More on Smoking Bans:

As a follow-up to my post below on Marriott's decision to eliminate smoking rooms, let me provide more fodder for deabte. First, here is Thomas Lambert's "The Case Against Smoking Bans" available on SSRN. The abstract reads as follows:

In recent months, numerous localities and states have banned smoking in public places (i.e., privately owned places to which members of the public are invited). Such sweeping bans are typically justified on grounds that they alleviate externalities, shape individuals' preferences in a desirable manner, and reduce risks. This essay rebuts the externality, preference-shaping, and risk-reduction arguments for smoking bans and contends that such bans are unnecessary and, on the whole, utility-reducing.
For a somewhat different perspective, readers may want to look at the Surgeon General's new report "The Health Consequences of Involuntary Exposure to Tobacco Smoke." This report summarizes the research to date on secondhand smoke, and concludes, among other things, that a) secondhand smoke poses a health risk to non-smokers, b) there is no risk-free level of exposure, and c) the most effective way to prevent exposure is to prevent smoking.

The Surgeon General's findings do not necessarily lead to the conclusion that governments should adopt indoor smoking bans. We allow people to smoke and eat fatty foods and engage in many other risky activities (such as, in some states, ride motorcycles without helmets), under the assumption that individuals should be able to decide for themselves whether the risks are worth the benefits of the activity in question. One could decide to treat secondhand smoke in private estalbishments the same way. Consumers can decide whether they wish to frequent those places that allow smoking — they can decide whether the food, ambiance, noise level, trendiness, NFL Ticket subscription, pick-up scene, or whatever is worth the marginal risk. The same is true for workers. The Surgeon General notes that entertainment and hospitality industry is the only sector in which workers face signficant exposures to secondhand smoke. This would suggest that even workers have choice in deciding whether exposure to secondhand smoke is worth the compensation they receive. No job or leisure activity is risk-free. The relevant policy question, in my view, is whether, and under what conditions, the government should prevent individuals from making certain trade-offs in their personal and professional lives.

Related Posts (on one page):

  1. More on Smoking Bans:
  2. Marriott Goes Smoke-Free:
Gob Bluth:
This paper contains too much common sense to be taken seriously.
7.21.2006 10:53am
Justin (mail):
When Liberterians start to attack private efforts to deal with hazards and nuisances, it always leaves me a little confused.
7.21.2006 11:11am
Justin (mail):
Ah, sorry, now I see your earlier post. Makes much more sense now. :)
7.21.2006 11:16am
jimbino (mail):
It seems the libertarian who opposes smoking bans would, by force of logic, favor dismantling health departments who worry, among other things, about the safety of our water supply. Furthermore, if we were to move to private enforcement of smoking bans, there would be a lot of dead smokers out there, for the reason that we libertarians assert the right to defend our persons and property. I've already had to put out a smoker's cigarette with a fire extinguisher in an elevator in Munich and feel up to the challenge, if need be.
7.21.2006 11:45am
Grant (mail):
I have a strong preference for dining and drinking out of the presence of tobacco smoke. Before government bans on smoking in restaurants and bars, I was generally unable to satisfy this preference. Non-smoking rooms adjacent to smoking rooms were available, but were not a completely satisfying solution. Smoke, while reduced to more healthy levels, could still usually be smelled in the non-smoking rooms.

I don't think my preference is such a minority taste that the market was justified in ignoring it. Government intervention sure made my life better in this instance.
7.21.2006 11:45am
Jeremy A. Blumenthal (mail) (www):
The interesting normative issue is, of course, whether we SHOULD allow people to "engage in many other risky activities ... under the assumption that individuals should be able to decide for themselves," considering people's general poor decision-making.

But as a descriptive matter, the analogy may be inexact; although people clearly can choose about engaging in self-injurious activity, we don't always have the choice about what we are exposed to, such as second-hand smoke.
7.21.2006 11:51am
Grant: Right on.

