Birthdate Phaseout

Authors

Katharine B. Silbaugh, Boston University School of LawFollow

Document Type

Article

Publication Date

2025

ISSN

0566-2389

Publisher

University of Richmond

Language

en-US

Abstract

This article explores the Nicotine Free Generation (NFG) policy, an emerging endgame strategy for tobacco products that employs a completely novel legal design. Tobacco remains the leading cause of preventable death, killing almost half of its users and imposing $600 billion in social costs each year. We see two basic choices for regulating sales: Prohibition, or a legal age-gate, such as 21 for retail sales. NFG charts a third way. Recognizing the dire harm of tobacco, and the serious consequences of abrupt prohibition, NFG lays the groundwork for a gradual transition to a sales sunset. In place of the 21 age-gate, NFG creates a divide between those who are of age and those who are not when the law passes, using a birthdate to divide the two cohorts. For those of age when the birthdate is set, NFG leaves the existing market in place, and so it delivers no shock to the market or social practices. It focuses instead on preventing the creation of future demand by preventing sales to everyone born after the designated birth date. NFG's gradualism is in stark contrast to Prohibition's comprehensive ban, which removed a product from people who used it. The market for tobacco products exists at the juncture of addiction and adolescence. Both are essential to its continued existence, with adolescence being the spark and addiction the fuel to long-term sales revenue. NFG takes addiction seriously, by exempting from the regulation's impact those people who are currently dependent on the product. NFG has been adopted in seventeen cities and towns in Massachusetts and introduced in five state legislatures, as well as in a number of other countries. This article is the first to evaluate NFG's legal design, explaining the way it finesses the challenges of adolescence and of addiction to provide a hopeful path and to set an example for endgame strategies in other fields.

Comments

University of Richmond Law Review forthcoming

Recommended Citation

Katharine B. Silbaugh, Birthdate Phaseout , University of Richmond Law Review (2025).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/4090