Evidence for phasing out cigarette sales

Although the outcome of new policies is always uncertain, evidence suggests that removing cigarettes from the market would result in fewer people smoking. Higher tobacco outlet density is associated with a higher likelihood of smoking initiation by minors16 and adults,17 and living near tobacco outlets is associated with unsuccessful quit attempts.18 19 Emerging evidence also suggests that tobacco retailer reduction is associated with a decline in cigarette pack purchases.20 In the USA, point of sale promotions are the most visible tobacco advertisements; eliminating such promotions (as would occur if sales were ended) is also associated with reduced odds of regular smoking among adults21 and adolescents.22 Ending cigarette sales would also have a powerful secondary impact: further denormalising the cigarette industry. Tobacco industry denormalisation is associated with reduced smoking prevalence among youth and young adults, reduced smoking initiation among youth, and increased intentions to quit.23

The endgame and consumer product safety

The idea of abolishing cigarette sales frequently raises concerns (at least in the US context) about alcohol prohibition and the various problems that accompanied it.24 But prohibition is not the only historical and rhetorical parallel; other laws and norms can be drawn on to shape understanding of ending cigarette sales. In 1985, the United Nations unanimously adopted guidelines for consumer protection. The guideline on physical safety states that ‘Governments should adopt or encourage the adoption of appropriate measures… to ensure that products are safe for either intended or normally foreseeable use.’25 Beyond these guidelines, in the 20th century, many countries developed more specific laws and regulations aimed at protecting the public. In the countries with the largest multinational tobacco companies (ie, the USA, the UK, Japan and the European Union nations), it is now taken for granted that cars undergo crash tests before they are sold, food manufacturers and processors are held to hygienic standards, and drugs undergo clinical trials to establish safety and effectiveness. Legal consumer products found to be hazardous are regularly pulled from the market, such as toys presenting choking hazards for children; batches of contaminated processed food or individual components of complex goods (eg, batteries, airbags) that work improperly. Manufacturers or retailers sometimes recall goods that appear to malfunction, even without reported injuries. For the most part, consumers assume that products offered for sale are reasonably safe.

Additionally, tobacco control practitioners are using human rights standards. The 2018 Cape Town Declaration on Human Rights and a Tobacco-free World finds that ‘the manufacture, marketing and sale of tobacco are incompatible with the human right to health’, and reaffirms the International Covenant on Economic, Social and Cultural Rights (ICESCR) statement that the ‘failure to discourage production, marketing and consumption of tobacco’ is a ‘violation of the obligation to protect’ the right to health.26 ,27

The bizarre exception to both standards is the cigarette, shown to kill as many as two-thirds of its long-time users28 29 yet essentially unregulated. (The regulations in place largely apply to packaging, promotion or sales, not the design or contents of the product itself.) When consumer protection agencies and laws were established, in the early 20^th century, tobacco was omitted. The cigarette continued to be sold even as evidence about its dangers mounted, due to the industry’s political power.14 30 The US Food and Drug Administration (FDA), for example, had no power to regulate tobacco until recently, as tobacco was excluded from its jurisdiction as not ‘intended to affect the structure or any function of the body’ (the definition of a drug).31 (In fact, the tobacco industry intentionally engineered its products in multiple ways to maximise certain effects on the body, but this was not widely known.32) Even now, a decade after the 2009 US Family Smoking Prevention and Tobacco Control Act (FSPTCA) which gave the FDA regulatory power over tobacco products, the FDA has no power to remove these existing, ‘grandfathered’ deadly products from the market,33 so no national phase-out of cigarette sales would be possible in the USA without Congressional action, a highly unlikely scenario. However, as we discuss below, other options are possible, and for various reasons, probably preferable.

The ‘right’ to use versus the ‘right’ to sell

The tobacco industry defines the central issue of tobacco control as the individual right to use tobacco,34 35 eliding the issue of a company’s responsibility to sell safe products. This framing has been successful: attempts to discuss removing cigarettes from the market frequently give rise to questions not about the ethics of allowing them to be sold, but about the ethics of restricting consumer freedom,36 the assertions of the Cape Town Declaration and ICESCR notwithstanding. However, in the USA, at least, it is clear that there is no legal ‘right to smoke’.37

From the consumer protection standpoint, most people do not believe that people ‘need’, ‘deserve’ or ‘have the right to’ purchase cars that are unsafe to drive, medications that poison them or food that spreads disease. The promulgation of the idea that there is a ‘right’ to buy cigarettes, and the characterisation of the industry as a simple conduit of those products, an inevitability of a naturally occurring market, are arguably the most potent, deceptive and dangerous aspects of tobacco industry power. The ‘right to smoke’ framing obscures the generally accepted ethical obligation of reputable companies to sell only products that do not cause great harm when used as intended.

To plan an end to cigarette sales, therefore, requires comprehending and developing strategies for conveying to the public that the cigarette industry is an extreme outlier in the legal and regulatory landscape of consumer protection, rather than an ordinary business. In terms of consumer protection, the goal is to create a level playing field, in which the tobacco industry must meet normal expectations for product safety. With a consumer protection framing, rational policy-making follows: laws and norms that ensure the safety of consumer products should apply to cigarettes. Tobacco control policy could be truly guided by the principles of Cape Town, ICESCR, and the UN guidelines.

