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.