Reason Magazine - Topics > Regulation

Target Settles ADA Lawsuit Over Its Website

jsullum@reason.com (Jacob Sullum) — Thu, 28 Aug 2008 14:17:00 EDT

The National Federation of the Blind has extracted $6 million from Target as a result of its lawsuit claiming that the chain's website was insufficiently accessible to the visually impaired. The NFB sued under the Americans With Disabilities Act, claiming the website was a "place of public accommodation" that Target was obliged to make accessible. (Target unsuccessfully argued that the law applied only to physical spaces.) In addition to putting $6 million in "an interest-bearing account from which members of the California settlement class can make claims," Target will enter into "a three-year relationship during which the advocacy group will keep testing the site to make sure it is accessible to the blind." The NFB says Target's site used to be notably harder to navigate with text-reading software than competing retailers' sites but has improved substantially in recent years.

As I said when a federal judge rejected Target's motion to dismiss the NFB's lawsuit, I don't think litigation, as opposed to public criticism and competitive pressure, is the appropriate way to address complaints like this one. Even if you accept the premise that the government should make sure all businesses (and websites) are accessible to people with disabilities, I've never understood why business owners, as opposed to taxpayers in general, should bear the financial burden of making them so. If the answer is that the modifications attract enough new business to justify the cost, there would be no need to impose them by law.

[via Josh Xiong]

Feds in the Fishbowl

rbailey@reason.com (Ronald Bailey) — Mon, 25 Aug 2008 12:00:00 EDT

Under the Clean Water Act of 1972, the Environmental Protection Agency and the Army Corps of Engineers are granted jurisdiction over the “navigable waters” of the United States. If a boat can float on it, it’s theirs to regulate. Over the years, the definition of “navigable waters” overflowed its banks, expanding to include virtually anywhere with detectable levels of H2O.

“What began as a reasonable attempt to control water pollution in our nation’s interstate rivers, lakes, and streams,” says Peyton Knight at the National Center for Public Policy Research, “spiraled into unreasonable federal regulation of isolated wetlands, ponds, dry lakebeds, intermittent streams and drainage ditches.” As time went on, landowners were required to obtain permits for everything from draining a field for plowing to building a dock to filling in a low wet spot.

In 2006 the U.S. Supreme Court issued a muddled opinion in Rapanos v. United States that reined in some of the more exotic interpretations of “navigable waters.” Now Rep. James Oberstar (D-Minn.) and Sen. Russ Feingold (D-Wis.) have introduced the Clean Water Restoration Act, which would replace the phrase “navigable waters” with “waters of the United States,” by which they mean “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing.”

If the bill passes, it will create new regulatory barriers for fishermen, boaters, hunters, and even some conservationists, who may find that their favorite hobbies no longer pass muster. The act leaves it up to the courts to decide if “waters of the United States” also includes your kitchen sink.

Who's Afraid of Calorie Counts?

jsullum@reason.com (Jacob Sullum) — Fri, 22 Aug 2008 15:21:00 EDT

Hit & Run commenters and several bloggers, including Ezra Klein and Kevin Drum, take issue with my argument, in my recent column about menu regulation, that "if customers really were clamoring for conspicuous calorie counts, restaurants would provide them voluntarily." Their main point is that the first restaurant to voluntarily post calorie counts on its menu boards as a way of attracting weight-conscious diners would instead scare customers away by emphasizing how fattening its dishes are, giving restaurants that kept nutritional information inconspicuous a competitive advantage. There may be some truth to this. Yet the fear of repelling diners with colossal calorie counts has not prevented the big fast food chains from voluntarily providing detailed nutritional information, both online and in their restaurants. Furthermore, some of them make this information more conspicuous than others, putting it on wrappers and counter mats near the cash register, for example, instead of on a poster in the back near the rest rooms. As I noted in the column, Subway makes a point of calling attention to calorie (and fat) counts, displaying them prominently at the point of sale and marketing part of its menu as healthier and less fattening than its competitors' offerings. Clearly, there is some demand for this sort of thing, but even at Subway the vast majority of the customers (nearly nine out of 10, to judge by the New York City health department's survey) do not make use of the nutritional information.

Although Kevin Drum disagrees with my claim that there isn't much demand for in-your-face calorie numbers, he adds, "I suspect that Sullum is on stronger ground when he says that calorie disclosure laws probably won't work." He notes that mandating nutritional information on packaged foods "hasn't had any noticeable impact on aggregate calorie consumption," which in fact increased after the requirement was imposed. But if people do not actually make use of government-mandated nutritional information, in what sense are they demanding it? Mainly in the sense that, when asked by a poll taker whether they support a purportedly health-promoting, information-disseminating policy that virtually everyone but a few libertarian nutcases seems to think is utterly unobjectionable, they will say they favor it too. But that does not necessarily mean they will change their eating habits once calorie counts are up on the menu board.

Even if some of them will, that prospect does not justify the use of force to impose an unfunded, business-disrupting menu mandate on restaurant owners who do not think it is worth the cost and effort. Interventions like New York's menu regulation and the proposed California law are not aimed at preventing fraud, or even requiring the disclosure of pertinent information (since the fast food chains already make this information available to people who are interested in it). Instead the menu mandates are aimed at prodding people to make what politicians and public health officials consider to be better food choices, which to my mind is not a legitimate function of government.

'They Are Breasts; They're Not a Big Deal'

jsullum@reason.com (Jacob Sullum) — Thu, 21 Aug 2008 13:19:00 EDT

The annual Boobs on Bikes parade in Auckland, New Zealand, went off without a hitch this week despite attempts to block the event by local politicians and conservative activists. On Tuesday a judge rejected the Auckland District Council's request for an injunction against the topless processional, organized by porn promoter Steve Crow. The council argued that the event violated a law against offensive parades. The judge questioned the validity of the law and the offensiveness of the parade, noting that last year it attacted some 100,000 onlookers, presumably not all of them protesters. Now a group called Family First is lobbying for an explicit ban on topless parades, saying "the current law is far too liberal and vague." Crow begs to differ:

It is topless people, men and women, in a public place, which is perfectly legal under our Bill of Rights and under New Zealand law. Mr McCoskrie [director of Family First] keeps harping on that it is pornography. They are breasts; they're not a big deal.

What say you? McCoskrie raises an interesting point when he notes that police stopped three topless women from walking through Hamilton on Monday, the day before 30 topless women rode through Auckland with impunity. Are breasts offensive only in small numbers?

I discussed the economics of toplessness in a recent post about sex discrimination in Las Vegas.

[Thanks to El Destiny for the tip.]

Milk Cow Blues

jwalker@reason.com (Jesse Walker) — Wed, 20 Aug 2008 13:18:00 EDT

John Schwenkler pens a detailed exposé of the government's war on raw milk. An excerpt:

[O]nce the fallacy in this initial rationale was pointed out, the [California Department of Food and Agriculture] was ready with plenty of other justifications for the new standard. It was, they suggested, a matter of public safety. But when raw milk advocates argued that coliform bacteria are not themselves a health threat and that raw milk dairies were already subject to extensive pathogen testing, this justification was abandoned. Instead, the CDFA claimed that, given the growing public concern over food safety, the new regulations were really being put in place for the good of the industry. (How Claravale, which had just spent 11 years and a million dollars building a new dairy to improve their product and help conform with the state's preexisting regulations, was going to be "helped" by AB 1735 is anyone's guess.)

