Month: May 2020

Wither hemp? Earlier this month, the editors of the cannabis investment news site Technical420 lamented that a predicted hemp boom had failed to materialize. “[T]he sector has not lived up to expectations,” the site declared. Likewise, Hemp Industry Daily reported this week that hemp farmers found “production costs far outpaced profits” last year.

Others outside the industry have also taken note of hemp’s struggles. Earlier this week, Politico reported that laws passed in Washington, D.C., that were intended to propagate a domestic hemp industry have instead proven to be “a flop.” Why? One explanation is that hemp producers and investors didn’t account for the Food and Drug Administration (FDA) when they made their bets.  

Growing hemp, which is used around the world for food, fuel, and fiber, was long illegal in the United States. The federal ban was thanks entirely to the hemp plant’s psychoactive sister, marijuana, and the paranoia that crop causes among people who like to ban things. The 2014 farm bill loosened the federal ban on growing hemp ever so slightly by allowing state governments (rather than private farmers) to grow it. But it was the broad federal decriminalization of hemp instituted by the 2018 farm bill that spurred farmers across the U.S. to plant hundreds of thousands of acres of the crop.

I was optimistic that the 2018 farm bill—which was otherwise awful—could foster a “homegrown hemp renaissance.” But while some in Washington saw the farm bill as reason enough to get out of the way of hemp farmers and those who make products derived from hemp, others in Washington saw an opportunity to meddle. Politico suggests a lack of FDA regulations governing hemp-derived cannabidiol (CBD) is partly to blame for hemp’s struggles. But that’s misleading.

In reality, the FDA has effectively banned CBD foods. “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement,” the agency declared, also noting it would study the matter indefinitely.

In other words, soon after Congress legalized growing hemp, the FDA banned the single most profitable use of hemp.

States responded to the FDA’s stance by banning CBD food sales. Farmers growing hemp were suddenly stuck between a rock and hard place. While the ubiquity of CBD food products is one indication that businesses of all types—from groceries to convenience stores to gas stations, and the CBD food producers that market their products to those sellers—are ignoring the FDA ban, bans are bad for business. “The agency’s indecisiveness trickles down,” I wrote. “States that have banned CBD products typically ‘cit[e] the FDA’s stance’ as the basis for their actions.“ 

The impact of the FDA’s stance has been dramatic. Politico notes it’s harming even non-CBD hemp sales.

“[R]etailers are interested, but the lack of FDA rules are scaring them away from hemp products even when they don’t contain any CBD,” the publication reports, noting that one hemp farmer who’d thought he’d found a buyer for his cold-pressed hemp seed oil instead saw the buyer back out, citing company lawyers nervous over the FDA’s stance.

In 2014, much like the FDA today, it was the DEA that stood in hemp’s way. After passage of the farm bill that year, I wrote, the DEA “held up a shipment of seeds destined for Kentucky, and forced the state to sue the federal government in order to seek their release.” Senate Majority Leader Mitch McConnell (R–Ky.) was instrumental in forcing the DEA to back down.

Though McConnell pressured the FDA to act on hemp this past fall, the agency has mostly sat on its hands. And, as this week’s Politico report notes, so-called “Marijuana Mitch” appears to have been “missing from the debate in recent months.”

Hemp farmers are in limbo—yet again—because of Washington.

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From Carrethers v. McCarthy (nonprecedential), decided Thursday by the Sixth Circuit (Judges Griffin, Thapar, and Readler):

The Army fired Lorraine Carrethers (a civilian employee) after it concluded that her complaints about alleged workplace harassment were baseless. She then sued the Army for retaliation. The district court rejected her claim, reasoning that it’s not illegal to fire an employee for abusive complaints. We affirm.

Carrethers used to work for the Army as an IT specialist. In the last year and a half of her employment, Carrethers repeatedly accused her supervisors and other coworkers of various sorts of harassment. Her allegations were never substantiated, prompting a warning and then a reprimand about these seemingly unfounded complaints.

Carrethers then filed yet another set of allegations against her immediate supervisor. This time, the Army appointed an officer to investigate. After interviewing Carrethers, this officer thought it “extremely clear” that she was “mak[ing] things up.” But the officer didn’t stop there. He also interviewed fourteen other employees who Carrethers said could verify her claims. As it turned out, they contradicted her claims. A few of them added that Carrethers’s tendency to claim harassment had made them uncomfortable working with her.

Given this evidence, the investigating officer concluded that Carrethers was abusing the complaint system to distract from her poor work performance. His conclusions were reported up the chain of command, and the Adjutant General made the decision to fire Carrethers.

Carrethers then sued the Secretary of the Army under Title VII of the Civil Rights Act, alleging that her termination was illegal retaliation for her complaints. The district court granted summary judgment to the Secretary. This appeal followed.

