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Nudging Smokers The Behavioural Turn of Tobacco Risk Regulation

Published online by Cambridge University Press:  20 January 2017

Alberto Alemanno
Alberto Alemanno*
Affiliation:
EU Law & Risk Regulation at HEC Paris
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Extract

At a time when policy makers want to change the behaviour of citizens to tackle a broad range of social problems, such as climate change, excessive drinking, obesity and crime, a promising new policy approach has appeared that seems capable of escaping the liberal reservations typically associated with all forms of regulatory action. After having relied on the assumption that governments can only change people's behaviour through rules and regulations, policy makers now seem ready to design policies that better reflect how people really behave, not how they are assumed to behave as rational agents. The approach, which stems from the increasingly ubiquitous findings of behavioural research, is generally captured under the evocative concept of ‘nudge’. Inspired by ‘libertarian paternalism’, it suggests that the goal of public policies should be to steer citizens towards making positive decisions as individuals and for society while preserving individual choice. Acting as ‘choice architects’ policy makers organize the context, process and environment in which individuals make decisions. In so doing, they exploit some patterns of irrationality, often called ‘cognitive biases’, to manipulate people's choices. Thus, in the famous Cafeteria example, the school's management might try to affect students’ diet by rearranging the display of food to make it more likely that students will choose the healthy option. This innovative approach to policy making is part of a broader shift from traditional regulation to regulatory governance that is generally referred to as New Governance.

Type
Symposium on Nudge
Information
European Journal of Risk Regulation , Volume 3 , Issue 1 , March 2012 , pp. 32 - 42
Copyright
Copyright © Cambridge University Press 2012

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References

1 Kahneman, Daniel, Thinking, Fast and Slow (New York, NY: Farrar, Straus and Giroux, 2011)Google Scholar.

2 Thaler, Richard H. and Sunstein, Cass R., Nudge: Improving Decisions About Health, Wealth and Happiness, (London: Yale University Press, 2008)Google Scholar.

3 Sunstein, Cass R. and Thaler, Richard H., “Libertarian Paternalism Is Not an Oxymoron”, 70 U. Chi. L. Rev. (2003), pp. 1159–1202 CrossRefGoogle Scholar.

4 See, e.g., Baron, Jonathan, Thinking and deciding (Cambridge, MA: Cambridge University Press, 2007)Google Scholar; Ariely, Dan, Predictably irrational: The hidden forces that shape our decisions (New York, NY: HarperCollins, 2008)Google Scholar.

5 See, e.g., Yeung, Karen, “The Regulatory State”, in Baldwin, Robert, Cave, Martin and Lodge, Martin (eds.), Oxford Handbook of Regulation (Oxford: Oxford Universiy Press, 2011), pp. 80–81 Google Scholar.

6 See, e.g., Alemanno, Alberto, “Out of Sight Out of Mind – Towards a New Tobacco Products Directive”, 18 Columbia Journal of European Law (2012), forthcomingGoogle Scholar; and Crosby, Scott, “The New Tobacco Control Directive : An Illiberal and Illegal Disdain for the Law”, 27 European Law Review (2002), pp. 177–193 Google Scholar. Symposium on Nudge – Nudging Smokers

7 Bogart, William A., Permit But Discourage, Regulating Excessive Consumption (Oxford: Oxford University Press, 2011)Google Scholar.

8 See, e.g., Jha, Prabhat and Chaloupka, Frank J., “The Economics of global tobacco control”, 321 BMJ (2000), pp. 358–61CrossRefGoogle Scholar; Campaign for Tobacco-Free Kids, China : Tobacco Burden Facts, Washington D.C. 2009 ; Roberto Iglesias, Prabhat Jha, Márcia Pinto et al., “Tobacco Control in Brazil”, Health Nutrition and Population (HNP) Discussion Papers, World Bank, Washington D.C., 2007.

9 Jha, Prabhat and Chaloupka, Frank J., “The Economics of global tobacco control”, 321 BMJ (2000), pp. 358–61CrossRefGoogle ScholarPubMed.

10 Eric A. Feldman and Ronald Bayer, “The Triumph and Tragedy of Tobacco Control: A Tale of Nine Nations”, 7 Annual Review of Law and Social Science (2011), at p. 88 (illustrating how the denormalisation phenomenon was at first a consequence of the public health interventions but then became an autonomous ‘discrete policy goal’).

11 Chapman, Simon and Freeman, Becky, “Markers of the De-normalization of Smoking and the Tobacco Industry”, 17 Tobacco Control (2008), pp. 25–31 CrossRefGoogle Scholar.