It always perplexes me when I return from the US that there is smoke everywhere in Europe, yet the majority of people shares my and your anti-smoke preference.
7.21.2006 11:52am
I enjoy spitting a great deal. I particularly like to spit in public places with lots of people around and often I like to spit directly on people. It's very satisfying to me because I don't really like people. It seems to me that the laws preventing me from spitting on people are tremendously unfair. If people don't wish to be spat on, they should avoid walking near me. Perhaps Professor Adler will take up my cause and try to ensure that I can spit on people without fear of prosecution?
7.21.2006 12:03pm
Hovsep Joseph (mail) (www):
I think people focus too much on the relative medical harm done by inhaling second-hand smoke when considering the issue of public smoking bans. There is some degree of medical harm, but its debatable how much cancer, asthma, emphesyma, etc. is actually caused or exacerbated by second-hand smoke.

I think the real issue motivating these bans is the consumer distaste for unpleasant smoke-filled public places and the market's failure to provide smoke-free alternatives without nudging from legislatures. Most people just don't like having to deal with other patrons blowing smoke in their faces and soiling their clothes, just as they don't like patrons spitting on them or openly masturbating in their vicinity (which, like smoking, a minority of people like to do when they have a few drinks). We don't ban these things because they necessarily cause disease, but because most people simply find them unpleasant and don't want to have to deal with it when they go out in public.
7.21.2006 12:25pm
Gob Bluth:

You have a very successful business model in your back pocket. Have you yet opened your smoke-free bar/restaurant to satisfy the majority of European's tastes?
7.21.2006 12:31pm
Gob Bluth:

I have an aversion to looking at the obese. While the government is spending money on obesity education and new diets are always in fad, obesity persists. I'm looking forward to the day when the government bans candy bars, potato chips and french fries. (It will also save me money, as a taxpayer supporting government funded healthcare) Will you join me supporting this legislation?
7.21.2006 12:32pm
Jack S. (mail) (www):
While we generally can choose which establishments we frequent, I think you are making a very broad assumption that we can choose where and with whom we work.

Many people work to live, and not the other way around, and therefore often cannot choose the job that suits them the best.
7.21.2006 12:32pm
Debauched Sloth (mail):
As I suggested in the Marriot thread yesterday, I think what makes the question of smoking bans such a vexing issue is the fact that smokers make no effort to internalize the costs of their activity (i.e., keep their smoke to themselves or, if they cannot, then at least keep it away from others who do not wish to share it) and show an extraordinary lack of courtesy towards nonsmokers. I might well have a "right" to make sexist comments in a bar or say the "f" word around your kids in a restaurant, but it would be rude of me to do so. Of course, you can always leave the restaurant if you don't like me swearing around your kids, but why should you have to leave? After all, you're not bothering anyone, I am. I cannot for the life of me understand why smokers think they should get a free pass to engage in similarly obnoxious conduct simply because they have a "right" to do so. So yes, I object to laws that require smokers to go outside if they want to light up. But if they had any manners, that's where they'd be already and we wouldn't have this problem.
7.21.2006 12:32pm
Salaryman (mail):
Average European: Have you considered investing in smoke-free restaurants and nightclubs in Europe? Admittedly, if you are correct, your clientele would be strictly limited to "the majority of people," but even so, you and your fellow investors might be able to scrape out a few bucks and thereby do good while doing well.
7.21.2006 12:34pm
Gob Bluth:

The analogies are a little off, though I know they're not yours. Spitting is a battery. (Note, you could make the same argument for smoke - if it hits you directly). Masturbating is lewd. We ban this conduct under notions of criminal law. As far as I know, the smoking bans are legitimized under public health concerns, not because someone is suggesting that smoking in public is either an offensive touching or offending the sensibilities of your average citizen (i.e. you wouldn't shield the eyes of a child if they saw someone smoking).
7.21.2006 12:37pm
Hovsep Joseph (mail) (www):
Gob, First, unlike in the case of smoking, most people do not share your aversion for obesity. Second, the imposition on smokers created by a public smoking ban is minimal (smoke outside public establishments) whereas the nuisance smokers create for everyone else is great. Third, your proposal to ban obesity-linked foods is not the analog to a smoking ban. No one here is arguing that cigarettes be banned, just that they be smoked where they are not creating a nuisance for others.
7.21.2006 12:44pm
SB (www):

