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Tobacco Endgame: The Poverty Conundrum by Lawrence O. Gostin

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here is no more striking public health triumph than the demise of the “brown plague.” The cigarette was once an accoutrement of the good life, but smoking is now a tragic habit of the poor. By the mid-1960s, half of all men and a third of women in the United States smoked. Today the national prevalence is 18 percent, with rates in major cities below 15 percent. A suite of policies drove down smoking rates—antismoking campaigns, taxation, clean air laws, package labeling, and marketing curbs. These policies, and the resultant behavior changes, however, have diminishing returns. Is it possible that tobacco rates will remain relatively stagnant? If so, what “endgame” strategies might drive rates to negligible levels, say, lower than 5 percent? And if society does achieve such an audacious goal, how attentive should it be to the problems of social justice? Tobacco control has focused intensely on reducing demand, and an endgame strategy must push these reforms still further—extending clean air bans to multioccupant apartments and outdoor public places, requiring plain packaging and larger, graphic warnings, banning advertising (especially to children), and blocking misleading messages such as the use of color-coded packages to signal “light” or “mild.” These policies denormalize smoking so that the behavior is personally and socially unappealing. One powerful counterforce to denormalization, however, is Big Tobacco’s 10 HASTI N G S C E N T E R R E P ORT

move to expand smokeless tobacco markets, especially electronic cigarettes, to offset declining cigarette sales. “Hookah pens,” “e-hookahs,” and “vape pipes” are marketed in glossy magazines; targeted to the young through advergames (interactive websites that integrate products, in this case, e-cigarettes, into the games); offered in enticing colors, flavors, and scents; and sold in chic, fun-loving shops, with long queues to buy the latest fashion. Liquid nicotine (which can kill a child at low doses), used to refill e-cigarettes or hookah pens, is displayed in racks of flavors— cinnamon apple, banana nut, vanilla cupcake, and chocolate candy bar.1 What sets endgame strategies apart is the focus on the supply side of the tobacco market—rendering cigarettes a lawful but intensely regulated product. Tobacco companies perpetuate sales through the pathway of nicotine addiction. Marketing and peer pressure lure young people into experimenting with tobacco, and by the time they grasp the existential threat, they are chemically dependent. Most adults who began smoking as adolescents wish they had never taken up the deadly habit. There is no reason that government ought to permit an addictive and dangerous consumer product to remain on the market. Tobacco control advocates are urging a constellation of endgame strategies, getting to near-zero tobacco use over time. Reduce nicotine content. Congress has empowered the Food and Drug

Administration to regulate nicotine content in tobacco products. The agency could require companies to reduce nicotine content gradually, to below the threshold of addiction.2 If tobacco were no longer addictive, young people could experiment, but most would give up over time. Evolving the product incrementally to nonaddictive levels entails an intergenerational trade-off: younger generations will be saved from the trap of addiction, but already addicted smokers could increase their toxic exposures as they compensate for lower nicotine levels (such as through deeper inhalation). Expansion of cessation and nicotine replacement therapies could mitigate those harms.3 Increase the legal age of sale. Cities and states have police powers to set age restrictions on tobacco sales. Last year, New York City set an age limit of twenty-one years to buy tobacco products— among the highest in the United States. Cities could gradually set the legal age progressively higher. With rigorous enforcement, and tight control of the illicit market, younger generations would be saved from a lifetime of smoking. Over time, the increasing age strategy would transform culture so that younger people never want to smoke.4 License smokers. Cities and states license all kinds of activities to safeguard health and safety. Smoking is the kind of hazardous activity that appears well within the state’s power to regulate. States could require smokers to obtain a license to purchase tobacco, premised on demonstrating knowledge of its addictive and hazardous quality, with the payment of an annual licensing fee. To incentivize smokers to quit, the state could offer to refund the cumulative license fee with interest if the individual relinquished the license by a certain age. This comports with data showing that individuals who give up smoking by middle age have life expectancies similar to nonsmokers.5 Ban tobacco marketing. As regulators struggle to taper demand, the industry has been cagey and unrelenting in its marketing in a bid to addict a new generation of buyers. It has not escaped the industry’s notice that children are May-June 2014

