The Perils of Paternalism

Thom Lambert —  28 August 2006

According to Bar None, an op-ed by Jack Turner in today’s NYT, “history shows that, however commendable the reasoning, efforts to control how people drink — or eat, or smoke — tend to backfire.” I’ve made a similar argument in discussing smoking bans.

Advocates of such bans (often citing the work of “norms scholars,” such as Larry Lessig and Dan Kahan) frequently defend the bans on grounds that they alter social norms. The argument is that smoking bans provide a de facto community statement that public smoking is unacceptable and thereby embolden non-smokers to confront smokers who are inconveniencing them. Facing heightened public hostility toward their habits, smokers are likely to revise their preferences regarding smoking. Thus, by making smoking more socially costly, bans reduce the number of smokers.

Of course, this is a good thing only if actual social utility is increased by reducing the incidence of smoking. Ban advocates assume that it is for the obvious reason that smoking carries serious health risks. But ban advocates generally are not in a position to judge the cost side of reducing smoking, for they do not know the degree of utility smokers experience by smoking. Smokers themselves, who these days are aware of the risks of smoking, appear to believe that the benefits they experience from the activity outweigh the costs. It is thus not at all clear that social welfare will be enhanced by eliminating smoking.

But even if it were clear that society would be better off with less smoking, this sort of “norm management” may be a bad idea. Sweeping smoking bans may actually increase the incidence of smoking. A large percentage of smokers acquire the habit at a young age, and they frequently do so because smoking is “cool.â€? Smoking is cool, of course, because it’s rebellious. The harder anti-smoking forces work to coerce people into stopping smoking, and the more they engage the government and other establishment institutions in their efforts, the more rebellious — and thus the “cooler” — smoking becomes. As an empirical matter, then, it is not clear whether sweeping smoking bans — highly intrusive regulatory interventions — actually reduce the incidence of smoking in the long run.

Nazi Germany may provide an example of this sort of “norm backlash.” According to a report in the British Medical Journal, “Germany had the world’s strongest antismoking movement in the 1930s and early 1940s, supported by Nazi medical and military leaders worried that tobacco might prove a hazard to the race.” It bombed:

German smoking rates rose dramatically in the first six years of Nazi rule, suggesting that the propaganda campaign launched during those early years was largely ineffective. German smoking rates rose faster even than those of France, which had a much weaker anti-tobacco campaign. German per capita tobacco use between 1932 and 1939 rose from 570 to 900 cigarettes a year, whereas French tobacco consumption grew from 570 to only 630 cigarettes over the same period.

While this post hoc evidence is admittedly anecdotal, it’s consistent with Turner’s point that paternalism tends to backfire. Norm managers proceed at their own peril.

Thom Lambert


I am a law professor at the University of Missouri Law School. I teach antitrust law, business organizations, and contracts. My scholarship focuses on regulatory theory, with a particular emphasis on antitrust.

13 responses to The Perils of Paternalism


    Ken–Why DO we have laws regulating workplace safety? Employers pay for risks two ways: through workers’ compensation and via “compensating differentials” (i.e., higher wages for accepting risk). These forces OVERWHELM the incentive effects created by OSHA’s fine-based, command-and-control approach. Thomas Kneiser and John Leeth estimated that, in 1993, employers paid $200 billion in compensating differentials versus $160 million in OSHA fines. (See Abolishing OSHA, 4 Regulation 46, 50 (1995).) In my opinion, we don’t need workplace safety mandates. OSHA’s role should be entirely informational (i.e., providing employers with information about available precautions, and perhaps providing employees with information regarding risks).


    Similarly, even if nominal compensation is the same, it is surely the case that the less-desireable waitresses at Denny’s are more likely to work in the smoking section (assuming it is in fact a less-desireable place to work).

    If this reasoning made sense, than it would also apply to situations where the workplace was less-desireable for more extreme reasons–for instance safety. So there should be no laws against workplaces with unsafe conditions (at least when the unsafe condition is readily visible)–anyone with an unsafe workplace will have to pay their employees more (or get less-desireable employees) to work in the unsafe workplace, and the market should take care of everything. Why, then, do we have laws against unsafe workplaces?


    I just cannot stand being in a bar full of smokers. Perhaps they can’t stand not smoking. BUt i did not choose to be sensitive to smoke…while they chose their habit. So if the law has to mediate this clash, it ought to be on the side of the innocent.

    I just cannot stand being in an Italian restaurant! Perhaps people can’t stand not eating Italian food. But I didn’t choose to be sensitive to the smell of Italian cooking… while they chose their habit. Why should I not be able to walk into every restaurant in town without running the risk of smelling the offending Alfredo? If the law has to mediate this clash, it ought to be on the side of the innocent.

