Category: reason

Two years after state-licensed marijuana merchants began serving recreational consumers in California, those retailers account for just a quarter of the estimated market, according to a new draft report from the state’s Cannabis Advisory Committee (CAC). The CAC says the lackluster progress in displacing the black market is due to a combination of high taxes, local bans on pot shops, licensing bottlenecks, and heavy regulation.

The CAC report, which was obtained by the Los Angeles Times, projects that licensed marijuana sales will total $3.1 billion this year, compared to $8.7 billion in unlicensed sales. That means the black market still accounts for nearly three-quarters of marijuana sales. Tax revenue from legal sales for the fiscal year that ended last June was just $288 million, less than a third of the $1 billion that was expected.

California legislators do not seem to have learned much from the experience of states that legalized marijuana earlier. If they had been paying attention, they would have figured out that maximizing tax rates is not a smart way to maximize tax revenue, since legal sellers have to compete with black-market dealers who do not collect any tax at all. The combination of state and local taxes currently adds as much as 45 percent to the retail price, and both the cultivation tax and the excise tax are scheduled to increase on January 1.

Three-quarters of California cities have prohibited marijuana stores, a policy allowed by Proposition 64, the 2016 ballot initiative that legalized cannabis for recreational use. Partly because of those bans, California has just 568 licensed marijuana retailers, less than a tenth of the expected number. That amounts to about 14 stores for every 1 million residents. By comparison, Colorado, where marijuana was legalized in 2012 and licensed sales began in 2014, had 572 recreational retailers as of December 2, or 100 per 1 million residents.

Even in places where pot shops are allowed, the state and local licensing process is a “nightmare,” William Panzer, who co-authored California’s 1996 medical marijuana initiative, told the Times. As of September, Scott Shackford noted, Los Angeles had received more than 1,600 applications from would-be retailers. So far it has granted only 188 licenses.

In addition to the licensing ordeal and the heavy taxes, says California NORML Director Dale Gieringer, legal marijuana businesses have to deal with regulatory burdens that include legally mandated middlemen, “excessively costly” testing requirements, and “multifarious petty regulations” regarding storage, security, transportation, labeling and packaging, financial reporting, and waste disposal. “Illegal retail operations outnumber legal shops 3-to-1,” Lindsay Robinson, executive director of the California Cannabis Industry Association, told the Times. “Almost two years into legalization, we continue to be plagued by local bans, untenable taxation, onerous regulations, an illicit vape crisis, slow growth, and a thriving illicit market.”

So far the main official response has been a crackdown on unlicensed sellers, perpetuating a war on weed that Proposition 64 was supposed to end. The CAC is urging the state to consider tax and regulatory relief, possibly through a new ballot initiative. Legislation introduced in January would temporarily reduce the excise tax from 15 percent to 11 percent and temporarily eliminate the cultivation tax, which is currently $9.25 per ounce for buds and will rise by 40 cents on January 1. That bill is still bottled up in committee.

Gov. Gavin Newsom (D), who says he is sympathetic to the complaints of marijuana business owners, is mostly preaching patience. But the lesson from California’s bumpy rollout of legal marijuana should be clear: The harder the government makes it to sell pot legally, the larger the continuing black market will be.

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The year 2020 will almost certainly mark a return to trillion-dollar federal deficits despite a full decade of consistent economic growth.

Most Americans are well aware that’s a worrying combination. Unfortunately, that message hasn’t reached policymakers in Washington, D.C., who seem happy to add ever larger sums to the bill future taxpayers will have to pay.

A Pew Research Center poll conducted earlier this month found that 53 percent of Americans view the federal budget deficit as a “very big” problem facing the country. That’s a larger share of the public than the portion that views terrorism (39 percent), racism (43 percent), or climate change (48 percent) as a major problem.

Indeed, the only topics that score higher in the Pew poll are drug addiction and the affordability of health care and college educations. But while you’ll hear lots of discussion about those three issues in next year’s presidential campaigns, candidates will likely give considerably less attention to the deficit, even as it soars past the trillion-dollar threshold. That’s because reducing the deficit requires a serious and difficult discussion about how the federal government can and should allocate its finite resources. It’s much easier to promise student loan forgiveness and/or massive new health care entitlement spending.

Other recent polls show similar levels of concern about the deficit and the $23 trillion national debt. A YouGov/The Economist survey published in July found that 83 percent of Americans said the budget deficit was an important issue. A Gallop poll in March found that 95 percent of Americans worry at least a little about the national debt, including 50 percent who say they worry “a great deal” about it.

