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Abstract

This chapter defends a legal human right to tobacco control. Building on existing work, the chapter argues that the legal case for such a right is strong. Existing international human rights treaties, chiefly the International Covenant on Economic, Social and Cultural Rights, recognise a human right to health alongside several other rights that speak for covering tobacco control under human rights law. Drawing on Allen Buchanan’s pluralistic justificatory framework for human rights, the chapter argues that the philosophical case is strong too. Tobacco is among the deadliest public health threats worldwide and its health impacts so severe that humans should have a claim against their governments to protect them against the harms of tobacco. Human rights law is a promising avenue to strengthen this claim. The chapter then defends a human right to tobacco control against several philosophical worries. For example, is strong tobacco control compatible with personal freedom? Is it compatible with personal consent? Would human right legislation facilitate power relations that unduly restrict national and individual self-determination? This chapter argues that concerns with freedom of choice, consent and power relations do not speak against tobacco control. Conversely, a concern with power relations speaks for a human right to tobacco control, as it could lessen the power asymmetries between tobacco companies and vulnerable populations, such as children, smokers of lower socioeconomic status and citizens in low-income countries with weaker governance structures.
1
Is there a human right to tobacco control?
Andreas T Schmidt, Faculty of Philosophy, University of Groningen
This is a preprint version of a chapter forthcoming in: Human Rights and
Tobacco Control: International, Regional, and Domestic Legal Perspectives, Gispen,
Marie Elske; Toebes, Brigit (eds), forthcoming 2019
Abstract: This chapter defends a legal human right to tobacco control. Building on existing
work, the chapter argues that the legal case for such a right is strong. Existing international
human rights treaties, chiefly the International Covenant on Economic, Social and Cultural
Rights, recognise a human right to health alongside several other rights that speak for covering
tobacco control under human rights law. Drawing on Allen Buchanan’s pluralistic justificatory
framework for human rights, the chapter argues that the philosophical case is strong too.
Tobacco is among the deadliest public health threats worldwide and its health impacts so severe
that humans should have a claim against their governments to protect them against the harms of
tobacco. Human rights law is a promising avenue to strengthen this claim. The chapter then
defends a human right to tobacco control against several philosophical worries. For example, is
strong tobacco control compatible with personal freedom? Is it compatible with personal
consent? Would human right legislation facilitate power relations that unduly restrict national and
individual self-determination? This chapter argues that concerns with freedom of choice, consent
and power relations do not speak against tobacco control. Conversely, a concern with power
relations speaks for a human right to tobacco control, as it could lessen the power asymmetries
between tobacco companies and vulnerable populations, such as children, smokers of lower
socioeconomic status and citizens in low-income countries with weaker governance structures.
2
1 Introduction
Smokers lose around ten years in life expectancy and one in two smokers die of smoking-related
conditions, such as COPD, cancer and cardiovascular conditions.
1
2
The magnitude of tobacco as
a public health problem is staggering. The World Health Organisation estimates that tobacco kills
around seven million people each year, 890,000 of which through second-hand smoke.
3
If human rights are meant to protect fundamental human interests and life and health clearly
rank among them we might conclude that individuals should have a human right to be covered
by tobacco control, given that tobacco threatens the health and life of so many people. However,
legally and philosophically, human rights are in a category of their own. To claim that it would be
good if fewer people smoked is one thing. To say that national sovereignty should be restricted
by human rights law to enforce tobacco control is quite another.
In this chapter, I argue that tobacco control should be covered by human rights law and defend
this idea against philosophical objections. In section 2, I draw on Allen Buchanan’s theory of
human rights and existing legal research to make the case for a right to tobacco control. In
sections 3, 4, 5, and 6, I complete this defence by addressing philosophical objections one might
raise to a human right to tobacco control. Section 3 addresses a libertarian objection around the
negative/positive rights distinction. Section 4 discusses whether strict tobacco control is
compatible with freedom of choice. Section 5 discusses whether strict tobacco control is
compatible with respect for individual consent. Section 6 discusses whether human rights
legislation would facilitate power relations that unduly restrict national and individual self-
1
I would like to thank Marie Gispen, Brigit Toebes, Deryck Beyleveld and Adam Etinson for helpful comments and pointers.
2
Prabhat Jha and others, ‘21st-Century Hazards of Smoking and Benefits of Cessation in the United States’ (2013) 368 New
England Journal of Medicine 341.
3
‘WHO Tobacco Fact Sheet’ (World Health Organization, 2018) <http://www.who.int/news-room/fact-sheets/detail/tobacco>
accessed 3 August 2018.
3
determination. I argue that concerns with negative rights, freedom of choice, consent and power
relations do not speak against a human right to tobacco control. Rather than creating worrying
power asymmetries, I argue that human rights legislation might help curb Big Tobacco’s power to
shape people’s environments in deleterious ways. Particularly for people living in low-income
countries with weaker public health governance and other vulnerable groups like children a
human rights approach should be empowering.
Note that when I speak of ‘a human right to tobacco control’, I use this as a shorthand for the
idea that existing human rights, such as a right to health, should be extended to ground claim
rights for tobacco control. I do not mean that ‘a human right to tobacco control’ should itself be
added as a fundamental human right to human rights treaties.
2 Human Rights and Tobacco Control
2.1 The Philosophy of Human Rights
Among other projects, philosophers writing on human rights are concerned with their justification.
Philosophers often distinguish between ‘moral rights theories’ (or ‘orthodox’ or ‘naturalistic’) and
‘political’ theories of human rights.
