The FDA’s Assault on Tobacco Consumers, Part 3

Early one morning last December, Jeff Gracik was heading to his southern California home garage-workshop where he makes his living when he heard a loud, hurried knock on his front door. Thinking it might be a rushed UPS driver, he quickly opened the door. But it wasn’t UPS. Standing on his doorstep were three badge-flashing inspectors from the U.S. Food and Drug Administration. They had come to inspect Jeff’s business.

Just what is Jeff’s business? Does he produce food? No. Does he produce drugs? No again. So why the unannounced visit by FDA inspectors?

Jeff makes pipes for tobacco pipe smokers. He doesn’t make tobacco, mind you, which (alas) Congress empowered the FDA to control, but pipes, most of which are made from wood (most commonly briar, but other varieties too), materials such as acrylic and vulcanized rubber for the mouthpieces, and wood stains, which Jeff buys but does not make.

In its wisdom, the FDA has deemed pipes “tobacco products,” a category of things it regulates under the Family Smoking Prevention and Tobacco Control Act (TCA) of 2009. Forgive the bureaucratese I’m about to shovel your way, but an FDA document states (pp. 257-58):

“The definition of ‘tobacco product’ … includes all components, parts, and accessories of tobacco products (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product). FDA interprets components and parts of a tobacco product to include any assembly of materials intended or reasonably expected: 1) to alter or affect the tobacco product’s performance, composition, constituents or characteristics; or 2) to be used with or for the human consumption of a tobacco product. Both e-cigarettes and pipes meet this definition.”

You may find it odd that the FDA chooses not to regulate lighters, matches, ashtrays, humidors, and the like, but it has its reason: it deems such things to be accessories, not components and parts. Accessories, the FDA says, “do not contain tobacco, are not derived from tobacco, and do not affect or alter the performance, composition, constituents, or characteristics of a tobacco product.” Since pipes do those things, they are deemed regulated components rather than unregulated accessories.

Who knew the FDA personnel had the wisdom to make such fine distinctions?

Note the first word I emphasized a couple of paragraphs earlier: interprets. The FDA admits it has no explicit statutory authority to regulate things not made or derived from tobacco even if they can be used to consume tobacco. Did the members of Congress who wrote and voted for the TCA (which amended the FD&C) deem non-tobacco products such as wooden pipes to be tobacco products? It appears not. The legislation states that the “term ‘tobacco product’ means any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product).”

The word including would seem to limit the covered components, parts, and accessories to things “made or derived from tobacco,” of which the briar root Jeff Gracik uses is not an example. Briar comes from the root of the flowering plant called Erica Arborea, or tree heath.

To reinforce my point, note that the word pipe appears in the TCA only as a qualifier for the word tobacco. The statute’s authors wanted to assure that tobacco is understood to include pipe tobacco and not just cigars and cigarettes. But the legislation contains not one single reference to pipes per se. So Congress apparently did not intend to authorize the FDA to control anything other than tobacco or things derived from it, even things that are likely to be used to consume tobacco.

But no matter. The FDA has assumed the power to deem non-A to be A. Logic and common sense be damned.

At any rate, three FDA inspectors (two of them trainees) turned up unannounced at Jeff Gracik’s door to say that they had the authority under the TCA to enter his premises — right then — and inspect his home workshop. Actually, he had “consented” to inspections once every two years when he registered with the FDA as a pipe maker. Jeff had learned earlier that under the law, retailers could not sell his pipes unless he was registered, so he allowed a retailer to register him, saving him the trouble of doing the paperwork himself. He had no choice: he earns his living as a full-time pipe maker and wants to keep doing so.

Jeff, who is 39, started making pipes in 2003. He sold his first one a year later and has since built a sterling reputation among pipe collectors. He makes 100 to 125 pipes a year — which sell for $800 to $3,000 apiece — under the name J. Alan Pipes. Jeff is an artisan; he makes pipes one at a time by hand. Each is unique, a thing of beauty, a dazzling collaboration of nature and human being. He and brother Jeremy have a second, lower-priced line of partially machine-made pipes under the name Alan Brothers.

Needless to say, Jeff was unaccustomed to having federal agents traipsing around his workshop. “I was so shocked,” he told me. He said the inspectors were friendly but firm — and apparently unsure what they were supposed to be doing. This might have been their first venture into unknown territory. (Other pipe makers are being similarly visited.) The inspectors started asking questions “most of which were not really relevant to pipe making. Things like: tell us about all the materials you use. Tell us about where they’re from. Do you have receipts for where they’re from? We need the names for all the distributors for all your materials. We need to know exactly the ingredients with which they’re treated; so, for instance, briar, how is it treated? Of course, I’m an artisan. I don’t have those kinds of records.”

