December 4, 2023

Brookline’s Phased Cigarette Ban Is Unwise, Irrational, and Patronizing

The tobacco ban betrays an ignorance of history and economics.

Only a sliver of Brookline residents smoke. According to the Massachusetts Department of Public Health, the town’s adult smoking rate is a paltry 6.8 percent — far below the statewide rate of 13.7 percent.

But for Town Meeting members and other Brookline officials, it is intolerable that even a handful of adults might wish to smoke. So they passed an ordinance forbidding the sale of tobacco products to anyone born on or after Jan. 1, 2000. Under the measure, which took effect in 2021, the legal age to buy tobacco or e-cigarettes rises by one year every year. At first the ordinance banned purchases by anyone younger than 21. Now the ban applies to anyone younger than 23. Five years from now, if the law is still in effect, no one who isn’t at least 28 will be able to buy a pack of Marlboros or Juul pods in Brookline. Five years after that, the minimum legal age to make such a purchase will have risen to 33. In short, anyone not old enough to buy tobacco in Brookline in 2021 will never be old enough to do so.

Whether the law remains on the books is now up in the air. It depends on the Massachusetts Supreme Judicial Court, which is considering a legal challenge brought by a group of local retailers. Convenience stores count on tobacco sales not just for the direct income they generate but for the customers they attract — customers who may walk in to get a pack of cigarettes, then end up buying an energy drink, some snacks, or a lottery ticket as well. The Brookline ordinance will take a bite out of shop owners’ earnings, small at first but larger every year, as more and more of the population is covered by the ban.

The retailers argue that the Brookline measure is unlawful on two grounds. First, they say, it’s an attempt to circumvent a 2018 state law that established 21 as the legal age to buy tobacco products anywhere in the Commonwealth. By its own terms, that law was enacted to “preempt, supersede, or nullify any inconsistent, contrary, or conflicting state or local law relating to the minimum sales age to purchase tobacco products.” Brookline’s ordinance is “inconsistent” on its face with the state’s fixed-age minimum.

Second, the appellants contend, the Brookline ban is discriminatory: It permanently deprives some adults but not others of the right to purchase tobacco products. Under the town’s ordinance, an adult born at 11:59 p.m. on Dec. 31, 1999, is allowed to buy cigarettes and other forms of tobacco, yet an adult born one minute later is forever barred from doing so. As one friend-of-the-court brief puts it, that “simply is not rational” — and laws that discriminate for no rational reason are unconstitutional.

Legal arguments aside, Brookline’s ordinance — the only one of its kind in the United States — is foolish and patronizing. The town is surrounded by communities where tobacco products may lawfully be purchased by any customer 21 and older. Even proponents of the measure acknowledge that it imposes at most a trivial inconvenience. Adults barred from buying cigarettes in Brookline need only walk or drive for a few moments to be in a jurisdiction where they can readily buy cigarettes or vapes.

Over and above any legal objection, the Brookline tobacco ban betrays an ignorance of history and economics. Prohibition is almost never effective at preventing the consumption of a product individuals wish to use. Ban the sale of tobacco within Brookline’s borders to anyone born in the 2000s and there will be a corresponding increase in sales from the other side of the line. Extend the ban to all the surrounding communities, or even the whole state, and a vibrant black market will materialize to meet the market demand. That is exactly what happened after Massachusetts in 2020 enacted a ban on the sale of flavored and menthol tobacco products.

In 2023, every non-comatose human being knows that smoking is unhealthy. It is a foul habit that can lead to lung disease, cancer, and numerous other ill effects. The 50-year campaign to get Americans to shun smoking has been a triumphant success. Smokers are a dwindling and relatively powerless share of the public. They are banned from smoking in workplaces, restaurants, and parks, and on airplanes and beaches. They are charged ever-higher taxes to indulge their habit. They are subjected to frequent and unsubtle warnings about the risks of using tobacco. So why do government officials feel the need to pile on against the relatively few holdouts who choose to smoke? Why not respect their freedom to decide what goes into their bodies? Especially when they are allowed, even in Brookline, to buy and consume other harmful substances, such as marijuana, alcohol, and highly fattening foods?

Last year, the New Zealand parliament voted in favor of a law modeled in part on Brookline’s rising-minimum-age law. It banned the sale of tobacco products to anyone born after 2008 and was set to take effect in 2024. All this in a country where daily smokers account for a mere 8 percent of the population.

But New Zealanders just elected a new government, and one of its first decisions was to scrap the unwise law. Prime Minister Christopher Luxon, who was sworn in on Monday, pointed out the obvious drawbacks: The law would give rise to a black market, unregulated and untaxed. It would reduce liberty without improving public health. And it would deprive the government of revenue that could be spent on more effective means than prohibition to minimize the harm from tobacco.

Unlike New Zealand, Brookline is not about to reconsider the wisdom of its ordinance. If it is going to be repealed, it will have to be at the behest of the SJC. However the high court rules, Brookline’s liberal officials ought to think hard about whether they truly value freedom of choice, as they so often claim, or only value the freedom to make choices they approve of. There is no end of things people opt for that others think unwise, ill-informed, or immoral. Whenever possible, free societies ought to let individuals decide for themselves whether to take such risks.

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