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Commentary
Double standards and arguments for tobacco regulation
  1. Jessica Flanigan
  1. Correspondence to Jessica Flanigan, Leadership Studies and PPEL, University of Richmond, 28 Westhampton Way, Richmond VA, 23173; jessica.flanigan{at}gmail.com

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Several ethicists recently defended regulations that aim to reduce the harm associated with nicotine and tobacco use. Halliday argues for smoking licences.1 van der Eijk endorses strict limits on access to electronic nicotine delivery systems (ENDS)2 and Grill and Voigt defend a complete ban on the sale of cigarettes.3 These proposals are supported by principles that are widely shared by public health officials and many philosophers. For example, Goodin,4 Conly,5 Proctor,6 Hooper and Agule7 and Wilson8 all express support for smoking bans or cigarette taxes.

It is uncontroversial that smoking is a very unhealthy practice. Smoking limits a person's life expectancy by a decade on average, causes chronic diseases and is often a choice that people come to regret.3 Smoking is the largest preventable cause of death in the world, which is why Proctor calls cigarettes a public health catastrophe.6 But it does not follow from the fact that smoking is enormously bad for people's health that prohibitive tobacco and nicotine laws are justified. Though criticism of the tobacco industry is warranted,6 I argue that policies that amount to coercive paternalism are nevertheless unacceptable and only a non-prohibitive approach to smoking cessation is justifiable.

Philosophers rely on four double standards when arguing for prohibitive antismoking policies. First, they hold addictive nicotine products to more restrictive standards than other threats to individual autonomy. Second, they hold the tobacco industry to more restrictive standards than other potentially harmful industries. Third, they hold public health officials to weaker moral standards than they would apply to other citizens. Fourth, they hold their own proposals to standards of ideal enforcement while citing the non-ideal effects of a non-prohibitive system. Many of the arguments in favour of restricting tobacco and nicotine products also overlook less prohibitive ways of preventing harmful use.

Rejecting these double standards supports the case for a non-coercive approach to tobacco and nicotine use. Say we hold addictive nicotine and tobacco products to the same standards as other products and hold public health officials to the same standards that we would apply to other health professionals or ordinary citizens. Since there are other ways to prevent nicotine and tobacco use, proponents of prohibitive regulations encounter a dilemma. On one hand, they may maintain their support for prohibitive nicotine and tobacco regulation and also accept intuitively unacceptable government coercion in other areas of consumer choice. Or, one may hold nicotine and tobacco products to the same standards that apply to other industries and hold public health officials to the same standards that apply to medical professionals and ordinary citizens, which would require that they abandon their support for coercive tobacco and nicotine regulation in favour of less prohibitive approaches. The first option would unacceptably impede citizen's autonomy and diminish well-being. Therefore, public health officials and philosophers should rethink their support for prohibitive tobacco and nicotine regulations.

Threats to autonomy

Prohibitive policies, such as licensing requirements for tobacco products, prescription requirements for ENDS, and bans on the sale of cigarettes limit the autonomy of potential users. However, proponents of these policies generally argue that the value of autonomy is on balance a consideration in favour of these policies. The autonomy-based argument in favour of prohibitive approaches focuses on four features of tobacco use. First, poor health and limited life expectancy constrain people's autonomy. Second, all proponents of a prohibitive approach note that tobacco products are addictive and that addiction is in some ways a threat to autonomy as well. Third, many smokers regret their choice to smoke, want to quit and some even support policies that would prohibit the sale of cigarettes. Fourth, children are not autonomous, and prohibitive restrictions on access to tobacco and nicotine would protect this vulnerable population. Therefore, they conclude that while respect for consumer choice is a value, it is outweighed by other autonomy-oriented considerations.

Consider first the argument that poor health and limited life expectancy undermine autonomy, put forward by several proponents of coercive regulation.3 ,4 ,7 Though poor health and limited life expectancy are pro tanto barriers to choosing among the widest possible range of options, they may be part of a set of autonomous choices. In any case, not all conditions that foreclose future autonomous choice undermine autonomy. In medicine for example, a person may autonomously choose to grant health professionals the authority to use his or her tissue samples or medical information in ongoing research projects without continued authorisation.9 More generally, the choice to take out a long-term mortgage, enlist in the military, enrol in medical school, marry, have a child, pursue internet fame early in one's life or move to a small town may constrain a person's options going forward. But people are generally entitled to make these choices even if they limit their options on balance over the course of a life.

