Are tobacco sales bans legal, effective, or ethical?

Last fall, Brookline, Massachusetts implemented a tobacco sales bans that restricts sales of all tobacco and vaping products from individuals born on or after January 1, 2000. Essentially, the bylaw will “age out” tobacco sales incrementally. While lauded by anti-tobacco advocates, some are wrestling with the ethics and unintended consequences.

In this post I explore whether tobacco sales bans are legal, effective, or ethical. In short, it’s all still quite vague.

Though tobacco sales bans aren’t very common, Brookline isn’t the only jurisdiction implementing one. Beverly Hills and Manhattan Beach banned all tobacco products at the beginning of 2021. Internationally, New Zealand just announced a new law that will ban sales to those who are now 14 or younger, with the minimum age increasing each year. There is also considerable public interest for Australia to follow suit.

Are they legal?

Generally speaking, these types of bans do seem legal. However, there are some concerns. For one, local tobacco sales bans are automatically stricter than federal law. Some suing against Brookline’s ban argue that that dissonance isn’t fair, especially because there is no built-in exception for those who were once eligible to purchase products and are now suddenly ineligible.

Another important consideration is ageism. The Brookline ban is based on birth date. An argument made by those opposed is that a birth date doesn’t change. Thus, the ban discriminates against a permanent characteristic, and in a very permanent way. This is in contrast to age-based bans — such as federal restrictions on those under 21 — that allow individuals to eventually purchase tobacco once they age in.

Are they effective?

The obvious goal of tobacco sales bans is to reduce use and improve health. The evidence that they do that, however, is unclear, perhaps because these bans are not very common and those wishing to circumvent them by purchasing products elsewhere can often do so.

As proxy, I looked at the impact of smoking bans. (I chose not to compare to tobacco taxes because those don’t explicitly deny the right to buy a product.) Smoking bans are very effective. The research shows that they reduce both smoking and secondhand smoke exposure, and improve health. They also improve air quality and do not have negative impacts on businesses (e.g., lost revenue, closures, etc.).

This suggests that local tobacco sales bans may have similar effects, but we just don’t know.

One concern raised by opponents is that tobacco sales bans can include vaping products. Some argue this is counterproductive. After all, vaping products can be effective harm reduction tools for those who already use tobacco products. Limiting access to them could do more harm than good.

But vaping products also hook those who don’t already smoke, especially young people. So, it could be public health-promoting to include vaping products in certain sales bans, depending on the target population. For example, it was wise for the federal government to include vaping products in the minimum purchase age increase in 2019.

Are they ethical?

The final question is whether tobacco sales bans are ethical. I propose a few possible concerns below.

First, restricting purchase power courts paternalism. Singling out specific groups suggests the government thinks they are unfit to make certain decisions for themselves. It makes sense to have stricter rules for children because their brains are still developing, but many tobacco sales bans impact adults, too. In fact, many will impact older and older individuals over time.

Second, restricting purchase power infringes on personal freedom. The United States prides itself on this. Restricting tobacco sales limits individuals’ freedom to make their own choices. One could argue that if adults want to intentionally harm themselves by smoking, we should let them. On the other hand,  harmful products also have negative externalities, like higher health care costs for everyone.

Lastly, as with all public health interventions, equity must be considered. Low-income communities use tobacco products at higher rates than affluent ones and stores that sell tobacco products are often minority-owned and/or small businesses. Thus, any new bans or regulations may have disproportionate impacts on already marginalized populations.

Conclusion

Tobacco sales bans are complicated. We need to study the legality, effectiveness, and ethics of them further. But what we do know is that tobacco use is detrimental to health and there’s more work to be done to reduce its grip on our communities.

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