Promoting a new position paper titled “WHO Position on Tobacco Control and Harm Reduction,” Director General Dr. Tedros Adhanom Ghebreyesus claims e-cigarettes aren’t promoting harm reduction, via transitioning smokers to a safer source of nicotine, but are instead encouraging a new wave of addiction among young people.  

Instead of switching to e-cigarettes or nicotine pouches, the WHO recommends smokers make use of quit helplines and nicotine replacement therapies. But both these methods have notoriously low success rates and are not readily available or affordable in low- and middle-income countries (LMIC) where the majority of smokers live. LMICs often lack the public health infrastructure of countries like the United Kingdom or New Zealand, which have independently and successfully embraced products like e-cigarettes for tobacco harm reduction. LMICs are often more reliant on bodies such as the WHO for health and regulatory advice, placing a great responsibility on these organizations to provide sound, evidence-based guidance.   

In 2019, the WHO congratulated India, where there are more than 250 million tobacco users and around one million tobacco-related deaths per year, for its ban on e-cigarettes. In 2024, the WHO honored Brazil’s National Health Surveillance Agency with an award for reaffirming a ban on e-cigarettes. E-cigarettes are also banned in Argentina, Thailand, Brazil, Vietnam, and Mexico, where more than 70 million tobacco users live. Cigarettes, which are by far the most dangerous way of consuming nicotine, remain legal in all these countries. 

The WHO paper doesn’t provide any evidence that e-cigarettes or nicotine pouches are, in fact, just as or more harmful than smoking. The safer profile of these products is not just some self-serving claim from the tobacco industry trying to sell these alternatives. That vaping is safer than smoking is acknowledged by some of the WHO’s largest funders, such as the United States, the United Kingdom, and Canada. These countries have different regulatory regimes for nicotine products, but all of their leading health agencies, the Food and Drug Administration, the Office for Health Improvement and Disparities, and Health Canada, agree that e-cigarettes are safer than cigarettes. The gold standard for evidence-based medicine, the Cochrane Review, consistently finds e-cigarettes to be more effective than nicotine replacement therapies for smoking cessation. 

The UK’s National Health Service (NHS) and Cancer Research UK consistently promote e-cigarettes to smokers, regularly debunking the myths that these products are just as or more dangerous than cigarettes. The NHS even offers some smokers free vape kits as part of its “swap to stop” initiative. 

These efforts are bearing fruit. Smoking rates in the UK have declined significantly since the rise of e-cigarettes. In November 2025, the number of vapers in the UK surpassed the number of smokers for the first time. The spread of e-cigarettes, nicotine pouches, and heated tobacco products has given tens of millions of smokers who want to quit— but have failed through other methods—an alternative. Sweden has the lowest smoking and lung cancer rate in Europe because those who wish to use nicotine typically choose snus, an oral nicotine product that doesn’t involve combustion or inhaling smoke. 

There is also a wide-ranging body of evidence demonstrating that the kinds of restrictions Tedros is calling for, whether in the form of higher taxes or bans on e-cigarette flavors consumers prefer, result in more smoking of traditional cigarettes. That’s not a prescription for better public health.

Despite the overwhelming evidence that vaping is dramatically safer than smoking, the WHO persists in its demands that if countries don’t ban e-cigarettes outright, they should be subject to the same taxes and regulations as cigarettes. It should be commonsensical that products presenting vastly different risks should be regulated differently. But the WHO’s advice to put vapes, nicotine pouches, and other nicotine alternatives on a level playing field with cigarettes, if implemented in more countries, will only prolong and sustain death and disease among smokers who want to quit but don’t have the right options that might help them succeed. 

The post Why the World Health Organization’s anti-nicotine policy could keep millions smoking appeared first on Reason Foundation.

For as long as organized sports have existed, officials and players have attempted to profit by exploiting insider information or fixing games to win large sums of money. In 1978, Boston College basketball players participated in a point-shaving scheme orchestrated by the mafia. Even earlier, eight players for the Chicago White Sox were permanently banned from professional baseball after accepting money from a gambling syndicate to intentionally lose the 1919 World Series.

However, these types of gambling-related scandals have taken on greater significance in the wake of the Supreme Court’s 2018 decision in Murphy v. National Collegiate Athletic Association, which struck down as unconstitutional the Professional and Amateur Sports Protection Act, thereby allowing states to legalize sports betting. Can fans still have faith in the integrity of the games they love in a world where sports betting is legal and widely available?

The answer is that they should arguably have more faith in game integrity now than they did when such betting took place underground and without the oversight of gambling companies, leagues, and sports integrity monitoring organizations.

Before 2018, sports betting was less public, but it was a vast, illicit market operating in the shadows, estimated to be worth $80 billion to $150 billion per year. There was no regulatory framework, and no ability to detect suspicious play from large bets made on individual players’ performance. There were no real-time monitoring systems, no artificial intelligence (AI) algorithms flagging suspicious betting patterns, and crucially, no cooperation between bookmakers, law enforcement, and leagues.

What has changed is that legal sportsbooks are now required by law to monitor and report unusual betting activity to authorities. Actually, the recent NBA gambling scandals—including the 2024 case involving Toronto Raptors forward-center Jontay Porter—probably would have gone undetected without the help of sports integrity monitors like Sportradar. These services track betting activity to identify irregular patterns that may indicate match-fixing or other forms of misconduct. When betting markets on Porter’s individual plays saw abnormal betting action with unusually large wagers all predicting he would perform below expectations, the system worked as designed. Licensed bookmakers flagged the activity. The NBA and federal authorities investigated.

Sportradar is one of the leading integrity monitors, and its Universal Fraud Detection System, which monitors 30 billion odds changes annually across more than 600 betting operators, detected 1,329 suspicious matches globally in 2023—representing just 0.21% of all monitored events, or roughly one in 467 games. Of these suspicious matches, just 35 were in North America. Sports fans should take comfort in these figures, which indicate that American sports are among the least corrupt in the world.

When scandals surface, it’s tempting to say sports betting legalization is creating more corruption rather than examining the possibility that more cheats are being caught because of legalization.

Suppose legal sports betting is so corrosive to game integrity. Why are there no similar concerns in Europe, where sports betting is legal in 21 countries, with hundreds of licensed operators, or in countries such as Canada, Australia, and New Zealand? These countries have had legal, regulated betting markets for decades. Games are well attended, and sports remain integral to the social fabric. Scandals arise and are dealt with, but there’s no serious push to ban sports betting. On the other end of the spectrum, last year, China, where all sports betting is illegal, banned 38 soccer players and five club officials for life following an investigation that found 120 matches had been fixed.  

Banning sports betting so that it falls exclusively into the hands of criminals and offshore platforms won’t eliminate corruption; it may very well worsen it. The combination of individual and team integrity, law enforcement engagement, and tech-savvy monitoring means fans can and should have confidence that they live in one of the greatest countries to watch sports in the world, and trust that the games they’re watching are played fairly.

A version of this column first appeared at RealClearPolicy.

The post Legal sports betting didn’t create corruption. It exposed it. appeared first on Reason Foundation.

But if the Trump administration is serious about reducing the harms of smoking and sticking to its campaign promises, this pilot program should be immediately expanded to include other non-combustible nicotine products, like e-cigarettes.

Currently, the expedited review for premarket tobacco applications (PMTAs) appears open only to nicotine pouches made by four companies, three of which are legacy tobacco firms. This comes as a gut-punch to e-cigarette makers, consumers, and advocates who have pleaded for a similar streamlined process for e-cigarettes since the FDA began regulating them in 2016. The agency’s failure to provide one has been catastrophic.

When Congress granted the FDA authority to regulate tobacco in 2009, the requirement to obtain premarket authorization applied only to new tobacco products. Legacy tobacco products—those marketed in the U.S. prior to 2007—were exempt from premarket authorization. This effectively shielded entrenched cigarette brands from newer, safer competitors, leading some to dub the law the “Marlboro Protection Act.”

This scenario became truly perverse in 2016. When the FDA deemed e-cigarettes subject to its oversight, all vaping products on the market were classified as “new” because there were no e-cigarettes on the U.S. market before 2007. Suddenly, every e-cigarette was forced into a prohibitively expensive and opaque PMTA process, while tobacco companies could continue introducing new cigarettes that were merely “substantially similar” to their legacy products. As many experts and some lawmakers warned, it made no sense to hold safer alternatives to a higher standard than the combustible products they were designed to displace. But the FDA ignored these warnings.

The result was a predictable public health disaster. The FDA’s unworkable approval process eliminated nearly every e-cigarette product available in 2016. Today’s e-cig market is a dystopian mix of the few Big Tobacco brands to receive FDA authorization and a flood of unauthorized e-cigarettes that poured into the U.S. market to fill the vacuum created by the FDA. Few of the independent companies that once existed could afford the $20 to $100 million cost of preparing a PMTA, nor wait the years it might take the FDA to make a decision. Those that tried were squeezed out of the market anyway. They could no longer legally compete with the legacy tobacco brands that received FDA authorization early or the unauthorized products still available in a range of flavors.

The story of Juul, once the dominant e-cigarette brand that was seen as an existential threat to cigarette sales, is just one particularly egregious example of how the FDA’s regulatory failure functionally handed the legal e-cigarette market to Big Tobacco.

In 2018, Juul was the undeniable leader in the e-cig market, representing nearly 70 percent of all e-cigarette sales. Its nearest competitor, British American Tobacco’s Vuse, captured just 13 percent. That year, Juul submitted its PMTA to FDA, reportedly spending over $100 million to prepare the 125,000-page document. But, while the FDA was statutorily required to make a decision within 180 days, it took five years. Juul only received authorization for its tobacco and menthol products this past July.