As relevant here, Title VII forbids retaliation against an employee for “oppos[ing] any … unlawful employment practice.” … To survive summary judgment, a [retaliation] plaintiff must at least establish a “prima facie case” by showing that: (1) she engaged in protected Title VII activity; (2) the defendant knew of this protected activity; (3) the defendant took adverse employment action against her; and (4) there was a causal connection between the protected activity and the adverse action. If the employer points to a “legitimate, non-retaliatory reason” for the adverse action, then the plaintiff must also provide evidence that (5) the proffered reason is a mere “pretext,” not the real motive.

There’s no real factual dispute in this case about motive: no one disputes that the Army fired Carrethers because it determined that her allegations were bogus. Instead, Carrethers argues that this reason does not qualify as legitimate and non-retaliatory as a matter of law.

This case, then, comes down to a straightforward question: may an employer legitimately fire an employee if it honestly believes that the employee falsified misconduct allegations? There’s ample caselaw saying yes. [Citations omitted. -EV] And common sense tells us that must be the right answer. After all, groundless complaints defame innocent coworkers, undermine trust in the workplace, and waste resources. It only gets worse when (as here) the employee seems to have made a habit of making things up. So of course employers are allowed to fire such employees.

What does Carrethers have to say about this? Relying mainly on one out-of-circuit case, she argues that an employer’s disbelief in a complaint is “not sufficiently independent” from protected activity to count as a legitimate, non-retaliatory reason. Gilooly v. Mo. Dep’t of Health & Senior Servs. (8th Cir. 2005) (cleaned up). The argument goes like this: the Army fired Carrethers because of her complaints—that’s undisputed. Carrethers’s complaints were protected activity—at least, a jury could find as much if it believed Carrethers’s testimony that she made her complaints in good faith. Thus, a jury could find that the Army fired Carrethers because of protected activity—which is retaliation, not a legitimate reason.

The problem with this argument? It entirely ignores the employer’s perspective. And as a result, it elides the all-important question of motive. Even if Carrethers made her complaints in good faith, the Army fired her because it thought that they were not in good faith. That proffered reason is legitimate and non-retaliatory…. “If an employer … never realized that its employee engaged in protected conduct, it stands to reason that the employer did not act out of a desire to retaliate for [that] conduct[.]” … And since Carrethers does not argue pretext, there is nothing more to say.

 

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5/30/1865: Justice John Catron dies.

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Quit Vaping: Your Four-Step, 28-Day Program To Stop Smoking E-Cigarettes, by Brad Lamm, Penguin, 256 pages, $16

They say a lie will go ’round the world while truth is pulling its boots on, but today’s debates over vaping may make you wonder if truth should even bother tying its laces. No matter how thoroughly they’ve been debunked, scare stories about the widespread lethality of e-cigarettes keep seizing the imaginations of journalists, politicians, and concerned parents.

The latest example is Quit Vaping, a new book by the Los Angeles–based “certified intervention specialist” Brad Lamm. Just looking at the front cover, you can see signs that Lamm’s approach may be less than scientifically rigorous. There’s the line boasting a foreword by Mehmet Oz, better known as Dr. Oz, a TV host notorious for promoting purportedly miraculous dietary supplements. Then there’s the subtitle: Your Four-Step, 28-Day Program To Stop Smoking E-Cigarettes. No one “smokes” an e-cigarette—the absence of smoke is the whole point of the device—and this obvious misunderstanding foreshadows worse to come.

One shouldn’t judge a book by its cover, but in this case the text lives up to expectations. The opening section, “Lies and Facts,” offers a preponderance of the former. Initially I attempted to keep track of misleading statements and critical omissions by marking them with Post-its. By page 30, such a thicket had accumulated that I gave up. Adequately critiquing Lamm’s selective reading of the scientific literature would be like trying to perform a live fact-check of a Trump campaign rally; the torrent of error is too much for any one person to handle. This section is a greatest hits collection of anti-vaping stories, recounting every possible danger and dismissing every possible benefit. In that sense, it provides a useful look at how coverage of the topic has become increasingly fear-based.

The moral panic over vaping is driven by two primary narratives: that e-cigarette use is an epidemic among teenagers and that the practice has deadly consequences. Worried parents are clearly a target audience for Lamm’s book, and he does nothing to assuage their fears. He advises them to “know the signs” that their child may be a vape addict—signs including acne, secretiveness, irritability, and frequent snacking. As anyone who has known or been a teenager might attest, these are not exactly discriminating diagnostic criteria. And despite the endless press coverage of an adolescent Juul craze, sober analyses of the data generally conclude that most youth vaping is experimental, that habitual use among young people who have not tried tobacco is rare, and that rates of teen smoking are at their lowest levels in recorded history. There are a few genuine reasons for concern, but the kids are largely all right.