You should want to ban obese people being obese in public, rather than the alleged source of their obesity, in order to strike a parallel. Certainly the death stick makers should be able to sell their product, as should McDonalds.
7.21.2006 12:44pm
Gob Bluth:

I agree with you that some smokers could use
more manners. However, I sense that your frustration might be because society (for whatever reason) does not view smoking as offensive as say swearing in front of small children. So the man who curses is asked to leave, whereas the man who smokes is permitted to stay.
If you don't like society's judgment call, I suggest you work to change it - by persuading folks that the guy across the restaurant is just as offensive as someone cursing. (Of course, that's why we have smoking/non-smoking sections). And, I think we have moved in your direction. That is, it is considered rude to blow smoke in someone's face, smoke in inappropriate areas.
7.21.2006 12:45pm
Gob Bluth:
Ok. Fine. Obseity is not analogous on the public ban aspect. However it is analogous on the public health front. Hence we shouldn't ban candy bars and the like, we should just tax them highly as a way to discourage their consumption.
7.21.2006 12:48pm
Hovsep Joseph (mail) (www):
Gob: If you don't like society's judgment call, I suggest you work to change it - by persuading folks that the guy across the restaurant is just as offensive as someone cursing.

That is just what is happening. Democratically elected legislatures are banning smoking in public places because most of their constituents find it offensive.
7.21.2006 12:52pm
is the fact that smokers make no effort to internalize the costs of their activity (i.e., keep their smoke to themselves or, if they cannot, then at least keep it away from others who do not wish to share it) and show an extraordinary lack of courtesy towards nonsmokers.

Non-smokers go out of their way to be offended.
7.21.2006 1:02pm
Look, why aren't we libertarians applying the cornerstone principal of our philosophy: J.S. Mill's Harm Principal? We don't regulate people eating fatty foods or riding bikes without helments because only they directly stand to lose from such behavior. The case for smoking bans is quite different, since smoking, as the Surgeon General found, truly harms those around you. There is no libertarian case for allowing behaviors that allow one person to directly harm others without their consent. At best, there should be an exception to smoking bans for air-tight smoking areas (or their equivalent such that smoke does not reach nonsmokers).

We wouldn't allow people to inject carbon monoxide into strangers at a bar, would we?
7.21.2006 1:03pm
The case for smoking bans is quite different, since smoking, as the Surgeon General found, truly harms those around you.

I dislike hippies, even seeing them raises my blood pressure, so I guess we need to ban hippies.
7.21.2006 1:08pm
Justin (mail):
PS - reading the "case against smoking bans" reminds me of a joke about economists, where an economist is abandoned on an island with other professionals and they are trying to figure out how to open up a case of canned tuna.

The economist goes "Assume we have a can opener...."

The cornerstone of the type of economic decisionmaking that Lambert and Adler raise is the idea of perfect rationality in theoretical modeling. This doesn't work, because people are imperfect, and because people have a multitude of variables to consider - would you decline to go to your friends' party beceause it is at a bar which permits smoking? Probably not, even if you are rational - the offensiveness of the smoke, and the personal health risk, is still worth taking given the social cost of not going to bars with your friends.

And that excludes the facts that people are not perfectly rational people who can calculate long term health costs against short term benefits for optimal situations that perfectly match the financial goals of the owner of the establishment, the financial and health preferences of the employees, etc.

The fact of the matter is, that theoretical principles of liberty shouldn't come down to whether smoke is sufficiently physical to be a "battery" but to common sense solutions to societal problems.
7.21.2006 1:17pm
Sebastian Holsclaw (mail):
"there is no risk-free level of exposure"

I hate this formulation. From a scientific perspective there are very few things that have a completely risk-free level of exposure. The standard at law can't be "risk-free".

P.S. I'm not a smoker, and I don't like hanging around people who are smoking. But I hate how science gets misused in politics.
7.21.2006 1:34pm
DenverJosh (mail):
To build off of Justin's comments I see two ways that smoking bans might actually increase welfare.

First, people calculate long-term risks (e.g. cancer from second hand smoke) notoriously poorly. There are some circumstances where it is more efficient to have expert, centralized decisionmakers gather the information and make decisions. This proces does not capture the potential welfare of every unique situation the same way decentralized decisionmaking can, but it may be worth it when information is difficult to generate or process. Where fundamental rights are at stake maybe you don't make this calculation, but smoking?

