Why New Zealand’s “Smoking Ban” Is Harmful

Aidan SimardoneMarch 17, 2022

A tobacco ban will likely reduce smoking. But focusing only on drug use masks the violence behind policy choices. A ban on tobacco is not done with a magic wand. Behind every law is state violence.

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Terminology: this article uses Māori names instead of settler ones. Aotearoa [pronounced au-tee-uh-row-uh] refers to “New Zealand” and pākehā [pronounced pah-kee-ah] to white people in Aotearoa. “Non-Māori” refers to both pākehā and racialized settlers.

Aotearoa has “good” news. Like pagers and dial-up internet, smoking will be a thing of the past. The plan? Simple: ban cigarettes for future generations.

Under proposed legislation, cigarette purchases would be illegal for anyone born after 2008. The measure is part of the government’s goal of reducing smoking to five percent of the population by 2025. What could go wrong?

The government is concerned about high smoking rates among the Indigenous Māori, who smoke nearly three times more than pākehā. But in making smoking illegal, the government is criminalizing dependence. Rather than promoting Māori health, the legislation will simply criminalize the habits of an already overly incarcerated population. The trade in contraband cigarettes will likely explode, with gangs recruiting Māori who have few job prospects. Meanwhile, people will still find ways to smoke.

To reduce smoking, the Aotearoa government should address systemic factors that contribute to nicotine addiction. Decolonization, prison abolition and economic redistribution could help reduce smoking and promote the wellbeing and justice that the Māori have been fighting for. In contrast, criminalizing tobacco will exacerbate systemic racism. The “smoking ban” will harm, not help, those who are already suffering.


No Smoking, Please

“This Government is not prepared to leave anyone behind.” It was a bold statement from Health Minister, Dr. Ayesha Verrall. On December 9, Aotearoa’s government announced that those aged 14 or younger when the law comes into effect will be banned from ever buying tobacco. As older generations die off, the ban will eventually become universal. Until then, purchases will still be legal for those older than the cutoff age, although the nicotine in cigarettes will be reduced and the number of retailers permitted to sell tobacco will be cut from 8,000 to 500.

This move follows other efforts to reduce smoking to five percent by 2025, which fell short. Despite some of the highest excise taxes in the world, 13.4 percent of Aotearoa’s population continues to smoke. Although there has been a drop of seven percent since 2010, this reduction is similar to countries with less drastic measures.

Aotearoa has a lower smoking rate than most Western countries, but this masks internal disparities. While only 8 percent of pākehā smoke daily, that rate is 22 percent among the Māori, and even higher for Māori women at 24.1 percent. Consequently, the Aotearoa government has focused on the Māori as a key demographic in their smoking ban. “If nothing changes, it would be decades till Māori smoking rates fall below five percent,” Dr. Verrall stated in her defense of the new legislation.

The plan has received backing from a number of health experts. Smokefree expert advisory group chairwoman for Health Coalition Aotearoa, Sally Liggins, and New Zealand Medical Association chair, Alistair Humphrey, have both cited the plan as a good way to keep children smokefree.

What’s not to like?


Where There’s Smoke

With little opposition, the smoking ban was an easy win. Compared to other drugs, there are few benefits of tobacco. Unlike North America, where Indigenous people cultivated tobacco for thousands of years, tobacco in Aotearoa has a colonial history, starting with European colonists. This colonialism continues: in 2019, Philip Morris offered e-cigarette trials and discounts at marae, the sacred communal places where Māori gather and conduct ceremonies.

The result of Māori tobacco use is potentially shorter lives. Māori life expectancy is seven years shorter when compared to non-Māori. A recent study found that two of these years could be attributed to differences in smoking.

It would be dishonest to argue prohibition would have no effect on smoking. It is often assumed that the 1920s America prohibition on alcohol was futile, as exemplified in black and white photos of speakeasies and Al Capone. To the contrary, data suggests there was a significant effect. The year after prohibition ended, alcohol consumption was less than half of what it was right before prohibition. This seems great—as long as you ignore the homicide rate increasing almost 50% and roughly 10,000 people dying from poisoned alcohol over the course of prohibition.

Similarly, a tobacco ban will likely reduce smoking. But focusing only on drug use masks the violence behind policy choices. A ban on tobacco is not done with a magic wand. Behind every law is state violence.

So far the government has given few details on how the ban would be enforced. Even if smoking is only fined, punishing those involved in the illegal trade of cigarettes requires surveillance, border security, police and prisons. Under the Customs and Excise Act, those importing tobacco can be sentenced up to six months in prison. While this might sound lenient, short sentences have high recidivism rates, decrease employment opportunities, and have negative psychological effects. If tobacco ends up scheduled under the Misuse of Drugs Act, those convicted will be subject to even longer sentences. Contraband cigarettes are also more toxic, which will negatively impact those who continue to smoke.

These drawbacks do not mean we should automatically reject this ban. Laws that benefit nearly everyone (such as taxing the rich and redistributing their wealth) require violence (with those who persistently disobey tax collectors having their assets seized, for example). The question is not whether a law causes violence to others—it always does—but whether this violence hurts marginalized people. Only when this question is asked can we grapple with the real implications of such legislation.

But few are asking. Rather than focusing on the Māori, those opposing the ban advance laissez-faire capitalism. Convenience store lobbyists worry the ban will bankrupt them. They are not worried about Māori going to prison, but rather want to protect their profit base built on addiction and disease. Columnist Alex Baree argues, “There’s a philosophical principle about adults being able to make decisions for themselves.” But how much free choice can there be when tobacco companies aggressively promote their product—going so far as pushing their products at the most sacred Māori locations?

