Tag: alcohol

The Return of Reefer Madness

Alex Berenson’s recent attempt to generate panic at the prospect that marijuana use may become legalized and normalized, with his book Tell Your Children: The Truth About Marijuana, Mental Illness, and Violence, even borrows its title from the camp 1930s propaganda film Reefer Madness. While not nearly as over-the-top as the film, Berenson certainly exaggerates suggestions that marijuana can cause psychosis.

Drawing on the 2017 report of the National Academy of Sciences, Engineering, and Medicine on “Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research,” he directs attention to its conclusion, in Chapter 12:  “There is substantial evidence of a statistical association between cannabis use and the development of schizophrenia or other psychoses, with the highest risk among the most frequent users.” Berenson admits in a January 4 Wall Street Journal column based upon his book, “None of these studies prove that rising cannabis use has caused population-wide increases in psychosis or other mental illness, although they do offer suggestive evidence of a link.” Indeed. But correlation is not causation. And there is always the question of “which came first–the chicken or the egg?” Some schizophrenics might be using cannabis as a form of self-medication.

The NASEM report also notes, “There are a number of proposed explanations for why the comorbidity of substance abuse and mental health disorders exists.” One suggested explanation is “an overlap in predisposing risk factors (e.g., genetic vulnerability, environment) may contribute to the development of both substance abuse and a mental health disorder,” and indeed there are studies suggesting a genetic predisposition exists for some cannabis users to develop schizophrenia. There is also research showing an increased risk for the development of schizophrenia associated with heavy marijuana use where a family history of schizophrenia exists.

But it is also important to note that many countries saw stable or declining rates of psychosis between the 1960s and 1980s, a time when marijuana use in those countries increased dramatically. A 2003 Australian study found “no causal relationship” between cannabis use and schizophrenia, and a 2012 British study found rates of schizophrenia stable from 1950 to 2009, a time of greatly increased marijuana use.

And while there may be a correlation between schizophrenia and heavy marijuana use, the NASEM report stated, “cannabis use does not appear to increase the likelihood of developing depression, anxiety, and posttraumatic stress disorder.” Yet these are the most commonly cited “serious mental illnesses” that were found to be associated with heavy cannabis use among 18 to 25 year-olds in the National Survey on Drug Use and Health on which Berenson also relies to make his case. 

Psychiatrists have long known that the majority of patients with substance abuse disorders have psychiatric comorbidities, which need to be addressed in concert with the treatment of the substance abuse disorder. What is not yet known is how much the substance abuse disorders are actually driven by the comorbidities. 

No one is arguing here that heavy use of cannabis cannot be associated with a form of psychosis. The same can also be said regarding the heavy use of alcohol. In fact, heavy use of alcohol has been shown to cause organic psychosis and dementia

But just as the risks associated with heavy alcohol use don’t argue for completely avoiding alcohol consumption in those without preexisting vulnerabilities, any risks that may correlate with heavy marijuana consumption don’t argue for completely avoiding marijuana in those who likewise lack preexisting vulnerabilities. 

Perhaps Berenson could have considered a different title for his book, such as “Everything in Moderation.”

The Case for Economics When Considering Alcohol Tax Levels

“It’s time to raise the alcohol tax,” declared Vox author German Lopez back in December.

Now let me state upfront that I am not confident I know what the correct tax rate on alcohol should be. Lopez may well be right about their being a rational case on economic grounds for an increase based on high-quality, robust analysis. But his article does not make a reasoned case satisfactorily, nor does it link to such analysis.

In fact, it came to my attention as I was finalizing my new paper “How Market Failure Arguments Lead to Misguided Policy” (released today). And I’m convinced his piece is a classic of the genre. This article aims to highlight some of the key objections I have to his approach, which is increasingly common in public debate.

The traditional economic case for alcohol taxation

Libertarian theory aside, the classic case for taxing alcohol will be familiar to those with basic economic knowledge. Alcohol consumption is believed to impose, on net, external costs on people other than drinkers themselves.