That was just the beginning. “They had me demonstrate how to make a pipe. So I had to take a block of briar and chuck it in my lathe…. And as the day went on, they became more and more interested in what I was doing.” He said some of their questions suggested they were interested in the potential toxicity of materials and ingredient, but that’s as far as that went. They tested no materials or stains and took no sample with them. Jeff was not told to submit anything for approval.

The visit lasted six and a half hours, as if this small businessman had nothing better to do than entertain a group of FDA inspectors. “I got nothing done that day,” he said.

“They wanted to see written procedures,” he explained. “How do you do A to Z?” He told them that as a craftsman and unlike a factory, he has no written procedures. As the hours went by he sensed he was almost gaining sympathy from the inspectors.

Jeff said he did his best to comply with all requests, including requests for documents going back to 2006. “If they shut me down because I failed to answer a question to their satisfaction,” he said, “then my kids don’t eat and we foreclose on our house.”

For the record, the TCA states that regulations “shall not impose requirements unduly burdensome to a tobacco product manufacturer or importer, taking into account the cost of complying with such requirements and the need for the protection of the public health ….” Decide for yourself if the FDA obeys that prohibition.

The FDA and those who support government control will point out that even though pipes are not made from tobacco, they are used to consume tobacco. That’s true. But Gracik points out that some people who buy his pipes, which can be as beautiful as any work of art, are collectors who don’t smoke. (Interestingly, his grandmother’s first cousin was Andy Warhol.)

It’s hard to say how many pipe makers we have in America. People connected with the industry and hobby estimate the number of full-timers at 25 to 30, with a few hundred more who make and sell pipes part-time. Jeff is afraid that the thicket of rules could persuade many of them to “throw in the towel.” He says: “It scared the hell out of a lot of pipe makers when we found out we were under this kind of scrutiny.”

The pipe makers certainly could use a trade association to protect them. But Gracik says they are, unsurprisingly, individualists and so discussions about forming an association have gotten nowhere.

So the FDA harasses — even if it’s with a smile — small-scale artisans who scratch out livings working by hand with wood and other harmless materials. To what end? It’s all part of a larger puritanical campaign to harass peaceful Americans who enjoy consuming tobacco via cigarettes, cigars, pipes, and smokeless tobacco and using non-tobacco nicotine e-cigarettes.

“Nothing so needs reforming as other people’s habits,” Mark Twain said.

Using tobacco is not risk-free, of course, but most things in life are not risk-free. In the real world, risk can be managed and minimized but never eliminated, and in a free society, individuals have the right to decide for themselves how to go about doing it.

Continue Reading

Nationalism, the Ideological Delusion at the Heart of Protectionism

Every economic entity, whether it be an individual, a family, or a firm, faces a constant choice with regard to how it will secure the goods and services it desires in order to carry out its economic plans: make or buy?

Most individuals and families give little conscious thought to their making this choice. Yet they make it all the same. Many individuals do many things for themselves, such as house cleaning, home maintenance, personal care of various sorts, meal preparation, and so forth. They do not pause often to consider whether they would be better off to purchase these things, although they might purchase them, and some individuals do. One can hire housekeepers, groundskeepers, meal providers, and many other services. In some cases, provision of these services amounts to a large industry catering to individuals and families who have decided that buying is better than making, that market transactions are better than self-sufficiency.

In contrast, business firms commonly give serious, explicit attention to how they should answer the make-or-buy question, and many specialize in a narrow range of activities, relying on market purchases to provide every item they can buy at a lower cost than that at which they could make it for themselves.

When someone decides to buy rather than make, it is normally the case that no one objects or attempts to impede the transaction. In some cases, local providers of certain goods and services have tried to shield themselves from the competition of providers in other states, but in many, if not all, cases the U.S. Supreme Court has ruled that such state-level protectionism is contrary to the Constitution’s Interstate Commerce Clause. As a result, the United States of America has long been a vast free-trade area, and this condition explains in no small part how Americans have succeeded in lifting their level of living steadily over the past two centuries, notwithstanding the transitory inability of various suppliers to meet the “outside” competition successfully.

In regard to competitors located outside the national boundaries, however, the situation has often been seen as different and as warranting government action—tariffs, import quotas, prohibitions of trade in certain items, special regulatory, licensing, or documentation demands laid on imported goods or importers, and so forth—aimed at keeping American producers free of foreign competition.

