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Tobacco regulation: autonomy up in smoke?
  1. C R Hooper1,
  2. C Agule2
  1. 1
    Philosophy Department, King’s College London, London, UK
  2. 2
    King & Ballow Law Offices, Nashville, Tennessee, USA
  1. Dr Carwyn Rhys Hooper, Philosophy Department, King’s College London, Strand, London WC2R 2LS, UK; hoopercarwyn{at}googlemail.com

Abstract

Over the past few decades, “Big Tobacco” has spread its tentacles across the developing world with devastating results. The global incidence of smoking has increased exponentially in Africa, Asia and South America and it is leading to an equally rapid increase in the incidence of smoking-induced morbidity and mortality on these continents. The World Health Organization (WHO) has tried to respond to this crisis by devising a set of regulations to limit the spread of smoking, and many countries have bound themselves to follow the WHO’s guidelines. This article provides an overview of these regulatory measures and the authors attempt to defend them from the perspective of liberty and autonomy. Their motivation is to countermand any attempt by the tobacco industry to attack the regulations on the grounds that they infringe the liberty rights of producers and consumers. It is also argued, however, that a blanket ban of the production, sale and consumption of tobacco cannot be justified on the grounds of autonomy alone.

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The incidence of smokers in the developing world has increased exponentially over the past few decades and is now approaching epidemic proportions.1 This momentous change has come about for one main reason: “Big Tobacco” has moved in. Phillip Morris, RJ Reynolds, British American Tobacco and other large tobacco companies have been targeting the emerging markets of the developing world for years and it is these companies that are primarily responsible for driving up the numbers of smokers in poor countries.2 3

The World Health Organization (WHO) stepped in a few years ago to try to contain the contagious spread of tobacco. To this end, the WHO drafted a tobacco control treaty in 2003 and then published a special report on tobacco control in 2008.4 5 Both the treaty and the report set out a series of regulations to control the tobacco industry, and in this article we aim to show that these regulations can be defended by appeal to the principles of autonomy and liberty. Our motivation for defending the regulation in this way is simple: tobacco companies may appeal to liberal principles to defend the liberty rights of consumers to purchase their products without regulation.6 This appeal to freedom to oppose regulation fails, however, because real freedom (understood as “critical autonomy”) is enhanced rather than limited by regulation.

Now this latter claim stands in need of some defence, because it may seem paradoxical to claim that regulation, which invariably involves state interference in the voluntary transactions of producers and consumers, actually increases rather than decreases people’s autonomy. However, we will argue in the third section of this paper that autonomy involves far more than the simple ability to make choices for oneself, which means that simply letting people engage in unregulated transactions will not protect their critical autonomy. Rather, regulation is needed to set up and maintain the conditions necessary for critical autonomy to flourish.

SMOKING, DISEASE AND STATISTICS: BIG TOBACCO’S METASTASIS INTO THE DEVELOPING WORLD

The association between smoking and disease has been well known for over half a century.7 Tobacco is a risk factor for six of the eight leading causes of death; it causes at least 10 different kinds of cancers; and it is implicated in the development of a number of serious respiratory and cardiovascular diseases.8 9 Furthermore, an estimated 100 million deaths were caused by tobacco in the 20th century and if current trends continue a billion more people will die of tobacco-related diseases in the 21st century.8

The global distribution of smokers, meanwhile, has changed rapidly over the past few decades. In the developed world there has been a steep decrease in the number of smokers, while in the developing world there has been an explosive increase in the number of tobacco users.10 Indeed, of the 1.8 billion smokers worldwide, around 84% live in the developing world, and over 70% of smoking-related deaths now occur in poor rather than rich countries.11 12

This change in the distribution of smokers is deeply worrying. Smoking tends to kill people at the height of their productivity and thus causes substantial economic hardship in poor countries.12 Smoking also causes a range of chronic diseases that place substantial strains on healthcare resources. Poor countries cannot cope with this increased pressure, as they are already overtaxed by an inequitable distribution of the global disease burden. Thus, the globalisation of smoking will make the worst-off members of our global society even more badly off than they already are.

