What If There Was No Legal Smoking Age?

Liberty is sometimes a tough thing to watch. Like the teenager in a horror movie getting up and going to the kitchen while the audience braces itself for what they know full well is going to happen, it’s hard to stand by and watch our friends and strangers alike exercise their right to make choices that are harmful in the long run. It’s hard for them to watch us do it too.

Over the holidays the Trump administration raised the legal age to buy tobacco and nicotine vaping products from 18 to 21. It also took the opportunity to micromanage the flavors companies like Juul can provide. Menthol is in, mango is out.

It’s laughable to think a rule meant to apply to thousands of shops nationwide that can’t all be monitored will prevent any 18-year-old from finding a coveted pack of Parliaments. Our track record of keeping banned products people want out of their hands is abysmal. But with enough enforcement, it would be hard to argue that raising the smoking age wouldn’t prevent at least some young people from picking up the habit, and ultimately save lives.

2015 report commissioned by the National Academy of Medicine and touted by the American Lung Association in its efforts to raise the age nationally “revealed that ‘Tobacco 21” could prevent 223,000 deaths among people born between 2000 and 2019. While empirical projections like these are notoriously sensitive to the biases and assumptions every researcher brings to the table, numbers even a fraction of this size cannot just be ignored.

This is a gut-check moment for those of us, including myself, who believe that government bans and minimum ages are virtually never the right approach to society’s ills. We can parse the above report’s methodology and likely find the number of lives saved is overstated. We can point out the inevitability that such a move will have unforeseen and unintended consequences–look no further than the current heroin epidemic fueled in part by the government’s crackdown on prescription narcotics for an even more tragic recent example. Finally, we can point to prohibition and the war on drugs as nearly unassailable proof that bans do not work.

These arguments are important and correct, but in making them all we’ve done is preserve the right of 20-year-olds to smoke. The deeper truth is that a healthy society doesn’t have questions of public health or morality dictated to it by government or other large institutions. Rather, it places trust in parents and young adults to make these decisions for themselves. From these millions of decisions emerge shared cultural and moral standards far more robust than rules that are inevitably broken.

What Would Adam Smith Do?

If that sounds a bit like the difference between a market economy and central planning, it should. As many readers will likely know, the same enlightened Scotsman both celebrated and vilified for championing an economy arising from individual freedom spent the early part of his career investigating morality in much the same way.

Adam Smith first published his Theory of Moral Sentiments seventeen years before The Wealth of Nations, at a time when few would have even thought to question that mankind was given morality from on high–God, clergy, king and aristocracy. But as is evident in both his major works, Smith was one of those rare scholars who understood that when millions of people think and act on their own, the whole is different and vastly greater than the sum of its parts.

Anyone unfamiliar with Smith’s earlier masterpiece can find ample synopses as well as the man’s own words in abundance online. For our purposes, suffice it to say that Smith identified our ability to care about both our own self-interest and the interest of others, the latter of which he called sympathy but is today closer to our concept of empathy. Smith also surmised that people could step back and view the actions of themselves and others through the lens of an imagined impartial observer. Through empathy, learning, and millions of ongoing human interactions, morality emerges and evolves.

But what happens when rules are imposed from on high? In a recent piece on a seemingly very different topic, Jeffrey Tucker identified several examples in industry where rules imposed from the top stifled the creativity and vigilance of companies which had every reason to provide safe and high-quality products and services. This is simple human psychology–if you know what you’re going to be told to do, it’s often easier to just do it and expend your limited mental bandwidth on something else.

This would appear to fit perfectly into Smith’s moral framework. Relieved of the “burden” of deciding between right and wrong by government and church, the process that requires each person thinking for themselves would grind to a halt.

Cigarettes and Sentiments

What does this digression, almost worthy of Smith himself, have to say about smoking? I believe it says we’ve been asking the wrong question all along. Rather than comparing the incremental costs and benefits of raising the smoking age, what if we consider a world with no smoking age at all?

