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tobacco

Did you know that the Affordable Care Act creates an enormous, multi-billion-dollar slush fund — in the out years, it will raise $2 billion a year in perpetuity — for the federal government to spend on more or less anything that might “improve health and help restrain the rate of growth” of health-care costs? That the spending can bypass the Congressional appropriations process, and is rife with expenditures for the purposes of lobbying government itself, which is supposed to be an unlawful use of federal funds?

Somehow it didn’t sink in until I read this excellent investigation in Forbes by Stuart Taylor, Jr., the distinguished commentator and journalist now associated with the Brookings Institution. Because almost any cause arguably advances health, the administrators end up with close to unlimited discretion as to how to spend the money, which results in the usual array of goofy-sounding grant activities ranging “from ‘pickleball’ (a racquet sport) in Carteret County, N.C. to Zumba (a dance fitness program), kayaking and kickboxing in Waco, TX.”

It’s tailor-made for log-rolling and rewarding local friends, but the dangers go beyond that. In particular, as outraged Republicans from Fred Upton (R-Mich.) in the House to Susan Collins (R-Me.) in the Senate have been documenting, large sums from the program have been devoted to the purpose of lobbying for the passage of legislation at the local and state level — notwithstanding specific statutory language making that an unlawful way of spending money raised from federal taxpayers.

To quote Taylor:

* In Washington state, the Prevention Alliance, a coalition of health-focused groups, reported in notes of a June 22, 2012 meeting that the funding for its initial work came from a $3.3 million Obamacare grant to the state Department of Health. It listed a tax on sugar-sweetened beverages (SSB), “tobacco taxes,” and increasing “types of outdoor venues where tobacco use is prohibited” as among “the areas of greatest interest and potential for progress.”

* The Sierra Health Foundation, in Sacramento, which received a $500,000 grant. in March 2013, described its plans to “seek local zoning changes to disallow fast food establishments within 1,000 feet of a school and to limit the number of fast food outlets,” along with restrictions on fast food advertising. A $3 million grant to New York City was used to “educate leaders and decision makers about, and promote the effective implementation of. . . a tax to substantially increase the price of beverages containing caloric sweetener.”

* A Cook County, Ill. report says that part of a $16 million grant “educated policymakers on link between SSBs [sugar-sweetened beverages] and obesity, economic impact of an SSB tax, and importance of investing revenue into prevention.” More than $12 million in similar grants went to groups in King County, Wash. to push for changes in “zoning policies to locate fast-food retailers farther from . . . schools.” And Jefferson County, Ala., spent part of a $7 million federal grant promoting the passage of a tobacco excise tax by the state legislature.

These aren’t isolated flukes: they look very much like the normal and planned operation of the program. A $7 million grant to activists in the St. Louis area went in part toward lobbying for the repeal of a state law barring municipal tobacco taxes. The Pennsylvania Department of Health reported on how it used a $1.5 million federal grant: “210 policy makers were contacted . . . 31 ordinances were passed . . . there were 26 community presentations made to local governments .. . and 16 additional ordinances were passed this quarter, for a cumulative total of 47.”

This is outrageous. Congress has enacted and reiterated the ban on lobbying with federal funds because of the obvious unfairness of requiring taxpaying citizens to support political efforts of which they disapprove. Now a combination of the most politicized sector of public health activism (which likes to dictate how people live) and a cross-section of the local political class (which likes to find new ways of raising taxes) is getting massive federal subsidies to pursue such lobbying, often on a scale that can bulldoze disorganized local opposition. If you were wondering why some bad new ideas for local legislation (e.g., zoning to keep fast-food restaurants out of big-city neighborhoods) seem to be everywhere despite a tepid level of voter enthusiasm, now you know. You’re paying for them to be everywhere.

I joined host Ray Dunaway on Hartford’s WTIC this morning to talk about the issue.

