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Published online by Cambridge University Press: 13 January 2009
For one with libertarian sympathies, the official regulation of foods and drugs is presumptively a bad thing. One is most accustomed to seeing the argument in debates about legalizing marijuana and other hedonic drugs. And it remains a very good if by now well-trafficked question, which will be more well-trafficked still by the time this essay ends, why government should be in the business of telling people what sorts of chemical moodenhancers they may take. But as the criminologist James Jacobs has pointed out, to ask this question is to put in play matters far larger and more important than marijuana. What business is it of government to say what medicines may be sold and by whom they may be sold? Why should certain chemical agents be available to willing buyers only with a doctor's scrip, and other agents, such as unproved drugs or devices, forbidden to all, even with medical permission? If libertarians answer these questions impatiently, then admirers of the administrative welfare state (“statists”) will be happy to play rope-a-dope with them, chattering on about the endearing eccentricities of libertarians' assumptions and avoiding the challenge to articulate and defend their own increasingly shabby-looking principles. Those principles are much in need of defense. Food and drug laws are among the most well-established offices of regulatory government. They are complicated, hypertechnical, mysterious, and expensive to administer and maintain. One is entitled to suspect that a number of them are carried on more out of habit and routine than out of any authentic conviction that they are the best way, or among the better ways, to provide for the welfare of citizens.
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38 The high research-and-development costs mandated by government approval have been cited as a reason for market consolidation and merger activity. See ibid., p. 108. During the late 1980s, several mergers within the pharmaceutical industry occurred, including SmithKline-Beecham, Bristol Myers-Squibb, and Merrell Dow-Marion Laboratories. See ibid., p. 108, n. 5.
39 Both of these comparisons probably understate the FDA's inefficiency, since they are comparisons against other bureaucratic monopolies rather than against competitive reviewing agencies.
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51 Admittedly the foregoing numbers are not solid. Significant portions of the nominal budgets go toward dual-purpose items; for example, coastal-surveillance assets paid for by the war on drugs are useful in other budget lines without being reflected in them. Most of the criminals serving time for drug offenses are in prison on negotiated pleas, so that we cannot be certain what, exactly, they actually did to get into trouble. Few of them are Boy Scouts in any event, and might be locked up for something else if not for this. But though we should discount the numbers somewhat, they do give at least a rough feel for the edge of hysteria that this subject seems to provoke.
52 720 F.Supp. 1424 (N.D.Cal. 1989).
53 29 U.S.C. sections 701–795(i).
54 680 F.Supp. 590, 600 (S.D.N.Y. 1988).
55 29 U.S.C. section 1201, et seq.
56 See generally 22 ALR Fed 111 (1997).
57 539 N.Y.Supp.2d 876 (1989).
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