Smoke-Free or Free to Smoke?

On August 9, the same day that Los Angeles banned smoking in 375 city parks and recreation areas, Gov. Gray Davis announced a state-wide ban, to become effective Jan. 1, 2002. The new California law will apply to play areas used by kids—even those on private school property. Proponents claim that children have to be protected from secondhand smoke and hazardous tobacco waste. Opponents complain of social engineering—busybody government at its worst, with no basis in law, science, or logic.

For starters, any law that bans smoking on a private playground—much like the existing ban in private restaurants—should be scrapped. Offended parties need not patronize private places that permit smoking. Public property, on the other hand, belongs to all of us. Citizens, through their elected representatives, should ordinarily be able to decide what is permissible on that property. Still, there are limits to the exercise of political power. Non-smoking majorities cannot arbitrarily stamp out the rights of smoking minorities. For a regulation to be valid, there must be a close connection between the regulation itself and the goal it seeks to accomplish.

For example, playground smoking cannot be banned simply because some smokers toss their cigarette butts—which can be harmful if kids eat them—onto the ground. To deter littering, enact an anti-littering law—applicable to all waste products, not just cigarettes. If the law is unenforced, enforce it. If the penalties are too low, increase them. But punish the end result—littering—not smokers, many of whom properly discard their unfinished cigarettes.

Similarly, to justify a smoking ban for public health reasons, there must be a demonstrated connection between non-smokers' illnesses and exposure to environmental tobacco smoke [ETS] in a quantity likely to be experienced on playgrounds. Are kids at risk when introduced to secondhand smoke in an unconfined outdoor setting? The answer hinges on epidemiological evidence, which has been corrupted to advance the war on tobacco. Scientists started with a now-proven proposition—smoking materially increases the risk of lung cancer, bronchitis and emphysema. But that fact has mushroomed into an assortment of half-truths and untruths. Here are two examples of the exaggerations and outright fabrications that have influenced the debate on ETS.

"Passive Smoking Does Cause Lung Cancer, Do Not Let Them Fool You." That's the deceptive headline of a March 1998 press release from the World Health Organization. The WHO examined lung cancer patients in seven European countries and found "no association between childhood exposure to environmental tobacco smoke and lung cancer risk." For non-smoking adult workers and non-smoking spouses of smokers, WHO researchers concluded that "neither increased risk was statistically significant."

An even greater deception came from a landmark 1993 report issued by the Environmental Protection Agency, which proclaimed that ETS is a dangerous carcinogen that causes 3,000 deaths annually. Five years later, a federal judge lambasted the EPA for "cherry picking" the data, excluding studies that "demonstrated no association between ETS and cancer," and withholding "significant portions of its findings and reasoning in striving to confirm its … hypothesis." A more damning assessment is difficult to imagine.

That's not the main point, you might insist. Maybe secondhand smoke doesn't kill people; but how about the damage to individuals with pre-existing asthma, respiratory infections, or skin or eye allergies? (Never mind that automobile exhaust fumes can do more damage in a couple of minutes than outdoor smoking can do in a decade.) Listen to 1994 congressional testimony from the Congressional Research Service, the non-partisan reference arm of the Library of Congress: "The statistical evidence does not appear to support a conclusion that there are substantial health effects from passive smoking."

Meanwhile, if California can persecute smokers, it can rein in any behavior that a politically favored group finds offensive. What about public cursing or kissing? And if those examples sound like a stretch, what about the whole range of allergies—emanating from perfume, pets and flowers—that collectively affect many more children than those who are affected by a fleeting wisp of playground smoke? Ironically, a ban on outdoor smoking will drive smokers indoors—precisely where their kids will be exposed to more concentrated doses of secondhand smoke.

However unpopular the tobacco industry, there are countervailing values that sustain a free society. Let's not sacrifice cherished liberties to wage war against cigarettes.