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Treating Sniffles with a Jail Term


Drug abuse is never-ending but ever-changing. Periodically public officials warn that the use of heroin, LSD, PCP, cocaine, crack, and now methamphetamines is sweeping America. Eventually each crisis ebbs, only to be followed by another well-publicized addictive fad.

Unfortunately, in each case tabloid-like publicity generates increased pressure on authorities to “do something.” Dramatic new enforcement campaigns ensue, hitting the obviously innocent as well as the supposedly guilty.

So it is with meth. As a result, Uncle Sam is pushing safe and effective medications behind the pharmacy counter and potentially off the market.

At the same time, regulation by the Food and Drug Administration is making it harder for pharmaceutical companies to reformulate allergy, cold, and flu medicines to meet consumers’ needs while satisfying federal drug warriors. Everyone loses as a result.

Doctors cannot cure the common cold, but at least patients can self-medicate. Over-the-counter remedies (OTCs) offer relief and are available in most any drugstore, grocery, or convenience shop. Traditionally it has been no more difficult to purchase cold (or flu or allergy) medicines than aspirin.

However, pills such as Sudafed contain pseudoephedrine (PSE), which can be used to make meth. Since attempts to destroy chemical labs, imprison sellers, and arrest users have been no more successful than prior enforcement campaigns in stemming the perceived epidemic, politicians increasingly are declaring war on common cold remedies. (Next may be campaigns against brake fluid, Coleman’s fuel, hydrogen peroxide, rock salt, and rubbing alcohol, which also are used in meth production.)

States have been competing with each other to penalize anyone with the sniffles. At least 30 states have passed legislation to limit the amount of OTC medicine consumers can purchase, restrict the number of pills per package, mandate that allergy and cold remedies be kept in locked cabinets, limit sales to pharmacies, and require sellers to maintain a registry of buyers.

Most extreme are states that have pushed sales behind the pharmacy counter. Last year Oklahoma led the pack, classifying cold medicines along with narcotics, limiting sales to pharmacies. (Buyers would be allowed to buy only limited quantities and would have to show an ID and sign an official register.)

Oregon has gone much further, requiring that anyone suffering from a cold get a prescription. NyQuil, Claritin, Tylenol Flu, and their competitive cousins would become controlled substances.

Congress, too, is threatening to step in. Legislators have created a meth caucus. Rep. Mark Souder (R-Ind.), among others, has berated federal drug enforcement officials for being insufficiently vigorous in crusading against meth.

Supposed advocates of limited government such as Senators Lindsey Graham (R-S.C.) and Jim Talent (R-Mo.) are pressing for federal restrictions on consumer sales of cold medicine. The Senate has approved legislation to limit the purchase of allergy and cold remedies and push them behind pharmacy counters nationwide.

Although meth harms some users, as John Tierney of the New York Times has pointed out, there is no evidence of a dramatic national upsurge in abuse. Moreover, local labs have spread because of steadily tougher crackdowns on amphetamine pills, once widely available over the counter and with prescriptions.

Former San Jose Police Chief Joseph McNamara, a former chief of police in San Jose, observes, “It’s just a continuing strategy — that we have to have a drug panic.” Ironically, even the Bush administration has played down superheated talk of a meth epidemic, which is why Representative Souder was so upset. But the administration can hardly be accused of weakness in drug enforcement: it has sought to prevent even the sick and dying from using marijuana.

Alas, the facts rarely get in the way of a popular political campaign. Even assuming a growing problem requiring government attention — in fact, it’s long been obvious that drug prohibition violates individual liberty for no good reason and creates far more harm than benefits — the new measures won’t do much to curb drug abuse.

The largest production facilities are located either in California, relying on pseudoephedrine smuggled in bulk from Canada or Mexico, or in Mexico. Indeed, the recent crackdown in the United States has pushed production south of the border, where authorities, already overwhelmed by the cocaine and marijuana trades, are ill-prepared to respond.

Even banning the sale of cold pills wouldn’t inhibit this production. And given how ineffective Washington has been at interdicting cocaine and marijuana shipments, there’s little doubt that drug traffickers can bring in more than enough meth to satisfy willing customers. All the government is doing is turning a health and moral problem into a legal and criminal one as well.

Although new regulatory restrictions won’t do much to prevent meth production or sales, they will greatly inconvenience anyone who gets sick. Going to a doctor for a prescription is intrusive, time-wasting, and expensive. It further inflates already inflated health care costs.

A requirement that drugs be purchased at a pharmacy or behind the counter is a particular bother, especially for anyone in a rural area or who gets sick at night. Even people near big stores would have to wait in pharmacy lines instead of picking up an easy-to-buy OTC remedy. Purchase limits penalize larger families when several members are sick.

Sellers also would suffer. Convenience stores would lose a steady business. Pharmacies would waste space and staff handling formerly OTC sales.

Store personnel would become quasi cops. Druggists would be checking IDs and maintaining logs for cold pills rather than worrying about real problems — warning consumers against possible dangerous drug interactions, for instance.

Nevertheless, politics seems determined to trump good sense. So retailers and sellers have responded.

Some stores have begun limiting quantities of PSE-based medicines that can be purchased and the Consumer Healthcare Products Association, representing the OTC industry, has proposed model state legislation limiting dosages per package. The online auction service eBay has banned the sale of medicines containing PSE.

Moreover, cold pill manufacturers have begun looking for alternatives. For instance, Pfizer has created Sudafed PE, which uses phenylephrine, an older ingredient that can’t be used in meth production (but that is also a less effective decongestant).

Better would be for companies to develop new and better products. But FDA rules, which would run new medicines and even new combinations of old medicines through the usual regulatory gamut, makes any improvement difficult and expensive.

The FDA has long impeded the discovery, production, and marketing of medicines, even those with potentially life-saving uses. It does even more to impede access to more mundane products, in this case those directed at the common cold.

If government is going to make it hard for patients to buy anti-cold remedies, it should at least allow firms to speedily develop new medicines using phenylephrine or reformulated existing products. Or to develop new remedies.

There’s no need to compromise safety — which wouldn’t be in the interest of producers. It makes even less sense for government to claim to be able to determine which form of medicine is most effective.

For years unnecessarily intrusive agency regulation has delayed patient access to a host of important medications, harming health and costing lives. Today FDA regulatory barriers are inhibiting drug developments that could protect the sick from unnecessary inconvenience caused by today’s misguided meth enforcement campaign.

Like other drug panics, the meth crisis will eventually pass. In the meantime, however, Washington should stop treating people with the sniffles as if they are criminals.

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    Doug Bandow is vice president of policy at Citizen Outreach, the Cobden Fellow in International Economics at the Institute for Policy Innovation, a senior fellow at the Cato Institute, and serves as adjunct scholar for The Future of Freedom Foundation. He is a former special assistant to President Reagan; he is also a graduate of Stanford Law School and a member of the California and D.C. bars. BOOKS BY DOUG BANDOW: Leviathan Unchained: Washington’s Bipartisan Big Government Consensus (forthcoming) Tripwire : Korea and U.S. Foreign Policy in a Changed World (1996) Perpetuating Poverty : The World Bank, the Imf, and the Developing World (1994) The Politics of Envy : Statism As Theology (1994) The U.S.-South Korean Alliance : Time for a Change (1992) The Politics of Plunder : Misgovernment in Washington (1990) Beyond Good Intentions : A Biblical View of Politics (1988)