Jonathan Kulick

Unintended Consequences of Enforcement in Illicit Markets

Legal enforcement of bans on goods can reduce the size of the black market but lead to greater violence by increasing revenue in the illicit market. However, the link between enforcement and violence is not as simple as is suggested by the textbook model, even for a competitive market. Nevertheless, under plausible assumptions more enforcement on trafficking in the illicit good leads to more violence.

Unintended Consequences of Cigarette Prohibition, Regulation, and Taxation

Laws that prohibit, regulate, or tax cigarettes can generate illicit markets for tobacco products. Illicit markets both reduce the efficacy of policies intended to improve public health and create harms of their own. Enforcement can reduce evasion but creates additional harms, including incarceration and violence. There is strong evidence that more enforcement in illicit drug markets can spur violence. The presence of licit substitutes, such as electronic cigarettes, has the potential to greatly reduce the size of illicit markets. We present a model demonstrating why enforcement can increase violence, show that states with higher tobacco taxes have larger illicit markets, and apply the findings to discussion of public policy toward a potential ban on menthol cigarettes. The social calculus involved in determining public policy toward tobacco cigarettes should include the harms from both consumption and control. We conclude by highlighting areas where more research is needed for effective policymaking.

Violence in Illicit Markets: Unintended Consequences and the Search for Paradoxical Effects of Enforcement

The textbook competitive model of drug markets predicts that greater law enforcement leads to higher black market prices, but also to the unintended consequences of greater revenue and violence. These predictions are not in accord with the paradoxical outcomes evinced by recent history in some drug markets, where enforcement rose even as prices fell. We show that predictions of the textbook model are not unequivocal, and that when bandwagon effects among scofflaws are introduced, the simple predictions are more likely to be reversed. We next show that even simple models of noncompetitive black markets can elicit paradoxical outcomes. Therefore, we argue that instead of searching for assumptions that lead to paradoxical outcomes, which is the direction the literature has taken, it is better for policy analysis to choose appropriate assumptions for the textbook model. We finish with performing such an analysis for the case of banning menthol cigarettes. Under the most plausible assumptions enforcement will indeed spur violence, although the legal availability of electronic cigarettes may mitigate or reverse this conclusion.

Unintended Consequences of Cigarette Taxation and Regulation

Tobacco smoking harms health. Taxes and regulations can reduce that harm. But evasion reduces the efficacy of taxes and regulations and creates harms of its own in the form of illicit markets. Enforcement can reduce evasion but creates additional harms, including incarceration and violence. Peter Reuter has pointed out that a flat ban on cigarettes would be likely to generate illicit-market harms similar to the harms of existing illicit drug markets. Taxes and regulations can be thought of as “lesser prohibitions,” subject to the same sorts of risks. Minimizing total harm means minimizing the sum of abuse harms and control harms.Tighter regulations and higher taxes on cigarettes risk increasing the size of the existing illicit tobacco markets, which are already substantial. That risk can be somewhat blunted by increasing enforcement effort, but doing so can be costly on several dimensions and might, under plausible assumptions, lead to an increase in violence. Tobacco policymaking should therefore consider illicit markets and the need for enforcement; some of the health benefits of regulation and taxation may be offset by increased illicit-market side effects and enforcement costs. The presence of licit substitutes, such as e-cigarettes, can greatly reduce the size of the problem; the regulation of e-cigarettes should take this effect into account. If enforcement is to be increased to counterbalance tightened controls, positive-feedback dynamics suggest that the enforcement increase should precede, rather than follow, the tightening.

Countervailing Effects: What the FDA Would Have to Know to Evaluate Tobacco Regulations

The Family Smoking Prevention and Tobacco Control Act [P.L. 111-31] gives the US Food and Drug Administration (FDA) the authority to regulate tobacco products, including placing restrictions on product composition, sale, and distribution. A complete accounting of the costs and benefits of any tobacco regulation includes harms from possible illicit trade in tobacco products (ITTP): costs of enforcement, violence, incarceration, etc. Indeed, the law instructs the FDA to take into account the “countervailing effects” of regulation on public health, “such as the creation of a significant demand for contraband or other tobacco products that do not meet the requirements.” While the law’s narrow focus on public health may limit the scope of an inquiry by the FDA compared to a full benefit-cost analysis, aspects of ITTP such as violence and incarceration have substantial health impacts. Illicit markets in drugs such as cocaine, heroin, and methamphetamine, not to mention the grand experiment of alcohol Prohibition in the early 20th century, illustrate the substantial risks of unwanted side effects of drug prohibition. But taxes, product limitations, access restrictions, and narrowly defined product bans constitute “lesser prohibitions,” and are subject to the same kind (if not degree) of risks. All tobacco policy-making should therefore consider ITTP. This article sets forth a research agenda for the FDA to consider in order to estimate the effects of contemplated tobacco-product regulation and ITTP. We argue that, to carry out fully its legislative mandate, the FDA would have to determine the current size and impact of ITTP, analyze how these may be expected to change under new regulations, and look for interdependencies among tobacco-product markets that may complicate single-product regulation. A more challenging element of the research agenda would be to develop a better theoretical groundwork for the prediction of the emergence, size, and side effects of illicit markets.

