May 2, 2014

JAMES TARANTO: Vapor Madness: Nicotine nannyism and pot permissiveness.

We don’t mean to be a scold; this column has some sympathy with the arguments for marijuana decriminalization, and we certainly are not too high and mighty to make pot puns. (John Paul Stevens said last week he thinks marijuana should be legal. Ironic that he waited until after leaving the high court. Get it?)

Instead, we mean to call attention to the disconnect between nannyism about nicotine and permissiveness about pot. It’s especially striking given the push to regulate so-called e-cigarettes. Clines’s page last week cheered the Food and Drug Administration for imposing a series of new rules that it says “will lay the foundation to protect the public from devices whose risks and benefits are largely unknown.”

Among the new regulations, as summarized by the Times: “Manufacturers would for the first time have to tell the F.D.A. what ingredients and toxic chemicals are in their products, and the agency would decide, based on scientific evidence, whether the product could be marketed. . . . And companies could not claim that their e-cigarettes are less harmful than regular cigarettes without submitting scientific proof to the F.D.A.” And they disdain global-warming skeptics.

The Times wants more, though: a ban on “flavors and colorful packaging,” restrictions on TV marketing, and a limit on nicotine concentration.

The important thing about e-cigarettes is that they are not cigarettes. They contain nicotine but no tobacco. They don’t burn, and you can’t smoke them. They are battery-powered devices that produce a vapor, which quickly dissipates on exhalation and has none of the pungency of smoke. Using e-cigarettes and similar devices is known as “vaping” rather than smoking. . . .

It occurs to us that the “social acceptability” rationale also raises a First Amendment question. The U.S. Supreme Court has held that burning a flag is constitutionally protected “symbolic speech.” Here we have a ban on symbolic smoking, premised precisely on the undesirable symbolism–on its conveying the idea that smoking is socially acceptable.

Meanwhile, we can think of something else that looks like smoking: marijuana smoking, of which Americans, including elite opinion leaders like Francis X. Clines, are increasingly indulgent.

Yeah, it’s as if there’s more going on here than a concern for freedom, safety, or public health.