Along with the demands for such government restriction and penalization of international purchases has grown up or been imported from elsewhere a doctrine—protectionism—aimed at making such selfish and predatory use of government power appear to be broadly beneficial to the nation as a whole, not simply to the domestic providers who cannot meet the foreign competition. Although protectionism has had a multitude of promoters through the ages, from the man in the street to the occupant of the White House, it has always been a bogus doctrine, making claims that cannot be upheld by solid economic theory or sound economic history. Analysts going back to Adam Smith, James Mill, and David Ricardo have debunked protectionism’s claims, as have many economists in the following centuries.

Yet it lives on, and even now it is thriving ideologically and politically in many quarters, and the question is, why? What accounts for the fact that a doctrine few people would invoke to justify government interference with competition from outside the neighborhood, the city, the state, or the region nevertheless seems to many people to make sense at the national level?

To ask the question is almost to answer it. People who would balk at city, state, or regional protectionism will not only tolerate national protectionism, but actually hail it as a godsend for overall national prosperity. The doctrine of nationalism, a dangerous brew in which Americans have long indulged to great excess is the cause of this bizarre public sentiment. If you told the people of Cleveland that the city must practice protectionism against all other cities, states, and regions, they would account you crazy. But if you tell them that the entire nation must put protectionism into practice, many of them will swallow the proposal with gusto.

What is this mystical magnetism that nationalism exerts on so many Americans? It is the wholly superstitious conviction that some special, deep, and overriding solidarity binds them to a particular group of almost 330 million strangers, people they have never met, never will meet, and with whom in many cases they have practically nothing in common. Indeed, in many cases, if any given American were to meet with a great many of his “fellow Americans,” he would find them altogether odious. On the other hand, he might find, should the occasion arise, that he has much in common with many Canadians, Guatemalans, and Kenyans. (I myself have done so in all these cases and an abundance of others, so my example is scarcely far-fetched.)

In history, nationalism has served as a powerful means whereby ambitious would-be national leaders have forged groups of unrelated and sometimes hostile people into a unitary political entity with the enlarged force that resides in sheer numbers. Nevertheless, the substantive moral irrelevance of nationalism arises from, if nothing else, the mere accident of one’s having been born within the boundaries that contentious rulers happen to have established in their struggles with the rulers of adjacent territories. Genuine, morally defensible loyalties cannot be justified on the basis of accidents beyond one’s choice or control.

Yet, however morally irrelevant nationalism ought to be, it is in practice often of life-and-death importance, and during recent centuries, hundreds of millions of persons have regarded it as so important that they would fight and die in loyalty to the political leaders of “their” nation-state or gladly send their sons to be slaughtered in the same cause. If it is potent enough to cause men to march in legions over the cliffs into oblivion, it is certainly powerful enough to prop up the economically and morally bankrupt practice known as protectionism, and it does so quite commonly throughout the world.

Continue Reading

The FDA’s Assault on Tobacco Consumers, Part 2

A bill introduced in the U.S. House last month would ban the flavoring of any “tobacco product” except, strangely, cigarettes.” The targets are vaping devices (vapes, e-cigarettes), but also cigars and pipe tobacco. The Food and Drug Administration deems vaping devices “tobacco products” even though they contain no tobacco. Introduced without sponsors by Rep. Rosa DeLauro (D-CT), the bill would allow an exception for some vaping products, but it is one that would be all but impossible to qualify for.

The rationalization for the prohibition is that flavoring attracts underage consumers to the products. Yet this seems implausible because it suggests that without flavoring teenagers would be uninterested in e-cigarettes (not to mention conventional cigarettes). Yet kids have long been attracted to conventional unflavored cigarettes. (And unflavored marijuana has no troubling winning favor among the young.) After all, fruit, mint, and other flavors are readily available in unrestricted products like hard candy, chewing gum, and soft drinks. So if underage consumers want those flavors, why don’t they stick with products they can legally buy? Clearly, the attraction to e-cigarettes (and conventional cigarettes) is something other than flavors — the “coolness,” or maturity, factor perhaps.

DeLauro’s bill betrays a fundamental puritanism, which underlies all prohibitionism: since nicotine is a substance that provides pleasure and some people therefore use it habitually, it must be stamped out and its consumers, producers, and merchants demonized. (Human beings have long affirmed themselves by demonizing others and their preferences.) As H. L. Mencken told us: puritanism is the “haunting fear that someone, somewhere, may be happy.”

