The regulation of e-cigarette in Brazil from the perspective of libertarian paternalism

Abstract

Contextualization: Created as an alternative to conventional cigarettes, electronic smoking devices (ESDs), known as “e-cigarettes,” gained popularity due to aggressive marketing. Without conclusive scientific evidence, they have been banned in Brazil since 2009 by an ANVISA act. In 2024, Resolution No. 855 revised and maintained the prohibition with adjustments.

Objective: To discuss the challenges of ESDs in Brazil and propose, for their regulation, a libertarian paternalist approach based on Behavioral Law and Economics, which has proven effective in combating smoking through measures such as the National Tobacco Control Program and Law No. 9,294/96.

Method: The article employs a deductive method and a review of specialized literature to (i) investigate regulatory issues surrounding ESDs deliberated by ANVISA; and (ii) to examine libertarian paternalist public policies as regulatory alternatives.

Results: With 2.9 million consumers, the prohibition seems to overlook a growing illicit market, suggesting that policies based on nudges, previously adopted in combating smoking to influence decisions without infringing individual freedom, could raise awareness, reduce informational asymmetries in consumption, and protect minors. Simultaneously, sin taxation could generate revenue to fund policies tailored to ESDs.

Contributions: The study contributes to the debate on electronic cigarettes in Brazil, offering a pathway for their regulation through the lens of Behavioral Law and Economics applied to public health policies.