In these cases, officials tolerate and even encourage permanent and life-changing choices either because they judge that the short and long-term benefits can justify the loss of future options or because they judge that the choice is so intimate and personal that it merits strong protections. In contrast, people do not hear many stories of smokers looking back on the decision to smoke and saying it was worth it, nor is smoking an intimate and personal choice. On the other hand, at least some people predictably regret buying homes, enlisting, enrolling in medical school and pursuing early online notoriety, and these are not very intimate and personal decisions. And some smokers (such as those who do not develop smoking-related diseases) may not regret their decision to smoke. So the asymmetry between smokers' choices and other choices that limit choices in the long run requires further justification.

Arguments to this effect also prioritise the promotion of autonomous choice over the duty to respect people's autonomous choices. As Grill and Voigt acknowledge, cigarette bans would disrespect many smokers and non-smokers by limiting their options without their consent.3 Yet they judge that the benefits associated with promoting well-being, autonomous capacities and equality can justify these disrespectful policies. In some cases, however, these other gains cannot justify disrespectful limits on a person's right to choose. For example, even if active government censorship or state-sponsored surveillance promoted well-being, a greater range of options for citizens and equality on balance, most liberals would find these policies objectionable nevertheless. One may reply that the freedom to smoke cigarettes is not as significant as the freedom to write a blog post or run online searches because smoking is not important for a person's ability to be the author of his or her own life.8 But again, further justification is necessary to make this case. Many smokers would likely find it easier to refrain from publishing their opinions than quitting smoking, would tolerate government surveillance better than a cigarette ban and may think that the daily ritual of smoking is important in their lives.

A second argument in favour of bans is that nicotine is very addictive, addiction impairs autonomy, so therefore effective limits on access to nicotine products could strengthen autonomy in some ways.3–5 ,7 For example, to further make the autonomy-based case for a cigarette ban, Grill and Voigt also distinguish between internal and external autonomy, where internal autonomy is a person's ability to choose without psychological impediments such as ignorance, bias or illness and external autonomy is a person's ability to choose without interference from other people.3 Though a cigarette ban would impede a person's external autonomy, it may promote internal autonomy for smokers who are addicted. So on balance, Grill and Voigt suggest that a cigarette ban might promote autonomy overall even if it is incompatible with external autonomy.

Grill and Voigt are admirably even-handed in their discussion of the relationship between nicotine addiction and autonomy,3 but other proponents of prohibitive policies overstate the ways that addiction impairs autonomy. For example, Grill and Voigt mention that Goodin's and Conly's depictions of addicts as non-autonomous either classify most other people as non-autonomous or they invalidly assume that the threats to autonomy involved in addictive behaviour are so great that they can justify disrespecting people's choices.3–5 Furthermore, empirical studies of addiction suggest that addicts can give meaningful consent to use their drugs of choice and that addictive drug use is neurochemically similar to other addictive behaviour, such as overeating.10 Hart's research suggests further that addictive behaviours that appear irrational may be rational responses to limited opportunities for pleasure and satisfaction.11

As further evidence for the claim that addiction can be a rational choice, consider the mechanism by which penalties, sales taxes and licensing proposals are intended to work.1 It is only because addicts' decisions are sensitive to prices that increasing the cost of cigarettes can reduce use.12 If addicts are truly non-autonomous, then they would be unable to resist smoking when they had incentives to quit, yet many arguments in favour of policies that use penalties to encourage people to quit are often justified on the grounds that addicts are not sufficiently autonomous with respect to their choice to smoke.