4
Moral rights theories seek to justify legal human rights by
determining first the fundamental and universal moral rights people have solely in virtue of being
human. For example, Alan Gewirth and James Griffin, in different ways, defend human rights as
those necessary to protect human agency.
5
Political theories of human rights, in contrast, focus on
4
Adam Etinson, Human Rights: Moral Or Political? (Oxford University Press 2018); S Matthew Liao and Adam Etinson, ‘Political
and Naturalistic Conceptions of Human Rights: A False Polemic?’ (2012) 9 Journal of Moral Philosophy 327.
5
Deryck Beyleveld, The Dialectical Necessity of Morality: An Analysis and Defense of Alan Gewirth’s Argument to the Principle of Generic
Consistency (University of Chicago Press 1991); Roger Crisp, Griffin on Human Rights (Oxford Universit Press 2014); Alan Gewirth,
Human Rights: Essays on Justification and Applications (University of Chicago Press 1982); James Griffin, On Human Rights (Oxford
University Press 2009). Also see Beyleveld’s chapter in this book. For other moral rights theories, see Rowan Cruft, S Matthew
4
the practical functions human rights play in international politics. Such theories take their cue
from John Rawls in Law of Peoples, who focussed on the role of human rights to limit sovereignty.
6
Following Rawls, recent defenders of the political view think that what makes human rights
‘special’ are their functions in international political and legal practice. But, unlike Rawls, they
draw a more varied and nuanced picture of what those functions are.
7
For the purposes of this chapter and the more applied focus of this book I try to sidestep this
dichotomy and largely draw on Allan Buchanan’s theory of human rights. Buchanan’s theory is
theoretically flexible thereby escaping the above distinction between moral and political
theories and seeks to connect relatively closely with the practice of international human rights.
Two important planks of his theory are the following.
First, Buchanan distinguishes between a legal human right and a moral human right. Buchanan
argues that to justify a legal human right it is neither necessary nor sufficient to identify a
corresponding moral right.
8
For example, a corresponding moral right is not always necessary
when we seek to justify a legal human right, because some human rights are primarily there to
enable societal values. For instance, legal human rights are sometimes meant to protect status
equality which can encompass laws against discrimination. Conversely, a corresponding moral
right is insufficient to ground a legal human right.
9
For example, if you promise to help me out,
Liao and Massimo Renzo, Philosophical Foundations of Human Rights (Oxford University Press 2015) pt I. and James W Nickel,
Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights (University of California Press 1987).
6
John Rawls, The Law of Peoples: With, The Idea of Public Reason Revisited (Harvard University Press 2001).
7
Charles R Beitz, The Idea of Human Rights (Oxford University Press 2011); Joseph Raz, ‘Human Rights in the Emerging World
Order’ in Rowan Cruft, S Matthew Liao and Massimo Renzo (eds), Philosophical Foundations of Human Rights (Oxford University
Press 2015).
8
Allen Buchanan, The Heart of Human Rights (Oxford University Press 2013) 924; 537.
9
ibid 567.
5
then on some moral theories, I might have a moral right that you keep your promise. But that
does not imply that there ought to be a corresponding legal right.
But, while Buchanan rejects traditional moral rights theories, his view is not reductionist or
‘merely political’. Accordingly, a theory like Buchanan’s can allow for moral rights to play a role
in the justification of legal human rights.
10
To justify legal human rights, Buchanan favours a
pluralistic justification that can invoke individual moral rights, instrumental concerns and societal
goods.
Second, Buchanan connects normative theorizing about human rights closely to international
human rights practice, identifying several properties of this practice.
11
First, like Rawls, Buchanan
thinks one important function of international human rights practice is to impose constraints on
national sovereignty. Second, international human rights practice seeks to not only list a desirable
set of human rights but to also identify correlative institutional duties and duty-bearers. Third,
human rights legislation is in some way ‘superior’ in status to domestic law, although countries
with a dualist legal system that sign up to international human rights must still translate human
rights into national law. Fourth, human rights law primarily invokes obligations for states by
identifying duties that states have towards the people under their jurisdiction. However, human
rights are also increasingly important to non-state actors like private corporations too. Fifth,
human rights law needs to protect human wellbeing. Sixth, human rights law exhibits a robust
commitment to affirming and protecting the equal basic moral status of all individuals
exemplified by ascribing human rights to all individuals irrespective of gender, race, religion and
so on, by demanding anti-discrimination legislation and equality before the law.
12
Finally, human
10
Allen Buchanan and Gopal Sreenivasan, ‘Taking International Legality Seriously’ in Adam Etinson (ed), Human Rights: Moral Or
Political? (Oxford University Press 2018).
11
Buchanan (n 7) 86106.
12
ibid 28. [emphasis removed]
6
rights law is ‘aspirational’ in that it can sometimes exercise political influence beyond the strictly
legal obligations it imposes. Or as Buchanan puts it: international human rights law serves as a
moral standard that can be employed for political mobilization to change the behavior of states,
corporations, and other agents, even in cases where it does not impose clear legal duties on
them.
13
2.2 Human rights and tobacco control
Let us return to tobacco control. To justify legal human rights to tobacco control, we need to
establish that there are fundamental interests to be protected, that such human rights cohere with
the existing function and practice of international human rights law, and that we can plausibly
identify correlative duties and duty-bearers. The legal case for a human right to tobacco control is
relatively well explored in the literature.
14
Let me briefly rehearse its main points.