When deciding whether to drink, individuals are thought to only consider the balance of private costs (the money it costs to drink, the hangover, the risk of disease or accidents for them etc) and the private benefits of consumption (the confidence, the enjoyment of the taste, the benefits to them of socializing etc).

But clearly, alcohol consumption can have external effects. The costs of alcohol-related crime and driving under the influence are borne by others. There may be net external costs relating to health care, too, given alcohol-related diseases and incidents could necessitate higher taxpayer subsidies or insurance premiums (though, applying such logic consistently, one would have to net off any “savings” that alcohol consumption might deliver in terms of lower Social Security and Medicare payments from reduced longevity).

The economic case for a tax then is this: if we observe net external costs associated with alcohol consumption, then allowing a free market would lead to higher levels of consumption than optimal. If a tax can be imposed that equates roughly to the marginal external costs of consumption, then drinkers are faced with a price reflective of the true costs of their actions.

Due to the “Law of Demand,” the amount of alcohol consumption will fall to the level at which marginal social costs equate to marginal benefits as this tax is imposed. Some of the negative external costs will occur less often, as will some of the private costs. Society as a whole will be better off because the tax means prices now reflect the true cost to society of the product’s consumption.

In order to make the case for a hike in alcohol taxes then, Lopez simply needed to present clear evidence that current tax rates on alcohol are too low to account fully for the external costs of consumption we see. His line of reasoning does not make this case.

When “Zero Tolerance” Means Zero Logic

Schools work very hard to curb drunk driving, so when a sober student offers to drive an inebriated friend home from a party rather than let her attempt to drive home herself, no doubt any school would hold her up as worthy of emulation, right? Wrong, sadly, at least at North Andover High School in Massachusetts:

Two weeks ago, Erin [Cox] received a call from a friend at a party who was too drunk to drive. Erin drove to Boxford after work to pick up her friend. Moments after she arrived, the cops arrived too and busted several kids for underage possession of alcohol.

A North Andover High School honor student, Erin was cleared by police, who agreed she had not been drinking and was not in possession of alcohol. But Andover High told Erin she was in violation of the district’s zero tolerance policy against alcohol and drug use. In the middle of her senior year, Erin was demoted from captain of the volleyball team and told she would be suspended from playing for five games.

One of the central purposes of education is to teach students to consider the consequences of their actions. In this sense, Cox and her friend demonstrated greater wisdom than school officials. While the students clearly considered the potentially lethal consequences of attempting to drive drunk, school officials apparently haven’t considered how their “zero tolerance” policy might discourage sobers students from aiding inebriated colleagues in the future. As Alexander Abad-Santos notes at the Atlantic, “Cox did not break any laws; she did not drink, did not party — yet was still punished by the school. By reprimanding Cox, North Andover High is likely sending out a confusing and contradictory message to teens about drinking, designated drivers, and asking for help.” The Cox family lawyer agrees:

First They Came for My Coke, Then They Came for My Jack

Not satisfied with hounding smokers and purveyors of Big Gulp sodas – or even gun manufacturers – nanny-staters have reached way back into their historical toolkits to go after alcohol. That’s right, in this the 80th year since the repeal of Prohibition, a new coalition has arisen to take on the scourge of demon rum.

But these aren’t your great-granddaddy’s Baptists and bootleggers; instead we have a transnational alliance of “public health professionals” out to make the world a more sober place.  Not satisfied with the persuasiveness of their entreaties, however, they further want to muzzle alcohol producers and anyone else with a “stake” in the debate.  (Apparently limiting the freedom to drink isn’t enough for these people; the freedom of speech and to petition the government for redress of grievances are also suspect.)

