The recently-adopted smoking bans in bars and restaurants epitomize a cultural transformation. By creating an environment where smoking becomes increasingly more difficult, the bans help shift social norms away from the acceptance of smoking in everyday life and promotes public rejection of cigarettes. And this is only the beginning. New public policies such as nudging smokers are now developed, raising legal and moral issues.
After centuries of smoking being perceived as a socially-accepted habit, this popular, addictive and intensively promoted behavior has in recent times been transformed in the public eye of most Western countries. Yet tobacco remains the major preventable cause of death in many parts of the world today, killing more than 5 million people every year. Assuming no change in prevalence it is predicted that the 1.45 billion people who smoke today may become almost 2 billion by 2025.
Although it was not until the twentieth century that the health problems associated with tobacco use gained public knowledge, smoking bans in public places are as old as tobacco consumption. The first known smoking ban occurred in 1590 and was given by Pope Urban VII during his short reign as pope and others were issued by the Ottoman sultan Murad IV in 1633, by the Prussians in Königsberg in 1742, and finally by the Nazi regime, under the auspices of Karl Astel’s Institute for Tobacco Hazards Research, created in 1941 under orders from Adolf Hitler. Yet what makes smoking bans more salient today is their rapid spread and virtually universal character, being mandated by an International agreement, the Framework Convention on Tobacco Control, the world’s first global public health treaty negotiated under the auspices of the World Health Organization (WHO). Under this instrument, its 174 signatories, representing more than 90% of the world countries – including China and India – are expected to adopt – besides advertising and smoking bans – an entire new generation of tobacco control measures.
The first generation of measures was implemented only during the seventies, when taxes imposed on tobacco products, especially cigarettes, became a principal weapon in the fight against tobacco. A series of studies by economists demonstrated convincingly that increases in cigarette prices, driven by increases in cigarette taxes, reduced cigarette smoking. In particular, several studies indicated that tax-induced price increases were particularly effective in discouraging smoking by young people. Although demand for cigarettes is only modestly responsive to price changes, there is consensus that, in developed countries, for every 10 percent increase in price, the quantity of cigarettes demanded by consumers will fall by about 4 percent. Since cigarette taxes constitute only a fraction of total cigarette price, large increases in cigarette tax rates can simultaneously generate significant increases in governmental revenues and a substantial decrease in smoking. Thus, tobacco taxation gives governments the opportunity to enrich their treasuries while improving public health.
Besides fiscal measures, laws were passed to prohibit smoking in public places, notably working places. In the same period, restrictions on direct advertising were introduced, leading the way, in several European countries, to a prohibition of indirect advertising. Moreover, as soon policy-makers across industrialized countries realized that tobacco companies had begun using cigarette packs and specialized retail outlets as advertising vehicles, they adopted space appropriations rules.
Thus, for instance, laws were adopted, mandating companies to print large messages on cigarette boxes, such as “Smoking causes peripheral vascular disease”, “Don’t let children breathe your smoke” or “Smoking causes lung cancer”. This kind of message had been written on boxes since the late sixties, but the nineties legislations were more ambitious. In Australia for instance, warnings must cover 30% of the front and 90% of the back of the box. In most countries, messages are written in large, standardized black letters, on a white background, surrounded by a black frame. Within the EU, some countries decided to go further mandatory graphic warnings and decided to combine those warnings with some pictures portraying tobacco-linked diseases. It seems undisputed that the combined adoption of this first set of tobacco control measures has proven effective, since the tobacco consumption has been decreasing in the last decades. Yet to ascribe to each measure a specific reduction in tobacco prevalence is a difficult task.
By the beginning of the new century, European and other developed countries had implemented most of these first generation measures, and governments were ready to make a new, historical step. By far the largest achievement in the fight against tobacco was the conclusion of the Framework Convention on Tobacco Control, previously discussed. It is this international health treaty that paved the way to a second generation of tobacco control measures. Addressing complex issues such as smuggling and illegal traffics besides the more conventional marketing and packaging aspects of tobacco, this convention identifies a comprehensive series of actions whose implementations has been further detailed by a set of Guidelines.
These new, radical measures include standardized plain packaging as well as visual display bans. While the former implies the removal of trademarks, logos, pictures graphics and other promotional elements from the pack, the latter consists in prohibiting the display of tobacco products at points of sale. Through the adoption of these measures, policy-makers aim not only at diminishing the attractiveness of the brand logo and graphical world but also at encouraging smokers to pay more attention to health warning messages. By aiming at changing human behavior away from unhealthy behavior and towards a healthy lifestyle, the ultimate objective pursued by this new set of measures is to “denormalize” tobacco consumption – a major step. In order to do so, most tobacco control tools today aim not only at informing the public about the adverse effects stemming from tobacco consumption but also, as illustrated by the rapid dissemination of advertising bans, at reducing the industry’s ability to advertise their products so as to reduce their appeal and attractiveness among consumers.
So what emerges nowadays is a completely new paradigm in health public policies. The first generation measures were based on incentives, which assume that consumers were rational decision makers. The individual targeted by those policies was a free, responsible, autonomous subject, capable of making the right choice insofar as she received the correct information. With the emergence of the new generation of measures, this neoclassical figure of a reasonable decision-maker fades out. The idea is to keep away the consumer from temptation, by preventing him or her to have to make a choice. The choice itself is in no way presented in a balanced way: the act of buying occurs in an entirely new context. Those who want to buy a cigarette box face a series of physical and moral obstacles.