At first this sounds unfathomable. But let’s recall Milton Friedman’s famous observation that “One of the great mistakes is to judge policies and programs by their intentions rather than their results.” I see a corollary to Friedman’s idea here–it’s a mistake to judge government policy as an expression of society’s values rather than by its efficacy. People recoil at this suggestion because they feel somehow as though we’re endorsing a six-year old picking up a carton of Newports on the way home from school. That’s ridiculous, but let’s look at the more realistic dilemma of how striking the smoking age from the books would impact teens.

With no smoking age on the books, Smith’s process could much more fully kick in. Instead of shopkeepers asking “will I get caught selling cigarettes to teenagers?” the relevant question becomes “should I sell cigarettes to teenagers?” On the consumer side moral responsibility also accompanies choice. Groups of kids whose default behavior may be scheming to get ahold of cigarettes now lose this rebellious endeavor and along with at least involved parents have vastly greater agency.

Many will say that this approach benefits teens with attentive parents, likely to be prosperous and educated, while leaving the poor out on a cigarette break in the cold. But bodegas in poor neighborhoods are exactly the places law enforcement are likely to ignore, at least for a petty crime like selling cigarettes to minors. Putting that moral responsibility on shopkeeper, teen, and parent could be more effective.

We see examples of nearly this exact phenomenon in history. Around the turn of the twentieth century, there were no laws against pharmacists selling products containing cocaine. This wasn’t for lack of public apprehension–the drug was already being sensationalized in the press as a substance that would whip black men into dangerous frenzies, a playbook repeated all too often.

But concerns over cocaine caused many pharmacists to simply not sell this lucrative product. One journalist claimed that of twenty pharmacists approached, only one was willing to sell the drug, the other druggists providing “the curt rejoinder, ‘No you can’t buy that rotten stuff here.’”

On the consumer side we see similar results that while at first appearing counterintuitive make sense in light of Smith’s framework. Take, for example, the often repeated idea that European countries with lower drinking ages, if any at all, seem to struggle less with binge drinking by young people. This is casual empiricism without a doubt, but one sees its plausibility. Individuals with agency over such decisions and the ability to learn from and react to each other often yield spontaneous outcomes we would initially think impossible.

There’s a telling moment in the 2015 National Academy of Medicine report when the authors argue that while more lives would be saved by further raising the smoking age from 21 to 25, the returns would diminish quickly. The mechanism proposed by the authors is plausible–it’s less the twentysomethings’ futures at stake as teens, who are far more likely to receive cigarettes bought by 18-21 year olds than those over 21. But the observation is clearly a preemptive strike against a sort of unraveling I noted on Twitter with a good bit of sarcasm and more than a little anger.

Just like any age, 21 is arbitrary. At some point, without an all-out war on tobacco, we must allow people to make potentially life-threatening choices. And that’s where Smith’s framework most importantly informs this debate. Individuals and their friends and families, older siblings and mentors all have just a little bit of knowledge about what makes sense for any given person.

The process of discovering each individual’s best balance between instant gratification and health risks down the road is messy. Smith’s critics, as they do in his economics treatise, falsely assume he ascribes super human rationality to his subjects. That only came later when future generations tried to fully mathematize the work of the classical economists.

There is no magic bullet. Whether government-mandated or left in the hands of individuals, tobacco use will lead some to tragic consequences. Kids will get cigarettes either way, and adults will try and fail to stop. In this scenario of no good choices, the course that encourages responsibility and humanity seems like something we might want to try.


Max Gulker


Max Gulker is an economist and writer who joined AIER in 2015. His research focuses on two main areas: policy and technology. On the policy side, Gulker looks at how issues like poverty and access to education can be addressed with voluntary, decentralized approaches that don’t interfere with free markets. On technology, Gulker is interested in emerging fields like blockchain and cryptocurrencies, competitive issues raised by tech giants such as Facebook and Google, and the sharing economy. Gulker frequently appears at conferences, on podcasts, and on television. Gulker holds a PhD in economics from Stanford University and a BA in economics from the University of Michigan. Prior to AIER, Max spent time in the private sector, consulting with large technology and financial firms on antitrust and other litigation. Follow @maxgAIER.

This article is republished with permission from the American Institute for Economic Research.

Image: Valentin Ottone

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