their future customers, prompting a move to social media such as Facebook, Myspace, and Twitter. This game of cat and mouse between public health and Big Tobacco could end if all tobacco messages were handled exclusively by a public agency with a public health mandate. This could be the most constitutionally troublesome proposal, as the Supreme Court has been buttressing its defense of commercial speech. But it would not be beyond the limits of good governance to ensure that consumers received only truthful messages about health, addiction, and cessation. Any information apart from this is bound to mislead. Employ the “sinking lid.” Even more ambitious is a “sinking lid” strategy whereby regulators incrementally limit the amount of tobacco available for commercial sale, eventually to zero. For example, the government could set a quota on the number of cigarettes sold each year, diminishing over a ten-year time horizon. As supply dwindles, the price of tobacco will be driven upward toward its real social cost. High prices will incentivize smokers to quit and deter younger people from taking up the habit.6 Ban commercial sales. Chief Justice Rehnquist once famously said that the power to ban a product surely encompasses the power to curb its advertising. He later revoked that sentiment because government unequivocally has the power to ban hazardous substances, but not necessarily to curb all commercial marketing of a lawful product. The most far-reaching endgame strategy, then, would be to simply ban the commercial sale of cigarettes.7 Alternatively, the state could gradually phase out cigarette sales by changing minimum-age restrictions from “above 18” to “born before 2000.”8 There is universal agreement that if cigarettes were introduced today, regulators would never approve them for commercial sale. It is important to stress that the most audacious policies, such as the “sinking

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lid” and commercial sales bans, would leave a core of highly addicted smokers in withdrawal and distress. It would disproportionately impact vulnerable populations, such as prisoners, the homeless, and the mentally ill, who often smoke heavily. The state would have to compensate in a humane way through well-funded and targeted interventions to these groups, such as counseling and nicotine replacement therapies. Endgame strategies would have to confront the same kinds of sociocultural problems that arose with alcohol prohibition and the destructive “war on drugs.” There are, however, crucial distinctions: nicotine, tobacco’s addictive component, would remain accessible in safer forms (nicotine replacement therapies, for example); no criminal sanctions would be imposed on smokers, with suppliers as the primary targets; and endgame strategies would be initiated only once smoking prevalence sank to a tipping point, such as under 10 percent. At that point, smoking would have become so socially exceptional that the public would likely accept rigorous endgame strategies. Tobacco control—including endgame—strategists face a social justice dilemma. Smoking rates have plummeted, but there remains a deep socioeconomic divide. Rates in affluent suburbs are now down to 10 percent, while physicians smoke at rates under 5 percent. Yet in poor rural areas, rates can rise as high as 40 percent.9 Adults living with mental illness, particularly the homeless, have smoking rates twice the national rate, dying on average twenty-five years earlier than members of the general population and often from smokingrelated causes such as lung cancer and respiratory diseases. I once put the question to endgame strategists: “Would it be ethically acceptable if we significantly reduced overall prevalence, with most gains in the upper tier, while rates stagnated among the poor?” To many in that group, this outcome seemed good enough, but would it really be?

Focusing solely on aggregate measures, advocates would turn a blind eye to distributional equity. Moreover, Big Tobacco’s seemingly ingrained response to broad societal declines in smoking is to prey on the most vulnerable—intensifying marketing to less-educated American consumers and to lower-income countries. The yawning poverty gap in smoking exacerbates existing, and unconscionable, health disparities. Endgame strategies, therefore, must pay particular attention to the least advantaged, focusing on the equitable distribution of benefits. What justice requires is that the poor do not feel the blowback of the last blasts in the war against Big Tobacco.10 1. M. Richtel, “E-Cigarettes, by Other Names, Lure Young and Worry Experts,” New York Times, March 4, 2014. 2. N. L. Benowitz and J. E. Henningfield, “Establishing a Nicotine Threshold for Addiction: The Implications for Tobacco Regulation,” New England Journal of Medicine 331 (1994): 123-25. 3. C. Gartner and A. McNeill, “Options for Global Tobacco Control beyond the Framework Convention in Tobacco Control,” Addiction 105 (2010): 1-3. 4. R. A. Daynard, “Doing the Unthinkable (and Saving Millions of Lives),” Tobacco Control 18 (2009): 2-3. 5. S. Chapman, “The Case for a Smoker’s License,” PLOS Medicine 9 (2012): e1001342. 6. G. Thomson et al., “Ending Appreciable Tobacco Use in a Nation: Using a Sinking Lid on Supply,” Tobacco Control 19 (2010): 431-35. 7. Daynard, “Doing the Unthinkable (and Saving Millions of Lives)”; R. N. Proctor, Golden Holocaust (Berkeley, CA: University of California Press, 2012). 8. D. Khoo et al., “Phasing Out Tobacco: Proposal to Deny Access to Tobacco for Those Born from 2000,” Tobacco Control 19 (2010): 355-60; A. Darby and A. Corderoy, “Bid to Ban Cigarettes for Anyone Born after 2000,” The Age, August 22, 2012. 9. S. Tavernise and R. Gebeloff, “In a New Divide, Smoking Is a Habit of the Poor,” New York Times, March 25, 2014. 10. B. P. Thomas and L. O. Gostin, “Tobacco Endgame Strategies: Challenges in Ethics and Law,” Tobacco Control 22 (2013): i55-i57. DOI: 10.1002/hast.307

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Tobacco endgame: the poverty conundrum.

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