Left-Leaning Drug Reformers: What Exactly Does a Legal Drug Market Look Like?

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.

Drug Poisoning Update for 2018 Data

This is my annual update based on the CDC's numbers. I will mostly be updating the data and not trying to introduce any new points or topics. This will mostly be last year's post with the data updated through 2018. See also my updates through 2014, 2015, and 2016.

The CDC has finally released the mortality data for 2018, which can be found here. They were quite slow about it this year. I'm not sure what the problem was this time. The data for given year is usually released late the next year. The data for 2017 was released in late November 2018. This year it didn't get updated until late January or early February. I kept checking that page to see if the new data was out, and at one point (spanning a week or two) the page was formatted weirdly with random links strewn across the page, overlapping  other links, which is pretty unuseable. Anyway, it seems like the CDC has its stuff together now. The data is out and I've done my analysis with the latest year added. Below I will list some notable observations.

Total drug poisonings are down for the first time in decades. What's not fully appreciated by most observers is the fact that drug poisoning rates have been increasing exponentially since before the so-called "opioid epidemic" started. (Seriously, click the link to the Science paper and at least read the abstract and look at some of the charts. Very interesting stuff. Note that this is a statement about rates per population. Obviously in a population experiencing exponential growth, and exponential growth in the raw count of something isn't surprising. The rate per population is experiencing an exponential increase.) This pattern goes back to 1979. Drug poisoning deaths tripled from 1979 to 1996, the year that Oxycontin was released. Clearly the mix of drugs involved in these poisonings is changing over time, and we could define periods of relatively high rates of cocaine, heroin, or prescription opioid deaths. But these different regimes collapse into a single pattern of exponentially increasing death rates. An exponential fit to this data yields an R-squared of 0.99, an extremely tight fit. It's possible that 2018 is just a blip, but hopefully drug-related deaths have hit some kind of "maximum" and are either flattening or coming back down.

In 2018, there were 67,464 total drug poisoning deaths, down from 70,320 in 2017. As I point out every year when I do this update, this number by itself is not very useful for characterizing the opioid epidemic. If anyone leads with this number, be very skeptical of anything else they say. They are anchoring to the highest possible number they can find. They sometimes start with this high figure and then, if the piece is about the opioid epidemic, they might inform the reader that "about 2/3 of these are opioid-related." (German Lopez at Vox sometimes does this, I have noticed.) Even though an alert reader could take in this information and compute the approximate number of opioid deaths (the number that's actually relevant to the story), I still think this is misleading. If someone is writing a missive against pharmaceutical companies or criticizing doctors with loose prescription pads, giving their reader a figure that includes cocaine overdoses and intentional suicides is incredibly misleading. There is a tendency among journalists to sensationalize a story by inflating magnitudes, and that certainly happens a lot with stories about drug overdoses. Don't count on your audience to pull out a calculator and multiply the number on the page by 2/3. The number you printed on the page is what's going to stick in the reader's head. If that number includes things that have nothing to do with the thing you're actually writing about, you going to mislead all but the most alert news consumers.

Of the 67,464 drug poisonings, 59,078 were accidental, 4,734 were suicides, 3,536 were "undetermined intent", and 116 were "murder". (Keep in mind these figures include all drug poisonings, not just the ones that are opioid-related.) So a large majority of these deaths were accidental overdoses. I think when people talk about the "opioid epidemic" as a problem, they are talking about accidental overdoses and not suicides. It just seem ridiculous to blame a suicide, the intentional ending of one's own life, on a doctor's loose prescription pad or a pharmaceutical company's marketing practices. You can't claim that but for the opioids, that person wouldn't have killed himself. If pills hadn't been so readily available, that person would simply have chosen another means of committing suicide. On the other hand, it plausibly makes sense to worry about a growing population of drug users leading to a larger number of accidental overdoses. Someone who is trying to quantify the drug overdose problem should be using the 59,078 figure (plausibly with some fraction of the "undetermined intent" added back in), not the 67,464 figure. Like I've said before, there is a similar problem with people who try to inflate the amount of "gun violence" by counting suicides. It just doesn't make sense to blame guns or drugs or any other inanimate object on a suicide when, in a but for sense, the person would very likely have died anyway. Note also that some researchers think the number of drug-related suicides is under-counted. That is, the true number of accidental fatal poisonings may be lower than the 59,078 figure. For whatever reasons (family shame, a policy of defaulting to "accident" when intent is ambiguous, other explanations?), medical examiners don't like to label a death a suicide. The possibility of mislabeling taints the raw numbers, and any conclusions we'd like to draw from them should keep this reservation in mind.

Here are the accidental deaths by substance for the past 20 years. Click directly on the table to enlarge if you have trouble seeing it:

Here are the same numbers as a (very busy) chart:

One has to be very careful with these numbers. They are not additive, not mutually exclusive. Someone could have had each of these substances in their system when they died and thus be counted in each row of the table. Multi-drug poisonings are far more common than a single-substance overdose. Here is a table showing how substances tend to be found together in an overdose death:

You can see that there is a strong tendency for certain substances to go together. A death invovling benzodiazepines is very likely to also involve either prescription opioids or illicit heroin/fentanyl. Heroin/fentanyl deaths are so pervasive and users of these drugs are such prolific users of other substances that illicit heroin/fentanyl is driving up death totals of other substances. One can look at deaths that do or do not include heroin/fentanyl and see if the trends are different. And this can end up telling a different story than if you weren't cautious about this point. Here is a table of several substances (or categories of substances) inclusive and exclusive of heroin/fentanyl:

Let's make the trends more obvious by plotting them. Here are prescription opioid deaths (involving either methodone or "other opioids"). The blue line is trending upward (with a reversal in the latest year). But the red line has been trending down since 2011. One might incautiously state that "the prescription opioid problem has been getting worse", but it seems a lot more likely that this is the heroin problem driving up the numbers of prescription opioid deaths. Prescription opioid deaths excluding heroin/fentanly are trending downward. The timing is interesting, too. Abuse-resistant Oxycontin was introduced in 2010, and many have blamed this for the surge in heroin overdoses. It certainly seems likely that making Oxy harder to abuse will cause some users to substitute other opioids, like heroin and fentanyl. Clearly Oxycontin and other opioids are still around, but they are in some sense being supplanted by more dangerous substances.

Now take a look at benzodiazepines. Again, someone naive of the multilple-drug overdose issue would naively say that benzo-related deaths have been soaring (with a reversal in the latest year). But clearly this is another case of heroin/fentanyl driving up the totals. Benzodiazepine-related deaths flatlined for several years and then began coming down (if we incautiously take the last two years as a "trend").