A third autonomy-based argument in favour of prohibitive regulation is that smokers themselves express the will to quit, say that they regret their earlier choices and may support prohibitive polices. Grill and Voigt suggest that these considerations blunt the force of autonomy-based objections to cigarette bans.3 On the other hand, smoking is stigmatised in most developed societies, which might cause addicts to report that they would prefer not to smoke even if their behaviour indicates that they would prefer to smoke. These respondents may also prefer that smoking be destigmatised to quitting. Yet this is not to cast doubt on the claim that many addicts likely do regret that they started smoking and wish to quit, but even then considerations of autonomy would favour providing access to cessation services foremost, in contrast to prohibitive policies. Addicts who wish to strengthen their internal autonomy may also opt into a smoking ban by placing their names on a ‘do not sell’ registry, which would allow the two-thirds of addicts (according to Grill and Voigt), who do not support a cigarette ban, to avoid policies that coerce them without their consent.

Fourth, proponents of prohibitive policies note that even if people were required to respect the autonomous choices of those who are capable of making autonomous choices, not all people are autonomous. For example, Halliday,1 van der Eijk2 and Grill and Voigt3 are all concerned by adolescent access to nicotine and tobacco products. Say we grant the assumption that people under age 18 or 21 are not capable of freely deciding whether to use tobacco products or ENDS. If so, then perhaps public officials should increase the penalties for providing tobacco to minors and take greater steps to prevent underage smoking. In theory, parents may even be required to quit smoking in their homes or cars to retain their parental rights,13 though I doubt such a policy could ever be implemented in a way that did not have worse consequences for children on balance.

But these considerations would not justify paternalistic limits on childless adults' consumption choices. Here again, proponents of regulation hold tobacco users to a double standard. Most other dangerous products are not banned; rather, parents and vendors are responsible for preventing non-autonomous adolescents from using them. For example, many countries and US states prohibit minors from using tanning beds, but they are not banned outside of some parts of Australia. So those who make the case for prohibiting or restricting access to tobacco and nicotine products for the sake of adolescents must explain why these dangerous products require an especially prohibitive approach.

Tobacco and industry

Another double standard deployed by proponents of prohibitive tobacco and nicotine regulation relates to industry regulations. The public has a justifiably low opinion of the tobacco industry in light of its history of fraud, concealing the harmful effects of its products and deceptive marketing.6 Nevertheless, policies that prohibit the sale or marketing of tobacco or ENDS would not be justifiable for any other product and ought to be rejected for tobacco and nicotine products too. Furthermore, restrictions on the use of tobacco and nicotine products in public spaces violate the rights of business owners. In addition, licensing schemes and paternalistic taxation of cigarettes and ENDS either overgeneralise to other unhealthy products or fail to justify taxation when non-coercive alternatives exist.

Tobacco and nicotine vendors are subject to restrictions that do not apply to other vendors, even those who advertise and sell dangerous products. For example, it is illegal to sell cigarettes online in at least nine member states in the European Union (EU), in some US states and in Canada. Most countries also enforce marketing restrictions on tobacco products such as on television, radio, billboard or magazine advertising bans and prohibitions on advertisements that use cartoons. The EU and WHO maintain that tobacco advertising should be banned entirely for the sake of public health.i These policies exceed the truth in advertising requirements that justify labelling guidelines. Though commercial speech protections vary by country, in the USA few other product or service vendors are subject to content-based restrictions on speech that advocates for lawful conduct, even when marketing restrictions would improve public health.ii Insofar as tobacco advertising aimed to encourage minors to use tobacco, advertising would not advocate for lawful conduct and restrictions would be justified. But marketing restrictions that prevent vendors from providing truthful information about their products to consenting adults impose barriers to informed decision making. In these ways, tobacco products are subject to a double standard when it comes to commercial speech and marketing; restrictions impede on the autonomy of vendors and consumers.

Many countries also ban smoking in public spaces, including privately owned businesses. Arguments for bans on tobacco use in public places are also justified by appeal to a double standard. Proponents of smoking bans argue that public smokers harm other patrons and employees in places that allow smoking.7 For this reason, van der Eijk also supports a ban on ENDS use in public spaces on the grounds that long-term evidence about passive inhalation of ENDS vapour could find that it is harmful.2 These considerations may justify requirements that business owners disclose the risks of secondhand smoke (similar to sanitation warnings posted in restaurants), but could not justify smoking bans for all public spaces. As long as employees and non-smoking patrons consent to work or patronise a business that allows smoking, though they are potentially injured by secondhand smoke, their rights are not violated, just as a person's rights are not violated if he or she visits a smoker's home.

