A week ago in a Florida courtroom, a jury handed down a $144.8 billion judgment against cigarette manufacturers in a class-action lawsuit on behalf of sick smokers. The number of smokers supposedly involved varies depending on which account we read: in some it is 500,000; in others, as much as 700,000. The event, in any case, sent shock waves through the tobacco industry. While the case is being appealed and it is doubtful that anyone will be forced to come up with $144.8 billion, this is clear indication of the escalating war against "big tobacco." The Florida verdict, even if slashed dramatically by a higher court, could still be high enough to force an increase in the price of cigarettes as a perceived need to defend against lawsuits is passed on to consumers. Foes of smoking may say, "Good! If people can't afford to smoke they'll quit, and then they'll be healthier." This raises a lot of questions. First, will the smoker quit or pay the higher price (possibly neglecting other responsibilities)? More importantly, is a higher priced cigarette pack just the first step toward more and more de facto coercion of consumers in the name of public health? Finally and most importantly, what is the relationship between government – including the courts and those who would use them as weapons against entire industries – and the health of the public?
Before continuing, a few personal remarks. I don't smoke. I've never been tempted to smoke: not even once. I'm not too crazy about being around a lot of cigarette smoke. I've occasionally tried to convince friends who smoke that they shouldn't, and made similar arguments to those of smoking's political foes. Those who smoke place themselves at risk not just for lung cancer and heart disease, but because of the stresses foreign substances (tar, nicotine, etc.) place on body systems, their tolerance to disease generally is reduced. Smoking has, after all, been linked with many long-term health problems. It has social disadvantages as well. Frankly, in my judgment as a red-blooded American male, an otherwise attractive woman who lights up is a turn-off. I presume I speak for other nonsmoking men. One of the major disadvantages of nightclubs and many restaurants is that when you walk out, your clothes reek so badly from cigarette smoke that you feel like throwing them away.
So what is the problem? I'll begin by asking readers to reread the preceding paragraph and note the first-person references in it. Not smoking is, first and foremost, a personal decision of mine, just as others' decisions to smoke are personal decisions of theirs. This is our starting point. As a person who wants to live in a free society as well as be a nonsmoker, it is clear to me that I have no business attempting to impose my personal decisions on others, including using government or the court system as a means. I can persuade others not to smoke with medical reasons and offer them advice on how to go about quitting; but once I've presented my case I must shut up and let them decide; I cannot legitimately coerce them into quitting. Of course, those who own businesses are free to post No Smoking signs; many workplaces joined the war against smoking when their owners declared them smoke-free zones. This is entirely legitimate; if we take property rights seriously, then owners of a workplace have a right to regulate the conduct of those they admit onto their property and to reject certain forms of behavior. But then they have to weigh the potential costs, if their employees or customers decide to go elsewhere.
Now to be sure, the medical case against smoking is quite real. Because of this it is difficult if not impossible to have much respect for the tobacco industry. (Nor is it possible to respect politicians who pander to "big tobacco" with subsidies in exchange for votes.) After all, the health problems associated with smoking have been known for years. However, the real issues involve what follows from this. To be as precise as possible, what is, or should be, the logical relationship between the following two sets of statements: X is bad for your health and the government should attempt to ban X; and X is good for your health and the government should affirmatively compel X? How one answers these questions distinguishes health promoters from health nazis. In a free society there is no logical relationship between the first and second statement in each pair, because a free society does not dictate health choices to individuals. That is not a function of Constitutionally limited government. Have we learned nothing at all from previous prohibition movements, be they the alcohol prohibition disaster of the 1920s or today's hopeless "war on drugs"?
Today, probably all who smoke know the risks. How could it be otherwise? So why do they still smoke? Because whatever personal enjoyment or benefit they believe they receive from lighting up outweighs, in their subjective opinion, the long-term risks. All one has to do is ask a smoker why he or she smokes. "It helps me relax." "It keeps me from gaining weight." "All my friends smoke." Etc. Now of course it is extremely unfortunate that there are elderly people who became smokers when they were teenagers, and did not learn of the risks until much later. But we cannot make this segment of the population the measure of public policy any more than we can design a public policy banning all gun ownership because a relatively tiny handful of children and teenagers were accidentally killed last year playing with guns. Freedom isn't free, and a certain amount of risk is one price we pay for having what freedoms we have managed to retain.