The fear that vapers are poisoning themselves en masse got a boost from a mysterious lung illness that emerged in summer 2019. Although it’s clear now that contaminants in black market cannabis cartridges were the primary culprit, officials at the Centers for Disease Control and Prevention (CDC) were determined to blame nicotine e-cigarettes. Even the acronym the CDC gave to the disease—EVALI, short for “E-Cigarette or Vaping product use Associated Lung Injury”—prematurely implicated e-cigs. Anti-smoking groups latched onto the story, eager to prove at last that vapers who believed they’d found a safer way of consuming nicotine were deluding themselves.

Yet it was obvious even then that the true causes of the outbreak lay elsewhere. By early September, scientists had identified vitamin E acetate, a THC oil thickener, as a potentially dangerous additive, and by the end of that month the cannabis website Leafly had meticulously documented the ingredient’s spread through the marijuana supply chain. In January 2020, the CDC finally acknowledged the overwhelming evidence and revised its guidance to focus on cannabis products.

Despite this, Lamm’s book relies on tales of horrific pulmonary illness to portray nicotine vaping as dreadfully lethal—perhaps even more lethal than the smoking it was invented to replace. “Smoking kills people slowly, over many years,” Lamm writes. “As we’ve seen, vaping can kill quickly, within months or a year.” As further proof of this conjecture, he cites a couple of cases in which users were killed by exploding vape batteries. These are dramatic tales, but they underscore how rare it is to find instances of e-cigarettes killing their users; though he doesn’t mention it, more than 300 Americans die every year in smoking-related fires.

Smoking is the most relevant comparison because smoking and vaping are substitutes for one another. More than 400,000 annual deaths are attributed to smoking in the United States; globally, the figure climbs to 7 million. All but the most ardently ideological opponents will acknowledge, when pressed, that vaping appears to be much safer than smoking. The Royal College of Physicians optimistically estimates that switching from smoking to vaping could reduce risk by 95 percent; another model, offered by David Levy of the Georgetown University Medical Center, predicts that widespread switching could prevent more than 6 million premature deaths in the United States.

Lamm breezily dismisses such benefits as “Big Vape lies.” He ignores, among other studies, a randomized control trial published in The New England Journal of Medicine finding that vaping was twice as effective for helping people stop smoking as are pharmaceutical nicotine replacement therapies. He also ignores the stories of millions of ex-smokers who now puff vapor instead.

Lamm notes, accurately, that the Food and Drug Administration has not formally approved e-cigarettes as an aid to quitting smoking. He applies far less scrutiny to his own guidance on how to stop using e-cigarettes, which comprises the rest of Quit Vaping. He offers some reasonable advice, such as avoiding habits and social situations that one associates with vaping. The effectiveness of his “H2M” (for “hand-to-mouth”) technique is more dubious. H2M calls for making a fist and breathing into it whenever the reader is struck by the urge to vape, thus satisfying oral fixation. Needless to say, no government agency has approved H2M as an effective means of quitting.

Some of Lamm’s other tips are pure California woo: detoxing by avoiding “mucus-producing foods,” eating an alkaline diet, chowing down on cruciferous vegetables, and sipping spicy ginger tea. Eating more veggies is rarely a bad idea, but there’s a glaring inconsistency to dismissing the substantial body of evidence that favors vaping while preaching the healing powers of Brussels sprouts and oregano.

If Quit Vaping were an isolated example, it would be easy to ignore its Goopification of the vape debate. Regrettably, the conflation of tainted cannabis cartridges and nicotine e-cigarettes is endemic in other media. “After deaths, ban on flavored vapes to be passed by New York City,” read a November headline in The New York Times; remarkably, and inexcusably, the article never so much as mentioned cannabis. A February cover story in New York magazine featured the dismissive headline, “Who thought sucking on a battery was a good idea?” Despite being nominally about the long-term risks of vaping nicotine, it devoted nearly half of its 6,000 words to EVALI, illicit marijuana dealers, and critically ill teenagers.

Such alarmist coverage has worsened misperceptions about vaping. A recent Morning Consult poll found that the percentage of American adults who believe e-cigarettes cause fatal lung illness rose by eight points between September 2019 and January 2020. Over the same period, the percentage correctly identifying THC vape liquids as the cause fell by six points. Compared to 2018, the percentage rating e-cigarettes “very harmful” rose 27 points, to 65 percent of the population.

This is a cruel disservice to cigarette smokers, many of whom could benefit from accurate information, access to lower-risk options, and the freedom to make their own decisions. Instead, e-cigarette bans are proliferating, sometimes to the point of involving police enforcement and the threat of jail time. Such excessive reactions illustrate how thoroughly Americans have lost their minds over e-cigarettes even as real cigarettes continue to kill more people every day than vaping has killed ever. The tragic story of EVALI has exposed more about the dangers of the drug war than it has about vaping; the moral panic over e-cigarettes reveals how stubbornly we insist on repeating its mistakes.

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