Below is cocaine. Cocaine seems to be rising on its own, but then again a large majority of cocaine-related deaths also involve heroin or fentanyl.

Below is "psychostimulants with abuse potential", which includes methamphetamine and ADHD medications. This trendline does seem to have a life of its own even excluding heroin/fentanyl. Then again, the last few years have seen a very large increase in deaths involving both substances. One can say of "psychostimulants" (and probably to a lesser degree cocaine) that there is an upward-trending problem that is independent of the heroin phenomenon. I would have guessed there wasn't much overlap between the users of meth and heroin, and evidently that was true until quite recently:

That's all for now. I'll share more if I notice anything. I think my past years' updates have given a pretty good summary of the issues with this data (particularly last year's), so feel free to go there for any grand conclusions or policy implications. See here or here for a contrarian take on the "opioid epidemic," which, if you're a new reader, should explain why this kind of analysis is important and what kinds of claims other people are making about these trends in drug poisonings.

Interesting Study On the Origins of the Opioid Crisis

 The study is called Origins of the Opioid Crisis and Enduring Impacts. Here is a link to the working paper. The paper attempts to put the blame on Purdue's aggressive marketing of the drug. It references internal Purdue documents that describe its marketing strategy. There are five so-called "triplicate" states, in which multiple copies of a form had to be filled out whenever a doctor prescribed oxycodone, the active ingredient of OxyContin. (I believe any Schedule II narcotics required the form, not just Oxy). States with these laws included Illinois, California, New York, Texas, and Idaho. The paper shows that these states did indeed see less adoption of OxyContin and subsequently less overdose deaths as compared to other states. Here is the abstract:

Overdose deaths involving opioids have increased dramatically since the mid-1990s, leading to the worst drug overdose epidemic in U.S. history, but there is limited empirical evidence on the initial causes. In this paper, we examine the role of the 1996 introduction and marketing of OxyContin as a potential leading cause of the opioid crisis. We leverage cross-state variation in exposure to OxyContin’s introduction due to a state policy that substantially limited OxyContin’s early entry and marketing in select states. Recently-unsealed court documents involving Purdue Pharma show that state-based triplicate prescription programs posed a major obstacle to sales of OxyContin and suggest that less marketing was targeted to states with these programs. We find that OxyContin distribution was about 50% lower in “triplicate states” in the years after the launch. While triplicate states had higher rates of overdose deaths prior to 1996, this relationship flipped shortly after the launch and triplicate states saw substantially slower growth in overdose deaths, continuing even twenty years after OxyContin's introduction. Our results show that the introduction and marketing of OxyContin explain a substantial share of overdose deaths over the last two decades.

If you're curious about the details I recommend reading the paper, which is quite readable. Even if you're not familiar with the time series techniques it's using (I'm certainly not), it's easy enough to understand what they're doing and follow their graphs and tables. That being enough of a summary, here's why I think their basic story is wrong.

Opioid Abuse Didn't Increase Over Time

I've written about this before. The data simply don't show any increase in opioid abuse over the period of interest, when the number of prescription and tonnage of opioids prescribed increased dramatically. Here is Figure 5 from the paper:

It looks like the OxyContin abuse rate increases from 0.6 to 0.8% of the population in the non-triplicate states from 2004 to 2010 (before again coming back down to ~0.6). Okay. But the abuse rate for other pain relievers decreased from about 4.4 to 3.9% of the population in the same period. (2010 is the year that abuse-resistant OxyContin came on the market; it was harder to crush and thus override the "time release" nature of the pill. I believe this was also the year that people started noticing the increase in overdose deaths and "do something" policymaking started to push back on opioid prescribing practices.) In other words, the total percent of the population abusing opioids decreased over the period of interest. At best, you could call it a 33% increase in OxyContin abuse specifically for the non-triplicate states (that's 0.2 / 0.6). The triplicate states also increased by about 33%, though, going from 0.3% to 0.4%. Also, abuse rates for non-OxyContin opioid are higher in 2010 to 2012 for the triplicate states, who were supposedly spared the full brunt of the opioid epidemic? Adding the numbers together for 2012, it looks like total opioid abuse is about a 4.5% for triplicate states (I'm crudely eyeballing a 0.4% off the left graph and a 4.1% off the right) and 4.5% for non-triplicate states (0.6% plus 3.9%). It seems like an important causal link in their story is broken. 

This is worth pondering, because later in the paper they attempt to blame total drug overdose deaths on the triplicate/non-triplicate difference. They even acknowledge the 2010 introduction of abuse-resistant OxyContin and the subsequent increase in heroin and fentanyl deaths. Here is Figure 6:

You might think that "opioid overdose deaths" implies prescription opioid overdoses, because the paper is ostensibly about the role Purdue Pharma played in encouraging doctors to overprescribe. But their footnote 22 on page 14 implies that they are counting all opioids, including heroin and synthetic narcotics. (It's counting ICD-10 codes T40.0 - T40.4 and T40.6. T40.1 is heroin, T40.2 is "other opiods", the category that includes OxyContin, T40.3 is methadone, and T40.4 is "other synthetic narcotics". Deaths coded with this T40.4 probably mostly involved synthetic subscription opioids prior to 2010 or so. But these deaths started to spike around 2013 when heroin started to be laced with fentanyl at increasing rates, and these deaths would generally be coded T40.4.) In fairness, they do the analysis separately for T40.1, T40.2, and T40.4 in Figure A6. In my opinion it is inappropriate to lead with the analysis on all drug overdoses or even all opioid overdoses if the claim is that OxyContin specifically is the culprit. They can and should do the analysis using T40.2 deaths excluding T40.1 and T40.4. In other words, what does there analysis yield when looking at deaths involving prescription opioids but not involving heroin or illicit fentanyl? Take a look at Figure A6. They show that heroin and synthetic opioid (mostly fentanyl) deaths are higher in non-triplicate states, but the difference is not statistically significant. (For some reason, the confidence intervals are very wide.) If fentanyl and heroin overdoses can't be rightly blamed on Purdue's marketing, it seems they should exclude deaths involving these drugs from the analysis. And in reporting excess mortality rates in non-triplicate states, they should only be reporting "other opioid" (T40.2) mortality, not total drug-related mortality. From the conclusion:

Our estimates (using Table 3, Column 3) show that nontriplicate states would have experienced 4.49 fewer drug overdose deaths per 100,000 on average from 1996-2017 if they had been triplicate states and 3.04 fewer opioid overdose deaths per 100,000.

