The Harrison Narcotics Tax Act

Friday, August 22nd, 2008

When the U.S. first prohibited drugs in the early 20th Century, it was such a non-event that the media barely mentioned it. The victory of the temperance crowd is covered in this excerpt, which follows after this one…

Probably the biggest concession Hamilton Wright, the U.S. Opium Commissioner, agreed to, however, was exempting from his proposed legislation products with a small amount of narcotic in them—then Big Pharma’s and the patent-medicine companies’ big earner. This leniency was attacked by members of Congress who wanted tighter legislation, but one of the bill’s backers explained on the floor that this was as good a situation as they could hope for, given the power of the pharmaceutical lobby. “Unfortunately I am forced to believe that if we should attempt in this way to attack all the proprietary medicines which contain opium, the bill would have a rocky road to travel, and would be consigned to oblivion,” said Rep. James Mann of Illinois. “That may not be a very good excuse, but, after all, it is practical.”


William Jennings Bryan and Wright pushed hard for passage. After the narcotic exemption was loosened further in the Senate to allow higher concentrations of heroin and morphine, the bill finally passed in December 1914. The event merited barely a mention in the New York Times, even though the Harrison Narcotics Tax Act, as Wright’s legislation was known, was the first major federal law to regulate drugs, defined as “opium or coca leaves, their salts, derivatives, or preparations.” It banned the distribution of narcotics—including cocaine, which isn’t—for anything but medical purposes.


“Tax” is in the name instead of “Ban” because most early-20th-century legislators, regardless of party affiliation, tended to view federal power as limited by the Constitution. Then, a pharmaceutical company could argue successfully that cocaine refined in New York could be sold in New York without any federal interference. By using the power to tax, however, Congress could, to some extent, legally interfere with activity that didn’t cross state lines. It was a foot in the door that the states would repeatedly try to push back.


Congress, exercising its constitutional authority to levy taxes, required all narcotics distributors to register with the forerunner of the IRS and pay a $1-per-year tax. Only doctors and legitimate medical companies were allowed to register, which meant that nonmedical distributors would be committing a tax crime. This legislative maneuver effectively banned the nonmedical use of narcotics—although there was a major industry-friendly loophole: “The provisions of this Act shall not be construed to apply to the sale, distribution, or giving away, dispensing, or possession of preparations and remedies which do not contain more than two grains of opium, or more than one-fourth of a grain of morphine, or more than one-eighth of grain of heroin, or more than one grain of codeine, or any salt or derivative of them in one fluid ounce, or, if a solid or semi-solid preparation, in one avoirdupois ounce, or to liniments, ointments, and other preparations which contain cocaine or any of its salts or alpha or beta eucaine or any of their salts or any synthetic substitute for them,” reads the act. “Provided, that such remedies and preparations are sold, distributed, given away, dispensed, or possessed as medicines and not for the purpose of evading the intentions and provisions of this Act.”


The Harrison Act was far from a reactionary, authoritarian crackdown. Rather, it was the essence of progressive reform. Its purpose was to regulate a chaotic market in the name of public health and the common good. It was passed by a Democratic Congress and signed by a Democratic president. But the act did come at a time when Americans readily gave up their civil liberties in the name of the war effort. The infamous Espionage Act was passed in 1917, banning “disloyal” speech and leading to the imprisonment of socialist presidential candidate Eugene V. Debs.


World War I impacted the American drug market in other ways, too. First, the global conflagration disrupted drug trade routes and diminished supply. Second, prohibitionist sentiment merged with nationalist fervor to promote the idea that sobriety was a way to strengthen the nation. Xenophobia played a major role. Anything German was despised: Sauerkraut was renamed Victory Cabbage, and beer fell out of favor. A 1918 New York Times editorial exemplifies the nexus of the period’s anti-drug and anti-German attitudes: “Into well-known German brands of toothpaste and patent medicines—naturally for export only—habit-forming drugs were to be introduced; at first a little, then more, as the habit grew on the nonGerman victim and his system craved ever-greater quantities. Already the test had been made on natives in Africa, who responded readily; if the German Staff had not been in such a hurry German scientists would have made their task an easy one, for in a few years Germany would have fallen upon a world which cried for its German toothpaste and soothing syrup—a world of ‘cokeys’ and ‘hop fiends’ which would have been absolutely helpless when a German embargo shut off the supply of its pet poison.”


The 1916 congressional elections brought a wave of temperance candidates to Washington. The Eighteenth Amendment, the first addition to the U.S. Constitution to restrict rights rather than expand them, was passed the next year and ratified in 1919. Just a few years after its passage, the Harrison Act was being used to prosecute doctors and pharmacists who supplied narcotics to addicts. Several medical professionals were locked up in high-profile cases that sent the message that the feds were serious.


Pharmaceutical companies cooperated by opening their books to investigators, though a 1918 committee appointed by the secretary of the treasury determined that an extensive, well organized illicit drug trade had arisen in response to tightening restrictions. The Federal Bureau of Narcotics’ first major crackdown came in the early ’20s, when opiate use had started to rise. The invested more in policing efforts, and federal arrests jumped from fewer than 3,000 in 1921 to more than 7,000 in 1925.


The feds claimed success: The bureau did several nationwide surveys purporting to show a significant drop in narcotic use, with the number of American addicts down to as few as 20,000 by the end of the ’20s. Drug historian David Courtwright, however, filed a Freedom of Information Act request and got his hands on the surveys and related memos.


The stats turned out to be made up.


Given the controversial nature of the expansion of federal powers needed to regulate drugs, the government had strong incentive to show that its new drug laws were working. Not coincidentally, the fabricated numbers show a big drop. Courtwright also found a private memo in which Bureau of Narcotics Commissioner Harry Anslinger himself confessed that the figures were all bogus. A top Treasury Department official, Stephen B. Gibbons, called them “absolutely worthless.” Courtwright and others have taken a look at arrest data, hospitalizations, treatment-center records, and other sources and concluded that opiate use was generally steady in the United States until around 1940.


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