(via Reason) On June 18 2014, Senator John Davison "Jay" Rockefeller (D-WV) addressed the dire issue of "Aggressive E-Cigarette Marketing and Potential Consequences for Youth."
Well, perhaps you shouldn't watch the whole thing. It's two and a half hours of Senate testimony. I'm sure you can find marginally more productive things with which to occupy yourself.
Okay then. According to Senator Rockefeller, it's bad to convince kids to purchase electronic cigarette products. I think the worry is that the kids will then consume these products and become addicted, leading to health problems later in life.
Let's assume for the moment that the good Senator from the great state of West Virginia has conducted a thorough critical review of the relevant medical literature and has come to this conclusion without a hint of bias. Assume also that the standard public choice problems of incumbent firms seeking to protect political rents by shouldering out upstart rivals by way of offering special inside information to political elites who are legally exempt from insider trading statutes does not apply in this case and that Hume's warning against a sovereign that seeks to encrease his dominions offers no useful guidance here. Assume, in other words, no knavery.
What policy follows? From the majority statement: "beyond the flavors identified in our report, refillable nicotine liquid that is marketed can be found in flavors that include 'Bazooka Joe,' 'Gummy Bears,' and 'Chocolate Toot See.'” Are these flavors less euvoluntary than "Grandpa's Phlegmy Lucky Strike Cough" or "Bottom of a Crusty Ashtray"? Even if candy-flavored nicotine is intentionally aimed at children (and smokeless tobacco has had flavored variants in their products for decades with little public outcry), shouldn't a careful analysis include consideration of likely alternatives? Remember your Demsetz: the task of analysis is to compare alternative real institutions against each other rather than against an imaginary ersatz world. Pretending that kids would simply abstain from behavior that parents and legislators disapprove of thanks to regulatory efforts is the very essence of the nirvana fallacy. Moreover, product bans, speech restraints, and enforcement efforts almost never properly consider the full extent of the public costs. Consider that every federal and state inspector hired to interfere with the sale of electronic cigarettes gives up the opportunity to participate in the productive economy.
Then again, perhaps I'm looking at this the wrong way. Let's think in terms of comparative advantage and the Coase theorem. Assume that parents don't want their children using these nicotine products for the few years while they have custody. Assume further that these parents are insufficiently competent to prevent their kids from obtaining and consuming these products. The marginal costs of organizing to restrict advertising and sales are lowest in politics. Convening a Senate hearing is plausibly cheaper than parents organizing for a vociferous campaign of public censure (again, under the assumption that the value of Sen. Rockefeller et al's time is sufficiently low). So why shouldn't parents take full advantage of the services their tax dollars purchase and subcontract a portion of their ordinary responsibilities? Isn't Helen Lovejoy political economy simply a matter of low-cost provision of parenting duties? Why are the politically protected rents enjoyed by incumbent tobacco firms morally relevant? What matters is keeping nicotine vapor out of the hands of tender, innocent children. You know, just like the way that Schedule I keeps marijuana away from teenagers.
Invoking "children" is a natural defense against Plato's Divine Maxim (never to use violence to his country no more than to his parents). Obviously, the sovereign shouldn't treat kids with the same jurisprudential consideration as adults. So how can the armchair political analyst distinguish between a legitimate concern for minors and a mere political fig leaf? For me, I slightly alter Plato's Divine Maxim thus: would I be willing to completely prevent my parents from conducting an exchange to slightly increase the probability my kid wouldn't conduct the same exchange? Nota bene, I assume that on average, my parents will tend to be more law-abiding and conformist than my daughter. For e-cigarettes? Paternalist please. If you're going to let parents opt out of vaccinating their infants against communicable diseases, you sure as heck have no standing to ban vaping. Jenny McCarthy's preposterous drivel is a far greater threat to public health than smoking substitutes. Drag her in front of a subcommittee and then maybe we can have a little chat about how America's parents are justified in assigning their nicotine prevention and cessation duties over to the greatest deliberative body in the world.