The central human right that speaks for tobacco control rights is a right to health, as outlined in
Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). As
mentioned above, tobacco consumption is among the leading causes of death and disease. The
ICESCR states in Article 12 that individuals have a right ‘to the enjoyment of the highest
attainable standards of physical and mental health’.
15
Given just how big a threat tobacco is to
life, health and wellbeing, a failure to protect against its harms is a failure to protect the human
right to health.
13
ibid 26.
14
ME Crow, ‘The Human Rights Responsibilities of Multinational Tobacco Companies’ (2005) 14 Tobacco Control ii14; Carolyn
Dresler and Stephen Marks, ‘The Emerging Human Right to Tobacco Control’ (2006) 28 Human Rights Quarterly 599; Carolyn
Dresler and others, ‘Human Rights-Based Approach to Tobacco Control’ (2012) 21 Tobacco Control 208; Oscar A Cabrera and
Lawrence O Gostin, ‘Human Rights and the Framework Convention on Tobacco Control: Mutually Reinforcing Systems’ (2011)
7 International Journal of Law in Context 285; Brigit Toebes and others, ‘A Missing Voice: The Human Rights of Children to a
Tobacco-Free Environment’ (2018) 27 Tobacco Control 3.
15
Cabrera and Gostin (n 13); Crow (n 13).
7
To specify the nature and scope of the ICESCR, the Committee on Economic, Social, and
Cultural Rights (CESCR) adopted General Comments. These comments are highly authoritative
but not, strictly speaking, legally binding. In General Comment 14 the CESCR specifies that
states have obligations ‘to provide a safe and supportive environment for adolescents, that
ensures the opportunity to participate in decisions affecting their health, to build life-skills, to
acquire appropriate information, to receive counselling and to negotiate the health behaviour
choices they make.’
16
So, the case is even stronger and more straightforward for protecting
children.
17
But human rights to tobacco control extend beyond a right to health. Dresler et al. list further
relevant rights:
For example, the right to a healthy environment (consider secondhand smoke or protection from
nicotine from green tobacco sickness, or exposure to pesticides during tobacco agriculture); right to
information (consider knowledge relative to risks of nicotine addiction … ); right to education
(consider children kept from school for tobacco agriculture); right to a sustainable income (consider
indentured servitude or ‘company store’); right to a standard of living adequate for the child’s
physical, mental, spiritual, moral and social development (consider use of limited family income to
purchase tobacco rather than food).
18
Going back to Buchanan’s identification of central features of international human rights
practice, we can now appreciate how those make a human right to tobacco control plausible and
attractive. First, such a right protects fundamental human wellbeing against the grave dangers
posed by tobacco. Second, establishing protection against the harms of tobacco as a human right
might help constrain or at least better monitor states that fail to protect their citizens. Such a right
might open up avenues and instruments for better international reporting, monitoring and
16
General Comment 14, paragraph 23, ICESCR.
17
Marie Gispen and Brigit Toebes, ‘The Human Rights of Children in Tobacco Control’ (2019) Forthcoming Human Rights
Quarterly; Toebes and others (n 13).
18
Dresler and others (n 13) 20910.
8
enforcement.
19
Third, human rights can empower states when they face powerful tobacco
companies. Clearly identifying human rights-based duties to protect citizens might legally
empower states and add international power (more on this in section 6). Fourth, as mentioned
earlier, Buchanan argues that the practice of international human rights can help mobilize
politically around an issue even beyond existing legal obligations. This could potentially give
greater prominence to tobacco’s threat to human life and health. Finally, a legal human right to
tobacco control need not be based on exactly one moral right only, as the above quotation
shows. Multiple reasons can justify such a right, something that is well captured by Buchanan’s
justificatory pluralism.
So, we have both a good philosophical and legal case for a human right to tobacco control.
However, the philosophical case encounters challenges, to which I turn now. Logically, they all
revolve around the worry that even if it is valuable for individuals not to smoke, this by itself is
insufficient to establish that governments have enforceable duties to pursue tobacco control.
3 A Libertarian Challenge: Negative Rights
The first worry stems from the familiar distinction between negative and positive rights. A
libertarian might argue that legal human rights can only be negative. A legal human right to
tobacco control cannot be universally demanded of states, because such a right would imply
many positive and not just negative duties. For example, tobacco control is typically thought to
include policies like warning labels, public health information campaigns and cessation provision,
all of which go beyond a negative duty not to interfere.
19
See Cabrera and Gostin (n 13).
9
However, Henry Shue famously argued that the distinction is untenable. Even traditional,
purportedly negative rights involve a rich set of positive duties from states.
20
For example, the
‘negative’ right to bodily integrity requires ‘positive’ duties such as policing.
21
Conversely, many
purportedly positive rights involve several negative duties. For example, Shue defends a right to
subsistence. He argues that the state and private actors can act in ways that move people below
the subsistence line.
22
A basic right to subsistence implies a negative duty to abstain from such
actions. We can easily transfer the argument to tobacco control: a human right to tobacco control
is largely about states protecting citizens against actions from companies that threaten human life
and health. Accordingly, even purportedly ‘positive’ rights involve protecting individuals against
third parties. Moreover, even if a right appears ‘positive’ rather than ‘negative’, this would be no
principled argument against it.
Human rights practice now commonly replaces the negative/positive distinction with a threefold
distinction. First, states ought themselves respect human rights and not violate them. Second,
states ought to protect rights against those that seek to violate human rights. Third, states and the
international community need to develop the necessary infrastructure, monitoring and delivery
systems to positively fulfil human rights.
23
20
Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton University Press 1980). Also see Ida Elisabeth
Koch, ‘Dichotomies, Trichotomies or Waves of Duties?’ (2005) 5 Human Rights Law Review 81.