12 Hammond, David, Fong, Geoffrey T. and Zanna, Mark P., “Tobacco De-normalization and Industry Beliefs among Smokers from Four Countries”, 31 American Journal Prev. Med. (2006), pp. 225–232 CrossRefGoogle Scholar.

13 Goffman, Erving, Stigma : Notes on the Management of Spoiled Identity (New York, NY: Penguin, 1995)Google Scholar.

14 Kim, Sei-Hill and Shanahan, James, “Stigmatising Smokers : Public Sentiment Toward Cigarette Smoking and its Relationship to Smoking Behaviors”, 8 J. of Health Communication (2003), pp. 343–367 CrossRefGoogle Scholar.

15 Frank Jordans, “WHO chief slams tobacco firms that ‘harass’ governments to prevent anti-smoking measures”, The Washington Post, 25 November 2011.

16 On the relationship between legal regulation and social norms, see, e.g., Bogart, William A., Permit But Discourage, Regulating Excessive Consumption (Oxford: Oxford University Press, 2011), at p. 130 Google Scholar.

17 Black, Julia, “Regulatory Conversations”, 29 Journal of Law & Society (2002), pp. 163–196, at p. 170CrossRefGoogle Scholar.

18 Bogart, William A., Permit But Discourage, Regulating Excessive Consumption (Oxford: Oxford University Press, 2011), at p. 79 Google Scholar.

19 For two different narratives of tobacco control, see, e.g. Bogart, William A., Permit But Discourage, Regulating Excessive Consumption (Oxford: Oxford University Press, 2011)Google Scholar; Feldman, Eric and Bayer, Ronald, Unfiltered : Conflicts over Tobacco Policy and Public Health (Cambridge : Harvard University Press, 2004)Google Scholar.

20 Brandt, Allan M., The Cigarette Century: The Rise, Fall, and Deadly Persistence of the Product that Defined America (New York : Basic Books, 2007)Google Scholar.

21 Bogart, William A., Six Ideas about the Impact of Law – America the Outlier, in Consequences : The Impact of Law and its Complexity (Toronto: Toronto University Press, 2002), at p. 111 CrossRefGoogle Scholar.

22 On the existence of a social gradient in smoking, Feldman, Eric A. and Bayer, Ronald, Conclusions : lessons from the comparative study of tobacco control, in Feldman, Eric and Bayer, Ronald, Unfiltered : Conflicts over Tobacco Policy and Public Health, (Cambridge, MA: Harvard University Press, 2004), at p. 300 Google Scholar.

23 Pehlan, John and Link, Bruce, Controlling disease and creating disparities: A fundamental cause perspective, 60(b) J. Gerontology B. (2005), at p. 27 Google Scholar.

24 Howells, Geraint, The Tobacco Challenge – Legal Policy and Consumer Protection (Surrey: Ashgate, 2011), at p. 7 Google Scholar.

25 Chapman, Simon, “Benefits and Risks in Ending Regulatory Exceptionalism for Tobacco”, 17 Tobacco Control (2008), pp. 73–74 CrossRefGoogle Scholar.

26 Givel, Michael, “FDA Legislation”, 16 Tobacco Control (2007), pp. 217–218 CrossRefGoogle ScholarPubMed.

27 Leaders, “Soft Paternalism: the State is Looking After You”, The Economist, 6 April 2006.

28 See Framework Convention on Tobacco Control, 21 April 2003, 42 International Legal Materials (2003), at p. 503. For an analysis, see McGrady, Benn, Trade and Public Health: Tobacco, Alcohol and Diet (Cambridge: Cambridge University Press, 2011)CrossRefGoogle Scholar.

29 Feldman, Eric and Bayer, Ronald, Unfiltered : Conflicts over Tobacco Policy and Public Health (Cambridge, MA: Harvard University Press, 2004), at p. 81 Google Scholar.

30 See, e.g. Chalopka, Frank J., Wakefield, Melanie and Czart, Christina, “Taxing Tobacco: The Impact of Tobacco Taxes on Cigarette Smoking and Other Tobacco Use”, in Rabin, Robert L. and Sugarman, Stephen D. (eds.), Regulating Tobacco (Oxford: Oxford University Press, 2001)Google Scholar.

31 For an overview of the literature on tax policies in tobacco control, see, e.g., Howells, Geraint, The Tobacco Challenge – Legal Policy and Consumer Protection (Surrey: Ashgate, 2011), pp. 208–211 Google Scholar.