That last rationale actually makes sense, if "the good of the industry" is code for "the good of the biggest companies in the marketplace":

In the midst of all this controversy, California's "conventional" dairy producers--whose representatives have donated an average of just under $300,000 a year in the last five election cycles--have been strikingly silent. Ron Garthwaite argues that we should not take this at face value: "Big corporate dairy" has indeed been a factor in the controversy--but as a behind-the-scenes force aiding those who are against raw milk. Its representatives have been pushing legislation like AB 1735, and "spending lots of time and money" to do so....

This sort of cozy relationship between regulating government and regulated industry is not uncommon, and its results are not always a loosening of the regulatory bonds. Lawrence Busch, director of the Institute for Food and Agricultural Standards at Michigan State University, explains that regulatory standards are often manipulated to key constituents' ends. Busch points to the recent push by large juice manufacturers for laws requiring the pasteurization of juice--a demand which, he says, would make "lots of small cider producers, among others, incur considerable extra costs." By taking a practice that they already have in place, or a standard they've already managed to meet, and making it mandatory across the board in the name of industry uniformity or public health, established corporations can use their political influence to put their rivals at a competitive disadvantage.

[Via Rod Dreher.]

Are You Sure You Want Fries With That?

jsullum@reason.com (Jacob Sullum) — Wed, 20 Aug 2008 07:00:00 EDT

In a 2007 survey of California voters, 84 percent said they thought the government should force restaurant chains to display calorie numbers on their menus and menu boards. That may happen soon: The state Assembly is considering a bill, already approved by the state Senate, that would make California the first state to impose such a menu mandate.

Yet the desires that people express in polls are often at odds with the preferences they reveal in the marketplace. The restaurant business is highly competitive. If customers really were clamoring for conspicuous calorie counts, restaurants would provide them voluntarily. A legal requirement is necessary not because consumers want impossible-to-ignore nutritional information but because, by and large, they don't.

Since they overestimate the demand for nutritional information, advocates of menu mandates also overestimate the impact of making it more visible. "Menu board labeling has the potential to dramatically alter the trajectory of the obesity epidemic in California," the California Center for Public Health Advocacy claims, projecting a weight loss of nearly three pounds a year per fast food consumer. The New York City Department of Health and Mental Hygiene, which began enforcing a calorie count requirement last month, predicts it will stop 150,000 people from becoming obese and prevent 30,000 cases of diabetes during the next five years.

Both estimates are based on a study conducted by New York's health department before the city's menu rule took effect. The researchers asked about 7,300 customers at fast food restaurants in the city whether they had seen and made use of nutritional information, which is typically displayed on posters, brochures, tray liners, or counter mats (as well as on the chains' websites). They also examined the customers' receipts so they could calculate the calorie content of the food they purchased.

The only chain where a substantial share of customers said they noticed nutritional information was Subway, where 32 percent reported seeing it, compared to 4 percent at the other chains. Since Subway promotes a subset of its menu as lower in calories and fat than its competitors' offerings, using a pitchman who lost hundreds of pounds while eating at the chain every day, this disparity is not surprising.

But even at Subway, calorie information seemed to make a difference for just one in eight customers. Of those who reported seeing the calorie information at Subway, 37 percent—12 percent of all Subway customers—said it affected their purchases. Subway customers who said they used calorie information bought about 100 fewer calories than those who said they didn't see it and those who said they saw it but didn't use it.

Notably, "there was no significant difference in mean calories purchased by patrons reporting seeing but not using calorie information and patrons who reported not seeing calorie information." In other words, simply making people aware of calorie content is not enough to affect their food choices.

The information's influence may be limited to people who are predisposed to count calories. If so, the impact of menu mandates will depend on the extent to which those people are not taking advantage of less obtrusive nutritional information already provided by restaurants.

The importance of pre-existing preferences also suggests that it's risky to extrapolate from Subway customers (who, given the chain's marketing, are probably especially weight-conscious) to fast food consumers in general. Another unresolved question is whether people compensate for fewer calories consumed at McDonald's or KFC by eating more at home or elsewhere.

Even if menu regulations don't make any difference on balance, Yale obesity researcher Kelly Brownell recently told the Los Angeles Times, "there's still the issue of the consumer's right to know." What about the consumer's right not to know? The same research that supporters of menu mandates like to cite indicates that most consumers prefer to avoid calorie counts, enjoying their food in blissful ignorance. There's a difference between informing people and nagging them.

You Can Buy Wine Online—As Long As You Can Be There in Person

jsullum@reason.com (Jacob Sullum) — Tue, 19 Aug 2008 20:16:00 EDT

In 2005 the U.S. Supreme Court overturned restrictions on wine sales that discriminated against out-of-state vintners. Since then (and before then too), liquor wholesalers have sought to protect their government-granted privileges by portraying direct shipment of boutique wines as the average teenager's favorite way to catch a buzz. In Indiana, for instance, preventing underage alcohol purchases is the rationale for a requirement that any consumer seeking to have wine delivered directly to his home must first have a "face-to-face meeting" with the producer, which is not exactly convenient if you live in Indianapolis and your favorite winery is in California or Oregon. Several Indiana consumers challenged this rule, arguing that it puts out-of-state wineries at a disadvantage.

In a decision (PDF) issued a couple of weeks ago, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit disagreed. Although visiting one California winery might be more difficult for a Hoosier than visiting one Indiana winery, Chief Judge Frank Easterbrook wrote, "Many oenophiles vacation in wine country, and on a tour through Napa Valley to sample the vintners' wares a person could sign up for direct shipments from dozens of wineries." By contrast, "Wine tourism in Indiana is less common, and the state's vineyards—which altogether have fewer than 350 acres under cultivation—are scattered around the state, making it hard for anyone to sign up at more than a few of Indiana's wineries."

Easterbrook likewise was not impressed by the argument that requiring an adult's signature upon delivery and/or online verification of age would be at least as effective at preventing sales to teenagers as requiring face-to-face contact between buyer and seller. Nor does it matter, he said, that teenagers have plenty of other ways to obtain alcohol that do not involve paying premium wine prices and waiting a week or two for delivery. "It is important to remember that we are dealing with effects on the margin," he wrote. "Make it easier for minors to get wine by phone or Internet, and sales to minors will increase."

Although the court left the face-to-face requirement intact, it did overturn a rule barring any winery that sells directly to retailers in other states (thereby acting as "its own wholesaler") from shipping wine to consumers in Indiana. "The statute is neutral in terms," Easterbrook noted, "but in effect it forbids interstate shipments direct to Indiana's consumers, while allowing intrastate shipments."