21
Shue (n 19) 21.
22
ibid 2.
23
See General Comments 3 and 14 of the ICESCR and the Maastricht Guidelines on Violations of Economic, Social and Cultural
Rights. Also see Cabrera and Gostin (n 13) 288; Koch (n 19).
10
4 A Freedom-Right to Smoke?
A deeper philosophical challenge to public health legislation revolves around individual
freedom.
24
Even if cigarettes are bad for individuals, a commitment to personal freedom might
severely limit how far governments can regulate the sale, advertising and consumption of harmful
products, including cigarettes.
25
In this section, I use ‘freedom of choice’ exclusively as being about external choice options. I do
not discuss the psychology behind an agent’s decision (which I discuss in section 5). Freedom of
choice is about having ‘specific freedoms’ to choose from. On so-called negative theories of
freedom, I have the specific freedom to do x, if and only if no one imposes interpersonal
constraints on my doing x.
26
Other theories, for example the capability view, hold that not being
interfered with is necessary but insufficient for having a specific freedom. I am free to do x, if
and only if I have the capability to do x.
27
How much freedom of choice I have then depends on
how many and what kinds of specific freedoms I have.
24
Tobacco companies have in recent years adopted the language of freedom rights to push a different objection, claiming that
tobacco control interferes with their property rights and freedom of expression. In response, legal scholars have argued that those
rights do not apply to tobacco companies the way they claim and, even if they did, proportionality would require that other rights,
such as a right to health, carry more weight (Cabrera and Gostin 2011).
25
Philosophers sometimes debate whether there is a right to liberty’. For example, Ronald Dworkin, Taking Rights Seriously
(Harvard University Press 1978) 266; HLA Hart, ‘Are There Any Natural Rights?’ (1955) 64 The Philosophical Review 175;
Douglas N Husak, ‘Ronald Dworkin and the Right to Liberty’ (1979) 90 Ethics 121. However, on the pluralistic justification
picture adopted here, justifying a legal right does not necessitate a corresponding moral right. Plausibly, whatever the ‘correct’ set
of human rights, freedom is among the values such rights should protect.
26
Isaiah Berlin, ‘Two Concepts of Liberty’, Four Essays on Liberty (Oxford University Press 1969); Ian Carter, A Measure of Freedom
(Oxford University Press 1999); David Miller, ‘Constraints on Freedom’ (1983) 94 Ethics 66; Hillel Steiner, An Essay on Rights
(Wiley 1994).
27
GA Cohen, ‘Freedom and Money’, On the Currency of Egalitarian Justice, and Other Essays in Political Philosophy (Princeton University
Press 2011); Matthew H Kramer, The Quality of Freedom (Oxford University Press 2003); Andreas T Schmidt, ‘Abilities and the
Sources of Unfreedom’ (2016) 127 Ethics 179; Amartya Sen, Development as Freedom (1st. ed., Knopf 1999).
11
So, is tobacco control compatible with (external) freedom of choice? The answer, one might be
tempted to say, is ‘it depends’. Tobacco control can be very hands-off, for example, when the
government offers cessation programmes or makes information about health risks available on a
government website. At the other extreme, tobacco control might take more invasive forms, such
as a ban on cigarettes, as has been put in place in Bhutan. My strategy here is to provide
arguments as to why even the most radical proposals are in principle compatible with personal
freedom. Given this compatibility, we should then have an easier time justifying less invasive,
more standard tobacco control measures, such as taxation, restrictions of smoking in public
places, information campaigns, regulation of products, age restrictions and so on. I develop the
arguments in much greater detail elsewhere, so I here only rehearse the main argumentative
moves.
28
The first argument builds on a thought experiment. Imagine cigarettes were not yet a consumer
product in your society and a company sought to introduce cigarettes as a new product.
29
Imagine
a regulator such as the FDA must now decide whether to allow cigarettes. Assume further that
the regulator knows what we know about cigarettes’ health risks. The regulator would not permit
cigarettes, and such a decision might strike us as justified.
30
As Khoo et al. write: ‘tobacco is such
a public health hazard that it is only an historical accident that makes its use lawful’.
31
But if
withholding such an option is justified in this hypothetical scenario, should it not also be justified to
28
Andreas T Schmidt, ‘Freedom and Tobacco Control’ (2018).
29
Andreas T Schmidt, ‘Withdrawing Versus Withholding Freedoms: Nudging and the Case of Tobacco Control’ (2016) 16 The
American Journal of Bioethics 3; Andreas T Schmidt, ‘Response to Open Peer Commentaries on “Withdrawing Versus
Withholding Freedoms: Nudging and the Case of Tobacco Control”’ (2016) 16 The American Journal of Bioethics W1.
30
Richard Ashcroft, ‘Smoking, Health and Ethics’ in Angus Dawson (ed), Public Health Ethics: Key Concepts and Issues in Policy and
Practice (Cambridge University Press 2011) 88; Sarah Conly, Against Autonomy: Justifying Coercive Paternalism (Cambridge University
Press 2013) 169; Robert E Goodin, ‘The Ethics of Smoking’ (1989) 99 Ethics 574, 611; Deborah Khoo and others, ‘Phasing-out
Tobacco: Proposal to Deny Access to Tobacco for Those Born from 2000’ (2010) 19 Tobacco Control 355.
31
Khoo and others (n 29) 356.