In the interim, Juul faced massive litigation, nearly went bankrupt, and fell behind its competitors. Vuse, which was authorized by the FDA in 2021, is now the market leader among authorized products, with 35% of sales. Juul is a distant third with 19%, earning fewer sales than even GeekVape—an authorized Chinese import. The technology has also advanced, making the now-approved first-generation Juul outdated before it was authorized. The company’s next generation product, which features built-in age-verification technology, has been available in the U.K. since 2022. But at the FDA’s current glacial approval pace, it will take the agency until 2030 to authorize its sale in the U.S., if it ever does.

The rise of nicotine pouches, arguably accelerated by the FDA’s destruction of the e-cigarette market, is a positive development. Like e-cigarettes, they have no combustion and do not even involve inhalation. As such, nicotine pouches are considered among the least-harmful of the safer smoking alternatives. Speeding up access to these products will undoubtedly benefit public health by giving adult smokers more options to reduce smoking-related risks. But pouches will not work for every smoker, especially those accustomed to the hand-to-mouth ritual of smoking. And it remains unclear if pouches are as effective for smoking cessation as e-cigarettes have proven to be.

The new pilot program is a quiet admission that the PMTA process is broken. It is a small step in the right direction. But, to truly fulfill its public health mission, the FDA must expand this accelerated pathway to include e-cigarettes. Doing so would give adult smokers a full range of life-saving options and allow legal U.S. companies to outcompete the growing illicit market. Streamlining the PMTA process for e-cigarettes is not just sound policy, it is a long overdue correction to a harmful regulatory failure.

The post The FDA’s plan to fast-track nicotine pouches is long overdue. But why aren’t vapes included? appeared first on Reason Foundation.

The latest National Youth Tobacco Survey found that 5.9 percent of middle and high school students were using e-cigarettes in 2024, down from 7.7 percent in 2023 and the lowest level of youth use recorded in a decade, and nothing close to what could reasonably be described as an epidemic. Rather than using the notion of a “child vaping epidemic” to justify tighter restrictions, Makary should focus on the 28.8 million adult smokers who face the most significant health risks and expand the number of FDA-authorized alternatives that can help them transition from combustible cigarettes to far less harmful products. 

Why weren’t the needs of adult smokers mentioned in this interview? Makary’s one-sided treatment of the issue contrasts sharply with Health and Human Services Secretary Robert F. Kennedy Jr., who, speaking only days before Makary, made clear that while shrinking the illicit vape market and protecting youth is a top priority, nicotine itself is not a carcinogen and products like e-cigarettes and nicotine pouches are “infinitely preferable to smoking.” 

As Makary’s own agency acknowledges, nicotine products exist on a continuum of risk, and not all carry the same level of harm. Combustible cigarettes remain the most dangerous form of nicotine use, while other products present far fewer health risks and can play a valuable role in helping adults quit smoking. Alternatives such as e-cigarettes are not risk-free, but they are significantly less harmful than smoking and help those who are not able to quit with nicotine replacement therapies like gums, lozenges, or patches. Supporting these options is a step toward better health outcomes, especially when the alternative is continuing a behavior that causes severe and preventable disease.

Many adult smokers remain unaware that switching completely to e-cigarettes can substantially reduce their exposure to harmful chemicals. A recent survey found that only about one in five U.S. smokers believes e-cigarettes contain fewer toxic chemicals than cigarettes, and even fewer recognize them as less dangerous. This knowledge gap persists despite endorsements from respected medical journals and conclusive evidence that complete substitution lowers toxicant exposure. If Makary is serious about reducing smoking-related deaths, part of his focus should be on correcting these misperceptions through targeted, evidence-based public education for adult smokers. 

The National Institutes of Health and Cochrane Review have found ample evidence through systematic reviews of randomized controlled trials illustrating that those who use e-cigarettes are more likely to stop smoking for at least six months when compared to those who use traditional nicotine replacement therapies. Despite strong evidence and endorsements from some of the most respected medical journals, U.S. policy continues to heavily restrict e-cigarettes through product bans, flavor prohibitions, and limited market authorizations. This stubbornness on e-cigarettes often ends up causing an uptick in tobacco sales. 

On The Conversation, Makary focused particularly on the problem of illicit disposable products imported from China and framed the issue primarily around youth use, which, as noted, is at an all-time low. The problem with focusing on the illicit market is that this problem itself stems from federal policy choices that limit the legal market. When FDA authorizations exclude the products that adult users prefer, such as certain flavors, device types, and nicotine strengths, consumers are more likely to turn to the unregulated market.

Economic and policy research shows that restrictive measures often fail to reduce use as intended. A Yale School of Public Health study found that local flavor bans reduced e-cigarette sales but increased cigarette purchases, calculating that for each 0.7 ml of e-liquid sales suppressed, an additional 15 cigarettes were sold. In areas with flavor restrictions for more than a year, adult-preferred cigarette brand sales rose 10 percent, and brands popular with underage users rose 20 percent.

The policy takeaway is clear: To reduce the spread of illicit products and improve public health outcomes, the FDA should authorize a broader range of regulated, appealing alternatives. When adult smokers have access to legal options that match their preferences, the economic incentives for illicit trade diminish. 

Efforts that focus only on cracking down on illegal supply while limiting lawful access will continue to drive consumers toward unregulated products, undermining both safety and public health goals. Mackary’s call for collaboration and evidence-based regulation should fully extend to vaping policy, replacing fear-driven narratives with strategies grounded in public health evidence and economic insight.

The post Evidence, not fear, should guide the FDA’s vaping policies appeared first on Reason Foundation.

Until now, the tax system imposed on gambling mostly made sense: If you won money, you paid taxes on your net winnings—the money you made after subtracting the amount spent on losing bets. But, under the new rule, gamblers will no longer be able to deduct the full value of their losses, capping such deductions at 90% of reported winnings. This creates a tax on phantom income—forcing gamblers to pay federal income taxes on up to 10% of their winnings even if they end up losing all of it and more by year’s end.   

The change is projected to raise between $125 million and $165 million in additional tax revenue annually, or around $1.2 billion over the next decade, according to a report by the Joint Committee on Taxation. But this projection ignores gamblers’ long history of sidestepping punitive gambling laws on land, sea, and via the internet. If gamblers were to hide even just 10% more of their winnings—a likely outcome—it would completely negate the additional revenue generated by the new rule. Combined with the adverse effect the new tax would have on corporate and payroll taxes from industry contraction, the cap could result in a net tax revenue loss.  

Underreporting of gambling winnings is already a known and longstanding problem. From 2018 through 2020, just under 150,000 Americans failed to file tax returns on approximately $13.2 billion in gambling winnings, according to a report from the Inspector General for Tax Administration. The new rule will likely only make such underreporting more widespread. 

Some gamblers aware of the change might begin to avoid the types of large-prize games that trigger IRS paperwork, like winning $1,200 or more at a slot machine or $5,000 at a poker tournament. Vacation gamblers may similarly shift from Las Vegas to Macau, or to European and Caribbean casino destinations, where their winnings are not automatically reported to the U.S. government. Many gamblers will also likely turn to offshore gaming websites, which also do not report gambling winnings to the IRS, some of which now accept bets in even harder-to-track cryptocurrencies.   

But the damage extends far beyond an uptick in underreported gambling winnings. Mid- and high-stakes poker tournaments could face collapse as players weigh hefty buy-in fees and other costs against diminished returns. Fewer entrants mean smaller prize pools and likely fewer events for professionals. Poker coach Phil Galfond warned the rule would essentially end professional gambling in the U.S. Alex Cane, CEO of the betting exchange Sporttrade, echoed the sentiment, declaring that no gambler “serious about betting is going to bet anymore, or at least not going to report that they do.” Casino owner Derek Stevens similarly worried about the impact on Vegas casino-resorts, arguing that the new rule would force many bettors to move offshore.  

The stakes are also existential for states invested in the gaming industry, like Nevada, where gambling taxes fund around 35% of the state’s budget and where the industry supports around 27% of the state’s workforce. Nationwide, the $330 billion gaming industry directly employs around 700,000 people and supports a total of 1.8 million jobs, according to industry data. All of that could be threatened as gamblers inevitably seek out alternatives to avoid the new tax.  

These concerns prompted Nevada Rep. Dina Titus (D-Clark County) to introduce the Fair Accounting for Income Realized from Betting Earnings Taxation (FAIR BET) Act days after the passage of the new rule. Her bill would restore the 100% deduction for gambling losses, eliminating the phantom tax. The legislation represents more than fairness for gamblers—it is protection for the nearly 2 million American jobs and state budgets relying on a healthy U.S. gaming industry. 

The phantom tax provision in the new rule appears solely aimed at raising federal revenue from a politically vulnerable group. Though most Americans gamble occasionally, few will defend the activity against tax hikes. But this short-sighted policy risks repeating past mistakes.  

When taxes make legal gambling punitive, players simply move underground. Unregulated bookies thrived when sports betting was banned in the U.S. Offshore websites boomed after the crackdown on online poker. The new rule guarantees that history will repeat itself—shrinking the legal industry, fueling illicit activity, and ultimately costing jobs and revenue.  

The post How the One Big Beautiful Bill Act taxes gamblers on money they didn’t keep appeared first on Reason Foundation.

For three decades, laws that regulated online content, especially sexual content, were tested under the “strict scrutiny” standard. Strict scrutiny is the highest standard of judicial review, used by courts to evaluate whether laws or government actions infringe on fundamental rights. This standard requires the government to prove these laws serve a compelling interest and are narrowly tailored to achieve that interest.