This is apparently on the basis of total drug overdoses (the 4.49 figure) and total opioid overdoses (the 3.04 figure). Given Figure A6, it seems inappropriate to use these totals. The fixation should be on T40.2 mortality. If they are going to report total drug or total opioid mortality, they should note that they are speculating beyond what their analysis shows. They are in effect blaming heroin and fentanyl overdose death rates on Purdue's marketing, even though their analysis shows the difference in these deaths (between triplicate and non-triplicate states) to be statistically insignificant. Here is Figure A6:

Back to the abuse rates. I think there is a contradiction here. The standard narrative, which this paper is implicitly endorsing, is that OxyContin prescriptions stoked the appetite for other opioids, created a new population of addicts, eventually leading to the increasing rates of heroin and fentanyl overdoses. But take another look at Figure 5. Why didn't abuse rates for non-OxyContin opioid increase? Why does this general appetite for opioids fail to show up in the abuse rates? I really wish that people who comment on the opioid crisis would take this more seriously, because it is a major flaw in their story. My best literal reading of the data is that opioid abuse flattened out by 2000 or so, even though prescriptions continued to skyrocket and drug poisoning deaths continued to shoot up over the 2000 to present period. (It is not clear what they did prior to 2000. Presumably they rose a little, but that's far from obvious.) Did the population of illicit opioid users saturate by 2000? Did Purdue's marketing, which started in 1996, only take four short years to reach this peak? Was the continuing upward trend in deaths a result of more intense use by this (supposedly new) class of drug users? I'm not picking on the authors of this paper here, but people need to be more specific with their timelines.

Including Suicides In the Analysis

Back to footnote 22. They are looking at deaths with ultimate cause of death codes X40-X44 (accidental drug poisonings), Y60-Y64 (suicides involving drugs), X85 (murder involving drugs), and Y10-Y14 (drug poisonings of undetermined intent). Suicides are a relatively small proportion of total drug deaths. But why include them at all? Are the authors implying that deaths involving suicide by opioid wouldn't have happened but for the increase in opioid prescribing? They should redo their analysis just on the accidental overdoses, X40-X44, because these are the only deaths that can be properly considered part of the opioid crisis in the sense that they wouldn't have happened anyway. This is a little odd, because they even have a section on "deaths of despair", Section 5.4.3. They analyze suicides and alcohol-related liver disease and find that triplicate and non-triplicate states don't have different trends in these mortality rates. I suspect redoing their analysis on accidental drug poisonings would make their triplicate vs. non-triplicate differences larger; this one change might strengthen their conclusion. 

Major Metropolitan Areas

Take another look at the list of "triplicate" states. New York, California, Illinois, and Texas include the four largest American cities: New York, Los Angeles, Chicago, and Houston. Population estimates of the major metropolitan areas for these cities implies an enormous share of the population concentrated around these few cities.  It's possible that the differences between triplicate and non-triplicate states are driven by a few major metropolitan areas. It's not to hard to imagine that four or five major cities might just be idiosyncratically different from the rest of the nation. It might be interesting for the authors to redo their analysis on, say Chicagoland vs. southern and central Illinois, or New York City versus a rural, mountainous part of New York state. (New York is a lot of unpopulated mountains and forests with a few big cities. Beautiful to drive through, by the way. Lots and lots of nothing until you reach a big city.) Notably, Idaho, the only state on the list that doesn't have a mega-metropolis, is something of an outlier in the triplicate group. See Figure A3 from the paper.

(Be careful with the metropolitan area link above; some of these span state lines. The Chicago metro area includes part of Indiana and Wisconsin, for example, and the New York metro area includes parts of New Jersey and Pennsylvania, if I'm reading it right. It might be interesting to see if the parts of the metro areas within the triplicate states are different from the parts outside it.)

The paper does try to control for this problem in a couple of ways. See section 5.4.1. They redo their analysis comparing triplicate states to the non-triplicate states with the largest populations and get similar results. They also do their analysis for urban vs. non-urban counties and get similar results. None of this rules out the possibility that the four or five largest cities are just idiosyncratically different from the rest of the nation in ways that have nothing to do with prescription monitoring laws, and that this difference is driving the results. 

Is Purdue's Marketing To Blame or Are Prescription Monitoring Laws To Blame?

There is something implausible about the story that Purdue's marketing is to blame. Purdue apparently decided not to market as aggressively in the triplicate states because it thought that doctors in those states would be less likely to prescribe OxyContin. If Purdue was right about this, then maybe it's actually the presence of the prescription monitoring law and not Purdue's marketing that caused the difference in OxyContin prescribing and overdose deaths.

The paper's story is that Purdue's marketing is to blame. This conclusion relies heavily on a Purdue internal memo describing its marketing strategy. See Figure A1, an image of the memo suggesting they avoid triplicate states. But they don't actually have any data on what Purdue spent on marketing. From the paper:

The statements made in these internal documents suggest that Purdue Pharma viewed triplicate programs as a substantial barrier to OxyContin prescribing and would initially target less marketing to triplicate states because of the lower expected returns. While we do not have data that breaks down Purdue Pharma’s initial marketing spending by state to confirm this directly, we will show that the triplicate states had among the lowest OxyContin adoption rates in the country.

Emphasis mine. 

The paper explicitly considers the possibility that it's the law itself and not Purdue's marketing strategy that caused the difference between triplicate and non-triplicate states. See Section 5.4.2. It tests to see if other prescription monitoring programs provide some level of protection against the opioid crisis. There were many electronic prescription drug monitoring programs, PDMPs, in various states. These should have affected prescribing behavior in a similar way to what triplicate laws, but the paper found no such effect. Their story is that triplicate laws required the actual filling out and storage of a physical paper form by the doctor, a hassle which made the cost more burdensome and the potential scrutiny more salient in the minds of the doctors. The paper also discusses two former-triplicate states that had repealed their triplicate laws in 1994 (prior to the 1996 introduction of OxyContin): Indiana and Michigan. These states should have had a similar prescribing culture to the other triplicate states given the recency of the law change, but the paper found no apparent effect of this prescribing culture on subsequent mortality. From the paper: 

[W]e compare the five triplicate states to the two former triplicate states that had discontinued their programs prior to 1996. In both tests, we find that the five triplicate states have uniquely low exposure to OxyContin and drug overdose rate growth even when compared to states with more comparable prescribing cultures. This evidence supports the role of Purdue Pharma’s marketing rather than cultural factors and entrenched prescribing habits in explaining OxyContin exposure and mortality patterns.

Emphasis mine. This is really quite stunning. They are making Purdue's marketing uniquely responsible for the observed differences between triplicate and non-triplicate states, independent of the laws that Purdue was actually concerned about. Is the take-away here that Purdue might as well have marketed in Texas, Illinois, California, New York, and Idaho? Their marketing instincts were wrong? Their marketing was so powerful and persuasive that they would have successfully convinced doctors to prescribe in those states, too, despite triplicate laws? If I'm taking their results seriously, it seems that's what I'd have to conclude.