Here’s Exhibit A, a “statement of concern” put out in February by a group of public health advocates calling themselves the Global Alcohol Policy Alliance.  In a nutshell, GAPA doesn’t like the fact that the beverage alcohol industry is involved in the debate on how to reduce alcohol abuse, not even the commitments that 13 of the largest alcohol producers made in support of the World Health Organization’s “Global Strategy to Reduce the Harmful Use of Alcohol.  The most revealing “reservation” the GAPA-niks have is item 3 on page 3:

Prior initiatives advanced by the alcohol industry as contributions to the WHO Global Strategy have major limitations from a public health perspective …

That sounds rather innocuous – an academic disagreement about alcohol policy – but let me put this in context.  The public health community consistently advocates “population-based” controls that simply seek to reduce total alcohol consumption, regardless of whether alcohol abuse declines.  There could be cirrhotic ne’er-do-wells dying in the streets, but as long as yuppies buy less Jack Daniel’s, all is fine.  The alcohol industry, or anyone that cares about actually fixing social problems rather than taking steps that at best just make politicians feel good – call it the inverse Baptists/bootleggers – prefers a targeted approach: keep booze away from kids, get alcoholics treatment, don’t drink bad moonshine that’ll make you go blind, etc.

Chris Christie Allows New Jerseyans to Quaff Better Wine

While perhaps more identified with eating than drinking, New Jersey Governor Chris Christie – who headlined Cato’s recent Milton Friedman Prize Dinner – signed a law in January that allowed out-of-state winemakers to sell directly to in-state consumers and retailers.  This wasn’t a spontaneous bit of New Year’s bonhomie – the U.S. Court of Appeals for the Third Circuit had ruled in Freeman v. Corzine that the previous rules benefiting in-state wineries was unconstitutional (that pesky Commerce Clause again) – but still it was a positive sign: even Wine Spectator took note.

More importantly, the district judge in charge of the nine-year lawsuit challenging that earlier law recently approved the consent decree whereby New Jersey’s new law remedied the claims brought by the out-of-state wineries.  The agreement creates an out-of-state plenary winery license (good luck saying that after having consumed too much of the the vintage) under which “foreign” wine can compete on an equal playing field with good ol’ New Jersey stock.  Specifically, the new law grants this license to out-of-state applicants, including those who sell their wares over the internet, who do not produce more than 250,000 gallons of wine per year and are duly licensed in another state.

The upshot is that the new law takes effect as of this month.

This all still seems like a bit too much regulation to me, but at least everyone is now subject to the same rules.  I may have to take advantage of this newfound freedom when I travel up to the Garden State for my college reunion in a few weeks.

For my previous writings on booze and the Commerce Clause, read this and listen to this.

Drinking Away Your Constitutional Problems

Santa Clara law professor Brad Joondeph, who runs the very helpful – as a primary document aggregator for all the Obamacare cases –  ACA Litigation Blog, thinks he’s stumbled onto something :

So after reading my roughly 500th ACA-litigation-related brief, motion, or filing of some sort, I think I have gotten a little punchy. But it occurs to me that a a great new drinking game for those ACA litigation buffs who sit around on Friday nights drinking beers – a huge cohort, I am sure – would be to read aloud briefs filed by the challengers, and take turns drinking when the word “unprecedented” is used.

Indeed, the argument that there is no Supreme Court precedent sanctioning the assertion of power the government claims  – that the individual mandate is, quite literally, unprecedented – goes back to the earliest articulated constitutional arguments against Obamacare, particularly by the “intellectual godfather” of the legal challenges.  I can tell you that Cato’s latest Obamacare brief, which we’ll be filing in the Eleventh Circuit – the Florida-led 26-state case – next week, uses the word three times.  (We also use “novel.”)

The drinking game that Joondeph proposes, however, is not, um, unprecedented.  Josh Blackman has been talking about it incessantly at least since our time writing about the Privileges or Immunities Clause.  He even blogged about it last August! 

I would suggest that Brad and Josh play the “unprecedented” drinking game to settle the score once and for all, but alas Josh doesn’t drink.  Maybe I should step in for him; if I can bet Yale law professor Akhil Amar $100 on the outcome of the litigation, I can certainly do this.

