In brief

• The Government is going to repeal the world’s first ‘nanny state’ smoking laws. 
• How effective are rules like this? Do they spur black markets? 
• The Government, under Labour, thought they would be effective, but ample evidence internationally, including Australia, suggests otherwise. 
• What about personal choice and the Bill of Rights that doesn’t allow age discrimination if you are over 16?

The unintended consequences of restrictive tobacco laws

The Government has taken a step away from what some perceive as a ‘nanny state’ approach to smoking regulations under what’s known as the Smokefree 2025 action plan. 

While the previous Government’s goal of achieving a “smokefree generation” by 2025 is laudable, there are questions about whether strict regulations may produce unintended consequences like fuelling black markets, and the balance between government regulation and personal liberty. Isn’t the key that people decide not to smoke, or they will be inclined to ignore the law?

Provisions under the Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Act to be rolled back, prior to implementation, include: 

• Reducing the number of tobacco retail locations from around 6000 to 600.
• Lowering nicotine content to non-addictive levels. 
• Prohibiting tobacco sales to those born after 2009.

The ineffectiveness of prohibition

While in Opposition, Dr Shane Reti had argued against the Government of the day’s smoke free targets, saying they were unrealistic goals to reach by 2025. At the same time, the move would reduce revenue to retailers and the Government while emboldening the black market. Some describe the previous government’s plans to reduce retail locations as a “lottery” scheme, benefiting some Dairy and convenience store owners while causing financial struggles for others. 

There’s also worry that, with fewer licensed tobacconists, their businesses will be targets for criminal activities, such as ram raids by gangs. 

“The gangs will be rubbing their hands with glee,” said ACT’s Karen Chhour of the plan at the time it was introduced by the previous Government. 

The previous Government argued that illicit tobacco sales were decreasing despite increasing regulations, but international examples suggest otherwise. Australia and the United States have seen more robust black markets as restrictions tighten.

Balancing public health and personal liberty

The debate over smoking regulations ultimately revolves around balancing public health concerns with personal liberties. Prohibition, in many cases, proves difficult to enforce, as seen with cannabis control and the continued presence of a black market.

Te Pāti Māori leadership claim the Government’s repeal of the yet to be implemented laws is a “systemic genocide”. Even though such language is hyperbolic, Te Pāti Māori may still be commended for the concern they have for their community’s health and well-being. Yet, is it appropriate for the Crown to interfere with the personal choices of consenting adults? 

Age discrimination is prohibited by the Bill of Rights. The High Court’s confirmed that in its decision to rule the voting age of 18 is discriminatory. How would a ban on smokers born after 2009 be different? The government can ignore the Bill of Rights but generally doesn’t want to as it shows the rights in NZ are illusory. 

Will there be calls to phase out sugar, red meat or alcohol? Or maybe there should be a law that you go to the gym 3 times a week?

The role of experts in defending against the move

While concerns exist about potential increases in smoking rates, there is a notable degree of uncertainty when assessing the merits and drawbacks of this move.

Take, for instance, New Zealand Doctor’s critical piece, which blurs the line between opinion and fact. The assertion that the move ‘only benefits tobacco companies’ is far from accurate. Moreover, the article’s discussion of potential harms relies heavily on modelling, essentially amounting to informed guesswork. Experts suggest that public awareness campaigns and education are more effective in reducing smoking rates than prohibition. The emergence of vaping as an alternative to traditional smoking has also significantly impacted cigarette consumption.