In short, Indiana oenophiles who find the selection offered by local retailers inadequate may now enjoy the convenience of having any wine they like shipped directly to their homes, as long as they're willing to travel across the country for the privilege.

[Thanks to Nicolas Martin for the tip.]

The New New Deal

matt.welch@reason.com (Matt Welch) — Fri, 15 Aug 2008 10:46:00 EDT

Are you flirting with the idea of voting for Barack Obama? Already in the Yes, We Must camp? Then one thing you might want to consider is checking in on what various Democrats have planned for the pending Restoration. For instance, Michael "Vietnam: The Necessary War" Lind is arguing in Salon (annoying ad to skip) for a "Newer Deal," in which Democrats who are seeking a "lasting supermajority" eject the social liberalism and "liberaltarianism" of the "McGovernite" Democratic era of Carter and Clinton and failure, and re-embrace Franklin Roosevelt's "It's the New Deal, Stupid" approach. Some excerpts:

The Roosevelt Party ran on economic issues, and didn't care whether voters were in favor of sex or against it on principle as long as they supported the New Deal. [...]
Nobody ever asked FDR or Harry Truman or John F. Kennedy or Lyndon Johnson their views on contraception, or abortion, or censorship. [...]
[A]lmost all of the policy proposals that excite the American public are exactly the sort of old-fashioned, "paleoliberal" spending programs or systems of government regulation that are supposed to be obsolete in this era of privatization, deregulation and free-market globalization, according to neoliberals and libertarians. Bill Clinton to the contrary, the public clearly does not think that "the era of big government is over." [...]
[A]cross the country there are lots of potential Democratic congressional and senatorial candidates who would like to move to Washington -- and might be able to, if social conservatives were welcomed to a big-tent party defined almost exclusively by economic liberalism. [...]
A big reason that the Democrats won back Congress in 2006 and are likely to keep it in 2008 is nominating and electing socially conservative economic populists like Heath Shuler. More progress. But to create an updated version of the New Deal, the Democrats have to treat economically liberal social conservatives as equal partners, with their own spokesmen and leadership roles in the party, not just as a handful of swing voters brought on reluctantly at the last moment. Conversely, Rubin Democrats and other economic conservatives should be invited to join Grover Norquist and the Club for Growth in a free-market deficit hawk party, which no doubt would prove to be as ineffectual and isolated as the Herbert Hoover Republicans during the New Deal era.

David Weigel has been chronicling the Democrats' repudiation of free-market Clintonism, plans for union-expanding "card check," and growing hostility to free trade.

Why on Earth Would a Topless Pool Charge Women Less Than Men?

jsullum@reason.com (Jacob Sullum) — Thu, 14 Aug 2008 12:58:00 EDT

The Nevada Equal Rights Commission has ruled that a Las Vegas health club illegally discriminated against men by charging them more for membership than women. At the same time, the commission said it was OK for the Las Vegas Athletic Club to give women, but not men, a sex-segregated workout area, since their "body parts might be exposed" in the course of vigorous exercise. Todd Phillips, the California lawyer who filed the complaint that led to the ruling and now plans to seek $1 million in damages from the club (he seems to have made a career out of such lawsuits), called the latter part of the decision "utterly ridiculous," noting, "I've got body parts." Women, of course, have more body parts that are traditionally kept covered in public, which you could say is another form of unfair sex discrimination, but surely not one that can be blamed on the gym.

Speaking of which, another complainant, a 25-year-old New Yorker named Adam Russin, wants a topless pool at the Mandalay Bay Resort-Casino to stop charging men $50 for admission while letting women in for just $10. A spokesman for MGM Mirage, which owns the resort, "said in a statement that the company viewed price differences based on sex to be a lawful business strategy and not a civil rights matter." He did not specify the business strategy, but it's a fair bet that encouraging women to take off their tops helps attract more male customers. Businesses like the Las Vegas Athletic Club presumably also want to bring in more women as a way of bringing in more men (although the gym's official motivation is that "men cost the club more, in part because they are more likely to fail to pay their bills"). Ditto the Vegas nightclubs that charge women less, a practice that is now in legal jeopardy.

States are divided on the question of whether this is the sort of thing that can safely be tolerated in a civilized society. While "courts and civil rights panels in California, Colorado, Florida, Iowa, Maryland and New Jersey have ruled that price discrimination against men is unlawful," The New York Times reports, "in Illinois, Michigan and Washington, judges have stated that it can be part of an acceptable business strategy."

Bernie Parks Encourages Smoking

jsullum@reason.com (Jacob Sullum) — Wed, 13 Aug 2008 15:36:00 EDT

Los Angeles City Council Member Bernard Parks wants to ban smoking "wherever people congregate or there is an expectation of people being present." In short, in addition to the existing state ban on smoking in indoor workplaces, he wants to ban smoking in virtually all outdoor locations. Parks claims "secondhand smoke is the number one cause of preventable health disease in America."

This will come as a surprise to—well, almost everyone, including the CDC, which says smoking is the leading preventable cause of death in the U.S. It attributes 400,000 deaths a year to smoking, more than 100 times its estimate for the number of deaths caused by exposure to secondhand smoke. But it's understandable that Parks' figures are out of whack, since he thinks "research has shown that inhaling secondhand smoke is more harmful than actually smoking." In other words, unlike every other poison known to man, tobacco smoke becomes more dangerous in smaller doses. By this logic, smoke-free air is more dangerous than secondhand smoke.

Parks seems genuinely confused. But as I've noted, this sort of confusion among policy makers has been fostered by public health officials and anti-smoking activists who have hyped the dangers of secondhand smoke so much that they've undermined warnings about smoking. "If you take this message seriously," Michael Siegel writes on his tobacco policy blog, "a rational nonsmoker might actually start smoking. After all, according to the message, it's better to smoke yourself than to be exposed to secondhand smoke."

Siegel, who has long supported bans on smoking in the workplace, believes bans like the one proposed by Parks go too far:

Anti-smoking advocates...are promoting such extreme proposals that go far beyond the documented scientific evidence that they need to create their own facts in order to justify these proposals.

You can't credibly argue that smoking needs to be banned everywhere outdoors to protect the health of nonsmokers using the actual truth about the severity of health risk from secondhand smoke exposure. There simply is no evidence that a few wisps of secondhand smoke, as one might encounter from someone smoking on a sidewalk or in a street, parking lot, or park puts people's health at risk and represents a significant public health problem.

I agree with Siegel that broad outdoor smoking bans are not justified by any health risk that secondhand smoke poses. But unlike him, I'm also against government-imposed smoking bans on private property, including businesses as well as residences. And Parks, for all his fanaticism, offers an argument that supports this position, saying his aim is to "move smokers and smoking away from people who do not choose to either smoke or inhale secondhand smoke." What if we had indoor locations where people were allowed to smoke and where everyone who entered knew about this rule? Maybe people also could have a drink or a bite to eat in these places, which would be restricted to customers who "choose to either smoke or inhale secondhand smoke." Surely this is an idea Parks could get behind.