Like many non-smokers, I dislike secondhand smoke and I try to avoid exposure in light of the smell and the risks. Were smoking in public spaces permitted, many business owners would have good reason to prohibit smoking on their property, especially if they pay part of their employees healthcare costs. Employees who chose to work in smoky environments may receive higher wages as compensation for the occupational hazards associated with their workplace, or perhaps such workplaces would simply employ smokers who are more accepting of secondhand smoke exposure. Either way, businesses that allow smoking should be held to the same standards as other professions that expose their employees or patrons to risks. As long as workers are permitted to take jobs as commercial fishermen, football players, ranchers, miners and roofers, laws that prevent bartenders from working near secondhand smoke are difficult to justify for the sake of workplace safety. And as long as patrons are permitted to pay for the experience of motorcycling, base jumping, skydiving, white water rafting, scuba diving and sailing, laws that prevent them from drinking at a smoky bar are difficult to justify for the sake of consumer protection.

Cigarettes and ENDS are also treated differently from other products because they are taxed at a higher rate. McLachlan calls these taxes authoritarian because insofar as their purpose is to prevent people from becoming addicted to nicotine, they tax smokers for the benefit of non-smokers.14 By this criteria, Halliday's licence proposal is also authoritarian because it aims to discourage non-smokers from smoking by imposing a fixed cost on smokers.1 But these policies are also paternalistic insofar as they benefit smokers when they to encourage them to quit smoking.

And if the goal of these policies is paternalistic, then either these arguments for paternalism would justify taxes on other unhealthy purchases such as cable television or fast food or they would not justify paternalistic cigarette and ENDS taxes. Halliday replies that cigarette taxes and licences would not justify taxes or licences for other unhealthy purchases because public officials can address other vices by facilitating access to healthier alternatives like gym memberships and healthy food.1 Yet part of the reason that people choose to watch television or eat fast food is not because healthier alternatives are inaccessible, it is because television is more entertaining than exercise and fast food is delicious. Furthermore, public officials can also address the harms of smoking by making ENDS or caffeine more accessible, so if paternalistic licences and taxes are unjustifiable for products that can be discouraged in other ways, then they are unjustifiable for cigarettes and ENDS too.

Public health and medical autonomy

A third double standard used to support prohibitive tobacco and nicotine regulations applies to public health officials, who are granted a heightened degree of permission to interfere with consumers and suppliers that demands further justification. Coercive paternalistic interference with adults' autonomous choices is generally very difficult to justify. For example, coercive paternalism by physicians is unacceptable, even if physicians could effectively promote patients' health and well-being by coercing them; yet the same arguments against paternalism by physicians apply with equal force against public health paternalism.15 Furthermore, there are good reasons to doubt that public health officials are well placed to promote the health and well-being of all citizens (how many public health officials smoke?). Officials who craft policy necessarily must make decisions for people who are very different from them, and they have institutional incentives to adopt prohibitive policies. Public health paternalism is especially difficult to justify given that socially and economically disadvantaged people are more likely to smoke, so public health officials risk imposing disparate burdens on populations that are already disadvantaged.3

People make many unhealthy or imprudent decisions, yet few of these choices are regulated in the way that public health officials coercively regulate unhealthy products like tobacco. Grill and Voigt justify coercive paternalism for the sake of public health on the grounds that a longer and healthier life is uncontroversially good for a person's well-being according to any plausible theory of well-being.3 Yet even if health and longer life almost always improve well-being, in order for these considerations to justify coercive paternalism one must also show that public health officials and philosophers are better judges of what will promote a person's well-being than the person who is subject to coercion and that their judgement should be granted authority in the law.