In Free Speech Coalition v. Paxton, the Supreme Court’s majority concluded that intermediate scrutiny should be the standard here, not strict scrutiny. Under intermediate scrutiny, the government only needs to prove it has a substantial interest to address a harm and the law is reasonably tailored to that aim. Writing for the majority, Justice Clarence Thomas analogized the requirement to show ID for alcohol or tobacco purchases, which are longstanding and widely accepted practices. He recasts Texas’s law as regulating “unprotected conduct” (letting minors access material deemed obscene for minors) and said the new identification (ID) requirement only incidentally burdens adults.

This decision marks a significant departure from the strong First Amendment protections for online speech established in two major cases: Reno v. ACLU (1997) and Ashcroft v. Free Speech Coalition (2004).

In Reno, the Supreme Court struck down the Communications Decency Act of 1996’s anti-indecency provisions as unconstitutionally vague and overbroad, holding that online speech is entitled to the same strict scrutiny as print, and that blanket bans on “indecent” or “patently offensive” content to protect minors could not justify sweeping limits on lawful adult speech.

Similarly, in Ashcroft, the Supreme Court repeatedly invalidated the Child Online Protection Act of 1998, emphasizing that even regulations aimed at restricting “harmful to minors” material could not limit adults’ access to legal speech if less restrictive alternatives, such as user controls or filtering, were available.

Under this new precedent, states now have more leeway to regulate online content under the guise of child safety, signaling that well-crafted age verification mandates for obscene or explicit material need not meet the previously rigorous First Amendment bar set by Reno and Ashcroft, and potentially paving the way for further state-level digital content regulation.

The complications of NetChoice v. Carr (2025)

Just one day before the Supreme Court issued its decision, the U.S. District Court for the Northern District of Georgia blocked enforcement of a much broader law: Georgia Senate Bill 351, also known as the “Protecting Georgia’s Children on Social Media Act of 2024.” The law would have required social media platforms to verify the age of all account holders, obtain parental consent for minors, and ban targeted advertising to minors based on personal data. In her ruling in NetChoice v. Carr, Judge Amy Totenberg found that the law would restrict teens’ access to online forums, infringe on anonymous speech, and interfere with platforms’ rights to communicate.

“The Court does not doubt the dangers posed by young people’s overwhelming exposure to social media,” Judge Totenberg wrote. “But, in its effort to aid parents, the Act’s solution creates serious obstacles for all Georgians, including teenagers, to engage in protected speech activities and would highly likely be unconstitutional.”

Following the release of the Supreme Court ruling, Georgia state Sen. Jason Anavitarte (R-Dallas), the author of Senate BIll 351, stated that “Based on Friday’s ruling at The Supreme Court, Judge Totenberg should be left with no choice but to allow SB 351 to go into effect … in its entirety.”

Georgia’s law, however, is much broader than Texas’ law and regulates all speech on social media platforms, not just obscene content, so the Supreme Court’s Texas decision does not automatically validate Georgia’s approach. This ruling is likely to be appealed, thus requiring a higher court to eventually clarify under what exact circumstances a state can require age verification from websites. 

The District Court applied the strict scrutiny standard in this case, which was the precedent prior to the Supreme Court ruling. However, the Supreme Court’s decision the very next day established that age verification laws targeting access to obscene or sexually explicit material can be upheld under intermediate scrutiny, as long as they are narrowly focused and only incidentally burden adult speech. This means that if a law is specifically designed to prevent minors from accessing pornography and does not substantially restrict adults’ access to protected speech, it is more likely to be considered constitutional. 

However, it is also possible that states will attempt to word every proposed age verification bill with broad definitions of what is “obscene,” “sexually explicit,” or “harmful to minors.” In doing so, states will try to force large social media sites that are not hosting pornography to nevertheless verify the ages of all its users. This may chill adults’ ability to access websites of their choosing while remaining anonymous, a feature that is still protected by the First Amendment so long as the platform allows anonymous participation.

Privacy concerns persist

Justice Clarence Thomas’ comparison between checking an ID at a liquor store and digital age verification obscures a profound difference between offline and online age verification. Buying alcohol at a liquor store does not create a permanent record of your interests and habits. Online verification, however, may involve uploading a government ID, submitting biometric data, or verifying identity through third-party platforms.

As Reason Foundation explained in its amicus brief opposing the law, this sensitive information—detailing exactly who visits which sites, and when—can be stored indefinitely, commercially exploited, or exposed in data breaches. Without robust federal safeguards regulating the collection, storage, and use of this data, mandatory age verification not only compromises user anonymity but threatens to chill free expression online.

Furthermore, it is also questionable whether Texas’ age verification law will shield kids from harmful content. Similar age verification efforts have proven ineffective, as tech-savvy minors are able to circumvent restrictions using Virtual Private Networks (VPNs), borrowed credentials, or mirror websites, meaning the laws introduce serious privacy and speech burdens for adults without effectively achieving their stated goal of shielding minors from harmful content.

As states now have the authority to require age verification to block sexually explicit content to minors, it will be important to note if/when states try to encapsulate broad age verification requirements on any website they deem to have content harmful to minors.

It is highly likely in the coming years that the Supreme Court will have to clarify the exact line of what age verification requirements do not violate the First Amendment. It will be important to note if any of these age verification requirements actually keep children safe online or if they merely satisfy a political urge to appear protective while exposing millions of users to new privacy and data-security risks.

The post Supreme Court erodes online privacy and free speech in age verification ruling appeared first on Reason Foundation.

In the shadowy world of illegal gambling, where there is no legal oversight, corruption is harder to detect and easier to profit from. Offshore bookies have no obligation to report suspicious activity and may even benefit from match-fixing if it helps balance their books. By contrast, legal markets create transparency. It was, in fact, regulated sportsbooks that first flagged unusual betting activity around Porter’s games and alerted authorities, triggering investigations by the NBA, the Colorado Division of Gaming, and federal law enforcement.

In an illegal betting market, Porter’s misbehavior might never have been uncovered. This is not an anomaly. From the infamous “Black Sox” scandal—in which several members of Chicago White Sox were allegedly paid by a gambling syndicate to lose the 1919 World Series—to the present day, it is almost always the bookies who catch on to match-fixing earliest. In regulated markets, those bookies have not only the tools to spot corruption, but also the financial and legal impetus to do something about it.

Butler’s nostalgia for a pre-2018 era—when federal law prevented most states from regulating sports betting—is misguided. By 2015 Americans were placing an estimated $150 billion in illegal sports wagers annually—primarily through offshore sportsbooks and with no consumer protections or oversight. Prohibition didn’t stop sports betting, but it did preserve the illusion that it wasn’t happening and that sports were “clean.”

Butler’s essay does raise valid concerns surrounding the implementation of sports betting laws, including potentially predatory behavior by gambling companies, inadequate support for problem gamblers, and lax consumer protections. But, these are arguments for better regulation, not recriminalization. States are refining their rules around betting behavior, advertising, and consumer protections as regulators gain expertise and learn from other state’s experiences. This iterative process is how federalism is supposed to work.

Butler’s discomfort with the “normalization” of sports betting in American culture echoes a broader paternalism that conflates visibility with harm. Legalization didn’t create the demand—Americans have bet on sports for decades—but it did provide safe and regulated environments for that demand to be satisfied legally. He may lament the loss of its “dodgy stigma…suspect bookies” and “dilapidated parlors.” Yet, that stigma and potential danger didn’t deter bettors—it only forced them into unnecessarily risky environments, leaving especially vulnerable gamblers, like women, without the protections offered by legal sportsbooks.

Legalization has increased the visibility of sports betting, including in-game odds analysis and marketing for betting opportunities that clearly rub some sports fans the wrong way. But this criticism confuses cultural discomfort with genuine harm. Analysis of betting odds has been integrated into sports coverage for decades, with a majority of newspapers publishing betting lines since the 1980s. Ad saturation, while perhaps annoying, is neither new nor uniquely dangerous—it’s the inevitable byproduct of moving a once-clandestine activity into the regulated marketplace.

His most alarming criticisms of sports gambling legalization center on the assertion that legal sports betting increases domestic violence and brings financial ruin to families. But these claims immediately collapse under scrutiny. The studies he implicitly relies on, like those critiqued by my colleague Jacob James Rich, suffer from such glaring methodological flaws that their conclusions are unreliable. One frequently cited paper by Kyutaro Matsuzawa and Emily Arnesen tied intimate partner violence in states with legal sports betting to home-team losses but ignored the effect of away games and whether those committing violence actually bet on games, skewing results.

Another study by  Brett Hollenbeck, Poet Larsen, and David Proserpio attributes a trivial 0.3% dip in credit scores post-gambling legalization, then stretches this to blame legalization for bankruptcies. Not only do such studies conflate correlation with causation—a recurring issue in gambling research—they also distract from the real issue of abusive behavior, which studies link to sports losses even in the absence of gambling. Should we ban football games to curb violence? Of course not. The solution is to hold abusers accountable and investigate the actual root causes of violence and financial instability; not to scapegoat a legal industry and responsible gamers for societal ills.

None of this is to say that sports betting is free of risk. There will continue to be bad actors in the worlds of sports and gambling and some portion of the population will likely always struggle with disordered gambling whether the activity is legal or not. But these realities demand clear-eyed policy—not prohibition.

Butler begrudgingly acknowledges a “reversal of legalization does not seem to be in the cards, for now.” Instead, he urges states to regulate the activity “carefully” and learn from the experience of their neighbors. On that, at least, we agree. For more than a quarter century, Congress ignored the growing problem of illicit sports betting, despite its own experts declaring it “the most widespread form of gambling in America” as early as 1999. Yet, in the mere seven years since the Supreme Court overturned the federal ban, 38 states have legalized and regulated the activity, with many repeatedly revisiting those rules and refining them in response to consumer demand, evolving industry practices, and learning lessons.