Perfectly Sane Scientist Apprehended

kmw@reason.com (Katherine Mangu-Ward) — Wed, 13 Aug 2008 11:49:00 EDT

Victor Deeb, a retired chemist in Marlboro, Massachusetts, called the fire department because his second floor AC unit was on fire. The next thing you know, he's barred from the house he's lived in for 20 years for three days because of gear for his hobby found in the basement. And no, his hobby doesn't involve grow lamps. The Worcester Telegram and Gazette reports:

[Deeb], who stored hundreds of chemicals in his house, was allowed to return home yesterday after authorities spent three days dismantling his basement laboratory.
None of the materials found at 81 Fremont St. posed a radiological or biological risk, according to the state Department of Environmental Protection. No mercury or poison was found. Some of the compounds are potentially explosive, but no more dangerous than typical household cleaning products.

Deeb has several patents on file and more pending, including something involving "aromatic alcohols" that is "usable in numerous elastomeric applications including interior and exterior vehicle parts, roofing, asphalt, and any other applications," and something else that has to do with grinding things and "elastomer slurry," not to mention a "method and apparatus for introducing colorant to resinous materials."

In other words: This is a legit, productive guy who wanted to keep working after retirement. He had nothing in his basement that posed a risk to himself or his neighbors—just a lot of jars and boxes of chemicals. They don't really know if there's even a rule against this: "I think Mr. Deeb has crossed a line somewhere," is the best that Pamela A. Wilderman, Marlboro’s code enforcement officer, can come up with.

The most disheartening quote of all:

“He’s been very cooperative,” Ms. Wilderman said. “I won’t be citing him for anything right at this moment.”

Via Rimfax

Use an Aesthetically Pleasing Tactic to Keep Taggers Temporarily at Bay, Go to Jail

matt.welch@reason.com (Matt Welch) — Wed, 13 Aug 2008 09:59:00 EDT

Los Angeles is almost as lousy with graffiti as Washington D.C. is lousy with rats. Worse, when you confront a tagger defacing your home or business, he will shoot you.

What's a shop-owner to do? Law enforcement is obviously out of the question (it's akin to reporting your camera stolen in Rome). But you can apparently hire some local mural painters (L.A.'s got some seriously awesome street murals) who are respected by taggers enough so that they leave the various Virgin Marys and flag-carrying eagles alone. But − unlike awful graffiti, for example! − having nice-looking paint on the side of your liquor store requires any number of permits from the city.

"ORDER TO COMPLY," said the letter from the Building and Safety Department, which required the Antonios to remove "excessive signage" under threat of a $1,000 fine "and/or six (6) months imprisonment" for each of four alleged violations.

The Antonios called the office of Councilman Ed Reyes for help, but to little avail. One day the city sent out a work crew and just like that, the Antonios' $3,000 investment was gone, covered over with dull beige paint.

You know, of course, what happened next. Whitewashing that wall was like sending ants an invitation to a picnic. The taggers have been back almost daily, treating the wall like a fresh canvas.

Whole story here.

Homeschooling Is Legal Again in California

jsullum@reason.com (Jacob Sullum) — Tue, 12 Aug 2008 18:22:00 EDT

Last week a California appeals court reversed a February ruling that said state law permits homeschooling only by credentialed teachers. In the earlier ruling, noted here by Katherine Mangu-Ward, the Court of Appeal for the 2nd Appellate District concluded that the legislature had deliberately removed an exemption for homeschooled children from California's compulsory education law in 1929 and had never reinstated it. The decision alarmed tens of thousands of Californians who thought they had the state's approval in teaching their children at home. In last week's ruling, the court reconsidered, finding that the legislature had implicitly endorsed homeschools by exempting them from various regulatory requirements. "While the Legislature has never acted to expressly supersede" appeals court decisions that said a homeschool did not qualify as a "private full-time day school," the three-judge panel said, "it has acted as though home schooling is, in fact, permitted in California."

Here is a PDF of the ruling, which an attorney representing homeschoolers called "a great victory for homeschool freedom."

Just Think How Much Stimulation We'll Need If the Economy Ever Stops Growing!

matt.welch@reason.com (Matt Welch) — Mon, 11 Aug 2008 11:16:00 EDT

You don't need a weatherman (or a Weatherman) to know which way a Washington Post op-ed entitled "A Moment for Fiscal Courage" is gonna blow in these re-regulatory, sky-done-falled-already times. But Sebastian Mallaby earns extra credit for his sheer audacity in deploying proof-less axioms in the cause of having the government spend more money:

The upshot is that things are desperate. The unemployment rate in the headlines (which understates the real number) is heading toward 6 percent; home prices are falling hard; and the two forces that have averted outright recession − a timely fiscal stimulus and strong growth abroad − are fading. The Fed has cut interest rates as much as possible given the worry about inflation. Foreign central banks are similarly boxed in. With the world's inability to agree on anything, there's no prospect of a coordinated global response − witness the breakdown in trade talks. And so the United States must act using the only tool it has: It is time for a second stimulus.

I'm old enough to remember when "unemployment heading toward 6 percent" was a scare phrase when said rate was heading downward, because the Phillips Curve-quoting consensus was that anything lower than 6 percent would trigger automatic inflation. Yet for the past 167 months, unemployment has indeed been lower than 6 percent for all but a seven-month stretch in 2003, during a time when total nonfarm employment increased from 115.2 million to 137.6 million, according to the Bureau of Labor Statistics. Things are desperate!

But wait, home prices are falling hard, right? Yes! All the way down to ... 2004 levels. Which were still nearly double 1997 levels in real terms.

As for "outright recession," yes indeedy that has been averted, to the tune of 1.9% GDP growth in the second quarter. And much as I hate to see global trade talks break down, a "coordinated global response" to allegedly "desperate" economic situations worldwide (think: the 1997-98 Asian flu, or the peso crisis not long before that), are about the collective actions of central bankers, not trade negotiaters. And fer cryin' out loud, how come it's only spending more guvmint money that indicates "courage," rather than performing the much-rarer feat of spending less?

Am I the only one who feels like we're in for a long silly season of economic journalism?

We took a survey of leading economic grumpiness in our June issue.

The Return of Old-Fashioned Paternalism

schapman@tribune.com (Steve Chapman) — Thu, 07 Aug 2008 07:00:00 EDT

One of the hot new ideas in the academy is "libertarian paternalism." Richard Thaler and Cass Sunstein, authors of the book Nudge, say the goal is "enlisting the science of choice to make life easier for people" and "gently nudging them in directions that will make their lives better." An example: letting companies enroll workers in 401(k) plans unless they object.

But there's an older and more prevalent notion about how to get people to do things that will make their lives better. You might call it coercive paternalism, and it's thriving.

The most prominent examples are in California, which was once synonymous with freedom. City officials in San Francisco and Los Angeles intend to ensure that individuals are free to do what they want, if what they want is good for them.

San Francisco, like New York and Seattle, has decreed that chain restaurants must put nutrition information on menus. This policy, a specimen of libertarian paternalism, rests on the unproven assumption that, in the Information Age, people get fat for lack of knowledge rather than lack of willpower. No one seems to have noticed that our forebears, who didn't have access to nutrition data, generally managed to avoid obesity.

