The Right to Health Means the Right to Tobacco Harm Reduction

June 7, 2022

A brutal culture war is raging on the role of harm reduction to hasten the end of smoking. But as the Twitterstorms rumble on, the evidence is mounting that safer nicotine products—vapes, pouches, snus and heated tobaccoare helping millions of people around the world switch away from combustible cigarettes and other risky tobacco use.

Cigarettes are a harmful delivery mechanism for nicotine—and nicotine doesn’t cause tobacco-related disease. Options now available deliver nicotine at vastly reduced risk. More Swedes use snus than smoke cigarettes, resulting in the lowest lung cancer rates of any EU country. In the United Kingdom, vaping is supported by health authorities as a cessation tool. Around 7 per cent of adults (six million people) vape; a year-on-year increase in vaping is matched by a decline in smoking, and over a quarter of people who made a quit attempt in England in 2020 did so by switching to vaping. These products reduce harm at both an individual and population level.

For harm reduction advocates, much collective energy goes into discussing scientific and regulatory issues. It’s important, both to quantify and maximize the benefits of safer nicotine options, and because there are many countries where poor regulation or outright prohibition prevents access. Thirty-six countries currently ban the sale of nicotine vapes, 39 the sale of snus and 14 the sale of heated tobacco products.

A human rights approach offers us significant and as-yet unexplored opportunities for challenges to bad laws and policies.

In contrast, combustible cigarettes are widely available everywhere, and in 18 countries, the state is directly involved in, and profits from, the manufacture of deadly tobacco products. In Los Angeles, you can buy THC gummies in flavours like sour lemon and strawberry, and cigarettes in any corner store. But a new ban will mean you can’t buy flavored vaping products, which many vapers find essential to quitting tobacco completely.

However, it’s also important for us to consider the more fundamental basis of the argument for safer nicotine options. A strong case can be made that international human rights law supports tobacco harm reduction. A human rights approach offers us significant and as-yet unexplored opportunities for challenges to bad laws and policies.

The role of health rights in harm reduction was integral to my work on drug use and HIV/AIDS in the UK from the 1990s onwards. Drug control has primarily been viewed through a prism of bans, prevention and abstinence. In many countries around the world, it still is. Yet the focus on drug supply and demand reduction began to fracture with the arrival of HIV/AIDS, when the realization emerged that safer drug use, or harm reduction, could limit the spread of the virus.

Beginning in the early 2000s, organizations such as Human Rights Watch and the International Harm Reduction Association, which I led, campaigned to establish that harm reduction was about the right to health. These organizations worked with the UN Special Rapporteurs on the Right to Health, who argued within the UN system that interventions such as the provision of safer drugs and safer delivery systems—opioid substitution treatment and syringe access—were fundamental to the health rights of people who use drugs.

The parallels with tobacco harm reduction are clear. And the need is clear: There are 8 million smoking-related deaths a year. That’s three times more than the number of deaths from HIV/AIDS, TB and malaria combined. It’s 10 times greater than all deaths related to state-banned drug use.

One difficulty in developing these arguments with regard to tobacco is that human rights implications have long been ignored in tobacco control. While harm reduction is named as the third “pillar” in the World Health Organization’s 2005 Framework Convention on Tobacco Control (FCTC), alongside reducing supply and demand, the FCTC is not a human rights treaty, and a human rights framework was not incorporated into the text.

There was barely any consideration of human rights during the negotiations about the treaty. No delegate or NGO involved in the process raised the issue. Subsequent discussions about human rights in tobacco control have focused on the obligation of the state to protect people from the infringement of their rights by third parties, mainly identified as the tobacco industry. These address the demand and supply components of tobacco control and can be called a “freedom from” position. Political philosopher Isaiah Berlin called this concept “negative liberty,” describing the freedom from external constraints and influence.

We desperately need an alternative narrative to the dominant tobacco control view that human rights can only be about protection from tobacco.

Yet the right to health and the personal autonomy to take positive steps to protect one’s own health have been neglected. This is unsurprising, given the neglect and denigration of harm reduction by Parties to the FCTC, the FCTC Secretariat, and the WHO.

Ironically, the preamble to the Constitution of the World Health Organization (1946) that is recognized as the first statement of the right to health in international law. It states that, “the enjoyment of the highest attainable state of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition,” and “the extension to all peoples of the benefits of medical, psychological and related knowledge is essential to the fullest attainment of health.”

In 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR) was ratified by 171 countries. Article 12 enshrines the right of everyone to “the enjoyment of the highest attainable standard of physical and mental health” and states that everyone has the right “to enjoy the benefits of scientific progress” (Article 15).

The pursuit of the highest standard of health includes enabling people to protect themselves. This can be called a “freedom to” or “positive liberty” position. Regarding tobacco, this would include the freedom to choose safer alternatives to combustible cigarettes or risky oral tobacco products, so as to avoid smoking-related disease and premature death. A rights-based approach that mixes both “freedom to” and “freedom from” elements is core to much public health thinking in other spheres. The exclusive invocation of negative liberty in tobacco control discourse is an anomaly.

This blind spot in tobacco control is costing lives—millions of lives—every year. The right to control one’s health and body is at the core of tobacco harm reduction. It empowers people to make safer choices.

We desperately need an alternative narrative to the dominant tobacco control view that human rights can only be about protection from tobacco. Times and technologies have changed since the FCTC came into force. Taking the right to health as the starting point, signatories to the FCTC and the WHO have a responsibility to take positive steps to ensure that safer alternatives are available to the 1.1 billion smokers worldwide.

Those of us involved in tobacco harm reduction need to build alliances with those working in human rights, explore challenges under international, regional and national legislation, and establish tobacco harm reduction as fundamental to the right to health. 



Photograph via PxHere

Professor Gerry Stimson will be discussing this topic on a panel, “Safer nicotine: human rights and legal challenges,” at the Global Forum on Nicotine 2022, taking place in Warsaw and online from June 16-18. The session is one of many from #GFN22 that will be live-streamed free to registered delegates. It is also the subject of a new Global State of Tobacco Harm Reduction (GSTHR) Briefing Paper, set to be launched in Warsaw on 18 June by Knowledge-Action-Change. The GSTHR, of which Stimson is project lead, receives funding from the Foundation for a Smoke-Free World. 

The Global Forum on Nicotine is organised by KAC Communications, the sister company to Knowledge-Action-Change. The Influence Foundation, which operates Filter, has received grants from both Knowledge-Action-Change and the Foundation for a Smoke-Free World. Filter is an official media partner of GFN. Filter’s Editorial Independence Policy applies.

Gerry Stimson

Professor Gerry Stimson is a public health social scientist, emeritus professor at Imperial College London, and honorary professor at London School of Hygiene and Tropical Medicine. He was formely co-editor-in-chief of the International Journal of Drug Policy, director of the Centre for Research on Drugs and Health Behaviour of Imperial College London, and executive director of the International Harm Reduction Association. Gerry is a director of Knowledge-Action-Change (K-A-C), a public health events and consultancy company.

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