Consider some counterfactuals. What if all states had had triplicate laws in 1996? Would Purdue have just marketed everywhere? It seems implausible that they would have simply declined to market anywhere, or marketed less aggressively everywhere, unless the triplicate laws themselves were driving prescribing behavior. Suppose half of all states had had triplicate laws. Does that mean Purdue would have marketed less aggressively in half of the states? Or would they have researched the impact of their marketing more thoroughly and concluded (as the paper apparently does) that marketing trumps the effects of a prescription monitoring law? It's difficult to come up with a reasonable policy implication, even one that we could hypothetically enact in 1996 to prevent the expansion of OxyContin.

Is the conclusion that pharmaceutical companies shouldn't be allowed to market their drugs at all? Keep in mind that "marketing" is communication between doctors and pharmaceutical companies, usually through pharmaceutical reps who may or may not have a scientific background. It seems like this communication has to be allowed to take place through some channel or another, so I don't see any reasonable way to "ban marketing" by pharmaceutical companies. Doctors are generally more scientifically sophisticated than the reps, and they know these people are trying to sell something. They know that the facts they're being presented with are a biased sample of all facts available, and they are capable of checking their veracity. It's harder than you might think to fool people. At any rate, Purdue was correctly informing doctors that opioids are less addictive than everyone assumed. I'd like to see Purdue's critics be more precise about what exactly their deception was. Did they say the risk of addiction was 1% but really it's 2%? Did Purdue claim a rate of addiction that seemed correct by the evidence available at the time but turned out subsequently to be higher after two decades of expanded opioid access? I'd like to see the critics acknowledge that addiction rates were and are quite low by any standard. 

Market Share

It's not discussed in the paper, but it's notable that Purdue's share of the opioid market was actually pretty small. Here's an image lifted from an FT piece titled "Purdue Pharma's One-Two Punch." 

Interestingly, that article is something of a hit piece on Purdue, "exposing" that Rhodes Pharma is a subsidiary owned by the Sackler family. But it's obvious from the chart that even Rhodes plus Purdue's share wouldn't even make the Sacklers the largest single entity. Eye-balling the chart, it looks like they have 6% or 7% of the market. (It's interesting when an author gives you enough information to conclude that their story is fundamentally wrong.) 

In other words, Purdue's marketing was so successful that it created a market several times larger than their actual market share! This is quite surprising to say the least. A result can be surprising while still being true, but it's worth taking a moment to answer some obvious questions. Why couldn't Purdue capitalize more effectively on the market it created? I realize that generics eventually came on the market, and generics tend to be cheaper and thus more popular. Still, it's shocking that they would end up with only about 7% of the market if their marketing was so influential. Do we really suppose that these other companies are all just copy-cats following Purdue's lead? That nobody else would have hit upon the idea of a time-release opioid pill during an era when doctors' attitudes about opioids and pain management were shifting? Does it make any sense to hold Purdue uniquely responsible? Does it make sense to say that, in a but-for sense, many of these overdose deaths wouldn't have happened if not for Purdue's marketing campaign? A lot of implausible claims are leaning on a few sentences lifted from some internal documents from Purdue.

This was an interesting paper and it presents some interesting new facts, but I don't think its basic story is right. I think the most damning point is the flat opioid abuse rates, and this alone ruins their story. But there were some other (admittedly subtle) problems with their analysis and some things that just didn't make any sense. 

Dear Elected Representative

Dear Elected Representative,

Winning a popularity contest does not entitle you to violate our basic human rights. Nor does it imbue you with the expertise necessary to reshape society, nor the wisdom necessary to pick the ideal society from the infinite variety of possibilities.

Your responsibility as a policymaker is very much more circumscribed than what many of your colleagues presume. Your rightful authority extends only to those matters that require society-wide consensus. All of society gets the benefit from pollution mitigation, so it makes some sense for government to help set guidelines and limitations on what kind of pollution we can emit, be it from our personal automobiles or industrial processes that produce the consumer goods we buy. To the extent that crime control is a public good, it makes sense for you to make decision regarding the allocation of public funds to policing and incarceration. To the extent that it is infeasible for us to individually undertake public works, such as building dams and canals and public roads, it makes sense for you to allocate public funds and establish easements across private property and compensate property owners for the confiscation of their property. If judicial rulings are confusing or conflicting, the legislature is responsible for clarifying the law. If some provision needs to be made for national defense, the amount of public spending on that is within your purview, and so is the appropriate allocation to various branches of military, along with decisions about the kind of personnel and technology needed for adequate defense.

This is a fairly narrow range of responsibilities compared to what government currently does. You and your colleagues have gone far beyond your mandate. All of the legitimate functions of government mentioned above, and some that aren't explicitly mentioned, are in the class of "public goods" or "externalities". They entail situations in which the rational choice for a private individual is irrational from the point of view of society as a whole. We might all shirk on chipping in for national defense, even though we all want the benefit. We might like to reserve the option to rob our neighbors, even though we all benefit from general prohibitions on crime and enforcement mechanisms. We might like to reserve the right to be a curmudgeonly hold-out against an annoying confiscations of our property, even though we enjoy the benefits of canals and roads secured by involuntary easements across private property. We might want to pollute more than what is socially optimal, given that we individually get the benefits of polluting while bearing almost none of the costs, which are diluted across society as a whole.

You have a mandate to clarify the law where judicial decisions are confusing or contradictory. You do not have a mandate to create new law out of whole cloth. Consider a labor dispute. Suppose one judge rules that employers may dock their workers pay for perceived losses in productivity, while another judge in the same district rules that such losses are a "cost of doing business" that the employer must simply absorb. Employers and employees alike will be clamoring for some kind of clarity so the law of the land is predictable and reliable for normal people. You are within your rights to settle such conflicting rulings. You are not within your rights to repeal long-standing common law, nor are you permitted to bend society toward your imagined ideal. Legislation should not be used to ban long-standing commercial practices between willing participants. If borrowers patronize lending services where the interest charged is "too high" (in your estimation), the appropriate response for you is to recognize your own failure to understand consumer behavior. It is not appropriate for you to bend consumer behavior until it fits with your preconceived vision. If workers accept wages that are below what you consider sufficient or dignified, that doesn't mean the workers are foolish or the employers are greedy. It means you've failed to understand why someone else's behavior in the marketplace is rational from their point of view. Any mental impressions you hold about the marketplace are a commentary about you, not about the world. The failure of the marketplace to adhere to your idealized vision is a failure of your imagination, not a failure of reality itself.

