Contra-Texan: SB 21 is Prohibition Redux

This article is in response to the slate of Daily Texan pieces concerning nicotine, vaping, and SB 21.

Professor Alexandra Loukas and Darrien Skinner have officially won the debate on SB 21. The bill raising the legal age for purchasing tobacco in Texas from 18 to 21 is “a first step in the right direction for public health in Texas,” the pair state in their Daily Texan op-ed. Public? Health? Who can argue against the health of everyone in the public!? 

I sure can’t, and it’s a good thing I don’t have to because public health is a nonsense term and SB 21 is a terrible bill. Health is individual, not collective. Persons within the public are healthy; “publics” are not. Looking at its usage in Loukas and Skinner’s article, it becomes clear that “public health” is actually “health” forced on individuals by the “public,” which in this case means by the state. However, SB 21 and the spate of bills in other states restricting the sale of e-cigarettes are unlikely to positively impact health, however defined; in fact, it is more likely that these bills will expose affected users to the same dangers as the many other prohibitions America has tried.  

Paper Law, Meet Real Behavior

To determine the impact that a bill will have on “health,” one must look at the individuals affected by the measure. More importantly, before making any claims about impact, one must look at the characteristics, behaviors, and tendencies of the individuals that are expected to comply with the law.

Karl Lewellyn recognized this as early as 1930 in his powerful lambaste of “paper laws” that are blind to the behavior of those they govern. The assumption that enacting a law is equal to effectuating its provisions is a pernicious one. Laws on paper are coherent, unified wholes; laws in action are replete with loopholes, avoidance behaviors, and outright disregard. 

The 18th amendment – better known as prohibition – is the classic “paper law.” Prohibition attempted to impose teetotalism on a nation of alcoholics.  And it actually worked… until it didn’t. 

The initial drop in alcohol consumption after the 18th amendment passed was precipitous. Per capita alcohol consumption hit an all-time low in 1921, two years after prohibition was instituted. 

One possible explanation is that citizens dutifully followed the law, recognizing its democratic validity and deferentially ditching their boot flasks and beer halls. The other explanation is that citizens begrudgingly followed the law while they waited for organized crime to develop efficient, low-cost methods of delivering black market alcohol. 

The data bears this version of events out. After 1921, per capita consumption increased despite tightening prohibition efforts as organized crime began to develop more efficient methods of production and distribution. Like with any disruption, it took time for the market to respond, but respond it did.

More interesting than the fact that the market responded is the way that it responded. Two features of the prohibition-era alcohol market are particularly striking: the number of drinking establishments increased and alcohol got stronger

According to Henry Lee, as paraphrased in Mark Thornton’s article for Cato, there “were twice as many speakeasies in Rochester, New York” as there were saloons before prohibition and this held true throughout the country. When large, regulated businesses are made unavailable, small, fly-by-night operations rush to fill the vacuum. 

And alcohol got stronger – way stronger. Thornton puts the consensus estimate of the potency of prohibition-era alcohol at 150+% of the pre-prohibition products. When avoiding detection is key, distributors increase the potency of their product so that they can move as much of the active ingredient in as small a space as possible. 

So well documented is this phenomenon that Richard Cowan writing for National Review in 1986 called it the “Iron Law of Prohibition,” or, as he epigrammatically puts it, “the harder the enforcement, the harder the drugs.” This law holds true over various prohibitions: alcohol, marijuana, cocaine, etc. 

Prohibition was disastrous and plagued by unintended consequences (and some intended ones as well, like the deaths of several thousand people who drank stolen industrial alcohol that the government poisoned with full knowledge that it was a large source of bootlegged liquor). This is largely because the lawmakers of the time – who themselves had a congressional bootlegger operating out of the Cannon House – ignored the behaviors of those who would be affected by the law and did not foresee the avoidance behaviors that spawned many of the worst aspects of the era.

And yet it seems that history is doomed to repeat itself in Texas with SB 21 and in other states that are cracking down on Juul and other tobacco products. These “paper laws” – enacted by lawmakers who are probably still asking their interns how kids are smoking flash drives – ignore the characteristics of the individuals they are trying to govern. The history of America’s various prohibitions suggests it is at our peril; the recent outbreak of disease related to bootlegged vape products indicates it might even be deadly.  

Bad in Concept, Deadly in Practice

Laws banning the sale of a product are prohibitions; laws banning the sale of a product under a certain age are ageist prohibitions. SB 21 is an ageist prohibition that targets tobacco products, both cigarettes and e-cigarettes like Juul.  But what exactly does prohibition for e-cig devices and other tobacco products look like?   

Prohibitions feature endemic, predictable avoidance behaviors that drive use underground and users into the black market. This is true generally but it is especially true for products characterized by relatively inelastic demand, addictive products like alcohol, nicotine, and other drugs. Water flows uphill towards money; supply, uphill towards demand. Making the incline steeper or the heights greater may curb some use, but it also makes the fall more precipitous. 

The black market prior to SB 21 had largely been 18-year-old seniors in high school selling to underclassmen.  Their methods were relatively unsophisticated: go to the gas station, buy Juul pods, and sell them to younger kids at a steep markup. Their main competition: precocious underclassmen with paper fake IDs and a friendly (read: lax) gas station attendant. 

While this is still under the (lunch) table dealing, the crucial feature of this market is that the product is still coming from large brands that are subject to regulation, albeit less regulation than traditional cigarettes. More importantly, these well-known brands face the pressures of consumer opinion which itself has a regulating effect.  At the very least, these companies disclose the chemicals that are in their products and to date, there has not been an article credibly linking a large, name-brand e-cigarette to the respiratory disease outbreak.

