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Smoking and Limitations on Liberty

close-up photograph of defiant smoker in sunglasses

At the end of last month, the recently elected coalition government in New Zealand decided to scrap a world-leading policy implementing an effective ban on smoking nationwide. The legislation – passed in 2022 and set to come into force in July 2024 – would have raised the smoking age annually, so that someone who was 14 years old at the time of the policy’s implementation would never be able to legally purchase a cigarette. The pioneering approach subsequently inspired the proposal of similar legislation in the U.K. amongst other jurisdictions.

The chief reason for the axing of this policy was financial. Tobacco sales generate revenue, and the incoming government of New Zealand needs this revenue in order to fund its many promised tax cuts. However other concerns played a role, including the familiar specter of the nation becoming a “nanny state” that dictates how people should live their lives. But are these concerns sufficient to justify the overturning of a policy that would have reduced mortality rates by 22% for women, and 9% for men – saving approximately 5,000 New Zealand lives per year?

At its core, this policy – like others that limit our ability to imbibe potentially harmful substances – becomes a debate about whether we should take a paternalistic or libertarian view of the role of government. Paternalists see the government in a parental light, and – as such – believe that the government is justified in restricting the liberty of its citizens where doing so is in the citizens’ best interests. Libertarians, on the other hand, see freedom as being of paramount importance, and endorse the government restricting personal freedoms in only very limited scenarios. What kind of cases might qualify? One approach the Libertarian might take is to apply something like John Stuart Mill’s Harm Principle, which holds that our freedoms should only be limited where our actions will cause harm to others. Could, then, a Libertarian justify an effective ban on smoking? Perhaps. The harms of secondhand smoke (i.e., the inhaling of cigarette smoke by those who do not choose to smoke) are well-known. In the U.S. alone, secondhand smoke causes nearly 34,000 premature deaths every year. This is precisely the kind of harm that might justify a limitation of our personal freedom under a libertarian approach.

But suppose that an individual manages to smoke in a manner that creates no harm whatsoever for anyone else. This isolated smoker consumes tobacco exclusively in a private, sealed environment so that the only harm caused is harm to themself. Might the state nevertheless be justified in restricting the liberty of this individual? Here, the libertarian will most likely say “no.” The paternalist, on the other hand, might endorse a liberty-restricting policy. But on what basis?

There are myriad ways in which the paternalist might justify the infringement of an individual’s liberty, even where no harm is done to others. One method comes via an application of utilitarianism (also popularized by John Stuart Mill). At its core, utilitarianism claims that the right thing to do is that which maximizes welfare – i.e., how well people’s lives go. How are we to measure this? One way (and the way which Mill himself adopts) is hedonistically. This approach involves tallying up the total pleasures and pains brought about by different options, and choosing that which maximizes pleasure (or, at the very least, minimizes pain).

What would this hedonistic utilitarian make of the isolated smoker case above? Well, chief among their considerations would be the pleasures (presumably) gained from the smoker’s enjoyment of their cigarettes. But these pleasures would then need to be weighed against the pains caused by this same activity: specifically, the detrimental effects that smoking has on one’s health. Now, some of those pains might not be immediate – and some might never occur. In this case, the calculation of pains might need to take into account the risk of those harms eventuating – discounting them according to how unlikely they are to occur. Ultimately, the question posed by the hedonistic utilitarian will be do the pleasures of smoking outweigh the actual (and potential) harms? Where they do not, the state might find moral justification in preventing that individual smoking, since it will not be the action that maximizes their welfare.

But utilitarianism isn’t the only moral theory we might apply. Immanuel Kant’s approach is decidedly different, and focuses on a respect for human dignity. His Humanity Formulation of the Categorical Imperative states that an action is right if and only if it treats persons as ends in themselves and not as a mere means to an end. Might the Kantian object to restricting the liberty of the isolated smoker? It would certainly seem that the state is using the individual as a means to an end – that being the end of promoting health. But are they using the individual as a mere means? Arguably not. If I befriend a classmate for the sole purpose of having them help me write an assignment, I am using them as a mere means. If, however, I pay a mechanic to work on my car, I am not using them as a “mere” means, since my treatment of the mechanic happens to facilitate their end of gainful employment.

The same might be true in the case of liberty-limiting legislation and smoking. While the state is using the individual as a means, they might be doing so in a way that promotes the ends of the individuals. What are those ends? We can take our pick from the many things that the smoker values in life: waking up each morning to enjoy the sunrise, engaging in physical exercise, watching their grandchildren graduate. All of these ends are threatened by their smoking, so that preventing this individual from smoking might in fact respect those ends.

Whether or not the state is right to limit their citizens’ ability to engage in harmful behavior is a conversation both complex and nuanced. It’s unfortunate, then, that in the case of New Zealand this decision seems to have been made largely on the basis of financial considerations and political pragmatism. Instead, careful attention should be paid to how we see the state: whether its role is paternalistic, and – if so – what kinds of moral principles might justify its intervention in our lives.