Human beings have rights. You have a sacred duty to never abridge those rights, even though you wield power and will often have the opportunity to use it beyond your true mandate. At the most basic level, we have bodily integrity. Personal autonomy. Self-ownership. We have sovereignty over our bodies, meaning others cannot initiate violence against us without an overwhelmingly compelling reason. Sometimes people do things with their bodies that other people don't approve of, but they do not require our permission. Left to their own devices, people will eat or drink to excess. Smoke tobacco. Take psychoactive drugs that most of society doesn't approve of. Engage in prostitution, buyers and sellers. Sell their organs. Jump out of airplanes, ski, ride horses, climb dangerous mountains. You are permitted to object. You are permitted to write polemics condemning the behavior as immoral, even to the point of being an unreasonable prude. But you are not permitted to use the power of government to "fix" the problem, to forcibly straighten the crooked timber you see before you. People in your position are often tempted to "do something." They are embarrassed by public health statistics for their region or for the nation as a whole, so they want to reduce the amount of obesity or alcoholism or some other problem for which we compare unfavorably to some other nation. But it is not the proper role of government to eliminate vices, so long as those vices are freely chosen and harming only the persons engaging in them. It is not our duty as citizens to present a pleasing tableau to the world or to our rulers; I have no obligation to conquer my vices and addictions so that the public health statistics look better to observers. If people own their bodies, the state is not permitted to interfere with their decisions to indulge vices. If the state does interfere, it is literally claiming a controlling ownership stake in its citizens bodies. If this talk of rights and self-ownership is too mushy and abstract for you, you should remember that the practical consequences of vice prohibition (particularly drug prohibition) have been terrible: black market violence, massive amounts of unnecessary incarceration, tainted drugs leading to unnecessary overdoses, communicable diseases among intravenous drug users, which often spread beyond that population. It has been truly awful, and it is entirely the fault of social engineers who wished to "do something." They made an existing problem worse, and they barely had any effect on the overall amount of drug use.

Human beings also have the right to freely transact with each other under any mutually agreeable terms, whether money changes hands or not. As long as they are not significantly harming third parties who aren't involved in the transaction, the transacting parties should be allowed to exchange under any terms they agree to. People have an intrinsic right to engage in verbal, commercial, and sexual intercourse without requiring the consent of society at large. Deviations from this principle have historically included prohibitions on interracial and same-sex marriage, penalties against premarital sex, anti-sodomy laws, the jailing of anti-war activists during World War I, and laws preventing free commerce between whites and blacks during the Jim Crow era, to name just a few. It's an ugly history, even if we constrain ourselves to the United States in the 20th century. I think we've mostly crossed that bride together, and we're not going back. Using the machinery of the state to enforce anti-sodomy laws or premarital sex prohibitions seems beyond prudish. If someone actually proposed assembling a police force to harass such "violators", they would seem downright barbaric. (Bear in mind that anti-sodomy task forces used to exist, and police harassment of gay clubs was somewhat routine.) The era of using the state's monopoly on violence to enforce "traditional" sexual norms is over, thank goodness. (At the same time, the police have finally started taking sex crimes, meaning actual crimes with actual victims, seriously. Be clear about the distinction between what is consensual and what is not. Some crafty polemicists try to blur the line or muddy the waters with borderline cases, but most of us are wise to those tricks.)

Commercial transactions and non-commercial forms of human intercourse are not made of different stuff. Nothing special happens when money changes hands. We're free to have interchanges involving speech, be it a private conversation or a rousing speech delivered in a crowded lecture hall. We're also free to set our living arrangements with other adults who agree to the terms. Sometimes this means traditional marriage, sometimes it means a non-traditional romantic relationship, and other times it may simply mean picking a roommate or carrying on a friendship. Almost everyone acknowledges the right to interact with people on such non-commercial terms. It's not controversial that I am free to invite anyone I wish into my home, serve them food, converse with them, invite them to any room in my home, etc. So long as I am not keeping them against their will, and so long as they aren't coming in uninvited, there is essentially no limit to what people can do in their personal lives on their personal property. We should acknowledge that there is nothing inherently corrupting about the exchange of money. It doesn't facilitate exploitation any more than these other forms of non-commercial intercourse do. One can easily imagine one spouse taking advantage of the other, or one roommate shirking and taking advantage of his roommates generosity. Non-commercial relationships can be far more exploitative and far less pleasant than commercial ones, and yet we are free to engage in these transactions with essentially no government regulation at all (until someone actually commits a traditional crime of violence or a crime against property). What you need to keep in mind is that our rights do not cease to exist the moment one of us pays money to the other. You as a policymaker have no more right to regulate commerce than you do to police sexual behavior or platonic friendships or any other aspects of someone's lifestyle. If anyone can prepare and serve a meal, fix a leaky faucet, or have sex for free, they should be able to do these same acts for money, and should be free to do so without interference from you. Even if this talk of "rights" falls on deaf ears, there are practical reasons for the state to not regulate commerce.

Outside commentators may scold one or the other party for being too stingy. They may idly lament that one party gets a raw deal. They may ruminate from their armchair about the social structures or power differentials that lead to injustice in the marketplace. But it must always be held in mind that these parties are transacting willingly. They are often making the same "unfair" transactions repeatedly, implying that 1) it is a beneficial transaction for the "oppressed" party and 2) the "oppressor" party's scheme is apparently not profitable enough to attract competition, which would certainly make the terms more favorable to the oppressed party. The sad reality is often that the "crappy job" is the best possible work given the resources we have available, and any deviation from the existing arrangement would make both worker and employer worse off. The worker's output is probably not worth much more than what they are actually paid for it, and the employer is probably not reaping a huge profit. If you are imagining that the worker creates a large pile of wealth and the employer arbitrarily captures most of it, your model of reality is mistaken. There simply is not much of a surplus to divide up. Attempts to make the transaction more favorable to the worker will quickly reduce the employer's share of the surplus to zero, rendering the transaction pointless from the employer's point of view.