Grill and Voigt conclude that “in the aggregate the negative effects of smoking are likely much larger than its positive effects.”3 This raises the question of why so many people smoke. It is either because they are uninformed about the negative effects on future well-being, because they disagree with the claim that smoking on balance reduces well-being or because they do not value future well-being. The first explanation would only justify informing people about the negative effects of smoking for well-being, not coercive paternalism. The second and third explanations would require proponents of coercive paternalism to show that people are mistaken about their own judgements of well-being or of the value of future well-being. In general, people are in the best position to make judgements of their own well-being. For example, a person who is aware of the risks of smoking may disagree that smoking is on balance bad for well-being and start smoking in order maintain friendship networks or be accepted by a new social group. At least in some social circumstances, his or her decision may be reasonable. In any case for these considerations to successfully justify coercion, one must explain why smokers' judgements about the effect of smoking on individual well-being are systematically mistaken but public health officials' judgements are not mistaken and should be taken as authoritative.

Goodin argues that public health officials do have an epistemic advantage in virtue of their detached perspective, which is removed from the lived experiences of those who are subject to a policy.16 Public officials are more medically literate and they may also be less short-sighted and less subject to wishful thinking about people's ability to avoid the harmful effects of smoking. However, even granting that public officials are less vulnerable to the cognitive biases of smokers, for all the advantages that public officials have in virtue of their expertise and impartiality, they are also vulnerable to systematic biases of their own. For example, just as smokers may be overly optimistic that they will not suffer the harmful effects of smoking, public officials may be overly optimistic that their choice to coerce people will not be harmful on balance. Public officials also have incentives to maintain democratic support and to avoid bad publicity, which may cause them to enforce policies that disproportionately burden marginalised or stigmatised groups (such as smokers) and to display a low tolerance for risky behaviour.

Public health officials are also responsible for promoting good health outcomes, which may cause them to excessively focus on health at the expense of other aspects of well-being. And officials have financial incentives to enforce bans, require licences or collect taxes. So though Halliday claims “government officials…have no financial incentive to maintain tobacco sales,”1 law enforcement and local officials may have financial incentives to enforce prohibitive policies that generate revenue. These biases are especially problematic insofar as smokers are more likely to be multiply disadvantaged3 because the biases of public officials may be influenced by other oppressive or stigmatising attitudes that express disrespect to marginalised communities. Correspondingly, coercive paternalism also expresses disrespectful judgements about people's ability to make decisions for themselves, which could further exacerbate egalitarian concerns about stigma and disadvantage.17

I do not intend for these considerations to discount the claim that smokers suffer from cognitive biases. But public officials have their own biases to contend with. So even if we judge that smokers are poorly equipped to appreciate the costs of smoking, it does not follow that they should be prohibited from smoking in part because public officials are poorly equipped to fully appreciate the costs of prohibitive enforcement.

Perfect and imperfect enforcement

The final double standard held by proponents of prohibitive tobacco and nicotine regulations is that they hold their own proposals to the standards of ideal theory, where their proposed policies are feasible and effectively enforced and citizens comply with the proposals. Yet they justify these proposals by citing the non-ideal elements of tobacco and nicotine use today. For example, there are already laws against selling cigarettes to minors in most developed countries, yet proponents of licensing1 and tobacco bans3 and prescription requirements for ENDS2 cite high rates of adolescent use in favour of further regulation. Once we account for potential barriers to effective implementation and non-compliance, the harmful effects of enforcement in these circumstances may plausibly outweigh the public health benefits. Additionally, those who are concerned with the inegalitarian effects of tobacco use must also take care to account for the inegalitarian effects of any prohibitive policy because such laws are likely to be disproportionately enforced against disadvantaged and marginalised communities who are especially vulnerable relative to law enforcement. Such policies are also especially harmful to the worst off because financial penalties for illegal conduct would comprise a greater proportion of their income and because criminal sanctions are more injurious to people with limited resources.

Ideal theory asks which policies would be justified if they could feasibly be enforced effectively and people complied with them.18 Non-ideal theory asks which policies would be justified given what is known about the difficulties of effective enforcement and non-compliance. As Halliday notes, the distinction between ideal and non-ideal theory is a spectrum, and ethical prescriptions related to tobacco use generally fall at some point between the two poles.1 If all proposals were held to the highest standards of political feasibility, few would pass this test. If people perfectly complied with all laws, less restrictive tobacco regulations may be sufficient to prevent most cases of harmful use.

