How Low Will They Go? SF Flavor Ban Was An Abuse Of Process

Carl V. Phillips | Contributor

Much has already been written about how San Francisco’s recent ban on tobacco product flavors, enacted via referendum, is terrible policy. The ban of menthol cigarettes and most flavors of  e-liquid, as well as smokeless tobacco with a characterizing flavors and most all hookah tobacco, will discourage smokers from switching to vaping. In theory the menthol cigarette ban could offset this impact by causing more smokers to quit to abstinence, though there is simply no reason to expect this to happen.

The only possible upside of this policy is its value as a natural experiment: We will get to see what happens when a decent-sized population of vapers can no longer buy flavors, in a jurisdiction where it is nontrivial to just pop across the border (not hard, certainly, but not trivial for many of those affected). Will the result be do-it-yourself flavoring or a DIY-based cottage industry? Will they just find someone who will ship to them or make individual trips out of town? Or will the cross-border transit become a full-on black market? How many will return to smoking? Similarly, will menthol smokers quit, just smoke regular cigarettes, massively expand the local illicit market, or engage in the simple process of mentholating their on cigarettes? Whether similar policies are enacted at the national or state levels depends a lot on the answers to these questions.

(Note to SF vapers and advocates who influence them: You are now at the forefront of the resistance. There is a lot riding on this. If you “cheat” and do so very loudly, getting the word out and getting your friends doing it too, you will make it considerably more difficult for those who want to impose the same bans nationally. The same applies to menthol smokers. However, you will have to stand up and be proactive about announcing what you are doing. Do not count on the mainstream media to run stories on how many anonymous consumers are flouting the spirit or letter of the law. Tobacco control will certainly try to cover it up, and their papers about this will say — no matter what the data shows — that everyone obeyed, smokers quit, and no one smoked as a result of the restrictions on vapor products.)

Bad policy is not the only problem in sight, however. The purpose of the “How low will they go?” series is to highlight the many unethical and otherwise deplorable actions by tobacco control that extend beyond their unethical policies and goals. In this case, the process is every bit as disturbing as the policy.

First, local governments have no business making technical policies like this, and doing so by referendum is far worse still. This is not a political or ethical question like abortion rights or gun control, where everyone should have a voice, nor is it an everyday policy like that most people basically understand like personal tax rates. The stated bases for the policy were technical claims about expected outcomes — reducing smoking, protecting the children and such — that are based on a complicated scientific literature that few voters could possibly understand. In such cases, voters’ only choice is to decide which partisans’ simplistic assertions to believe, a decision that is itself based on complete ignorance. There is a reason we have a republic and a large bureaucracy: technical decisions should not come down to who has a more effective advertising campaign to trick the voters.

Local lawmakers are in a slightly better position than voters to make such decisions, thanks to giving it more than five minutes of attention, but are no more expert in the science and do not have the resources to learn. They are also notoriously corrupt. Even if they are not taking bribes or enriching their personal businesses, local officials often pursue some personal hobby-horse in defiance of the public interest, taking advantage of the lack of public attention. Because of this, local governments are easy to roll. Local electorates are even easier. Well-funded or smooth-talking con artists, backed with a bit of de facto bribery, can persuade municipalities to buy a monorail or band equipment (as in the classic metaphorical stories about this), or install wind turbines or give tax breaks to rich corporations. State governments have deliberative legislatures, with staff and specialized committees that can generate some expertise, and the federal government far more still. A lot of really stupid policies are made anyway, of course, especially regarding tobacco where the state and federal bureaucracies are captured by the con artists. But at least there is some hope of getting it right (or having a court overturn regulatory decisions as arbitrary and capricious).