12
withdraw such an option when it already exists? As I argue elsewhere, while forceful, this argument
is not by itself decisive. Withdrawing an existing freedom might typically require a stronger
justification than withholding a new, equivalent freedom. For example, existing options might
have entered people’s conceptions of the good, or communities might have developed traditions
that involve such options. But the overall challenge remains: unless we have strong arguments as
to why such reasons should be decisive, withdrawing the freedom to smoke should not be
prohibitively harder to justify than withdrawing the option.
A second argument is about intrapersonal freedom or freedom across time. If a person’s freedom matters
now, her future freedom should also matter. If a young person takes up smoking, she might
develop a strong addiction and, as a result, her future health, life expectancy and expected
disposable income will be drastically reduced. As a result, her expected future freedom is
drastically reduced.
32
Therefore, removing the option to smoke can sometimes increase a person’s
expected future freedom.
33
Therefore, a concern with freedom of choice can speak for rather
than against strict tobacco control.
5 Consent
Some readers might worry that my response treats freedom as a good that ought to be promoted.
Instead they might argue freedom is about respecting individuals in their voluntary decisions:
even if cigarette smoking reduces people’s range of options, it is not the state’s responsibility to
32
The structure of the argument is familiar from John Stuart Mill’s argument about voluntary slavery. John Stuart Mill, On Liberty
(Penguin 1979) 173.
33
Andreas T Schmidt, ‘An Unresolved Problem: Freedom across Lifetimes’ (2017) 174 Philosophical Studies 1413; Schmidt,
‘Freedom and Tobacco Control’ (n 27). Also see Kalle Grill and Kristin Voigt, ‘The Case for Banning Cigarettes’ (2016) 42
Journal of Medical Ethics 293. for a similar argument and Jessica Flanigan, ‘Double Standards and Arguments for Tobacco
Regulation’ (2016) 42 Journal of Medical Ethics 305, 305. for a response.
13
increase expected freedom, as long as people consent freely. Respecting individuals as free
implies letting people make their own decisions, even when those are bad for them.
Of course, respecting consent would leave many tobacco control policies untouched. First, we
typically do not consider children sufficiently responsible to freely consent to various drugs,
which gives the government much leeway for tobacco control directed at minors. Second,
second-hand and third-hand smoke are hard to consent to, which makes protections such as
smoking bans in restaurants and pubs easier to justify. Third, providing health information about
cigarettes and even graphic warning signs are compatible with consent, as individuals can still
decide for themselves whether to smoke or not.
But I argue now that a concern with consent does not even rule out more drastic interventions.
For this, I first discuss how rational and autonomous people are in their decisions to smoke.
Prima facie, how strongly we should value consent as an argument in law and public policy also
depends on the extent to which people make decisions autonomously. Being able to consent
requires, first, that one is sufficiently autonomous in one’s preferences and desires when one
decides (volitional autonomy) and, second, that one is sufficiently rational in assessing options
(rationality). If those conditions are not fulfilled, then the argument against interference becomes
much weaker and other reasons, such as health and wellbeing, more easily override a concern
with consent. Let me start with volitional autonomy.
First, acting autonomously requires acting from desires or preferences that are truly one’s own.
34
Consider cases where I lack volitional autonomy: through manipulation, peer pressure,
brainwashing, or oppression, I might acquire preferences that I would not have chosen for myself
34
John Christman, ‘Autonomy and Personal History’ (1991) 21 Canadian Journal of Philosophy 1; Harry G Frankfurt, ‘Freedom
of the Will and the Concept of a Person’ (1971) 68 The Journal of Philosophy 5; Michael Garnett, ‘The Autonomous Life: A Pure
Social View’ (2014) 92 Australasian Journal of Philosophy 143; Marina Oshana, Personal Autonomy in Society (Ashgate Publishing,
Ltd 2006).
14
had I had the opportunity to develop preferences in a free and non-heteronomous environment.
While different theories spell out volitional autonomy differently, the theoretical details should
not detain us here. Most theorists agree that tenacious addictions impinge volitional autonomy.
And nicotine addiction does so in several ways.
First, most smokers say they wish they had never started, most have tried to stop but failed, and
most wish they could stop.
35
Smoking is addictive. One way to capture addiction here is through
Harry Frankfurt’s classic analysis. While addicted smokers desire cigarettes, this first-order desire
clashes with a higher-order desire most smokers have, namely the desire not to desire to smoke.
36
Moreover, most smokers likely hold desires whose fulfilment is made difficult or even thwarted
by their addiction. For example, along with almost everyone else, most smokers likely prefer to
be in good rather than bad health, to live longer rather than shorter lives, and to have disposable
income to spend on things other than cigarettes.
Second, most smokers started smoking, either occasionally or daily, before the legal age of
consent. For example, 80% of adult US-American smokers had their first cigarette before they
were 18 and more than 60% of daily smokers were daily smokers before they were 18.
37
Moreover, if you start early, your brain structure is more malleable, which can intensify your
nicotine addiction later.
38
Finally, young people can be subject to peer pressure, which makes
their decision to take up smoking look even less like the result of an autonomous preference.
39
35
Grill and Voigt (n 32).
36
Frankfurt (n 33).
37
‘Preventing Tobacco Use among Young People: A Report of the Surgeon General’ (US Department of Health and Human
Services 2012) 1345.
38
Stephanie R Morain, ‘Tobacco 21 Laws: Withdrawing Short-Term Freedom to Enable Long-Term Autonomy’ (2016) 16 The
American Journal of Bioethics 26, 267.
39
See (Grill and Voigt 2016) for further discussions.
