From: Stefan.M.Gorsch@dartmouth.edu (Stefan M. Gorsch)
Newsgroups: alt.politics.libertarian
Subject: Re: Might be a FAQ
Date: 24 Dec 92 21:53:54 GMT
 <1992Dec23.053052.11058@genie.slhs.udel.edu> 
 <1992Dec23.235101.25162@dartvax.dartmouth.edu>  
 <1992Dec24.084736.15699@genie.slhs.udel.edu>
Organization: Dartmouth College, Hanover, NH
X-Posted-From: InterNews1.0a5@newshost.dartmouth.edu

In article <1992Dec24.084736.15699@genie.slhs.udel.edu>
starr@genie.slhs.udel.edu (Tim Starr) writes:

> 
> In the case of medicine, the
> }average consumer (even the sophisticated consumer) clearly does not
> }have the resources to evaluate the safety and efficacy of
> }pharmaceutical health claims.
> 
> That little ol' thing called licensure couldn't be a big cause of this in that
> it restricts the medical advice market, now could it?
> 
> Because toxic adverse effects can occur
> }weeks, months or even decades following use of the offending medicine
> }(eg.Radium, DES, Thalaldomide) the absence of a regulatory agency to 1)
> }evaluate safety & efficacy and 2) track complications over time could
> }be disastrous and legal remediation in many instances would be nigh
> }impossible.
> 
> You've made one of the cliche statist assumptions: since we libertarians
> oppose the State doing something, we oppose anyone doing it.  The early 19th-
> century libertarian Frederic Bastiat eloquently disposed of this in his work
> "The Law."
> 
> I see no reason why the power of prior restraint is necessary for safety
> and efficacy to be judged or for complications to be tracked over time - nor
> why these goods must be paid for with stolen money, a.k.a. taxes.
> 

Medical licensure has nothing to do with this. Even the most
insightful, board certified MD doesn't have the wherewithal to evaluate
unsubstantiated drug claims. The point is that for ANYONE to know
whether a drug is safe & effective requires large scale testing
initially in animals (despite your claims, animal testing does generate
much useful and applicable information) and then in increasingly large
numbers of volunteers. If this testing were not mandated by law, many
companies simply wouldn't do it (if you don't believe this, why didn't
rigorous clinical testing occur before the FDA existed?). In the
absence of such testing, how is one to know whether drug x is useful,
useless, or harmful? Even if one were to endeavor to test the drug
oneself it would be many, many years before useful results were
available. 

When it comes to pharmaceuticals, prior restraint is necessary because
we (society) need to have scientific data upon which to base our
judgements. In the absence of objectively verifiable criteria you have
no way of knowing whether that potentailly life saving or enhancing
drug advertised on TV is what it claims to be. Indeed, the manufacturer
might not really know either (they may think they do, they may not care
or they may be in the process of "really testing" it but have decided
to market it in the meantime)

> Complete deregulation of pharmaceuticals would be a bonanza
> }for unscrupulous or simply naive entrepeneurs and a nightmare for
> }everyone else. As an oncologist, I've already treated too many patients
> }who have turned to "alternative medical treatments" to their detriment.
> 
> Why only complete deregulation?  Why wouldn't partial regulation be a partial
> bonanza for those vermin Jews - oops, wrong kind of statist persecutor - that
> is, entrepreneurs?  If it would, then the logical conclusion is for totalitarian
> regulation of pharmaceuticals.
> 
This is not a slippery slope argument. The claim being made is that
requiring entrepeneurs (who by definition are out to make a profit;
I'll give you the benefit of the doubt on your tasteless religious
analogy) to give us information so that we can evaluate their
potentially lifesaving or potentially lethal products benefits society
as a whole without unduly burdening private enterprise. Where most
disagreements tend to occur is at the line of how much & what sort of
testing -- not whether any testing is necessary.

> You seem to have missed my point: we can't know enough about the long-term
> effects of anthropogenic chemicals to determine ex ante whether use of prior
> restraint would reduce risk or increase it.  Thus, we have to default to ex post
> determination and liability lawsuit for maximal legal remedy.
> 
> Note that this leaves room for tests which can determine comparative risk
> ex ante.  When we can know that banning something will reduce risk, then it
> will be justified to do so.

My points are that 1) in many instances it is quite possible to
reasonably determine whther a drug is likely safe or likely unsafe for
human consumption through well constructed preclinical (animal) trials
2) Sometimes we're wrong about #1 which is why many drugs never make it
to market after early clinical (human) trials 3) prior restraint
ensures that 1 & 2 occur 4) testing performed after a drug is
comercially released is too late by the sum of the time it takes 1 & 2
to occur + the lag time to the development of adverse effects (that is
years to decades, sometimes generations)

> 
> }As I understand this, you are saying that no regulatory agency such as
> }the EPA is needed.
> 
> Yep.
> 
> Instead, individuals could file class action suits
> }to force polluters (would this be individual car owners or automakers?)
> }to curtail their polluting activity. For this to work there need be 1)
> }environmental legislation upon which such suits could be based

> Or the common law of tresspass, which was what legal remedy for pollution was
> gotten under in England prior to legislative intervention that privileged
> the locomotive industry at the advent of the Industrial Revolution.

The US doesn't operate on Common Law; to take polluters to court
requires specific legislation regulating the amount and kinds of
pollution permissible.
 
> To accurately monitor air pollution
> }levels throughout the country and trace its sources is, I believe
> }beyond the capabilities of even the best tort law firm or public
> }watchdog group.
> 
> Why?
> 
Because to do so requires the ability to inspect manufacturing plants,
automobiles, nuclear facilities and the power to compell these
organizations to provide requisite technical information. This requires
appropriate legislation. As it stands now only the EPA (and its related
organizations, NRC etc.) is so empowered. I suspect that most business
groups would strongly prefer the status quo over a system which
empowered any private citizen or group to walk in and inspect a
facility, demand proprietary information and otherwise assume the EPA's
powers.

> }So, we're back to my original query. Though I personally subscribe to
> }much libertarian doctrine, there really do seem to be things which the
> }government is in a postion to do better than the private sector.
> 

stefan.m.gorsch@dartmouth.edu