Remember when the Food and Drug Administration wanted to festoon every pack of cigarettes with striking imagery of sallow corpses, bawling babies, and throat-holes belching smoke like 19th century London factories? On June 22, 2009, President Obama signed the Family Prevention and Tobacco Control Act into law, a portion of which mandated that the front and rear panel of each cigarette pack had to include "color graphics depicting the negative health consequences of smoking."
Two days later, the New York City Department of Health and Mental Hygiene decided the packaging wasn't enough: It wanted the city's 10,000 or so licensed tobacco retailers to "prominently display point-of-sale warnings and cessation messages" – i.e., poster-sized versions of the theatrical, highly stylized warning images.
Tobacco companies contested the 2009 law, and in August 2012, the U.S. Court of Appeals for the District of Columbia found that the warning images portion of it was unconstitutional. In the words of the Court, many of the images failed to "convey any warning information at all, much less make an 'accurate statement' about cigarettes," and were instead "unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting."
Unable to inhibit cigarette sales through brazen, horror-show imagery, public health officials are now retreating to Victorian-era discretion. Earlier this week, Mayor Bloomberg introduced legislation that, if passed, will require tobacco retailers to sequester their products in "cabinets, drawers, under the counter, behind a curtain or in any other concealed location." Only during the act of purchase or restocking will such bounty be legally visible.
Believe it or not, the rationale behind this measure appears to be a videogame of sorts. A study funded by the New York State Department presented 1,216 teen participants, aged 13 to 17, with one of six simulated convenience stores. In two of the stores, cigarettes were openly displayed behind the counter. In the other four, the cigarettes were hidden behind solid cabinet doors that bore a logo identifying them as the store's "Cigarette Center." (In these four stores, varying degrees of cigarette advertising were present as well.)
Participants were told to buy four items, including two from the counter area. You don't need a degree in retail merchandising to guess how this played out: In the two stores where cigarettes were openly displayed, teens purchased cigarettes more often than they did when the cigarettes were hidden.
Now, it may be that all this study really proves is that teens are logical virtual shoppers. Participants were incented with the promise of $6.50 in e-Rewards dollars upon completion of their task, and they conducted the exercise in comparatively rapid fashion, finishing in an average of 172.3 seconds. (In real life, the study states, the average teen spends around 16 minutes in a typical visit to a convenience store.) Perhaps, in an effort to maximize their efficiency, they simply focused their attention on items that seemed most readily available.
What we can more certainly conclude from this study – or at least from the legislation that has followed in its wake – is that Mayor Bloomberg is determined to bend the city's appetites to his will through the supposedly benevolent mechanism of choice architecture.
Choice architecture is the practice of designing environments in ways that are meant to incite or at least favor specific actions and behaviors, without actually forcing outcomes on anyone. Putting cigarettes and candy near cash registers, where the possibility of an impulse buy is high, is one form of it. So is designing casinos in ways that encourage you to lose track of time. (In most casinos, windows and clocks are rarer than royal flushes).
In recent years, the idea that choice architecture can encourage positive behaviors as well as negative ones has grown increasingly popular, as has the idea that governments should engage in the practice. For example, if you use multiple, socialized garbage containers to help you separate your coffee grounds from your Budweiser empties, you're participating in government-mandated choice architecture. If you balk at ordering a cranberry orange scone at Starbucks with your morning coffee because there's a tiny sign next to it reminding you it contains 490 calories, thank the nearest bureaucrat.
If you don't like the way a casino implements choice architecture, you don't have to patronize it. If you don't like the way the government implements choice architecture, well, just give it a little more consideration and maybe you'll see the light.
Certainly the encomiums to government-mandated choice architecture have been growing increasingly fervent. In 2010, Agriculture Secretary Tom Vilsack announced his plans to purge candy and soda from school cafeterias and fill vending machines with "nutritious offerings" as part of a campaign to "make the healthy choice the easy choice." In Feburary 2012, Michelle Obama, whose Let's Move! campaign is ostensibly devoted to giving people "access to a wide range of choices," successfully lobbied for Snickers Bar control. More recently, Mayor Bloomberg tried to make 12 oz. Pepsis the (legislatively constrained) choice of a new generation, and now, on the heels of that unsuccessful effort, he wants to put cigarettes under lock and key, or at least hide them behind some sufficiently thick drapes.
In response, a New York Daily News op-ed insists that "putting the cigarettes behind the counter actually increases liberty." It does this, its author, Carnegie Mellon professor George Loewenstein, explains, because the open display of cigarettes in shops confronts smokers "head-on with temptation, [making] it more difficult for them to implement the choice to quit that so many want to make."
In essence Loewenstein is saying that if we just had fewer options, we'd make better choices! Throughout history, no temperance advocate has ever said otherwise.
In New York City, the adult smoking rate is 14 percent. In the nation at large, it's 19.3 percent. But the city hasn't achieved this public health victory through the expansion of liberty. Instead, it has substantially curtailed personal choice. It's illegal to light up a cigarette in restaurants, bars, plazas, parks, and beaches. In December 2012, the New York Post reported that the city's Health Department was planning to offer $10,000 payments to community groups that convinced property managers to adopt smoke-free policies in their apartment buildings. And because of taxes imposed at the state and city level, a single pack of cigarettes costs anywhere from $10 to $13. In comparison, according to the National Drug Intelligence Center, a bag of heroin could be purchased in New York City for between $5—$12 as recently as 2008.
Alas, making tobacco nearly as illegal and expensive as a Schedule I drug doesn't just result in impressive public health gains – there are social costs as well. According to one recent study, New York City smokers with an annual income of less than $30,000 now spend 23.6 percent of that income on cigarettes! That's more than double the amount they were spending ten years ago, and yet smoking rates of the city's lowest-income residents have only declined a few percentage points in that time.
Meanwhile, in an effort to subvert New York City's alleged expansion of liberty, smokers have adopted numerous methods for getting cigarettes more cheaply. Nearby Indian reservations do a brisk trade selling tax-free cigarettes. Roll-your-own shops, which weren't subject to the same taxes as packaged cigarettes until new federal legislation was enacted last year, offered another alternative. And thousands of shops in New York City simply sell smuggled cigarettes. According to the city's Finance Commissioner David Frankel, 46 percent of the 1,900 retailers that were inspected over the last 18 months were "selling unstamped or untaxed product."
Here we see choice architecture at work in insidious fashion: By making a legal but unhealthy product increasingly unaffordable, Mayor Bloomberg and his confederates have effectively nudged thousands of smokers and shopkeepers into criminal behavior. Now, he wants to raise the stakes by increasing the penalties for the behaviors he's induced. A second new piece of legislation he's initiating, the "Sensible Tobacco Enforcement" bill, will, if passed, increase financial penalties for selling untaxed cigarettes and give the Department of Finance the power to shut down repeat violators. Light up and inhale the cool liberating flavor of Prohibition Lite.