    Come to think of it, I also cannot stand being in a bar where people drink! Perhaps they can’t stand not drinking. But I didn’t choose to be sensitive to the smell of alcohol… while they chose their habit. Why should I not be able to enjoy the crowds, the pick-up scenery, and the buffalo wings without confronting alcohol? If the law has to mediate this clash, it ought to be on the side of the innocent.

    And then, I also cannot stand being in loud public places! Why should I not be able to go out without running a risk that a place where I randomly walk in plays loud music?

    Yeah, it never occurred to me that I can pick some other venue for dining out and socializing… and if there are enough people like me, such venues will develop… like, maybe, sushi places and Polish kielbasa places and coffee shops and very very quiet restaurants… but then, why should I be limited in my choice of venue at all? I want to go wherever I want without encountering any unpleasantries whatsoever because I, like, have a fundamental right to enjoy things just the way I like them! And if someone wants something else, the government should step in and ban the aberrant preference.

    I will now say “abracadabra equilibrium social welfare� and add a couple of citations, and it will all immediately make sense!


    Geoffrey, you must be joking that you think Frank is joking. (Your response, of course: “You must be joking that you thought I was joking that Frank must have been joking.”) I don’t think smoking bans are quite so irrational, if you assume that (a) information about smoking policies and enforcement in bars and restaurants and the prevalence of smoke on any given occasion is difficult to collect and employ; (b) bar-hopping is a social activity in which the participants both cannot negotiate extensively ex ante and have different preferences concerning a multitude of factors; (c ) people tend to underestimate incremental additions to long-term risks; (d) smoke is harmful to smokers and nearby non-smokers; (e) smokers have a chemical and psychological dependency on the nicotine from cigarette smoke; and (f) smokers make up a sizeable portion of the population. Which of those assumptions is incorrect?

    And Thom, in the post above, you didn’t mention the fact that nicotine is addictive. I think this undermines your observation that “Smokers themselves, who these days are aware of the risks of smoking, appear to believe that the benefits they experience from the activity outweigh the costs.” Sure, they apparently feel that continuing to smoke is better than undergoing withdrawal symptoms right now, but that’s kind of like saying the mugging victim appears to believe that turning over his or her money outweighs the costs of getting shot. Anti-mugging laws still pretty clearly enhance social welfare.


    Um, didn’t you also choose to go to a bar that allowed smokers? You really think we need the law to mediate this? You must be joking.


    A recent GAO report on the gov’t’s 1 billion dollar anti-drugs campaign confirms your “coolness” point–it said the anti-drug ads may have been self-defeating by a) normalizing drug taking to norm-following teens (i.e., they see lots of kids (albeit traumatized ones) taking drugs in the ads) and b) enhancing the appeal of the practice to norm-defying teens.

    But I’m still sympathetic to the bans. I just cannot stand being in a bar full of smokers. Perhaps they can’t stand not smoking. BUt i did not choose to be sensitive to smoke…while they chose their habit. So if the law has to mediate this clash, it ought to be on the side of the innocent.



    Assuming you are correct that smoking-section waitresses don’t make more money than non-smoking-section ones (a dubious claim, but I have no evidence to contradict it), one (or perhaps more than one) of three things is true. Either:

    1) Most waitresses at Denny’s don’t mind second hand smoke and don’t believe it has significant adverse health consequences, and thus working in the smoking section is not — at least not for that reason — any less attractive than working in the non-smoking. Or

    2) The waitresses who do choose to work in the smoking section receive some additional non-wage compensation: The tips are better; or, because fewer waitresses want to work there, they have better choice of hours; or they like the sort of people who smoke; etc. Or

    3) In fact, effective compensation is lower in the smoking section — i.e., wage and tips and hours are the same but the conditions are worse because of the smoking. It is also true that Denny’s waitresses — whichever section they work in — don’t make as much as waitresses at the Inn at Little Washington. Less-experienced or less-skilled or otherwise less-desirable waitresses are more likely to work at Denny’s than the Inn at Little Washington (and for less money). Similarly, even if nominal compensation is the same, it is surely the case that the less-desireable waitresses at Denny’s are more likely to work in the smoking section (assuming it is in fact a less-desireable place to work).

    It is rarely the case that “the real world” demonstrates humans behaving (on average or in the aggregate; there are exceptions, of course) irrationally. When you think you see such behavior, you probably don’t. I don’t know for sure whether any of my conditions here are true, but I am certain that they are much more likely accurate than your casual observation that some people work in toxic conditions for exactly the same compensation that others of similar skill and tenure receive in a pleasant atmosphere.

    Steven Donegal 29 August 2006 at 3:42 pm

    So do you really think the waitresses at Denny’s who work the smoking section make more than the ones who work non-smoking? It would be nice if we all lived in the utopia that you do where everyone acts in a completely rational economic manner and all parties have equal bargaining positions. Unfortunately, my world generally doesn’t work that way.