For other connections between booze and the Commerce Clause, see my recent post on the (unfortunately not unprecedented) Care Act.

On the Interstate Shipment of Green Beer

Today being St. Patrick’s Day, it seems appropriate to revisit the unlikely juxtaposition of two of my favorite legal policy topics: alcohol and the Commerce Clause.  (Listen to my podcast on the subject or read its transcript.)  The point of all this is that alcohol is no different from any other commodity in that states cannot erect arbitrary regulations that privilege in-state interests (be they retailers, wholesalers, or producers) ahead of their out-of-state counterparts.

But St. Paddy’s Day is not the only reason the issue is topical.  Last week, the Supreme Court declined to review the Fifth Circuit’s indefensible decision in Wine Country Gift Baskets.com v. Steen. It did so despite the Fifth Circuit’s upholding of a Texas law designed to protect Texas’s in-state liquor retailers from out-of-state competition, a holding that disregarded recent high-court precedent.

In Granholm v. Heald (2005), decided together with the Institute for Justice’s Swedenberg v. Kelly, the Supreme Court struck down a similar protectionist law. Both cases challenged laws that permitted in-state wine producers to sell directly to consumers while prohibiting similar sales from out-of-state producers. The Court held that, notwithstanding a provision in the 21st Amendment (which repealed prohibition) that allows states to regulate their own liquor industries, the Commerce Clause prohibits states from disrupting free trade by discriminating against out-of-state businesses in favor of in-state businesses. This interpretation of the Commerce Clause grew out of the common-sense understanding that, if left unchecked, state governments have strong incentives to protect in-state businesses (who are voters) at the expense of their (non-voting) out-of-state competitors. Without constitutional checks, such laws could eviscerate Congress’s constitutionally enumerated power to “regulate [make regular] commerce … among the several States.”  

Nevertheless, the Fifth Circuit decided to limit Granholm to wine producers. As is evident by the name, however, the Wine Country Gift Baskets.com case concerns a wine retailer. Yet Granholm explicitly said that states “may not enact laws that burden out-of-state producers or shippers simply to give a competitive advantage to in-state businesses.” It is dismaying that the Supreme Court didn’t care about the Fifth Circuit’s neglect of this language.

Granholm was an important blow against the heavily protectionist and cartelized liquor industry. As was documented in a pre-Granholm article in Cato’s Regulation magazine, the prohibition on direct shipment has been used to strangle small wineries as they struggle to access larger markets without having to go through the state-controlled distribution networks. Despite an explosion of wine-drinking and -making in this country in the last 30 years – with consumption increasing by nearly 50% between 1991-2001 and wineries quadrupling between 1974-2002 – the small winery still fights against an old-boy network of producers and distributors. In 2003, the top 30 wine companies still provided 90% of U.S. wine although they were less than 1% of the producers.

This is, of course, exactly how the top 30 wine companies want it.

Granholm dismantled some of this network. Unfortunately, Wine Country Gift Baskets.com will allow this unconstitutional infringement of the right to earn an honest living (see Timothy Sandefur’s excellent book of the same name) to persist in some states.

But Americans, like most of the world, appreciate their booze. During prohibition, Americans endured Tommy-guns, corruption, gangsters, and speakeasies just for a drink. If the government made it illegal to drink responsibly, many Americans were willing to thwart the law and drink irresponsibly.

The negative effects of prohibition were too visible to deny and, after 13 years of waging war on a non-compliant population, prohibition ended. In its wake, however, prohibition left another war, an 80-year “on-going, low-level trade war” (in the words of Granholm) between states and their three-tiered monopolies over the production, distribution, and sale of alcohol. And so, 21st Amendment or not, prohibition lives on – though the  colorful characters in spats carrying Tommy-guns have been replaced by iPad-wielding lobbyists and politicians who do their bidding.

Thanks to Trevor Burrus for his help with this blog post.