Illicit Trade as a Countervailing Effect: What the FDA Would Have to Know to Evaluate Tobacco Regulations

Abstract The Family Smoking Prevention and Tobacco Control Act [P.L. 111–31] gives the US Food and Drug Administration (FDA) the authority to regulate tobacco products, including placing restrictions on product composition, sale, and distribution. A complete accounting of the costs and benefits of any tobacco regulation includes harms from possible illicit trade in tobacco products (ITTP): costs of enforcement, violence, incarceration, etc. Indeed, the law instructs the FDA to take into account the “countervailing effects” of regulation on public health, “such as the creation of a significant demand for contraband or other tobacco products that do not meet the requirements.” While the law’s narrow focus on public health may limit the scope of an inquiry by the FDA compared to a full benefit-cost analysis, aspects of ITTP such as violence and incarceration have substantial health impacts. Illicit markets in drugs such as cocaine, heroin, and methamphetamine, not to mention the grand experiment of alcohol Prohibition in the early twentieth century, illustrate the substantial risks of unwanted side effects of drug prohibition. But taxes, product limitations, access restrictions, and narrowly defined product bans constitute “lesser prohibitions,” and are subject to the same kind (if not degree) of risks. All tobacco policy-making should therefore consider ITTP. This article sets forth a research agenda for the FDA to consider in order to estimate the effects of contemplated tobacco-product regulation and ITTP. To carry out fully its legislative mandate, the FDA would have to determine the current size and impacts of ITTP, analyze how these may be expected to change under new regulations, and look for interdependencies among tobacco-product markets that may complicate single-product regulation. A more challenging element of the research agenda would be to develop a better theoretical groundwork for the prediction of the emergence, size, and side effects of illicit markets. We close with discussion of how the proposed research agenda may lead to insights into other policy areas as well.

Cigarette Taxes and Illicit Trade in Europe

Cigarettes are highly taxed in Europe to discourage tobacco use and to fund public-health measures to mitigate the harms from tobacco consumption. At higher prices (more precisely, at higher differentials between licit and black-market prices) consumers substitute more toward illicit cigarettes. Illicit retail trade in cigarettes (IRTC) includes counterfeiting and smuggling — either of legally purchased products, from lower-tax to higher-tax jurisdictions, or of entirely non-tax-paid cigarettes. The existing literature includes claims that taxes are not an important factor determining the scale of IRTC. We investigate these claims with data from 1999-2013 in the European Union. We find that while the simple correlation between licit cigarette prices and the market share of illicit cigarettes in consumption is negative, raising prices in any one country would, on average, lead to substantial increases in the expected illicit market share and volume in that country. A one euro increase in tax per pack in a country is expected to increase illicit market share by 5 to 12 percentage points and increase illicit cigarette sales by 25% to 120% of the average consumption. We also find that the role of prices in stimulating IRTC is, empirically, far more important than the role of corruption. The results are robust to a host of alternative specifications and sources of data.

CIGARETTE TAXES AND ILLICIT TRADE IN EUROPE: CIGARETTE TAXES AND ILLICIT TRADE IN EUROPE

Cigarettes are highly taxed in Europe, but at higher prices some consumers substitute more toward illicit cigarettes. The illicit retail trade in cigarettes (IRTC) includes counterfeit, untaxed, and smuggled cigarettes. Some existing literature includes claims that taxes are not an important determinant of IRTC. Using data from the European Union, we find the opposite: raising prices leads to substantial increases in IRTC. A €1 increase in tax/pack is expected to increase illicit market share by 5 to 12 percentage points and increase illicit cigarette sales by 29% to 95%. The results are robust to alternative specifications and data. (JEL I18, H26, K42)

Cigarette Taxation, Regulation, and Illicit Trade in the United States

Tobacco products are highly taxed and regulated in the United States to deter consumption and raise revenues. These restrictions, especially differences in taxation by jurisdiction, invite an illicit trade in tobacco products (ITTP), particularly in cigarettes (illicit retail trade in cigarettes or IRTC). This IRTC amounts to billions of dollars annually in lost tax revenues, reduces the efficacy of smoking reduction efforts, and imposes the other attendant costs of a black market. Stricter controls may invite further evasion, presenting challenges to enforcement.

Empty Discarded Pack Data and the Prevalence of Illicit Trade in Cigarettes

Illicit trade in tobacco products (ITTP) is big business in the United States and creates many harms including reduced tax revenues; damages to the economic interests of legitimate actors; funding for organized-crime and terrorist groups; negative effects of participation in illicit markets, such as violence and incarceration; and reduced effectiveness of smoking-reduction policies, leading to increased damage to health. To improve data availability for study in this area, we describe and make available a large, novel set of data from empty discarded pack (EDP) studies. In EDP studies, teams of researchers collect all cigarette packs discarded (either in trash receptacles or as litter) in the public spaces of selected neighborhoods. Packs are examined for the absence of local tax stamps, signs of non-authentic packaging or stamps, and other indications of potential tax evasion or counterfeit product. We describe the data and analyze the prevalence of ITTP. Data from 23 collections in 10 U.S. cities from 2010 to 2014 are available, yielding 106,500 observations (by far the largest dataset of its kind available for academic study). Each observation includes dozens of variables covering the brand, location to the ZIP code level, tax status, counterfeit status, and other information about the pack. There is significant evidence of tax avoidance (up to 74% of packs in New York City). In some markets there is also a significant amount of illicit trade (up to over half the market in New York City), which includes bootlegging, counterfeits, cigarettes produced for illicit-market sales, and cigarettes without any tax stamps. These data will be highly useful for research in illicit markets and organized crime.