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Tobacco and the Limits to Utilitarianism

Tobacco companies are suing the U.S. government over a policy forcing them to put ghastly images on their product to dissuade consumers from smoking. Along with warning labels, which have long been mandated, would come graphics depicting diseased lungs, corpses, rotting teeth, even tracheotomy holes. The businesses claim this is an example of “forced speech,” a violation of the First Amendment.

Fair enough, although forced speech would include all sorts of other mandates, one would think—warning labels, disclosure of ingredients, disclaimers in ads about the danger of pharmaceuticals, and any other messages industry is compelled to present to prospective customers.

A study by the Center for Disease Control has found that the gruesome images are effective in deterring some smokers. One could easily question these findings on numerous grounds. For example, CDC claims that “the greatest progress in tobacco control in terms of population coverage has been in countries adopting health warnings on tobacco packaging; three more countries with a total population of 458 million have enacted pack labeling laws.” Correlation is not causation, and perhaps nations more likely to adopt cigarette warnings are also more likely to see a reduction in smoking for other reasons.

And yet it would seem that this is in fact an issue where economic analysis will only take us so far. What is the cost of this labeling to society? We can assume it may hurt the tobacco industry—that is, supposedly at least, the whole point. But once it’s accepted that injuring tobacco companies’ profits is hardly a downside to the policy, its economic impact would seem not to be easily shown to be a net cost to society. Where are the other costs being incurred, and how would this even be measured?

The companies are suing on First Amendment grounds that presumably involve the principles that some areas are off limits for the government, if not for mere considerations of social utility, then for more primary questions concerning liberty. The Bill of Rights and the government itself are supposedly meant to defend and protect liberty—a principle of human civilization that we as a culture are often said to value as an end in itself.

And liberty, it is true, is economically best for the masses. The free-market economists have shown this, I believe, beyond much doubt. Nothing produces more for the average person than the unhampered market. Austrian economists have demonstrated, in my opinion the most convincingly, how governmental intrusions into the marketplace can’t help but reduce prosperity overall in the long run. Neoclassical economists have shown the damage done by regulations. Public choice economists have underscored the danger of allowing the state to pick winners and losers, even if once in a while they get it “right” by some utilitarian measure.

Yet on the question of tobacco warning labels and compulsory graphic images, the economic case is perhaps inconclusive, once we accept the premise that the government ought to stem the use of tobacco and we do not care about the harm inflicted upon the regulated industry. One can say that letting the government do this unleashes its power to do bad in other areas, which is true enough, but it does not really get to the heart of the problem with this policy.

The policy is it undermines liberty. A tobacco company should be allowed to market its admittedly dangerous product to willing consumers. Customers should be allowed to buy it. And the state should not stand in the way, whether to tax the transaction, subsidize the good, or set the terms of the deal. It does all three, but in a free society, it would do none of these things.

This is simply a radical application of an ethical principle that is presupposed by a civil society. It is indeed presumed in the First Amendment, which protects speech even dangerous and destructive to society, however gauged, by a Fourth Amendment, which shields our private property from unreasonable searches, even if we choose to do bad things on that property, and in a Ninth Amendment that protects all our rights not mentioned in the Constitution—even if those rights are used frivolously or destructively.

In a free society, tobacco companies and their customers would not have their relationship invaded by the state. This argument is less scientific than the economic arguments so widely accepted against a litany of discredited government interventions, but in this example, it is perhaps the strongest one.

Anthony Gregory is a Research Fellow at the Independent Institute and author of the Independent books American Surveillance and The Power of Habeas Corpus in America.
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