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Smoking Legislation and the E-Cigarette Epidemic

photograph of Juul pods with strawberries, raspberries, a peach, and a cocktail

At the end of the year, President Trump signed legislation changing the federal minimum age for tobacco and nicotine purchase from 18 to 21. This move to raise the federal smoking age was made in response to the popularity of e-cigarettes amongst teen users and the e-cigarette epidemic. To combat this public health crisis, attempts have also been made to ban flavored e-cigarettes. For e-cigarettes to stay on the market, vape companies will need to prove that they cause more good than harm. This proposed legislation applies to all e-cigarette companies, threatening the smaller vapor manufacturers as well as Juul Labs, who make up seventy-five percent of the nine-billion dollar industry.

Juul pods, marketed at millennials and teen users, contain twice the amount of nicotine found in traditional freebase nicotine e-cigarettes These products are especially addictive and are sold in a variety of fruity flavors making them very appealing to children. It’s unsurprising, then, that America’s youth are hooked. In fact, one can hardly walk across a college campus or use the bathroom of a high school without seeing a Juul user “fiending.”

But Juul Labs isn’t just selling their products to children; children are their targeted demographic. Although e-cigarette executives publicly claim nicotine vaporizing devices have always been about a safer smoking alternative to traditional combustible cigarettes, looking to social media advertising tactics from the company’s inception, as well as interviews with investors and employees, children have always represented a main marketing target. Using youthful brand ambassadors that fit the young demographic and advertisements featuring millennials at parties demonstrate the company’s clear attempts to market the sleek e-cigarette device to young people. A study conducted by the University of Michigan two years ago emphasized the dramatic rise in high school students – a generation with historically low tobacco use – in just a single year. And many blame Juul Labs for their irresponsible marketing tactics that created a generation of kids addicted to nicotine.

Even scarier than the addiction that it causes are the health risks. Throughout the summer of 2019, thousands of teens were hospitalized and 39 e-cigarette related deaths were reported to the CDC. Although the vaping illness was linked to vitamin E acetate, an ingredient in illicit THC vape cartridges, since the outbreak, legislatures have had full support of curbing teen vaping from concerned parents across the nation.

Another issue with Juul Labs is their association with Big Tobacco. While it may seem as though e-cigarette companies are the tobacco industry’s biggest competitor, for the most part, the tobacco industry and vaping industry are becoming more and more related. Altria, of Marlboro cigarettes, recently bought a 35% stake of Juul Labs for $12.8 billion, and the e-cigarette company’s CEO was replaced by K.C. Crosthwaite, an Altria executive. These changes left employees concerned and angered with their new relationship with Altria. How can a company whose mission is to provide a safer smoker alternative to combustible cigarettes be associated so closely with Big Tobacco?

While the danger the vaping epidemic presents is dangerous, and the specific targeting of kids seems objectionable, many wonder if the FDA should regulate e-cigarettes quite so heavily. The regulation of the vaping industry is a case of paternalism, where one’s choices are interfered with in order to promote one’s well-being and long-term interests. Some are concerned that the raising of the federal minimum smoking age is an overextension of the government’s authority, especially considering there is lack of evidence that nicotine e-cigarettes cause significant health issues. Similarly, because there are less immediate consequences of teen nicotine use (compared to teen alcohol use for example), such regulations may appear overcautious. There are more practical concerns at play as well; if vape products are banned, teens may be pushed to use combustible cigarettes or illicit vaping products that have been linked to respiratory disease. Although some are concerned about the restriction of personal choice, others view such laws as similar to mandatory seatbelt and compulsory child education laws.

Issues of classism and racism are rooted in the e-cigarette industry as they were in the tobacco industry. Because a large amount of stigma surrounds combustible cigarettes in the United States, smoking cigarettes is especially frowned upon by the middle class, and the habit is associated with those of a lower socioeconomic class according to British economist Roger Bate. Middle-class, adult vapers are conditioned to feel ashamed for smoking traditional combustible cigarettes. Similarly, many feel wronged that e-cigarettes are being regulated so heavily when flavored menthol cigarettes, claimed to be more addictive and are most commonly used by African Americans, remain on the market. Tobacco companies’ use of racially targeted marketing tactics of the addictive menthol flavored cigarettes are eerily similar to Juul’s early advertising blitzes, however, it seems that it is only when “young white people [are affected], then action is taken really quickly,” according to LaTroya Hester, spokeswoman for the National African American Tobacco Prevention Network.

Ultimately, any form of governmental intervention will cause debate about which personal liberties warrant being curbed, what our “best interests” are, and who is best positioned to know what those interests actually are. Juul and other e-cigarette companies might be blameworthy, but for many it’s not clear that the government should go to such great lengths to save us from ourselves.

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U-Haul’s Anti-Smoking Workplace Wellness

photograph of overcrowded UHaul rental lot

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

U-Haul International recently announced that, beginning next month, the company will not hire anyone who uses nicotine products (including smoking cessation products like nicotine gum or patches). The new rule will take effect in the 21 states that do not have smoker protection laws. The terms of employment will require new hires to submit to nicotine screenings, placing limits on employees’ lawful, off-duty conduct.

