to gently but promptly extract myself from this legal mine field before it ruins my life." How confident are you that you have a legal safe harbor as long as you don't deliberately engage in deceptive marketing? If you even have to pause to think about it, you are granting my point. Out-of-control lawsuits by ambulance chasers and state attorneys general need to be held in check somehow, or the legal market won't exist or won't be robust enough. And then we're back to a black market with all the problems that entails. The first firms that manufacture legal pharmaceutical grade heroin are going to be giant targets for wrongful death suits, because there will always be some non-zero number of overdose deaths. There will always be "consumer watchdog" agencies accusing drug manufacturers of being death merchants. There will always be some muckraking "investigative journalist" pointing out that there was some sort of problem or irregularity, and that the manufacturer should have done something about it, or should have done something sooner. There is always going to be some semi-credible accusation of impropriety, some marginal violation of regulations, a cynical internal memo that suggests "insiders knew about" some problem. Think clearly about how the legal system should deal with this problem, otherwise the implicit "judicial tax" on drug production will be ruinous. And we're back to a black market.
Here's another hypothetical. The law has changed, and we now have a legal market for recreational drugs. You own a firm that manufactures pharmaceutical grade heroin, supplying almost the entire U.S. market. There are very high taxes and strict regulations on your business. You're not allowed to do any kind of advertising. There is still a black market, which the legal market hasn't fully displaced. (Something similar has happened in the states that legalized cannabis. Some states have set the taxes so high that the black market is still competitive with the legal market. In fact, many states see something similar with cigarettes. High taxes can induce a black market even in the absence of outright prohibition.) A rash of overdoses happens. They appear to happen in geographic clusters. You gather enough data to establish that this was not caused by a bad batch of your stuff. It was most likely caused by a new player in the illicit supply chain. How do you communicate this to the public? Wouldn't any attempt to get the word out count as "advertising"? Do you have to rely on the good sense of officials at the FDA or CDC to get the word out? Do you agree that it would be a public service to give information to heroin addicts about which sources are safe and which ones are not? Are you confident that our public health bureaucracy would promptly figure this out? (Keep in mind that the FDA and CDC tend to be somewhat puritanical and slow to acknowledge trade-offs when it comes to the public's drug habits. They'd rather you not vape at all, so they were very slow to point out that vaping-related deaths were due to black market vape products and that legal vape products were not the culprit.) My message here isn't "become a libertarian and trust that markets always work." I'm shooting for a much more modest goal, and I promise I'm not trying to set some kind of trap or "Gotcha!" where you grant a libertarian point. Just think more clearly about what legal drug commerce looks like. Think about the trade-offs. More taxes and regulation means more of a role for a black market and a greater chance of drug poisonings and tainted supply chains. (Again, see the recent episode of Vitamin E acetate in illicit vape pens.) Are you contemplating this when proposing highly regulated legal markets with punitive taxation? You should. Think about what "no advertising" actually means in practice. Does it just mean you can't advertise on TV and billboards? Or does it mean you can't issue any kind of communication to the public? Even in cases like the above hypothetical, when accurate, promptly delivered information can save lives? If I think my factory really does produce a cleaner, safer version of a drug than the competitor, who am I allowed to tell? Suppose I want to run some kind of trial that shows my product is indeed safer or of higher quality in some dimension. Will I even bother to do this if I don't have any legal means of communicating my product's superiority to the public? Am I relying on a government agency to adjudicate these claims about the relative merits of competitors and promulgate information to the public? Why incur the expense of improving the product and testing said improvements if there's nothing in it for me? There are some hard questions here about what a government regulated market in actual practice would look like. Avoid any facile assumptions about how our bureaucracy would just figure things out and do the right thing. This is the same government that currently prosecutes the drug war, bear in mind. It seems unreasonable to believe that they'd suddenly turn into wise philosopher kings the moment we legalize drugs. Let's say an all-out drug war is "full prohibition," but a high-tax, high-regulation market is "partial prohibition." If we agree that full prohibition is a terrible idea with horrendous costs, we should be able to agree that partial prohibition incurs some fraction of those costs. We should give serious thought to how we can minimize those costs. One necessary condition is that businesses need a reasonably predictable legal environment to operate in. If they get sued out of existence as soon as public opinion turns against them, and if left-leaning drug reformers are shouting "Yeah, fuck big pharma!" at them, then we're once again back to a black market.
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