Friday, April 18, 2014
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Public Health versus Private Freedom?

PRINCETON – In contrasting decisions last month, a United States Court of Appeals struck down a US Food and Drug Administration requirement that cigarettes be sold in packs with graphic health warnings, while Australia’s highest court upheld a law that goes much further. The Australian law requires not only health warnings and images of the physical damage that smoking causes, but also that the packs themselves be plain, with brand names in small generic type, no logos, and no color other than a drab olive-brown.

The US decision was based on America’s constitutional protection of free speech. The court accepted that the government may require factually accurate health warnings, but the majority, in a split decision, said that it could not go as far as requiring images. In Australia, the issue was whether the law implied uncompensated expropriation – in this case, of the tobacco companies’ intellectual property in their brands. The High Court ruled that it did not.

Underlying these differences, however, is the larger issue: who decides the proper balance between public health and freedom of expression? In the US, courts make that decision, essentially by interpreting a 225-year-old text, and if that deprives the government of some techniques that might reduce the death toll from cigarettes – currently estimated at 443,000 Americans every year – so be it. In Australia, where freedom of expression is not given explicit constitutional protection, courts are much more likely to respect the right of democratically elected governments to strike the proper balance.

There is widespread agreement that governments ought to prohibit the sale of at least some dangerous products. Countless food additives are either banned or permitted only in limited quantities, as are children’s toys painted with substances that could be harmful if ingested. New York City has banned trans fats from restaurants and is now limiting the permitted serving size of sugary drinks. Many countries prohibit the sale of unsafe tools, such as power saws without safety guards.

Although there are arguments for prohibiting a variety of different dangerous products, cigarettes are unique, because no other product, legal or illegal, comes close to killing the same number of people – more than traffic accidents, malaria, and AIDS combined. Cigarettes are also highly addictive. Moreover, wherever health-care costs are paid by everyone – including the US, with its public health-care programs for the poor and the elderly – everyone pays the cost of efforts to treat the diseases caused by cigarettes.

Whether to prohibit cigarettes altogether is another question, because doing so would no doubt create a new revenue source for organized crime. It seems odd, however, to hold that the state may, in principle, prohibit the sale of a product, but may not permit it to be sold only in packs that carry graphic images of the damage it causes to human health.

The tobacco industry will now take its battle against Australia’s legislation to the World Trade Organization. The industry fears that the law could be copied in much larger markets, like India and China. That is, after all, where such legislation is most needed.

Indeed, only about 15% of Australians and 20% of Americans smoke, but in 14 low and middle-income countries covered in a survey recently published in The Lancet, an average of 41% of men smoked, with an increasing number of young women taking up the habit. The World Health Organization estimates that about 100 million people died from smoking in the twentieth century, but smoking will kill up to one billion people in the twenty-first century.

Discussions of how far the state may go in promoting the health of its population often start with John Stuart Mill’s principle of limiting the state’s coercive power to acts that prevent harm to others. Mill could have accepted requirements for health warnings on cigarette packs, and even graphic photos of diseased lungs if that helps people to understand the choice that they are making; but he would have rejected a ban.

Mill’s defense of individual liberty, however, assumes that individuals are the best judges and guardians of their own interests – an idea that today verges on naiveté. The development of modern advertising techniques marks an important difference between Mill’s era and ours. Corporations have learned how to sell us unhealthy products by appealing to our unconscious desires for status, attractiveness, and social acceptance. As a result, we find ourselves drawn to a product without quite knowing why. And cigarette makers have learned how to manipulate the properties of their product to make it maximally addictive.

Graphic images of the damage that smoking causes can counter-balance the power of these appeals to the unconscious, thereby facilitating more deliberative decision-making and making it easier for people to stick to a resolution to quit smoking. Instead of rejecting such laws as restricting freedom, therefore, we should defend them as ways to level the playing field between individuals and giant corporations that make no pretense of appealing to our capacities for reasoning and reflection. Requiring that cigarettes be sold in plain packs with health warnings and graphic images is equal-opportunity legislation for the rational beings inside us.

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  1. CommentedSteve Barney

    Perhaps, if addition to tobacco were legally classified as a mental illness or treated like other drug additions, they could be forced to quit. You've probably heard of people committing petty crimes so they could get health care in jail or prision, and some of them may be people who are hopelessly addicted to cigarettes. That may be the only way that some people can quit smoking and save their lives. This is especially true in the case of the mentally ill, as you can see here, who (in the US) usually get less help with tobacco addiction than the rest of the population, and have much higher rates of addiction:

    site: mentally ill - Google Search

  2. CommentedMichael Lynch

    Like Mill I agree that individuals have the right to make their own choices but only in so much as they do not harm others. Smoking effects not just the person inhaling, but those around them, whether it be through second hand smoke or, like here in Canada, publicly funded health care. In that case we are all literally paying for the consequences (much like in the case of obesity outlined in Singer's article "Weigh More, Pay More"). It should be made clear that smoking isn't exclusively private.

