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Regulation of Foods and Drugs and Libertarian Ideals: Perspectives of a Fellow-Traveler*

Published online by Cambridge University Press:  13 January 2009

Daniel D. Polsby
Affiliation:
Law, Northwestern University

Extract

For one with libertarian sympathies, the official regulation of foods and drugs is presumptively a bad thing. One is most accustomed to seeing the argument in debates about legalizing marijuana and other hedonic drugs. And it remains a very good if by now well-trafficked question, which will be more well-trafficked still by the time this essay ends, why government should be in the business of telling people what sorts of chemical moodenhancers they may take. But as the criminologist James Jacobs has pointed out, to ask this question is to put in play matters far larger and more important than marijuana. What business is it of government to say what medicines may be sold and by whom they may be sold? Why should certain chemical agents be available to willing buyers only with a doctor's scrip, and other agents, such as unproved drugs or devices, forbidden to all, even with medical permission? If libertarians answer these questions impatiently, then admirers of the administrative welfare state (“statists”) will be happy to play rope-a-dope with them, chattering on about the endearing eccentricities of libertarians' assumptions and avoiding the challenge to articulate and defend their own increasingly shabby-looking principles. Those principles are much in need of defense. Food and drug laws are among the most well-established offices of regulatory government. They are complicated, hypertechnical, mysterious, and expensive to administer and maintain. One is entitled to suspect that a number of them are carried on more out of habit and routine than out of any authentic conviction that they are the best way, or among the better ways, to provide for the welfare of citizens.

Type
Research Article
Copyright
Copyright © Social Philosophy and Policy Foundation 1998

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References

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7 Hence, an “anabolic steroid” defense against a charge of assault would probably be useless.

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13 Otherwise, occasions for governmental intervention in any person's behavior would multiply without limit, on the ground that a given regulation was nothing more than a protection for the rights of persons unborn and unbegotten.

14 Investor's Business Daily, 02 10, 1997.Google Scholar

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16 In discussion.

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18 197 U.S. 11 (1905).

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23 Kolata, Gina, “Sharp Debate on Value of an Alzheimer's Drug,” New York Times, 04 4, 1991, p. B1.Google Scholar Tacrine was eventually approved in September 1993 (FDA Electronic Bulletin Board, 09 9, 1993).Google Scholar

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33 Ibid., p. 49.

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36 When a class of victims is organized and alert, as AIDS victims have been and cancer patients have become, they can, of course, often win special, fast-track concessions from the agency. See generally Larson, Elizabeth, “Unequal Treatments,” Reason, 04 1992, p. 48Google Scholar; Kolata, Gina, “Trial of Experimental AIDS Drug to Be Continued, with Revisions,” New York Times, 03 9, 1990, p. 1.Google Scholar It is an unusual situation when a disease strikes largely at a class of people who have pre-constituted themselves into a vocal, well-funded interest group, but lucky for those who have that disease rather than some other, equally serious or more serious disease whose victims have no political juice. See Kondracke, Morton, “How Diabetes Plan Was Hatched—And Why It Is Not Enough,” Roll Call Online, http://www.rollcall.com/commentary/kondracke.html.Google Scholar

37 DiMasi, J. A. et al. , “Cost of Innovation in the Pharmaceutical Industry,” Journal of Health and Economics, vol. 10 (1991), p. 126.CrossRefGoogle ScholarPubMed The study estimated the probable range of costs to be between $197 million and $287 million.

38 The high research-and-development costs mandated by government approval have been cited as a reason for market consolidation and merger activity. See ibid., p. 108. During the late 1980s, several mergers within the pharmaceutical industry occurred, including SmithKline-Beecham, Bristol Myers-Squibb, and Merrell Dow-Marion Laboratories. See ibid., p. 108, n. 5.

39 Both of these comparisons probably understate the FDA's inefficiency, since they are comparisons against other bureaucratic monopolies rather than against competitive reviewing agencies.

40 Peltzman, Sam, Regulation of Pharmaceutical Innovation (Washington, DC: American Enterprise Institute, 1974), p. 18Google Scholar; Kazman, , “Deadly Overcaution,” p. 38.Google Scholar

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46 Hahn, Robert W. and Hird, John A., “The Costs and Benefits of Regulation: Review and Synthesis,” Yale Journal of Regulation, vol. 8 (1991), pp. 276–77Google Scholar; see also Peltzman, , Regulation of Pharmaceutical Innovation.Google Scholar

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48 See, e.g., the front-page story in the Sunday edition of the Montgomery (Alabama) Advertiser, 02 11, 1996.Google Scholar

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51 Admittedly the foregoing numbers are not solid. Significant portions of the nominal budgets go toward dual-purpose items; for example, coastal-surveillance assets paid for by the war on drugs are useful in other budget lines without being reflected in them. Most of the criminals serving time for drug offenses are in prison on negotiated pleas, so that we cannot be certain what, exactly, they actually did to get into trouble. Few of them are Boy Scouts in any event, and might be locked up for something else if not for this. But though we should discount the numbers somewhat, they do give at least a rough feel for the edge of hysteria that this subject seems to provoke.

52 720 F.Supp. 1424 (N.D.Cal. 1989).

53 29 U.S.C. sections 701–795(i).

54 680 F.Supp. 590, 600 (S.D.N.Y. 1988).

55 29 U.S.C. section 1201, et seq.

56 See generally 22 ALR Fed 111 (1997).

57 539 N.Y.Supp.2d 876 (1989).

58 See, e.g., New York v. Jones, 350 N.E.2d 913 (N.Y.Ct.App. 1976).Google Scholar

59 A more extended account of what follows is given in Polsby, Daniel, “Ending the War on Drugs and Children,” Valparaiso Law Review, vol. 31 (1997).Google Scholar

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