In the USA, tobacco products are exempted from the Consumer Products Safety Act38; however, the Act does not prevent states and other jurisdictions from enacting more stringent standards than those established by the Act, and they often do. Similarly, the 2009 FSPTCA specifically permits state or local jurisdictions to adopt more stringent laws ‘relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age,’33 leaving the door open for states or local governments to end cigarette sales. The 50th Anniversary edition of the US Surgeon General’s Report on the Health Consequences of Smoking explicitly proposes state or local bans on sales of whole classes of tobacco products.39

Benefits of ending sales

Ending sales deprives the industry of income and represents the most concrete way to denormalise the product. Equally importantly, ending sales could reduce the industry’s influence in government and policy-making by challenging its legitimacy.40 Notably, however, defining the endpoint as ending cigarette sales does not require that no one could or would ever use tobacco (or other nicotine products). Tobacco is a product that has been used in some form for centuries and some use (both ritual and addiction based) is likely to continue; however, it is only since the commercialisation of cigarettes that the problems its use causes have reached epidemic proportions.14 32 Not expecting policies to achieve total ‘prohibition’ or zero prevalence recognises this.

Objectors to proposed endgame-advancing policy proposals commonly refer to black markets or the failures and unintended consequences of alcohol prohibition. But these objections, often supported by industry-funded research, typically assume exaggerated proportions of illicit trade.41 Furthermore, under Prohibition, alcohol use prevalence was high, many users perceived their own use to be unproblematic, and possession and use were criminalised, leading to widespread law-breaking and reduced respect for law enforcement. In contrast, phasing out cigarette sales in a jurisdiction with already-low smoking prevalence (without reference to possession and use) is quite different. Many smokers already perceive their own use to be problematic (eg, they want to quit42) and thus might be less likely to seek out illicitly sold cigarettes. Furthermore, eliminating ready access to cigarettes could enhance success in cessation, since smokers experience stronger cravings when they expect to be able to smoke in the near future.43 44 While some illegal underground sales (whether home-grown or through neighbouring communities) are likely to occur, these types of activities seem unlikely to represent a black market so substantial that it would become worse for public health than the status quo.

To make phasing out cigarette sales the endpoint goal, it is not necessary to envision it as happening everywhere all at once. Rather, we predict that ending cigarette sales will take place gradually, jurisdiction by jurisdiction, beginning in low-prevalence locales and potentially supported by a new narrative about fairness under consumer protection principles. This is particularly true in the USA, where many cities and counties have the ability to enact innovative laws. This gradual implementation of sales bans city by city, rather than being a problem, could make genuinely substantial black markets less likely to flourish. The combination of a relatively small customer base (due to already-low prevalence in the jurisdictions initiating the policies) and the modest initial extension of distance for consumers to purchase legally would render the risks involved in a highly organised black market operation less attractive.

The history of US tobacco control policy suggests that each location taking this step may enable others to do likewise, and that new policies can change the prevailing narrative about tobacco. For example, Beverly Hills, California is ending sales of cigarettes and other products as of January 2021.45 Beverly Hills has a population of approximately 34 000 with a low smoking prevalence, and is surrounded by the much larger city of Los Angeles. Assuming it implements the ordinance, cigarettes will still be available in adjacent areas. However, other jurisdictions in the region are already studying this option. If the policy spreads (as, for example, clean indoor air laws did, despite industry efforts) an eventual statewide policy ending cigarette sales would have a significant impact on smoking, and also on the industry and its political influence in the state.

Federal action

There are some indications that the FDA could at some point move to implement a product standard for all cigarettes sold in the USA that would mandate lowering nicotine to minimally or non-addictive levels.46 Given the extensive time involved in federal rulemaking, it is difficult to predict whether and when such a strategy will be operationalised. However, the very low nicotine content (VLNC) cigarette requirement could actually work in tandem with a gradually executed phase-out of cigarette sales as a complementary strategy, rendering it less likely that consumers would make the additional effort to travel to neighbouring jurisdictions to obtain the less-attractive and less-addictive VLNC cigarettes still being sold there. While a black market in higher nicotine cigarettes is possible, that would be a possibility of the VLNC strategy itself, not a direct consequence of ending cigarette sales in a community with already-low prevalence.

Changing the narrative

Achieving an end to the tobacco epidemic will be an arduous and lengthy process. But advocates must be willing to state publicly their goal. For any endgame plan, the narrative about cigarette sales must shift to end the perception that cigarettes are an ordinary consumer product. Rather, selling cigarettes should be characterised as selling an inherently defective/unsafe product that falls into the same category as contaminated food, asbestos and lead paint. These are products that states find too hazardous to be made available to the public, and regardless of cost (lost tax revenue/increased regulation/jobs eliminated), the government removes them from the marketplace.

Tobacco control advocates may believe that they have already been giving the clear message that cigarettes are too hazardous to use, but by tacitly acceding to the idea that cigarette sales must continue, that message is continually undermined. The confusion this causes is expressed by smokers who ask: if cigarettes are so dangerous, why are they legally and widely available for sale? Some also question whether raising tobacco taxes is less about public health and more for the benefit of the state’s bottom line, at the expense of smokers. Tobacco control advocates have contributed to this perception by advancing tobacco taxes as beneficial for state economies, beyond the reductions in consumption they produce. These lines of argument can give tobacco control proponents a credibility problem that industry apologists exploit.

Challenges