Some low-skilled workers are willing to accept low wages that you may see as undignified. Other workers are willing to work for employers who don't provide health insurance or other benefits. Such workers would rather take their compensation in the form of take-home pay. Others workers might be willing to work dangerous jobs or work long hours without any "overtime" provision. Some consumers are willing to buy health insurance that only covers rare, catastrophic expenses; they will forego coverage of routine medical expenses (routine check-ups, most medications, birth control, Viagra, etc.). They understand that it's not so hard to pay for these things out-of pocket, and they can be financed by the money saved on premiums by purchasing a less "generous" insurance plan. It is not your right to overrule their preferences as workers or as consumers. You might imagine that you can make the terms of these exchanges more favorable to one party (typically whichever party happens to be a more sympathetic interest group to the voting public), but this is economically implausible. You aren't capable of demanding that employers "give" their employees benefits. Those benefits ultimately come out of the workers' paychecks, so there is no net transfer from capitalist to worker. If you successfully compel employers to give their employees $5,000 worth of benefits, then those employees' take-home pay will fall by $5,000, at least in an in-the-long-run-and-on-average sense. Someone who was perfectly happy with $50,000 a year is now (after the passage of a mandate) getting $45,000 plus benefits that cost $5,000. We can presume they are worse off, because they always had the option of spending $5,000 of their own money on those benefits. Mandates that compel employers to provide benefits make employees worse off. They reduce the options available to employees. If your mental model of such mandates is that these are transfers from the capitalist class to the working class, that model is emphatically wrong. Likewise for mandates that health insurance must cover routine medical expenses. Insurance companies are smart, and they price these provisions into their contracts. Their actuaries estimate the expected future cost of those mandatory benefits, and insurance premiums rise by at least that much. People easily fall prey to the fallacy of composition here, thinking that "If government forced my insurer to pay for this procedure, that would make me better off at the expense of the insurer." That might be true of a one-off that was unlikely to ever happen again, but a policy of mandating predictable "transfers" from insurer to insured nets out to no transfer at all.

Some observers imagine the workers and consumers in conflict with large, powerful businesses, and government standing as a bulwark against the corporations. Once again, this is the wrong model. In the cases mentioned in the above paragraph, attempts to intervene yield no benefit. In fact they often cause tremendous harm. And these examples are quite typical of government intervention more generally. Even if you don't acknowledge our right to transact freely (perhaps because you see society as an ant colony that should be optimized for its production or display value), you should bear in mind these very practical reasons not to interfere.

Let me dispel some other illusions. If you imagine that government is "the helm" from which society takes its marching orders, your model of reality is wrong. If the legislature and executive functions of government were to cease completely, commerce would continue. Food and goods would find their way to communities, production would continue. Obviously we are not a centrally planned economy. Millions of individuals acting independent of any mandate from the government, following price signals in a free market, are what make the world go round. In no meaningful sense is the government in charge of this process. It is no in any sense "running" society.

Another illusion is the "mandate from the will of the people." Anyone who has won an election is likely to claim such a mandate. People like to wax poetic about "democracy", the rule by majority. Politicians often use it as an excuse to do all manner of horrible things. Let me simply point out that nobody takes this argument seriously. When the law is wrong but popular, reformers rightly argue that the law is wrong! They do not usually say that imposing the wrong set of laws is the right thing to do until we change enough minds. Popular opinion can be wrong, and everybody knows it. Moreover, when these same people get their way via undemocratic means, they often cheer. Anti-sodomy laws were ended in 2003 and gay marriage was instituted in 2015, both by the action of the Supreme Court. Brown vs. the Board of Education was a court decision, not a popular referendum. Almost nobody who favors these changes laments that the majority didn't get its way. Democracy is great as a check against tyranny, and it is to some degree necessary for those decisions that are inherently collective, like pollution control or national defense. But it was never meant to be a cudgel by which the majority can oppress unpopular minority groups. It isn't necessary to subject private decisions, such as the contents of someone's labor or insurance contract or the conduct in their bedroom, to a popular referendum.

Let's dispose of this "will of the people" nonsense. If you are like most candidates, you almost certainly do not acquire the consent of your constituents for all of your legislative actions. You probably won an election by being the most plain-vanilla, unobjectionable, milquetoast candidate on the ballot. Perhaps you had name recognition on your side, a powerful weapon when your job is to collect votes from mostly inattentive, apathetic, ignorant voters. Most of your constituents couldn't name you, and the ones who could wouldn't be able to describe your voting record in any detail. Likely you were the incumbent, as most winners of elections are. Perhaps you were the "R" candidate in a predominantly "R" voting district. Perhaps you ran unopposed. Do you spell out your policy positions in glorious detail, such that your constituents can actually evaluate you as a policymaker? Or do you keep them close to the vest so you have enough flexibility to switch when the political winds blow a different direction? (My state representative once gave me a cravenly non-committal answer to a question about her position on marijuana legalization and failed to clarify after a follow up question. I presume this is a routine practice. Clearly many politicians were staking out "I might change my mind" positions on gay marriage and marijuana legalization in recent years rather than committing to a position.) You did not acquire a mandate from the voters, certainly not one that permits you to trample our rights. At best, you won a popularity contest. And that's assuming the election was meaningfully contested.

You are constrained by the various constitutions that enumerate and restrict the powers of government. This includes the Constitution of the United States of America and whatever state or local constitution applies to your office. Clever legal theories invented by politicians or government lawyers have sometimes won over pliant judges and allowed governments to act well beyond their mandate. This is wrong. The plain language of the constitution, as it would be understood by us ignorant plebs not of the legal tribe, is the law of the land, even if the government refuses to follow it. To have a rule of law that requires interpretation by scholars who specialize in constitutional arguments is to have no rule of law at all. A true rule of law only exists if we ignorant commoners can understand what the law actually is. We have to be able to know ahead of time what is or isn't allowed. While the plain language of the Constitution is quite legible, the obscure, tortuous legal arguments that currently govern us are often opaque. The federal government often plays "six degrees of interstate commerce" to grant itself new powers, powers clearly not enumerated in the constitution. The various prohibitions on government action spelled out in the Bill of Rights are also binding. In case it wasn't clear enough that the Constitution only grants government the explicitly enumerated powers, the founders reiterated a list of no-nos. "Congress shall make no law..." is pretty damn clear. You will often have the opportunity to flout the Constitution, and you will likely get away with it. You are still wrong for doing so. If you find that the Constitution is too constraining, there is a process for amending it. Please follow it. If you discover that the process is unwieldy and that you can't muster the popular or political support to pass your amendment, that means the constitution is functioning as it should, as a check against government overreach. That is a feature, not a bug.

To be clear, this is not an anarchist manifesto. Nothing said above rules out a minimalist government. I did explicitly discuss the legitimate roles of government above. There are also topics I haven't touched on here, such as the welfare state and appropriate methods of taxation. As far as I'm concerned, a minimal welfare state for the truly needy can be a legitimate function of government, assuming that the problem isn't made worse (e.g. high implicit marginal tax rates leading to low employment for recipients) and assuming that private charity is not up to the task. Government obviously requires some form of taxation to fund its projects. What is not appropriate is for government to restructure society to conform to someone's vision. These rationales for government action should not be used as a wedge to open the door for outright social engineering. There is a big difference between, on the one hand, using taxation to fund a minimal welfare state and on the other hand using a taxation-and-transfer scheme to flatten society and make the "income distribution" more aesthetically pleasing. I'll allow that the former is a rational function of government, but the latter is not.

