Social issues: The counterproductive war on smokers
6 December 2010
The European Commission is preparing a general ban on smoking in public areas. However, a Czech legal expert argues that the desire to legislate to improve public health could ultimately undermine civil liberties.
The European Commission is currently preparing proposals to be presented next year for a draconian reinforcement of anti-smoking legislation. The planned measures include the introduction of a standard cigarette pack to be extensively marked with shocking images and health warnings. But without a doubt the major change will be the imposition of a Europe-wide ban on smoking in all public areas, notably in restaurants and bars, and also at transport stops.
It is often said that history repeats itself, but only rarely are we invited to look at the preponderant role of dogmatic ideologues in this recurring phenomenon. As always, they insist that the state should re-educate their fellow citizens by imposing their vision of what is “good,” and this is the case with anti-smoking activists, who are now leading the charge of the partisans of “progress.” Over the last few years, they have successfully campaigned for the introduction of increasingly severe anti-smoking legislation in most European countries, and in so doing, they have taken advantage of a widespread phenomenon in Western civilisation: the drift towards a nanny state and the growth of a culture that is hostile to even the slightest risk.
Turning into over-solicitous parents
Caught in the vice-like grip of these two mutually reinforcing trends, states are turning into over-solicitous parents intent on protecting the safety of their citizens. As a result, people have stopped counting on themselves, and embraced the belief that someone else should pay for all of their bad decisions. In this context, it is not surprising that those who prefer to view individuals as children in constant need of education, protection and guidance, have come to consider alcohol and tobacco as two intrusive substances that must be expunged from the body politic.
Reasonable regulation in the form of bans on sales to minors, advertising restrictions and higher taxes on these products is no longer deemed to be sufficient. Now the self-proclaimed saviours of their fellow citizens have decided to interfere in what used to be the strictly private sphere of relations between restaurant owners and their customers. Specifically, they want to deprive them of the right to organise their businesses in accordance with economic imperatives and their own judgement.
Impact on the free circulation of goods
You might be forgiven for thinking it strange that the regulation of smoking is now a matter for the EU, but that is in fact the case. Tobacco products are considered as goods, and in accordance with the principle of the free circulation of goods in the Europe, they are regulated by the law of the EU internal market (in particular see article 114 of the Treaty on the Functioning of the European Union (TFEU)). A number of directives have already set out rules for the composition and labeling of tobacco products, their radio and press advertising, and industry sponsorship of sporting events, and we now have an outright ban on audio-visual advertising for tobacco.
At the same time, the drive to reform the common agricultural policy has also reduced direct EU subsidies for tobacco growers. There are many convincing arguments to justify EU regulation of the tobacco industry, particularly with regard to the harmonisation of rules on the composition of cigarettes and indirect taxes charged on tobacco sales. Legislation in both of these areas does have an impact on the free circulation of goods. However, other laws, like those which ban advertising, restrict sponsorship, or prohibit smoking in work places, are much more contentious, because they are only vaguely related to the single market.
Social engineering projects have unexpected results
But even if we allow that they do have some legal validity, I can see no justification for a Brussels imposed ban on smoking in restaurants, at transport stops and in other public areas. Even in the US, this is a matter regulated by individual states and not by the federal government. In its 2007 green paper “Towards a Europe free from tobacco smoke,” in support of its right to legislate on this question, the European Commission simply asserts that “binding legislation would impose a comparable, transparent and enforceable basic level of protection from the risk of exposure to environmental smoke throughout the Member States.”
Experience has shown that social engineering projects that aim to curtail fundamental freedoms often have unexpected results and in most cases prove to be unqualified failures. This is the future that I foresee for the very strict repressive measures that the EU may be about to impose on smokers, who represent more than a third of the population of Europe’s member states. A few years from now, this kind of legislation could make smoking a symbol – and not just for smokers – of resistance to intrusive and paternalist public authorities and the relentless appetite for regulation in the EU, which is an increasing source of exasperation for a growing number of its citizens.