Do Not Ban Tobacco Advertising
by Fred E. Foldvary, Senior Editor
In March 2003, 171 members of the World Health Organization sent a treaty to control tobacco supply and consumption to the World Health Assembly. The press release by WHO states that the Framework Convention on Tobacco Control covers tobacco taxation, smoking prevention and treatment, illicit trade, advertising, sponsorship and promotion, and product regulation.
The treaty requires signatory parties to implement comprehensive tobacco control laws and policies at national, regional and local levels. The treaty recognizes that tax and price measures can reduce tobacco consumption, and requires signatories to consider public health objectives when implementing tax and price policies on tobacco products. Parties to the convention are also encouraged to pursue legislative action to hold the tobacco industry liable for social costs related to tobacco use.
The treaty requires that at least 30 per cent, and ideally 50 per cent or more, of the display area on tobacco product packaging be taken up by clear health warnings as text or pictures. Its packaging and labeling requirements prohibit misleading language that gives the false impression that the product is less harmful than others, such as with the use of terms such as light, mild or low tar.
A comprehensive ban on tobacco advertising is required by the treaty, but it recognizes that some countries have constitutional protections for free speech, preventing them from legislating a complete ban in all media. The text requires parties to move towards a comprehensive ban within five years of the convention entering into force. Countries that cannot implement a complete ban are required to restrict tobacco advertising, promotion and sponsorship within the limits of their constitutional laws.
The World Health Organization Framework Convention on Tobacco Control has already been signed by 40 countries. Norway was the first country to accept the treaty. Other countries that have signed the FCTC include the Democratic People's Republic of Korea, the Islamic Republic of Iran, and the United Kingdom. The signatory states need to also ratify the treaty before it takes effect.
Clearly tobacco use damages the health of the smoker, and millions of people die every year from cancer and other diseases caused or made worse by tobacco use. But people have a moral property right to their bodies, so the law should not prohibit people from activities that harm their own health. Smoking is not unique in having health risks.
Tobacco also has a negative external effect, since those who inhale tobacco fumes may suffer health damage, especially those allergic to tobacco. There is also a financial externality, since if medical care is paid for by taxes, then the extra costs of treating tobacco users is also borne by those who don't smoke tobacco.
But the complete economic pictures requires us to also consider the social benefits of tobacco. Smokers gain pleasure, relaxation, and activity. Smoking is addictive, so quitting smoking can be unpleasant, and smoking relieves the urge to indulge the habit. Some medical honchos claim that addicts lose their free will and are incapable of quitting without severe medical intervention. Yet many millions of smokers have quit, many doing so "cold turkey," i.e. all at once. I have no personal experience with this, since I have never smoked. However, it seems to me a warranted conclusion that although addicted smokers have a strong desire to smoke, they still retain free will, and can stop if they put their minds to it.
While sick smokers may be a burden on society when taxpayers pay for some the cost, the fact that they die sooner implies that smokers receive fewer social security payments, so smokers may end up bestowing a net benefit to nonsmokers by not living long past the retirement age. At any rate, these pecuniary or financial externalities are a result of the welfare state rather than smoking as such. In a truly free economy, everyone would pay for his own medical care as well as retirement, so that smokers would impose no cost or benefit to others from health and death.
In a truly free society, the law should only be concerned with the health of young children (minors) and the pollution effects of smoking. The law should ban selling tobacco to minors and also ban tobacco advertising in the media and literature directed to minors.
The law should prohibit smoking in government buildings, since the public is forced to access these to comply with taxes and regulations. But the law should not prohibit smoking on private property. Yes, smoking bans have promoted non-smoking in restaurants and cafés, so there have been some social benefits. But the law should not be based only on benefits, since these are difficult to measure, and because the total benefits may be negative even though the narrow benefits positive. The policy of basing laws on benefits ends up violating the rights of minorities in order to indulge and thus subsidize the preferences of majorities.
Whatever net social costs are caused by smokers should be handled with pollution charges and other externality payments that cover the cost. Aside from tobacco fumes, many tobacco users are slobs who flick ashes into the street from their cars and toss cigarette buts onto sidewalks, parks, and lakes. Smokers who litter should be subject to high fines. Having compensated society for these social costs, smokers should not be subjected to prior restraint.
In a free society, the general rule of advertising should be that whatever is sold legally should also be able to be advertized without arbitrary restrictions. So long as the ad is truthful and not specifically directed to minors, there should be no restrictions on advertising media. Moreover, government should not be paying for and sponsoring advertising opposing tobacco use, except to educate children. There are plenty of anti-smoking groups that would gladly finance this.
The anti-smoking treaty thus violates liberty in several ways, but most of all in requiring a ban on tobacco advertising. Morally, commercial speech is not distinct from other speech. The law should not distinguish commercial speech to restrict it more than other expression. Taxing tobacco beyond compensation for pollution costs is both morally excessive and economically futile. Bans and extreme taxes lead to an underground market for tobacco, as with other illegal drugs. Illegal tobacco smuggling and sales already take place in the US as States have raised the tax on cigarettes. The WHO treaty makers seem to not have learned from the futility of bans on marijuana and alcohol.
One good and proper element of the treaty is its requirement for labeling. There should be prominent labels on tobacco products informing buyers of the health hazards. Many countries have already enacted such label requirements. Consumers have the right to be informed of any negative effects of the products they buy.
The United States should not sign this anti-smoking treaty. It excessively restricts the moral rights of smokers and of enterprises whose customers smoke. I agree with the long-term goal of eliminating smoking from the planet, but the best means to do this is to reduce demand by education. Children should learn the horrible effects of smoking. Take them to hospitals to see the tragic consequences. Make it uncool to smoke. Get kids to say that "smokers suck." The American culture is already turning away from smoking. Let's not let the authoritarian WHO health chiefs further erode our vanishing liberties.
-- Fred Foldvary
Copyright 2003 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.
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