I put this all down now, because I see your colleagues at all levels of government acting well beyond their mandate on a daily basis. They sometimes need an explicit reminder of what their actual job is, because they've apparently all forgotten. Here is that reminder.

FDA Approval Process For Government Programs

I’m trying to imagine what it would be like if government policy had to pass and FDA-like bureaucracy, being tested for “efficacy and safety.” Please demonstrate to the satisfaction of the panel that a tweak to the minimum wage (or *any* minimum wage, or any restriction at all on labor contracts for that matter), or a new regulation or subsidy on health care, or a change to entitlement programs, will be “effective” in the sense of achieving its intended benefits and “safe” in the sense of having acceptable costs and side-effects. This would be a much smaller government, one that is much more constrained to doing *only* those things that are legitimate functions of government.  Some of these policies are *literally* medicine. Health care policy is explicitly aimed at improving health measures in some way. In this upside-down world, this kind of medicine is shoved down your throat against your will *without* any kind of vetting procedure, while you are forbidden from taking medicine (pharmaceuticals and other chemical substances) that you actually want to take unless it passes muster with the FDA. This is backwards. The standard for medicine that we’re compelled to take against our will should be higher, not lower.

In fact, forget for a moment about the actual testing for safety and efficacy. Suppose someone proposing one of these social engineering experiments (a.k.a. “legislation”) had to get his proposal past and ethics panel, just as researchers conducting experiments on animals and humans need to do. “Suspected or likely side effects of your proposal include involuntary job loss, reduction of total productivity…benefits are highly speculative. I’m sorry, it would simply be unconscionable to test this ‘medicine’ on unwilling subjects. Denied.” I could understand someone arguing that we just gotta have pollution control, or we just gotta have military defense. Having no policy at all regarding these problems may be just as unethical as having some slightly misguided policy, so there's no moral trump card with which to simply halt all government activity. But most of what the government does is some kind of sinister social engineering, attempting to steer us toward someone's vision of a great society and away from the paths we would choose for ourselves. There are entire categories of government meddling and regulation that don't need to exist at all, most of which almost certainly wouldn't pass the hypothetical ethics panel. 

When Does Pharmacology "Cause" Behavior?

When is it meaningful to speak of the pharmacology of a drug causing a person's behavior? I think that this concept has been overdone, particularly with respect to the "opioid epidemic" narrative.

Start with the easy cases, where we can definitely attribute the response to a drug to its pharmacology. Some drugs clearly reduce a person's capacity, mental and physical. Alcohol slows your reaction time and can even make you fall asleep at the wheel. Opioids can likewise make someone drowsy or unresponsive. Obviously they are used as general anesthetics for surgery. A dose much lower than that used in surgery can have a milder but still noticeable effect. Someone in such a state of diminished capacity might be prone to accidents, but I don't want to call this a "behavior." A drunk driver and a sober driver are both trying to get to their destination safely, it's just that the drunk is much worse at it. The ability of certain drugs to incapacitate their users is "pure pharmacology". That's not what I want to discuss here. I'm trying to get to behaviors, deliberate actions, that are in some sense caused by drugs.

Sometimes people who drink alcohol are more likely to get into fights or behave violently toward family members. The same is true of people who use certain stimulants. Someone in a very excitable state may be on a hair-trigger and might throw a punch in a situation that their sober self would handle more calmly. I think it makes sense to label this kind of thing "pharmacologically induced violence." It's not mere diminished capacity as described in the above paragraph. It's not that the drunk was reaching for his beer, stumbled, and plowed his knuckles into someone's cheek. Starting a fight is different from stumbling on the sidewalk or crashing your car. It's a behavior. There is an underlying intent. It's a choice, and the drunk is simply worse at making choices than his sober self.

There are certain drugs that can drive people into extremely excitable states. Synthetic cannabis (sometimes called Spice or K2) can sometimes make users extremely irrational. A paramedic friend of mine once described to me an episode in which he had to handle such a person, who was clearly out of his mind. This kid smoked too much Spice and was kicking and flailing at the first responders who were trying to help him. Some psychoactive substances, which are sold in head shops as "bath salts",  have a similar reputation for driving people insane. PCP has a mostly unearned reputation for causing similar outbursts; Jacob Sullum corrects the record on PCP in his book Saying Yes. Some of these stories are overblown or apocryphal. The man who famously ate someone's face off was not high on bath salts, even though it was initially reported that he was. (Why is it that the initial report is always 100 times louder than the retraction?) People occasionally do shocking, crazy things, and for whatever reason "He must have been on drugs" always seems like a plausible explanation. Sometimes first responders or medical personnel make incautious statements to the media before actually double-checking the likely causes of someone's outburst, and media outlets dutifully repeat the message to a receptive public. The public loves a good drug-panic story, whether it happens to be true or not. Exaggerated or not, there are certainly cases where drug-induced psychosis is the best explanation for someone's shocking behavior. It makes sense to talk about the pharmacology of the drugs causing someone to have an irrational outburst (shouting obscenities are random passers-by, starting a fight, etc.). The drug can legitimately be considered the cause of the behavior in a but-for sense.

What about opioid addiction and overdose? More to the point, what about legitimate medical prescriptions leading to an opioid addiction? Here I think it's an incorrect framing to posit the drugs as the cause of the behavior. It is true that if someone is on opioids for an extended period of time, they will probably develop a physical dependence on opioids. They will have developed some degree of tolerance, and they will experience withdrawal symptoms when they stop taking them. The physical symptoms can be quite unpleasant. But physical dependence is quite distinct from addiction. Physical dependence is not a behavior. It will not by itself cause a person to seek opioids on the black market. Someone who takes a long-term course of opioids and is then tapered off by his doctor will not be driven to addiction if he follows the doctor's directions. Addiction is what happens when someone deliberately and repeatedly deviates from "use as directed." It makes little sense to speak of prescriptions "turning patients into addicts". Even if we posit that some people get a mildly pleasant buzz from taking their pills regularly, it's just not the case that this pleasure causes them to escalate their dose or to continue to seek opioids after their prescription runs out. There is nothing inherent to the pharmacology of the opioids that causes these behaviors. Indeed, the vast majority of opioids users don't have any kind of problem going off them when their course ends. Some sloppy writers and commentators have tried to cast this as a cosmic game of dice or Russian Roulette in which patients are subjected to a random risk, as if every ten thousandth pill contained the "addiction virus." It's much more useful to think of addiction as a series of deliberate behaviors that eventually become hard to control.