    Smoking isn’t cool anymore becuase it isn’t smart. It used to be associated with a sort of “intellectual-cool” or even the sort of self-made-man-freedom-image portrayed by the Marlboro man. Anymore people see it as gross (as in disgusting).

    This notion will eventually catch up to the cigarette companies via their add campaigns – which will fail… and change. To what? I don’t know, but big tobacco will have to do something more than lower prices to address certain falling demand.

    The smoking bans should not effect the industry, but the bans do seem to support the strong social concern about second hand smoke.


    Valter–Sure. The German example is admittedly no more than a post hoc anecdote (as I concede in the post). Your theory may be correct. The example does show, though, that the Nazis’ anti-smoking zealotry didn’t reduce the incidence of smoking.


    Jonathan–You’re right that the social norms argument is secondary to the externality argument. But the latter argument also fails to justify sweeping smoking bans.

    Outdoor air pollution involves the sort of technological externality likely to result in both an inoptimal (i.e., excessive) amount of the polluting activity and a violation of pollution victims’ “rights.� When it comes to indoor air pollution, however, there is no such externality. That is because the individual charged with determining how much, if any, smoking is permitted in an indoor space ultimately bears the full costs of her decision and is thus likely to select the optimal level of air cleanliness. Moreover, non-smokers’ “rights� are not violated, for they are compensated for the inconveniences and risks they suffer.

    One might wonder how this could be. Smokers in a public space impose costs on non-smoking patrons, who can’t order them to stop, so won’t indoor smoking entail both the inefficiency (an excessive level of pollution, since the polluters don’t bear all the costs of their activity) and the injustice (an infringement of non-polluters’ rights to enjoy clean air) associated with outdoor air pollution? No. There is a crucial difference between outdoor and indoor air, and that difference alleviates the inefficiencies and injustices normally associated with air pollution.

    The crucial difference is property rights. Whereas outdoor air is common property (and thus subject to the famous “Tragedy of the Commons�), the air inside a building is, in essence, “owned� by the building owner. That means that the building owner, who is in a position to control the amount of smoking (if any) that is permitted in the building, has an incentive to permit the “right� amount of smoking – that is, the amount that maximizes the welfare of individuals within the building. Depending on the highest and best use of the space and the types of folks who patronize the building, the optimal level of smoking may be zero (as in an art museum), or “as much as patrons desire� (as in a tobacco lounge), or something in-between (as in most restaurants, which have smoking and non-smoking sections). Because patrons select establishments based on the benefits and costs of patronage, they will avoid establishments with air policies they do not like or will, at a minimum, reduce the amount they are willing to pay for goods and services at such places. Owners of public places thus bear the full costs and benefits of their decisions regarding air quality and can be expected to select the optimal level of air cleanliness. Moreover, customers who do not like the air policy a space-owner has selected will patronize the space only if they are being otherwise compensated by some other positive attribute of the space at issue – say, cheap drinks or a particularly attractive clientele. They are, in other words, compensated for any “rights� violation. The de facto property rights that exist in indoor air, then, prevent the inefficiencies and injustices that accompany outdoor air pollution.

    But what about workers at businesses that permit smoking? Isn’t there an externality in that they are forced to bear costs (and assume risks) over which they have no control? Again, the answer is no. Workers exercise control by demanding higher pay to compensate them for the risks and unpleasantries they experience because of the smoke in their workplaces. Adam Smith theorized about such “risk premiumsâ€? when he wrote that “[t]he whole of the advantages and disadvantages of the different employments of labor and stock must, in the same neighborhood, be either perfectly equal or tending to equality . . . The wages of labor vary with the ease or hardship, the honorableness or dishonorableness of employment.â€?

    He was right. A vast body of empirical evidence demonstrates that employers do in fact pay a premium for exposing their workers to risks and unpleasantries. Such risk/unpleasantry premiums motivate employers to select the optimal amount of smoke in their restaurants. They also alleviate any injustices occasioned by what might otherwise appear to be a violation of employees’ rights. Thus, smoking in public establishments does not, in any meaningful sense, impose genuine negative externalities in the form of risks and unpleasantries to the patrons and employees of such establishments.


    Isn’t social norms a secondary argument? I’ve always viewed smoking bans as a simple method of reducing externalities, like making my jacket smell like smoke for two days after going to a bar (not to mention the deletorious health effects of second-hand smoke). Since the smoker does not have to wash my clothes, pay my medical bills, etc., either the smoker must be taxed in order to recoup the external costs, or the practice must be regulated in order to minimize the external costs. A ban, then, is a choice to minimize the external costs instead of try to recoup them. And my jacket smells better for it.


    Couldn’t it be that Germans increased their consumption of tobacco between 1932 and 1939 simply because they had a lot more money to spend on tobacco than in the previous (Weimar hyper-inflation) years? I suspect French incomes increased much less dramatically in those years.