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The folly of federalism for vaping (etc.) policy

by Carl V Phillips

This post goes a little more into non-ethics political science than I normally do.

Federalism is frequently a very good way to make government decisions. Federalism, of course, refers to having some government decisions made at a more local level, rather than being made at the highest aggregation of government. The devolution of decisions to a local level allows for consideration of local differences in situations or preferences. It makes no sense to create national rules about parking or building zoning. Offering genuine flexibility at a lower aggregation of decision-making avoids the tremendous failure of a Soviet-style system (which, contrary to a great deal of commentary, is all about the hopelessness of central planning, and has little or nothing to do with “socialism”). If a smaller unit of decision making — be it an individual consumer or business, or a more local government — is capable of making a decision, they should be allowed to do it.

[Aside pet vocabulary peeve: The above is the only correct usage of “devolution”. That word is not the opposite of evolution. “Evolution” does not imply progress or any particular direction, so it does not have an opposite.]

In addition to avoiding the problems of inflexibility and the impossibility (for some cases) of optimizing a millions little decisions with one big decision, federalism allows for local preferences and natural experiments. If one town wants dense housing and another prefers sprawl, they can make their respective decisions and people can self-select where they prefer to live. If one state government (provincial government for those of you not immersed in the US’s idiosyncratic nomenclature) thinks a faster highway speed limit is a good idea, they can choose it — and we can learn from that experiment how many people it kills, and make future decisions based on that data.

Of course, the larger society may have an interest in some decisions and so there may be a deliberate choice to intervene and overrule. A local government may make housing rules to try to keep racial minorities out, and the state government might create blanket rules to prevent that. A state might make voting rules that effectively disenfranchise some people and the national government might overrule it. A local government might have a selfish preference that natural land be used for mining, but the national government might assert an interest in preserving the land for the greater good. Governments at every level sometimes try to make bespoke trade policy that benefits them at the expense of others, but are overruled by treaties that try to rationalize trade (effectively international government).

But beyond these battles of conflicting interests, there is also a category of decisions where there is never a legitimate justification to make them at the local level: those that require technical scientific expertise and are either best for every human or not (i.e., there are no substantial local differences). Recall the caveat above about the smaller decision-making unit being capable of making a good decision. Many, perhaps most, decisions about health are best made at the most universal level. Yet far too many of these decisions are made at the local level.

Yes, you read that right. I — best known as an advocate of harm reduction, which is all about devolving decisions about one’s own body to the individual — am saying that many health decisions should be made by government, and by the highest level of government possible. Doing so is enormously more effective, to say nothing of efficient, compared to forcing multiple actors to decide about universal truths and preferences that do not vary much. It is basically self-parody when “libertarian” types suggest that we do not need food safety rules — that the market can just decide. Everyone has basically the same preferences about food safety, safeness of food does not vary across localities or people, and individuals are not capable of assessing it themselves. Air pollution rules cannot be made locally, let alone based on individual decisions. Pharmaceutical approvals, water quality, nutrition recommendations, mechanical safety standards — the list goes on and on.

Of course, quite often those decisions are made badly at the national (or whatever) level. That is definitely a problem. But even in most of those cases, the “solution” of devolving the decisions is worse.

My readers are no doubt familiar with local vaping bans and other local tobacco control policies. I was inspired to write this post after reading this piece about the Oglala Sioux Pine Ridge Reservation banning possession of e-cigarettes (and, of course, sales also). This is one of the many absurdly inappropriate reactions to the poisonings in the US from black market cannabinoid cartridges. But there also were many local bans before the poisonings, and the more recent bans would not have happened if there was not already a campaign to get local governments to ban vapes.

A local patchwork of such rules is a terrible policy at the simplest practical level. It complicates commerce enormously. Online sellers have to keep track of and adhere to dozens or hundreds of idiosyncratic rules. (In the US, the commerce clause of the Constitution normally prevents such problems, but it has usually been ruled that anything that is justified (read: rationalized) based on health concerns is not subject to being overridden on such grounds. Also, regarding the motivating example, it does not restrict policy on Native American lands.) Someone driving through the Pine Ridge Reservation, or across the border of a town with a similar rule (where there is typically barely any indication of the border, let alone a warning about local ordinances), with a vape in their cup holder or a shipment of vapes in the back of the truck becomes a criminal with no reasonable way of anticipating that. (At the time of this writing, there is the possibility that Massachusetts will pass a law that your vehicle can be confiscated for having the wrong vape with you.) And, of course, any such criminalization creates an opportunity for oppression and discrimination, as I discussed recently.

