Regulations on Environmental Tobacco Smoke in the Public Sphere

One way by which one can measure how advanced a society has become is to examine its popularly held moral values in conjunction with the laws, rules, and cultural regulations that its citizens live by. If the two factors are in accord with one another - with few, if any, double standards or exceptions to the rules - then one could argue that the society in question has an essential quality of an "advanced" society. The debates over the public use of tobacco products have helped our own society in this manner and will continue to do so for the next few foreseeable years. Tobacco is unique in that until recently public smoking, while an annoyance and generally accepted detriment to health, was culturally accepted to the point of it being unfathomable to ask a nearby smoker to cease or to expect to be in a smoke free environment when in any public setting.

The cultural norms, however, revolving around public smoke, otherwise known as environmental tobacco smoke (ETS), have done an abrupt about-face. No longer is it acceptable to smoke inside the vast majority of buildings. No smoking signs abound, and the smoking sections in restaurants are, on the whole, shrinking. Yet the debate over public smoking bans is alive and heated; emotionally charged on both sides. Most importantly, it has given rise to questions of the legitimacy of governmental regulation of public places and what, precisely, a public place is. These questions, thanks to the issue of tobacco use, has spurred debates and discussions in other arenas of public policy that deal with governmental regulations and, more specifically, eminent domain. Public smoking bans are currently becoming more and more prevalent in Western society, and a loose ban that takes the rights of property owners into consideration is worthwhile. It is important to consider closely the reasoning behind such bans, however, along with the details, as such will be the theoretical groundwork for other up and coming policy issues dealing with governmental regulations on property and all of the consequences that such regulations can have on related policy issues such as employer and employee rights.

John Stuart Mill is famous for his principle of self-regarding action which in a nutshell states that a person ought to be allowed to do what he pleases up until his actions affect others, at which point he is subject to come under the judgment of his fellows, for better or worse. The controversy over public smoking lies in the belief that ETS affects others in a harmful manner. Some researchers tell us that "ETS is a complex mixture of particles and gases, which contains an estimated 3800 components" (Gee, Watson, & Carrington, 2005).

There are two arguments that are made in relation to the type of harmful effects of ETS. Accepted by all is the assertion that ETS can easily be an annoyance to nonsmokers and smokers alike who suffer from ETS induced allergies, respiration problems, and those who simply dislike smelly clothes. The symptomatic issues involved with ETS however, while accepted, are generally not viewed as matters that justify a public smoking ban. Justification is found in the more serious properties of cigarette smoke, such as the carcinogenic nature of nicotine. Nicotine has been linked to cancer - specifically lung cancer - for quite some time although the specifics regarding how much nicotine it takes for one to have a significant risk for cancer has been highly contentious. Studies in this area have generally focused their attention on nonsmoking spouses of smokers, under the assumption that they are exposed to more ETS than most other individuals.

The latest research indicates that there is little significant risk increases for clinical maladies such as cancer and heart disease from continued exposure to ETS, but risk is there. Enstrom and Kabat (2006), researchers who performed a meta-analysis on a great deal of other recent studies concluded that "Personal monitoring of nonsmokers indicates that their average ETS exposure from a smoking spouse is equivalent in terms of nicotine exposure to smoking less than 0.1 cigarettes per day," and that, regarding heart disease specifically, "Personal monitoring of nonsmokers indicates that their average ETS exposure from a smoking spouse is equivalent in terms of nicotine exposure to smoking less than 0.1 cigarettes per day." While clinical risk is there, it does not seem great enough to place restrictions on smokers based on them anymore than we do not place restrictions on car emissions or any of the number of things that scientific studies have found that weakly link to cancer. Placing lesser restrictions on public smoking due to the annoyance symptoms that ETS can elicit in people, such as allergy eruptions, coughing fits, and smelly clothes is much more feasible.

Restrictions on public smoking are generally just that - a ban on smoking in public. The nature of the restrictions, then, whether they are "heavy" or "light" depend on the definition of what is and what is not a public place. Recently, the definition of a public place in our society has become much more broad and encompassing than it has been in the past. What is public has come to be nearly all buildings outside of private residences, which is unfortunate. Public ought to be defined simply as those places where a citizen of the State must, at some point, visit for reasons that remove his or her choice from the matter. What is public under this definition would change over time, but currently examples would include governmental buildings, banks, schools, libraries, and child-care centers but would exclude movie theaters, restaurants, bars, clubs, sporting arenas, generic stores and shops, and amusement parks.

