John Stuart Mill’s harm principle states, “That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”

Mill’s principle is decidedly not paternalistic- granting no room for the use of force or regulation to protect individuals from the consequences of their own choices. It is a straightforward concept, well-recognized, and long since forgotten by the US federal and state governments. Paternalistic laws have infiltrated public health, finance, poverty alleviation, and education, among other aspects of our society. Hard paternalism- complete disregard of personal autonomy for their own good- has become more common and more accepted. 

Paternalism is not only often a violation of Mill’s harm principle—it’s often deceptively costly and sometimes harmful. Despite seemingly well-intended intentions, the underlying incentives behind much paternalism point to self-interested government agents and rent-seeking firms rather than the common good. As a recent example, look no further than the Food and Drug Administration’s recent treatment of vaping and flavored nicotine products. 

Vaping Meets the FDA 

Like most new technologies, e-cigarettes and other vaping products technology quickly gained popularity among adolescents in the mid-2000s. The industry leader was clearly JUUL, which captured over 70% of the e-cigarette market by 2019. JUUL was particularly popular among younger demographics, offering various flavored pods and fashionable vaping pens. Consequently, vaping rates among high school students surged throughout the 2010s.

Concerns that vaping’s popularity would result in a new wave of life-long nicotine users, The FDA began taking heavy-handed action to curb a supposed youth vaping “epidemic. The administration specifically targeted JUUL. The industry titan endured raids, had its products forced from the shelves, and received numerous fines and warning letters. Finally, the agency outright banned all JUUL products in 2022. While less severe, dozens of other agencies received similar treatment from the FDA. Most recently, the nicotine pouch product Zyn has been caught on the regulator’s radar due to its growing popularity.

How Dangerous is Vaping? 

Like many paternalistic actions, one could argue that the FDA had good intentions. However, like many of these endeavors, their decisions were misguided and potentially harmful.

Although most of the FDA’s efforts to curb youth vaping happened in the past 5 years, the agency first obtained the authority to regulate vaping products in 2016. But, as the National Youth Tobacco Survey finds, vaping rates amongst high school students steeply increased since 2016. 

Before 2016, states were tasked with developing rules to keep vaping products away from younger users. While imperfect, vaping rates were considerably lower when states enacted their own rules. Similarly, cigarette use among adults and younger users has been in steep decline since the 1960s. However, the FDA didn’t begin regulating tobacco products until 2009. Thus, it is not clear that the FDA’s paternalism was successful. 

Unfortunately, it’s much more likely that efforts to curb youth vaping were harmful. The most common substitute for vaping is cigarettes- a much deadlier alternative. Study after study has shown that e-cigarettes expose users to fewer harmful substances, including carcinogens. A 2019 study from the New England Journal of Medicine found vaping to be more effective than FDA-approved nicotine alternatives to help users quit smoking. Some U.K. hospitals contain vaping shops to help deter patients from smoking. 

Death statistics on smoking and vaping paint a clear and alarming picture of the true dangers of vaping paternalism. Smoking accounts for roughly 480,000 deaths annually, making it one of the leading causes of death across America. Vaping has resulted in 68 deaths since 2020. Vaping contains its own risks, but there is nothing like the risks of smoking. 

Good Intentions Meet True Incentives 

If the FDA’s paternalism to deter youth vaping was misguided, why does it persist? Far from learning from its recent (and repeated) mistakes, the agency continues to crack down on vaping producers and recently banned methanol cigarettes. Both these efforts happened despite backlash from anti-tobacco groups and political figures describing the agency as “stumbling from one crisis to the next.” 

As with most government actions, incentives describe behavior better than rhetoric. Indeed, As Bruce Yandle’s “Bootleggers and Baptists,” describes, those who push for others to adopt virtuous behavior often end up serving the interests of those promoting that very behavior. In the story of the FDA’s efforts to halt youth vaping, public health advocates (Baptists) make sincere efforts to protect public health, while established e-cigarette and tobacco firms (bootleggers) exploit public fear to maintain market dominance over potential competitors. The alliance creates a political coalition stronger than either could muster independently. 

JUUL’s popularity, and more recently Zyn’s, made them a prime target of both bootleggers and Baptists. Public sentiment, fueled by the fear of adolescent nicotine use, allowed competitors to leverage regulatory power to their advantage, effectively sidelining a significant rival. This tactic, known as rent-seeking, diverts productive economic resources toward unproductive political squabbling, leaving society worse off. 

Currently, only three companies—Logic Technology Development, NJOY, and R.J. Reynolds Vapor Company—have the FDA permission to sell e-cigarettes in the U.S. Altria Group (NJOY’s parent company) spent $12.5 million on lobbying in 2022. NJOY spent $480,000 on lobbying efforts. British American Tobacco (parent of Reynolds) spent $2.59 million on lobbying. Japan Tobacco International (parent of Logic) donated $300,000. Logic itself contributed another $60,000.

Faced with further FDA sanctions and more targeted regulations, JUUL spent $2.48 million on lobbying in 2022 and another $1.65 million in 2023 to repair its image and prevent further FDA action. Now, Zyn has been unwillingly drawn into the rent-seeking battle. As long as the FDA holds power over market entry, rent-seeking will persist, and the FDA will squander resources on paternalism at the expense of the public and public health.

A Return to the Harm Principle?

The bootlegger’s and Baptists’ regulations require collaboration from both parties. But there are far more individuals who favor paternalism as a policy goal (Baptists) than those who stand to benefit from steering paternalist policies for their own benefit (bootleggers). Thus, some of the blame for the FDA’s efforts to stop teenage vaping falls on us. Our paternalistic inclinations provide much of the avenue for never-ending bureaucratic expansion and more paternalism. 

To apply the brakes, we need to strongly reconsider what ideals should guide accepted uses of government power and regulation in individuals’ lives. Mill’s harm principle provides guidance—establishing the individual’s autonomy, free from most force, and limiting the harms of paternalism placed on him and others. Let’s rediscover wisdom like the harm principle to guide public health policy going forward—and let’s quit paternalism cold turkey. 

Glenn L. Furton is an Assistant Professor of Economics in the College of Business at Metropolitan State University of Denver. He received his B.S. in business with a minor in economics from The University of Colorado at Colorado Springs, and a Ph.D. in agricultural and applied economics at Texas Tech University.

Raymond J. March is a Research Fellow and Director of FDAReview.org with the Independent Institute. He is also an Assistant Professor of Economics at Angelo State University where he is the Assistant Director of the Free Market Institute, Assistant Research Professor at Texas Tech University, Public Choice and Public Policy fellow with the American Institute for Economic Research, and an affiliated scholar with the Challey Institute for Global Innovation and Growth. His research has appeared in Health Economics, Southern Economic Journal, Public Choice, Research Policy, Food Policy, Journal of Institutional Economics, The Independent Review and other academic outlets. His popular articles have appeared in Fortune, Washington Examiner, National Interest, Washington Times, Sun Sentinel, The Hill, Real Clear Health, and Medical News Daily. He earned his Ph.D. from Texas Tech University.