by Carl V Phillips

So today FDA Commissioner Gottlieb is pumping cigarette company stock prices by threatening to ban flavors in vapor products (or something — not entirely clear), unless the manufacturers magically get teenagers to switch back to smoking instead (or something — not entirely clear). I wanted to address one aspect of this rhetorical game that does not get talked about enough. I doubt there is any serious observer of this space who does not get this, but much of what is said seems to overlook it rather than drilling down to it as it should.

The prohibitionist’s simplest rhetorical game here is to confuse “this product feature is appealing to teenagers” with “this product feature is particularly or uniquely appealing to teenagers.” But there is a deeper game, trying to cement the premise that intentionally lowering product quality is a good thing. This applies not just to interesting flavors of e-liquid, but also everything from attractive packaging to convenient unit quantities. The standard response to the “teenagers like flavors” rhetoric is to counter that adults like them too, and thus they seem to be critical for smoking cessation. Both systematic data and a deluge of testimonials make this point. It is a great point, and those making it are doing a great job.

However, the prohibitionists at FDA and elsewhere are obviously not unaware that adults also like and buy interesting flavors. Similarly, adults and teenagers both like it that e-cigarettes are less than five kilograms and come in colors other than day-glo orange. They like it that they are affordable, that cartridges last for a while, and that the devices do not burn your lips. They like it that there is no regulation that says tobacco products must be smeared with feces before they are packaged. All of these are aspects of product quality. The same features that make a product appealing to people (and thus, the banning of which would make them less appealing to people) make it appealing to teenagers. It turns out that teenagers are very similar to people, and many would argue that they are people. Lower the quality of the product, and fewer teenagers will choose to consume it. Fewer adults too. This works for food, movies, and pens also. There is no magic here.

The magic exists entirely in the rhetoric, in which the prohibitionists trick people into endorsing (or at least not actively pushing back against) their underlying premise: Intentionally lowering product quality is a good thing because it discourages teenage use. Never mind that intentionally lowering people’s welfare is a phenomenally radical action for a government to take, one that ought to be based on a lot of open and honest analysis, not sneaky rhetoric. I find it is a useful clarifying thought to replace whatever quality-lowering regulation is being debated with “mandatory smearing with feces” (assume the feces are sterilized so they are not a health hazard): If it is okay to intentionally lower the product quality by doing X (flavor bans, “plain packs”, punitive taxes, etc.), then it must be okay to mandate feces smears.

Consider the usual scientific response to flavor ban proposals, that there is no evidence that particular flavors or categories are particularly appealing to teenagers. This is accurate; there is no such evidence and no reason to believe it is true. If someone wanted to lower vapor product quality in a way that particularly affected teenagers, perhaps the orange coloration or increased mass options would be the better bet. After all, isn’t the usual claim that teenagers are taking advantage of the products being so subtle that they can hide them from parents and teachers? Adults would not like ugly heavy products, but they could deal with them.

The thing is that FDA et al. are not actually claiming that the flavors are particularly appealing to teenagers, just that they are appealing. This is obviously true (see above observation that teenagers are very much like people). A casual reader might conclude they are claiming that this is a targeted lowering of quality that affects teenagers but not adults. In fact, the serious actors in the space seldom actually claim that, and when they do it seems usually to be a matter of sloppy word choice. They do not actually consider it a problem that a regulation lowers the appeal of a product for everyone (and thus hurts all consumers). To them, this is a feature, not a bug. They want to ruin the products for everyone.

In getting opponents to go along with their fiction that this is not their motive, they win their greatest victory. One of the important skills of a conman like Scott Gottlieb is to get people to adopt his hidden premises without him ever stating them, let alone defending them. When the arguments hinge on “but adults like flavors just as much as teenagers do”, they effectively concede a key prohibitionist premise: If there were a way to intentionally lower product quality, such that it hurt teenage consumers more than adult consumers, then doing it would be fine. Not just fine, but good or even clearly the right thing to do. No doubt there are some vape advocates who accept that, but presumably most are not ready to agree that their e-cigarettes should have to look like traffic cones. But by just fighting the empirical claim (which is not actually even being claimed), they are often implicitly endorsing the normative premise.

Some advocates lead with the message that there are already laws about teenage access and these just need to be enforced. This is good in that it does not endorse the premise that it goes without saying that harming adults for the good of the chiiiildren is justified (though usually this is not explicitly stated). The problem is that Gottlieb has cleverly turned this on its head, and threatens to hurt adults if they do not somehow better enforce the government’s laws, magically figuring out how to do what the government has never been able to do with cigarettes. Today’s rhetoric was mostly threatening the industry (though it is consumers who would suffer, of course), but he has directed that same demand at vapers themselves. Those who have been tricked into endorsing the underlying premises are cornered by this. They have effectively already conceded that destroying product quality is acceptable if minor bans cannot be enforced.

Advocates need to do a better job of backing a few steps up the prohibitionists’ chain of reasoning, rather than being tricked into conceding so much ground. Every argument should begin with the observation, “this policy is about intentionally harming people (vapers, smokers, other product users).” This should always be pointed out, because in itself that is a radical use of government power that should not pass without comment. It should be followed with a demand for an answer to, “by what right do you harm me/adult consumers/your citizens, even if it is true that this harms others more and harming them is a good thing because it changes their behavior?” Only after making those observations, and trying to never let the audience forget them, is it time to add “discouraging teenage vaping probably encourages teenage smoking”, “there the evidence does not support your implicit claim that teenagers like flavors better than adults do”, and other arguments about the scientific facts.