Last week the House of Commons and House of Lords confirmed their agreement on the final draft of the Tobacco and Vapes Bill. If (or, more likely, when) it receives Royal Assent, it will make it illegal to sell tobacco to anyone born on or after 1 January 2009—an attempt to create a “smoke-free generation” in the UK.
Media coverage and polling suggest the policy has broad public support, despite the familiar air of “big government”. Supporters of the Bill point to the avoidable burden smoking places on the NHS, the well‑known links to cancer and cardiovascular disease, and the general distaste (and harm) associated with second-hand smoking. Critics, meanwhile, frame the Bill as an intrusion into individual autonomy. If an adult can vote, work, pay tax and join the armed forces, why should they be prohibited from buying cigarettes?
As an ex-smoker myself, I understand and sympathise with the aims of the Bill, but I’m not convinced a sales ban is the most effective tool, nor does it respect individual rights and freedoms. Education about the risks of smoking, for example, is a less abrasive (and arguably a more effective) form of prevention. History tells us that blanket prohibitions can have adverse effects: the temperance movement and the Volstead Act in 1920s America helped drive alcohol into illicit markets, creating speakeasies and enriching organised crime; one cannot imagine Al Capone’s infamous rise to power had Americans simply been educated on the risks of alcohol consumption.
Similarly, when looking at the price of UK tobacco products, alongside the availability of cheaper (often illegally sold) alternatives, it is easy to imagine more smokers turning away from the legal market in the name of cost cutting and a wider freedom of choice (pivotal when considering the recent hikes in the cost of tobacco products and the 2020 UK ban on menthol cigarettes in line with the EU’s Tobacco Products Directive (2014/40/EU)). This, again, raises the question of whether a phased, generational ban will achieve its intended effect or simply shift demand toward harder-to-police, and potentially more dangerous, channels.
If the goal is a long-term decline in smoking, a sustained emphasis on education, quitting support, and targeted enforcement against rogue traders could well deliver more than a headline ban without the need for direct government intervention into everyday lives.
The bigger question, ultimately, is the precedent such a ban sets. In terms of the response by the legal industry, well-known consumer rights firm Sentinel Legal announced last week that they will be launching a judicial review of the Bill on the basis that the same is in breach of multiple fundamental rights under the European Convention on Human Rights. Should such an action succeed, it would be implausible that the government would seek to directly overrule a judicial decision by statute on such a niche issue; should a review action fail, however, it is difficult to see anything standing in the way of this landmark legislation.
Once the government opens Pandora’s box on regulating (or prohibiting) adult choices in the name of public policy, the question must be asked of where does it end— are fatty foods, alcohol, and high-sugar products next on the chopping block? Only time will tell.
Author: Owain Bridgeham (Unregistered Barrister and Apprentice Solicitor)
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