The truck and trailer rental company has defended the new policy as nothing more than a wellness initiative. U-Haul executive Jessica Lopez has described the new policy as “a responsible step in fostering a culture of wellness at U-Haul, with the goal of helping our Team Members on their health journey.” But as the LA Times points out, “Simply barring people from working at the company doesn’t actually improve anyone’s health.”

U-Haul, however, is not alone, and employer bans on smoking are not new. Alaska Airlines has had a similar policy since 1985, and many hospitals have had nicotine-free hiring policies for over a decade. But there are important distinctions between these past policies and U-Haul’s new policy. Alaska Airlines’ ban was, at least in part, justified by the risk and difficulty of smoking on planes and in places surrounding airports; smoking simply isn’t conducive to that particular work environment. Meanwhile, hospitals’ change in hiring process was meant to support the healthy image they were trying to promote, and to demonstrate their commitment to patient health.

Interestingly (and importantly), U-Haul has not defended its new policy as a measure to improve customer experience or improve employees’ job performance. The (expressed) motivation has centered on corporate paternalism – U-Haul’s policy intends to protect their (prospective) employees’ best interests against their employees’ expressed preferences – and this has significant implications. This isn’t like screening for illicit drugs or forbidding drinking on the job. As Professor Harris Freeman notes, it “makes sense to make sure people are not intoxicated while working … there can be problems with safety, problems with productivity.” But in prohibiting nicotine use, U-Haul “seems like they’re making a decision that doesn’t directly affect someone’s work performance.” Unlike Alaska Airlines or Cleveland Clinic,

“This is employers exercising a wide latitude of discretion and control over workers’ lives that have nothing to do with their own business interests. Absent some kind of rationale by the employer that certain kind of drug use impacts job performance, the idea of telling people that they can’t take a job because they use nicotine is unduly intrusive into the personal affairs of workers.”

Similarly, the ACLU has argued that hiring policies like these amount to “lifestyle discrimination” and represent an invasion of privacy whereby “employers are using the power of the paycheck to tell their employees what they can and cannot do in the privacy of their own homes.” This worry is further compounded by the fact that,

“Virtually every lifestyle choice we make has some health-related consequence. Where do we draw the line as to what an employer can regulate? Should an employer be able to forbid an employee from going skiing? or riding a bicycle? or sunbathing on a Saturday afternoon? All of these activities entail a health risk. The real issue here is the right of individuals to lead the lives they choose. It is very important that we preserve the distinction between company time and the sanctity of an employee’s private life. Employers should not be permitted to regulate our lives 24 hours a day, seven days a week.”

Nicotine-free hiring policies or practices that levy surcharges on employees who smoke tend to rely heavily on the notion of individual responsibility: employees should be held accountable for the financial burden that their personal choices and behaviors place on their employers and fellow employees. But these convictions seem to ignore the fact that smoking is highly addictive, and 88% of smokers formed these habits before they were 18. Given this, the issue of accountability cannot be concluded so cleanly.

Apart from concerns of privacy or questions about individual responsibility, smoking bans on employment present a problem for equality of opportunity. According to the CDC, about 14 percent of adults in the U.S. smoke cigarettes. But smokers are not evenly distributed across socioeconomic and racial groups. For instance, half of unemployed people smoke; 42% of American Indian or Alaska Native adults smoke, 32% of adults with less than a high school education smoke; and 36% of of Americans living below the federal poverty line are smokers. It’s not hard to see that nicotine-free hiring practices disproportionately burden vulnerable populations who are already greatly disadvantaged. U-Haul’s low-wage, physical labor jobs, from maintenance workers to truck drivers to janitors, are restricted from those who may need them most (on grounds that have nothing to do with a candidate’s ability to perform job-related tasks).

This is no small thing; the Phoenix-based moving-equipment and storage-unit company employs roughly 4,000 people in Arizona and 30,000 across the U.S. and Canada. Lopez has claimed that “Taking care of our team members is the primary focus and goal” and that decreasing healthcare costs is merely “a bonus,” but it’s hard to separate the two. A recent study by Ohio State University estimated the cost employees who smoke pose to employers. Added insurance costs as well as the productivity lost to smoke breaks and increased sick time amounted to nearly $6,000 annually. Clearly, employee health, insurance costs, and worker output are all linked, and all contribute directly to a company’s profitability. The question is who should have to pay the cost for the most preventable cause of cancer and lung disease: employers or employees?

It may be that the real villain here is employer-sponsored insurance. By decoupling one’s employment from one’s healthcare, companies like U-Haul might be less invested in meddling with their employees’ off-duty choices. They have much less skin in the game if their employees’ behaviors aren’t so intimately tied to the company’s bottom line. Unless healthcare in the US changes, we may be destined to constantly police the line separating our private lives from our day jobs.