15
Taken together, these points suggest that smoking itself can reduce people’s volitional autonomy
and thereby their capacity to consent to using tobacco.
Besides volitional autonomy, competent consent also requires some degree of rational agency.
Imagine you are confronted with a choice between many options. Assume you have ‘volitionally
autonomous’ goals and now need to assess which options will best further your goals. In many
cases, you might consistently make the wrong choices. For example, imagine you plan to stick to
a healthy diet and consistently misjudge what is healthy, miscalculate calorie information and
consistently make unhealthy choices. Your inability to make good decisions seriously hampers
your ability to lead an autonomous life. Rational agency here requires sufficient information
about options and the ability to process such information guided by one’s conception of the
good. Now, applied to smoking, various arguments suggest that smokers consistently make
irrational choices.
First, do people know enough about smoking? In rich countries these days, most people know
that smoking is not good for you.
40
But such information dispersion might not be enough. It is
not clear everyone can adequately assess the magnitude and extent of the risks. Smokers might
know that smoking increases one’s cancer risk but are often ill-informed about the other risks,
such as cardiovascular and pulmonary conditions. Smokers also often have false beliefs about the
relative harmfulness of cigarettes, for example thinking that low-tar, filtered or light cigarettes are
less harmful.
41
Moreover, knowledge of health risks strongly varies with socioeconomic status,
40
K Michael Cummings and others, ‘Are Smokers Adequately Informed about the Health Risks of Smoking and Medicinal
Nicotine?’ (2004) 6 Nicotine & Tobacco Research S333; M Siahpush and others, ‘Socioeconomic and Country Variations in
Knowledge of Health Risks of Tobacco Smoking and Toxic Constituents of Smoke: Results from the 2002 International Tobacco
Control (ITC) Four Country Survey’ (2006) 15 Tobacco Control iii65.
41
Cummings and others (n 39).
16
education and across countries. Highly educated people in industrialized countries might know
enough about the risks of smoking, but that is not so for most others.
42
Second, human decision-making is riddled with cognitive biases, which stands in the way of
rational decision-making. Philosopher Sarah Conly builds her case for a smoking ban largely
around such failures of rationality. Such biases can include optimism bias, the availability
heuristic, and hyperbolic discounting.
43
A third reason to add here is that people are not very good at judging the costs and benefits of
smoking. Smokers might perceive several benefits: smoking can have an enjoyable social
dimension, it might help smokers manage stress, give them something to do when they are bored,
or just make them feel cool.
44
There is also the widespread belief that cigarettes help with weight
loss.
45
But most purported benefits are either smaller than believed or wholly non-existent.
Smoking overall does not reduce but increase stress, does not help with weight loss, and does not
increase but reduce people’s reported life satisfaction and happiness.
46
Finally, most people are not good at considering and estimating their future preferences and
wellbeing. A person who values smoking highly given her current preferences might think her
future self will happily give up some life years to facilitate her former self being able to smoke.
42
Siahpush and others (n 39).
43
Conly (n 29); Grill and Voigt (n 32); Goodin (n 29); Paul Slovic, ‘What Does It Mean to Know a Cumulative Risk? Adolescents’
Perceptions of Short-Term and Long-Term Consequences of Smoking’ (2000) 13 Journal of Behavioral Decision Making 259.
44
Bonnie L Halpern-Felsher and others, ‘Perceived Risks and Benefits of Smoking: Differences among Adolescents with
Different Smoking Experiences and Intentions’ (2004) 39 Preventive Medicine 559.
45
‘Preventing Tobacco Use among Young People: A Report of the Surgeon General’ (n 36) ch 2.
46
AC Parrott, ‘Nesbitt’s Paradox Resolved? Stress and Arousal Modulation during Cigarette Smoking’ (1998) 93 Addiction
(Abingdon, England) 27; R West and P Hajek, ‘What Happens to Anxiety Levels on Giving up Smoking?’ (1997) 154 The
American Journal of Psychiatry 1589; ‘Preventing Tobacco Use among Young People: A Report of the Surgeon General’ (n 36)
ch 2; Daniel Kahneman and Angus Deaton, ‘High Income Improves Evaluation of Life but Not Emotional Well-Being’ (2010)
107 Proceedings of the National Academy of Sciences 16489.
17
However, such reasoning is often misguided. We typically falsely assume that how we are now is
our ‘real self’ and systematically underestimate how much our personality changes over time.
47
Second, we might be bad at predicting our future wellbeing. Smoking reduces life expectancy by
about ten years.
48
Life years lost tend to come towards the end of one’s life. Anecdotally, I have
heard smokers say that given that one has a lower of quality of life towards the end of one’s life,
one might rationally want to frontload some of the benefits at the expense of a shorter life. But
data seems to bear out a different picture.
49
According to the U-curve of life satisfaction, young
people are on average very happy that is until their 30s and then their satisfaction drops. Life
satisfaction then picks up again in old age (after 60). Accordingly, this gives us reason to be
careful about trading off minor benefits now with life years lost at the end of one’s life, given that
those can potentially be among the happiest of our lives.
Overall then, smokers often act with insufficient volitional autonomy and rational agency. While
this does not make consent irrelevant, it means that consent is a relatively weak reason against
interference weak enough to not rule out drastic interference.
However, someone might now accuse me of double standards. We typically do not think
irrationality sufficient to justify government interference for other suboptimal decisions. Smokers
are not the only ones being irrational. As much behavioural science research shows, we all tend to
often act on cognitive biases.
50
Why should we treat smoking differently than other consumption
47
Jordi Quoidbach, Daniel T Gilbert and Timothy D Wilson, ‘The End of History Illusion’ (2013) 339 Science 96.
