Regulatory Obstacles to Harm-Reduction: The Case of Smoking

37 Pages Posted: 6 Sep 2017

See all articles by Jonathan H. Adler

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Date Written: September 2, 2017

Abstract

Cigarette use remains the leading cause of avoidable death in the United States. The inability of many smokers to quit is a significant public health problem. The demand for a product that can help smokers kick the habit is an entrepreneurial opportunity. Yet government regulation threatens to hamper welfare-enhancing innovation and discourage the use of life-saving technologies, such as electronic cigarettes. In particular, the Food & Drug Administration (FDA) decision to “deem” electronic cigarettes as “tobacco products” to be regulated as tobacco cigarettes threatens to cartelize and ossify a dynamic, harm-reducing industry. FDA restrictions on truthful health information and comparative risk claims further inhibit potentially life-saving innovation by threatening to keep smokers and other consumers in the dark about the harm-reducing potential of e-cigarettes and reducing the economic incentives to develop safer forms of nicotine delivery. However well-intentioned, the FDA’s regulatory initiatives may inhibit the life-saving potential of alternatives to cigarettes and conventional tobacco products.

Keywords: Harm reduction, tobacco, risk regulation, e-cigarette, cigarettes, smoking, FDA

JEL Classification: K23

Suggested Citation

Adler, Jonathan H., Regulatory Obstacles to Harm-Reduction: The Case of Smoking (September 2, 2017). 11 NYU Journal of Law & Liberty, (2017 Forthcoming); Case Legal Studies Research Paper No. 2017-17. Available at SSRN: https://ssrn.com/abstract=3031211

Jonathan H. Adler (Contact Author)

Case Western Reserve University School of Law ( email )

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HOME PAGE: http://www.jhadler.net

PERC - Property and Environment Research Center

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