The State as Our Father (or Loving Mother) By Pierre Lemieux

Current attacks on the Food and Drug Administration for not regulating e-cigarettes enough remind us of an inconvenient truth. In the minds of public health activists and many medical experts, the state is to adult citizens what parents are to their children. This fiction has even been consecrated by a century-old legal principle.

The Wall Street Journal of yesterday (“Researchers Say FDA Has Fallen Down on E-Cigarette Testing”) reports that the current attacks against the FDA are of two sorts:

The Food and Drug Administration has come under fire for not moving quickly to address the health risks of e-cigarettes, but outside the public spotlight it is also under attack for not prioritizing study of whether those vaping products may well be an important way to reduce deaths from traditional smoking.

For some, the FDA is not regulating enough; for others, it’s regulating too much or, at least, not intelligently. The WSJ story shows the FDA as a complex bureaucracy whose right hand ignores what the left hand is doing. The contemporary student of bureaucracy, who knows that bureaucrats pursue mainly their personal interests like anybody else, will not be surprised by policy inconsistencies.

Another interesting fact is the apparent conflict, within the FDA, between some economists and a harder regulating wing. As I explained in a recent Reason Foundation paper, those economists want to incorporate consumer preferences (by way of the “consumer surplus”) in cost-benefit analyses of smoking and vaping, as required by standard economic theory, while the hard regulating wing denies any value to most consumer demand (see “Consumer Surplus in the FDA’s Tobacco Regulations, with Applications to Nicotine Reduction and E-Cigarette Flavors,” June 2019).

To simplify a bit, the hard regulators think that government should protect consumers against themselves like parents protect their children by making choices in their stead. This idea corresponds to the mainstream approach in the public health movement. What is more surprising, perhaps, is that a legal principle going back to the 19th century (in America at least, although a European influence is likely) precisely claims that, in some matters (which have expanded with time), government is the parent and its subjects are the children. Indeed, the legal doctrine has a name: parens patriae, which means “parent of the country.”

This theory is explained in a major textbook of public health law: Lawrence O. Gostin and Lindsay F. Wiley, Public Health Law: Power, Duty, Restraint, Third Edition (Oakland CA: University of California Press, 2016). A few quotes from the book are revealing:

From a constitutional perspective, there exist historic wellsprings of state authority to protect the common good: the police power to protect the public’s health, safety, and morals, and the parens patriae power to defend the interests of persons unable to secure their own interests. In the United Sates, the parens patriae function belongs primarily to state and local governments. It is traditionally invoked in two contexts: to protect individuals who are unable to protect themselves because they are incapacitated, and to assert the state’s general interest and standing in communal health, comfort, and welfare, safeguarding collective interests that no individual, acting alone, has the capacity to vindicate. The Supreme Court has recognized the states’ broader parens patriae capacity in the context of quarantine, sanitation, protecting the water supply, and preventing air and water pollution. In recent years, many state and city governments have acted in their parens patriae capacity in litigation against industries that produce and distribute harmful products.

The parental government must be just toward its wards. Gostin and Wiley repeat a mantra of today’s theory of public health:

The idea of social justice is a core value of public health and is foundational of public health law.

As the federal government has gradually replaced, or tried to replace, state governments as the loving mother and severe father of the country, it has extended its public health reach, recently encompassing e-cigarettes, which are legally deemed to be “tobacco products.” Creative laws!