But the ultimate reason why this is a bad policy is that local governments have absolutely no capacity to make good decisions about these matters. Local governments are typically dominated by real estate developers, car dealers and other owners of local businesses, “community leaders” (preachers, community organizers), and politically active housewives. They do not understand the health science any better than the average adult who follows the news. This is not to suggest that there are not a lot of great people in local government. There are. Some of them even are quoted up at the end of articles about bad new policies, with something like “Selectman Paul Anderson voted against the measure and said, ‘this is not a decision we should be making for people.'” But even most of the good local officials are way out of their depth when it comes to making health-science-based decisions.

Even when there are local health boards, the best we can usually hope for are a few physicians in the group, and their understanding of the science is only a bit better than the average newspaper subscriber. Perhaps local health boards have a legitimate capacity to deal with decisions about waste disposal or closing the lake to swimming due to contamination, but even that is often borderline.

Similarly, there is no legitimate reason to even try to make decisions about products locally. They are not like the local idiosyncrasies of snow removal or the preferences about housing density. Either no one in the entire population should be consuming X, out of consideration for their health, or no one should be prevented from doing it. Nor is there any real issue of local norms or “morals”, as with something like cannabis legalization. The ostensible basis for vaping bans is what the science says about risks, not “we consider nicotine use the work of the devil” (after all, cigarette remain untouched), and so there is no apparent legitimate local interest.

Some state/provincial governments are more capable, but not enough more. States typically have a health department with staff, unlike at the local level. Still, their capacity is pretty paltry. California, Texas, and Ontario are as big as many countries, but they still have much smaller budgets and no serious science agencies, and most states/provinces are far smaller. The health department staff is usually not competent to assess the science. I know from experience — as a professor of the people who end up in those positions — that they are mostly the students who struggle to get through MPH or DrPH programs. That is a very low bar because those programs are incredibly easy. The education most such students receive is nearly useless, so even the better students learn very little, and a lot of what they learn is just wrong. (I had many students tell me, when taking my course in their final semester, that it was the first time they learned anything useful in their MPH program.) There are exceptions, of course, but on average we would get better expertise if the staff had degrees in, say, physics, and just picked up the health stuff on the fly.

As a result of this lack of capacity, the decision makers at these levels are easily rolled. Whichever advocates can afford lobbyists to give private briefings and can show up to every hearing with slick presentations will win the day. They are filling in for what a skilled government staff would do, because there is no staff that can do it. Except really they are pretending to do play that role, mimicking its trappings, but are actually presenting propaganda to support their preferred position.

It is true that this is exactly what happens at the national level for legislators (individually they do not have much capacity either, and so are dependent on lobbyist briefings). But at least this balances out to some extent, with some legislators listening to the other side. At that level every faction can manage to make the effort to be heard by someone. Not so when there are actions in hundreds of localities. In that case, the rich organized interest groups can manage to make their voices heard everywhere, while the opposition cannot. This describes the faux-“public health” groups slickly lobbying for vaping bans, while vapers fight desperate battles to slow deals that were already cut in a back room. And this is when they manage to even learn about it and get a bit organized, which is very difficult even though we outnumber the active supporters of bans by like 10,000 to 1.

More important still, the executive branch of large national governments has departments with serious scientific capacity. Legislators can look to this for advice, and executive decision-makers definitely will. Whatever you might think of their decision making process, large national governments have the capacity to evaluate the evidence. The US CDC and FDA Center for Tobacco Products have taken unconscionable — some would argue homicidal — actions in response to to the recent THC cartridge poisonings, but it is not out of ignorance. It was deliberate. They lied.

This is bad and needs to be fixed. But federalism does not solve the problem.