Second, this looks like a classic public choice issue. Smokers care a whole lot about being able to smoke inside - I'm a former 2-pack-a-day smoker myself - it would be THE decisionmaking criteria for nearly every smoker in deciding where to go. For the larger number of non-smokers, it is unlikely to make or break the ultimate decision. So even though it could cause a welfare loss restaurants obey the will of a passionate minority rather than a relatively disinterested majority. The classic solution - kick the decisionmaking proces up to a higher level of authority where the calculus shifts in favor of the majority - here, state legislaures.
7.21.2006 1:42pm
bigchris1313 (mail):
Reznil, I absolutely understand what you're saying.

But by freely entering into a private establishment such as a restaurant that allows smoking--I'm 20 and live in California so the idea is fantastical to me--does the patron agree to an implied contract of sorts? They freely choose to enter into a place on which is not publicly owned, certainly not owned by them, in order to eat, with the understanding that they will have to inhale some amount, no matter how minute, of tobacco smoke.

Does this idea not fly unless a warning is clearly posted?

Anyway, on a completely unrelated note, although I don't smoke myself (for fear of heart disease which I'm already planning on) I simply adore the smell of second-hand smoke. I don't get it much because not many of my friends smoke, but I find second-hand tobacco smoke simply delightful.
7.21.2006 1:46pm
Debauched Sloth (mail):
Gob -- Thanks for your comment. Actually, I would say my frustration in this instance flows from the fact that increasingly "society" does view smoking as offensive and is expressing its dispproval in disappointingly statist terms, namely, smoking bans. That leaves someone in my position (libertarian who hates smoking) doubly resentful towards smokers -- first for their astonishing presumption in fouling the air I have to breathe if I want to remain indoors with them, and second for the fact that the latest assault on private property rights represented by smoking bans is entirely the result of that presumption. It's remarkable to see so many smokers rallying to the libertarian position on property rights when so few of them give a whit about the libertarian values of not interfering with the equal rights of others (e.g., to enjoy an unpolluted environment, whether it be a river, a park or a restaurant) and internalizing the costs of one's own behavior.
7.21.2006 2:05pm
bud (mail):
For the record, I haven't smoked in 37 years, I don't like the smell, and I much prefer smoke-free establishments of any sort.

That said, the Surgeon General's report is BS from beginning to end. It's another "Executive Summary" where the published conclusions are not at all supported by the body of the report. We went through this once before, remember? It (the big panic about millions of people dying of "second-hand smoke") was thoroughly debunked, yet, here we are again... WITH NO NEW DATA. Read the report- the same data as used before is now just massaged into a "meta-study". Hint: meta-studies are useful to point toward possible correlations, but when used as a proof of causation, they're a joke.

But here we are, accepting the premise and arguing over the "solution". And if the premise is false?...

email is human readable - aloud.
7.21.2006 2:18pm
logicnazi (mail) (www):
I have big problems with the surgeon general's report saying that there is "no risk-free level of exposure." If we take the phrase literally it is equally true of milk. With both tobacco smoke and milk there is a level of exposure so small we can't detect any harm and a level of exposure sufficently high to cause harm. Thus even on a literal reading this claim is somewhat misleading, e.g., it purports to make a substantive statement but really communicates a truism (we can never know a level of exposure has no harm).

Surely the reason it was included was the PR effect of this statement. The surgeon general must have known that the public would interpret this statement as saying you should worry about any level of tobacco exposure. It seems this determination is tinged with moral disaprobation for the risk of tobacco smoke as the surgeon general isn't announcing 'there is no risk free exposure to gasoline fumes' or 'there is no risk free exposure to trans-fat'. If the surgeon general wanted to provide helpful info rather than a political statement he should have given comparisions of the risks of amounts of secondhand smoke to other everyday risks

Frankly I'm still not convinced that normal amounts of secondhand smoke (say in a restaurant) cause a significant increase in risk. If it was a odorless industrial pollutant would the EPA restrict it's emissions below the level one that floats over from the smoking section in a restaurant?