This year’s Fiscal Confidence Index—which is published by the Peter G. Peterson Foundation and tracks Americans’ confidence in the country’s fiscal stability—found that 76 percent of voters want Congress to work on reducing the deficit, including 72 percent of Democrats and 84 percent of Republicans.

The problem, as always, is that voters are likely to say they want Congress to balance the budget, but are less likely to back any specific ideas for doing so—which at this point would require massive tax increases or huge spending cuts, and probably a combination of both.

Republicans spent the first half of this decade burnishing their credentials as deficit hawks. For a while, that worked—at least until Donald Trump was elected president.

Since 2016, the GOP has abandoned any pretense of caring about the deficit. Trump has concluded that he’ll be gone before things get really bad, and the media talking heads who drove much of the “screw you, cut spending” mentality during the Obama years have given up, too.

And let’s be clear, it is mostly a spending problem. In the fiscal year that ended on September 30 of this year, federal tax revenues increased by 4 percent but the deficit exploded because spending increased by more than 8 percent. That’s simply unsustainable.

Meanwhile, most of the Democrats running for president are promising to make the deficit worse by expanding entitlements and spending vast sums of money. One of the few exceptions to that rule is Pete Buttigieg, the mayor of South Bend, Indiana, who might be new enough to national politics to actually have some awareness of mathematics or economics.

“My party’s not known for worrying about the deficit or the debt too much but it’s time for us to start getting into that,” Mayor Pete says in NH town hall in response to voter anxious about debt. Says everything his campaign has proposed is paid for.

— Liz Goodwin (@lizcgoodwin) December 5, 2019

That’s a message Buttigieg is starting to deliver with regularity. He was the only candidate to talk about the deficit at last week’s primary debate, and he recently told The Washington Post‘s editorial board that “we need to recognize that we’re approaching a point where you can’t ignore spending we need to do on infrastructure and safety net and health and education being crowded by debt service.”

Buttigieg has been attacked by the Democratic Party’s left wing for merely suggesting that the deficit might be something worth talking about. But if the polls are to be believed, he might be onto something.

It’s probably foolish to hope that a discussion about the national debt will break through the culture wars, impeachment battles, and whatever Twitter fights Trump starts in 2020. But voters are signaling that they don’t like the current status of rising, seemingly unsolvable budget deficits. Even if voters weren’t concerned, the issue is too important to ignore.

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An excerpt from Tuesday’s Arizona Court of Appeals opinion, written by Judge Diane M. Johnsen and joined by Judges Kenton D. Jones and James B. Morse Jr:

[T]he issue of incapacitation is not whether, in hindsight, the person made a smart decision. Instead, it is whether the person had the cognitive ability at the time to make the decision for herself or himself. Put differently, a “rational judgment” in this context is not one that an observer would deem a “good judgment” but instead is one made by a person who is able to comprehend the nature and consequences of the matter….

In sum, the undisputed evidence of what happened in the bedroom is that Complainant was not too intoxicated to actively participate in at least 20 minutes of strenuous sex. The same evidence also disproves her contention that she was too intoxicated to decline to participate in the sex at the outset.

Nor does the evidence support Rund’s conclusion that Complainant lacked the capacity to say no. At the hearing, Complainant testified she was not able to say the words, “I don’t want to have sex.” To the contrary, the evidence is undisputed that at some point during the sexual encounter, she did tell Respondent and Participant to stop—and they did. Complainant also noticed that Participant was taking pictures with his cellphone and told him to stop doing so. Further, Complainant testified she was “more drunk going out of the room than [she] was going in.” The only reasonable conclusion to be drawn from that admission is that if she was able to say she wanted to stop after some 20-25 minutes of sex, even though she was “more drunk” at the end than when the sex began, she had the capacity to say no in the beginning….

At oral argument, ASU argued evidence that Complainant may have made rational, informed judgments at the end of the encounter does not undermine the conclusion that, at a minimum, she was incapacitated at the outset. But the record belies any contention Complainant was incapacitated when the sex began. First, Complainant herself told police she was “coherent” at the time she entered the bedroom. In addition, as noted, after the fact she was quite capable of reporting specific details about the beginning of the encounter ….

[ASU Senior Vice President for Educational Outreach and Student Services, James] Rund found it compelling that, by Complainant’s account, she had rejected an earlier attempt by Respondent to have sex with her that evening. As Rund put it, “I do not find it plausible that the Complainant would tell the Respondent she did not want to sleep with him and then subsequently and with no explanation agree to participate in intercourse with not just Respondent, but also with [Participant]. The only variable in circumstances was Complainant’s consumption of seven shots of [v]odka.”

