If It Tastes Good to Kids, Ban It

Critics of marijuana edibles and flavored e-cigarettes would reduce adults to the level of children.

Three weeks ago, a New York City councilman proposed a ban on flavored electronic cigarettes. Last week Colorado news outlets reported that the state health department had recommended a ban on almost all forms of edible marijuana products. As is often the case when politicians or bureaucrats demand new limits on liberty, both proposals were aimed at protecting children.

Although flavored e-cigarettes and marijuana edibles are intended for adults, appeal to adults, and can be legally sold only to adults, the prohibitionists argue that they cannot be tolerated because they also appeal to minors. The same rationale has been offered for bans on flavored tobacco products and sweet malt beverages. This argument, although couched in the language of moderate and sensible regulation, should be a non-starter in a free society, because it reduces adults to the level of children.

The consequences of such reasoning can be dramatic. In the recommendation publicized last week, the Colorado Department of Public Health and Environment (CDPHE) urged regulators to "prohibit the production of retail edible marijuana products other than a simple lozenge/hard candy or tinctures." Such a ban would eliminate a wide range of marijuana-infused foods and beverages that Colorado dispensaries have been selling to patients for years and to recreational consumers since January. Even marijuana cookies and brownies, which had a following among cannabis consumers long before you could openly buy them over the counter, would disappear from dispensary shelves. Although consumers could still bake their own, they would lose the convenience, reliability, and quality control offered by commercial producers, not to mention the label information, dose control, and child-resistant packaging that the CDPHE presumably considers important.

The CDPHE quickly backtracked from its proposal, and with good reason: It probably would violate the state constitution, which now includes Amendment 64, the marijuana legalization initiative that voters approved in 2012. Amendment 64 clearly envisions a market in which various marijuana-infused foods and beverages are available to adult consumers. Furthermore, reprohibiting this segment of the marijuana market would invite black-market dealers to satisfy the demand for products that have proven very popular, making the state's minimum purchase age as well as its packaging and labeling requirements impossible to enforce.

Despite the CDPHE's retreat, its rationale for banning marijuana edibles is worth considering because it illustrates the mindset of people who demand that adult choices be restricted for the sake of the children. "To allow the production of retail marijuana edibles that are naturally attractive to children is counter to the Amendment 64 requirement to prevent the marketing of marijuana products to children," the department argues. Thus it redefines the rule against targeting children as a duty to avoid products they might like.

The CDPHE claims "the intent of the Amendment and subsequent laws and rules was to decriminalize the use of retail marijuana, not to encourage market expansion within the marijuana edibles industry that subsequently create[s] potential consumer confusion or mixed messages to children." Yet the amendment did not merely decriminalize recreational use; it also decriminalized the production and sale of marijuana products by state-licensed businesses serving that market. The "market expansion within the marijuana edibles industry," as distasteful as it may be to the CDPHE, was a natural result of letting buyers and sellers of those products engage in peaceful, mutually beneficial transactions without fear of arrest.

The CDPHE supposedly favors lozenges or hard candies because they can be stamped with a symbol that indicates their psychoactive nature even when they are removed from their original packaging. "By limiting the scope of allowable retail marijuana edibles to products that are not easily confused with ubiquitous food products," it says, "this recommendation creates a more defensible and transparent regulatory framework." If the ability to mark the edibles themselves is the department's main concern, its proposed rule is needlessly restrictive. Lollipops can be marked just as easily as hard candies, and chocolate bars could be stamped as well. There has even been talk of imprinting the icing on baked goods with a marijuana symbol.

But is it reasonable to demand that all marijuana products be identifiable as such even when unwrapped? While it's true that marijuana-infused brownies and gummy candies look just like the unspiked versions of those products, that is only after they are removed from clearly marked, child-resistant containers. At what point does the manufacturer's responsibility end and the consumer's begin? Notably, the law under which Colorado's Marijuana Enforcement Division is developing new regulations for edibles says the products should be "clearly identifiable, when practicable" (emphasis added). It is pretty hard to make a cannabis-infused soda "clearly identifiable" outside the container, but the same is true of sweet, fruit-flavored liqueurs or cough syrups. The expectation is that adults won't leave such products lying around for kids to glug.

The good news is that the sweeping ban proposed by the CDPHE, which was criticized not only by the marijuana industry but also by the governor's office and a co-author of the law dealing with edibles, is unlikely to materialize in Colorado. But if past policy is any indication, New York City may very well ban flavored e-cigarettes, another adult product damned because of its purported appeal to minors.

Back in 2009, Congress banned flavored cigarettes because they supposedly lured kids into smoking. But as a favor to Philip Morris, which supported the bill, Congress made an exception for menthol, the only flavor that has ever had a wide following among teenagers, while banning products like clove cigarettes and strawberry bidis, which accounted for something like 0.1 percent of the underage market. Later that year, the New York City Council went further, banning all flavored tobacco products (again, except for menthol cigarettes), on the theory that stopping adults from buying rum-flavored cigars or cherry-flavored pipe tobacco would stop kids from smoking cigarettes.

The argument for banning flavored e-cigarettes is equally rigorous. "These flavors are direct marketing to children," says the sponsor of the bill, Councilman Costa Constantinides (D-Queens). "They appeal to children, and we're taking them out of that market."

Notice how Constantinides, like the CDPHE, equates making a product that could appeal to minors with "direct marketing to children." I doubt that Constantinides has any evidence, aside from his own intuition, to back up his claim that e-cigarette companies are targeting children. But one thing is clear: Whether or not they appeal to minors, the flavors that offend him appeal to adults who switch from smoking to vaping.

In a survey conducted by E-Cigarette Forum last summer, three-quarters of adult vapers preferred flavor categories other than tobacco, including fruit (31 percent), bakery/dessert (19 percent), and savory/spice (5 percent). Sales data from Palm Beach Vapors, a chain of 14 stores that sell vaping equipment and liquids to adults only, confirm that supposedly juvenile flavors are popular with adults. Last fiscal year, only two of the chain's top 19 sellers were tobacco flavors. They finished 18th and 19th, far below flavors such as strawberry, watermelon, and cinnamon.

Two-thirds of the ex-smokers in the E-Cigarette Forum survey said nontobacco flavors were important in helping them quit. Survey data reported in the International Journal of Environmental Research and Public Health last December likewise indicate that flavor variety is important in quitting. That study, which involved about 4,500 vapers, found that they tended to prefer tobacco-flavored fluid initially but later switched to other flavors. Most reported using more than one flavor on a daily basis and said the variety made the experience more interesting and enjoyable.

Critics like Constantinides and Sen. Jay Rockefeller (D-Va.), guided by little more than their own idiosyncratic tastes, want to decree which flavors adult vapers may consume, even at the cost of deterring smokers from quitting. They do so in the name of protecting children, even though the risk that experimenting with e-cigarettes will lead to smoking is purely speculative.

"Although there have been claims that EC [electronic cigarettes] is acting as a 'gateway' to smoking in young people," notes a recent review in the journal Addiction, "the evidence does not support this assertion. Regular use of EC by non-smokers is rare, and no migration from EC to smoking has been documented (let alone whether this occurred in individuals not predisposed to smoking in the first place). The advent of EC has been accompanied by a decrease rather than increase in smoking uptake by children."

In other words, Constantinides and his allies are prepared to sacrifice the interests, and potentially the lives, of verifiably real adults for the sake of hypothetical teenagers. This is where the logic of regulating "for the children" leads. Attempts to child-proof the world do not necessarily make kids any safer, but they always makes adults less free.

This article originally appeared at Forbes.com.