Is Smoking and Vaping a Right Recognized by Law or Not? A Legal Philosophical Perspective

Abstract

“Cigarettes” are considered the leading preventable cause of death worldwide from tobacco products. However, “smoking” has become a significant point of contention in jurisprudence: whether it truly constitutes a personal right and freedom. This is especially true with the emergence of new products called “e-cigarettes,” devices that deliver nicotine into the body through heated vaporization and there is debate about whether the use of e-cigarettes is a fundamental right, even to the point of being a human right. In Thailand, e-cigarettes are legally prohibited goods. Considering the legal status of smoking or e-cigarettes, it can be compared to the general freedoms under Article 25 of the 2017 Constitution of the Kingdom of Thailand, which may be restricted under Article 26. From a legal philosophical perspective, “rights” and “freedoms” are legal constructs that guarantee the status and way of life of human beings, supporting them to act in any way as long as it does not infringe upon the rights and freedoms of others. “Smoking” or “Vaping” is an action without legal consequences, as long as the “consequences of smoking or vaping” do not affect the rights and freedoms of others.

This research employs a qualitative approach, divided into two parts: the first part involves studying academic documents, books, textbooks, scholarly articles, and internet resources; the second part combines this with in-depth interviews with legal experts. Therefore, I would like to offer the following suggestions: (1) In the social, economic, and cultural context and the problems of the law enforcement system in Thailand, the control of
e-cigarettes. It is appropriate to maintain the existing legal system in Thailand that prohibits the import, sale, service, and production of e-cigarettes. (2) Restrictions on the freedom of e-cigarette users can be imposed by law, as Thai law classifies e-cigarettes as prohibited. Therefore, even if any rights or freedoms are claimed, the existing laws in force must be considered. (3) Smoking cigarettes and vaping e-cigarettes is not a human right, as has been claimed, because it is not an inalienable right like food, shelter, water, or the four necessities for survival.