Nothing in the evidence, however, shows that the vodka rendered Complainant incapable of deciding to change her mind. As Complainant acknowledged, when she and respondent first spent time together a couple of days before the gathering, she initially declared to him that they would not have sex, but then—free of any influence of alcohol—she willingly engaged in oral sex with him. [Footnote: … If she exercised her independent judgment to change her mind and engage in sexual conduct on the earlier occasion, it can hardly be said to be “[im]plausible” that she could not exercise her independent judgment to change her mind on the later occasion.]

Finally, Rund characterized the three-way encounter in the bedroom on the night in question as “outrageous behavior,” and from that concluded Complainant would have participated only if she was incapacitated. But [Kendra] Hunter, the witness ASU called to testify about its investigation, testified that a reasonable person exercising free will could decide to participate in a “threesome.”

In sum, a handful of statements by Complainant are the only evidence in the record supporting the conclusion that she was so drunk that she was incapacitated on the night in question. But other statements by Complainant—statements she made to police and under oath at the hearing—along with undisputed other evidence, entirely disprove her bare assertions that she was incapacitated.

On appeal, Respondent vigorously contests Rund’s findings, pointing to his own testimony and that of other witnesses who saw Complainant that night. We reach our conclusion without weighing the testimony of other witnesses against that of Complainant.

The accused student had also sued ASU in federal district court, arguing that the investigation discriminated against him because of his sex, in violation of Title IX; that case is pending, but there is a tentative decision from that court that would allow this claim to go forward. Among other things, the court reasons,

As an initial matter, the FAC [First Amended Complaint]—like many of the complaints in other recent Title IX cases brought by male university students who contend they were subjected to gender-biased disciplinary proceedings—contains an extensive discussion of the “Dear Colleague” letter that was issued by OCR in 2011. Most courts have concluded this letter does not, standing alone, create a plausible basis for alleging that a university disciplinary process was infected with gender bias. For example, in Purdue University, the Seventh Circuit stated that although “[o]ther circuits have treated the Dear Colleague letter as relevant in evaluating the plausibility of a Title IX claim … the letter, standing alone, is obviously not enough to get [a Title IX plaintiff] over the plausibility line.” Similarly, in Doe v. Baum, the Sixth Circuit concluded that “all of this external pressure alone is not enough to state a claim that the university acted with bias in this particular case. Rather, it provides a backdrop that,” if combined with other evidence, may “give[] rise to a plausible claim.” The Court agrees with these decisions and concludes that the letter does not, on its own, get Doe over the plausibility line.

Nevertheless, the FAC contains other allegations that provide additional support for Doe’s claim. First, the FAC alleges that, following the issuance of the letter, OCR specifically identified ASU as one of the universities whose Title IX processes were under investigation and sent investigators to the ASU campus to “gather information” about those processes. Although such school-specific allegations aren’t alone sufficient in the Ninth Circuit to render a Title IX claim plausible, courts have suggested they may render a Title IX claim more plausible than a claim premised solely on the “Dear Colleague” letter. Doe v. Cummins (6th Cir. 2016) (“Nor do appellants allege that UC [University of Cincinnati] … was being investigated by the federal government for potential Title IX violations. Instead, appellants allege more generally that the Department of Education’s ‘Dear Colleague Letter’ induced UC to discriminate against males in sexual-assault investigations in order to preserve federal funding. This conclusory allegation, without more, is insufficient to create a plausible claim of gender bias under Title IX.”).

Second, … the FAC alleges that an ASU representative specifically referred to Doe’s male gender when explaining why prompt action was needed: “When this case first came to the attention of ASU, [Hunter] indicated that action had to be taken quickly because [Doe] was a male athlete—a collegiate wrestler.” (But see supra footnote 1 [noting that paragraph 144 of the FAC contains a different characterization of this statement].) …

Doe also contends paragraph 195 of the FAC identifies another instance where an ASU official made statements that reflect gender bias—this time, implicit bias. Paragraph 195 alleges that Rund based his finding that Roe was “incapacitated” during the sexual encounter in part on the nature of the encounter (a “threesome”), which Rund characterized as “outrageous behavior” that could not be the product of a rational,
informed decision by an adult. This characterization, according to the FAC, reflects implicit gender bias and antiquated “sexual mores” because Rund “did not characterize the men’s decision to engage in three-way sex as ‘outrageous.'” …

