Tobacco

Smoking tobacco may be hazardous to your health.
The tyranny of prohibition is always dangerous to your liberty.

• Cigarette smoking is a bad habit. Our parents told us that and it's been repeated incessantly for decades. The Surgeon General warns that "Smoking causes lung cancer, heart disease, emphysema, and may complicate pregnancy." We're told daily that "3,000 children begin smoking every day and 1,000 will die from it." The tobacco industry has received multiple billions of our tax dollars for decades, both for growing and exporting their products. Therefore, it's no surprise that tobacco has displaced social security reform as the "third rail" (the one that can kill you) of politics.
• No one doubts that tobacco is dangerous. So is sky diving, chocolate, and too much water. But, we don't label water as "hallucinogenic" because drinking a lot of it will cause hallucinations. We don't ban water because an excessive dose can cause death. The issue is not whether a particular thing can be dangerous. The issue is whether your use of it is fully informed, so that you may reasonably govern your own conduct. The only legal, and therefore political, issue is whether you have been injured by misrepresentation or fraud. On those grounds, the current hysteria about tobacco is unwarranted.
• The scientific truth is that scientists don't know whether or how a certain amount of tobacco will influence your health. Smoking one or one million cigarettes may - or may not - cause illness. It depends on dozens of variables for every individual. Statistically, there appears to be a small risk factor- among many - which suggests some "relationship" between smoking and certain diseases. When hysterics claim that millions of people have died from diseases "related" to smoking, they intentionally deceive. Millions die from diseases "related" to coffee, chocolate, peanut butter, and, yes, water!
• The legal question is whether you have been informed, faithfully, of the reasonable risks of tobacco use. Cigarette manufacturers have been forced, for decades, to put warnings about possible risks on every package they sell. If there has been any misrepresentation, it has been the gross exaggeration of those risks by the Surgeon General. Once you have been informed of the risks of skydiving, you assume full liability for that risk. The same should apply to cigarettes, coffee, chocolate (both contain caffeine), and peanut butter (contains trace carcinogens).
• But, you may think, the tobacco companies have lied about addiction. After all, your mom said it's a bad habit, which must mean it's addictive. Well, the fact is that most any conduct can become a habit by repetition, but addiction has certain medical criteria. Just feeling that you "gotta have it" (whether sex, alcohol or peanut butter) does not make it an addiction. To classify anything as medically addictive, several factors must apply, including the requirements that dosage must be sequentially increased to generate the same desired effect and there must be severe and direct medical consequences from withdrawal. To classify cigarettes with cocaine or heroin, or even alcohol, is a gross misrepresentation. Smoking may be a habit, but it's not an addiction.
• But, you may think, what about the kids? Minors are, properly, a special case. We presume that they cannot give "informed consent" because they do not have the knowledge or experience to make valid, independent judgements about risk. Which is why they have parents or guardians who can guide their choices and conduct. It's perfectly reasonable for state governments to preclude minors from transactions (such as the purchase of cigarettes or guns) when they are presumed to be incapable of "informed consent" to the risks. Whether tobacco companies "market to kids" is irrelevant. Sale to minors has been illegal in nearly every state for decades. Information distribution (about any product) can never be a crime unless it is a fraudulent misrepresentation. Restricting advertising because minors might see it is a gross infringement of the basic right to freedom of speech (commercial or otherwise).
• The current tobacco "settlement" doesn't just violate the first amendment, it parades over dozens of legal rights which we must preserve and defend for the benefit of all. Will you be prosecuted for something you did decades ago because a law was passed yesterday making it illegal? That's ex-post-facto law. It's unconstitutional. Will you be sued for millions of dollars because of a malfunction in the car you sold "as-is"? Will you be forced to pay for the mental anguish and suffering of those who inhaled your cologne or perfume? These are just a few of the nonsensical provisions of the "settlement" and the currently proposed legislation.
• Perhaps even more tyrannic is the proposition that the federal government can prohibit the possession of anything (the ultimate objective of the tobacco hysterics) without a constitutional amendment. We tried that with prohibition of alcohol. It failed. Prohibition of tobacco (by whatever incremental means) is a violation of the constitution.
• We must end the culture of victimology that has permeated our legal system and insist that individuals assume responsibility for their own conduct. We must discard the proposition that objects should be outlawed because some people use them improperly. We must end the confiscation of your money for the benefit of tobacco, or any other limited interests. We must reject the hysteria and calmly consider the proper methods that government can apply to protect every individual's right to live their life in liberty.
  

ARI Commentary
CATO Testimony