Annals of Health Law
STRATEGY AGAINST SMOKING
containing foods or medicine and second-hand smoke.216 The latter
constitutes a significant disadvantage particularly for those who are exposed
to secondhand smoke at home. While it might incentivize participants to
avoid places where other people smoke and thereby contribute to better
health, it is simply unfair for those who have no chance of avoiding
secondhand smoke at home. However, as presently no easy and affordable
way of verifying whether a person has been smoking or was exposed to
second-hand smoke exists (an investigation seems impractical) this lack of
fairness has to be accepted until a better method has been developed. At
best, it might encourage parents to refrain from exposing their children to
second-hand smoke to ensure eligibility for rewards.
Irregular and unheralded testing stipulated by the ITAA shall countervail
the problem of the short detection period. To establish a reliable system
with a preferably large coverage at reasonable expenses, the tests shall be
conducted in schools, associations, sport clubs, universities, worksites etc.
The cooperation with schools in particular will allow access to a large
percentage of participants and guarantee their presence for unannounced
testing without further logistical resources. It seems feasible that the
personnel, i.e. the teachers or other staff, supervise the testing.
Testing must be so frequent that the participants feel a serious risk of
being detected and that the risk of becoming addicted while passing the
tests can be kept to a minimum. A possible frequency could be four
randomly chosen tests per month. The ITAA will determine timing and
extent of testing and coordinate the distribution of the test materials. As a
further safeguard, one could implement an obligatory additional test within
one day after “winning” the large reward to ensure accuracy. This would
countervail the danger that participants, knowing that they have not been
tested in the previous week, might take part in the lottery under false
b. Controlling Tobacco Sales and Distribution
Besides the biochemical verification, another way of identifying whether
a participant has been smoking could be to track cigarette sales. Such
tracking can only be realized in case the buyer’s identity is verified at the
point of sale. As it is impracticable to require verification by ID or drivers
license and to process such data for every pack of cigarettes sold, a feasible
solution could be to allow the purchase of cigarettes only by credit or debit
card. Hereby, every cigarette purchase could be related to an individual.
Such a system would require a corresponding automatic electronic
216. See R. A. Davis et al., Dietary Nicotine: A Source of Urinary Cotinine, 29 FOOD
AND CHEMICAL TOXICOLOGY 821 passim (1991); SRNT, supra note 181, at 150, 157.