Those reading this at the time it is posted will no doubt be thinking about the recent threat of a national ban on most vapor product flavors (or something like that — it was and is all rather a muddle), coming out of FDA or maybe directly from the White House. Anything has got to be better than that right? Well, the problem is that for policies like this, federalism only works in one direction: Localities can ban something that the national government does not ban, but they seldom can override a national ban. (The notable exception is, of course, states legalizing cannabis sales. But this only works at the state level, and basically only for this one case where it is considered a “moral” issue, rather than being about health science. Also, the national government has decided to just let this one play out because they cannot win the fight; if a state tried to override a national e-cigarette flavor ban, they would be stopped.)

For panic-and-ban type policies, devolution of decisions exacerbates the problem even apart from this one-sidedness problem. We can hope (though, not count on) the national agencies will eventually yield to the pressure to back off from their propaganda. They are answerable. Not so the local government officials. They just read the official propaganda at a surface level and act based on it. “Teen vaping epidemic!” plus “Lung injuries! Stop until we know more!” translate to “oh, dear, we really need to ban this in our town.” So it is banned locally before anyone has a chance to mobilize against it. When it later becomes clear that the “information” the local officials acted on was false, there is no real chance of any political blowback as a result, and certainly not a threat to their day job. Probably the local policy makers do not really think this through — consciously realizing that they might be making a mistake, but knowing they are immune to any consequences from that — but they act based on knowing that at a gut level.

Vaping bans and other tobacco use policy is far from the only example of disastrous application of federalism to health science policy. It is not even the only one I have worked extensively on. For several years I provided testimony at local hearings about the health effects of large wind turbine electric generators. If you are not familiar, they cause a rather substantial list of serious disruptions of physical and mental health for many people. It even turns out they almost certainly cause cancer, despite people making fun of President Trump for saying so. (For those interested: A substantial fraction of the population exposed to the noise from wind turbines are kept in a constant flight-or-flight state of agitation, presumably because the noises trigger our the sense of “something is out there” that we are evolved to be triggered by. This results in chemical changes in the body that cause an increase in oxidative stress (damage to cells), which is known to cause cancer. The elevated cancer rates are almost certainly never going to be measured, given the limits of epidemiology, but they are almost certainly there.)

It is left to local governments to make decisions about whether the health effects justify prohibiting a local wind turbine installation. Yeah, good luck with that. Try explaining to a bunch of local officials that the the “hierarchy of evidence” that the $500/hour hired gun consultants that the industry brings in are touting is pure junk science (“there are no randomized controlled trials that show there is any harm! it is all anecdotes!” — sound familiar?). Then try explaining the technical reasons why case-crossover evidence (anecdotes!) is usually even more useful than a RCT. And by “try…”, I mean don’t even try. You do not want to do this. It is a fucking nightmare.

(As an added bonus, the wind turbine developers claim — and are believed — that these facilities benefit the environment. There is actually no evidence this is the case and good reason to believe they are environmentally harmful on net. But the energy company can usually manage to get some useful idiot from the local college Greenpeace group to show up and carry water for them on this.)

At least in that case, the bias to “err on the side of caution” works in the right direction. But working against it is the enormous payoff that the energy companies are promising.

This is another big problem with local policies: Local officials are quite likely to be semi-corruptible, if not full-on corrupt. By that I mean that they are tasked with balancing a tough budget, with no easy way of increasing revenues and not even being allowed to run a deficit without a voter-approved bond issue, while always wanting to do a bit more. National lawmakers do not have that kind of budget pressure, and have plenty of exciting projects to work on so are not always bored and wanting to launch a new initiative. So if a monorail operator promises a town a bit of additional revenue, they are likely to jump all over it. That is to say nothing of what happens when four of the seven town council members just happen to own property that the developer wants to lease.

While there is nothing quite this dramatic happening with vape bans, you can be sure that the prohibitionists are quietly promising grants in exchange for bans. These are paltry sums that would never influence a larger government. But remember just how bored, frustrated, and wannabe important many of these local officials are. Getting a little pet project, even if some outside agitator set the terms of it, is better than nothing.

Yes, national officials are also corruptible, especially in banana republics that lack checks and balances (a category that includes the current US government). But basically every local government functions like a banana republic, and the only real check is that the stakes and excitement level are usually low enough that it is not enough to corrupt most people. So they do the best they can to make a legitimate decision. But when the issue at hand is based on health science, “the best they can” is pretty lousy, and the issue is often exciting enough to motivate semi-corrupt behavior.

Original author: Carl V Phillips
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