No, this doesn't follow at all. One can very well believe that public health departments should educate people about health dangers (including smoking) and do what they can to help people avoid health dangers if they so choose but not make the risk/reward judgements for them. In the case of the water supply there is no reasonable way to let people make an informed choice on the risk and no large group of people who would find it more pleasant to have tainted water.

Also to respond to someone else many smokers do make a large effort to internalize the costs of their activity. They don't blow smoke in other people's faces, they responsibly try to utilize the designated smoking areas. Complaining because they don't give up smoking entierly in public is a little absurd. That's like arguing that fat people ought to be banned on the streets because they don't make sufficent effort to cover up their unpleasant obesity by not going outside or wearing giant smocks. Also, to respond to some of the other commenters obesity is analagous because it is both a health harm to the individual and annoys those the obese person is around (it's sad and unpleasant but true).


If there was a spitting section in the restaurant and everyone knew that sitting in the spitting section meant people spit on you and you could spit on them I would defend the right of the restaurant to offer a spitting section too. But on public streets or other non-private places you do have something of a point. However, the problem is that many of the smoking bans are driven as much by dislike of smoking as dislike of inhaling the smoke. For instance in berkeley there is a law preventing smoking within 20 feet of a bus stop not just 20 feet of a bus stop when someone else is present. There are many other examples that show when given the chance the anti-smoking lobby will take the chance to make things more inconveint for smokers because they don't like smoking even when no one would be bothered by the secondhand smoke.

So I'm sympathetic to laws that regulate smoking in public just to the amount justified by the actual annoyance smoking causes. However, most people I know who find smoking annoying but don't hate smokers or feel moral outrage don't find the totally minimal amount of smoke they ingest on the sidewalk enough to justify bothering.

Ultimately I just don't understand how it can be acceptable for a strip club to ask (many of) it's girls to be tan (and incurs all sorts of cancer risks) but it isn't okay to demand restaurant employees endure guest smoke.
7.21.2006 3:08pm
SeaLawyer wrote:
Non-smokers go out of their way to be offended.
Well, at least enough of them do.

I once witnessed a militant non-smoker walk tens of yards downwind to tell a smoker that they found their smoking offensive. When they got back I asked how they could possibly be bothered by the smoke, they replied "I could see him enjoying it, and I hate it."

Rhetoric here about private enforcement of smoking bans resulting in dead smokers, using fire extinguishers on impolite but apparently legal smokers, and bizarre analogies to spitting and masturbating; all indicate that for some, anti-smoking militancy arises from a personal motivation far stronger than just being annoyed by smelling tobacco smoke, or even any rational sense of endangerment.
7.21.2006 3:12pm
logicnazi (mail) (www):
Also if these bans aren't motivated by animus or by a desire to play to this animus why is there no discussion of effectiveness? Smokers are addicted and they are going to smoke no matter what rules you make.

If you create smoking and non-smoking sections/rooms/areas/zones/whatever smokers will avoid smoking in the non-smoking areas. If you ban smoking entirely or make it very very difficult then many smokers will flout the ban and smoke in non-smoking areas.

We can't simply count on enforcement. In many situations people are (reasonably) reluctant to go tattle. Especially if they see the smoker has no choice but to break the rule. If the break are at your job has a separate smoking room you can politely ask your boss if he doesn't mind smoking in the other room. If the entire break area is non-smoking you just have to put up with it if your boss wants to smoke (or risk your job).

The reaction to smoking in the US is just as irrational as the reaction to drugs in the US. Instead of engaging in cost benefit analysis or trying to work out how effective the ban will be people act on pure moral disapproval and demand the 'bad stuff' be prohibited/restricted. Often this ends up backfiring as is often the case when you act on emotion untempered by reason.
7.21.2006 3:18pm
Vintner (mail):
Libertarians need to get their priorities straight. There are thousands of worthy areas in which to beat back encroachment of state power. Smoking bans are not a worthy area; no intelligent person would smoke. Smoking bans make life tolerable while we resist important violations of liberty and educate our fellows. (Spent the last ten years living 50/50 in London and San Francisco; no question, the banning of tobacco smoking everywhere in San Francisco, including parks, makes it a decidedly superior environment.)
7.21.2006 3:18pm
Steve P. (mail):
Everyone knows that the libertarian ideal is very close to the free market ideal. Thus, the one and only reason for governments is to correct market failures (imperfect information, public good, externalities, etc.). From that line of reasoning, libertarians should try to prevent government interference on smoking in restaraunts, since the negative externalities of smoke can be avoided easily (and nowadays, everyone knows smoke can kill over time).