Though proponents of prohibitive approaches are aware of the failure of existing approaches to tobacco regulation, they generally underestimate the potential hazards of implementing the policies they suggest. For example, Halliday explicitly frames his defence of licensing requirements at the level of non-ideal theory, and he considers the possibility that licensing requirements could encounter problems of non-compliance if people engaged in cooperative purchasing of cigarettes, black markets and cigarette smuggling.1 He replies that many of these concerns about compliance are no worse than concerns about compliance with existing sales taxes and can be addressed through effective sales monitoring and border enforcement. In response to empirical predictions that a regressive licensing system would discriminate against economically disadvantaged people, he argues that this non-ideal concern should be addressed through progressive taxation and redistribution and subsidies for cessation programmes. Yet at the point that the non-ideal case for licensing relies on effective monitoring at the point of sale, border enforcement and redistributive taxation, why not consider whether non-prohibitive proposals could be justified if they were effectively enforced in a context where there was a good deal of political will to help economically disadvantaged communities?

A similar critique can also apply to van der Eijk's proposal for prescription requirements for ENDS.2 van der Eijk proposes strict regulations of ENDS marketing, prohibitions of indoor vaping and prescription requirements on ENDS with the assumption that these policies can be effectively enforced and that public officials can deter ENDS use. Yet these policies may have unintended consequences. For example, prescription requirements may lead some users to believe that ENDS are safe because they are distributed in pharmacies. Limits on access may trigger a black market in ENDS. Without legal indoor vaping more smokers may decide to just stick to tobacco use. Much of van der Eijk's proposal aims to prevent children from becoming addicted to nicotine, but if we assume that van der Eijk is justified in principle even if people might not comply with it, then we should hold existing policies that prohibit minors from purchasing and using ENDS to the same standards.

In contrast, Grill and Voigt's analysis operates at the level of ideal theory. For this reason, concerns about the political feasibility of a ban or the problems associated with enforcing a cigarette ban, especially in marginalised communities, or considerations of non-compliance and black markets are beyond the scope of their analysis.iii I am sympathetic to this ideal theoretic approach, but if their argument is assessed by the standards of ideal theory where people generally comply with a law that is effectively enforced, then I am sceptical that a cigarette ban is the ideal solution. Rather, if it were feasible to effectively educate all consumers about the dangers of smoking and provide widespread access to smoking cessation programmes and if people complied with laws against selling cigarettes to minors, then non-prohibitive policies would be sufficient to help uninformed, addicted, short-sighted or immature smokers, who are the smokers whose choices Grill and Voigt find most problematic. And if we do not discount proposals on account of infeasibility and non-compliance, then insofar as their argument for a cigarette ban is justified by an appeal to the well-being of the worst off there are many other ways to benefit disadvantaged people without subjecting them to coercive bans.

Due to their ideal theoretic approach, Grill and Voigt do not consider the harmful and inegalitarian effects of non-compliance. Black markets in banned substances are associated with violence and crime because property rights in prohibited products are difficult to enforce. Conly does account for the practical dangers of prohibition in arguing for a cigarette ban.5 However, Conly replies that a cigarette ban would be different from previous failed attempts at prohibition because unlike alcohol there is widespread consensus that cigarettes are harmful, and unlike heroin cigarettes are not initially pleasurable.5 But the burden of proof should lie with Conly to establish these claims, especially in light of the historical record of public officials' disastrous attempts to prevent the sale of addictive substances throughout history and the negative health effects of subjecting vulnerable communities to criminal sanctions or the threat of compulsory treatment.19 Partly for the sake of public health, Portugal decriminalised all recreational drugs in 2001 and effectively reduced drug-related harms.20 These considerations suggest that when accounting for political infeasibility, ineffective enforcement and non-compliance, the case for a ban is much weaker.

