This summer, New York City resident Eric Garner was killed by police in the course of an arrest for selling individual cigarettes — “loosies” — on the street. The illicit loosies market exists because of laws against selling single cigarettes (as opposed to packs or cartons). It’s especially important in New York, where a fully taxed pack of cigarettes costs about $12.50, and sellers of loosies often buy much cheaper packs illegally brought in from Virginia or North Carolina, where cigarette taxes are much lower.
If stores were allowed to sell individual cigarettes, and if New York’s cigarette taxes were no higher than those elsewhere, there wouldn’t have been any demand for illicit loosies, and therefore Eric Garner wouldn’t have had the opportunity to sell them. No illegal sale, no arrest, no struggle with the arresting officer, no death. Therefore — according to some pundits and politicians, including one who intends to run for president — the “nanny state” tobacco-control effort is responsible for the death of Eric Garner.
The sheer ghoulishness of scoring cheap political points from someone’s sudden and terrible death has long since ceased to be a surprise, though (I hope) it has not ceased to be a source of disgust. But put that aside for the moment: How much substance is there to the proposed link between a man dead on the street and the effort to control smoking? In particular, when we’re thinking about tighter tobacco regulations and higher taxes, do we need to add more Eric Garners to the “disadvantage” side of the calculation, to be weighed against the advantages of reducing the number of people hooked on — and, some of them, dying from — cigarettes?
First things first. The fact that a police officer used what seems to have been excessive force in trying to subdue Eric Garner, and then stood by – with several colleagues, and some EMTs — and did nothing while the victim asphyxiated, isn’t a fact about tobacco control; it’s a fact about policing in New York City, and the need to improve how it’s done.
And New York City can — and will — improve its police work without easing up on the anti-smoking campaign. If the laws hadn’t generated an illicit market in loose cigarettes, but the attitudes and behavior of the police had been what they were, that officer or another officer would likely have arrested Eric Garner or another civilian for some other “public-order” offense (selling cannabis, selling crack, riding his bicycle on the sidewalk, aggressive panhandling) with the same awful result. So blaming tobacco control for Eric Garner’s death is like blaming the manufacturers of kitchen matches for arson fires: It confuses the circumstance with the cause.
That said, though, the markets in illicit tobacco products — mostly cigarettes smuggled from low-tax to high-tax states — are indeed an artifact of the tobacco-control effort. Those illicit markets generate enforcement activity, including arrests. Sometimes, in the course of an arrest, someone gets hurt, or even killed. People also get killed in the course of big-money illicit transactions: Traffickers shoot one another in business disputes that can’t be resolved in court, they shoot witnesses, and they get shot by robbers.
At the current level of illicit gain available from cigarette-running — moving a container-load of cigarettes from Virginia to New York evades about $4 million in taxes — and the current enforcement effort against it, the illicit tobacco trade offers criminals a much more attractive risk-reward profile than, say, the cocaine trade. That suggests that, if we’re going to keep our current laws, we need more tobacco-law enforcement than we have now. But there’s no guarantee that more enforcement won’t lead to more violence: The cocaine trade is much rougher than the tobacco trade in part because there are more cops and the sentences are longer.
So yes, a full consideration of the gains and losses from tighter tobacco regulation would have to consider the harms done by illicit markets and by enforcement efforts. On the other hand, the legal side of the tobacco business kills about 400,000 of its customers every year. You can say, if it makes you feel better, that they brought it on themselves, but that doesn’t make them any less dead, or their loved ones any less bereft. Emotionally and politically, of course, it’s not the same at all, because a death from chronic obstructive pulmonary disease or heart attack or stroke isn’t nearly as dramatic as being killed by a public official in a public place. As Stalin cynically remarked, one death is a tragedy, while a million deaths is merely a statistic.
Drug abuse, including tobacco addiction and alcoholism, is a real problem that we can’t solve just by legalizing everything and letting the free market work. Some people develop bad habits around certain psychoactive substances. That problem leads to a natural and appropriate desire to craft policies to reduce the frequency of those bad habits. The policy question is how to design drug-control regimes that do as much good, and as little harm, as possible. That’s not true today of our illicit-drug policies, our alcohol policies, or our tobacco policies, in part because debate about them is so bound up with ideological commitments that stress public health and a particular version of morality on the one hand, and liberty on the other, with not much willingness on either side to subject concrete policy proposals to the test of reason that balances gains against losses and compares one option with another
In the case of tobacco control, it’s not the absolute level of taxation that creates most of the problem (it’s possible to smuggle really, really cheap cigarettes from abroad into the United States, but almost no one wants to buy them). The problem is the difference in tax levels between the states. Yes, New York could shrink the incentive to smuggle cigarettes in by reducing its cigarette taxes. But by the same token, Virginia and North Carolina could shrink it by raising their cigarette taxes. And the federal government could help by imposing a higher federal tax — say, $4/pack rather than the current $1/pack — that gets rebated dollar-for-dollar against state and local taxes. Voila! Less smoking, less emphysema, less crime, fewer arrests, more revenue that could be used to reduce general sales taxes or income taxes or property taxes. What’s not to like?
These aren’t the kind of proposals we’re getting, though. The Food and Drug Administration is now considering a complete ban on the sale of menthol cigarettes. Menthol now accounts for about 30 percent of all cigarette sales, and upwards of 85 percent among African-Americans. The idea is that if menthol weren’t available, some people who now start to smoke by smoking menthols would never start, and some people who now smoke menthols would quit rather than switching. (Very few smokers use both kinds, and very few switch from menthol to regular or from regular to menthol: Fewer than 10 percent over a smoking lifetime.)
No doubt a menthol ban would have some of the desired effect, and thereby save some lives; remember that even a 5 percent reduction in smoking — which would result if just one in six current menthol smokers were to quit rather than switch — would mean 20,000 fewer deaths per year.
But if even a third of today’s menthol smokers couldn’t stand “regulars” and didn’t succeed in quitting, that would roughly double the size of what is already an out-of-control market for illicit cigarettes. And the resulting transactions, and the enforcement effort against them, would be concentrated in African-American neighborhoods where high crime and over-aggressive policing are twin evils. Is that really the least painful means of keeping the trend of smoking headed down? And yet a menthol ban — like a ban on e-cigarettes — is now an article of faith among many anti-smoking advocates and in much of the public-health community.
Let’s all take a deep breath — easier, of course, for the non-smokers — and try to think this one through clearly. Drugs, including nicotine, and badly designed drug-control policies can both be deadly things. It’s not impossible to have less drug abuse and less law enforcement and less violence. But doing so calls for more careful analysis and more dispassionate discussion then we’ve managed, so far, to generate.
— Mark A. R. Kleiman is professor of public policy at UCLA and the co-author of Drugs and Drug Policies: What Everyone Needs to Know. Disclosure: His policy firm, BOTEC Analysis, has done work for a cigarette manufacturer.