While not all states got it right from the jump, they have demonstrated a willingness and ability respond, revise, and improve. That is what a healthy regulatory process looks like and supposedly what our federalist system is meant to do: empower states to act as laboratories of democracy, learning from each other and adjusting policies as needed.

That is the path forward—not prohibition, not moral panic, not virtue-policing adults, and certainly not a return to the days when illicit gambling and corruption flourished in the shadows. 

The post Legal gambling enhances sports integrity—despite what critics claim appeared first on Reason Foundation.

Earlier this year, the Food and Drug Administration (FDA) authorized the sale of Zyn nicotine pouches as “appropriate for the protection of public health.” This landmark decision wasn’t made lightly—it represents the culmination of an extensive scientific review demonstrating that these products can play a valuable role in reducing tobacco-related harm. 

The FDA’s authorization specifically recognizes that nicotine pouches can help adult smokers transition away from cigarettes. In Rhode Island, for example, smoking remains one of the leading causes of preventable death, with 1,800 deaths each year attributable to this habit. Making a can of nicotine pouches almost as expensive as a packet of cigarettes removes a crucial financial incentive for smokers trying to switch to a safer product.

Almost doubling the cost of nicotine pouches represents more than a misguided revenue grab projected to raise less than 0.1% of the budget; it’s also a policy decision with economic consequences. Such extreme taxation often leads to unintended market distortions, including increased cross-border shopping as Rhode Islanders seek more affordable options in neighboring states. This phenomenon reduces the anticipated tax revenue and harms local retailers.

Moreover, regressive taxation policies like this one disproportionately impact lower-income individuals, who are more likely to be current smokers seeking safer alternatives.

Perhaps most troubling is how this tax increase directly contradicts established public health objectives. Decades of research have consistently shown that harm reduction strategies—providing safer alternatives to high-risk behaviors—are more effective than prohibition-style approaches. The success of needle exchange programs, methadone treatment, and other harm reduction initiatives demonstrates that meeting people where they are, rather than where we wish they were, yields better health outcomes. 

Nicotine pouches represent a significant opportunity for tobacco harm reduction. Unlike combustible tobacco products, they don’t involve burning organic matter and the associated carcinogenic tar and smoke. Unlike traditional smokeless tobacco, they don’t require spitting and contain no tobacco leaf. While these pouches contain nicotine, which is highly addictive, it’s not the nicotine that kills smokers but the smoke itself, which is why pouches are a potentially game-changing tool for smokers who haven’t succeeded with traditional cessation methods like patches or gum. 

As with any nicotine product, there are understandable concerns about how nicotine pouches can be kept out of the hands of children. The FDA determined that Zyn, for example, did not present enough appeal to youth to outweigh the gains from saving smokers’ lives. The data bears this out: Less than two percent of middle and high-school students used a nicotine pouch in the last month, and overall youth tobacco use is at a 25-year low. The rapid declines in youth tobacco use show the success of both educational programs and the increase in the tobacco age to 21.

Instead of following the outdated playbook of punitive taxation pursued in Rhode Island, other states should align their policies with the FDA’s scientific determination that nicotine pouches can be a protective measure for public health. Lawmakers should avoid Rhode Island’s mistake and instead craft policies that support smokers in their journey toward better health outcomes.

The post Nicotine pouch taxes undermine efforts to help smokers quit appeared first on Reason Foundation.

It’s an idea that, if implemented carefully, could improve inmate health, reduce contraband tobacco markets in prisons, and lower prisons’ healthcare expenses without increasing risk to the public. For those of us who have spent years advocating for pragmatic, science-based policies to reduce the harms associated with tobacco use, this proposal checks nearly every box. Importantly, it also centers discussion on a population too often ignored by both the tobacco harm reduction and tobacco control movements. For that reason alone, it deserves careful consideration by all experts in the field, regardless of their ideological camp.  

Smoking among incarcerated people is staggeringly high, with estimates ranging from 70 to 80 percent. That’s roughly seven times the national average, even though tobacco has been banned in federal prisons since 2014 and removed from commissaries since 2006. Most state-run prisons prohibit smoking inside prison facilities, many extending that ban to include possession or use of any tobacco product anywhere on prison grounds.  

But like every form of prohibition, these prison tobacco bans haven’t eliminated tobacco use. Instead, illicit tobacco markets thrive in prisons, with inmates obtaining contraband cigarettes through smuggling or bribery. Some turn to improvised tobacco products—made by inmates who collect used tobacco chew spit out by guards—with some reportedly turning to more hazardous alternatives, like “spice” (synthetic cannabinoids), to mimic the experience of smoking.  

The public health rationale underlying “smoke-free prison” policies is the idea that non-smoking prisoners and guards should be protected from second-hand smoke, as well as a belief that forcing smoking inmates to break their nicotine dependence while in prison will improve their health and lead to long-term smoking cessation after release. Even if those goals justified such coercive and cruel tactics—like using solitary confinement to punish inmates caught with contraband cigarettes—the fact is that prison tobacco bans do not work. The vast majority of inmates who quit smoking while incarcerated typically relapse upon release—around 98% by some estimates. Many incarcerated people, in fact, only begin smoking while they are incarcerated.  

In his Filter article, Kirkpatrick—who is currently incarcerated in Washington Corrections Center in Shelton, Washington—argues that allowing the sale of nicotine vapes in prison commissaries could accomplish what tobacco bans have not: reduce smoking among inmates and keep them smoke-free after release. A significant amount of evidence suggests he is right.  

Numerous studies indicate that smokers who switch from cigarettes to vapes see rapid health improvements. For prisoners, that could translate into fewer smoking-related illnesses, doctors’ visits, and health emergencies. Smokers who switch to harm reduction products are also less likely to relapse—with high-quality evidence for e-cigarettes, in particular—indicating that they are even more effective for smoking cessation than traditional nicotine replacement therapies, such as the nicotine patch or gum. This could lower the rate of smoking among inmates after release, reducing healthcare costs both during and after incarceration.  

E-cigarettes, unlike other tobacco harm reduction products, might raise concerns within the context of prisons as they can pose a fire hazard or potentially be used in improvised weapons. However, prisons can opt to purchase specially designed vapes, with soft plastic casings and low-voltage, non-rechargeable batteries—like those already offered in Kentucky and Pennsylvania prison commissaries.   

And, unlike most policy proposals involving e-cigarettes, this one sidesteps the two biggest political landmines: youth use and taxpayer cost. Youth access to e-cigarettes or other tobacco harm reduction products is a non-issue in adult prisons. And there’d be no cost to taxpayers so long as prisons marked up commissary prices just enough to cover costs. But to truly succeed, this policy proposal requires careful implementation.  

Prices that commissaries charge for tobacco harm reduction products are a pivotal factor in whether this policy would succeed or fail. Kirkpatrick, in presenting his idea, reasonably points out that commissary sales of tobacco harm reduction products might generate modest revenue for prisons, which he suggests they direct toward prison maintenance and programming. However, while this potential for cost-offsetting might enhance the policy’s political appeal, any discussion about “revenue generation” from imprisoned people should justifiably raise alarm bells.  

Too many prison systems already engage in financial exploitation of inmates—charging exorbitant fees to make phone calls and send emails, inflating commissary prices, and taking hefty cuts out of low- or non-existent prison wages. Reports suggest that prisons that already sell vapes in commissaries impose markups exceeding 700% over cost. In addition to being exploitative, these sky-high prices undermine the goal of giving inmates safer alternatives to smoking.  If smoking inmates cannot afford commissary prices for tobacco harm reduction products, they will continue to smoke or turn to the contraband market, reinforcing harmful behaviors rather than replacing them. Worse, the policy could become just another revenue stream wrung out of a captive population.  

To work as intended, the safer products at prison commissaries must be attractive, affordable, and accessible, and they must be competitive with combustible cigarettes in both cost and appeal. That means avoiding price gouging, ensuring product quality, and offering inmates real choices. Offering choices to inmates might be among the harder parts of implementing this policy, particularly if prisons are limited to purchasing only those products that have received authorization by the U.S. Food and Drug Administration. Thus far, the FDA has approved only a handful of e-cigarettes, heated tobacco products, nicotine pouches, and smokeless tobacco products. Yet, affordable access to even some of these products would give inmates a chance to switch from smoking to safer alternatives and represent an improvement on the status quo.   

At its core, allowing prison commissaries to sell safer alternatives to smoking isn’t just about reducing tobacco-related disease or helping prisons save money on healthcare. It is about giving incarcerated adults some sliver of control over their own lives and health—it acknowledges their agency in a system built to deny it. That alone is reason to take the proposal seriously.  

For those working in tobacco policy, it is also a chance to put marginalized nicotine users at the center of our advocacy—an imperative too often neglected. Putting safer alternatives to smoking in prison commissaries won’t fix everything, but it is a humane place to begin that might move our criminal justice system ever-so-slightly toward human dignity.  

The post Prisons selling vapes? Smart public health policy and a step toward autonomy behind bars appeared first on Reason Foundation.

The World Health Organization’s (WHO’s) performance during the COVID-19 pandemic was poor, with questionable public health guidance and a reluctance to hold the Chinese Communist Party to account for its role in the virus’s spread. As Zach Weissmuller reported at Reason.com:

The WHO also praised China for releasing the virus’s genome while neglecting to mention that it took them at least 17 days to do so. It didn’t report human-to-human transmission until late January—even though Chinese doctors suspected it at least a month earlier. Although the extreme lockdown of Wuhan likely saved thousands of lives, WHO scientists weren’t allowed into Wuhan until 3 weeks after the outbreak first came to light, leaving open many questions about measures the government took in the interim. Meanwhile, the WHO praised the country for its supposed openness.

