University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 12-1-2011 The Triumph and Tragedy of Tobacco Control: A Tale of Nine Nations Eric A. Feldman University of Pennsylvania Carey Law School Ronald Bayer Columbia University Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Community Health and Preventive Medicine Commons, Comparative and Foreign Law Commons, Health Law and Policy Commons, Health Policy Commons, Law and Society Commons, Other Public Health Commons, and the Public Law and Legal Theory Commons Repository Citation Feldman, Eric A. and Bayer, Ronald, "The Triumph and Tragedy of Tobacco Control: A Tale of Nine Nations" (2011). Faculty Scholarship at Penn Law. 384. https://scholarship.law.upenn.edu/faculty_scholarship/384 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. The Triumph and Tragedy of Tobacco Control: A Tale of Nine Nations 1 2 Eric A. Feldman and Ronald Bayer 1 University of Pennsylvania Law School, Philadelphia, Pennsylvania 19104; email: [email protected] 2 Mailman School of Public Health, Columbia University, New York, NY 10032; email: [email protected] on 12/20/11. For personal use only. use only. personal For on 12/20/11. Annu. Rev. Law Soc. Sci. 2011. 7:79–100 Keywords The Annual Review of Law and Social Science is smoking, social gradient, comparative law online at lawsocsci.annualreviews.org This article’s doi: Abstract 10.1146/annurev-lawsocsci-102510-105427 The use of law and policy to limit tobacco consumption illustrates one Copyright Oc 2011 by Annual Reviews. of the greatest triumphs of public health in the late twentieth and early All rights reserved twenty-first centuries, as well as one of its most fundamental failures. 1550-3585/11/1201-0079$20.00 Overall decreases in tobacco consumption throughout the developed by ${individualUser.displayName} by ${individualUser.displayName} world represent millions of saved lives and unquantifiable suffering averted. Yet those benefits have not been equally distributed. The poor Annu. Rev. Law. Soc. Sci. 2011.7:79-100. Downloaded from www.annualreviews.org www.annualreviews.org from Downloaded Sci. 2011.7:79-100. Soc. Law. Rev. Annu. and the undereducated have enjoyed fewer of the gains. In this re- view, we build on existing tobacco control scholarship and expand it both conceptually and comparatively. Our focus is the social gradient of smoking both within and across borders and how policy makers have been most effective in limiting smoking prevalence among the more privileged segments of society. To illustrate that point, we reference a range of literature on tobacco taxation, advertising, and public smoking in five economically advanced democracies—France, Germany, Japan, the United Kingdom, and the United States—and four less developed nations—India, China, Brazil, and South Africa—that together com- prise 40% of the world’s population. 79 INTRODUCTION its most fundamental failures. Overall decreases in tobacco consumption throughout the devel- Smoking has long been a marker of social oped world represent millions of saved lives standing, and in the first decades of the twenty- and unquantifiable suffering averted. Yet those first century the social significance of smoking benefits have not been equitably distributed; shows no sign of diminishing. The cycle started those who already bear disproportionate social early in the twentieth century when the habit burdens—the poor, the undereducated—have of smoking took root among the elite; later it enjoyed far fewer of the gains. was taken up by the masses, and its meaning was Over the past decade, scholars have looked transformed from a testament of fine manners carefully at certain aspects of tobacco control. to a demonstration of individual shortcomings. The literature on tax increases and consump- As the catastrophic health consequences of tion patterns in the United States, for example, smoking became increasingly clear, gov- is substantial. Yet only a limited amount of ernments throughout the developed world work is being done on tobacco policy from a initiated tobacco control policies, and those comparative perspective. Even more striking, policies sharply reduced smoking prevalence. literature on the politics of tobacco control In a compelling endorsement of the positive within nations is sparse. In this review, we impact of public health policy, the number build on existing tobacco control scholarship of people who smoked in the United States and expand it both conceptually and com- and Western European countries tumbled paratively. Our focus is the social gradient of between 1965 and 2005 (Feldman & Bayer smoking both within and across borders and 2004, p. 300). Contained within that story of how policy makers have succeeded in limiting success, however, is a less sanguine tale. As smoking prevalence among some but not all smoking rates were dropping, sometimes pre- segments of society. To illustrate that point, on 12/20/11. For personal use only. use only. personal For on 12/20/11. cipitously, among the more privileged, tobacco we reference a range of literature on tobacco consumption among those at the lower end of taxation, advertising, and public smoking in five the social ladder dropped less dramatically. economically advanced democracies—France, Echoing the arc of tobacco consumption Germany, Japan, the United Kingdom, and and control in the developed world is an the United States. To illuminate the landscape even broader story. The overall decrease in of tobacco control policy in less developed tobacco consumption in developed nations has nations, we focus on the world’s two most coincided with the steady growth of smoking populous nations, India and China; Brazil, in many other parts of the world. In China, the most populous nation in South America; for example, approximately 300 million people and South Africa, the second most populous by ${individualUser.displayName} by ${individualUser.displayName} are smokers, and one million die annually nation in Africa and one with a highly regarded from tobacco-related diseases (Campaign for tobacco control strategy. In all, these countries Annu. Rev. Law. Soc. Sci. 2011.7:79-100. Downloaded from www.annualreviews.org www.annualreviews.org from Downloaded Sci. 2011.7:79-100. Soc. Law. Rev. Annu. Tobacco-Free Kids 2009). In addition to a comprise 40% of the world’s population. social gradient that describes tobacco con- Efforts within individual nations to limit the sumption within national borders, therefore, consumption of tobacco must be seen in light we now have a global social gradient, where of international tobacco policy, specifically information about a given nation’s per capita the World Health Organization’s (WHO) income, level of education, and public health Framework Convention on Tobacco Control infrastructure enables one to predict the overall (FCTC). Few areas of public health policy rate of tobacco use. have broken free of national borders and gone The use of law and policy to limit tobacco global with as much force as tobacco control. consumption thus illustrates one of the greatest Defying the conventional wisdom that the triumphs of public health in the late twentieth WHO’s limited budget and muted moral and early twenty-first centuries, as well as one of authority disable it from playing a significant 80 Feldman Bayer · role in international affairs, in 1996 the World Similarly, in pressing for the control of public Health Assembly adopted a resolution urging smoking and for limitations on advertising, the the WHO to develop an international tobacco FCTC notes that parties must operate with def- control agreement (WHO 1996). Two years erence to their existing laws. The FCTC’s sig- later, the WHO’s new director general, Gro nificance is thus more symbolic than practical; it Harlem Brundtland, made tobacco control indicates that the premier international health her highest priority. At New York’s influential organization has made the elimination of smok- Council on Foreign Relations, she made the ing a core policy objective. Instead of treating case for a global approach: the act of smoking as an individual preference or a legal right, it presents it as an unacceptable Tobacco-related diseases are spreading like an risk obligating the national and international epidemic and are likely to be killing 10 mil- community to intervene in the name of public lion people a year around 2020 ... Into the health. Like the new social norms of tobacco next century, tobacco will climb the ladder to consumption in the United States, the WHO’s be the leading cause of disease and premature FCTC communicates the view that the world death worldwide ... We have the evidence. is better off without cigarettes and smokers. We know what works. Tightening legislation Two questions continue to confront those against advertising, increasing tobacco taxes committed to radically reducing tobacco- and controlling the marketing of cigarettes related morbidity and mortality at the start of will make a difference for the health of future the twenty-first century. First, to what extent generations worldwide ... This is not a chal- should strategies adopted in the prior decades lenge confined to independent