But San Francisco recently came up with another gambit in the name of public health. It's the first city in the nation to outlaw the sale of cigarettes in pharmacies.

What is this supposed to accomplish? Trying to reduce smoking by banning pharmacy sales is like trying to discourage driving by banning Chevys. Tobacco addicts have plenty of other places to get their fix.

At least they do for now. Mitch Katz, director of the Department of Public Health, insists that San Francisco "isn't a nanny state." But he leaves no doubt about his grand ambition: "I am not in favor of anybody smoking or anybody selling tobacco."

Until he brings about complete prohibition, the ban will have perverse consequences. The most obvious is to deprive one type of retail establishment of revenue and divert the dollars to other businesses. Marginal neighborhoods will become less attractive sites for pharmacies but more appealing to liquor stores, which is a novel approach to urban renewal.

In Los Angeles, driving out certain businesses is not a potential side effect—it's a conscious policy. The city council recently prohibited the opening of fast-food outlets in the poor, 32-square-mile area known as South Los Angeles. If you're a global corporation selling inexpensive meals to go, Los Angeles has a message for you: Invest anywhere but here. Apparently a vacant lot is better than a Burger King.

Councilwoman Jan Perry believes the measure will assure the locals "greater food options." The Los Angeles Times reports she "said the initiative would give the city time to craft measures to lure sit-down restaurants serving healthier food to a part of the city that desperately wants more of them."

Of course, it could do that without punishing outlets that don't need luring. But if vegetarian and seafood restaurants didn't see the area as profitable before, this law won't change their calculations. It takes an Orwellian mindset to imagine that shutting out McDonald's and KFC will expand, not diminish, the range of dining options in South Los Angeles.

All it will accomplish, as several fast-food workers told the city council, is to deprive residents of jobs in the forbidden outlets. Does anyone think unemployment will improve their diet? Or that a community with fewer jobs will be a more inviting place for preferred restaurants?

Municipal lawmakers blame the chains for obesity, as though these restaurants abduct locals and force them to eat salty, fatty fare. In reality, people in South Los Angeles patronize these places because they like tasty meals at a low price, and because they put less importance on staying slim and living till age 90 than some people think they should.

Libertarian paternalists may think they know better than you how you should live, but generally they limit themselves to promoting informed choices. Coercive paternalists have a simpler approach: telling us what to do.

The advocates say they are not trying to create a nanny state, and they're right. To call these nanny state measures grossly overstates the intrusiveness of nannies.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

Smoking Ban Increases Heart Attacks

jsullum@reason.com (Jacob Sullum) — Tue, 05 Aug 2008 19:17:00 EDT

Anti-smoking activists claim smoking bans in Scotland and Wales led to immediate, sizable reductions in heart attacks. In both cases, Michael Siegel shows on his tobacco policy blog, these assertions are unfounded.

An article in the July 31 New England Journal of Medicine cites a 17 percent decline in hospital admissions for acute coronary syndrome during the first 10 months after the Scottish ban took effect at the end of March 2006. Siegel notes that the comparison was based on data from only nine hospitals. Based on data for all Scottish hospitals, he reports, the post-ban drop in heart attacks looks similar to declines seen in previous years. Between 2005 and 2006, heart attack admissions fell by 4.3 percent, slightly smaller than the 4.6 percent drop from 2003 to 2004. The difference between 2006 and 2007 was 8 percent, smaller than the 10.2 percent difference between 1999 and 2000. The two-year drop from 2005 to 2007 (11.9 percent) was not much bigger than the two-year drop from 1999 to 2001 (10.7 percent). Although "the analysis in this paper assumes that the entire observed change in heart attacks is attributable to the smoking ban," Siegel writes, "one cannot rule out the very plausible alternative hypothesis that the observed decline in heart attacks is explained by random variation in the data and the already existing secular trend of declining heart attacks in Scotland."

In the case of Wales, U.K. Action on Smoking and Health and the British Heart Foundation cited a 13 percent drop in heart attacks as evidence of the smoking ban's immediate positive effect. But as Siegel shows, drawing on data presented by Christopher Snowdon, this decline appears only if you compare the arbitrarily selected months of October through December 2007 to those same months in the previous year. But the Welsh smoking ban took effect in early April 2007. Data for the entire nine-month period between then and the end of the year show virtually no change in heart attack admissions compared to the same months in 2006. The overall drop between 2006 and 2007 was about 1 percent, much smaller than the drops seen from 2004 to 2005 (10.3 percent) and from 2005 to 2006 (6.3 percent). Furthermore, heart attacks rose in the first five months after the ban before falling again in the next four months. Based on the post hoc, ergo propter hoc logic of activists who assume that any decline in heart attacks following a smoking ban must be due to the ban, Snowdon writes, "we might even say that the smoking ban 'caused' a rise in heart attacks in Wales."

As I've said before, many of the jurisdictions that adopt smoking bans inevitably will see declines in heart attacks in the year or two after the bans take effect. If you focus only on those jurisdictions while ignoring random variation and pre-existing trends, it's not hard to create the illusion of an effect, especially if everyone forgets how biologically implausible it is for heart attacks to fall so quickly in response to a smoking ban (whether because of less smoking, less secondhand smoke exposure, or some combination of the two). Given the vast potential for cherry-picking data, the remarkable thing is what a bad job the ban boosters are doing.

More reason coverage of smoking bans and heart attacks here.

Chicago Suburbs Repeal Their Handgun Bans

jsullum@reason.com (Jacob Sullum) — Thu, 31 Jul 2008 15:33:00 EDT

I just noticed this: Last week two Chicago suburbs, Morton Grove and Wilmette, repealed their handgun bans in response to D.C. v. Heller, the Supreme Court decision that overturned the Washington, D.C., handgun ban. After Heller, Second Amendment advocates sued Morton Grove, along with Chicago and two other suburbs, Evanston and Oak Park, over their handgun bans. Wilmette was not sued, apparently because it stopped enforcing its ban following the ruling.

Since the District of Columbia (which banned handguns in 1976) is a federal domain, Morton Grove was technically the first municipality in the country to do so. Its 1981 law was upheld in 1982 by the U.S. Court of Appeals for the 7th Circuit, which ruled that the Second Amendment does not apply to state and local governments. Even if it did, the 7th Circuit said, "the right to keep and bear arms exists only as it relates to protecting the public security." The court also concluded that Morton Grove's handgun ban did not violate Article I, Section 22 of the Illinois Constitution, which says, "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."

Wilmette, which banned handguns in 1989, was featured in Robert VerBruggen's 2005 reason story about Hale DeMar, a Wilmette resident who faced a gun charge after defending himself against a burglar. I noted the challenge to Chicago's handgun ban in a post-Heller column.