Paradoxically enough, the relative success in reducing tobacco use in industrialized countries is prompting the sharp increase in cigarette consumption in developing nations. Indeed, as the Western markets became increasingly exposed to restrictive regulations and triggered public rejection, the tobacco industry began looking at lucrative, health-unconscious, new markets. That is where tobacco companies draw their main source of revenue today – which is estimated at more than 100 billion dollar a year. Yet it is in the Western world where companies keep opposing tight regulation. Indeed, the industry has been systematically opposing tobacco control initiatives as paternalistic and patronizing. It has been constantly holding that smoking is a voluntary behavior, engaged in by consenting adults who are well-aware of the risks inherent to their choice.
Sociological research suggests that modern anti-smoking begun, similarly to Prohibitionism of the mid-20s, as a typically upper-middle-class phenomenon intended to impose its values on the lower orders of society by “education” if possible, by government intervention if necessary. In Western societies this stance has encountered strong resistance as it clashes against one of their founding principles: freedom of individual choice. It is indeed generally believed that individuals should be free to choose their own lifestyles, including the risks that a lifestyle may entail.
Although this ‘libertarian’ argument has been widely and successfully used by the tobacco industry for some time, it recently exhausted – as illustrated by the rapid adoption of smoking bans and other second-generation tobacco control measures – its normative power. Awareness of the health risks of passive smoking shifted the debate from the rights of smokers to the rights of non-smokers. The ensuing paradigm shift in developing demand reduction strategies, by freeing the tobacco movement from its remaining ideological obstacle, served as a catalyst for the embracing of this more radical second-generation measures.
Interestingly enough, some of those new tobacco control measures, such as plain packaging and pictorial warnings, seem to embrace the new regulatory philosophy, which aim at reconciling libertarian and paternalist approaches, elaborated by Richard Thaler and Cass Sunstein in their successful book, Nudge. A nudge is, according to the authors, “anything that influences our choices. A school cafeteria might try to nudge kids toward good diets by putting the healthiest foods at front.” They argue that “it’s time for institutions, including government, to become much more user-friendly by enlisting the science of choice to make life easier for people and by gentling nudging them in directions that will make their lives better.” The nudge approach has been developed on the assumption, drawn from the latest cognitive studies, that, from investments to daily actions such as choosing a dessert, we tend to make, regardless of the amount of information at our disposal, poor decisions. This might be the case for smokers: experience shows that informing them about the risks of consuming tobacco is not enough to make them quit smoking.
By playing on the choice environment, some of the new tobacco measures have been established to ‘nudge’ citizens and consumers towards beneficial directions without restricting freedom of choice. Although individuals are still making choices, a mix of common wisdom, collective choice and public initiative slightly changes the statistical outcomes of the many individual choices. This new form of regulatory intervention has been embraced by both President Obama, who has chosen Cass Sunstein as his regulatory tsar, and the UK Prime Minister David Cameron, who has established a Behavioural Insight Unit, inside the Executive Office with the mission to incorporate ‘nudges’ into public policies.
Facing a burgeoning of these innovative measures, the tobacco industry does not only denounce the hypocrisy of the governments who discourage consumption while collecting high taxes on it, but it systematically challenges the legality of the second-generation tobacco control measures in front of both domestic and international courts. As a result, in the last few years, tobacco litigation has no longer been about settling a dispute between two parties, but has turned into a tool of regulatory policy, used by tobacco companies to challenge, or prevent the adoption of new control measures. Hence, to amplify its impact, tobacco litigation is becoming transnational. Several disputes are currently pending before international courts, such as a the World Trade Organization (WTO) and the World Bank – International Center for the Settlement of Investment Disputes (ICSID), as well as EU Courts, such the EFTA Court, which has jurisdiction with regard to EFTA States which are parties to the EEA Agreement (at present Iceland, Liechtenstein and Norway).
In the meantime, there is a whole series of other industries, such as the alcohol industry and the manufacturers of alleged “junk foods”, who fear to become soon the next targets of impending “control” or “nudge” policies aimed at discouraging consumption. Some recent examples are the recently announced Hungarian fat tax and the French new tax on soft drinks. While only the former has expressly been adopted to purse a public health goal, it is possible that also the French measure may ‘nudge’ consumers away from the consumption of soft drinks. Will the tobacco control history repeat itself? Will socially accepted habit like eating “junk-food” become ‘denormalised’ as a result of a new set of policies?
But the story is not over. A discussion is currently undergoing on the effectiveness of the second generation measures in parallel to a broader debate on the ability of the ‘Nudge’ approach to satisfactorily address the problems that it ambitiously tackles. A recent investigation of the UK House of Lords Science and Technology Select Committee, Behavioural Change, assessed the effectiveness of nudge approach as applied to alcohol, food and physical activity. Its conclusions show on the one hand how effective the industry may be in nudging consumers towards the consumption of its own products but also how ineffective public nudges can be when exercised in alcoholigenic and obesogenic environments. In some cases, the investigating shows that a nudge approach may even have a regressive impact.
Taken rigorously, this conclusion suggests that efficient policies may have to deal with what used to be called ‘social classes’: strong, structural differences between segments of population, depending on revenue, social or ethnic origins, neighborhood, consuming habits. This approach may be more efficient, but besides old questions about elites taking care of lower classes, it raises issues about public policies not considering people as citizens but as elements of social groups – just as companies consider their consumers.
This drives us to a third, problematic paradigm of public policies. Based on a belief in universal freedom of choice, the neoclassic, incentive-based paradigm is associated to the democratic vision of equal, reasonable citizens. Instead, nudge-based policies, being grounded on a more limited belief in the capacity of individual choice, enable governments to rely on practical tricks to shape consumer choices. Nudge-shaped public policies could be more efficient but they may also inevitably look like... marketing. Is it time for governments to use the same tools as the tobacco industry itself in nudging consumers away from unhealthy habits?