Of course, we are all better off when we make responsible health choices. There are plenty of other activities we should refrain from besides smoking, and others we should engage in as integral components of healthy living. We should, for example, steer clear of fast food despite its conveniences because of its high fat content, and because too much meat affects one's cholesterol levels. We should maintain a diet with plenty of fiber, because fiber increases the efficiency of the gastrointestinal system; and unless your gastrointestinal system is healthy, none of your other body systems will be healthy – not really. Finally, most of us need to exercise more, if only to take long walks every couple of days.
These, of course, are standard health promotion pitches. The real question is do we want them coming from health bureaucrats with potential enforcement power? Because if the legal war against cigarettes succeeds, it is legitimate to wonder what they will go after next. Will they target the fast food industry, for example? (Doing so would open up a minefield of unintended side effects, since the fast food industry is a major employer for unskilled teenagers.)
One of the things that makes health promotion such a difficult affair is that people's motivations are all different, and the motivations of particular individuals differ from time to time. The most precise statement of this is to be found in Austrian economics, in the form of the subjective theory of value. But any close observer of human motivation soon realizes that this is not a mere economic concept. It has wider ramifications. It certainly applies to our health choices.
Moreover, changing a health habit is not an automatic matter of will power. We are more creatures of habit than we think. Ending any habit and replacing it with another one is not automatic but can take a long period of intensive effort. This does not mean that smokers cannot assume responsibility and kick their habit. Today there are countless smoking cessation programs and support groups available to help people quit. But the point is, participation in all such programs both is and must be voluntary.
This cuts to the bottom line. Because of the effort it often involves, changing a health behavior, be it smoking or anything else, cannot be forced on someone from the outside. That is no means of achieving real and lasting positive change. The person asked to make the change has to want the change – perhaps very badly. This is all the more reason for keeping bureaucrats and legal eagles out of the picture. The best support for quitting smoking will come from spouses, other family members, work associates, others quitters, and friends who believe they have a stake in the outcome. It will not come from a faceless bureaucracy headquartered miles away whose personnel are guaranteed their government paychecks whether or not their programs work.
There is one final and, to my mind, very telling argument against allowing health bureaucrats, or the court system, to coerce individuals indirectly by setting out to destroy entire industries. Suppose, just for a minute, we had the kind of society the health bureaucrats present as their ideal in, for example, overblown statements such as Healthy People 2000 (now replaced, unsurprisingly, by Healthy People 2010). Suppose we had a society in which nobody smoked, everybody adhered to proper diets and exercise programs, etc. In this case, what would the health bureaucrat do? Have you ever known any bureaucracy to solve the problems that constitute its bread and butter? This suggests that the real agenda of the health bureaucrat is not a healthy public, but a dependent and compliant public – a public dependent on the bureaucrat for its health needs – and if some of the dependents achieve good health, fine. This is part of the ever-widening edifice of command and control that defines our Federal Government today, and is being mimicked at state and even local levels. It enjoys support from a misguided public sold on the idea, so detrimental to freedom and personal responsibility, that if x is bad for you then it is the Government's job to fight it.
The medical case for not smoking is what it is. But we will all be better off when we act on this information voluntarily. There is a lot more to public health, after all, then just the physical health of our bodies. I would not call a society of compliant, programmed human sheep healthy in the broader sense of this term even if none of them smoked. If we allow bureaucrats, judges, and confused juries try and create a smoke-free society by force, the costs will definitely outweigh the gains.
July 22, 2000
Steven Yates is the author of Civil Wrongs: What Went Wrong With Affirmative Action (San Francisco: ICS Press, 1994) and numerous articles and reviews. He lives and freelance writes in Columbia, South Carolina.