The point is not that the lawmaking system has weaknesses that can be exploited. That is the nature of complex systems. The problem is how aggressively tobacco control exploits them. They are hacking the inevitable flaws in our governmental system for their own gains, including pushing Tobacco 21 on town governments and now this. We expect con artists and tax accountants to try to exploit flaws in the system, which is why tax code is so incredibly detailed. But in this case, supposedly respectable NGOs are behind it. Every time they do this, they weaken the norms against exploiting hackable “bugs in the code,” making it that much easier for others to get away with more of it. The government as a whole cannot be made as exploit-resistant as the tax code, so we depend on social norms against exploiting the bugs.

Granted, worrying about good public policy processes seems a bit quaint in 2018. On the other hand, recent events should demonstrate to any observer that our entire system of government is a tenuous social contract, and those who violate proper process any way they can get away with it are a threat to that contract. Despite the glaring reasons for concern, tobacco controllers simply do not care about how much damage they might be doing to the larger society.

Second, holding a referendum to take away some people’s right to make personal consumption choices is a dire threat to a free society. Some “freedom” issues, like abortion and guns, include enough ethical conflicts or externalities that the will of the community is relevant (though a court might rule that a particular community decision is unconstitutional). But there are no legitimate ethical arguments against tobacco product use, and the only externality in sight is environmental tobacco smoke, which is not affected substantially by making people smoke regulars rather than menthols. The majority — people who do not use these products — telling the actual consumers which products they must use is peak tyranny-of-the-majority.

Other majorities — those who do not buy video games, breakfast cereal or porcelain figurines — could probably be persuaded to ban sales of some varieties of those too, if someone funded a referendum campaign in support of the ban. It would probably require blatant propaganda: lying to people about supposed harms, “think of the children!” rhetoric, sloganeering and downplaying the costs. That is exactly the propaganda tobacco controllers employed in San Francisco.

A referendum is a good way to push back against government overreach or to create new rights that are the will of the community, as with legalizing cannabis. But when it is used to create new overreach and take away rights, it is a truly scary prospect. Who will the majority come for next? Tobacco control just does not care that they are laying the groundwork for that with their little experiment.

Third, we should consider who is affected by this policy. San Francisco has among the biggest economic divides in the developed world. The rich, including the upper-upper-“middle class” who are a large part of this electorate, will not be affected. As with all drug wars, they can easily get anything they want with little risk of punishment. Poorer folks will be affected, and they are also disproportionately the consumers of these products. In addition, menthol cigarettes are disproportionately preferred by African-Americans (and women) and the most dedicated consumers of hookah tobacco are immigrants from the Middle East and South Asia. Savvy vapers — those who are educated, well-off or well-networked — will find a way around the restrictions. The people left behind are the same ones who are always left behind.

It is always bad when the “1 percent” engage in class warfare. It is especially troublesome and scary when they do so via the ballot box.

Add all these together and imagine a racist billionaire, inspired by this outcome, financing a referendum in rural Indiana or a predominantly-white city in the south, just as anti-tobacco billionaire Michael Bloomberg helped bankroll the San Francisco referendum. The vote would ban restaurants and stores from selling a particular cuisine that is preferred by immigrants or African-Americans. Of course it would be presented as being all about health implications of the food, backed by opaque evidence that is turned into soundbites, and the claim that the food was rewiring kids’ brains so that they do not become proper Americans. The “Coalition for Tamale-Free Kids” that he sets up as a front group would never admit the real motivation, just as tobacco controllers did not admit San Francisco was about creeping one step closer to prohibition.

This is exactly the abuse of process that tobacco control is engaged in. Such actions by anyone represent a green light for everyone to do it.

Responsible actors in the political arena would never resort to tobacco control’s tactics. They would work through appropriate channels and tell the truth. If that did not get them what they wanted, they would concede that the government by and for the people does not agree with them, at least not yet, and would try again. But tobacco controllers care nothing about the greater harms that they cause, and so try to exploit bugs the system in any way possible. The San Francisco ban is harmful, but it is possible to concoct tenuous stories about it actually doing good. The process, however, was indefensible. It was the behavior of sociopaths with no concern for the harms that they cause.

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Carl V. Phillips

Contributor

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