One of the few socialist takes comes from columnist Eleanor Margolis. “You can’t ban smoking without — first and foremost — creating a society where people no longer feel compelled to smoke,” Margolis states, favoring economic redistribution to stop addiction. She is right. Yet much of her argument presumes that a ban will have no effect, asking “when has criminalizing a substance ever worked?” Her focus remains on the question of drug use, not on state violence.

What if it “works?” What if a ban accelerates tobacco’s decline? Would that make the law right? No — not if it furthers violence against Māori.

The government has not yet stated whether those using tobacco would be fined or imprisoned. But even if tobacco use is “only” fined, more Māori will likely be incarcerated. Because of fewer economic opportunities, Māori are more likely to join gangs. A ban on tobacco will likely result in an explosion in contraband cigarettes, as occurred in Bhutan. Those involved in the trade who are caught will wind up behind bars. As for those who are fined for smoking, this will impact the Māori more. Fines are not adjusted to income, which will create a greater burden for the Māori, who have a poverty rate nearly twice as high as pākehā.


The Other Health Crisis

While the government focuses on smoking, a more drastic health crisis is gripping the nation. No, not Covid-19 — Aotearoa has done well, with only 141 deaths.

Despite its progressive image, Aotearoa has one of the highest incarceration rates in the developed world. Since 1990 the prison population has doubled. Māori comprise half of those incarcerated, while constituting only one-sixth of the general population.

To their credit, the Labour government has bucked this trend, committing to reduce the prison population despite accusations of being “soft on crime.” In their first term, the prison population decreased 14%. However, the decline has been most significant amongst non-Māori, with only a modest drop in Māori incarceration. The government has taken credit for a larger drop since its reelection in 2020. But rather than reflecting government policy, this is part of a global trend of decarceration in response to Covid. Prior to Aotearoa’s Covid lockdown, the prison population was flat. Whether decarceration will continue post-Covid is an open question—although preliminary data from other countries suggests it will not.

Meanwhile, prisoners continue to suffer. From December 2020 to January 2021 prisoners in Waikeria Prison rose up in protest of poor conditions including prolonged isolation, brown water, and decaying floors. At the Auckland Region Women’s Correctional Facility (ACRWCF) women, including those with asthma, are regularly pepper sprayed in their cells.

In response to the Waikeria prison uprising, Corrections Minister Kelvin Davis blamed violent gangs, insisting it had nothing to do with prison conditions. Despite a judge’s ruling that women from ACRWCF were treated in “degrading” and “inhumane” ways, Davis challenged their claims, saying more information was needed.

Remember Health Minister Dr. Ayesha Verrall’s words: “This Government is not prepared to leave anyone behind?” It turns out there’s an exception for prisoners.

Whether or not the government cares, a ban on tobacco will exacerbate the negative impacts of prisons. Even if a ban reduces smoking, it will not eliminate it. When Bhutan was the only country banning the sale and purchase of tobacco, 8.5 percent of men smoked and one-in-five used smokeless tobacco daily. The same is likely to happen in Aotearoa, with those continuing to use tobacco becoming vulnerable to the law.

The health consequences are serious. Prisons facilitate the spread of COVID, STIs, and unsafe drugs; they worsen mental health, and undersupply medical care. A recent study found that one year in prison decreases life expectancy by two years. Incarceration not only affects a prisoner, but also their family and community. This added stress increases the difficulties of quitting smoking.

Even if a ban decreases tobacco-related diseases, incarceration will blunt the net health benefit. Yet a laissez-faire approach, which fails to address a racialized smoking disparity, will also fail. Thankfully there are other solutions.


Prison and Smoking Abolition

Between tobacco capitalism and state prohibitionism, how can tobacco use be reduced without punishing those who are struggling? Prison abolitionism can provide some answers. Taking prison abolition— the idea that prisons are not only harmful but also unnecessary —seriously means finding non-punitive solutions to social problems.

As a colonized people, the Māori are dispossessed of most of their land. After the Treaty of Waitangi, the British assumed full sovereignty of Aotearoa. But in the Māori version of the treaty, sovereignty was limited, either geographically to British settlements or extending to all Aotearoa but permitting the Māori’s self-governance.

Decolonization means giving land back or providing fair compensation for that land. Programs should be supported that honor Māori culture and language. Studies indicate that Māori who connect with their culture are more likely to avoid or quit smoking. Economic support provided through returning land and compensation would also reduce Māori poverty, a factor that contributes to smoking.

“We are Māori people forced into a European system,” the Waikeria prisoners stated in their manifesto. Aotearoa’s prison system is antithetical to the Māori’s right to self-determination. All imprisoned Māori should be released. Those accused of serious crimes should be dealt with through the Māori system of justice, not settlers’ carceral systems. Doing so will reduce the stress of mass incarceration on the community, making it easier to overcome all substance use disorders.

It is these radical solutions — decolonization, economic justice and prison abolition, not a punitive smoking ban — that will help reduce smoking, and promote the health and prosperity of the Māori.

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Aidan Simardone

Aidan Simardone is a recent Osgoode law school graduate, completing his articles by helping LGBT refugees. He researches and writes critically on criminal, international and anti-terrorism law. Find his work at aidansimardone.com or follow him on Twitter at @AidanSimardone