In the Raw

kmw@reason.com (Katherine Mangu-Ward) — Thu, 31 Jul 2008 12:00:00 EDT

In April police hauled off Mark Nolt in handcuffs for being a dairy deviant. Pennsylvania’s Commonwealth Court cited the Mennonite farmer for contempt after he ignored a 2007 injunction prohibiting him from selling raw milk and cheese.

The peddling of unorthodox dairy products is legal in Pennsylvania, but it requires a permit. Nolt let his license expire in a gesture of protest, telling the Cumberland County Sentinel that “the Constitution clearly spells out we have the right [to] do private business.”

The arresting officers were joined by several representatives of the state Department of Agriculture. The assembled forces swarmed onto the farm, loaded several trucks with contraband milk and cheese, and left with an inventory worth thousands of dollars. In addition to the loss of his stock, Nolt faces a $1,000 fine for each violation of Pennsylvania’s dairy regime.

On May 5, customers and neighbors rallied at the Nolt farm to support the right to bear farmer’s cheese. His supporters are mulling ways to change the law.

House Approves Philip Morris Protection Act

jsullum@reason.com (Jacob Sullum) — Wed, 30 Jul 2008 19:42:00 EDT

Today, by a vote of 326 to 102, the House of Representatives approved a bill that would authorize the Food and Drug Administration to regulate tobacco products. Assuming the Senate follows suit, a veto seems likely. Secretary of Health and Human Services Michael Leavitt has said he will recommend one. In a July 21 letter to Rep. Joe Barton (R-Texas), the ranking Republican on the House Energy and Commerce Committee, Leavitt said "the Administration would strongly oppose this legislation" and raised various objections:

The regulatory obligations created by the bill would be a significant added responsibility for the Food and Drug Administration and one that is inconsistent with FDA's mission of ensuring food safety and the safety and effectiveness of drugs, biologics, and medical devices.
Unlike the medical products FDA regulates, tobacco products cannot be made safe, and there is no medically established public health benefit associated with tobacco.
Adding tobacco to FDA's regulatory responsibilities could also leave the public with the misperception that tobacco products are safe, or at least safer, with the FDA regulating them....
Implementing H.R. 1108 would require the FDA to establish a new center for tobacco control. This would impose an enormous implementation and resource burden on FDA at a time when it is faced with implementing the numerous provisions of the FDA Amendments Act of 2007 and undertaking efforts to enhance food safety and improve oversight of imported drugs and devices.
FDA does not have expertise focused on tobacco products, and establishing such a center would require a huge staffing effort and infrastructure development....
The bill may spend more than it raises in revenues [from industry fees]. This could result in diverting personnel and resources from the current programs within the FDA, with the potential to seriously undermine the public health. Moreover, this regressive tax [i.e., the cigarette price increase necessary to cover industry fees] will be borne disproportionately by lower-income individuals. The Administration strongly opposes tax increases to expand the size and scope of government....
Our trading partners believe that by banning the sale of clove cigarettes but not prohibiting the sale of menthol cigarettes, the bill raises questions under U.S. international trade obligations. The government of Indonesia has repeatedly objected to the bill on the ground that this disparate treatment is unjustified and incompatible with WTO trade rules.

I lay out my objections to the bill here, here, and here. I explain the objections of critics who consider the bill racist here.

A Closer Look at Heller v. D.C. II

jsullum@reason.com (Jacob Sullum) — Tue, 29 Jul 2008 16:21:00 EDT

As Dave Weigel noted yesterday, Dick Heller has filed a complaint in federal court that accuses the District of Columbia of failing to comply with the Supreme Court decision overturning D.C.'s handgun ban and firearm storage requirements. The complaint (PDF) focuses on two aspects of D.C.'s revised gun law that I discussed in my column last week: the ban on semiautomatic handguns and the requirement that any firearm in the home be kept unloaded and locked except "while it is being used to protect against a reasonably perceived threat of immediate harm to a person."

The former restriction, note Heller's attorneys, Stephen Halbrook and Richard Gardiner, is hard to reconcile with the Supreme Court's conclusion that banning the guns most commonly used for self-defense violates the Second Amendment. "The District's ban on semiautomatic handguns," they write, "amounts to a prohibition of an entire class of arms that is overwhelmingly chosen by American society for the lawful purpose of self-defense in the home." They are not asking the U.S. District Court to overturn D.C.'s absurdly broad "machine gun" ban, which covers semiautomatic guns if they can fire more than 12 rounds without reloading or "can be readily converted" to do so. Instead Halbrook and Gardiner want the court to reject the District's interpretation of the law, according to which any gun that can accept a magazine holding more than 12 rounds is forbidden, even if the owner does not possess such a magazine. It's this interpretation that prevents Heller from registering his seven-shot .45-caliber pistol and co-plaintiff Absalom Jordan from registering his 10-shot .22-caliber pistol.

The District's position seems to be that banning all handguns except revolvers fits with the Supreme Court's implicit approval of bans on "dangerous and unusual weapons." I've noted the circular logic of that exception, whereby banned weapons (such as actual machine guns) remain banned because the ban has made them unusual. The "dangerous" part is puzzling too, since all weapons are dangerous; that's what makes them weapons. But whatever the phrase means, it clearly does not apply to semiautomatic handguns, which are not "unusual" in this country by any stretch of the imagination.

Regarding the storage rule, Halbrook and Gardiner note that the new law, like the original one, includes a general exception for guns carried by law enforcement personnel and guns kept in places of business. "Such provision acknowledges the need to keep a firearm in useable condition for defense of self and others against an unlawful, sudden, and deadly attack," they note, which highlights the unreasonableness of demanding that guns in the home be kept unloaded and locked until the very moment they are being used to fend off an attack. They point out that the law even forbids D.C. residents to unlock their guns "for innocuous purposes such as cleaning."

Halbrook and Gardiner also object to the District's cumbersome registration process, especially the unlimited authority given to the chief of police to set the fee for ballistic testing. They argue that "predicating the right lawfully to possess a pistol as guaranteed by the Second Amendment on the payment of any fee, and moreso an undefined fee with no limit according to the arbitrary will of the Chief, infringes on the right of the people, including plaintiffs herein, to keep and bear arms."

Here is the Washington Post story about the lawsuit. Here (PDF) is a copy of the complaint.

Correction: As Gary Imhoff noted, my original post confused one of the plaintiffs with one of the lawyers. I've fixed the names.

Rescue Me

matt.welch@reason.com (Matt Welch) — Thu, 24 Jul 2008 10:02:00 EDT

Now that President George Bush has dropped his veto threat, the gargantuan housing bailout is on the verge of becoming law, pending passage in the Senate. Thus, a housing bubble that has long been artificially inflated by the ever-growing presence of the government (and quasi-government) in the lending market, especially the lower-income segments; will now be artificially re-inflated, especially in the lower-income segments, by a government doubling down on its bad bets. Since Fannie Mae and Freddie Mac already have their federally guaranteed fingers in about half of all U.S. mortgages, what will be their market share at the end of this downturn/re-regulation process? Sixty percent? Eighty?

To see one reason why we got so quickly to this point, look no further than this objective news lede in the Washington Post.

