Rendez-vous 119
Friday, November 30 2001
Stephen is co-editor of "Regulating Tobacco"
and
Law professor at the University of California at Berkeley
Berkeley, California, USA
Thank you Stephen for accepting our rendez-vous. May I ask you to introduce yourself ?
Stephen Sugarman: I am a law professor at the University of California at Berkeley, where I have taught for 30 years. I teach about personal injury law and in our social justice program.. In 1989, Bob Rabin from Stanford Law School and I put together a team of California scholars to study various sociological, public health, political, and legal issues concerning smoking.
Our book "Smoking Policy: Law, Politics and Culture" published by Oxford University Press in 1993 was the result of that team effort. About four years ago, at the request of the California Department of Health, I helped create the Technical Assistance Legal Center (TALC), as part of the Public Health Institute, which a large non-profit public health promotion organization located here in northern California. TALC provides legal advice, legal training, model laws and so on for local public officials, local city attorneys, community groups, and the like. In 1998 I had the good fortune to be on sabbatical in Japan at Kyoto and Kobe Universities, where I learned something about tobacco issues and the growing tobacco control movement there. Bob Rabin and I more recently put together a team of well known American scholars in the field of tobacco control, and our newest book "Regulating Tobacco" has just been published (October 2001) by Oxford University Press.
Q1. 9 years ago, in December 1992 you co-edited with Robert Rabin "Smoking policy: law, politics and culture". This year you co-edit, again with Robert Rabin, "Regulating tobacco". What major differences do you see -if any- in the situation in 1992 and now?
Stephen Sugarman: Our first book came out before the flood of recent world-wide attention to the tobacco control agenda, before tobacco litigation promised anything but another tobacco company victory, before the "secret" tobacco company documents were released, and so on. At that time, smoking as a matter of consumer choice was still the core model for U.S. policy, although there was a growing non-smokers' rights movement. Research on the impact of tobacco taxes on behavior was in conflict, and little was known about either controls on tobacco marketing or counter advertising. What was perhaps most remarkable was the drop in U.S smoking rates since the mid-1960s in the absence of a strong tobacco control policy.
Today things are very different, and hence a new book that takes stock of the main existing and proposed tobacco control policies seemed desirable.
Q2. Rereading the beginning of "Smoking policy" I find the assessment that "tobacco control policies are by no means uniform at the state and local levels" (p.16). Mike Pertschuk in the recent "Smoke in their eyes" puts it bluntly: "The country has been cleaved into tobacco control rich states and tobacco control poor states" (p.240). On the other hand I have the impression that in "Regulating tobacco" you are considering the US are much more homogenous than they seem to be. As far as tobacco control is concerned is it still relevant to speak of the United States or should one rather speak of the Divided States?
Stephen Sugarman: At the national level, the U.S. still has a very weak tobacco control policy. We still have no regulation of the manufacture and marketing of tobacco products by the Food and Drug Administration. We still have no second hand smoke protection of workers from the Occupational Safety and Health Administration. We have low national excise taxes on tobacco products. We have very half-hearted measures aimed at restricting youth access to tobacco products. We have no genuine scheme for promoting tobacco cessation or harm reduction as part of our national health care policy (such as it is). And so on.
Instead, tobacco regulation is largely a matter of state and local policy. That, of course, means that our states indeed have very different policies. In California recent law reform focus has been on things like having public pension funds divest from tobacco stocks and restricting the number or location of tobacco outlets in a community. By contrast other states and communities are still working on adopting basic laws banning smoking in public places and in the workplace. So, too, some states have much higher taxes on cigarettes than do others. Nevertheless, it should be noted that there is a diffusion process of sorts going on inside the U.S. What California or Massachusetts enacts today, other states may well enact tomorrow. In this sense it might be said that we are slowly moving in the direction of a somewhat more uniform policy from the bottom up.