In reality, bar owners are very leery of changing their establishment to 'non-smoking' without a strong impetus (like government interference). When there's a choice between the two, smoking places get better business. As a smoker, I'm in favor of the smoking bans -- if I really want a cigarette, I can get up and go outside for it. Not necessarily the libertarian ideal, but I'm okay with it.
7.21.2006 3:19pm
My previous sarcasm about spitting aside, I think there is a huge market for non-smoking establishments. For whatever reason, though, those in the restaurant/bar business have generally not been willing to take the risk here. If there had been a non-smoking bar when I was younger (I've got two kids now, so don't make it out much), I would have been there all the time. In fact, I went to such a bar when I was in Colorado (not sure if it was required by law or if the place just did it on its own), and it was wonderful. If someone had opened something like that in NY or DC years aog, I think it would have been a huge hit, and then perhaps we would not have seen the government stepping in like this.
7.21.2006 3:46pm
Anon1ms (mail):
By the logic of some, the government should allow public facilities such as restaurants and hotels to opt out of food and fire safety codes, just so long as they post a warning to potential customers (and, to avoid nitpickers, insure that no children are allowed in).

Surely, this would be a reasonable consumer choice, as I would assume that avoiding these ordinances would provide lower prices to the customers.

Come on, we all know that Upton Sinclair was a statist, and it was the MSM that blew the Triangle Fractory fire out of proportion -- I'm sure the women who chose to work there knew that managment locked the doors.
7.21.2006 3:55pm
atr (mail):

"I don't think my preference is such a minority taste that the market was justified in ignoring it. Government intervention sure made my life better in this instance."

Since when does the market need justification for ignoring anyone's (even "the majority's") preferences?

Almost everyone wants the government to deliver things they desire at the expense of others. But it's not a free lunch. To deliver what you want, the government is taking away things that other people want.
7.21.2006 4:11pm
Owen Hutchins (mail):
I guess we ought to get rid of OSHA and all worker-safety related reglations in general, since they can easily choose to work in a safer environment.
7.21.2006 5:03pm
JerryM (mail):
Only about 5% of lifetime smokers get lung cancer, although many other ailments may get them first. It only makes sense that second hand smoke exposure risk is much lower. Notice they only say things like increases the risk by 25%. This may mean you have gone from a .001% chance to a .00125% chance. Big increase, but still very unlikely. This is just like all the other scares various groups come up with. They can't come out and say this as they have been brainwashing the masses for years with their BS community health concerns. I am not a smoker and do not like smelling smoke, especially while eating, but I expect smoke when I go to a bar and put up with it. I think each establishment should be able to do what they wish and buyer beware.
7.21.2006 5:09pm
frankcross (mail):
Well, that's a greater risk increase than many we regulate and, multiplied out by exposed individuals, a material cause of death. I'm kind of libertarian and don't really favor rules against spitting, cursing, or smoking. But if you're going to prohibit the first two, it's pretty tough to distinguish the third.
7.21.2006 5:29pm
Where I live there is not yet a smoking ban (the city council is considering one), but there are a great many restaurants that do not allow smoking. And the recognition that there are many nonsmokers and that smoke tends to carry between sections has been the impetus for the change. So to a large extent the market can work.

One of the difficulties with market solutions is that they can take time to evolve; governments can simply sign laws in to existence. But this is not in itself an argument that government intervention is the better solution.

One of the principles that I don't think gets enough emphasis in this debate is the idea that even when government does have a legitimate interest in regulating behavior, it should choose the least restrictive means for doing so. For example, rather than eliminating externalities by banning smoking completely, would it be possible to impose a fine for getting smoke in a non smoking area? Designate public smoking areas? Require establishments that are open to the public and that allow smoking to obtain a permit and meet certain minimum standards for ventilation and waste/pollution disposal? Offer transportation or other assistance for low income individuals who can document a lack of nonsmoking employment within a certain distance of their home?