P.S. Thanks to commenter gitarcarver for pointing out this April report on the problem by the investigative group Cause of Action. (& David Catron, American Spectator)

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Maryland roundup

by Walter Olson on May 19, 2013

  • After Gov. Martin O’Malley signs one of nation’s most restrictive gun laws, Beretta says it intends to move out of state [Guns.com]
  • Unfortunately, high cigarette taxes promote this sort of thing: “Ocean City cigarette smuggling ring had ties to terror groups, police say” [Baltimore Sun, Tax Foundation]
  • Responding to critics (such as), legislature caps the vessel excise tax in hopes of reviving ailing boating industry [Annapolis Gazette]
  • New law backed by O’Malley will require educators to pay dues to teachers’ union whether members or not [Trey Kovacs, Open Market and Workplace Choice; Harford County Dagger]
  • State has among nation’s highest per capita medical malpractice outlays, behind only five Northeastern states (NY, PA, NJ, MA, CT) and D.C. [Diederich analysis of annual payouts via TortsProf]
  • Chronicle of Rogues: Maryland gets a D minus, ranking a dismal 40th among the 50 states, on corruption-rating State Integrity Report Card [Center for Public Integrity via Tom Coale]
  • It’ll be held in D.C. this year rather than Annapolis, but that’s no reason you shouldn’t join us for the acclaimed Cato University [Jul. 28-Aug. 2]
  • Politicos scramble to defend “correctional officers’ bill of rights” after FBI affidavit blasts measure for helping entrench corruption at Baltimore jail [AP, earlier]

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“Young New Yorkers would not be able to buy cigarettes until they were 21, up from the current 18, under a proposal advanced [last month] by Dr. Thomas A. Farley, the city’s health commissioner, and Christine C. Quinn, the City Council speaker.” [New York Times via J.D. Tuccille] Or at least would not be able to buy them legally: according to estimates from the Mackinac Institute, New York state already has the nation’s highest rate of smuggled cigarette consumption, at more than 60 percent of its total market. [Catherine Rampell, NYT; Mackinac; Tax Foundation; Christopher Snowdon, "The Wages of Sin Taxes" (CEI, PDF)]

More: As the legal drinking age has been pushed upward in recent years, the average age of first use of alcohol has fallen markedly [Tuccille]

April 20 roundup

by Walter Olson on April 20, 2013

  • “Victory For Blogger Patterico In Free Speech Case” [Ken at Popehat, earlier]
  • “Watch ‘disparate impact’ become the new HUD jihad if it succeeds in [Westchester]” [Jackson Jambalaya, earlier]
  • “Big Tobacco uses Big Government to keep out Small Competitors” [Tim Carney, DC Examiner]
  • Casinos or no, Connecticut tribes want the federal dole [AP]
  • High cost of litigation to California municipalities [L.A. Daily News, new CALA report in PDF] “San Francisco’s iconic cable cars cost city millions of dollars in legal settlements” [AP]
  • Morning sickness drug Bendectin, famed casualty of unfounded litigation, returns to market renamed diclegis [MedPageToday, David Bernstein; background here, etc.; classic account from Peter W. Huber's Galileo's Revenge] Another Bendectin sequel: Barry Nace, former ATLA/AAJ head, draws 120-day suspension from West Virginia high court [Chamber-backed WV Record]
  • “Tennessee’s ‘guns in parking lots’ bill a net drain on liberty [George Scoville; similarly Bainbridge and earlier] Another pro-gun but anti-liberty idea: Colorado lawmaker wants to force firms to hire guards if they deny armed customers access to their premises [KOAA, SecurityInfoWatch, Durango Herald (idea nixed in committee)]

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As part of the wrangling over remedies imposed by U.S. District Judge Gladys Kessler, the federal government is demanding that tobacco companies be made to run ads declaring that the government was right and they wrong on various controversial issues, and in particular that they confess to having lied on purpose. A demand for judicially imposed self-denunciation, and in particular a demand that private actors be ordered to assert ideologically charged propositions that do not reflect their actual inward beliefs, should disturb civil libertarians, it seems to me, even if it does not disturb the U.S. Department of Justice. I’m quoted at 4:47 in this report by the BBC’s Ben Wright.

