Kayhan Parsi, JD, PhD

In the first-year clinical skills course at our medical school, we offer a session on tobacco cessation. In this part of our course, we emphasize to our medical students the significant costs tobacco use incurs. The costs to health are now well documented. The financial costs are substantial as well. We teach our students that they can have a positive impact upon their patients’ health by utilizing motivational interviewing techniques and applying the 5 A’s of change (ask, advise, assess, assist, arrange). The students obtain some basic skills counseling patients on smoking cessation. They understand they can play a relevant role in addressing this major public health issue. And, of course, we want our clinicians to be able to influence positive health changes in their patients. But, the reality is that certain public health measures can play an even bigger role in reducing tobacco use.

Take for example the ban on indoor smoking that took place here in the state of Illinois in January of 2008. Before this legislation was passed, it faced vociferous opposition from certain trade groups, particularly the restaurant and casino lobby. The fear was that this kind of legislation would drive smoking patrons away and harm the economic interests of such entities. Smoke Free Illinois has had a dramatic impact, virtually eliminating indoor smoking in this state, and having a positive impact upon the effects of second hand smoke. Indeed, this policy is an example of withdrawing an activity that was once perfectly legal. It’s a more subtle form of withdrawing than what Schmidt is arguing for in this issue of AJOB. Instead of outright banning (withdrawing) cigarettes, this policy bans (withdraws) the activity of smoking in certain locations. To use the parlance of Schmidt and others, it’s a public health nudge in the direction of curtailing smoking but stops short of an outright ban of cigarettes. In his Target Article, Schmidt argues that there isn’t a real moral difference between withholding a substance (in this case tobacco) versus withdrawing it completely. In our example of the state of Illinois, the new policy effectively withdraws an activity that was once legal but is now no longer so. Would it have made any moral difference if the state had never permitted indoor smoking? For Schmidt, there is little morally to distinguish the two.

Schmidt provides a highly philosophical analysis, but ignores the history behind why we have a tradition of allowing access to certain kinds of drugs (e.g. nicotine, alcohol, caffeine), but do not allow access to others kinds of drugs (although this is changing with new laws allowing recreational use of marijuana). The history behind this is quite revealing. At one time, substances such as cocaine and heroin were legal. Now they are illegal. When these drugs became associated with members of certain strata of society, the stigma associated with these drugs increased. Opium use was associated with Chinese immigrant laborers; marijuana use was associated with immigrants from Mexico and Latin America. Black men became associated with cocaine use. As these various drugs became “racialized” their stigma increased and they eventually became illegal. Our failed “war on drugs” is the unfortunate descendant of these race-based bans on drugs in the 20th century.

Thus, when we “withdraw” a formerly legal substance, we have to examine not only relevant issues of moral non-equivalence, but we also have to examine the history behind such a move. Why was the substance not withheld to begin with? Tobacco has a history that predates the founding of the United States. As recounted by Iain Gately, the indigenous peoples of the Americas used tobacco for spiritual and medicinal purposes for centuries. Within a couple of centuries of European settlement, tobacco quickly took root as a highly prized commodity, flourishing in the slavery economy of the South. With the growth of cigarettes as a consumer good in the 20th century, concerns about health and safety began to grow. In the last half century, we have witnessed many policy interventions aimed at curtailing smoking (such as the aforementioned Smoke Free Illinois Act). Is public health the only concern in withdrawing a formerly legal substance? Or is it a form of social control? In withdrawing a substance, are we creating a new underground economy? The reality is that tobacco use in this country has become highly stigmatized and is linked with lower socio-economic status (SES). Both Schmidt and Bovens acknowledge this. If SES is a social determinant of health, do we nudge individuals with low SES into making better health decisions if they simply do not have access to tobacco products? A complete withdrawal (ban) of tobacco as described by Schmidt could have this impact. Although this would be highly paternalistic, its impact would fall on everyone and not just certain segments of the population. The truth is that current high taxes on tobacco are in effect a regressive tax on the poor.

As an ethical analysis, Schmidt’s conclusion is compelling: “if we believe that cigarettes would not and should not be allowed to enter a market in hypothetical scenarios in which they do not yet exist, then concerns about personal freedom do not give us strong reason against also seeking their abolition in situations, such as ours, in which cigarettes do exist.” But it’s important to also acknowledge the complex history behind such a product. We have shifted from embracing tobacco to ambivalently accepting it to now trying to curtail its use more and more. If we only discovered tobacco now, would we simply ban its use? Perhaps. But the lesson of normalizing marijuana use is instructive. As I have mentioned elsewhere, we live in a world that is paradoxically normalizing marijuana use but increasingly stigmatizing tobacco use. In a world that never had tobacco to begin with, would we allow such a harmful product to enter the market? For strictly public health reasons, probably not. As the WHO states in a recent report: “Tobacco is the only legal drug that kills many of its users when used exactly as intended by manufacturers.”