It is certainly true that markets have certain shortcomings and there are certain questions they don't answer very effectively. But one of the appealing things about market theory is the notion (and usually the reality) that with a little creativity and awareness and effort, solutions are possible and that maximizing your results does not imply a need to minimize somebody else's. Legislation, even when democratically enacted, often does not encourage the same sort of involvement, especially when it comes to issues (like smoking) which have a high subjective and emotional component and involve issues which people in their own lives tend to see as absolute or overwhelming.
7.21.2006 5:48pm
Kevin L. Connors (mail) (www):
A few notes: First, riding a motorcycle, with or without a helmet is risky. It's a matter of the level of risk. The same can be said of one's choice of motorcycle, personal skill level, and myriad other factors. But this is true of all human activity.

As an engineer, I was taken aback by outright bans on smoking in workplaces, when no sort of regulatory regime was tried first. A properly designed ventilation/filtration system can maintain immediately adjacent smoking/non-smoking zones in a single room, while still keeping the smoke level in the non-smoking area(s) negligible.

Indoor smoking bans have become quite commonplace. Now outdoor bans are the next Fabian step. I don't think there are any public beaches, piers, or boardwalks left in SoCal which allow smoking.
7.21.2006 5:48pm
As an engineer, I was taken aback by outright bans on smoking in workplaces, when no sort of regulatory regime was tried first. A properly designed ventilation/filtration system can maintain immediately adjacent smoking/non-smoking zones in a single room, while still keeping the smoke level in the non-smoking area(s) negligible.

I agree, if health is really the main concern, why not just impose air quality standards?
7.21.2006 6:13pm
some guest:

Now outdoor bans are the next Fabian step. I don't think there are any public beaches, piers, or boardwalks left in SoCal which allow smoking.

One of the main reasons for outdoor smoking bans is not the health implications of second hand smoke, but litter control. Many smokers are in the habit of leaving their cigarette butts on the ground wherever they happen to be standing when the finish their smoke. It's terrible at the beach. Have you ever been to a beach that allows smoking? The sand is littered with butts, which is disgusting.
7.21.2006 6:46pm
I live SOCAL where smoking is made as difficult as possible. I find it funny reading through these comments and seeing the reaction of some self-proclaimed libertarians - sample paraphrased reactions:

"I don't want the government to needlessly interfere and regulate, but in this case I want them to since I think smoking is bad"

"What? You don't want the government to interfere? What about OSHA, EPA? Smokings bad and we need someone to protect us!"

"I think the free market is great, except when it doesn't act quickly enough to make the changes that I want"

Priceless. The comments here prove that no one's a libertarian, and everyone is a statist when it comes to something that they find objectionable.

There was one comment along the lines of "we need the government to regulate this, no intelligent person would smoke!" Well, I suppose you could say that for drug use, alcohol use, unprotected sex, etc. Those activities have no logical purpose. Certainly not an intelligent pursuit. And all cause social harm and costs that are much higher and much more documented and proven than second hand smoke.
7.21.2006 7:08pm
some guest wrote:
One of the main reasons for outdoor smoking bans is not the health implications of second hand smoke, but litter control. Many smokers are in the habit of leaving their cigarette butts on the ground wherever they happen to be standing when the finish their smoke. It's terrible at the beach. Have you ever been to a beach that allows smoking? The sand is littered with butts, which is disgusting.
At the beaches I've been to I didn't notice them. I was too busy dodging the aluminum tabs, glass shards, and other actually dangerous litter. Never cut my foot on a butt yet.

But wait. Pipe smokers don't leave butts. I'm not sure why that's banned too.

If littering is really the issue, then it's more effective just to ban all littering, and enforce the ban. It would also be honest, a quality too often absent in government these days.
7.21.2006 7:40pm
atr (mail):
"I guess we ought to get rid of OSHA and all worker-safety related reglations in general, since they can easily choose to work in a safer environment."

