Regulating Misuse: Pointless Policy

We hear the argument over and over again: We need these rules not for law-abiding citizens (and non-citizens) but for people who will acquire and then misuse these items.

It is a core policymaking question that is not often discussed: Should we regulate the sale of an item that is intended for “use A,” but sometimes used for “use B.”

We heard it after the Oklahoma City bombing, after which Congress kicked around over a dozen plans to track and restrict purchasing of highly-enriched nitrogen fertiliser. We heard it after the meth boom, when Congress made ephedrine difficult to legally acquire because people were misusing it. We heard it after gun violence in Chicago in recent years where firearms were misused, after which some favoured further complicating the city’s already cumbersome, invasive, and hardly-ever-obeyed-by-criminals firearms regulations.

A simple cost-benefit analysis is not sufficient, as misuse of some legal items is high-magnitude and low-frequency (nitrogen fertiliser used as high explosive for terrorist attacks) while misuse of other legal items is comparatively low-magnitude and high-frequency (prescription painkillers used as recreational drugs). But let us begin by stating the obvious: Criminals, by their nature, are not blocked from their activities by the language of legislators.

Today, a debate rages in America over the launch of the Zohydro pain drug. A group of so-called "addiction experts” and advocacy groups are asking that the drug not be released, even though experts have already testified before numerous investigatory bodies and committees that the drug is needed for severe pain sufferers and no more addictive than currently-available drugs. To deny people in chronic, often end-of-life, pain because of a fear that some sliver of the population might misuse the medication is the worst kind of fear-driven policymaking.

Misuse should not be the driving concern in whether or not something is legal. There is an old (funny) saying that was inscribed on the wall of a machine shop I once visited in Detroit: “All tools are hammers, except for screwdrivers, which are chisels.” Anything can be used, or misused, in unexpected ways. That some quantum of misuse is anticipated does not – and should not, legislatively – negate the usefulness of the item for its intended purpose.

This is particularly true where the misuse is not use, but overuse. In the 1950’s, it was popular to argue that truancy was the result of overuse (misuse) of comic books. The same arguments are made today about videogames. Some argue that antibiotic soaps and other antibiotic items encourage overuse of the active ingredient. Similar arguments are made about seasonal allergy medications. While educating the consumer about what frequency or quantity of use might lead to optimum results, attempting to police overuse on the margin through legislation is burdensome, expensive, and ineffective.

Returning to Zohydro, there is no doubt that it (and dozens of other powerful painkillers) will be misused by some people. Some people will misuse it recreationally while others will misuse it accidentally. Like most powerful drugs, some people will inadvertently take too much of it, while others will intentionally take too much of it. Some people will likely become psychologically or chemically addicted to its active ingredients. But none of these types of misuse is compelling when weighed against the kinds of pain Zohydro treats effectively. The mere risk of misuse by a few deviants is a concern, but should not outweigh the enormous quality of life increase possible for the many suffering from crippling pain.

Some will argue that my proposition is as difficult to reduce to concrete guidelines as its opposite. I disagree. My proposition would suggest: In general, 1) where the intended use of the product has been made clear, 2) where criminals will misuse the product whether it is legal or not, 3) where the product is not unavoidably dangerous to the user if used properly, and 4) where policing the quantity of use is nearly impossible, the item should be made available to law-abiding and well-intentioned consumers, who should not suffer the product’s unavailability due to some imagined potential for the product’s misuse.