Q3. I am a little uncomfortable with the use of the word "paternalistic" to qualify tobacco regulation (p.1, 10, 12,15, 16, 35). Robert Kagan explains "paternalistic in the sense that they go beyond simply informing smokers ofthe risks" and quotes as paternalistic: sales ban of cigarettes to minors, tax hikes, ad and promotion restrictions. Can you explain what you consider paternalistic and why?
Stephen Sugarman: It is something of a basic belief in the U.S. (and elsewhere I suppose) that parents generally know what's best for their children. But sometimes we decide to rely upon society wide legal regimes and public policies to promote the best interests of children. Tobacco policy is certainly such an area, and tobacco taxes designed to raise the price of cigarettes is perhaps the most important example. The clearest goal of higher cigarette prices from the tobacco control viewpoint is to discourage youths from starting to smoke, or from migrating from occasional smokers to heavy smokers, or from relapsing after quitting. Although paternalism of children is usually thought to be morally quite appropriate, paternalism of adults is another matter. That is why I think that most people support "clean indoor air" laws as a matter of protecting the rights of non-smokers. The fact that these policies also help to reduce adult smoking levels seems to many to be a bit too paternalistic (although some reasonably argue that for some adults, not being able to smoke on the job is just the "last straw" they were looking for to help them to do what they actually wanted to, which is to quit).
Q4. You mention that "smoking has come to be disproportionately a lower-income activity in our society" (p.5). How do you think this evolution could influence future regulation?
Stephen Sugarman: One fear I have is that as smoking becomes increasingly rare among middle class and professional class people in the U.S. (as it has become in northern California, for example), public interest in the smoking problem may fade away. That would be bad. Cutting in the opposite direction, as fewer and fewer middle class voters smoke, they may well be all too eager to impose higher tobacco taxes on lower class smokers in order to raise money for public purposes that previously had been funded by taxes paid by everyone. While those high taxes help some low income adults to quit smoking (and have socially desirable effects on youths, as already noted), this can amount to "piling on" the addicted poor; and that is a troubling outcome for me, especially so long as we do not have free and widely publicized access to alternative nicotine delivery devices and cessation programs.
Q5. What more or different might be done?
Stephen Sugarman: Because tobacco prohibition in the U.S. is widely viewed as both unenforceable and morally inappropriate (apart from children), we will continue to need a package of tobacco control measures aimed at the different aspects of the tobacco problem. In our new book "Regulating Tobacco" individual chapters address those various measures: Taxation by Frank Chaloupka, Cessation and Harm Reduction by Ken Warner, Controls on Marketing by John Slade, Youth Access Controls by Nancy Rigotti, Second Hand Smoke Laws by Peter Jacobson, and Litigation as a Tobacco Control Strategy by Bob Rabin. The chapter in the book on the politics of tobacco control (by Bob Kagan) suggests that for tobacco control policy to undergo much more change in the U.S., further changes in public opinion may first be necessary. This suggests that tobacco control advocates face an ongoing job of keeping before the public both the public health epidemic that smoking is and the need for additional regulatory policies.
Q6. Is there anything else you would like to add?
Stephen Sugarman: In the final chapter of "Regulating Tobacco" I
discuss the proposed WHO Framework Convention on Tobacco Control. I
examine reasons why an international treaty might be needed, what its
contents might be, who might support or oppose it, and what difference
an enacted FCTC might make. This chapter brings the story up through
the release of a draft FCTC from the international negotiating body (in
early 2001). As I noted in the chapter, there was already some backing
off by key nations, including the U.S., a process that has continued in
subsequent months and was made vivid by some government positions taken
this week at meetings on the FCTC in Geneva. But there is still a way
to go before this issue works itself out, and in the meantime, the FCTC
process itself can be seen to have some social value. Just like the
international exchange provided by GlobaLink, the FCTC process allows
the worldwide tobacco control community to discuss and try to come to a
general consensus as to what package of tobacco controls are most
desirable, what are the political and economic problems of battling the
tobacco industry, and so on.
Thank you Stephen for taking the time to be with us today.
Rendez-vous is supported by a contract from the Robert Wood Johnson Foundation
Comments