The House yesterday easily approved legislation that seeks to slow the steepest slide in house prices in a generation, rescue hundreds of thousands of homeowners at risk of foreclosure and reassure global markets that mortgage-finance giants Fannie Mae and Freddie Mac will not be allowed to fail.

In other news, Jesus yesterday easily approved legislation that seeks to turn water into wine.

Did the Supreme Court Approve the Order to Lock and Unload?

jsullum@reason.com (Jacob Sullum) — Wed, 23 Jul 2008 13:12:00 EDT

While researching my column about the District of Columbia's new gun law, I came across a tendentious assertion by Peter Nickles, D.C.'s acting attorney general, that I didn't have space to address. Defending the District's requirement that guns be kept both locked and unloaded until the very moment they're needed "to protect against a reasonably perceived threat of immediate harm to a person," Nickles told Washington Post columnist Marc Fisher:

It's clear the Supreme Court didn't intend for you to have a loaded gun around the house. I don't think the court thought this was going to become a Wild West scene.

Leaving aside Nickles' assumption that keeping a loaded gun in the house inexorably leads to "a Wild West scene" (a scenario that has not materialized even in juridictions where people are permitted to walk around in public with loaded guns), where, exactly, did the Supreme Court make it clear that keeping a loaded gun is beyond the protection of the Second Amendment? The majority opinion in D.C. v. Heller acknowledges that some forms of gun control are consistent with the Second Amendment and implies that they include "laws regulating the storage of firearms to prevent accidents." But that does not mean any law with that ostensible aim is valid; in fact, the Court found that D.C.'s law "regulating the storage of firearms" was unconstitutional because it effectively prevented people from using guns for self-defense. It did not explicitly address the constitutionality of a "safe storage" rule like the one the District has now adopted, which impedes self-defense and is more restrictive than necessary to prevent accidents (a goal that could be served by requiring, for example, that loaded firearms be kept in gun safes with their safeties on). But it's hard to see how the new rule can pass muster, since it substantially impinges on a gun owner's ability to defend himself while doing nothing to advance a legitimate government interest that could not be accomplished through less restrictive means.

Excuse Me While I Get My Gun

jsullum@reason.com (Jacob Sullum) — Wed, 23 Jul 2008 07:00:00 EDT

Last month the U.S. Supreme Court ruled that the District of Columbia had violated the Second Amendment by making armed self-defense in the home impractical and banning the most popular weapons used for that purpose. Last week the D.C. Council responded by unanimously approving a law that makes armed self-defense in the home impractical and bans the most popular weapons used for that purpose.

D.C.'s political leaders know they are inviting another Second Amendment lawsuit, but they are determined to defy the Supreme Court and the Constitution for as long as possible.

The new law "clarifies that no carry license is required inside the home" to move a gun from one room to another. It also "clarifies" the District's firearm storage requirements, saying a gun may be unlocked and loaded "while it is being used to protect against a reasonably perceived threat of immediate harm to a person" in the home.

Much hinges on what counts as a "reasonably perceived threat." If you're awakened in the middle of the night by a crash, may you carry a loaded gun with you as you investigate? Evidently not. The Washington Post reports that D.C.'s acting attorney general, Peter Nickles, "said residents could neither keep their guns loaded in anticipation of a problem nor search for an intruder on their property." According to Nickles, if you see an armed criminal charging your home, or in the event of "an actual threat by somebody you believe is out to hurt you," you're allowed to get your gun, unlock it, and load it.

How long will that take? The new law lets people use a gun safe instead of a trigger lock, which, depending on the type of safe, could allow faster retrieval. But even a gun in a safe has to be kept unloaded, which will tend to slow down the owner's response to a "reasonably perceived threat," assuming he can figure out what that means.

The delay will be even longer because of the District's ridiculously broad ban on "machine guns." The Metropolitan Police Department says the ban covers all handguns except revolvers, which are more cumbersome to load than semiautomatics with detachable magazines.

Under D.C. law, "machine guns" include not only guns that fire continuously but also guns that fire once per trigger pull if they can fire more than 12 rounds without reloading or "can be readily converted" to do so. According to the District's interpretation, even a pistol that fires 12 or fewer rounds counts as a "machine gun" if it could accept a bigger magazine.

That's why Dick Heller, the man who successfully challenged D.C.'s handgun ban, was not allowed to register his seven-shot .45-caliber pistol, which in the District's view might as well be an Uzi. Instead he applied to register a .22-caliber revolver.

Speaking of registration, the District has established a burdensome 12-step process that involves multiple trips to gun dealers and government offices, fingerprinting, a written exam, and ballistic testing. How long does all this take? "Up to 14 days," according to one police department publication. "Approximately eight weeks," according to another. "There are circumstances where it could take months," says Police Chief Cathy Lanier.

Registration easily could turn out to be so onerous or capricious that it effectively denies D.C. residents the right to keep and bear arms. The District's revised firearm storage requirements are even more clearly unconstitutional, since they unreasonably interfere with the very function, self-defense in the home, that the Supreme Court said is protected by the Second Amendment. Likewise the arbitrary ban on semiautomatic handguns, the most commonly used self-defense weapons.

"I am pretty confident that the people of the District of Columbia want me to err in the direction of trying to restrict guns," D.C. Mayor Adrian Fenty told Washington Post columnist Marc Fisher. How about erring, just this once, in the direction of respecting civil liberties?

What About Famous Original Singas Pizza?

jsullum@reason.com (Jacob Sullum) — Tue, 22 Jul 2008 16:40:00 EDT

New York City's regulation requiring the conspicuous posting of calorie counts on restaurants' menu boards was supposed to apply just to big chains that standardize their dishes and already do (or can easily afford) nutritional analyses. But A.P. reports that the threshold for the rule, 15 or more outlets nationwide, is low enough to include obscure local chains and quasi-chains:

"This has been an absolute nightmare," said Enrique Almela, director of operations at Singas Famous Pizza, which has 17 restaurants, most in the borough of Queens....
Almela spoke with The Associated Press from his car Wednesday as he rushed sample pizzas to a food laboratory. He said the calorie tests for his 35 different pizza combinations will cost $10,000, and he doubts they will produce accurate data.
"I may put 15 pepperoni on a pie. Someone else may put 12. We don't measure the amount of cheese we put on," he said. "If you put up roundabout numbers, how does that help anyone?"
The deadline also looked problematic for a unique class of New York City eateries: loosely affiliated, largely immigrant-owned restaurants that share the same name and sometimes the same suppliers, but operate independently.
Afgan Paper & Food Products, which distributes food and packaging materials to many of the eateries, said it was scrambling to get them calorie info.
"The stores are all calling and asking for information. We don't have it," said Mariam Mashriqi, a receptionist at the company.
In the meantime, Mashriqi said, some owners were paying for the laboratory tests themselves.
"These are small stores. They are barely making a profit," she said.

You can find recent reason coverage of the menu board rule here, here, and here.