32 Kip Viscusi controversially argued that – as smokers tend to die a few years before non-smokers – states save costs in health coverage, pensions and social security and, as a result, tobacco could be argued to be a net benefit to society. See Viscusi, Kip, Regulation through Litigation (Washington, DC: AEI Brookings, 2002), pp. 24–25 Google Scholar.

33 Thus, for instance, in the EU, the general warnings (‘Smoking kills’ or ‘Smoking seriously harms you and others around you’) should cover no less than 30% of the most visible surface of the unit pack; whereas the additional warnings (to be chosen from an agreed list and to be rotated on a regular basis) should cover no less than 40% of the other most visible part of the packet. See Article 5 of the Tobacco Products Directive.

34 David Hammond, Geoffrey T. Fong, Ron Borland et al., “Text and Graphic Warnings on Cigarette Packages: Findings from the International Tobacco Control Four Country Study”, 32 American Journal of Preventive Medicine (2007), pp. 202–209; Willemsen, Marc C., “The New EU Cigarette Health Warnings Benefit Smoker Whoe Want to Quit : Results from the Dutch Continuous Survey of Smoking Habits”, 15 European Journal of Public Health (2005), pp. 389–392 CrossRefGoogle Scholar.

35 I would like to thank Adam Burgess for drawing my attention to the class aspect of smoking. Smoking being now a working class habit in the West, this class distinction suggests that conscious efforts at curbing smoking tend to be severely constrained by socioeconomic reality. For an excellent illustration, see Feldman, Eric A. and Bayer, Ronald, “The Triumph and Tragedy of Tobacco Control: A Tale of Nine Nations”, 7 Annual Review of Law and Social Science (2011), pp. 79–100 CrossRefGoogle Scholar.

36 For a detailed legal and policy analysis of plain packaging and visual display ban under EU Law, see Alemanno, Alberto, “Out of Sight Out of Mind – Towards a New Tobacco Products Directive”, 18(2) Columbia Journal of European Law (2012), forthcomingGoogle Scholar.

37 See, e.g., Lowenstein, George, “Out of Control: Visceral Influences on Behavior”, 65 Journal Org. Behav. And human. Dec. Proc. (1996), pp. 272–292 CrossRefGoogle Scholar; Hanson, Jon D. and Kysar, Douglas A, “Taking Behavioralism Seriously: Some Evidence of Market Manipulation”, 112 Harvard Law Review (1999), pp. 1420–1569 CrossRefGoogle Scholar.

38 TNCO labelling should be printed on one side of the cigarette packet in the official language(s) of the Member State where the product is placed on the market so that at least 10% of the corresponding surface is covered.

39 US Surgeon-General Report, The Health Consequences of Smoking (Bethesda, MD: US Department of Health and Human Services 1981)Google ScholarPubMed.

40 European Commission, Public Consultation Document on the Possible revision of the Tobacco Products Directive (Health and Consumer Protection Directorate-General, 2010).

41 Ibid., p. 7.

42 UK Parliament, “Science and Technology Committee – Second Report Behaviour Change”, 11 July 2011, available on the Internet at <http://www.publications.parliament.uk/pa/ld201012/ldselect/ldsctech/179/17902.htm> (last accessed 24 January 2012).

43 Thaler, Richard H. and Sunstein, Cass R., Nudge: Improving Decisions About Health, Wealth and Happiness (London: Yale University Press, 2008), at p. 6 Google Scholar.

44 Ibid., at para 2.5.

45 Bovens, Luc, “The Ethics of Nudge”, in Grüne-Yanoff, Till and Hansson, Sven Ove (eds.), Preference Change: Approaches from Philosophy, Economics and Psychology (Berlin and New York: Springer, 2008)Google Scholar.

46 For a detailed legal and policy analysis of these regulatory measures, see Alemanno, Alberto, “Out of Sight Out of Mind – Towards a New Tobacco Products Directive”, 18(2) Columbia Journal of European Law (2012), forthcomingGoogle Scholar.

47 See Bovens, Luc, “The Ethics of Nudge”, in Grüne-Yanoff, Till and Hansson, Sven Ove (eds.), Preference Change: Approaches from Philosophy, Economics and Psychology (Berlin and New York: Springer, 2008)Google Scholar.

48 See, e.g., Kirby, Kris N. and Herrnstein, Richard, “Preference Reversals Due to Myopic Discounting of Delayed Reward”, 6 Psyc. Sci. (1995), pp. 83–89 CrossRefGoogle Scholar.

49 Sugarman, Stephen D., International Aspects of Tobacco Control and the Proposed WHO Treaty, in Rabin, Robert L. and Sugarman, Stephen D. (eds.), Regulating Tobacco (Oxford: Oxford University Press, 2001), at p. 245 Google Scholar.