Proponents of cigarette bans who argue at the level of non-ideal theory should also attend to the inegalitarian effects of a ban, such as the harmful effects of criminal penalties that expose vulnerable citizens to the threat of police interference and subject them to burdensome fines or criminal penalties.21 For example, in New York City it is illegal to sell loose untaxed cigarettes. New York police also have long been criticised for racist law enforcement practices.22 In 2014, a police officer choked Eric Garner to death after attempting to arrest him for selling loose cigarettes.23 Even if a ban on loose cigarette sales would be effectively enforced without disproportionately harming racially marginalised communities in ideal theory, prohibitive policies exacerbate inequality in practice.

One may reply that a cigarette ban need not impose harsh criminal penalties on those who sell cigarettes. But here again the case for a ban encounters a dilemma. If the penalty for selling cigarettes were very high, then it would be excessively punitive towards people who sell cigarettes, resulting in the aforementioned problems of criminalisation and the violence associated with black markets. If officials enforced only very low penalties, then it would not effectively prevent people from selling cigarettes. For these reasons, non-ideal considerations weaken the case in favour of a cigarette ban. And if we hold the case for a ban to the standards of ideal theory, then a ban would not be the best option of all possible policies.

Minimum necessary coercion

In addition to the four double standards deployed by proponents of nicotine and tobacco regulation, some arguments in favour of greater regulation also pose a false dichotomy between the status quo and prohibitive approaches. I have suggested that non-prohibitive policies could address many of the problems that proponents of prohibitive policies cite to justify their proposals. If there are alternative ways to discourage smoking, then coercion should be a last resort. And there are alternative ways. If the goal of tobacco regulation is to promote safe and informed consumer choice, then officials could permit tobacco products but enforce high standards of liability for manufacturers that commit fraud, fail to disclose the harmful known effects of their products or conceal relevant scientific uncertainty. This may require that states enforce greater disclosure requirements for ENDS, but would not justify prohibition. If prohibitive policies aim to promote well-being on balance, then health officials, educators, insurance providers and employers could invest more in awareness and research to ensure that people are aware of the overall effects of smoking, not just the health effects.

More generally, public officials can promote well-being in many ways, and using coercion is morally risky because an official might cause harm or violate a citizen's rights by coercing him or her. So of all the ways to promote well-being, coercive paternalism is especially difficult to justify when there are alternative ways to improve a person's life. For example, officials might instead consider incentive programmes, expanded access to pharmaceuticals, and better supportive services to prevent addiction and to assist addicts. Insurance providers and employers may be permitted to provide monetary rewards to non-smokers who are likely to use fewer healthcare resources than smokers. Instead of banning tobacco products and regulating access to ENDS, officials could also subsidise cessation services for addicts and facilitate addiction registries that enable smokers who support cigarette bans to opt into a targeted ban. Additionally, officials should rethink existing prescription requirements for drugs that aid in smoking cessation, such as antidepressants and nicotine receptor partial agonists such as varenicline and cytisine. Tax incentives could encourage private businesses to prohibit smoking. And since ENDS are much healthier than cigarettes, it may surprisingly turn out that subsidising ENDS rather than imposing costs on ENDS users through prescription requirements would promote the well-being of tobacco users on balance. Some of these proposals are untested and may not promote well-being on balance, but officials should consider these and other non-prohibitive proposals before adopting policies that paternalistically coerce people.

Rethinking regulation

If proponents of prohibitive tobacco regulations cannot justify holding smokers and tobacco vendors to more restrictive standards than other consumers and industries, while holding public officials and prohibitive policies to weaker justificatory standards than other professionals and policies, then two choices remain. Either they must accept that the underlying moral justifications they cite in favour of prohibitive regulation also justify a range of other prohibitive. Or they should reject their endorsement of prohibitive approaches to tobacco and nicotine use in most cases.

One may reply to my argument on the grounds that smoking kills a greater number of people than other products and public health officials are especially well placed to save many lives by preventing people from smoking, so what I am calling double standards are actually acceptable standards of justification. Yet the fact that there are many smokers worldwide does not reduce the force of a smoker's or vendor's claim against interference. This argument would seemingly suggest that a heavy smoker would not be liable to be coerced by public health officials in a society where few people smoked, but that in places with high numbers of smokers, public officials could justifiably coerce him or her, even if his or her own level of smoking and the harms associated with it remained the same. Paradoxically, appealing to the aggregate effects of smoking in order to justify coercive paternalism suggests that as a prohibitive policy becomes more successful in preventing people from taking up smoking, it becomes harder to justify coercing those who do smoke.

