Repeal Day Lessons for Tobacco Prohibitionists

Today’s nicotine prohibitionists may do well to take a few moments to contemplate their anti-alcohol predecessors.

On this date in 1933, Americans ratified the Twenty-First Amendment to the Constitution, officially repealing the Eighteenth Amendment that had ushered in Prohibition of alcohol just 14 years prior. Many of us will toast the occasion the same way Americans did in 1933: with a good drink. If you're so inclined, you may also want to light up a smoke while you still can. Ninety years after the end of one era of Prohibition, we are gradually creeping into a new one forbidding the sale of tobacco and/or nicotine. And just as in that previous era, these laws are encouraging illicit markets, forcing consumers to buy more dangerous products, and leading to the arrest and prosecution of sellers.

Like the temperance movement of the previous century, the movement to eradicate tobacco and nicotine is global in scope. In the United Kingdom, Prime Minister Rishi Sunak is pushing to implement the world's first nationwide "smoke-free generation" law, which would make it illegal for Brits currently aged 14 and under to ever purchase combustible tobacco for their entire lives. A similar law was passed and nearly enacted in New Zealand but will be reversed by the election of a new government.

Starting in 2024, Australia's already strict laws against vaping will be tightened even further, banning the personal importation of all kinds of vape devices. Nicotine e-cigarettes will be legally available only by prescription and penalties for mere possession of illicit e-cigs or nicotine liquid range from fines of more than $20,000 to imprisonment. 

Despite recent assurances from federal health minister Mark Butler that law enforcement will focus on importers and sellers, one 49-year-old man caught by police in Western Australia with vaping liquid in his car has reportedly been charged with possessing a Schedule Four poison, a crime punishable by up to two years in prison. (Conventional cigarettes, which unlike vapes actually do kill millions of people every year, are not classified as poison under Australian law.)

In total, more than 40 countries have implemented bans on the sale of e-cigarettes, from oppressive states such as North Korea, Saudi Arabia, and Venezuela to more liberal democracies such as Argentina, India, and Japan. Thailand threatens some of the harshest punishments, with threats of imprisonment and high-profile cases of police extorting foreign vapers for bribes.

By comparison, the United States remains a relatively free country when it comes to smoking and vaping, but prohibitionist policies are advancing. Five states and nearly 400 localities have passed some form of flavor ban. Massachusetts, the first state to comprehensively ban both flavored tobacco and flavored nicotine liquids, has seen a surging black market as a result; authorities are seizing so many illicit cigarettes and vapes that they are running out of room to store them.

As predicted by civil liberties advocates, flavor bans are also leading to arrests and prosecutions. Though bans do not typically impose criminal penalties directly, sellers participating in illicit markets can be charged with felony tax evasion. One pending case in Massachusetts may send two men to prison for up to five years on charges stemming from the sale of flavored cigarettes and e-cigs.

At the federal level, the Food and Drug Administration is preparing a national ban on menthol cigarettes. An even more ambitious proposal would mandate extremely low levels of nicotine in cigarettes, amounting to prohibition in all but name. The optimistic scenario envisioned by anti-smoking advocates is that these policies will effectively cut off the supply of forbidden products, nudging smokers to quit or switch to safer alternatives with little complication. The more realistic outcome is that the extremely lucrative business of supplying cigarettes to the nearly 30 million Americans who smoke will prove extremely attractive to criminal suppliers.

We have, of course, seen this all before with the prohibition of alcohol. Anti-smoking activists attempt to distance their policy proposals from the word "prohibition," but the comparison is apt. The promise to target sellers rather than consumers is identical. The indifference to the lives of drinkers who were poisoned by tainted alcohol rather than allowed a safe and legal source of liquor is echoed in today's policies that keep people smoking lethal cigarettes by banning safer alternatives. And while the United States has not yet created the conditions to completely turn the market for cigarettes over to illicit sellers, we can get a preview of what that may be like in the current rash of arson attacks on Australian tobacconists fueled by turf wars between competing gangs.

There is a deeper parallel in the ways that these prohibitions are publicly advocated. The temperance movement is caricatured in modern memory as a bunch of no-fun moralizing Protestants taking away Americans' freedom to drink. Historian Mark Schrad's excellent 2021 book Smashing the Liquor Machine is a reminder that the truth was far more nuanced; Prohibition was also a deeply progressive cause championed by reformers who sought to protect vulnerable populations from a predatory and destructive liquor traffic. The problems they identified were real, even if their solution proved to be fatally flawed.

Today's advocates for nicotine and tobacco prohibitions are in the same vein of progressive reform; they portray their policies not as restrictions on personal freedom but rather as protections against the deadly and dishonest tobacco industry. This is evident in the responses to the reversal of New Zealand's "world-leading" ban on tobacco, its change in policy described as "retrograde," an "act of idiocy," even as "systemic genocide" against the indigenous Maori. Suggestions that tobacco prohibition would infringe on liberties or have genuine downsides are barely given consideration among the press or public health experts.

Before shaking up the cocktails on this Repeal Day, today's tobacco and nicotine prohibitionists may do well to take a few moments to contemplate what lessons they might take from their anti-alcohol predecessors. Both sets of reformers justifiably railed against the sale of dangerous substances; if anything, the case against tobacco is even stronger than that against booze. But there is an essential difference too: while all sources of alcohol are roughly equivalent from a health perspective, the harms of smoking can be greatly reduced by switching to innovative, lower-risk sources of nicotine.

That difference highlights an opportunity that was never available to the Anti-Saloon League: to defeat the enemy not by prohibition but by competition. Making safer products available and using less restrictive measures to nudge consumers to use them can save lives without risking the inherent dangers and unintended consequences of prohibition. While that outcome may be less satisfying to progressive reformers than bringing the hammer down on Big Tobacco, they might consider one more lesson from the Prohibition era. If a policy was so unworkable that people are still celebrating its repeal nearly a century later, it's probably worth trying a different course of action today.