Despite these failures, the WHO is encouraging members to sign a pandemic treaty that would threaten free speech and intellectual property if the U.S. were to remain a member.

While the WHO’s potential interference has diminished, remnants of its influence over American health policy remain. In the final days of the Biden administration, the Food and Drug Administration (FDA) resurrected a proposal to mandate the removal of almost all nicotine from cigarettes, a de facto cigarette ban. The FDA justifies its action based on modeling informed by the guesstimates of a handful of public health academics, claiming a vast number of smokers will quit and subsequently live longer.

The rule was initially pushed by former FDA Commissioner Scott Gottlieb in 2017. However, after Gottlieb left the first Trump administration to take on other projects, the ban was wisely cast aside. While Gottlieb was the first to advance the rule and Biden the one to try and push it over the line, the ban’s origins lie just as much with the WHO and its advisory note, titled “Global Nicotine Reduction Strategy,” published in 2015.

The FDA’s proposed rule follows the WHO’s playbook. “In alignment with this recommendation from the World Health Organization, this proposed rule would cover combusted cigarettes and certain other combusted tobacco products (i.e., cigarette tobacco, RYO tobacco, cigars other than premium cigars, and pipe tobacco),” said the FDA at the time.

Following the World Health Organization’s guidance, the FDA’s plan would ban more than 99% of cigarettes, small cigars, and pipe tobacco.

The FDA also points to the WHO’s guidance that the ban be combined with providing behavioral support, nicotine replacement therapies (NRT), and other medications for smokers denied legal access to cigarettes. The pharmaceutical industry’s smoking cessation products are unpopular and less effective compared to offerings consumers prefer, such as vapes and nicotine pouches, which the industry has lobbied to place under stricter regulations. Indeed, Pfizer has funded research claiming that denicotinized cigarettes used in combination with pharmacotherapies increase smoking cessation rates, research that has been cited by the only company making products that would comply with the FDA’s rule. 

No country has implemented such a radical policy, so no real-world evidence suggests it will work out as the FDA says it will. When a similar policy was advanced in New Zealand in 2022, it was abandoned after the election of a conservative government. Left unchecked, the FDA would have America serve as a guinea pig for a dangerous policy experiment.

The risks of the policy are clear, with law enforcement already warning it could mean disaster and “a gift with a bow and balloons to organized crime cartels with it, whether it’s cartels, Chinese organized crime, or Russian mafia. It’s going to keep America smoking, and it’s going to make the streets more violent,” Rich Marianos, former assistant director of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives and the current chair of the Tobacco Law Enforcement Network, told Fox News. 

The WHO itself recognized these concerns in a 2018 report, highlighting fears over increased illicit trade, relapses by ex-smokers thanks to low-priced black market cigarettes, and declining tax revenue, but continues to believe these risks will be worth the benefit.

On April 2, 2025, FDA Commissioner Martin McKary told staff in an all-hands meeting that the agency needed a new approach: “Challenging what we believe to be true, challenging deeply held assumptions that lack evidence, and allowing experts to debate new approaches to old problems is exactly what we need right now.” 

The Trump administration is swiftly junking some costly and unnecessary regulations advanced by the Biden administration. Trump was right the first time to ditch an untested, potentially dangerous policy, and it is in keeping with McKary’s mission to base policy on sound evidence, not intuitions, hopes, and optimistic models, to do so again. 

The post Trump should end WHO’s sway over the FDA appeared first on Reason Foundation.

Berg’s piece cleverly presents technically true claims that lack critical context, creating a distorted picture of e-cigarettes’ role in public health. This obscuration ignores the reality that e-cigarettes are a vital tool for adult smokers seeking to quit traditional combustible cigarettes. Consider some specific claims from the AMA’s interview to highlight the gaps between their narrative and the evidence:

Claim 1: “E-cigarettes, once marketed as a safer alternative to smoking, have found a stronghold among teens and adults alike.”

This opening statement implies that e-cigarettes are no longer considered a safer alternative to smoking, but it stops short of making that claim explicitly—it’s a subtle inference designed to mislead. The truth is, e-cigarettes are still widely recognized as safer than smoking. Back in 2015, Public Health England published a landmark review that concluded e-cigarettes are approximately 95% less harmful than combustible cigarettes. Recently, King’s College London reaffirmed this observation, arguing that “vaping products rather than smoking leads to a substantial reduction in exposure to toxicants that promote cancer, lung disease and cardiovascular disease.” By omitting this context, the AMA avoids an outright lie while ignoring inconvenient facts.

The claim of a “stronghold among teens and adults alike” is equally misleading. First, youth nicotine use is at an all-time low, as evidenced by the 2024 National Youth Tobacco Survey (NYTS), which reported a decline in e-cigarette use among high school students from 10% in 2023 to 7.8% in 2024. Second, while e-cigarette use among adults has risen, overall adult nicotine use has remained stable since 2017, according to a CDC review of the National Health Interview Survey (NHIS). Meanwhile, cigarette smoking among adults fell to a record low of 11% in 2024, which suggests that adult smokers are switching to e-cigarettes without a significant increase in new nicotine users—a public health victory the AMA fails to acknowledge.

Claim 2: “While vape use went down between 2023 and 2024, for the 11th year in a row, e-cigarettes have been the most commonly used tobacco product among middle- and high-school students…”

The AMA highlights the decline in youth vaping between 2023 and 2024 but omits the broader trend: youth e-cigarette use has dropped nearly every year since 2019. By focusing on e-cigarettes as the “most commonly used tobacco product” among youth, the AMA distracts from the fact that overall youth nicotine use is at a historic low. The 2024 NYTS reported that only 10.1% of high school and 5.9% of middle school students currently used any tobacco products in 2024, a significant decline from previous years that should be celebrated. Indeed, current cigarette smoking among many youth demographics, such as black high school students, is now so low that it’s statistically indistinguishable from zero.

Claim 3: “Vaping not shown to help you quit… No e-cigarettes or vapes have been found to be safe and effective by the Food and Drug Administration (FDA) in helping smokers quit…”

It’s true that the FDA has not approved any e-cigarette as a safe and effective smoking cessation tool—but this is a regulatory failure, not a reflection of the science. The science is clear: E-cigarettes do help smokers quit. An ongoing review by Cochrane Library that was updated this year found that nicotine e-cigarettes are much more effective than all of the traditional nicotine replacement therapies that are FDA-approved, like patches or gums. Such observations motivated a 2024 editorial in The New England Journal of Medicine, which urged the medical community to “add e-cigarettes to the smoking-cessation toolkit,” highlighting the overwhelming scientific evidence that they can save lives.

The burdensome regulations that the FDA has arbitrarily produced have made it nearly impossible for e-cigarette manufacturers to make cessation claims, as none have yet to successfully navigate the process. The FDA has barely approved any e-cigarettes to be legally sold (PMTA), and none to be advertised as modified risk products (MRTP). This regulatory framework prevents e-cigarette manufacturers from disclosing truthful information about their products, which prevents smokers from knowing that they can switch to a less harmful alternative—a consequence the AMA fails to address. Some legal scholars and I argue that these laws violate free speech protections under the First Amendment.

Claim 4: “Using any other tobacco product or any other product that contains nicotine is not actually quitting.”

Dr. Bangash’s assertion that vaping isn’t “quitting” because it involves nicotine misses the point of harm reduction. The goal of switching to e-cigarettes isn’t necessarily to end nicotine use but to reduce health risks. While long-term data on e-cigarette use is still emerging, early studies are promising. A 2017 study in the Annals of Internal Medicine found that former smokers who switched to e-cigarettes had significantly lower levels of carcinogens in their saliva and urine compared to current smokers. And a 2018 study published by the AMA itself noted that within a year of switching to e-cigarettes, former smokers’ blood carcinogen levels were nearly indistinguishable from those of never-smokers.

The benefits are particularly striking for vulnerable populations, such as pregnant women. Smoking during pregnancy is well-known to cause adverse outcomes like low birth weight and miscarriage. However, a 2019 presentation published by the American Journal of Obstetrics & Gynecology found that babies born to mothers who exclusively used e-cigarettes during pregnancy were nearly indistinguishable in health outcomes from those born to nonsmokers. Leading publications, including The Lancet’s EClinicalMedicine, have replicated these results multiple times. By dismissing vaping as “not quitting,” the AMA overlooks significant harm-reduction benefits for both adults and children.

A call for nuance and honesty

Perhaps most troubling is the AMA’s failure to encourage adult smokers to switch to vaping. In 2023, the CDC reported that 24.3 million U.S. adults still smoked combustible cigarettes, contributing to approximately 447,000 smoking-related deaths that year. Such circumstances have motivated The New England Journal of Medicine to issue an editorial calling on clinicians to recommend e-cigarettes to smokers in appropriate situations, emphasizing the potential to save lives through harm reduction. Yet the AMA’s focus on youth vaping—despite declining rates—overshadows this urgent need, perpetuating a narrative of fear rather than opportunity.

The AMA should be a beacon of scientific integrity, not a purveyor of misleading narratives. Instead of obscuring reality, the AMA should foster a nuanced discussion about the competing interests of promoting e-cigarette use among adult smokers while minimizing youth exposure to nicotine. E-cigarettes are not risk-free, but they are a proven tool for reducing the harm caused by smoking—a fact supported by decades of research. By ignoring this reality, the AMA undermines public health and misses a critical opportunity to save lives.