48
Jha and others (n 1).
49
Andrew Steptoe, Angus Deaton and Arthur A Stone, ‘Subjective Wellbeing, Health, and Ageing’ (2015) 385 The Lancet 640;
Arthur A Stone and others, ‘A Snapshot of the Age Distribution of Psychological Well-Being in the United States’ (2010) 107
Proceedings of the National Academy of Sciences 9985.
50
Daniel Kahneman, Thinking, Fast and Slow (Farrar, Straus and Giroux 2011); Richard H Thaler and Cass Sunstein, Nudge (Yale
University Press 2008).
18
choices?
51
In response, we should grant that cognitive biases and lack of information are not
problems uniquely specific to smoking. But we should nonetheless treat smoking differently than
many other unhealthy choices. Smoking is very addictive and deadly and any benefits, inasmuch
as there are any, are marginal. So, smoking is in a different category than many other unhealthy or
otherwise suboptimal activities. The government should often let us make mistakes, but only if
those do not trap us in dangerous addictions and kill us. Here irrationality need not justify
interference. But when irrationality applies to extremely harmful and addictive substances, the
case is different.
Together with section 4, we can thus conclude that concerns around personal freedom and
consent do not speak against a human right to tobacco control. In principle, such concerns are
even compatible with very severe government interference.
52
6 Human rights and power
In this final section, I address issues around power. Human rights legislation changes power
structures in various ways.
53
What would be the effects for tobacco control?
Human rights law should protect individuals against illegitimate government interference. But we
might now worry that a human right to tobacco control achieves the opposite, because it
furnishes governments and international institutions involved with human rights law with too
much power to exercise control over individuals and their consumption choices. We can draw on
neo-republicanism to formulate such worries around power. Philip Pettit argues that the central
51
Flanigan (n 32); Grill and Voigt (n 32).
52
In principle, I think strict endgame measures are justifiable (if effective), see Grill and Voigt (n 32); Schmidt, ‘Withdrawing
Versus Withholding Freedoms’ (n 28). However, I here do not further this question, as I only defend a human right to tobacco
control. And a human right imposes a ‘floor constraint’ on countries rather than requiring maximal tobacco control.
53
See (Gilabert 2018) on general issues around human rights and power.
19
value in normative political philosophy should be non-domination. Non-domination requires being
free from uncontrolled power:
Domination: person A is dominated by person B with respect to A’s option x, if and
only if B has the power to determine whether A has x or not and such power is not
suitably controlled.
54
Other people, private companies and groups, and the government dominate me, if they can
interfere with my options without their power being controlled in such a way that they must track
my interests. For example, a slaveholder dominates a slave, because they have the power to
interfere with the slave’s options without their power being controlled by the slave or by anyone
acting on behalf of the slave. Note that the slave can remain dominated, even if the slaveholder
does not exercise their power. Conversely, some forms of interference, say a just government
collecting taxes, are not dominating, when the power to interfere is suitably controlled, for
example, through constitutional provisions, democratic decision-making, regular free elections
and so on.
Here I think we ought to conclude that even very strict tobacco control need not be a form of
government domination. I have above argued that a concern with freedom of choice does not
rule out strict tobacco control. So, if interference with people’s option to smoke is decided and
implemented by institutions that are not dominating, then such an interference is not dominating.
For that, it should be exercised by institutions and agents that are institutionally forced to track
the relevant interests of citizens through, for example, democratic and transparent decision-
making, constitutional protections and so on. Of course, the justificatory stakes for strong
tobacco control can be high, seeing that some smokers might be opposed to strong interference.
But this raises the stakes for such control to be enacted in a non-dominating way and through
54
See Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge University Press 2012); Philip Pettit,
Just Freedom: A Moral Compass for a Complex World (W W Norton & Company 2014); Andreas T Schmidt, ‘The Power to Nudge’
(2017) 111 American Political Science Review 404.
20
non-dominating political and legal institutions. It does not imply that strict tobacco control is a
form of government domination.
55
Note how we can now turn this potential objection around to use non-domination as an
argument in favour of strict tobacco control. Besides the government, private companies also
exercise power over our lives. Tobacco companies have the power to influence our choice
environments. Whether people decide to smoke is often dependent on the choice environment
they find themselves in, where this encompasses which options are available, how they are priced,
how they are presented, what information is available, what norms exist around smoking, what
people in one’s peer group do, and so on.
56
Domination need not be brute coercion but can also
come from uncontrolled power to influence our choice environments in more subtle ways.
57
Tobacco companies have ample strategies to do so. They, for example, use marketing strategies
and ad campaigns. Such campaigns can be powerful in, among other things, giving consumers
systematically false beliefs about the harmfulness of their products (such as so-called ‘light’
cigarettes).
58
Or they devise clever differentiated pricing strategies, use point-of-scale marketing in
stores, use attractive package designs, install cigarette vending machines to make cigarettes more
accessible and so on.
59
So, furnishing governments with the power needed for strict tobacco
control can reduce domination, because it can protect individuals against powerful tobacco
companies and their power to shape our choice environments.
Note how this argument has particular force for less powerful groups.
55
Schmidt, ‘Withdrawing Versus Withholding Freedoms’ (n 28).
56
Alberto Alemanno, ‘Nudging Smokers The Behavioural Turn of Tobacco Risk Regulation’ (2012) 3 European Journal of Risk
Regulation 32; ‘Preventing Tobacco Use among Young People: A Report of the Surgeon General’ (n 36) ch 4.