[via Scott Stein at When Falls the Coliseum]

First Amendment Lite

info@reason.com (Greg Beato) — Tue, 22 Jul 2008 07:00:00 EDT

If you’re a perfume manufacturer and you’d like to name your latest fragrance Opium, no government agent will stop you. The world’s flagship soda is called Coke. A company called Chronic Candy has been selling lollipops flavored with cannabis flower essential oil for eight years. Energy drink connoisseurs routinely enjoy products with names like Fixx, Bong Water, Buzzed, and Speed Freak. Even the controversial energy drink Cocaine is for sale again, after revising its label to comply with Food and Drug Administration guidelines.

If you produce alcoholic beverages, however, puns, drug slang, and ghoulishly percussive monkeys may land you in trouble. Take, for example, the case of the Mt. Shasta Brewing Company. Located in tiny Weed, California, the microbrewery sells bottled versions of its five ales and lagers in retail stores in California, Oregon, and Washington. Since 2004 the bottle caps on all five Mt. Shasta beers have been emblazoned with a slogan that plays on the town’s name: “Try legal Weed.”

Anytime a producer or importer of alcoholic beverages wants to market a new product, it must submit a proposed label to the federal Alcohol and Tobacco Tax and Trade Bureau (TTB) for approval. Earlier this year, when Mt. Shasta proprietor Vaune Dillman turned in his application for a new beer he planned to start bottling, he included the design of the bottle caps. Shortly thereafter, the TTB advised him by fax that the slogan “Try legal Weed” was an impermissible “drug reference,” adding, “We do not believe that responsible industry members should want or would want to portray their products in any socially unacceptable manner.”

To put it another way, the TTB believed the 61-year-old businessman and civic booster was guilty of a thought crime. Although no law on the books explicitly prohibits “drug references” on alcoholic beverage product labels, the bureau told him he had to stop using his socially unacceptable bottle caps.

Every year, the TTB reviews more than 100,000 proposed labels, and because the statutes and regulations it has at its disposal are both extremely specific and extremely vague, its agents often end up behaving more like cultural critics than government bureaucrats—parsing puns, interpreting illustrations, determining the artistic value of the occasional female breast. In theory, the agency is supposed to protect consumers by ensuring that product labels accurately convey a product’s identity and quality. In practice, it often disallows labels (and thus, at least temporarily, products) that it deems bad for the image of the alcoholic beverage industry, short-pouring the First Amendment in the process.

“What would you do if somebody handed you, I don’t know, Hannah Montana beer, and said, ‘Please approve this’?” asks Robert Lehrman, an attorney who specializes in beverage law and has been dealing with the TTB and its predecessor, the Bureau of Alcohol, Tobacco, and Firearms, for more than 20 years. “I don’t think they like making all these immensely subjective decisions on every cotton-picking label that comes down the pike. But that’s how the legislature set it up. The government decided that liquor’s taboo and therefore needs restrictions beyond those for food generally. ”

Thus, if Disney decided to market a Hannah Montana energy drink laced with enough caffeine to power the entire touring cast of High School Musical for a week’s worth of shows, it would not have to submit a proposed label to the FDA—and consequently, the FDA would not be faced with the embarrassing prospect of having to officially “approve” a product that might be considered objectionable.

If Disney decided to create a Hannah Montana pale ale, however, the TTB would either have to give an explicit endorsement or figure out some grounds on which to reject it. In such situations, the TTB resorts to nitpicking. Take the prohibition against “drug references.” While Congress grants agencies like the TTB the authority to create rules and regulations that more thoroughly interpret general statutes, the TTB’s “no drug references” edict isn’t even that official. It’s just a policy that someone decided the bureau should implement for some reason or other. In 1994 the agency published a brief notice in a newsletter outlining the new guidelines for socially acceptable labeling. “I don’t know the particular incident that brought that about,” says Art Resnick, the TTB’s director of public and media affairs, when asked about the origins of the policy. “I could look and see if anybody remembers.”

Being fuzzy on the rule’s history doesn’t prevent the TTB from enforcing it with gusto. In 2003 a Texas liquor importer named Dan Dotson began efforts to import absinthe from Kubler, a Swiss distillery that had been producing the fabled spirit since 1863. Because Kubler’s version contained less than 10 parts per million of thujone, the chemical in wormwood that had kept absinthe off the market in the U.S. since 1912, Dotson believed it was legal to sell here. After several years of discussion, the TTB agreed. But in a 2006 letter to Lehrman, whom Dotson had retained to facilitate the TTB label approval process, the agency insisted that while the beverage Kubler had produced was legal, the word absinthe (along with the variations absynthe, absente, and absinth) was an “illicit drug term” that could not be used on the labels.

Eventually, the TTB softened its stance. Now absinthe can appear on the packaging, but only as a “fanciful term” modifying some other word. One can sell “absinthe verte” or “absinthe superieure”—but not plain old “absinthe.” And probably not “absinthe weed” either. Because of absinthe’s reputation as an illegal, mind-altering substance, the TTB continues to make marketing difficult for anyone interested in selling it.

When Lance Winters, master distiller for St. George Spirits, submitted a label for his version of the spirit in 2007, it took him seven tries before he gained TTB approval. First, he says, the TTB told him the word absinthe appeared in too large a font. Then it told him his label looked too much like a British pound note. Then it said the label’s depiction of a monkey beating a human skull with a pair of femurs implied that the product had hallucinogenic properties—impermissible, since the Code of Federal Regulations does not allow labels that “create a misleading impression.”

This, alas, is government by Rorschach test. Who’s to say exactly what a cartoon monkey indicates about the properties of absinthe? Winters says he simply wanted to create a fun, light-hearted package. “Our distillery has been trying to steer people away from the idea that absinthe has hallucinogenic properties,” he explains. “I don’t want to sell a product based on promises that I can’t deliver. I want to sell this product based on the fact that it’s complex, it’s delicious, it’s something that poets and artists loved to drink because it was inspirational.”

According to Resnick, a basic tenet of the TTB’s approach is voluntary compliance. “We don’t want to take somebody’s permit,” he says. “We don’t want to put anybody out of business. So we work very hard with the businesses that we regulate to achieve voluntary compliance on their part.”

Unfortunately, the voluntary compliance the agency achieves doesn’t always feel so voluntary to those doing the complying. While Winters is happy with how his label turned out—the monkey now bangs, in unambiguously nonhallucinogenic fashion, on a cymbal, not a human skull—all that wrangling left him frustrated. “The product in the bottle had been approved,” he says. “They weren’t protecting anyone from absinthe. They were protecting people from how the absinthe had been presented. It’s wonderful that they offered solutions to help me get the label approved, but what their solutions amounted to was a dumbing down of the labels and a loss of a certain amount of freedom.”

By censoring small businessmen like Winters and Vaune Dillman over purported “drug references,” the government is enforcing the idea that it’s not just illegal to manufacture, sell, or possess certain drugs in America. It’s illegal even to possibly allude to them. Even when confined to the limited scope of alcoholic beverage labels, that’s enough to drive a man to drink.

Contributing Editor Greg Beato is a writer in San Francisco.