Big Pharma’s Profitable Buzz

Tim Wu argues this week in Slate that baby-boomers’ well-known appetite for getting high has, in fact, led to drug legalization. Or, to be more precise, buzz legalization.

Marijuana, cocaine and the kinds of recreational drugs you’d expect to find in the trunk of Hunter S. Thompson’s huge red Chevy convertible — you can still go to prison for those.  But, says Wu, the pharmaceutical industry has rendered those substances redundant:

(T)here’s been no significant change in federal drug laws, or in the political conversation surrounding them, in decades. A leading presidential candidate from either party endorsing a “free weed” movement seems unimaginable. And beyond marijuana, the drug legalization movement barely even makes an effort.

That’s why drug legalization is happening in a wholly different way. Over the last two decades, the FDA has become increasingly open to drugs designed for the treatment of depression, pain, and anxiety—drugs that are, by their nature, likely to mimic the banned Schedule I narcotics. Part of this is the product of a well-documented relaxation of FDA practice that began under Clinton and has increased under Bush. But another part is the widespread public acceptance of the idea that the effects drug users have always been seeking in their illicit drugs—calmness, lack of pain, and bliss—are now “treatments” as opposed to recreation. We have reached a point at which it’s commonly understood that when people snort cocaine because they’re depressed or want to function better at work, that’s drug trafficking; but taking antidepressants for similar purposes is practicing medicine.

This other drug legalization movement is an example of what theorists call legal avoision. As described by theorist Leon Katz, the idea is to reach “a forbidden outcome … as a by-product of a permitted act.” In a classic tax shelter, for instance, you do something perfectly legal (like investing in a business guaranteed to lose money) in order to reach a result that would otherwise be illegal (evading taxes). In the drug context, asking Congress to legalize cocaine or repeal the Controlled Substances Act of 1970 is a fool’s errand. But it’s far easier to invent a new drug, X, with similar effects to cocaine, and ask the FDA to approve it as a new antidepressant or anxiety treatment. That’s avoision in practice.

Given the high price of many of these drugs, Wu says it amounts to legalization “for better-off Americans.”  The symbol of the new drug legalization movement is Rush Limbaugh, says Wu:

He, like many celebrities, is a recovering addict. But with Limbaugh being somewhat outside of the 1960s drug culture, the medical marijuana movement was not for him. Instead, Limbaugh, the addicted culture warrior, has become the true poster child of the new drug legalization program.

The poor continue “to self-medicate with old-fashioned illegal drugs or just get drunk,” Wu adds. (And often go to prison.)

Wu’s essay is one of five written for a Slate series called American Lawbreaking.  His theme is that while we focus most of our attention on lawmaking as an expression of public policy, “tolerance of lawbreaking constitutes one of the nation’s other major—yet most poorly understood—ways of creating social and legal policy.”

Wu will chat online live about his series tomorrow (Oct. 18) on the Washington Post’s site at 11 a.m. eastern time.  WaPo chats are usually archived.

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