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The creeping nannyism of South African smoking regulations

Originally published in the Daily Maverick
South Africa has some of the most stringent restrictions on the sale, advertising and consumption of tobacco in the developed world. In general, this is a good thing. It seems to me entirely appropriate for harmful substances to be reasonably difficult to get hold of, and that they shouldn’t be made to appear attractive to prospective users.

Included amongst those prospective users are children, who we assume to be less capable than adults of assessing risk. (This is in fact no assumption at all: the brain’s reward system, which governs addiction, isn’t yet fully developed in adolescents or even in most adults until their early 20’s.) So, leaving aside the numerous inconsistencies in our paternalism towards children – where crackpots are allowed to home-school, for example – it also seems appropriate to protect children from addictive and harmful substances.

Likewise, those who don’t want to smoke or be exposed to tobacco smoke also deserve protection from harm. It shouldn’t be the norm that a toxic environment is forced on people where that toxicity is easily avoidable at minimal (or simply justified, even if not minimal) inconvenience to smokers. As a smoker myself, it’s certainly annoying to have my restaurant choices limited. But I’m the one imposing the limitation on myself, as I have no claim on the health of others.

Having said all that, there is nevertheless a difference between protecting the innocent and enforcing undue restrictions on adults who choose a harmful pursuit, even if that choice soon becomes far less a choice than an addiction. We’re allowed to harm ourselves in various ways, such as through choosing a diet that’s likely to result in premature death.

Even though dietary choices are increasingly the subject of interference, with fat and sugar taxes being mooted in various countries including ours, the prospects of warning labels on “junk food” appear remote (for now, at least). And when junk food does start getting taxed, some inconsistencies in dietary paternalism are likely to become apparent: foie gras seems more dangerous than Big Macs, but the rich are apparently sophisticated enough to know this without the nudge of punitive taxes.

For smoking, though, attitudes and legislation appear premised in not only health concerns but also a moral revulsion, where the latter contributes to some quite strange and illiberal restrictions on freedom. If a smoker satisfies her addiction in a manner that only implicates consenting adults, she should be free to do so – even if disincetivised from doing so by ever-increasing “sin taxes”.

Those consenting adults can include restaurant staff and owners. For staff, we’d of course need to ensure that nobody consents to working in a smoking environment simply because they are desperate for a job, or are otherwise pressured into doing so. For owners, legislation can be (and to some extent already is) demanding enough that you choose to disallow smoking entirely, simply because additional extraction systems, kitchens and entrances all cost money, and you might not expect to recoup those costs.

In principle, it should be possible to design both legislation and physical spaces such as restaurants in such a way that those of us who seem to desire a premature death can fulfil that desire without causing any harm to non-smokers. At least this seems true for physical harm, which is where moral revulsion becomes relevant. Or if not moral revulsion, then at least the assumption that we all have a duty to live according to someone else’s standards of good and healthy conduct.

How else can one explain various elements of the “Regulations relating to smoking in public places and certain outdoor public places”, a set of proposed amendments to the Tobacco Products Control Act of 1993? When smokers are required to light up “not less than 50 metres away from the closest person” at a public swimming facility, can this possibly be interpreted as safeguarding the health of non-smokers? I’d say not – it is instead a moralistic wagging of fingers, alongside a reminder that you shouldn’t imagine you have the (or this particular) freedom to harm yourself.

It also seems an entirely arbitrary distance, especially when you consider that the prescribed distance from windows, ventilation inlets and doorways is ten metres. But then, perhaps smoke travels at a higher velocity over water.

For restaurant owners, the amendments seem roughly equivalent to putting up signs saying “come and smoke here if you like, but we’ll make sure it’s about as enjoyable as a 15-hour layover at Heathrow’s Terminal Five”. Restaurants will be allowed to have a designated (outdoor only) smoking area, but the amendment seems to imagine this space as some sort of purgatory in which to puff in shame.