COUNTERATTACK: THE POLICIES OF VICTORY

In 2003, the World Health Assembly adopted the WHO Framework Convention on Tobacco Control.4 This tobacco control treaty was the first global treaty attempting to regulate the tobacco industry, and it has now been signed by 168 states, making it the most widely accepted in UN history.4

The treaty set out a programme to reduce the number of smokers worldwide by reducing tobacco supply and demand. In particular the treaty advocated preventing sales to minors; banning smoking in public places; providing education aimed at increasing public awareness about the dangers of smoking; regulating tobacco marketing and advertising; and taxing tobacco products to reduce demand.4

In 2008, the WHO published another report, called the MPOWER report, which supplemented the original treaty by advocating the implementation of six cost-effective solutions previously shown to be highly successful in reducing tobacco use.5

Importantly, both the treaty and the report aim to curb the spread of smoking through regulation. This inevitably means that the WHO’s recommendations will come under fire from liberals, libertarians and tobacco executives who will decry paternalistic state interference in the lives of citizens. However, we argue that that these regulations, which we outline in the next section, can be justified even on liberal grounds.

A LIBERAL DEFENCE OF TOBACCO REGULATION

Liberals are committed to some form of Mill’s harm principle, which states that interference in someone’s affairs is justified only if it prevents harms to others, never for paternalistic reasons.13 Of course, smoking can cause harm to other people, but it does not always do so, and therefore a blanket ban is unacceptable.

However, though total prohibition cannot be defended from a liberal position, the kind of partial regulation of the tobacco industry advocated by the WHO can be defended from such a perspective. This is possible because some regulation is required to properly protect people’s higher-order autonomy.

This may seem a surprising claim, because autonomy is commonly understood as the ability to make one’s own decisions about what to do and how to do it. Given this understanding, it makes sense to argue that regulation can only interfere with people’s freedom to choose. However, although we accept that the ability to choose for oneself is necessary for autonomy, we also suggest that it is not sufficient for higher-order autonomy. The point is that people who have the ability to make their own decisions, but who do not possess other important capacities, will achieve only an “uncritical”, or first-order, type of autonomy.14

In order to achieve “critical”, or second-order, autonomy people must certainly be able to make their own decisions, but they also need to have access to relevant information so that they can make informed decisions; they need to achieve a basic level of intellectual maturity so that they can come to some kind of reasoned decision; and, finally, they need to be able to reflect upon their first-order desires and be able to act upon their second-order desires. Second-order desires are preferences about first-order desires, and our claim is that people can be truly autonomous only if they can decide, at a “higher” level, whether to follow or to banish their more primitive preferences. Following one’s first-order desires is not enough; control over one’s first-order desires is also crucial for critical autonomy. It could also be argued that people can really achieve full critical autonomy only if they have the added ability to question and modify the contextual rules within which choices are made.14

Given this more extensive account of autonomy, it should be clear why some regulation can be defended from a liberal point of view. Government regulation is needed to ensure that people’s critical autonomy is suitably protected and nurtured. If the free market reigns supreme, people may well achieve some basic or uncritical level of autonomy, but they will not achieve the fuller kind of autonomy that most liberals care about.

With this in mind, we can now examine some of the WHO’s specific regulatory suggestions to see how these contribute to the protection and nurturing of people’s critical autonomy. However, we should first note that all of the regulatory measures discussed below could be defended by a general, autonomy-based, argument, because tobacco products contain an addictive substance. The key point is that many smokers have second-order desires not to smoke, but they are unable to act on these desires because they have an overpowering first-order desire to smoke. This overpowering desire is generated by nicotine and there can be no doubt that this addictive substance frustrates people’s ability to act on their second-order desires. This matters because, as we have argued above, critical autonomy cannot be achieved unless people have the capacity to act on their second-order desires. Thus, the addictive nature of tobacco provides the ammunition required for a quite general autonomy-based argument in defence of all tobacco regulations.