The post The AMA’s misleading narrative on vaping harms public health appeared first on Reason Foundation.

A new report published in April by the American Consumer Institute (ACI), “Betting on the Future: Crafting Smart Policies for a Thriving Online Sports Betting Market,” finds that widespread legalization did not lead to significantly more spending on gambling in states where sports betting was legalized compared to states that maintained a prohibition. Using 2015 and 2023 data from the Bureau of Labor Statistics’ Consumer Expenditure Survey, the study compared per capita gambling spending in states before and after those states legalized sports betting, as well as those that did not. The results were striking:

• $60: Average annual gambling spending in states with no legal sports betting.
• $65: Average in states with only in-person sports betting.
• $28.50: Average in states with both online and retail sports betting.

Contrary to popular belief and media portrayals, easier access to legal sports betting has not fueled reckless spending. In fact, states with the most accessible markets, including online betting, saw the lowest per capita expenditures. 

This snapshot of overall household expenditures on gambling pre- and post-legalization does not offer a complete picture of how sports betting legalization might affect problem gambling rates. However, it does indicate that broad legalization has not driven significant increases in spending on the activity compared to states that did not legalize. This aligns with decades of research on gambling disorders, which have remained remarkably steady around the world over the decades. 

Globally, around one percent of world’s adult population meets the clinical definition of disordered gambling—also known as pathological gambling or gambling addiction, which is defined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition as persistent and harmful gambling patterns, including increased spending of time or money on the activity, an inability to control spending, harm to one’s professional or personal life due to gambling, and concealment of gambling activities. Another 2-3% of adults are considered at risk for disordered gambling. These rates have remained remarkably consistent for decades, even as legal gambling opportunities have expanded dramatically since researchers began tracking the behavior in the 1970s. 

The United States is no exception despite its massive shift toward legalized gambling in recent decades. States that legalize gambling activities may see short-term spikes in spending (driven primarily by novelty and tourism), but problem gambling rates, if they rise, typically stabilize within a few years, aligning with global averages. 

Maryland’s experience with legalized casino gambling is one telling example. In 2010, when the state had no legal casinos, surveys estimated that 3.4% of adults met the criteria for disordered gambling. Yet, by 2017—after the introduction of six casinos—the problem gambling rate had fallen to 1.9% according to a Maryland Department of Health study. That report concluded that Marylanders’ gambling habits had not significantly changed; they were spending roughly the same amount of time and money on the same types of games, but they were now doing it at legal Maryland venues. 

The evidence that gambling legalization has little effect on pathological gambling has not quelled calls for more restrictive regulations or outright bans on certain types of gambling, particularly online betting. For example, both state and federal lawmakers have introduced bills seeking to impose new and often intrusive rules aimed at controlling how Americans gamble with their money, including mandatory spending limits, invasive financial disclosures, or “affordability checks” (limiting bets based on player income or finances), and bans on advertising. But, as ACI’s study contends, greater restrictions on legal gambling opportunities would not only fail to reduce gambling harm, but likely push consumers toward more convenient illicit gambling platforms where fraud can thrive and problem gambling tools don’t exist.

If lawmakers wish to address problem gambling without pushing players toward illicit markets or losing out on potential tax revenue, a smarter approach would be to focus on sensible rules that keep gambling safe, legal, and competitive, encouraging compliance from operators and incentivizing players to migrate from the illicit to the regulated market:

• Keep taxes low: High tax rates make legal operators uncompetitive. Rates under 15% discourage black-market activity.
• Encourage competition: States with many operators, both in the online and retail space, see faster player migration from the illegal to the legal market. Monopolies and state-run operations do the opposite. 
• Fund voluntary safeguards: Redirecting a small portion of tax revenue to problem gambling treatment, education, and self-exclusion programs—which allow players to voluntarily ban themselves from gambling venues—is more effective than blanket restrictions. 

The ACI report’s findings should reassure policymakers that legalized sports betting has not significantly increased problem gambling. Rather than resorting to heavy-handed rules, states should embrace light-touch regulation that ensures legal markets are so convenient and secure that illicit markets can’t compete. 

The data is clear. Overregulation helps no one except criminals. A free, competitive, and well-monitored market is the best way to keep betting fair, safe, and aboveboard.

The post New data shows no surge in problem gambling following sports betting expansion appeared first on Reason Foundation.

Data from Massachusetts’ Multi-Agency Illegal Tobacco Task Force shows a surge in illegal vape seizures from 71,746 in 2022 to 308,100 in 2024. The number of cigarette packs seized during that time declined significantly from 18,483 to 5,029, and cigar seizures stood at 152,075, more than in 2023 but less than in 2022. The task force says it is seizing so many illegal products that it’s having difficulty storing and destroying them, with smugglers becoming ever more sophisticated in avoiding their investigations.

When Massachusetts banned flavored tobacco in June 2020, the move was paired with a 75 percent wholesale tax on e-cigarettes and hailed as a triumph for public health. 

“The Massachusetts law sets a tremendous example that other states and the entire nation should follow in order to stop the tobacco industry’s predatory targeting of kids and communities of color once and for all,” said the then-head of the Campaign for Tobacco-Free Kids, Matthew Myers, in a press release. 

Following the latest task force report, some of the ban’s most vigorous opponents highlighted that the predictions they made when the ban passed are coming to fruition. 

“These numbers are absolutely staggering and prove what NECSEMA [the New England Convenience Store & Energy Marketers Association] has warned from the start—Massachusetts has created the perfect environment for illegal smuggling,” said Peter Brennan, executive director of NECSEMA. 

So far, only California has followed Massachusetts’s example, and it’s easy to see why.

Compare tobacco use in Massachusetts to a state without a flavor ban like Michigan. Since 2020, smoking in Massachusetts has fallen by just 1.3 percentage points, whereas in Michigan, it fell by 4.8 percentage points. Youth vaping,  a significant motivation for the Massachusetts ban, has fallen substantially. However, the decline of youth vaping since 2019 was a nationwide trend not unique to Massachusetts, with some non-flavor ban states like neighboring New Hampshire experiencing equally impressive declines.

Whatever the intentions of the flavor ban, it’s clear that the alleged benefits were overstated, and Massachusetts is bearing a significant cost in lost revenue and increased criminality. Tobacco excise taxes in the Bay State fell from $526.6 million in 2020 to $354.3 million in 2024.

The report catalogs a series of investigations, searches, and prosecutions to clamp down on the illicit market but points out that the Commonwealth’s high tax rates on tobacco products remain a strong incentive for smugglers to import products from low-tax states. In 2019, Massachusetts was ranked 12th in the nation for inbound cigarette smuggling, but by 2022, it jumped to fourth. According to the Tax Foundation, around 40 percent of cigarettes sold in Massachusetts are smuggled in from out of state.

To help crack down on the illicit trade, the task force recommends, among other changes, the creation of new criminal provisions to punish people who sell tobacco products without a license. Because enforcement funding is unlikely to be increased significantly, and Massachusetts borders states with lower tobacco taxes or no flavor bans, it’s doubtful these new measures would significantly impact the illicit market.

Though legislators have little appetite to repeal the flavor ban, some of its worst effects could be ameliorated by exempting safer alternatives to cigarettes that have received authorization for sale from the Food and Drug Administration. These products include e-cigarettes, nicotine pouches, and heated tobacco in flavors other than tobacco that the agency has deemed to be “appropriate for the protection of public health,” meaning the benefits they present to adult smokers trying to switch to a safer product outweigh the risks of youth using them. 

Giving smokers legal options for safer nicotine alternatives could make some dent in the illicit market and would be a win for health. Other states considering flavored tobacco prohibitions should closely examine Massachusetts and see if it’s a situation they’re sure they want to replicate.

The post The failure of Massachusetts’ tobacco flavor ban appeared first on Reason Foundation.

The latest findings of the Cochrane Review—a gold-standard library of evidence to inform healthcare decision-making—could help steer the agency toward a smoking cessation approach that prioritizes equipping individuals with evidence-based solutions. Measures like capping nicotine in cigarettes, proposed by the Biden administration, create more problems than they solve, while harm-reduction tools like vaping are already proving effective in helping people quit smoking at higher rates.

For millions of Americans, vaping has succeeded where traditional smoking cessation methods have failed—offering an accessible, satisfying alternative that works. The Cochrane Review finds that nicotine e-cigarettes increase quit rates by 59% compared to nicotine replacement therapy (NRT) and 96% compared to behavioral support alone. Yet, instead of embracing this public health victory, e-cigarettes have been vilified, overtaxed, and regulated. By prioritizing abstinence-only messaging and waging war on vaping, we ignore real-world benefits and push people toward a far worse alternative—cigarettes.

Analysis from the National Health Interview Survey (NIHS), including data from 1990 to 2022, reveals that as e-cigarette use increased, smoking rates declined faster than expected—especially among younger adults. The groups most likely to vape—ages 18 to 34—saw the steepest drops in cigarette smoking, while those who didn’t take up vaping saw no significant acceleration towards quitting. This means that e-cigarettes are not keeping people hooked on smoking; they’re replacing it. 

Other countries are leveraging vaping and seeing its positive effects firsthand. The U.K.’s National Health Service (NHS) Better Health Report acknowledges vaping as “one of the most effective tools for quitting smoking.” They have the numbers to support their claims—with nearly three million people having quit smoking with a vape in the last five years. 

Why does vaping work so well as a cessation tool? It mimics the smoking experience, maintaining the hand-to-mouth motion and inhalation experience—unlike traditional patches and gums. Vaping also provides flexible nicotine control, allowing smokers to start at a higher nicotine concentration and gradually reduce their intake over time—tailoring the quitting process to their individual needs. It also reduces exposure to toxic chemicals. Regular tobacco smoke contains 7,000 chemicals, including tar and carbon monoxide, which cause cancer, lung disease, and heart disease. 

