A New Wave of Paternalistic Tobacco Regulation

• Author: Robert J. Baehr
• Position: J.D. Candidate, The University of Iowa College of Law, 2010
• Pages: 1663-1696

Robert J. Baehr. J.D. Candidate, The University of Iowa College of Law, 2010; B.A., Trinity College, 2007. Thank you to the editors and student writers of Volumes 94 and 95 for your dedication and commitment.

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I Introduction

It was 1978 and the writing was already on the wall. The now-defunct industry trade group, the Tobacco Institute, had hired The Roper Organization to survey public attitudes toward smoking. The findings were prescient and, for the tobacco industry, bleak. Public opinions were shifting, particularly on the issue of second-hand tobacco smoke, and The Roper Organization found these trends “foreboding [for] the very future of the tobacco industry.”¹ While the original Surgeon General’s report had dealt a series of “blows” to the industry, “[t]hey were, however, blows that the cigarette industry could successfully weather because they were all directed against the smoker himself.”² But the threat of second-hand smoke—to the industry, that is—was something new. Six years prior, the Surgeon General had detailed at least some negative health effects of second-hand smoke,³ and subsequent reports had only uncovered stronger causal connections to further negative effects.⁴ “What the smoker does to himself may be his business, but what the smoker does to the non-smoker is quite a different matter.”⁵ It was this new matter, The Roper Organization study correctly noted, that would present “the most dangerous development” to the tobacco industry’s viability yet.⁶ By shifting the debate to the health of the nonsmoking majority, the anti-tobacco movement could transform what, up until then, had been the nonsmoker’s minor vexation or annoyance into the best case for a total ban on public smoking.⁷ So began the nonsmokers’ rights movement in the United States.

Thirty-two years later, by the beginning of 2010, some form of smoking ban would protect nearly three quarters of the U.S. population.⁸ Additional bans are on the horizon,⁹ and many recently enacted bans are innovative for their comprehensiveness.¹⁰ Thus, laws to protect nonsmokers from secondPage 1666 hand smoke have been, in many respects, the lodestar of tobacco policy in the United States. This Note hypothesizes, however, that there is some future limit to these kinds of policies. The nonsmokers’ rights movement has only so many jurisdictions left to conquer, and smoking bans can become only so intense and comprehensive before they become politically untenable.¹¹ Meanwhile, U.S. tobacco-control policy outside the nonsmokers’ rights movement is relatively weak and ripe for growth.

This Note examines recent instances of such growth—namely, the Family Smoking Prevention and Tobacco Control Act,¹² which gives the Food and Drug Administration (“FDA”) authority to regulate the tobacco industry, and a number of municipal laws banning the sale of tobacco in certain places of business, particularly pharmacies. It then offers some normative conclusions for the potential future wave of paternalistic tobacco regulation in the United States.

II The Rise and Terminus of Nonsmokers’ Rights Policies

This Part begins with a taxonomy of anti-tobacco policies. It offers a brief analysis of two specific policy types—informed-choice and paternalistic policies—ultimately noting that informed-choice policies are themselves weakly paternalistic. This Part then turns to an analysis of nonsmokers’ rights policies, developing the hypothesis that the nonsmokers’ rights movement has largely and successfully run its course as the engine of tobacco control in the United States.

A Taxonomy of Policy Types

The political struggle over tobacco control spans a diverse range of institutional fronts and policy types. The current regulatory regime in the United States clearly reflects this: one sees some taxation, mixed with information-based interventions, from package warnings to anti-tobacco television ads, tobacco-marketing restrictions, restrictions on sales to minors, a healthy dose of tort litigation, limits on where one can smoke, etc. Judging from the menu, it is fair to say that “tobacco control advocates have not wanted to put all of their eggs in a single policy basket.”¹³ In search of some order and insight into this tapestry of regulation, it is helpful to first outline a general taxonomy of policy types. Scholars exploring the politics of tobacco regulation have outlined four useful categories of tobacco-controlPage 1667 policies: (1) policies promoting fully informed choice; (2) paternalistic policies, which restrict access to tobacco and pass normative judgment on its use; (3) nonsmokers’ rights policies; and (4) redistributive and punitive policies—e.g., lawsuits seeking compensatory and punitive damages.¹⁴

