Tobacco and Alcohol Will Become Illegal

On the question of the war on drugs, the West is moving in two opposite directions at once. Whereas it will, over time, become more tolerant of the usage of drugs that are now mostly outlawed, it will also become more restrictive on the usage of drugs now mostly legal. Starting from widely diverging positions established decades ago, the regulation of these two groups of drugs will become ever closer, perhaps eventually merging completely. At that point in the future, all drugs, including tobacco and alcohol, might be legal to consume but outlawed from the commercial sphere.

The most important centrepoint in the war on drugs is the UN Single Convention on Narcotic Drugs requiring states to outlaw the production, distribution, sale, and use of a long list of addictive substances. However, from this convention, tobacco and alcohol are notably absent - being instead addressed in international law by other documents and agreements. From an empirical point of view, this is indeed curious, as these drugs often perform worse on various harm/severity indicators than many of the other controlled substances.

It is necessary to look elsewhere for an explanation. I would posit that the reason behind tobacco and alcohol not having been included in the UN drugs regime is that these two substances are too embedded in the cultural and social fabric of the West for it to be politically viable to enact an outright ban. In contrast, all other drugs have been the target of this war (including marijuana, for example, a historically well-socially-embedded drug, but primarily in ethnic minority populations). 

Several decades into the war, it is almost universally recognised that it has failed horribly. It has been thoroughly documented that the current policies are at best ineffective and at worst counterproductive and deeply destructive. At their worst, they treat people’s medical issues as criminal issues, expose users to dangerous conditions, increase crime tied to drug use, condemn people to a life in hiding, violate basic human rights to bodily integrity, and even create a space for criminal gangs and networks, often extraordinarily savage and violent. All this for supposed benefits that have, by and large, not materialized since the establishment of the present doctrine. Although vast resources and effort have been put into the war on drugs, drug usage and proliferation have remained remarkably stable, while the side effects have been horrific.

Despite this failure, due to the inertia of the UN regime, it has been difficult for states to change their approach even where they would otherwise be open to alternatives. Nevertheless, there is a slow movement underway to scale back the war to some extent. Marijuana in particular has enjoyed a considerable change of course, having been legalised in some countries and US states to the extent of falling under the same regulations as tobacco products. Bills to legalise cannabis across the US are now being regularly introduced in Congress, and though so far unsuccessful, it is clear that the opposition will not last for long.

The slow change is reaching other drugs too. Some states and localities in the US have moved to decriminalise psychedelics, including ‘magic mushrooms’. Recently, the state of Oregon has reduced its penalties for all drug usage and small-amount possession - from the threat of prison to a misdemeanour and a fine.

Another impetus for change comes from the World Health Organization. As the Canadian Centre on Substance Use and Addiction explains:

“The [UN’s] Single Convention on Narcotic Drugs requires that possession of scheduled substances be a punishable offence. The International Narcotics Control Board has reiterated the requirement for signatories to the Convention to maintain criminal penalties. The Convention does permit alternatives to conviction or punishment for individuals experiencing problematic substance use, providing some opportunity for innovative approaches outside the criminal justice system. A joint resolution by the World Health Organization and United Nations in fact calls for ‘reviewing and repealing punitive laws that have been proven to have negative health impacts. These include … drug use or possession of drugs for personal use...’ (WHO, 2017)”

As a powerful international organisation in its own right, the WHO could have a considerable effect on the UN’s stance. Though it is unlikely to lead to an outright repeal of the drug war Convention, it could change the ways it is interpreted by UN agencies and other parties, as well as increase policy flexibility.

As promising as the drive behind the slow decriminalisation of drugs in the West seems, the reasons driving it are not the best. Rather than the bodily-autonomy argument being at the centre of the discussion, the debate is instead underpinned by the shift in the criminal justice philosophy. Addictive substances are not being decriminalised because it would be recognised that making drugs illegal in the first place was wrong in and of itself, but because the predominant theory of punishment in the West now has become the rehabilitative one - which is in stark contrast with the practice of jailing for offences essentially medical in nature.

When these forces combine, the approach of the UN is likely to eventually be changed, under the guidance of the WHO, from mandating the outright criminalisation of drugs to favouring decriminalised non-legalisation.

