Originally published on April 9, 2012
The US lost an appeal last week in a WTO dispute case involving the regulation of cigarettes. The case was brought by Indonesia against a new US ban on the sale of clove and other flavored cigarettes. As usual critics of the WTO are arguing that the WTO is infringing on US rights to establish its own health and safety standards. In actuality, the WTO agreement acknowledges a country’s right to establish any standards it likes, as long as the standard treats domestic products in the same way as foreign products. As an example, in the WTO, countries have agreed that you can’t ban unfiltered cigarettes from foreign sources, but not ban them from domestic sources, even if reducing the consumption of some unfiltered cigarettes would have a positive health impact. Why not? Because to do so would unfairly discriminate against foreign producers. You can ban all unfiltered cigarettes if you want, because that will conform with our promise to provide national treatment.
Indonesia successfully argued to an independent and objective panel of experts that US policy violated national treatment because the ban covered only some flavored cigarettes but not all flavored cigarettes. In particular clove cigarettes, exported largely by Indonesia, were banned, but menthol cigarettes, produced largely in the US, were not banned.
Now we can go on and on about whether menthol cigarettes and clove cigarettes are like products. If they are like products, the US loses; if they are unlike the US wins! A case can be made that since they are both flavored they are alike. However, because they have different characteristics and are smoked by different groups of people they are unlike. For me this issue is only interesting because lawyers are paid a lot of money to make arguments to determine an answer to a question like this, which, to my mind, is largely unanswerable. In the end if you are in the US and you want the law to stand, then you will believe the “unlike-product” arguments (and there are many), while if you are Indonesian and want the law to fall, then you will believe the “like-product’ arguments (and there are many). If you are on the panel and must decide, … maybe you decide on the basis of the “preponderance of the evidence;” or maybe you decide based on who spoke most authoritatively or was best-dressed. Who knows?
But what I want to consider from this case is something more fundamental … namely … why can’t I buy and smoke a clove cigarette (assuming the US refuses to change its law)? I am an adult who knows about the risks of smoking … in fact I have studied it professionally. I also know that one clove cigarette (or even a whole pack) is unlikely to harm me or anyone else near me. I might enjoy the smell and the feel of it … I know because I have smoked a few of these in my day and they are very pleasant. But as it stands now, it is illegal for anyone to sell a clove cigarette to me.
I understand the arguments. I know that it is not really me the law is designed to protect. Instead it is targeted at teens. The law is meant to prevent teens from being seduced into smoking by the aroma of cloves. If they start smoking they might become hooked (although some won’t) and become lifetime smokers (but some will quit earlier). Those that do smoke their whole lives may put a strain on the health care system and inflict a cost on others. Of course, for those that die early, they will not inflict the cost of long term elderly care which is estimated to be much more expensive. The net cost to society by unhealthy smokers has been estimated by some researchers (not all) to be negative … meaning smokers may actually save society money because on average they will die younger.
In the end, the ban is really targeting just a small group of people in the entire population. That we have to restrict the freedom of everyone in order to have this small effect on a small group seems innocuous to most people, especially since most people don’t really want to smoke a clove cigarette. In a sense the government is only preventing a potential freedom rather than an actual one. Also, most people are perfectly happy to support rules designed to make people healthier, especially when they have heard some of the arguments about how other people’s smoking behavior is a drag on state budgets.
For me though, I keep thinking about my sixth grade class. I can remember several occasions when Sister Assumpta would punish the entire class, forcing us all to do some annoying exercise, all because of the bad behavior of one or two students. I remember the feeling of injustice.
That same feeling of injustice wells up inside me when I think of issues like this. Sure, the burden imposed on me by not having the freedom to smoke clove cigarettes is about as innocuous as the burden of writing a sentence 100 times in my notebook. It isn’t much! Still I wonder why I have to be restricted from an activity because of the presumed bad behavior of others.
Like why can’t I buy gin on Sunday evening in VA? Why do I have to pay over $10 to buy a pack of cigarettes in NY? Why can’t I smoke an occasional joint? Why can’t I self-administer a strong pain reliever? Why can’t I have a partner of the same sex and enjoy the same government benefits as a husband and wife? Why can’t I commit suicide? Why can’t I ….. the list can go on and on.
In all of these cases, individual freedoms are restricted in the name of some larger social good. Proponents always believe that society is improved when these restrictions are in place. They believe they know what’s good for you and are happy to put in place restrictions to engineer a better outcome. Opponents of such “sensible” laws are often demonized or vilified. Most people don’t really care because the restriction doesn’t affect them directly … therefore if they must take a position it is natural to choose the do-gooders. As a result, restrictions on individual freedoms are easy to implement.
Still, if we keep on this road, of accepting small reductions in individually unimportant freedoms for the sake of a presumed larger good, we risk losing more and more freedoms. Soon, we will have more restrictions on what we can eat. Food may be taxed differentially to shift our consumption in presumably healthier ways. Our entire lives may become more and more “controlled” to create a more perfect society.
Remember though that every one of these restrictions of freedom are based on a presumption that someone else knows better than you do what is best for you. Someone else’s preferences, intelligence and calculations are accepted as better than your own preferences, intelligence and calculations.
Sometimes … occasionally, I’d like to smoke a clove cigarette. Why can’t I, again?