Despite the compelling data, the United States takes an extremely aggressive stance against e-cigarettes. The FDA has rejected countless vaping products and failed to adequately inform the public that vaping is a safer alternative to smoking. These actions give people zero incentive to switch, leaving many using traditional cigarettes or turning to unregulated black-market vape products. History has shown that these prohibitive effects are disastrous. 

With a new FDA head soon to take the helm, the agency has the chance to rethink its approach and offer a method to bridge the gap between traditional cessation aids and total abstinence. Instead of demonizing e-cigarettes, we should recognize them as a resource for public health. Not all nicotine products are created equal, so we shouldn’t regulate them like they are. 

As the Cochrane Review has demonstrated, nicotine e-cigarettes offer a significant advantage over traditional NRT, and public messaging must be clear and evidence-based: Vaping is significantly less harmful than smoking and is a viable smoking cessation tool. Will the FDA course correct? One can hope this new administration will bring policy decisions that reflect the best available evidence—rather than outdated fears.

The post Will Martin Makary’s FDA listen to the evidence on e-cigarettes? appeared first on Reason Foundation.

This proposed rule would ban the sale of more than 99.9 percent of cigarettes currently sold in the U.S. by demanding tobacco companies remove almost all of the nicotine from their cigarettes. Banning an addictive product used daily by almost 30 million adults and worth tens of billions of dollars is replete with risk.

The U.S. cigarette market is a valuable prize for China and Mexican cartels seeking to diversify their revenue sources. Chinese cigarettes are products of the China National Tobacco Corporation. This state-owned monopoly generates between nine and 12 percent of the CCP’s revenue, making it one of the largest companies in China. A cigarette ban could increase these revenues as the Marlboro man disappears in favor of brands such as Chunghwa and Hongtashan smuggled in through American ports of entry.

No other country has yet experimented with a mandatory nicotine reduction in cigarettes. New Zealand passed legislation in 2022 enacting the same policy, but it was repealed before it could come into effect after the election of a conservative government.

A few places have banned tobacco outright, with predictably disastrous consequences. The Kingdom of Bhutan was the first to do so in 2004 and was widely praised by bodies such as the World Health Organization (WHO). In 2021, the ban was repealed after smoking among youths rose and a profitable black market developed. During the COVID-19 pandemic, South Africa banned tobacco, but there was no significant reduction in smoking because illicit cigarettes flooded in from neighboring Zimbabwe.

A ban on cigarettes isn’t just counterproductive; it’s unnecessary. A “smoke-free country” is classified by the WHO as one where fewer than five percent of the population smokes. The U.S. has already achieved a nearly smoke-free generation with its youths, with just 1.4 percent of middle and high school kids saying they’ve tried a cigarette in the past 30 days. There is universal knowledge of the dangers of smoking. Cigarettes are taxed and highly regulated, and there are hardly any public places left in the U.S. for smokers to light up indoors.

For those smokers who would like to quit but so far have not been able to do so, it’s carrots, not sticks, that should be on the FDA’s agenda. The FDA should inform smokers that they can still get the nicotine they want without the smoke that may kill them if they switch to an e-cigarette, nicotine pouch, or heated tobacco product. All these products are vastly safer than cigarettes and could save millions of lives. Thanks to a combination of media misinformation and the FDA’s failure to provide the public with accurate information, a majority of the public and smokers believe alternatives like e-cigarettes are just as or more dangerous than smoking. 

Because the FDA failed over the past four years to authorize a sufficient number of American e-cigarettes for sale, a wave of illicit and unregulated vapes from China flooded in to satisfy consumer demand. Should the FDA achieve its goal of banning cigarettes, there’s little doubt what happened in the vape market will be repeated, only on a significantly larger scale.

The past four years of the FDA’s tobacco regulation resulted in a chaotic marketplace rife with illegally imported products, American companies fighting for years for their products to be authorized, growing misperceptions of the risks of different nicotine products, and the FDA having to defend itself in front of the Supreme Court for refusing to authorize e-cigarettes in non-tobacco and menthol flavors.

President-elect Trump’s new administration will inherit an unenviable state of affairs. However, there is also a significant opportunity to correct previous errors. The FDA’s rule to slash nicotine in cigarettes should be abandoned, and the agency should instead focus on protecting public health by providing accurate information about safer alternatives for smokers trying to quit and ensuring a well-regulated marketplace that is less vulnerable to smugglers and criminal networks.

The post Biden’s cigarette ban will enrich the Chinese Communist Party appeared first on Reason Foundation.

The economic and employment impacts of the FDA’s rule could be devastating for many. The FDA is justifying this rule with a model of projected benefits that claims to prevent 48 million youth and young adults from starting smoking by the year 2100 and lead to 12.9 million Americans quitting smoking one year after the rule is implemented.

So, is such a radical and unprecedented policy worth it to achieve such enormous public health benefits, and is it likely to be as successful as the FDA projects? In a word, no.

America’s youth smoking rate is already one of the lowest in the world. Only 1.4 percent of middle and high school students tried a cigarette in the past month, a decline of almost 60 percent from 2020, which was the year the FDA chose to derive its inputs on youth smoking for its model of projected benefits. The FDA’s model, primarily based on eight experts guessing what they believe will happen in response to the policy, assumes the policy will be implemented in 2027, a year in which it’s not unrealistic to assume youth smoking could already be statistically indistinguishable from zero. If that is indeed the case, then the FDA’s model will have massively overshot the projected benefits of preventing youth from picking up smoking, and the policy will be focused entirely on removing choice from adult smokers.  

However, there are still further assumptions in the FDA’s plan that are unlikely to materialize. According to the FDA, when the ban on regular cigarettes comes into effect, around half of smokers will switch to safer nicotine alternatives like e-cigarettes, nicotine pouches, and heated tobacco. The success of the FDA’s plan in large parts depends on a competitive market in these products that consumers find satisfying and know are safer than smoking cigarettes.

“The FDA also recognizes the importance of ensuring broad and equitable access to all the tools and resources that can help smokers quit,” Brian King, head of the Center for Tobacco Products at the FDA, told journalists in a press conference announcing the rule.

The deep irony is that for the last four years, the FDA has been denying smokers access to the most effective tools for quitting, namely e-cigarettes, by banning most of the domestic vape market. A flood of vapes from China has come to fill the gap, which the FDA is now desperately trying to interdict with the help of other agencies.

Despite an overwhelming amount of evidence on both the relative safety of e-cigarettes and their effectiveness in helping smokers quit, the majority of the public still believes these products are no different from regular cigarettes.

The gap between reality and public misperception indicates the FDA’s failure to communicate accurate information, especially when understanding such information is critical to the success or failure of the biggest prohibition in the agency’s history and the largest in America since the 1970s.

The FDA’s model gives short shrift to the idea there will be a substantial illicit market for cigarettes. With almost 30 million smokers and a market worth tens of billions, the FDA is betting that criminals won’t capitalize on an opportunity to meet demand as they have with vapes and illicit drugs. It’s a bold assumption that goes against the grain of history and experience. When South Africa banned cigarette sales during the COVID-19 pandemic, most smokers continued using cigarettes smuggled in from neighboring countries despite prices soaring 240 percent.  

Hopefully, the incoming Trump administration will force the FDA to detach itself from abstract models based on guesswork and instead pursue tried and proven strategies to help those smokers who wish to quit do so.

The post FDA’s fantasy modeling doesn’t justify ban on cigarettes appeared first on Reason Foundation.

This liberalization of sports betting has sparked criticism from gambling opponents who argue that the industry is predatory and causes significant financial harm. Charles Fain Lehman’s recent article in The Atlantic consolidates some of the more persuasive arguments against legal sports betting. However, his case for prohibition is at a loss. Lehman argues that sports gambling leads to measurable harm among society’s most vulnerable communities, and the tax revenue it generates is insufficient to offset these damages.

While it’s true that gambling addiction can lead to harm, the industry is too young, and available data are too limited to evaluate the industry’s impact accurately. Additionally, many people enjoy sports betting, and only about 1% of Americans are estimated to have a severe gambling problem. This figure is in comparison to the estimated 85% of Americans who have gambled at least once in their life (an estimated 60% in the past year).

Of the three academic working papers Lehman cites, one is of moderate quality, while the other two rely on convoluted methods that lead to questionable conclusions. In contrast to Lehman’s argument, the tax revenue from sports gambling is relatively substantial compared to its market size and other industries.

Lehman claims that the combined tax receipts of all 38 states amount to just $500 million per quarter—about $2 billion annually—which he describes as “anemic” compared to alcohol, tobacco, or marijuana. Yet, earlier in the article, he notes that sports gambling generates $10 billion annually in total revenue. According to Lehman’s figures, $2 billion in taxes represents 20% of the market, which is a significant rate. It’s unclear why, as a baseline assumption, sports betting should be expected to generate similar revenues to some of the most highly taxed products in the country. One of the primary justifications for taxing cigarettes and alcohol so highly is they generate costs to non-users via crime, car accidents, and healthcare. People who spend their money on sports betting do not impose similar costs on non-bettors.

Critics might argue that if the $10 billion of revenue is concentrated on society’s most vulnerable populations, the costs of legalization could be more significant than tax receipts justify. The most substantial evidence Lehman cites for this case is a working paper by Scott R. Baker, Justin Balthrop, Mark J. Johnson, Jason D. Kotter, and Kevin Pisciotta, which suggests that gambling reduces household savings, particularly among financially constrained households. However, the same could be said for some non-essential household consumer spending. By that logic, we’d need to ban virtually all forms of entertainment and recreation, including tickets for sporting events. 