At the same time that this change is slowly progressing, there is another movement underway. Precisely because the gradual decriminalisation is not driven by a bodily-autonomy argument, it is likewise not being used to fight against moves to restrict and complicate the usage of already legal drugs like tobacco and alcohol. Such moves come from the side of ‘public health’ advocacy, the goal of which, unsurprisingly, is not to consider the issue from a human rights perspective.

The past years and decades have seen a remarkable rise in such ‘public health’ regulationism and a significant expansion of the so-called ‘nanny state’. Furthermore, in a situation where the government is heavily involved in the economy, an environment susceptible to corruption and ‘cronyism’ is fostered. In addition to the ‘nanny-state’ reasons for limiting drug availability, further restrictions can then appear for protectionist reasons for the benefit of special interest groups.

These forces produce an effect of further de-legalisation of common drugs - primarily tobacco and alcohol. The natural end-point of this move is for these two substances to arrive at the same regulatory level as other drugs (those that are now being slowly decriminalised). All drugs might eventually be neither legal nor criminalised. More specifically, the likely equilibrium will be for personal use as well as small-scale possession and production to be legal, while commercial production, sale, and large-scale possession will be outlawed and criminalised.

As hinted at above, when it comes to tobacco and alcohol, this move is already well underway around the West. Starting with tobacco, in a widely publicised move, the Biden administration announced in April 2021 that it will seek a complete ban on flavoured tobacco in the US by next year. The county of Oxfordshire in the UK is “proudly working towards” banning smoking outdoors altogether by 2025. In perhaps the most dramatic example so far, April 2021 legislative proposals in New Zealand would see a ban on the sale of cigarettes being put in place for anyone born after 2004.

Regarding alcohol, similar local moves have been scarcer. The most significant push for gradual de-legalisation comes from the WHO itself. In its new Global Action Plan for alcohol, it promotes a set of policies under the SAFER initiative. These are five government “interventions” recommended to states as supposedly “effective and cost-effective” means of reducing the use of alcohol and alcohol addiction rates. The recommendations are to:

Excluding points two and three, the rest of these policies would each represent a clear move from a good-like-any-other approach to alcohol to part-illegality. The fact that these policies are not formulated by a specific state but the WHO does not make them any less significant. Quite the opposite; despite lacking its own means of enforcement of the policies it promotes, the WHO is an enormously socially powerful institution, and its word carries considerable weight in international relations. It is predictable, therefore, that its recommendations will be gradually adopted by an increasing number of world states.

One of the WHO’s goals (“Global target 1.1”) is for 75% of world states to have introduced and/or strengthened their anti-alcohol policies by 2030, preferably in the ways outlined above. In fact, many states have already instituted many of these interventions to various extents. The Nanny State Index created by the Institute of Economic Affairs tracks such policies across Europe, not just limited to alcohol, but covering tobacco, e-cigarettes, and food and soft drinks as well. 

The move towards gradual de-legalisation is visible in the results of this index. A comparison between the Index’s country analyses in 2019 and 2021 reveals the overall movement towards more restrictive policies on both tobacco and alcohol, even amid the coronavirus pandemic that had considerably shifted the priorities of policymakers elsewhere during this period. The Index gives each country a score between 0 and 100, corresponding to no restrictions and maximum restrictions respectively. The policies taken into account include: raising prices (through taxation or retail monopolies), stigmatising consumers, restricting choice, inconveniencing consumers (eg. by restricting trading hours), limiting information (eg. with advertising bans), and reducing product quality. For alcohol, the average restrictiveness score across the 28 countries included in both 2019 and 2021 rankings rose from 26.9 to 27.6. The corresponding average score for tobacco increased from 51.1 to 52.8 over the two years.

This trend is unlikely to be reversed. It is underpinned by considerable social legitimacy and the institutional weight of a plethora of pressure groups, states, and international organisations alike. However, neither alcohol nor tobacco is likely to be fully criminalised. The movement for their de-legalisation will be exhausted once the policies regarding these drugs are merged together with those of other addictive substances. 

The final resting point for this one combined category, then, will likely be a space between legality and criminality - where it will be possible for drugs to be consumed without penalty, but their production, sale, and distribution will continue to be as persecuted as they are today, with the tobacco and alcohol industry joining the ranks.