32 J.L. Med. & Ethics 516 (2004)
Tobacco Control Legislation: Tools for Public Health Improvement

handle is hein.journals/medeth32 and id is 516 raw text is: INDEPENDENT

Tobacco Control Legislation:
Tools for Public Health Improvement
James G. Hodge, Jr.
Gabriel B. Eber

overnment's responsibility to safeguard the public's health
through law has been part of the social contract since ancient
times. Cicero declared salus populi suprema lex esto - the
safety of the people is the supreme law.' Disraeli proclaimed that pro-
tecting the public's health is the first duty of the statesman.2 Of the
ten most important public health achievements of the 20th century
in the U.S.,3 seven are directly related to legal interventions, includ-
ing legislative interventions.4 As new and existing risks to health
risks emerge internationally, governments have consistently used the
law as a tool to define the goals of public health, direct public health
authorities to accomplish these goals, and equip them with the power
and resources to do so.'
Tobacco control represents a salient example of how law can be
used to ensure health. Like other public health laws, tobacco control
laws have historic grounds. Government and other policymakers
have enacted laws to control tobacco use for hundreds of years. The
Russian church forbade tobacco use as an abomination6 In the
17th century, rulers in several countries imposed penalties such as tor-
ture, execution, and exile on tobacco users.7 In 1789, the state of
Maryland mandated the inspection laws to prevent the export of
unmerchantable tobacco.8 By the late 19th century, American cities
regulated smoking as a fire hazard9 and a threat to morality.0 In
1909, the state of Washington banned the possession of cigarettes.
Some American school districts refused to hire teachers who smoked.
Florida made it illegal to persuade, advise, counsel, or compel a
minor to smoke.
It was not, however, until the link between tobacco use and seri-
ous health consequences was established12 that modern tobacco con-
trol laws began. Since then, dozens of countries have implemented to-
bacco control policies and programs.13 Legislation is a key element
of comprehensive tobacco control programs. The World Health Or-
ganization (WHO) Expert Committee on Smoking Control Strategies
in Developing Countries noted that tobacco control programs with-
out legislative components are unlikely to succeed.'4
In 1986, the World Health Assembly (WHA) set forth nine com-
ponents of comprehensive tobacco control: (1) protecting nonsmok-
ers from environmental tobacco smoke (ETS); (2) promoting ab-
stention from tobacco use; (3) promoting tobacco-free health care;
(4) elimination of socioeconomic and behavioral incentives to smoke;
(5) posting prominent health warnings; (6) implementation of pub-
lic education and smoking cessation programs; (7) surveillance of to-
bacco use and disease trends; (8) developing alternatives to tobacco
production, trade, and taxation; and (9) establishing a national focal

point to coordinate tobacco control activities.15 WHA has specifically
called upon country members to employ legislative interventions
based on these components as part of their tobacco control strate-
gies.16 Australia, France, New Zealand, Sweden, and Thailand were
among the first nations to adopt each of the nine WHA strategies.7
All have used legislation to do so.
The public health value of comprehensive tobacco control inter-
ventions can be enormous. After enacting a comprehensive program
in 1992, cigarette consumption in Massachusetts plummeted com-
pared to states without similar legislation.' California experienced
a similarly accelerated decline in consumption after adopting its
comprehensive program in 1988. In addition, mortality from heart
disease decreased more rapidly than in other states - by as much as
2.93 deaths per 100,000 persons per year'9
As the Framework Convention on Tobacco Control (FCTC) shifts
from its final stages of development to implementation, enacting to-
bacco control legislation is a national priority for signatories. WHO
conceived the FCTC as an international legal instrument to circum-
scribe the worldwide tobacco epidemic,20 and has worked with us
(and others) to develop a toolkit for governments considering leg-
islative interventions. The Convention recognizes that tobacco use is
a global public health problem that transcends national borders. It
seeks to coordinate tobacco control interventions on national, re-
gional, and international levels.21 Like previous framework conven-
tions, the FCTC proclaims basic policy objectives and creates gov-
erning institutions to make decisions pertinent to the Convention.
Couched in general terms, countries can agree in principle to the
FCTC, then develop specific protocols on how to achieve policy ob-
In addition to providing international standards and protocols, the
FCTC will facilitate national capacity building and the enactment of
effective national tobacco control legislation.23 Signatory nations
will be called upon to increase their technical capacity to draft, enact,
and enforce new tobacco control laws that are culturally, politically,
and legally appropriate. The importance - and challenges - of build-
James G. Hodge, Jr., J.D., LL.M., is an Associate Professor, Johns
Hopkins Bloomberg School of Public Health; Core Faculty, Berman
Bioethics Institute, Johns Hopkins University; Adjunct Professor of
Law, Georgetown University Law Center; and Executive Director,
Centerfor Law and the Public's Health. Gabriel B. Eber, M.P.H., is
a J D./M.P H. Graduate at Georgetown University Law Center and the
Johns Hopkins Bloomberg School ofPublic Health.


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