50 David J. Hanson, “Social Norms of Marketing is Highly Effective”, available on the Internet at: <http://www2.potsdam.edu/hansondj/YouthIssues/1093546144.html> (last accessed 24 January 2012).

51 Ibid.

52 Richard Thaler and Cass Sunstein claim that, “the libertarian aspect… lies in the straightforward insistence that, in general, people should be free to do what they like…The paternalistic aspect lies in the claim that it is legitimate for choice architects to try to influence people's behaviour in order to make their lives longer, healthier and better”. See, Nudge: Improving Decisions About Health, Wealth and Happiness (London: Yale University Press, 2008), at p. 232.

53 For a recent attempt, see Crosby, Scott, “The New Tobacco Control Directive: An Illiberal and Illegal Disdain for the Law”, 27 European Law Review (2002), pp. 177–193 Google Scholar.

54 Interestingly enough, sociological research suggests that the modern anti-smoking movement began, similarly to Prohibitionism of the mid-30s, as a typically upper-middle-class phenomenon intended to impose its values on the lower orders of society by “education”, if possible, or by government intervention, if necessary.

55 Rabin, Robert L. and Sugarman, Stephen D. (eds.), Regulating Tobacco (Oxford: Oxford University Press, 2001), p. 3 Google Scholar.

56 Ibid.

57 The evidence about the hazards of second-hand smoke began to emerge in the 1980s. See, Howells, The Tobacco Challenge, supra note 16, at pp. 72–73.

58 The US Surgeon General's 1972 Report identified the hazards of second-hand smoke before its 1986 Report decisively concluded that, “Involuntary smoking is a cause of disease, including lung cancer, in healthy non-smokers”. In 1998, the UK Scientific Committee on Tobacco found that exposure to second-hand smoke led to a 24 per cent increased risk of lung cancer. See UK Report of the Scientific Committee on Tobacco and Health, 1998, available on the Internet at <http://www.who.int/tobacco/mpower/en_tfi_scientiifc_committee_dh.pdf> (last accessed 24 January 2012).

59 See, e.g., Berridge, Virginia, “Passive smoking and its pre-history in Britain: policy speaks to science?” 49 Social Science and Medicine (1999), pp. 1183–1194 CrossRefGoogle Scholar.

60 Rabin, Robert L. and Sugarman, Stephen D. (eds.), Regulating Tobacco (Oxford: Oxford University Press, 2001), p. 3 Google Scholar.

61 On the corporate approach of tobacco companies towards regulation, see, e.g., Patricia McDaniel and Ruth Malone, “Understanding Philip Morris's Pursuit of US Government Regulation of Tobacco”, 14 Tobacco Control (2005), pp. 193–200. See also, Rabin, Robert L. and Sugarman, Stephen D. (eds.), Regulating Tobacco (Oxford: Oxford University Press, 2001)Google Scholar.

62 Garde, Amandine, EU Law and Obesity Prevention (Alphen aan de Rijn: Wolters Kluwer, 2011), pp. 10–16 Google Scholar.

63 Bovens, Luc, “The Ethics of Nudge”, in Grüne-Yanoff, Till and Hansson, Sven Ove (eds.), Preference Change: Approaches from Philosophy, Economics and Psychology (Berlin and New York: Springer, 2008)Google Scholar.

64 According to Thaler and Sunstein, “Many of these policies cost little or nothing ; they impose no burden on the taxpayers at all”. See Thaler, Richard H. & Sunstein, Cass R., Nudge: Improving Decisions About Health, Wealth and Happiness (London: Yale University Press, 2008), at p. 14 Google Scholar.

65 Science and Technology Select Committee at the House of Lords, Behaviour Change, 2nd Report of Session 2010-12, pp. 18–19.

66 For an early recognition of the lack of both a theoretical and an applied experimental basis for integrating cognitive biases into policy making, see Eskridge, William and Ferejohn, John, “Structuring Lawmaking to Reduce Cognitive Bias: A Critical View”, 87 Cornell Law Review (2001), at p. 647 Google Scholar.

67 Prevalence of current tobacco use among adults aged ≥ 15 years (percentage), World Health Organization. Retrieved 26 January 2012.

68 This is also the conclusion reached by the Annual Update 2010-11 of the Behavioural Insights Team (BIT) established at the UK Cabinet Office. See p. 29.

69 Gusfield, Joseph R., Symbolic Crusade (Champaign, IL: University of Illinois Press, 1963), at p. 1 Google Scholar.