Regulation on the sale of tobacco to children

The WHO argues that governments and tobacco companies alike have a duty to ensure that children do not get access to tobacco. The autonomy concern arises here because children do not have the capacity to make informed decisions about whether they wish to engage in a risky, expensive and potentially life-threatening activity. Nor, indeed, do they have the capacity to understand the nature of addiction. Of course children have the ability to make their own choices, but, as we have argued above, this does not mean that they have the intellectual maturity to make critically autonomous choices. Thus, in order to protect their future autonomy, they must be prevented from smoking until they become adults.

However, a blanket ban on the sale of tobacco to children will be insufficient to protect these autonomy interests, because no such law is likely to be very effective. Thus, further measures might be needed. For example the sale of sweets, snacks and toys in the form of tobacco could be prohibited, as could the sale of individual cigarettes and the distribution of free cigarettes to minors.4

The impact of these regulations on the autonomy of other smokers and potential smokers is limited. Adults may find themselves having to offer some proof of age in order to purchase cigarettes (especially if they are young adults), and they may be required to purchase a pack of cigarettes instead of purchasing single cigarettes. However, these restrictions will put only the slightest of stumbling blocks in the path of an adult who wishes to smoke.

Regulation on smoking in public places: protecting others

A ban on smoking in public places appeals to concern about the serious health risks posed by passive or second-hand smoking to third parties who may not have consented to be exposed to the smoke. However, we cannot prohibit every activity that poses a risk to others in the absence of consent, because many every-day activities pose such a risk. What is more, garnering consent for everyone who might be exposed to the risk is often incredibly expensive and in some cases it is impossible (perhaps because the potential exposure class cannot be usefully identified in advance).15

The autonomy critique of smoking bans is usually that, if such bans were desirable, then the market would bring them about. However, there is a host of reasons why markets may not operate perfectly, especially with regard to tobacco. For example, many members of the public may under-appreciate the harms of secondary smoke inhalation and so may unintentionally risk significant long-term health costs in order to garner relatively moderate short-term wage gains. Though such a trade-off is not necessarily irrational, if the market participants have imperfect information, their choices will not serve their reflective interests. Permitting a market failure is not respecting autonomy. In the context of a market failure, perhaps the best way to respect autonomy is to attempt to discern what the result of a perfectly functioning market would be and then to implement that result. It is certainly plausible that a perfectly functioning market would yield predominantly tobacco-free public spaces. That mistakes could be made in the course of this process does not mean that it is not autonomy-enhancing.

There are two negative impacts on autonomy posed by such regulation. First, those individuals who wish to work, live or participate in an environment where tobacco smoke is permitted will be denied that choice. This may seem like an unlikely choice, but if, for example, more alcohol is consumed when tobacco smoking is permitted, hospitality employees might prefer to work in tobacco-permitting establishments in order to receive a greater income. If the market failure argument is compelling, however, one side or the other will have to give way, and aggregate measures of autonomy are fraught with difficulty. Second, if bans on public smoking become the norm, then public smoking bans may approach a total smoking ban in effect.

Regulation on the marketing and advertising of tobacco

The WHO also argues that tobacco companies should be prohibited from advertising their products through direct advertising or through sponsorship. The tobacco companies’ business can survive restrictions on marketing to children and restrictions on smoking in certain public places. Nevertheless, a blanket ban on advertising and sponsorship is likely to severely restrict the companies’ ability to market and distribute their wares. However desirable this might be from a public health standpoint, preventing the tobacco companies from marketing their products is also preventing their potential consumers from making their own decisions about consuming tobacco.

So, whether this restriction can be justified on purely liberal grounds is unclear. There is no question that governments can prohibit misleading advertising and that they can require tobacco advertising and cigarette packaging to contain overt references to the addictive nature and health risks of tobacco. Likewise, governments can proscribe advertising that might appeal to children. These restrictions can be defended by appeal to the autonomy of potential smokers, because each measure ensures that those who smoke are able to make an informed choice about doing so.

It could also be argued that more stringent restrictions are justifiable on the grounds of autonomy. For example, a case could be made in favour of banning all tobacco advertising because advertising undermines the autonomy of people whose real autonomy is already being subverted by the addictive nature of nicotine. We have already noted that the addictive nature of nicotine provides a general defence of all tobacco regulation on the basis of autonomy. However, this argument has special resonance in the case of advertising precisely because advertising has the specific ability to further undermine rational choice.