1. The Libertarianism–Paternalism Spectrum

Policies of the first type—those promoting fully informed choice—are at first blush obvious enough. On closer inspection, however, it becomes clear that one can grade these information-based interventions along a spectrum of respect for personal autonomy. At one extreme are the least intrusive policies that respect personal autonomy, offering consumers information to do with as they please; at the other extreme are policies that restrict consumers’ access to information for fear of bad judgment. It would therefore seem that the first category offered above bleeds into the second— in other words, informed-choice policies can themselves be more or less paternalistic.

For example, since 1965 the federal government has required some form of warning on cigarette packages and advertising so that “the public may be adequately informed about any adverse health effects of cigarette smoking.”¹⁵ The federal and many state governments have also invested in various anti-tobacco advertising campaigns. Some anti-tobacco ads attempt to do nothing more than inform consumers, offering information on addiction and cessation help and the dangers of tobacco use to oneself and others. These warnings and ads most clearly respect individual autonomy when they are largely informational in content. Meanwhile, other antitobacco ads fit into what one study calls an “industry manipulation” initiative,¹⁶ which begins to raise questions about how much the government respects the individual’s power of informed choice. Industry-manipulation ads may seek to “delegitimize” or “deglamorize” tobacco and the tobacco industry by inculcating particularly negative affects in consumers.¹⁷ For example, a study by Lisa Goldman and Dr. Stanton Glantz discusses one particularly successful ad that depicted tobacco executives conniving to snare new smokers to replace older, dying ones. The ad played on the frustrations of adult smokers, and, according to focus-group studies, it “made all targeted adult groups angry and resentful and focused those feelings on the tobacco industry.”¹⁸ Other successful ads coax the ire ofPage 1668 young and independently minded consumers by painting the tobacco industry as deceptive or manipulative.¹⁹

As these anti-tobacco advertisements become increasingly blatant in exploiting an affect heuristic²⁰ and offer less hard fact about the risks of tobacco, a shift toward paternalism becomes evident. It may be that the ad is no longer trying to inform the consumer, but, rather, inculcate a visceral emotional response. When this is obvious, more libertarian-minded viewers may become angered or simply tune out. For example, in one recent television commercial, a toddler momentarily loses sight of his mother and proceeds to cry onscreen for “a grueling 17 seconds.”²¹ A voice-over then states, “If this is how your child feels after losing you for a minute, just imagine if they lost you for life.”²² The New York Times counted this as one more in a line of hard-hitting television ads.²³ Past ads showed more grotesque images, such as an interview with a smoker after a recent laryngectomy, which the city’s Department of Health and Mental Hygiene intended to “gross out the viewer.”²⁴ Some viewers were mildly outraged and felt that these ads were manipulative.²⁵ While the public outcry may have been mild, the concern is nevertheless valid. At some point government-sponsored advertisements may stop informing consumers and start influencing consumer choice through mild psychological coercion. There is, therefore, danger that these informational interventions will start to lookPage 1669 increasingly paternalistic, and maybe even “excessively propagandistic” and downright “unseemly.”²⁶

These charges are not limited to anti-tobacco advertising. Scholars and critics have also claimed that other information-based interventions, such as the federal ban on broadcast tobacco advertising, are similarly paternalistic. Since 1971, the federal government has banned the advertising of cigarettes on television and radio.²⁷ Prior to 1971, most television stations engaged in tobacco counter-advertising under the Federal Communications Commission’s (“FCC”) Fairness Doctrine, which required television stations to offer in tandem with cigarette commercials “the other side of this controversial issue of public importance—i.e., that however enjoyable, such smoking may be a hazard to the smoker’s health.”²⁸ Framed in this manner—as a switch from mandating...