End the War on Drugs—Including Nicotine

Libertarians are no doubt dismayed by the FDA’s recent ban on Juul vaping products (although the current status of the ban is unclear) and the news that the Biden administration is planning to mandate lower nicotine levels in cigarettes. But libertarians shouldn’t be the only ones opposed to state-enforced nicotine restrictions.

For one, all liberals recognize a right of bodily autonomy: “my body, my choice.” If it’s your body, it’s your choice to put nicotine in it even if it’s harmful. By analogy, if it’s your car, it’s your choice to put sugar in the gas tank even if it’s harmful.

Indeed, the right of bodily autonomy entitles people to make far more harmful decisions than smoking. You may decline a life-saving blood transfusion, so it’s hard to see why you may not smoke high-nicotine cigarettes—a choice that will result in significantly fewer life years lost.

A standard reply to this argument alleges that the decision to smoke tends not to be rational. Smokers may lack adequate information about the risks of smoking, be unduly optimistic about their own long-term health prospects, or assign too much weight to immediate benefits compared to future harms. If they did form and act on accurate beliefs about smoking, they wouldn’t choose to smoke. So by preventing someone from smoking high-nicotine cigarettes, we’re merely enabling them to get what they really want.

Let’s concede for argument’s sake that the decision to smoke is not rational. This concession still doesn’t clinch the case for paternalistic cigarette regulation. Liberals tend not to subject rights to a competence or rationality test. The freedom of association entitles you to marry partners of your choice. But evidence indicates that newlyweds display optimism bias when evaluating the long-term prospects for their marriage. Still, public officials lack the moral authority to coercively interfere with your marriage choices, even if they were good at it. Similarly, deontologically-minded defenders of democracy think you have the right to vote for your favored candidate even if you—like many voters—are uninformed and biased when casting your vote.

What about the non-paternalistic arguments for nicotine restrictions? All of these can be addressed with more narrowly focused policies. For instance, the concern that second-hand smoke will harm others justifies smoking restrictions in public spaces, but not private ones. (You may play excessively loud music at home, but not at the park.) The claim that smokers are a fiscal burden on others isn’t supported by the evidence, but at most that would be a reason to restrict access to state-funded benefits rather than to restrict the right to control how you use your body. And the problem of illegal sales to underage buyers can be solved without universal restrictions on nicotine—rather we can simply increase penalties on those who make the illegal sales.

There’s also a strong consequentialist case against paternalistic policies like nicotine restrictions. First, it’s not enough to look at a single bias in isolation. Different biases may interact in an offsetting way. For instance, Mario Rizzo and Glen Whitman discuss evidence indicating that most smokers overestimate the risk of smoking; thus “the degree of [a smoker’s] overestimation of health risks can offset the degree of his present bias such that his smoking is optimal.”

Bans on high-nicotine products bring social costs as well. All of the familiar consequentialist reasons that speak against drug prohibition in general speak against nicotine restrictions in particular. Since both buyers and sellers are motivated to circumvent the restrictions, the illicit transactions just move underground. (Higher taxes on cigarettes have already incentivized smuggling.) Consequently, producers have stronger incentives to sell fraudulent or defective products because buyers can’t report the issue without implicating themselves in a crime. And as the risk of selling a drug rises, so too does the incentive to sell more concentrated forms. A ban on high-nicotine cigarettes can, paradoxically, make smoking less safe.

Moreover, insofar as the restriction works, it will make high-nicotine cigarettes scarce—thereby driving up the price and creating an incentive to supply more. This, in turn, motivates a counterbalancing increase in state power (as we saw in the case of alcohol prohibition) and a diversion of resources away from more valuable uses.

As the war on drugs illustrates, an expansion of state power involves an expansion of opportunities for state abuse. For example, SWAT raids are disproportionately likely to target minority communities. Black Americans are disproportionately likely to be arrested and incarcerated for drug offenses.

Nicotine restrictions will also result in more interactions with the police. Yale Law Professor Stephen Carter tells his students “never to support a law they are not willing to kill to enforce,” given that “the police go armed to enforce the will of the state, and if you resist, they might kill you.” Carter specifically discusses the case of Eric Garner, who was killed by a New York City police officer for illegally selling cigarettes. Even if you like the idea of nicotine restrictions in principle, you should be very wary of putting them into practice.