A Don't Ask, Don't Tell Policy for Opium Dens

In a report released today, the U.K.-based Transform Drug Policy Foundation asks us to imagine a world in which you can run an opium den but you can't tell people about it. After the War on Drugs: Blueprint for Regulation seeks to "replace moral absolutism with an ethics of effectiveness," steering a middle course between "two extreme management approaches": prohibition and "free market legalisation." The approach advocated by the report, which is heavy on taxes and regulation, would be far more rational, tolerant, and humane than the current regime, which uses violence and imprisonment to deter production, possession, sale, and consumption of certain arbitrarily selected psychoative substances. But the report's authors put too much faith in the ability of bureaucrats to centrally manage drug consumption and too little faith in the ability of individuals to make their own choices and run their own lives.

The 215-page report proposes different distribution models for different drugs: Injectable opiates, for example, would be available only by prescription, while snortable cocaine, some amphetamines, and MDMA would be available over the counter at pharmacies to individuals who obtain licenses after undergoing education and training. Psychedelics and opium would be available at clubs for members to use in a supervised setting and possibly for private use by licensed individuals. Marijuana could be consumed at clubs or purchased for private consumption. The authors deserve credit for laying out a regulatory plan, thereby refuting the notion that talk of legalization is utterly unrealistic while at the same time inviting criticism of the details.

Speaking of which, several proposals in the report strike me as unwise, unfair, or both. I'm skeptical, to say the least, of the notion that regulators will be able to set prices for each drug better than the market can—high enough to prevent shortages and discourage excess (however that is defined) yet not so high that black markets reappear or heavy consumers steal to support their habits. Properly speaking, of course, the price also should reflect the subjective value that consumers attach to each drug, something that is beyond the capabilities of central planners. I am also put off by the report's blithe recommendation that all advertising and promotion be prohibited (for alcohol and tobacco as well as the currently illegal intoxicants). In practical terms, advertising facilitates competition, which is good for consumers. It gives them more value for their money and promotes innovation—not just in terms of variations on existing drugs (such as different strains of cannabis or different preparations of coca or opium) but in terms of new products with fewer hazards and/or more predictable, more specific, longer-lasting, or shorter-lasting effects.

The advertising ban proposal reflects a general blindness to the ways in which open, honest competition can improve drugs, making them safer, more effective, and more affordable than they are under prohibition. The authors seem to credit regulation for such improvements. But regulation is not the main reason you can be confident that a bottle of vodka you buy at a liquor store a) does not contain dangerous additives such as methanol and b) does contain the advertised percentage of ethanol. Nor is the threat of litigation the main reason distillers try not to poison or defraud their customers. The main reason is their desire to make money, which in a competitive market requires attracting and keeping customers, which requires maintaining a good reputation. If the report's authors understood this dynamic, they would not suggest that a free market "is potentially an even worse scenario than unregulated criminal control of drug markets," since "legal commercial actors—whose primary concern is profit maximisation—would be free to aggressively promote consumption through marketing and advertising."

Utilitarian concerns aside, what about freedom of speech? Evidently no one outside the United States cares about that. "The default position of any licensing regime should be a complete ban on all advertising, promotion or marketing of all drugs," the report says, although it concedes that some exceptions may have to be made in light of peculiar local concerns. "For example, in the US, a free speech argument can be made against such a ban." But nowhere else? If the speech of drug producers and sellers should be censored because it encourages excessive consumption, prohibitionists can argue with equal force that the speech of drug policy reformers—such as the authors of this report—should be censored because it may lead to increases in drug use by fostering a more permissive legal regime.

Having said all that, I understand that ending the war on drugs will require an alliance between people whose main concern is individual freedom and people whose main concern is promoting "public health." Although both groups of antiprohibitionists recognize the terrible toll wrought by the vain crusade for a drug-free society, the public-health types are bound to have more say about the details of the system that replaces prohibition, which is likely to have many features that offend libertarians. That prospect should not deter us from thinking about what the world will look like after the war on drugs, and this report is good way to start that debate.

The executive summary is here (PDF); the full report is here (PDF).