(I once heard Doctor Jeff Singer, someone who I correspond with occasionally, describe a patient's hesitation about opioids. The patient's concern went something like, "I want to be careful about this, because last time I was prescribed opioids I got addicted and experienced nasty withdrawal symptoms." Jeff explained that the patient was emphatically not an addict. He had experienced physical dependence, but not addiction. In fact the patient was quite deliberately avoiding these substances because he'd had such an adverse reaction to the withdrawal. Addiction, by contrast, is the compulsive, continued use of a substance despite the harm its causing you. I thought this was a nice illustration of the difference between addiction and physical dependence.)

Let's grant that physical dependence can be so extreme and the withdrawal symptoms so severe in some opioid patients that continued use is irresistible. Such a person continues to use after their prescription is gone, purchasing pills or even heroin on the black market. It's a stretch to say that the pharmacology of opioids led to their addiction. As difficult as withdrawal is, continued use is a very deliberately chosen path. But forget that for a moment. Let's grant for the sake of argument that this is an instance of pharmacologically induced behavior. It might make sense to blame their use of black market pills or even  heroin on the body's physiological response to an opioid prescription. Certainly the continued use of opioids leads to nasty withdrawal symptoms, and opioids purchased on the black market relieve those symptoms. But take a closer look at what's actually killing these people. "Drug overdose" is a misnomer, a short-hand term that misstates the true cause of death. The CDC actually refers to these deaths as "drug poisonings." The term "overdose" seems to imply that the decedent took too large a dose of a single substance, but that's the exception rather than the rule. Most drug-related deaths are multi-drug poisonings. See where I've written about this previously, here and here and here for example. Let's dispel this notion of a hapless addict popping pill after pill until he just keels over. This just doesn't match the reality. It isn't the case that it's just "so good" that the addict needs another and another until he's taken too much. A much more likely scenario is that someone is taking opioids with benzodiazepines (~1/3 of prescription opioid related deaths involve this combination) or alcohol (~14%) or cocaine (~12%). Maybe some of the benzo plus opioid poisonings are accidental mixtures of medications, but it appears that many opioid users take benzos because it potentiates the high. Presumably many or most of them know it's dangerous but they do it anyway. Even granting the premise that the pharmacology of prescription opioids causes continued opioid use, it's far from clear that it should cause the patient to mix medications or start using cocaine. It just makes a lot more sense to model this behavior as deliberate thrill-seeking than as "I lost a game of pharmacological roulette and it turned me into an addict."

I think it's worth taking a serious look at the risks of prescribing opioids for pain, acute or chronic. Some people are fast or slow metabolizers, depending on whether they have zero, one, or two copies of a certain gene. Some of these people really are effectively playing a game of pharmacological roulette, as in they might have a fatal reaction to a dose that's benign for an average person. And we certainly want to warn people about withdrawal symptoms so they can make an informed decision. Even granting all that, any talk about the "risk of addiction" is badly missing the mark.

By the way, if there is a "risk of addiction" that roughly corresponds to the ratio of addicts to opioid prescriptions, apparently that risk has been coming down on a per-prescription or per-patient basis. Rates of opioid misuse and addiction have been basically flat or even falling over a time period when prescriptions were skyrocketing. This makes little sense if you think that there is some disembodied probability, the "risk of addiction", faced by all opioid patients. But it makes perfect sense if we think there's a more or less fixed population of extreme risk-takers, and they happen to be using whatever drugs are most available. In this light, I find it just atrocious that state governments are going after Purdue and other opioid manufacturers. We need to purge this notion that addiction is something that is done to you, that passively happens to you as you dutifully take your meds. People don't simply sleep-walk into addiction when taking their medication as directed, and there is nothing inherent in the drugs pharmacology that makes them deviate from "use as directed." We need to debunk this absurd idea that smooth, sophisticated pharmaceutical firms just had their way with us, even getting past the doctors who stood as gate-keepers.

I hope it's clear that this isn't mere hair splitting about what to name something. There are some very important implications, political, moral, and legal. If the pharmaceutical companies aren't culpable (as I think they are not), then they shouldn't be sued for selling opioids. They should be able to continue selling to their very willing buyers, some of whom commit suicide when they are involuntarily tapered. If the addicts are deliberately engaging in risky behaviors, we should not be restricting opioid prescriptions for their sake. Restrictions make it harder for desperate pain patients to acquire opioids. It seems to me that the moral weight of a single pain sufferer who is involuntarily cut off from opioids ought to outweigh the voluntarily undertaken self-harm of many dozens or even hundreds of addicts. Tens of millions of Americans suffer from chronic pain at any given moment (I've seen estimates as high as 1 in 3 that will eventually suffer from it), compared to less than one percent of the population being addicted to pain pills (having a "use disorder within the past year" anyway). It would be hard to make this calculus work out in favor of restricting access. Even supposing some utilitarian calculation gave the nod to further restricting opioid prescriptions, most of us are not amoral utilitarians. People rightly apply a fairness standard to public policy. "You can't have opioids, because, while I'm quite sure you won't have any problems, there is some small chance that Jonny over there will steal them from you and abuse them." This seems terribly unfair. It makes sense to worry about who is harmed or helped and to give consideration to whether that harm is self-imposed or not.

If this narrative of pharmaceutical companies involuntarily converting normal patients into addicts is wrong (and I insist it is), then basically all the policy responses and "public service announcements" by our institutions of public health have been deeply misguided. Sure, some individuals have impulse control problems. But we're not zombies. We're not programmable robots who can simply be re-programmed to serve big corporations' earnings goals. Habit-forming drugs don't sink "chemical hooks" into our brains and control us against our will. There is an element of free choice in all of this that is quite separate from the drugs' pharmacological effects.

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Something I haven't touched on in this post is the fact that most opioid addicts don't even get their start with a prescription, an observation that should relieve opioid manufacturers of any culpability. The idea that I'm arguing against in this post, the notion that drugs take over people's minds and make them do things they don't want to do, is sometimes called "voodoo pharmacology." There is apparently some powerful voodoo going on here. Apparently the pharmaceutical companies are hijacking the brains not of their legitimate patients, but of other people in society who acquire opioids illicitly. Manufacturers, distributors, and patients are by and large acting responsibly, but highly motivated addicts are stealing left-over pills from unfinished prescriptions (a peculiar phenomenon, by the way, for a drug that is supposedly so irresistible). It might make some sense to hold the patient culpable for inadequately securing their leftover pills, but to follow this back up to the manufacturers? This is an absurd concept of legal liability, one  which I don't believe anyone has even tried to defend.