Taxing to reduce consumption

The WHO also recommends taxing tobacco in order to reduce consumption. In general, taxes have a complicated relationship with autonomy. The popular response is to note that taxation represents government arrogation of the freedom to determine what to do with private money. While that complaint has a kernel of truth, it is often predicated upon the assumption that the greatest freedom would be the least government interference—that is, the notion that we have the most freedom if the government takes none of our resources. This, however, is not the case. In the absence of a properly functioning government of some form, there would be no security to enable private citizens to make use of the resources at their disposal, and properly functioning government requires taxation. While taxation may reduce the taxpayers’ autonomy, it is often a necessary component of programmes that, on the whole, increase autonomy.

How, then, are we to understand the taxation of tobacco? We should look to autonomy-increasing programmes of which taxation is a necessary component. If the money is used to fund educational initiatives that increase public awareness of the dangers of smoking, to set up programmes to help tobacco addicts quit or to enforce tobacco regulations, then the loss of taxpayer autonomy may be offset by the increase in autonomy caused by those policies, as discussed earlier. Moreover, although such programmes could probably be funded by general taxation spread over the entire population, tobacco-specific taxation allows the taxpayers a greater degree of volition in the matter.

Taxation can also be used to directly dissuade people from using tobacco. If cigarettes are more expensive, fewer people will smoke, and some who continue will smoke less.16 This use of taxpayers’ money seems harder to justify from the liberal point of view in light of the harm principle. At least some smokers are informed, competent adults, and their ability to smoke as they elect is undeniably restricted by such taxation.

Two responses can be made to this point. First, taxation to dissuade people from smoking may help to offset the threat to autonomy engendered by the addictive nature of nicotine. This, of course, would involve a delicate balancing act between protecting people’s freedom to smoke and protecting their freedom to give up smoking when they are addicted. Consequently, this argument could only be used to defend limited taxation to dissuade people from smoking.

Second, the standard response to this argument is that smoking has tremendous negative externalities, such as the social cost of disease, and forcing others to bear the cost of those externalities impinges upon their autonomy. Hence, taxing tobacco in order to reduce use does not violate the harm principle, as the interest being served is not that of the smoker, but that of the rest of society forced to bear some of the costs of the smoker’s choices. For example, when a worker contracts a tobacco-related illness, he may be forced (via insurance and healthcare policies) to bear his personal healthcare costs. However, other people will be forced to bear lost productivity costs. Similarly, the costs of the regulatory scheme to address tobacco and the social costs of the diversion of medical research from other ailments to tobacco-related problems are borne socially. Addressing these social burdens via taxation protects the autonomy of those who would otherwise be forced to bear the costs of smokers’ personal decisions.

The externality argument is a powerful one, and although many find it persuasive in the context of tobacco regulation, it is not clear that an argument solely from autonomy concerns can provide a reasoned distinction between risk-causing activity we wish to regulate (eg, tobacco use) and risk-causing activity we think should be left free of regulatory burden (eg, playing football in a park).15 Where the line should be drawn is not self-evident, but we are confident that tobacco regulation will fall on the “right” side of this line.

CONCLUSIONS

The WHO’s regulations are aimed at stopping the spread of Big Tobacco through the developing world. We have argued in this paper that these regulatory policies can be defended on the grounds of autonomy because regulation can ensure that only competent, rational and informed adults become smokers. Our argument neuters the ability of tobacco companies to attack the WHO’s suggestions by appealing to the rights of consumers to consume what they wish. Of course, there are limitations to the legitimate regulation that the international community can impose on the production, sale and consumption of tobacco if the defence of the regulation is based on autonomy alone. Nonetheless, we hope that we have helped arm the WHO’s tobacco control regulations against Big Tobacco’s potential libertarian counterarguments and we hope that our arguments encourage national governments to continue their regulatory fight against the tobacco epidemic.

REFERENCES

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Footnotes

  • Competing interests: None declared.

  • Provenance and Peer review: not commissioned; externally peer reviewed

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