In recent years, governments have been embracing policies that ‘nudge’ citizens into making decisions that are better for their own health and welfare, and the European Commission has embraced this ‘libertarian paternalism’ in its review of the Tobacco Products Directive. Alberto Alemanno explains that by introducing measures such as plain packaging and display bans, the European Union may be able to ‘nudge’ people into smoking less, whilst preserving their right to choose.

At a time when policy makers are seeking to change individual behaviour to solve a broad range of social problems, such as climate change, excessive drinking, obesity and crime, a promising new policy approach seems capable of escaping the typical reservations associated with regulatory action. After having relied on the assumption that governments can only change people’s behaviour through rules and regulations, policy makers seem ready to design polices that better reflect how people really behave. The new approach, which stems from the increasingly ubiquitous findings of behavioral research, is generally captured under the evocative concept of ”nudge.” Inspired by “libertarian paternalism,” the nudge approach suggests that the goal of public policy should be to steer citizens towards making positive decisions as individuals and for society while preserving individual choice. This innovative approach to policymaking is progressively shaping tobacco control policies.

After centuries of being a socially accepted habit, smoking has undergone a cultural transformation in most Western countries. As more citizens perceived smoking as an unclean and unhealthy habit, support grew for regulatory intervention aimed at further decreasing consumption. Although it was not until the twentieth century that the health problems associated with tobacco use gained wide acceptance, tobacco control measures such as smoking bans are as old as tobacco consumption itself. Yet what makes tobacco control measures more salient today is their rapid spread and virtually universal character, being mandated by an international agreement, the Framework Convention on Tobacco Control, the world’s first global public health treaty negotiated under the auspices of the World Health Organization (WHO). The Framework Convention’s 174 signatories, representing more than 90% of the world’s countries including China and India, are expected to adopt an entire new generation of tobacco control measures in addition to tax measures and advertising bans (the first generation of tobacco control measures),

These new measures include plain packaging and visual display bans. While the former entails the removal of trademarks, logos, pictures, graphics and other promotional elements from the pack, the latter consists of prohibiting the display of tobacco products at the point of sale. By adopting these measures, policy-makers aim not only at diminishing the attractiveness of the brand logo and graphics but also at de-normalizing tobacco consumption. Plain packaging and visual display bans – as well as graphic warnings and smoking bans – seem potentially capable of nudging citizens away from consumption of tobacco products and are currently considered by the European Commission in the framework of the Revision of the Tobacco Products Directive.

A new paradigm in tobacco control policy is emerging. The first generation measures used incentives, such as excises duties, as well as the provision of detailed information about product contents and their adverse effects, which assumed that consumers were rational decision makers. The neo-classical figure of a reasonable decision maker becomes irrelevant under the new paradigm. The idea is to keep consumers away from temptation by changing the environment in which they are called to make a choice. Those who want to buy a cigarette box face a series of physical and moral obstacles and often receive less information about the product itself than in the past.

The most recent tobacco control policies, while allowing individuals to smoke, seek to nudge them at every opportunity towards less consumption. They aim to achieve this by changing the context within which all smoking choices are “made”. As such “libertarian paternalism” seems capable of accommodating the rather self-contradictory governmental stance towards tobacco products, which allows on the one side the legal marketing of a deadly and addictive product capable of generating significant income for both the industry and the government through taxation, while on the other heavily regulating and discouraging its consumption.

However, while “nudging” offers an intellectual underpinning to the current regulatory stance against tobacco, it might encounter some of the same obstacles that it faces in other less contentious areas of policy-making – namely, the limited effectiveness of these policies and the risk that, in the long term, they might backfire. Until society decides to ban smoking completely, adults will continue to make their individual choices, choices that over time nicotine may make less voluntary for many individuals. Should their initial choices not occur in an informed way, governmental efforts will risk losing credibility vis-à-vis both current and new, potential smokers.

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Note:  This article gives the views of the author, and not the position of EUROPP – European Politics and Policy, nor of the London School of Economics

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Alberto AlemannoHEC Paris
Alberto Alemanno is Jean Monnet Professor of European Union Law and Risk Regulation at École des Hautes Études Commerciales de Paris (HEC Paris) and Adjunct Professor of Global Risk Regulation at Georgetown University Law Center. He is also Managing Editor of the European Journal of Risk Regulation (EJRR)

EJRR aims to promote informed discussions on the law, science and policy of risk regulation at the EU and global level. It adopts a cross-disciplinary perspective and builds bridges between academia and policy-making. The EJRR’s methods extend to disciplines such as law, sociology, political science, risk analysis, economics as well as psychology and cognitive studies.

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