Annals of Health Law
STRATEGY AGAINST SMOKING
introduce new and more successful mechanisms.
C. Insights from Behavioral Economics
Instead of the conventional tobacco control strategies, this paper suggests
a different approach based on the individual’s irrational decision-making in
smoking initiation or failing smoking cessation. While the common
strategies appeal to rationality or complicate smoking by modifying
external factors, another way to tackle the problem is to focus on the
psychology of human motivation and try to incentivize individuals to help
themselves. 83 The field of behavioral economics provides insights in human
decision-making processes in economic situations, relying on findings of
cognitive psychology and sociology to contribute to a better understanding
of market participants’ actual behavior. 84 Findings from this field of study
allow inferences on how to influence human decision-making. Numerous
studies suggest that changes in behavior can best be initiated by offering
incentives, particularly positive economic ones. 85 As a side note, offering
rewards instead of compelling people to behave in a certain way also takes
into account the common criticism of paternalism, 86 as it offers and
addressees freedom of choice. Accordingly, reward systems establish a
“libertarian paternalism,” a term introduced by Richard Thaler and Cass
1. Relevant Deficiencies in Human Decision-Making
The following outlines a number of phenomena in human decision-
making identified in behavioral economics, which shall be exploited to
develop effective incentives for people to refrain from beginning to smoke
or to stop smoking.
83. Cf. George Loewenstein, Troyen Brennan & Kevin G. Volpp, Asymmetric
Paternalism to Improve Health Behaviors, 298 J. AM. MED. ASS’N 2415, 2416-17 (2007).
84. George A. Akerlof, Behavioral Macroeconomics and Macroeconomic Behavior, 92
AM. ECON. REV. 411 passim (2002).
85. Cf. Uri Gneezy, Stephan Meier & Pedro Rey-Biel, When and Why Incentives (Don’t)
Work to Modify Behavior, 25 J. ECON. PERSPECTIVES 191 passim (2011); Robert L. Kane et
al., A Structured Review of the Effect of Economic Incentives on Consumers’ Preventive
Behavior, 27 AM. J. PREV. MED. 327 passim (2004); Saul Shiffman & Andrew J. Waters,
Negative Affect and Smoking Lapses: A Prospective Analysis, 72 J. CONSULTING & CLINICAL
PSYCHOL. 192 passim (2004).
86. See, e.g., Jonathan Klick & Gregory Mitchell, Government Regulation of
Irrationality: Moral and Cognitive Hazards, 90 MINN. L. REV. 1620 passim (2006); Mario J.
Rizzo & Douglas G. Whitman, Little Brother is Watching You: New Paternalism on the
Slippery Slopes, 51 ARIZ. L. REV. 685, 686 (2009).
87. RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE – IMPROVING DECISIONS ABOUT
HEALTH, WEALTH, AND HAPPINESS 4-6 (2008).