At any rate, DeLauro’s bill is redundant because the FDA under Trump appointee and putative deregulator Scott Gottlieb is already moving in that direction. (Her bill likely excludes conventional cigarettes because the FDA is already stepping up the restrictions on them.) Indeed, Gottlieb now threatens to yank vapes from the market and subject them to a lengthy and expensive regulatory review if “the youth use continues to rise.” (The anti-vaping hysteria is just getting started.) According to NBC News, Gottlieb told a meeting: “If … we see significant increases in [youth] use in 2019, on top of the dramatic rise in 2018, the entire category will face an existential threat. It will be game over for these products until they can successfully traverse the regulatory process.” (Emphasis added.) He reportedly accused the e-cigarette makers of marketing to young people. Yet when those makers label their products as for adults only, they are accused of enticing children. Damned if you do; damned if you don’t.

Welcome to America, the land (as Mencken put it) of the “theoretically free.”

In 2009 Congress and Barack Obama gave a virtual blank check to the secretary of health and human services to regulate “tobacco products” through the FDA and a soon-to-be-created Center for Tobacco Products. The result over the last few years has been a dizzying cascade of oppressive rules governing manufacturing, retailing, labeling, and other aspects of the business of producing and selling combustible and smokeless tobacco and nicotine-delivery products that don’t contain or are not made out of tobacco, such as e-cigarettes and pipes.

Among other things, the FDA has begun to move toward mandating that the nicotine in cigarettes be reduced to so-called “non-addictive” levels, the consequences of which would surely spill onto pipe and cigar smokers. (Nicotine users have always found ways to get the amount they want regardless of government restrictions.) The FDA’s most recent decree bans most flavored vape “e-juices” from general retail stores (as opposed to age-restricted vape shops), and prohibition of menthol cigarettes and flavored cigars are also in the works. Meanwhile, other tobacco products, such as pipe tobacco, that entered the market on or after an arbitrary date in the past (in 2016 or 2018, depending on the product) are being deemed “new” and made subject to costly and time-consuming FDA testing. Even a retailer’s blending of two long-available pipe tobaccos is deemed to be “new” and subject to testing. (Deadlines for submission for testing are in 2021 and 2022, depending on the product. The FDA’s procedures have yet to be worked out.)

The upshot is that adults are being harassed as they go about their peaceful consumption of combustible and smokeless tobacco and nontobacco nicotine products, which human beings have done in one way or another from time immemorial. (While some people find it easy to habituate themselves to nicotine, unlike inhaled tobacco smoke, it is not hazardous to health.) As noted, many of these bureaucratic violations of liberty are defended in the name of protecting children; however, we can address that issue without the blunt instrument of the state, and as mentioned, many intrusions have nothing to do with children. How many kids are shelling out for premium cigars, pipe tobacco, and briar pipes?

Moreover, regulations that appear aimed at children, especially those regarding vaping, may discourage cigarette smokers from switching to that safer form of nicotine consumption. The warning that vaping is “not a safe alternative to cigarettes” almost sounds like an argument for sticking with cigarettes, although vaping is safer than inhaling cigarette smoke. (The reported rise in teen vaping has coincided with a drop in teen cigarette smoking.)

The intrusions simply hassle adults and make what they want to consume less abundant and more expensive. And they do something else: they entice teens, who will always be drawn to forbidden fruit. (What would Huck Finn be saying?)

Congress should repeal the Family Smoking Prevention and Tobacco Control Act (TCA) of 2009, which empowers the FDA to regulate “tobacco products” and to define what a tobacco product is. How can anyone continue to believe that the U.S. government is constitutionally limited when Congress and the president can authorize an executive department and a regulatory agency to define their own powers over peaceful, consensual conduct?

Make no mistake about it: the assault on manufacturers and retailers is ultimately an attack on consumers who indulge in what other people believe are vices. (See Lysander Spooner’s Vices Are Not Crimes: A Vindication of Moral Liberty.) This is shameful in a society that fancies itself free.

To be continued…

Continue Reading

Living In (All) the Moment(s)

For me to “live in the moment” isn’t really different than most people’s meaning for the term: I’m focused on the now, instead of the past or present.

I typically find this state when I’m facing fear. I can tend to dwell on the past or dream and plan about the future, so often I have to be scared and/or adrenaline-d into the moment (maybe this is a fault). A good hard run brings me into touch with the moment, as do most hard conversations or difficult acts of self-integration. It’s very hard to go through these experiences or most challenging new experiences while on autopilot.