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March 22 roundup

by Walter Olson on March 22, 2013

  • $10 million judgment “won’t hit Albuquerque property owners on their tax bills because it’ll come out of [city's] self-insurance fund” Say what? [Albuquerque Journal via Ed Krayewski, Reason]
  • Latest Bloomberg scheme: ban display of tobacco products [Jacob Sullum, Patrick at Popehat, Patrick Basham/Daily Caller, Ira Stoll, Elie Mystal/Above the Law]
  • Female? Hispanic? Planted a backyard garden between 1981-2000, while wishing you could have gone bigger with the hobby? Feds’ ag-bias settlement may have bucks for you [James Bovard/WSJ, earlier on Pigford black-farmer settlement here, here, here, etc.]
  • Newly published, includes blurb by me: Mark White, The Manipulation of Choice: Ethics and Libertarian Paternalism [Amazon]
  • “NYC adopts nation’s toughest law against refusing to hire unemployed” [AP, earlier here, etc.]
  • Estate of judge is suing prominent Philadelphia class action lawyer over fall at party in home [Legal Intelligencer]
  • For Wisconsin’s left, Roggensack/Fallone judicial contest might be the last hope for derailing Gov. Walker’s labor reform [Rick Esenberg]

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Is this what Congress intended, or what the public was told, when the FDA was given authority over tobacco in 2009? Jacob Grier at the Atlantic:

As first reported by Michael Felberbaum of the Associated Press, since 2009 the agency has received about 3,500 substantial equivalence reports [i.e., submissions seeking approval for new products on the grounds that they are substantially equivalent to products already on the market]. Approximately 115 employees work on reviewing them. And to date they have issued exactly zero rulings.

Can it really be the case that none of the 3,500 reflect new products that are substantially equivalent to (or for that matter safer than) the cigarettes already on the market? And while we’re asking questions, who benefits when new competition for existing products is cut off? More: Michael Siegel.

Or maybe “disavowed” is a better word. Questioned by Rep. Andy Harris (R-MD), National Institutes of Health director Francis Collins said he was “troubled” by the revelation that NIH funds paid for a laughably conspiracy-minded report by Stanton Glantz attacking political conservatives, calling it an “unfortunate outcome” and saying, “We thought we were funding a different kind of research when those grants were awarded.” This is not the first (or the fifth, or the tenth) round of axe-grinding advocacy “research” from Glantz — the National Cancer Institute dished out more than a million dollars this time — and one must wonder at what point he will stop asking the general public to pay for it. [Science Mag; Jacob Sullum; earlier]

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Product liability roundup

by Walter Olson on January 25, 2013

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Food roundup

by Walter Olson on January 8, 2013

  • New thinner-isn’t-healthier study should give pause [Paul Campos, NYT]
  • Inspectors order Minnesota soda shop to yank candy cigarettes, bubble gum cigars [Daily Caller]
  • Cleveland might have its own version of Pike Place or Reading Terminal Market, if not for… [Nick Gillespie]
  • Regulators took it down: “San Francisco’s Libertarian Food Market Is Closing” [Baylen Linnekin]
  • How brutal is vegetarianism to animals? [Mike Archer via Tyler Cowen]
  • Crazy: S.F. mulls zoning ban on new restaurants to protect existing ones [Linnekin] How Chicago suppresses food trucks [Katherine Mangu-Ward]
  • Federal calorie labeling rules will burden restaurants [Wash. Times]

Safety roundup

by Walter Olson on December 5, 2012

  • Patrick Basham on proposal to license smokers [Philadelphia Inquirer/Cato, earlier] New study confirms that rather than externalizing costs to the public treasury, smokers tend to cost social insurance programs less than nonsmokers do [Daniel Fisher, Forbes]
  • Public health busybodies call on UK government to set minimum price for alcoholic drinks [Telegraph] Carrie Nation never thought of this: anti-booze campaigners target its calorie count [Baylen Linnekin] New York state plans anti-alcohol campaign [NY Post]
  • “Will Litigation over Playground Injuries Create a Generation of Neurotics?” [WSJ via ABA Journal]
  • Massachusetts Gov. Deval Patrick reassigns his exceedingly accident-prone state highway director [Boston Globe, Ilya Somin]
  • “Magnet spheres may soon be harder to acquire than ammunition in the U.S.” as Buckyballs gives up [Anthony Fisher/Reason, earlier] And from Twitter: “Those 0.0 deaths per year were not in vain.” [@TPCarney modifying @bigtimcavanaugh]
  • “Mary Cain wants $3000 damages from the street car company for a ‘sudden jerk.’ MO1917″ [@tweetsofold]
  • “No Liquid Soap Allowed in Pre-School Bathroom: Children Might Drink It” [Free-Range Kids]

And finally, the catchy, unsettling safety promotion video that’s been everywhere the last week or two, from the Melbourne transit authority:

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Ban smoking entirely, or issue licenses to smokers? In some quarters of the public-health world, those appear to be the end points of the spectrum of debate as they pursue the “endgame” of a “tobacco-free society.” [Jacob Sullum]

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My Cato Institute colleague Nita Ghei, writing at the Washington Times, has more on the newly expanded authority of the federal Bureau of Alcohol, Tobacco and Firearms (ATF) to “‘seize and administratively forfeit property involved in controlled-substance abuses.’ That means government can grab firearms and other property from someone who has never been convicted or even charged with any crime.” Earlier here and (podcast) here. More: Americans for Forfeiture Reform.