So the remaining options are to either apply the justificatory standards that proponents of coercive policies apply to smoking to other policies or to reject coercive polices that apply to smoking. The first strategy is unacceptable. To accept paternalistic taxes, bans, restrictions on speech and laws that prevent private businesses from allowing consenting customers and employees to make risky choices in other domains of consumer choice is to accept excessive limits on personal autonomy. Proponents of coercive policies claim that their proposals would not unduly limit autonomy, but their arguments on behalf of coercion support a set of paternalistic policies that surely would excessively limit individual's economic freedom, freedom of speech and association and freedom to make self-harming decisions.

I therefore conclude that public health officials and philosophers should rethink their support for arguments in favour of prohibitive tobacco and nicotine policies. If we hold tobacco and nicotine policy to the same justificatory standards that we apply to other policies, we should conclude that smokers and vendors are not liable to be coerced and public officials do not have the authority to coerce them in order to prevent the harmful effects of smoking.iv This argument also lends further support to the case against other forms of coercive paternalism such as prescription drug requirements, which I have argued against elsewhere.24

Conclusion

To sum up, I have argued that arguments in favour of prohibitive tobacco and nicotine policies should be held to the same standards that we use to justify coercion in other cases. In general, coercive paternalism is difficult to justify, so it will be difficult to justify in this case as well. These arguments are not intended to minimise or question the enormously destructive effects of smoking or to question policies that prevent smokers from harming bystanders who are unable to consent to the harmful effects of secondhand smoke. Yet the unhealthy consequences of tobacco and nicotine use for smokers cannot justify prohibitive policies without also providing a justification for excessive coercive paternalism in other domains of consumer choice. And though the effects of tobacco products are exceptionally devastating because tobacco is so widely used, proponents of regulation cannot justify prohibitive policies by an appeal to these aggregate considerations. Moreover, arguments in support of coercive regulation must also consider the harms associated with enforcing coercive policies. Smoking is a very dangerous choice, but it is also perilous and morally risky to prohibit or coercively regulate smoking. Therefore, insofar as public health officials aim to discourage tobacco and nicotine use they should hold justifications for tobacco and nicotine policy to the same standards that they apply to other policies. Arguments in favour of non-coercive initiatives and incentive programmes can be justified in this way but arguments in favour of coercive paternalism cannot.

Acknowledgments

I am very grateful for helpful comments from Mark Sheehan, two anonymous reviewers, and Javier Hidalgo. I am also thankful for editing assistance from Elizabeth DeBusk-Maslanka.

References

Footnotes

  • Competing interests None declared.

  • Provenance and peer review Commissioned; internally peer reviewed.

  • i In the EU, see Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products. The WHO Framework Convention on Tobacco Control is a treaty that has been ratified by 180 countries. In a later section, I note that I am in agreement with WHO's call for drug decriminalization. In both cases, I do not doubt WHO's claims about whether a policy would promote public health. But in this case, I argue that public health is not a sufficient reason for restrictions on speech.

  • ii Another notable exception is pharmaceutical advertising, which is regulated in part by the US Food and Drug Administration, which prohibits manufacturers from advertising truthful information about the off-label uses of drugs.

  • iii Grill and Voigt write, “We assume that such a ban would be effective. In the real world, of course, any all-things-considered judgment must be informed by an assessment of a ban's likely effectiveness in different contexts, with due consideration of problems such as smuggled cigarettes and black markets.” Yet Grill and Voigt are focused on ‘the fundamental normative issues’ surrounding a cigarette ban.3

  • iv This argument does not rule out a middle ground approach. One may reply that coercive paternalism could be justified by the same standards that would justify a less coercive tobacco policy. Though I have argued elsewhere that coercive public health paternalism is generally unjustified,15 my arguments in this essay do not rule out the possibility that some coercive tobacco policies could be justified as long as they were held to the same standards as other policies. In any case, such policies would not include the policies that I have discussed so far.

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