Even if we accept Baker et al.’s concerns at face value, the evidence is difficult to verify. The data are not publicly available, and the study doesn’t include a complete picture of household finances. The authors reviewed a nonrandom selection of individual bank and credit card accounts, leaving out how the total assets of any single household were impacted. A more comprehensive analysis might look at state-level income, spending, and savings trends. However, such a study would still struggle to link directly to gambling households, highlighting the current lack of quality data.

Lehman also references two other studies, both of which have methodological flaws. Brett Hollenbeck, Poet Larsen, and Davide Proserpio find that gambling legalization leads to increases in bankruptcy rates, debt collections, debt consolidation loans, and auto loan delinquencies after gambling legalization. Yet these effects are attributed to a mere 0.3 percent decrease in average credit scores following legalization—a change too benign to be causal. 

Kyutaro Matsuzawa and Emily Arnesen, meanwhile, report a rise in intimate partner violence in states with legal gambling when a fan’s home team unexpectedly loses. However, their analysis only compares states with others that had “Sundays without ‘home’ games,” neglecting the potential impact of away games, which could produce similar effects among gamblers and bias the authors’ estimates. Their model focuses on a narrow set of games and fails to account for all gameplay possibilities, raising concerns about potential confounding factors. Because this study looks at population-level data, there also isn’t direct evidence that abusive partners bet on such games. Moreover, “significant” results only mean that the confidence intervals don’t include 0 and should not necessarily be interpreted as “relevant.” Papers for academic journals tend to focus on results that are most statistically significant rather than the most realistic. This is problematic because academics can try many statistical models until one produces confidence intervals that don’t include 0. Publishing significant results is fine, but these studies tend to leave out the results of models that didn’t work, which could undermine their findings.

Lehman’s broader implication by raising studies like Matsuzawa and Arnesen—that emotional triggers like losing a bet cause intimate partner violence—also provocatively misplaces responsibility for such violence on external events rather than on the abuser’s inability to manage emotional responses. Many studies have found a link between sporting events and domestic violence, even when gambling isn’t involved. However, few would argue that this correlation justifies banning sports altogether. As with any statistical model, results can be found that appear to correlate a harmful outcome with a chosen exposure, but correlation does not imply causation. Various factors that lead to adverse outcomes might also correlate with sports betting and could inappropriately imply that sports betting leads to domestic violence, lower credit scores, and reduced saving rates.

The United States lacks quality survey data to assess the full impact of gambling legalization. Lehman suggests that the previous prohibition on state legalization of sports betting under PASPA was relatively harmless. Still, it’s challenging to know what was occurring in the growing illegal gambling markets. Such unchecked markets don’t include consumer protections and could harm problem gamblers more. In a world where internet markets are challenging to control, it is wiser for states to regulate sports betting and benefit from the resulting tax revenue. 

Lehman also claims legalization hasn’t shrunk the size of the illegal market, pointing to a survey from Massachusetts showing monthly bettors were just as likely to bet through unauthorized channels after legalization. The problem is that the study Lehman cites was fielded just two months after the launch of retail sports betting and less than three weeks after the launch of online sports, with data collection ending just 18 days later. The author cautioned that “many jurisdictions internationally have found, it can take a substantial period of time for sports bettors to migrate fully from non-regulated to regulated providers.” Contrast this with the American Gaming Association’s research claiming more than 77 percent of online sports bets were placed through legal channels in 2023 compared to 44 percent in 2019, and 78 percent of bettors placed all or most of their bets through legal operators. To say legal sports betting hasn’t shrunk the illegal market is likely incorrect.

States that have legalized sports betting now have the tools to regulate the industry, provide better consumer protections for what was previously outside the law and practically impossible to track, and generate tax revenue that could not exist under prohibition.

The post Legalizing sports betting is the right call appeared first on Reason Foundation.

In his keynote address at the Federalist Society’s 2024 National Lawyers Convention, Justice Neil Gorsuch, alongside retired Justice Stephen Breyer, condemned the recent enforcement action of New York’s Department of Environmental Conservation against P’Nut the Squirrel. Door-kicking armed officers generated a new cause célèbre by swiftly confiscating and euthanizing an internet-famous pet squirrel rescued by a New York-based couple. In jest, Justice Gorsuch described how the New York government was clearly morally inferior to P’Nut’s owners despite the fact that the couple were pornographers who published content on the adult website OnlyFans.

All told, one theme from the Convention was clear: We can expect future decisions to lay bare the administrative state.

Columbia Law School’s own Professor Phillip Hamburger, speaking on a panel the day after Justice Gorsuch’s keynote, marshaled a new era by launching a Veuve Clicquot cork into the ceiling. He saw Loper, Jarkesy, Cargill, Corner Post, Axon, and Cochran, “all the wonderful cases,” as the “end of a beginning” worthy of celebration.

An upcoming case might have similar implications for the administrative state. In FDA v. Wages and White Lion Investments, L.L.C., currently pending before the Supreme Court, the Food and Drug Administration (FDA) is seeking to reverse a Fifth Circuit en banc decision that found the agency’s denial of marketing applications for flavored e-cigarette products to be arbitrary and capricious. The Fifth Circuit ruled that after years of leading e-cigarette manufacturers “on a wild goose chase” to successfully navigate the application process to market their products, the FDA pulled a “volte face” in issuing a blanket denial to over a million applications—changing the criteria for product approval after submission. The change in standards allowed the FDA to ignore key elements of the applications, which the agency previously said were necessary for approval.

The FDA’s denial orders have effectively amounted to a de facto ban on non-menthol flavored e-cigarette products—having done so through ad hoc adjudication (without rulemaking) and what the Fifth Circuit deemed a “(false) promise” that non-menthol flavors could “in theory” receive approval.

Significant investment from the hopeful manufacturers was obliterated in one fell swoop. Although the FDA originally estimated that the average cost of approval would range between $131,643 and $466,563 per product, the handful of companies that have received approval have so far reported their costs to range between $5 and $8 million for each product. It is impossible to measure the market size of the denied applications, but with over a million denials, it is fair to say that over a billion dollars in investments were rendered worthless by the FDA’s change in approval standards.

In its brief, FDA insists that the Fifth Circuit trounced a “hornbook principle” of administrative law inasmuch that an agency may choose to proceed through adjudication rather than rulemaking. The FDA says that this principle is supported by SEC v. Chenery Corp. (Chenery II), permitting the agency’s discretion “to develop a regulatory standard through ‘case-by-case evolution’ rather announcing [sic] a general standard ‘prospectively.’” Since it was decided in 1947, Chenery II has been regularly invoked by agencies to justify rules developed through either case-by-case adjudication or rulemaking when the authorizing statute does not foreclose either path.

Chenery II also allows agencies to enforce new regulations retroactively. Chenery II established a new era of ex post facto administrative regulation and has allowed agencies to enjoy unprecedented flexibility in applying their powers. However, Justice Jackson, who dissented in Chenery II, labeled the plurality opinion as “one of the worst ever.”

A plain reading of the Chenery II decision clearly expresses a preference for general rulemaking versus case-by-case adjudication. The oft-cited “hornbook principle” is given by the following:

The failure of the Commission to anticipate this problem and to promulgate a general rule [did not withdraw] all power from that agency to perform its statutory duty in this case. To hold that the Commission had no alternative [besides] formulating a general rule it might desire for use in future cases of this nature would be to stultify the administrative process.

Chenery II, 332 U.S. at 201-202.

While the plurality held that an agency can proceed to make law on a “case-by-case” basis, no strict standard for when rulemaking should be used in lieu of adjudication was introduced. However, with recent decisions like Loper, the Supreme Court might review current administrative practices, like Chenery II, and restrict broad discretionary powers based on the limitations originally outlined in the decision.

In Chenery II, the plurality observed that an agency, unlike a court, is endowed with prospective rulemaking power and, therefore, has “less reason to rely upon ad hoc adjudication to formulate new standards of conduct.” Additionally, the plurality counseled that agencies should effectuate their statutory commands through prospective rulemaking “as much as possible.”

The court went on to suggest that rulemaking by individual order is confined to three narrow circumstances of specialized problems: such that the agency (1) lacks “sufficient experience,”  (2) “could not reasonably foresee,” or (3) is dealing with circumstances “so specialized and varying in nature” that they are “impossible” to capture with a general rule. In the words of then-Judge Gorsuch in De Niz Robles v. Lynch, “the authority the Court extended to agencies to craft new rules retroactively through adjudication was not boundless.”

With these instructions, the FDA’s basis for retroactive ad hoc adjudication is up for debate. With e-cigarettes entering the U.S. market in 2007 and the deeming rule putting them under FDA authority in 2016, it might be tough to argue that the agency had insufficient experience with their regulation. The FDA has also long warned about the threat flavored nicotine products pose to public health, so one may argue that the agency should have foreseen its objections to flavored e-cigarettes when the agency gave its initial guidance. Preventing (mostly youth) exposure to e-cigarettes does not seem to be a specialized topic.

In the spirit of the plurality in Chenery II, an agency might be expected to explain why such circumstances apply to justify retroactive adjudication. The implications of FDA v. Wages and White Lion Investments, L.L.C. could be much larger than the future of the e-cigarette industry. The case provides an opportunity for the court to standardize agency discretion by clarifying and reaffirming the boundaries set in Chenery II, wherein a preference for prospective rulemaking is clear.

A version of this commentary originally appeared in the Columbia Business Law Review.

The post The future of ‘Chenery II’ appeared first on Reason Foundation.