Third, and most important, the FAC alleges an array of irregularities during the disciplinary proceedings, including (1) the lead investigator promised Roe she would attempt to bring charges against Doe at the very outset of the investigation, before even interviewing Doe or obtaining corroborating information, (2) the lead investigator made conflicting statements to Doe and Roe about the investigator’s role, (3) the lead investigator falsely told Doe that one of Roe’s written submissions did not contain any new evidence, (4) the Committee violated its own procedural rules by issuing the expulsion letter without considering Doe’s response to the new evidence discussed in Roe’s final written submission, (5) ASU representatives failed during various stages of the proceedings to take steps to obtain key evidence, (6) the UHB refused to consider Doe’s proffer of the testimony his alcohol expert would have provided, and (7) the UHB sustained the sexual misconduct finding under an “impermissible force” theory, but this theory wasn’t properly disclosed to Doe before the hearing and conflicted with Roe’s statements to the police and with the uncontradicted testimony of Doe’s expert.

Thanks to reader James D. Smith for the pointer.

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A new Defense Department memo warns that direct-to-consumer (DTC) genetic testing “could expose personal and genetic information, and potentially create unintended security consequences and increase risk to the joint force and mission.” The memo adds that “there is increased concern in the scientific community that outside parties are exploiting the use of genetic data for questionable purposes, including mass surveillance and the ability to track individuals without their authorization or awareness. Until notified otherwise, [Department of Defense] military personnel are advised to refrain from the purchase and/or use of DTC genetic services.”

Way too late.

Some 26 million Americans have already used DTC genetic testing services to gain insights into their health risks and ancestry. By one estimate, it was possible in 2018 to use these DTC databases to personally identify 140 million Americans of European descent using genetic information uploaded by themselves and their relatives. It is projected that as many as 100 million Americans will have used such genetic testing services in the next two years. At that point, almost any American could be identified by matching their DNA to that of their relatives in online databases. In other words, we users of genetic testing services have been voluntarily creating “a de facto national DNA database.” To use the hoary, but apt cliche: The Pentagon is closing the barn door well after the horses have stampeded out.

Given how pervasive and much more easily deployed facial recognition technology is, I can hardly wait to read the DoD memo warning troops not to post their photos on Facebook.

While it is not possible to rein in genetic and facial recognition surveillance technologies in dictatorships like China and Russia, Americans should urgently seek to do so through legislation in Congress.

Disclosure: Any would-be criminal relatives are on notice that my DNA test results are publicly available.

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12/26/1907: Lonzo Bailey entered into written labor contract with the Riverside Corporation. This contract gave rise to Bailey v. Alabama (1911).

 

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When tainted lettuce causes an outbreak of gastrointestinal disease, the federal government does not issue general warnings about the hazards of eating. Nor does it order a recall of all fresh vegetables. Instead it focuses on the specific products consumed by the people who got sick.

After doctors began to report respiratory illnesses among vapers last summer, by contrast, federal agencies urged the public to avoid all vaping products, including legal e-cigarettes that deliver nicotine, even though it was clear early on that the vast majority of cases involved black-market cannabis extracts. That indiscriminate approach undermined public health in two ways.

First, it did not provide specific guidance to cannabis consumers who might have avoided the products implicated in the lung disease outbreak if they had been adequately informed. Second, it scared smokers away from vaping products that offer potentially lifesaving alternatives to conventional cigarettes. The vague warnings also encouraged a series of panicky state bans that threatened to drive vapers toward illegal products that may pose special hazards.

As of November 5, the U.S. Centers for Disease Control and Prevention (CDC) had counted more than 2,000 lung injuries associated with vaping, including 39 deaths. In cases where the information was available, the CDC reported, just 11 percent of patients with respiratory symptoms said they had vaped only nicotine. As the CDC noted, some of those patients may have been reluctant to admit illegal drug use. Furthermore, it’s not clear that any of them had used legal nicotine products, as opposed to black-market e-liquids of unknown provenance and composition.

While legal e-cigarettes have been used by millions of Americans for years, the reports of acute, life-threatening respiratory reactions did not emerge until recently. That suggests the problems are caused by relatively new additives or contaminants in black-market THC cartridges, and perhaps also in counterfeit e-cigarette pods or bootleg nicotine e-liquids.