No food or drink can be served in these smoking areas, and no entertainment can be provided. Strangest of all, smokers must be “discouraged from remaining in the area longer than is necessary to smoke a cigarette”. No guidance is given as to how restaurateurs are meant to discourage smokers, but perhaps the Minister of Health plans on issuing them all with a pointy stick.

As for the food and drink, it again seems perfectly possible to arrange a restaurant in such a manner that these can be provided without exposing non-smokers to a harmful environment. With regard to entertainment, I can see the sense in not allowing a live band, for example, as this would draw crowds or simply deprive non-smokers of something they might find desirable.

However, if this includes not even allowing a wall-mounted speaker (and the amendment simply prohibits providing “entertainment”), it seems to be a simple punitive measure which seeks to make smoking unattractive enough that it might as well be illegal. Not only illegal for under-18’s, as it currently is, but illegal for everybody. Because this is a harm that you’re not allowed to inflict on yourself, even as you remain free to subsist off a diet of only triple-patty hamburgers, deep-fried in lard.

As I said at the outset, smoking is certainly a public health issue of great significance, even though obesity has recently overtaken smoking as the leading cause of death in countries such as Australia and America. This might well be the result – at least in part – of making smoking less attractive. The non-smokers reading this might think this a good result, which has simply turned our attention to the next thing that merits dissuasion through taxation or social stigma.

But the end-point of this sort of nannying is to be told what we can and cannot eat, and which sports or activities are simply too dangerous to be permissible. If this were to happen, I wouldn’t be at all surprised to find personal liberty becoming a much more important issue to many of the same people who currently have no objection to asking smokers to stand 50 metres away. Because, as the argument often goes, the cases are “different” – different, at least, in that personal liberty is all good and well so long as it’s on your terms, not someone else’s.

By Jacques Rousseau

Jacques Rousseau teaches critical thinking and ethics at the University of Cape Town, South Africa, and is the founder and director of the Free Society Institute, a non-profit organisation promoting secular humanism and scientific reasoning.

7 replies on “The creeping nannyism of South African smoking regulations”

I thought I was going to disagree from a public health point of view. But this proposal does go beyond what I think is reasonable. What do you think about people being prohibited from drinking in public spaces (as is currently the case), or smoking cannabis (a less harmful substance than tobacco by every measure) outside the home (were it legalised)? These seem comparable examples where, I think, most people would argue against the kind of freedom you advocate for smokers. Although I agree with you.

Not sure if you spotted it, Alan, but my piece was from 2012 – those proposals have since been ratified.

I’d think restricting drinking in public and cannabis (if legalised) outside the home would also probably be overly restrictive, and grounded more in a certain moralism rather than public health concerns.

The weasel-word “probably” is there because, if it turns out that there is some good data that shows a public health cost, I’d want to take that into account. Ideally, we’d prohibit and police certain behaviour stemming from public drinking, not the drinking itself. But if it turns out that we can’t do that, and need to clumsily cut the problem off at the source, I’d reluctantly see some sense in that. If it’s just the moralism, no.

On the cannabis, as you say, that’s less harmful than tobacco, which we do allow to be consumed outside the home. So that seems a clear inconsistency, and a wrongful restriction of liberty. Plus, we also know well that the standard “war on drugs” causes far more problems than it solves in any case…

“…those of us who seem to desire a premature death can fulfil that desire without causing any harm to non-smokers.”

I doubt it can ever be without ANY harm to others. Perhaps you are not familiar with the agony family & friends have to go through while looking after a loved one slowly suffocating to death over a period of a few years…

The two points are unrelated. The first seems entirely implausible, in the sense that if a smoker avoids exposing others to passive inhalation, the smoker’s contribution to the ill-health of others would be too miniscule to count.

The second is a poor attempt at moral shaming, and irrelevant to any refutation of my claim.

No, it was not an attempt at shaming. Just a sincere concern for smokers who might not be fully aware of how badly it sometimes end.