Should we further restrict smoking?

Today sections 7A-7D of the Tobacco Advertising and Promotion Act 2002¹ came into force in England and Wales, bringing in a prohibition on tobacco displays (advertising is already banned) for large shops and supermarkets, with a full scale ban covering all retail outlets coming in on 6th April 2015. With the health secretary, Andrew Lansley, declaring that ‘we no longer see smoking as a part of life’,² should we further restrict smoking and the sale of tobacco products - perhaps even banning them altogether?

Current legislation

At present, the minimum age for the sale of tobacco products in England and Wales is 18 years of age (I believe it’s the same in Scotland and Northern Ireland). For some odd and probably historical reason, the legislative source for this rule is section 7 of the Children and Young Persons Act 1993.³ Unlike liquors, it appears that only the seller, not the purchaser, commits an offence if tobacco products are sold to someone under age, and the maximum penalty is a fine. Interestingly, and something I didn’t know until I read the legislation, uniformed park-officers and constables can seize tobacco products ‘in the possession of any person apparently under the age of sixteen years whom he finds smoking in any street or public place’.[note s7(3) Children and Young Persons Act 1933] Not only do they have the power to do so, but the legislation explicitly makes it their ‘duty’ to confiscate such products.

In terms of a ban on smoking in public premises, this was introduced across the UK from 2006, starting with Scotland and with the UK-wide ban completing with Part 1, Chapter 1 of the Health Act 2006. The Crown Dependencies slowly followed suit, with Alderney being the last island with a population greater than 1,000 to enact a smoking ban in June 2010.[note Smoking (Prohibition in Public Places and Workplaces) (Alderney) Law, 2008] I visited Alderney before the ban had been introduced there but after the UK legislation came into force, and the difference in pubs was noticeable (I had an extremely sore throat the next day - what I call a ‘passive smoking hangover’).

So in summary, current legislation makes it illegal to:

1. Sell tobacco products to anyone under 18 years of age.
2. Smoke in ‘enclosed or substantially enclosed’ public premises (with some exceptions).
3. Advertise or display tobacco products in large stores.

However, it is still legal to smoke in public places which are not ‘enclosed or substantially enclosed’ (e.g. at a bus stop), to buy and sell tobacco products and to openly display tobacco products in small shops.

Why not ban smoking altogether?

Putting aside the matter of freedom and choice, which would be an essay in itself, there are four major reasons why most politicians shy away from proposing a total ban on smoking:

1. Some industries – particularly pubs – could be damaged by restrictions on smoking.
2. Smokers still make up a sizeable proportion of the population and electorate - though I can’t find any figures for a breakdown of smokers vs non-smokers amongst people who vote.
3. There are enough people employed in related industries (often in marginal constituencies) that putting them out of work would be politically suicidal (or ‘courageous’ as Sir Humphrey would put it).
4. The Treasury gets a great wodge of cash each year from the duty on tobacco products.

However, most of these arguments can be countered. Any damage done to pubs has had five years to work its way through the system, and in any case is offset to an extent by the families who go and eat food now that there is no one blowing smoke over their children. Further restrictions are unlikely to do much more damage, since pubs are enclosed premises and therefore already covered by the legislation.

Popularity-wise, I feel that the tide of public opinion has moved to the point where there would not be an enormous backlash against a continued tightening of the tobacco sales and public smoking rules. Smokers only make up 21.2% of the adult population,⁴ so even if every smoker was against further restrictions and saw it as a major issue which influenced whom they voted for, it would not necessarily change the outcome of an election.

The employment issue is trickier, but might not be as bad as MPs initially think. If workers are concentrated in a few constituencies, then there is little to be lost by MPs from other constituencies voting in favour of further restrictions. On the other hand, if workers are spread evenly across the country, no one MP will lose a large number of votes as a result of a change which impacts on those individuals.

Finally, there is the argument which HM Treasury likes to deploy: that smoking brings in vast amounts of cash for the government in the form of duties on tobacco products. This is probably the hardest argument to repudiate, at least on financial grounds. The direct cost to the NHS of smoking was estimated at £5.2bn in 2005-6⁵ and £2.7bn in 2006 (England only),⁶ and that is after a gradual ongoing decline in smoking. In contrast, tobacco duties brought in approximately £8bn in the tax year 2005/6,⁷ which suggests that on a purely financial, Treasury vs Health budget basis, tobacco products bring in net revenue of £3-5bn per year. In the current economic environment, I cannot see the Treasury willingly giving up that much revenue over a health issue.

On a cheerier note, if you enjoy political satire, I highly recommend The Smoke Screen, a Yes (Prime) Minister episode covering this exact subject. It is worth watching regardless of your position on a smoking ban.

Further reading

• The Tobacco Advertising and Promotion (Display) (England) Regulations 2010 - statutory instrument which brought s21 of the Health Act 2009 into force.
• The Tobacco Advertising and Promotion (Display and Specialist Tobacconists) (England) (Amendment) Regulations 2011 - changed the date given in the previous regulations from 1st October 2011 to 6th April 2012.