  3. CommentedMK Anon

    This article here is the most biased I read from this author - whose views I usually appreciate. Actually, the underlying assumption is that smoking is bad (as is the case in the current DOGMA).

    Just quoting a few things that bothered me the most:

    "Underlying these differences, however, is the larger issue: who decides the proper balance between public health and freedom of expression?"
    I think this is a secondary or even a tertiary question. As an ethicist, the first question should be what is the public health's domain, and where is there place for the public intervention. Smoking is a private choice with private consequences.. while non smoking is still a private choice, but with public consequences as they oppress non smokers. The only legitimate space for public intervention is to disclose information - not change people's behaviour and culture. Once information is given through massive campaign, it becomes an individual choice. Smoking also has been studied long enough to get good information - and is not comparable to new chemicals than first need to be studied to provide good information.

    how about the validity of the argument that smoking was "imposed" by the companies producing cigarettes (i.e. a forced change of behavior like the one public health tyrans -PHT- are doing) ? I don't think so. One can notice that in all or many cultures, including those very closed to autarky, there has been some smoking in a way or another. In addition, nothing prevents the PHT to do the same kind of subtle advertisement - instead of using state's monopoly on violence.

    As for the argument of death rate, it's an invalid measure of the "life cost" of different factors. It's better to use the years lost (adjusted for disability). Smoking related diseases occur later in life, while other factors have a different pattern, i.e. cars rather kill young poeple.. so for one teen of 18 "loosing" 50 years of expected life, there can be 50 poeple dying one year younger at the end of their life from smoking related diseases. In addition, if poeple have descreasing marginal utility of "life", the 18 years old case is much worse.

    But the worse argument in the health cost in general. As everyone knows, cigartte's price is made of 90% taxes at least (when similar taxes on junk food?). Life-long smokers pay to the state somewhere close to 100k

    Not only do they contribute more, but they also alleviate costs: first point is that everyone dies at some point and will "cosume" resources related to it's death.. be seated, you ll be shocked to hear that non-smokers have a very unhealthy death as well ! The non-smoker's colon cancer will be as costly as the the smoker's lung cancer. Cancer rate is more prevalent for smoker.. but it's really not cheaper to die from Parkinson, alzheimer or diabetes which are growing exponentially now. However, smokers die younger and therefore take less resources for the pension funds, or in other word, the ration of dependant population on active population is improved (in economic terms, I recall). And now they will die even younger from pneumonia since they have to go out of all places (which is also totally wrong: the market would pick the number of smoke-free to meet the demand).
    So smoker contributes a lot more than others (tax differences), they consume less resources (die younger), and in addition, they are discriminated on the basis of their believes, individual identity, and group identity.

    How fair is that, Mr the ethicist?

    NB: I don't usually smoke and I am not related in any way with the tabacco industry

  4. CommentedIsmail OURAICH

    The most important aspect of the problematic, to the risk of sounding inhuman, is the fact that in all countries, no matter how advanced market economies they claim to be, health care services are subsidized by taxpayer money, i.e. there is not a pure market for healthcare where only the laws of supply and demand govern the price determination of the service, which then does not oblige us (i.e. taxpayers through elected representatives) to intervene to correct for the healthcare externality that stems from the disconnect between the profit-making motives of market institutions providing the service and the very public-good nature of healthcare services. Therefore, things as they are, we are effectively providing an incentive for the continuance of destructive consumerist behavior, in this case cigarettes consumption, by a fringe of society that hijacks basically the Constitutionally sanctioned principle of personal rights. I, personally, would have no qualms whatsoever with these people, no matter how irrational their behavior might seems to be, if they continue on their unhealthy habits of consumption if only if the cost of unintended consequences is lifted up of the shoulders of the rest of us. That is a very idealistic framework that did not, does not, and won't exist anytime soon. Given this, Society as a whole, thought elected officials, must have a say on the individual's health through meaningful policies that are enacted to limit the damage, and I do agree with the Australian approach that was given as an example.

  5. Commentedd clark

    The main problem, according to Singer, seems to be sophisticated deceptive subliminal advertising. His solution is to combat it face to face by legalizing scary text and image superliminal advertising.

    If stealthy advertising that strikes below the conscious threshold is the problem, why combat it? Why not go after it, delegalize it, eliminate it completely?

    It would be a long complicated haul, reaching far beyond the tobacco industry. But we've been complaining about this kind of deceit in advertising for a long long time. It is an unfair advantage that hurts consumers terribly. Is taking it on really impossible?