Why should we regulate tobacco?
The problem of self-harm
The Senate voted 79-17 yesterday to hand regulatory authority over tobacco to the Food and Drug Administration. Pending passage in the House, the FDA will now have vastly expanded, though not limitless, powers over tobacco. It can issue rulings that reduce nicotine levels in cigarettes or impose chemical standards, but it will not have the capacity to ban nicotine or smoking.
Federal regulation of tobacco has long been a third rail due to the outsized influence of tobacco companies. Despite the seachange in the tobacco industry resulting from the 1998 lawsuits, the federal government has traditionally been reticent to play a major role in legislating against tobacco. The FDA had previously attempted to exert regulatory authority over tobacco, only to be thwarted by a 2000 Supreme Court decision which spelled out the clear need for congressional authority.
While the Senate bill is more the result of political realignment than some kind of cultural shift in attitudes toward tobacco, the underlying justification for government regulation of tobacco has always been hazy. Publicly, officials tend to emphasize the public costs of tobacco consumption. President Obama provided a good example of this reasoning in his public statement, released yesterday:
Each year, Americans pay nearly $100 billion in added health care costs due to smoking.
Although the public cost argument often occupies the foreground, concerns about self-harm cling close behind. Again, from the President’s statement:
Once the legislation is returned to the House for final passage, it will make history by giving the scientists and medical experts at the FDA the power to take sensible steps that will reduce tobacco’s harmful effects and prevent tobacco companies from marketing their products to children.
Yet even in a clear statement about tobacco’s harmful effects, the emphasis is on children, rather than all current or potential smokers.
It would be a mistake to think the President’s language is unintentional or accidental. Regulation of tobacco, like any vice, raises one of the basic questions regarding personal liberty: are we free to harm ourselves?
J.S. Mill, perhaps liberty’s greatest advocate and theoretician, famously expounded what is now called the “harm” principle:
[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.
Mill believes that self-harm may be a good reason to persuade — to beg — someone to give up a particular behavior or habit. Yet our assessment of what is in someone else’s best interest can never justify coercion, by law or by force. Only harm to the community can warrant intervention.
In some form or another, this principle has remained central to our intuitive sense of the bounds of liberty. It’s also why politicians tend to focus on public costs and children when they talk about regulating vice. However much taxpayers must spent on health care due to tobacco consumption is a “harm to others.” In the case of children, the implication is that children aren’t yet able to be the judge of what is or isn’t good for them, and are therefore exempt from liberty’s protection (or, at least, somewhat limited in their free exercise of liberty).
While elected officials have tended to publicly abide by the harm principle with pious devotion when questions of vice are raised, it’s difficult ignore the multiple and often conflicting standards between tobacco and other forms of vice that are subject to more stringent regulation (e.g. alcohol, gambling, gun ownership, etc.). There may well be more ambivalence about liberty than we commonly admit, an ambivalence that allows political considerations to prevail over honest moral deliberation.
–Sam
Related posts:
- Do we have a right to harm ourselves?
- Is government intervention in obesity justified?
- If video games lead to violence, should government regulate them?
- Give me health care, or give me death
- Personal responsibility and the nanny state
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