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What isn't illegal but should be?
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At least here in Germany this is apparently still not true as smokers in particular add a huge cost to the healthcare system due to the long-term and repeated damage. For example, once they get parts of their feet amputated from clogged arteries, most actually continue to smoke ("Ah well now it's too late anyways"), and hence will get half a dozen such amputations over time.
Obesity is the issue these days not tobacco. Tobacco use is a fraction of what it once was. Now a huge portion of the EU and USA is obese, which causes way more strain on the healthcare system.