But more powerful even than adrenaline is gratitude. And ironically, I find this key to present awareness in past-awareness and global awareness.

When I stop to think about my life (typically this happens when I’m driving), I might come to realize that – compared to both most humans who have ever lived (past awareness) and most humans who are living (global awareness), I have been given so many gifts that I should appreciate. I’m reasonably industrious, reasonably open, healthy, gifted with resources, free. I have stability and live in a peaceful place. In the big picture, I live in a true paradise.

When I do become aware of this, I can be overwhelmed with the input of everything that is blessing me: health, opportunity, skills, family, friends, good memories, good role models, and so on. I become present to the beauty around me in that moment – the sunlight, the skyscrapers – and to the things that have happened to get me to a place of such beauty.

I remember all of the things I’ve done and left undone, and I either celebrate them or resolve to do what needs to be done so I can experience these moments of gratitude and presence without conflict.

So maybe living purely in the moment is overrated anyway. Maybe the best state is really to be able to live in all the moments: to be able to see how your past connects to your present connects to your future.

Originally published at JamesWalpole.com.

Continue Reading

The Best Things to Learn about Raising Children (37m) – Episode 275

Episode 275 has Skyler giving his commentary on the following topics: using an essay by Leo Babauta of ZenHabits.net, he looks at 18 of the best things to learn about raising children; loving your children unconditionally; helicopter parenting; the harmful effects of harsh discipline; self-directed education; learning independence; democratic family decision-making; leading your children by example; parental contrition; shielding children from sex, drugs, and technology; giving children space; recognizing that your children should be allowed to become their own person; and more.

Listen to Episode 275 (37m, mp3, 64kbps)

Subscribe via RSS here, or in any podcast app by searching for “everything voluntary”. Support the podcast at Patreon.com/evc.

Continue Reading

Homosexuality Isn’t The Issue

Back when I was a follower of a religion which condemned homosexuality, I went along and believed it was wrong, just like I was told to believe. Still, I could never really figure out how it was supposed to be a threat to me. I didn’t give it that much thought.

During my teenage years I had begun to realize my youngest sister was probably a lesbian, although I never said anything to her about it. It wasn’t an issue and was none of my business until she chose to make it my business.

In my early 20s I got “hit on” by an older guy at a park while I was taking my lunch break away from work. I wasn’t rude– I just mentioned my wife and hinted I wasn’t interested. There was no problem; the guy just went on his way.

Years later, a gay friend hit on me at karaoke one night. Again I just said I wasn’t interested in guys and let it drop. We remained friends.

I’ve been propositioned online several times over the years, especially during the chat room days. There was no need for me to be rude about it. I can’t blame someone for taking a chance.

As the years passed I became more and more libertarian (even before I knew what to call it). This powered up my inability to be offended over such things. I came to see that all humans have equal and identical rights, and that’s that. No one has “extra” rights; no one has “limited” rights. Your sexuality doesn’t even figure in. I see this more clearly every passing day.

Which brings us to now. There is one apparently homosexual person who is offending me, and some are trying to twist my offense into being about homosexuality. I don’t think it is.

My 11-year-old daughter has a “frienemy” who has been trying to bully her– with the encouragement of the girl’s parents– into a lesbian relationship. It has been going on for a year and a half now. This girl acts like a friend until she draws my daughter in, and then she does the nastiest, meanest things I have ever seen a kid do– totally crushing my daughter with her backstabbing. This drives my daughter away from her. As soon as she realizes my daughter is out of her control, she acts sweet and reels her in again– and convinces her that she’s my daughter’s only “real friend” and that her parents can’t be trusted. This repeats endlessly. This has led to some difficult and uncomfortable parenting decisions on my part.

The other girl’s parents have even tried to talk my daughter into leaving home and moving in with their family so the girls can be together. They are all trying to make this into an issue of anti-gay bigotry, when it is nothing of the sort. You abuse and backstab my daughter, and manipulate her to try to drive a wedge between us, and I don’t care who or what you are. I’ll hope for your destruction. My older daughter was trapped in an abusive heterosexual relationship for 7 of the last 8 years of her life. This is a line you don’t want to cross with me. My tolerance for such things has been used up.

“Mad” doesn’t begin to cover it.

My daughter can choose to be in a developmentally appropriate relationship with whoever she chooses, but I will do what I can to protect her from an abuser. And this girl is quite definitely an abuser and a bully, even if my daughter refuses to see it.

And, by the way, my (lesbian) sister agrees with me.

Interesting times.

Continue Reading