SB 21 and bills of its ilk are likely to upend this distribution model. In fact, Loukas and Skinner hail this feature as one of the bill’s better aspects, writing “(t)he law also has the potential to reduce tobacco use among adolescents by making it more difficult for high school students to obtain tobacco products from their 18-year-old peers.”

However, if previous prohibitions are any guide, this will actually drive both the distribution and the production into the black market. Like the moonshine of old – itself now domesticated by large distilleries like Midnight Moon with supposedly delicious results (my legal-drinking-age friend T-Bone recommends fruit-infused moonshine cocktails) – aftermarket vape liquids used to refill traditional e-cigarette pods will step in to take the place of the legal product. 

These aftermarket nicotine liquids have all of the hallmarks of a prohibition product: they are highly potent, of dubious origin, and largely unregulated. With their access to name-brands curtailed by the disruption of the senior pipeline and with these aftermarket products a Tor browser away, nicotine-craving under-21s will be forced to choose between safety and satisfying their craving. America’s troubled history of prohibition indicates how frequently that cruel dilemma yields disastrous results. 

This is particularly troubling given the recent outbreak of respiratory disease that has been linked to harmful chemicals in bootlegged marijuana vape cartridges. It is perhaps indicative that the negative health impacts are occurring in a market that is already subject to prohibition at the federal level and in many states as well.

This is to say nothing of the concept of the law itself. Even if its provisions are put into practice perfectly – they won’t be – and even if it doesn’t drive high schoolers to use more dangerous products – it will – is banning tobacco for individuals that we deem competent to operate vehicles, make significant financial decisions, and vote in elections really something we want to use the government’s coercive power for? To steal Penn Jillette’s framing, would you use a gun to do it? Flout any law for long enough and folks with guns – we call them police officers or federal agents – will show up to enforce it. 

Apples and Oranges; Juuls and Cigarettes

Juuls and cigarettes both deliver nicotine. Full stop. The similarities don’t appear to extend much beyond that, but you wouldn’t know it from the popular conversation on the issue. 

Cigarettes burn their contents; Juuls vaporize theirs. Cigarettes contain tobacco; Juuls contain nicotine, which is derived from tobacco but they don’t contain actual tobacco. Cigarettes have contributed to the deaths of millions; Juuls have not been compellingly linked to any deaths yet. (Though, as scientists and health experts will remind you, this last one is a bit of a cop-out because we don’t have long-term data on e-cigs yet). 

If we are going to have the same collective freak-out about Juuls that we did with cigarettes (though that one was, of course, warranted) surely it should focus on their shared ingredient: nicotine. To cause all this panic, nicotine must be a unique scourge, right? 

Eh, it’s tough to tell. The research on the independent impact of nicotine is surprisingly sparse, at least according to cardiologist Holly Middlekauf as cited in Rachel Becker’s article for The Verge. Some hypotheses link nicotine to cardiovascular disease, but this is contested. 

However, as Becker goes on to explain, there is “one adverse health effect that nicotine is clearly, unequivocally responsible for, and that is addiction.” (Oh, and apparently, much to my chagrin, the whole “coffee is addictive too” line is bunk because nicotine is realllly addictive according to a source in Becker’s article). 

And frankly, addiction sucks. Juul users frequently describe harrowing experiences with withdrawals and some young addicts, such as the teen described in Becker’s article, go to extreme lengths to continue their addiction. But, this all needs to be taken into perspective: teens selling their clothes to fuel their habit or setting their schedule by their Juul hits are on the fringe. 

Jacob Grier documents that as recently as 2018, only 5.8% of high school students vape regularly (defined as 20 or more days of use in the last 30-day period). Much of the alarm, Grier argues, comes from the rise in the percentage of high school students who had tried vaping in the last 30 days (up from 11.7% to 20.8%). But of those who had tried vaping, only 27% were regular vapers. 

Anecdotally, this figure seems low, but even at double that number – 11.6% – we are nowhere near “epidemic” levels of regular vaping among high school students. For most, vaping seems to be an occasional social activity. If little is known about the health risks of Juuling, next to nothing is known about the risks Juul poses to what John Tierney calls, “party vapers.” It stands to reason, however, that effects lie somewhere below Sudden Sniffing Death Syndrome and above a hangnail (but then again, maybe not – those SOBs hurt). 

A Radical Solution: The Status Quo

When we put on our system 2, analytical thinking caps and get past the superficial resemblance between cigarettes and Juuls, the issue really hinges on addiction and the developmental risks that it might pose. For kids, these risks may be significant and I am not arguing that there should be no minimum purchasing age (though if my fellow libertarians want to charge that machine gun nest, I say “over the top!”). 

I actually think that the pre-SB 21 status quo was about right: dedicated users, who might otherwise turn to the black market, can get name-brand nicotine products from seniors but the logistical barriers and the “senior tax” keep a good chunk of users out of the market.

As for adults, eighteen and up, I am unequivocal: if your use of government force pushes nicotine addicts back into cigarette use and they die from lung cancer, you are in part morally culpable. In the U.S. alone, between 1.6 and 6.6 million premature deaths might be averted by the wide-scale “replacement of cigarette by e-cigarette use over a 10-year period.” In a live and let live world, this is possible. Once you pick up the gun and start telling people what to do, however, you are, at least in part, responsible for the lives lost and those that could have been saved. My suggestion: put the gun down, Karen 

Categories: Campus

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