Ending the Year on a Political Low Note

On December 30, 2003, as if to remind us all of who is becoming more and more in charge of our lives, agents of our Federal Government decided to ban the over-the-counter dietary supplement ephedra – also known as ma huang – and basically put a sizable portion of an industry out of business. Sure, ephedra has had some bad side effects and is said to have contributed to the death of Baltimore Orioles pitcher Steve Bechler after he consumed an ephedra-containing product. Reportedly some others, too, have had various bad experiences with the product.

Given, then, that ephedra isn’t vital at least for most people’s daily lives and that these days risk-aversion has become a near epidemic in our society, perhaps we should not be terribly surprised that the Feds – in particular Secretary of Health and Human Services Tommy G. Thompson – flexed their muscles so readily here. Then, also, given how eager so many Americans have been to support George W. Bush and his Attorney General John Ashcroft in the matter of curtailing our liberties in the pursuit of perfect security vis-à-vis terrorists, it shouldn’t be expected that this ban will be resisted by many citizens who aren’t themselves seeking use of the product or members of the industry earning a living from providing it for them in the market place. The only others who will raise a protesting voice will be, like me, those who consider these kinds of bans seriously flawed public policy.

Why protest the ban, you might wonder? The main reason is that in a free society defective products must be dealt with via tort – and, on rare occasions, the criminal – law. Shutting down an entire business community on the grounds that some people have been harmed by its products is plainly unjust. Only when a significant statistical – signaling a causal – link is established between the product and serious harmful results can it suffice as ground for punishing the manufacturer and seller of it. Even in such cases if the product’s risk is spelled out as it is being marketed, a ban isn’t warranted.

Just consider that driving cars is evidently not risk free; yet cars are sold to millions of people every year. Nor are cars always used for vital purposes – we take them to football games, getting our nails done and to pick up such risky products as cigarettes and beer. Yet, cars aren’t banned. And they should not be. Only when their normal, proper use contributes to serious harmful consequences should the producers suffer adverse consequences, and then only on an individual, case-by-case, basis.

That is what due process requires, not the mass banning of a risky product, a policy that, moreover, deprives many people of what they freely desire.

There is yet another scary dimension of this ban the government has imposed: many legal experts and news reporters have yielded to the temptation to become propagandists for the ban. On several TV news programs the reporters and the experts they have invited to comment have openly declared any and all opposition to the government’s ban a function of pure economic interest, voiced only by lobbyists. This is akin to when Attorney General John Ashcroft declared that criticism of his anti-terrorist measures amounted to aiding and abetting terrorism.

The plain fact is that there are serious disinterested dissenters to the government’s ban. Just as the protest against banning flag burning need not come only from those who are bent on burning flags but may come from principled opponents of such bans, the same holds for the new ban. It is wrong to do this for a government of a free society and however used the American public has become to various bans, it is worth calling to mind that such policies fly in the face of the principles of a free society.

In this instance, of course, there is a new wrinkle to the government’s petty tyranny. The Food and Drug Administration arguably lacks the authority to regulate, let alone ban, over-the-counter products such as headache remedies, dietary supplements, vitamins, and so forth. Not that it ought to have any authority to regulate and ban prescription drugs. But this most recent FDA action is clearly an expansion of the government’s already unjustifiable powers.

This should alert even the most complacent of our citizens to the trend. It usually begins with responses to panic, when people are not paying much attention to the loss of liberty, but gradually moves toward taking over a portion of our lives that we have every right to govern ourselves (with only the aid of tort or criminal law).

The basic idea is that only after it is proven that some kind of conduct is in violation of our rights, may the government move against those who engage in it. This principle is now in near tatters.

January 1, 2004