An analysis of lung tissue samples from 17 patients by researchers at the Mayo Clinic, reported in The New England Journal of Medicine, suggested that many of the lung injuries were caused by exposure to toxic chemicals. Another possible culprit is vitamin E acetate, a cutting agent found in illegal THC vapes that is safe to swallow but may be hazardous when inhaled, leading to a rare form of pneumonia caused by fat particles in the lungs.

Despite the evidence pointing to black-market products (and THC cartridges in particular), the CDC and the Food and Drug Administration (FDA) continued to suggest that people “consider refraining from use of all e-cigarette and vaping products.” At the same time, both agencies cautioned former smokers who are now vaping against returning to their old habits.

The reason for the latter recommendation is plain: E-cigarettes, which do not contain tobacco and do not burn anything, are much less dangerous than the conventional, combustible kind. Studies of biomarkers in smokers who have switched to vaping find that they are exposed to far fewer hazardous substances, at far lower levels, than people who continue to smoke. As David Abrams, a professor of social and behavioral sciences at New York University, noted in a September interview with CBS News, “e-cigarettes are way less harmful than cigarettes, and they can and do help smokers switch if they can’t quit.”

A controlled, randomized study reported last February in The New England Journal of Medicine found that e-cigarettes are nearly twice as effective in smoking cessation as alternative nicotine replacement products. The harm-reducing potential of e-cigarettes has been recognized by a wide range of public health agencies and organizations, including the FDA, the Royal College of Physicians, the American Cancer Society, and the National Academies of Sciences, Engineering, and Medicine. In 2015, Public Health England said “best estimates show e-cigarettes are 95% less harmful to your health than normal cigarettes.”

That point was lost in government warnings that implied all vaping products are potentially deadly. “It seems there’s too much conflating these tragic lung injuries with store-bought brands of regulated, legal e-cigs like Juul and NJOY,” former FDA Commissioner Scott Gottlieb observed on Twitter in late September, “and far too little blaming THC, CBD, and bootleg nicotine vapes—where so far, the only available hard evidence points.” A week later, Boston University public health professor Michael Siegel noted on his tobacco policy blog that “there are no cases that have been shown to be associated with the use of store-purchased nicotine e-liquids, and it seems extremely unlikely that these products have any involvement in the outbreak.”

Washington, D.C., psychiatrist Sally Satel, a resident fellow at the American Enterprise Institute, made the same point in congressional testimony on October 16. “The lung injury problem is a story of the dangers of the black market, not of vaping,” she said. “Consumers have been using commercially available vaping devices and nicotine products for 10 years without a single recorded death or any surge of illnesses…until this summer. What we are observing today is consistent with a relatively acute contamination.”

That’s not the message Americans have been getting from public health officials or news outlets influenced by the government’s framing of the issue. A Morning Consult poll conducted in September found that 58 percent of respondents, based on what they had “seen, read, or heard on the news lately,” believed people had “died from lung disease” caused by “e-cigs, such as Juul.” By comparison, 34 percent said the cases involved “marijuana or THC e-cigs.” Only 22 percent of respondents understood that e-cigarettes are less hazardous than the conventional kind, down from 36 percent in a June 2018 poll.

Muddled messages about vaping also have influenced policy makers. While Michigan Gov. Gretchen Whitmer (D) cited underage vaping as her justification for unilaterally banning flavored e-cigarettes in September, the governors of Massachusetts, Montana, New York, Oregon, Rhode Island, and Washington subsequently mentioned vaping-related respiratory illnesses while imposing similar “emergency” bans.

As Satel noted, “Eliminating flavored nicotine e-liquids will not prevent further cases of lung disease, because those products had nothing to do with the outbreak.” Meanwhile, such bans deprive former smokers of the legal e-liquids they overwhelmingly prefer. Surveys find that supposedly kid-friendly flavors are highly popular among adult vapers, who say they are important in the process of giving up smoking. After those options are eliminated, some vapers may return to smoking, while others may start buying potentially tainted black-market e-liquids.

If every smoker in the United States switched to e-cigarettes, NYU’s Abrams estimates, it would prevent as many as 7 million smoking-related deaths. No wonder Gottlieb, when he was running the FDA, called e-cigarettes “a tremendous public health opportunity.” But that opportunity is threatened by misleading warnings about the hazards of vaping and bans on the e-liquids that former smokers demonstrably want.

“There’s no question public health would benefit dramatically if everybody switched completely to e-cigarettes,” Abrams told CBS News. “If we lose this opportunity, I think we will have blown the single biggest public health opportunity we’ve ever had in 120 years to get rid of cigarettes and replace them with a much safer form of nicotine.”

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