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Torts roundup

by Walter Olson on June 15, 2012

  • “Fla. jury awards $75M to family of dead smoker” [AP] Bad trends catch on 10+ years later up North: Quebec becomes fifth province to sue tobacco companies [Montreal Gazette] We passed a law to let us win, so there: “Manitoba sues tobacco companies” [provincial press release]
  • “Can There Be Liability When Sending Texts To A Driver?” A debate [Ray Mollica and Mark Bower, Turkewitz; earlier here and here]
  • Ted Frank vs. Ron Unz on Vioxx health effects [PoL, American Conservative]
  • Major Florida PI firm denies State Farm claims-inflation allegations [Orlando Sentinel]
  • East St. Louis, Ill.: jury awards nearly $179 million to 3 injured grain elevator workers [Post-Dispatch]
  • Siding with plaintiff’s bar, Minnesota Gov. Dayton vetoes legislation reducing state’s general statute of limitations from six years to four, reducing prejudgment interest from current 10%/year, reforming offer of settlement rules, and allowing interlocutory class certification appeal [NFIB] He does however sign one protecting state/local governments [Star-Trib]
  • Multiple asbestos claims raise eyebrows in Delaware [SE Texas Record] On trends in asbestos litigation [Ben Berkowitz, Reuters]

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Dangerous sleepers

by Walter Olson on March 26, 2012

“Philip Morris Not Liable for Fire Started By Cigarette” That title says it all, except for the part about it taking eight years for the defense to win a summary judgment. [Nick Farr, Abnormal Use]

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December 13 roundup

by Walter Olson on December 13, 2011

  • “The real cost of patent trolls” [Brad Feld, PoL on BU study] Survey finds patent litigation booming [Corporate Counsel, Reynolds Holding/Reuters] Company claiming patent on wi-fi-in-stores unlikely to sue retail customers “at this stage” [Patent Examiner] Retrospective on crustless-sandwich case [Peter Smith/Good, earlier]
  • Louisiana federal court holds severe obesity to be disability under ADA [Sam Bagenstos, related]
  • Florida: many cops remain on job despite evidence linking them to crimes [Balko on Sarasota Herald-Tribune investigation]
  • “FDA Regulation Could Doom Cigar Shops” [Jacob Sullum]
  • Ted Frank vs. Brian Fitzpatrick on class action fees [PoL, David Lat on Federalist Society panel]
  • Orange County keeps mum about partnerships it’s entered with plaintiff’s attorneys Robinson, Calcagnie and Thomas Girardi [Kim Stone, Fox & Hounds] Maybe like “private attorney generals”? Fannie/Freddie genre of government-sponsored enterprises called “monstrous moral hybrids” [Mark Calabria, Cato]

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December 6 roundup

by Walter Olson on December 6, 2011

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November 17 roundup

by Walter Olson on November 17, 2011

  • Executive with “Autism Speaks” group quits to found group more aligned with scientific opinion on cause of condition [SciAm]
  • Here comes the ban-cigarettes-entirely crusade [Peter Singer on forthcoming Robert Proctor "Golden Holocaust"] “Parents try to blame Four Loko for son getting shot” [Elie Mystal, Above the Law] Still-relevant cartoon from ’30s on Federal War on Drugs (or Booze, take your pick) [Perry]
  • Controversy over definition of medical disorders in DSM-V has implications for workplace law including ADA, FMLA [Labor Related, petition]
  • “Not Safe to Display an American Flag in an American High School” [Volokh]
  • “Criminal Defense Lawyer Charged in Alleged $1.5M Fraud On Clients Obtained Under False Pretenses” [ABA Journal, Greenfield; Texas]
  • Father of Notre Dame student who died says family never considered suing [Chicago Tribune]
  • “The Ignominious End Of The Digitek Mass Tort” [Beck]

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