We agree that a legalized, “nudged” regime would, subject to the caveats below, be far better than prohibition. But such a regime would accrue its benefits in large part from legalization, and to a significantly lesser degree from any nudging. The deviations from free market policies that Leitzel advocates carry significant downside risks, and straight legalization—in which legalized drugs are treated no differently than any other good—is likely better than a nudged system.

The first problem with nudges and the related policies that Leitzel advocates under legalization is that such a regime can evolve into de facto prohibition. Excise taxes, for example, raise the price of legal drugs, potentially enough to drive the market back underground and thus reintroduce many of the costs of prohibition. Other restrictions (such as licensing requirements for dealers) can have the same effect, especially when combined with excise taxes. The history of state marijuana legalizations illustrates this risk: In many states, a robust underground market remains despite legalization. Similar issues occur for cigarettes, where the high tax rates in some states induce substantial cross-border trafficking. In short, nudges often start off mild but evolve into stricter versions that raise concerns about slippery slopes.

The second issue with attempts to “soften” legalization is that even if deviations from laissez-faire are themselves moderate and the risks of slippery slopes mild, it is not obvious these deviations are improvements. Excise taxes, for example, penalize those who consume drugs without harming themselves or others. It is unknown what fraction of consumers are in this category, but based on alcohol consumption, it might be substantial. This knowledge would be vital to setting an efficient excise tax or even knowing if such a tax would be efficient. Yet, as Hayek would note, this is precisely the sort of dispersed, context-specific knowledge the state is worst at, making its guesses costly and error-prone.

Even granting the state perfect information, however, nudging smuggles in a stronger claim: The state should get to decide how much drug use is good or bad, and for whom. No doubt some use is bad for the user and/​or society, but the same statement applies to alcohol, strenuous exercise, undersaving, eating a poor diet, and more. Some readers might respond by arguing government should intervene in all these areas, and in most societies, it does. But once government adopts a paternalistic view of drug use or anything else, there is no natural stopping point; government then has the authority to limit any individual choice.

Another important question is whether nudges and other regulation generate unintended, and typically unwanted, consequences. Consider minimum purchase ages, which are intended to reduce use by those deemed not yet ready to make such decisions. These laws encourage widespread evasion, which breeds disrespect for the law, and these restrictions expand from defensible ages to ridiculous ones. The drinking age of 21 is a case in point.

Advertising restrictions are also problematic, even setting aside First Amendment issues. Relatively little evidence suggests that advertising increases the consumption of particular goods or services; it mainly shifts purchases across brands. These advertising wars between rival brands imply higher costs and prices, which critics of legalization should regard as a benefit. Further, much advertising might have beneficial effects, such as generating substitution from alcohol to marijuana or making people aware of low-dose versions of particular drugs (e.g., coca tea as opposed to cocaine).

A further issue is that many nudge programs—subsidized treatment, which is inevitable if policy “nudges” heavy users toward treatment—might appear to condone or encourage drug use, in effect saying, This is OK under these guidelines. Such concerns might be exaggerated, but even the appearance of such an effect is likely to increase opposition to legalization. For many people, it is one thing to tolerate others’ drug use; it is a different thing to see one’s tax dollars spent on those who misuse drugs.

The nudge approach implicitly assumes that addiction per se is a negative. No doubt some users consume more than is in their own interests (as occurs for many legal goods, such as certain foods). Yet, some whose addiction appears harmful to others might be engaging in behavior that is beneficial for them: relief from physical or mental pain, escape from difficult life situations, or just “entertainment.” Who gets to be the judge?

To be clear, a legalized but “nudged” policy regime for currently illegal drugs would almost certainly be superior to current prohibition. Yet, festooning it with paternal “nudges” risks squandering those gains by repoliticizing private choices.