Seven sorts of reasons to support the Tobacco and Vapes Bill 2024’s (apparently) strange approach to age limits

by Professor John Coggon, University of Bristol Law School

The Tobacco and Vapes Bill’s introduction to, and now passage through, Parliament has reignited debates on fundamentals of political authority and public health ethics; debates about the meaning and reach of fundamental freedoms, the scope and limits of the state’s protective functions, and ultimately the boundaries of legitimate government intervention. Amongst its provisions, particular interest has been sparked by the bill’s creation of an offence of selling tobacco products, herbal smoking products, and cigarette papers to persons born on or after 1st January, 2009, and the buying of such products for such persons. Questions have been raised about the coherence and justifiability of these measures. Limitations defined by reference to a fixed birth date rather than a specified age (say a ban regarding persons under 18) are not unprecedented. But they are extraordinary. However, both the extraordinariness here, and its moral significance, have been overstated. In this blog, I give background critical context, and then explain seven sorts of reasons why the bill’s approach is less remarkable than may be thought—and with that, rather harder to challenge.

Politics, the value of health, and the ends and means of policy

Through the threatened imposition of criminal penalties on third parties, the bill would deny smoking as a choice for some adults, whilst leaving it a legally-open option to others. Critiques of this position have related to that idea in and of itself, and to the law’s possible consequences. On direct questions of principle, critics ask why adults should not be left free to make choices about smoking for themselves; and all the more pressingly why some adults cannot while others can. More indirect concerns include claims about bad consequences; for instance, that there will be a worsening of illicit markets in tobacco products. And they include claims about bizarre consequences; such as the potential for twins to have been born either side of the specified date, with one who could buy or be bought cigarettes, while the other not. Libertarian defenders of the view that people should be left to define and defend their own interests, without the need for others’ interference, have weighed in—with all their corporate paternalistic might—to define and defend those interests on everyone’s behalf. But in their sum, the arguments about this matter have generated much more heat than light. A prohibition defined by reference to year of birth is, ostensibly, counter to widely-held assumptions within political liberalism. However, there are (at least) seven ways that we can think about argument here that would suggest that the bill’s approach should not be dismissed for its apparent strangeness.

Seven reasons to question doubts about a birth-date based tobacco law

First, we can ask if any principled objection or absurdity perceived in the bill’s approach is based on a perspective that itself is skewed in particular ways; a perspective that we ought to keep in check. We might observe that from a UK political-liberal perspective it seems strange; strange because of assumptions that we take for granted (or think we do). But perhaps in this instance it is those assumptions that are bizarre or questionable, in themselves or in their application to this issue. We could compare this sort of reflection with Amartya Sen’s argument that theorising on social justice should include perspectives from outside of a given system. He suggests, as an example, that debates on the rights and wrongs of gun control laws in the United States are not best judged against the perspectives just of people who live within that system. Similarly, as regards the Smoking and Vapes Bill, it may be criticised as a radical and absurd policy for its distinctness from ‘normal’ legal framings or applications of law. But before accepting that conclusion, let us keep a check on the suppositions that have us say it: even if it is radical, it may be far from absurd if we take a step back.

Secondly, we could explore a judgment of absurdity even on terms found within the system. The measure looks strange for apparently defying principles that generally apply; whether we are thinking here within a context of laws on consumer products or within a public health framing. But regulation of smoking is highly exceptional, and we therefore make a mistake if we confuse distinctions in an exceptional case with necessary absurdity. Arguments here might refer to the distinctly harmful nature of smoking tobacco and simply hold that this warrants distinct forms of regulation. Notably, exceptionality represents how other big moves in smoking regulation have worked. Smokefree agendas reflect, as a matter of principle, that we can accept—even demand—government interference. Once this is accepted, our evaluation looks to feasibility, effectiveness, and effect; to consequences. And when evaluating these, the measure should look to the policy across time, and allow for levels of imperfection. That there may be some problematic consequences does not, in itself, show the bill is unsound. Where we are judging consequences, the evaluation is made on balance.

Thirdly, we can take the policy and its subject matter in parts, and ask if there really are no good analogues from beyond tobacco regulation; in other words, ask if we really cannot find relevantly-similar ideas that we consider reasonable. In this regard, we might, for instance, note that all sorts of controls exist on access to substances, with qualifying criteria beyond being an adult; notably, prescription medicines, including in the context of addiction services. We might additionally note that there are policy areas where lines are drawn between adults; for instance regarding different rights in relation to retirement age. Once we recognise that age may serve as a proxy within policy determinations, and its defining effect may be varied, allowing for granularity in the making and application of policy such as happens in the Tobacco and Vapes Bill, the age provision may anyway not really be so radically distinct after all. It is the sum of parts all of which we can accept.

With these first three considerations made, we do well, fourthly, to consider that now may not anyway be the time too conclusively to judge how absurd (or otherwise) the policy might be. Assuming the bill is enacted, it will of course be possible for it in turn to be repealed (as directly shown in New Zealand). But where its effects will only bite in the future, it is the future judgments that will matter. And in the context of smoking regulation, we may consider that norms that are now settled and accepted have in the past been held up as absurdities: for instance on how much a packet of cigarettes might cost, or whether and how smoking bans could work in places such as bars. To this point we might add that open denormalisation agendas, including through processes of public discourse, may further soften any strangeness that might, at this stage, seem much more marked. This is all the more significant when we remind ourselves that it is a mistake, within smoking regulation, to look at individual policy measures just in isolation. The age limit ban would be just one small part of a bigger, broader, agenda. That has its own mark on how it will be received in the future. In short, the policy alone would not and could not prevent the uptake of smoking; and how it will come to be thought of will not be defined by it alone.

Fifthly, we might in line with this look with keener scrutiny at that broad, denormalisation agenda and shine it back on our thoughts about principle. Doing so might suggest that any absurdity lies not in a (significant but on its own relatively minor) individual measure such as this age limit policy. Rather, such reflection might suggest that absurdity lies in not better—more forcefully—honouring commitments to eradicating smoking. Rather than challenge ‘hard’ legal measures for their formal effect, we might question how influential they really are within the broader context and effect of smoking regulation. Looked at like that, the age limit measure represents a very small current within a much wider, much stronger tide. As such, it is not obviously absurd or offensive for what it does.

These ideas perhaps, though, do not get us past the stark absurdity of the twins born either side of midnight while people were out celebrating the dawn of 2009. Is it not just too arbitrary? The sixth point to make is that such charges of arbitrariness need to be taken with a pinch of salt; rather like apparent but flawed challenges to speed limits. (“Why 30 miles per hour? Why not 31 or 29? It’s arbitrary; just landing on a round number.” And the like). Once it is determined on non-arbitrary grounds that a line should be drawn, arbitrariness evaporates. There may be some reasonable disagreement about precisely where it should be drawn, but once reasonable parameters are recognised within which it must be given, that a line is drawn is not itself arbitrary even if it necessarily gives rise to apparently strange consequences.

Finally, a seventh point that bears mention is that as well as looking to reasoned argument, we might just ask who is making the arguments against the bill, and do they have any conflicts of interest? In the case of any given critic, it is worth exploring whether there are, for instance, commercial interests at play that indicate a more promising explanation for their propagation of a contrary position than a clear commitment to principle. Although there is not a perfect test here, hasty recourse to advancing a nanny state slur can often serve as something of a giveaway.

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