The latter list is composed of places that people cannot construe a need to attend. If their desire to avoid ETS is greater than their desire to go to such places that are not absolutely needful, they can choose to do so without incurring significant distress. This is an extreme example, however, as many owners of such places on the latter list would make their places of business nonsmoking or have nonsmoking sections at the least, as the majority of nearly everyones customer base are nonsmokers. The choice regarding whether or not and where to permit smoking should be in the hands of the owners of businesses who are not providing key public services. One of the most successful and frequently brought up arguments against this brings workers right into play. Working, it has been construed, is not a choice. Everyone must work to bring in sufficient income so as to not be a burden on society. Some people, under a loose public smoking ban, will still have to work in ETS filled environments. Should a loose ban be abandoned, then, on the basis that all workers deserve an equal environment to work in? This is a slippery slope argument, for workers have always worked in different environments, some far more dangerous than others. Industrialization brought on the dangerous work of railroading and mining, and there are still workplace fatalities today in the construction business. Where one works is still the choice of the worker. Employers of establishments that permit smoking ought to make good-faith efforts to hire people who will not mind ETS and to be cognizant and forgiving of ETS induced symptomatic issues - such as missing a day of work due to allergies - but jobs have always had different requirements, and it is not unreasonable for establishments that allow smoking to require that its workers be accepting and willing to work in such an environment.

The flip side to the employee issues involved with work-place environments is the problems that employers who do not permit smoking face when hiring individuals. Smokers have for a long time been accepted by insurance companies as being a greater risk and costing more than nonsmokers for health care. Some employers have started to include smoking status as one of the considerations in hiring individuals. The argument that they present is that it is best for their shareholders if they hire nonsmoking individuals, for by doing so, less money will be spent on health care premiums and more can go back into the company and into dividends. This is another slippery slope argument, however, as once this is accepted it would not be long until companies began hiring based on weight, eating habits, and other high-risk health factors for the very same reasons. While it is unethical to base hiring practices on legal things that people involve themselves in, it is not unethical or unreasonable to expect individuals who smoke, or even individuals who have poor eating habits, to pay higher premiums than those who are - by choice - healthier. The key matter here again, similar to what should be defined as public, is choice. Those who choose to be smokers or who choose to eat poorly ought to be responsible for their actions; however, those who have poor genetics and make no choice as to their poor health ought to come under the protection of society's umbrella.

It is ironic that we, as society, have essentially banned public smoking in nearly every area except private homes. Private homes is where the majority of ETS induced harm - albeit low - comes from. Additionally, it is in private homes where individuals are exposed who have no choice as to where they live. It is the society's primary responsibility to protect those who cannot protect themselves - essentially minors and the elderly - yet we turn a blind eye to smoking in homes with children. There is no question that it is significant, researchers have found that "levels of respirable particles and tobacco specific particles were found to be significantly higher in the homes with smokers present" (Gee, Watson, Tavernier, Steward, Fletcher, & Niven, 2005). It is not truly feasible to regulate smoking in private homes, but it is ironic that there has been such an enormous amount of concern and litigation over smoking in public places but no highly visible public action campaigns or other culturally induced awareness initiatives to persuade people to not smoke around their children.

When considering the question of governmental regulation on any subject, it is generally good to begin with accepting the least amount of regulation as is feasible. Governmental regulation implies that, in whatever area that is being regulated, the government is the most competent judge - more competent that the individual - for discerning what is best for the individual. This goes contrary to what the founders of our country intended. Competent and cogent adults are the best judges of their own interests right up until their actions affect the lives of others in such a way that is either significantly harmful or unavoidable. In the matter of public smoking, it is not significantly harmful, but it can be unavoidable at times, and thus a governmental ban is only justified in those buildings and areas where people are obliged to visit.

Bibliography

Baker, R., & Dixon, M. (2006). The retention of tobacco smoke constituents in the human respiratory tract. Inhalation Toxicology. 18(4), 255.

Derthick, M. A. Up in Smoke: From litigation to legislation in tobacco politics. CQ Press. 2004.

Enstrom, J., & Kabat, G. (2006). Environmental tobacco smoke and coronary heart disease moratality in the united states: a meta-analysis and critique. Inhalation Toxicology. 18(3), 199).

Gee, I. L., Watson, A. F. R., Carrington, J. (2005). The contribution of environmental tobacco smoke to indoor pollution in pubs and bars. Indoor and Built Environment. 14(3-4), 301-306.

Gee, I. L., Watson, A. F. R., Travernier, G., Stewart, L. J., Fletcher, G., McNiven, R. (2005). Indoor air quality, environmental tobacco smoke and asthma: a case control study of asthma in a community population. Indoor and Built Environment. 14(3-4), 215-219.

Mill, J.S. On Liberty. Penguin books: London. 1975.