Where There's Smoke.....There Is Smoking

Thanks to FindLaw.com for the idea for this post.  If you follow the Slate.Slate.com link for this story, you will find an excellent interactive map of the United States showing how smoking habits vary by both age and geography.  There has been an overall decline in smoking, attributed in part to smoking bans.  However that decline leveled off in 2004; in response, the Federal government has proposed changes in the warning labelling and packaging of cigarettes.

I appreciate smoking bans. Having grown up in a household where both adults smoked, fairly heavily, I was surrounded by cigarette smoke.  I developed allergies to cigarette smoke, and I am one of those individuals who cannot express how much relief there is in being able to enjoy retail establishments of all kinds without having to suffer from the smoke of others. 

Smoking seems to define the essential conflict of competing rights in a microcosm that reflects other issues.  There is the legal right of the smoker to enjoy a legal activity.  But I have yet to see any smoker who was able to control the smoke he or she enjoys so that it is not an irritant, or worse, a health hazard, for others.  If it is true that one person's right stops at the end of another person's nose, then clearly smoke does not stop short enough to avoid irritating my nasal sinuses.  Nor does another person enjoying cigarette or cigar smoking stop short of making non-smokers' hair and clothing smell like an ash tray.

For all the screams about some people paying for the health care expenses of others, no individual has ever to my knowledge successfully paid out of pocket for health care costs related to smoking illnesses.  We have all paid and will continue to pay; the only question at issue is how direct or indirectly.  Smoking is a legal practice which to a high statistical degree has been shown to contribute to people becoming ill.  It is voluntary air pollution for pleasure.  An important issue is not only keeping safe the rights of smokers to enjoy their legal activity, but the question presents - would reversing the smoking ban, if only partially, send a mixed message, a public policy contradiction?

Our esteemed commenter and sometimes contributor, Dr. Michael Kirsch was kind enough to post something on this topic in an especially timely manner with the FindLaw post; his post this week is entitled "Can CAT Scans Prevent Lung Cancer? Smoke and Mirrors";
I encourage Penigma readers to check out this as well, for a different look at forming a critical understanding of how to interpret study results.  Michael links to a New York Times article about a new, very expensive government study using CAT scans to detect lung cancers, presumably thereby making smoking less hazardous in so far as smoking right up until you have lung cancer, and then seeking treatment in the early stages is an improvement over smoking and not stopping or getting treatment until you are further gone with the disease.  Michael goes on to point out the uses and overuses of CAT Scans and the down side of this technique, and also questions the usefulness of such a study compared to using those funds to reduce smoking.  In summary, while we may have improved some forms of detection, there is a cost - a direct health cost, and a dollar cost.  CAT Scans don't make smoking safer; they just extend your odds in some respects to not going undetected for as long, IF you are among those who have health care and can afford treatment.

Meanwhile, those who smoke, and the bars and restaurants which cater to their business object to smoking bans.  They want to smoke wherever they are, and consider the choice to be able to go into a restaurant or bar one that should be unlimited to them, but limited to those who do not smoke. We can stay home if we don't like the smoke, as far as they are concerned, or have their smoke intrude on our bodies and our clothing and our health.  Our rights are limited, if they have their way, to endure smoke or go home.

For a position that espouses the maximum flexing of rights, this seems to short the rights of those who don't wish to endure smoke, but still wish access to public places.  I have yet to ever see any wait staff or bar tenders adequately compensated for their second hand smoke exposure health care risk.  Perhaps if those who smoke would be willing to pay for all of their own health care expenses related to smoking AND those health care expenses of others who suffer from that smoke......but no.  Not only is that not remotely an option, it presumes that it is fair for anyone else to even become ill from that smoke that results from smoker s exercising their rights to legally smoke.  It is not.

Per the New York Times article from Michael's blog link, 157,000 people will die from lung cancer this year.  The NYT notes this is more than die from "colorectal, breast, pancreatic and prostate cancers combined."  That is a lot of deaths from lung cancer; and combined with those who are now by CAT scan detected earlier and survive, it constitutes a very hefty health care bill.  Let me underline - a bill which no one is paying for on their own nickel.  In other words - we pay for their choice.  All of us, directly or indirectly.

Quoting from the gray lady: "“No one should come away from this thinking that it’s now safe to continue to smoke,” said Dr. Harold E. Varmus, director of the National Cancer Institute."  This is of course, in addition to the hazard warning on the side of every pack of cigarettes.

So, in the course of protecting every smoker's right to engage in a hazardous activity - not only hazardous to them but hazardous to us, and to for example children or other groups even more so than an average adult, ARE we required to indulge their choices in order to be somehow 'free'?  Is it a nanny state to require clean air in public places, including work places?  Given the pressure of nicotine addiction on that decision, one which clearly demonstrates that smokers will exercise that right to smoke regardless of the well being of others or the rights of other which begin at the end of their noses (and hair and clothing) I would say no.  I do not believe that smoking bans are a plague on individual freedom or a curse to commercial success.

What I would claim is that those smokers and those establishments are in effect pushing off the costs of their choices on to others, without the consent of those who don't smoke.  In much the same way, business and industry which pollutes is putting off some of their costs of doing business onto the rest of us who have to contribute to superfunds to clean up that pollution, or who experience health side effects from it and have to pay towards those health care costs. This is NOT greater freedom, it is greater economic slavery, where we have to pay for burdens we do not choose, pleasures we do not enjoy, or profits for someone else.

So, it surprised me to see in the FindLaw.com article that the Netherlands had OVERTURNED their smoking ban, to a degree.  In the Netherlands, it is now possible for the operation of small establishments which permit smoking, so long as there is only one employee - the owner.  It caused me to wonder if such an arrangement might be a way to successfully respect more fairly the rights of both smokers and the rest of us.  I write 'the rest of us' because I'm not entirely comfortable with including children who are underage for smoking as 'nonsmokers', a category I think of as those who could smoke legally but choose not to do so.  It can only apply to indoor establishments - or we end up with outdoor areas that are like being in the center of a giant ash tray, whether you smoke or do not.  But I would be very much in favor of some measure that operates on the same lines as the Dutch are trying.

But I also believe that we would do well as a country to continue to reduce our smoking rates.  Looking at the interactive map linked above to the slate site above, I'd love to know how Utah does it (other than all of us becoming Mormons) as they have the lowest rate of cigarette smoking in the nation. I'd love to know how it is that Minnesota had a lower rate of smoking than the five states around us. Those states with the heaviest rates of smoking, all in a strip (and lone Alaska) are going to be experiencing worse health care rates for lung cancer than the rest of us. Because whatever it is that is successful in reducing smoking - the White House could use the help.  I don't see the White House becoming one of those little smoky proprieter-only Dutch locations any time soon.  But not only for the nicotine addiction; we could use the resolution of competing rights to apply to other conflicts of rights as well.  Where there is smoke, there is fire - or a cigarette; but maybe also optimism for new solutions.