57
Schmidt, ‘The Power to Nudge’ (n 53).
58
Cummings and others (n 39).
59
‘Preventing Tobacco Use among Young People: A Report of the Surgeon General’ (n 36) ch 5.
21
First, people of low socioeconomic status (SES) typically already experience more domination
than those with a higher SES. Lack of tobacco control might make lower-SES populations more
vulnerable to harmful social pressures and the influence of tobacco companies Smoking has a
social gradient, affecting lower-SES populations more strongly and thereby contributing strongly
to the social gradient of mortality and morbidity.
60
And financing a nicotine addiction is
expensive, which affects lower-SES populations and their disposable income more strongly given
their weaker financial positions.
Second, nicotine addiction is more prevalent among people with mental health problems who
often find themselves in more vulnerable positions already.
61
Preventing and reducing nicotine
addiction can thus be empowering.
Finally, the case is at its strongest at the international level. Around 80% of smokers are from low
and middle-income countries.
62
Weaker regulations, threats by tobacco companies to sue
countries if they implement tobacco control measures, less information about the harms of
smoking, and weaker public health institutions all imply that the protection against Big Tobacco’s
influence can be weaker in such countries.
63
Strong tobacco control and strong (non-dominating)
public health institutions are then less a source of domination but likely the opposite: they should
empower public institutions to curb Big Tobacco’s power over individuals and their choice
environments.
60
See Michael Marmot, ‘Social Determinants of Health Inequalities’ (2005) 365 The Lancet 1099. on health inequality in general
and Prabhat Jha and others, ‘Social Inequalities in Male Mortality, and in Male Mortality from Smoking: Indirect Estimation from
National Death Rates in England and Wales, Poland, and North America’ (2006) 368 The Lancet 367; Michael Marmot, ‘Smoking
and Inequalities’ (2006) 368 The Lancet 341. on smoking inequalities.
61
Karen Lasser and others, ‘Smoking and Mental Illness: A Population-Based Prevalence Study’ (2000) 284 JAMA 2606.
62
‘WHO Tobacco Fact Sheet’ (n 2).
63
Anna B Gilmore and others, ‘Exposing and Addressing Tobacco Industry Conduct in Low and Middle Income Countries’
(2015) 385 Lancet 1029.
22
So, tobacco control can be empowering. Human rights law might here play a dual role. On the
one hand, a human right to tobacco control can empower national governments, as it might
intensify the international community’s efforts and support structures to aid national
governments in their tobacco control efforts. One the other hand, human rights law constrains
national governments: if governments fail to protect against tobacco harms, they might face
outside pressures. A core function of human rights law is to protect citizens against bad
governments. And in this sense, human rights law is a legitimate form of controlling government
power. Forcing governments to protect their populations forces them to at least minimally act in
their interests. Note that a human right to tobacco control does not, and should not, impose a
maximal and fully determinate tobacco control strategy. Rather, as with most other human rights,
it imposes a ‘floor constraint’ of what kind of protection should exist and gives governments
leeway to tailor policies to their specific situation. Moreover, an international framework should
not require measures that are very controversial or whose evidence basis is weak.
64
But in both
ways empowering and limiting national governments a human right to tobacco control could
help empower individuals and their protection against Big Tobacco’s power.
7 Conclusions
I have argued that the legal and philosophical case for a human right to tobacco control is strong.
Individuals ought to have a claim against their government to protect them against tobacco
harms. I have also addressed several philosophical worries around such a right. I argued that
neither the traditional distinction between negative and positive rights, nor a concern with
external freedom of choice or personal consent stand in the way of a human right to tobacco
64
For example, tobacco control specialists fervently debate whether e-cigarettes and other Electronic Nicotine Delivery Systems
(ENDS) should accompany tobacco harm reduction or whether they instead pose a grave threat. Given serious disagreements, I
think it would be a serious mistake if international legal frameworks tried to impose an anti-ENDS approach on countries.
23
control. I also analysed how a human right might affect power relations arguing that a human
right to tobacco control is a promising avenue to empower governments and individuals to curb
the power of big tobacco companies. This argument has particular force in developing countries
where governance structures are often less powerful in the face of corporate power. Individual
claims to be protected against tobacco harms are so strong that it warrants both international
support for and limitations on national governments through human rights legislation.
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Article
Full-text available
Nudging policies rely on behavioral science to improve people's decisions through small changes in the environments within which people make choices. This article first seeks to rebut a prominent objection to this approach: furnishing governments with the power to nudge leads to relations of alien control, that is, relations in which some people can impose their will on others—a concern which resonates with republican, Kantian, and Rousseauvian theories of freedom and relational theories of autonomy. I respond that alien control can be avoided, if nudging is suitably transparent and democratically controlled. Moreover, such transparency and democratic control are institutionally feasible. Building on this response, I then provide a novel and surprising argument for more nudging: democratically controlled public policy nudging can often contain the power of private companies to nudge in uncontrolled and opaque ways. Therefore, reducing alien control often requires more rather than less nudging in public policy.
Withdrawing Versus Withholding Freedoms
  • Schmidt
Schmidt, 'Withdrawing Versus Withholding Freedoms' (n 28).
Preventing Tobacco Use among Young People: A Report of the Surgeon General
  • Alberto Alemanno
Alberto Alemanno, 'Nudging Smokers The Behavioural Turn of Tobacco Risk Regulation' (2012) 3 European Journal of Risk Regulation 32; 'Preventing Tobacco Use among Young People: A Report of the Surgeon General' (n 36) ch 4.