It's easy to take the statist rationale and carry it to extremes, too: I guess the government ought to confiscate all private property because people can't be trusted to value safety enough.

Should individuals be able to engage in consensual agreements and activities or shouldn't they? I'd prefer the former myself, but maybe I'm crazy. Maybe all the people who get off on using to government to protect other people from their choices are the sane ones.

There's an entertaining dialogue between David Henderson and Ralph Nader in Henderson's book The Joy of Freedom:

Henderson: What is your argument for not letting workers choose risky jobs?

Nader: The market for safety doesn't work because many data on job hazards--benzene, et cetera--escape the workers' information sensory systems.

Henderson: Workers are ignorant of the risks?

Nader: Yes.

Henderson: If workers weren't ignorant, would you let them choose?

Nader: What do you mean by "choose"? Workers are coerced by their circumstances into "choosing" between starvation and taking risky jobs.

Henderson: No, they aren't. No one's coercing them. We can both admit that some workers face two unpleasant choices, but you want to remove from them the on that's least unpleasant. How would that make them better off?

Nader: I want to give them more choices.

Henderson: Great. But meanwhile, before those other choices exist, you want to take away their best option.

Nader: I want to assure them of a safe job.

7.21.2006 10:04pm
atr (mail):
I should add that the anti-smoking crowd ultimately doesn't believe in the value of consent. State and local ordinances prohibit smoking even in venues where all persons present consent. Even if all a bar's management and staff themselves smoke (and desire to smoke on the job), and even if all customers who enter the bar sign a waiver indicating they're smokers and consent to being in the presence of smoke, the law still prohibits it.

A passerby on the street who looks in the window and sees cigarettes being smoked is effectively granted the legal authority to have all the people in the establishment fined or arrested.

Yeah, the commenter who above suggested that freedom lovers shouldn't make fighting smoking laws a priority has a case in that property rights are already so far down the tubes that this fight is pointless. On the other hand, doesn't anyone care about principle anymore? Doesn't anyone care about the millions of business owners and their smoking customers whose liberty is being violated?
7.21.2006 10:16pm
If social conservatives can ban gay marriage to create the society they want via the legislature, then non-smokers are clearly free to create the society they want via non-smoking legislation. Will libertarian smokers employ activist judges to reverse anti-smoking legislation?
7.21.2006 10:16pm
Mark H.:
Some Guest wonders:

Have you ever been to a beach that allows smoking?

Up until a couple years ago, every beach I had ever visited in half a century allowed smoking.

The sand is littered with butts, which is disgusting.
Never noticed that in any great degree, in fact they now have "sandboni" machines that comb the sand for wayward objects and leave a soft puffy litter free bed of inviting sand for all takers to proceed on their road toward skin cancer.

Indeed, on some beaches you can drink beer while you smoke and burn, and wouldn't you know it, some people bring glass bottles of beer even though the signs clearly say cans only. Glass bottles are dangerous things on beaches, all beer drinking should be banned, yes? No one should be able to enter the beach without applying sunblock 50 in front of the beach attendent, right?
7.21.2006 11:29pm
Debauched Sloth (mail):
Luke -- you don't need an "activist" judge to overturn smoking bans. Just one who takes seriously the concept of private property. Admitedly, such a judge might well appear "activist" to people who do not themselves take seriously the concept of private property.
7.22.2006 9:24am
M. Simon (mail) (www):
Tobacco is an anti-depressant.
7.22.2006 9:38am
Frank Drackmann (mail):
Its Prozac without a prescription and no weight gain.
7.22.2006 9:53am
jimbino (mail):
I imagine libertarians would countenance a system throughout the country of restaurants, bars and hotels that were divided by preference of the proprietor into "whites only" and "mixed race" establishments. Market forces would be depended on to maximize society's happiness and the inability of some black people to get food, drink or a room for the night in Montgomery could be passed off as an aberration.

I would personally like to see establishments here in Texas divided into "mixed religion" and "no Baptists allowed" so that it would be easier to get a drink and meet a higher class of people in the long trip from Austin to Amarillo or from Dallas to Texarkana.
7.22.2006 12:16pm
Justin (mail):
Sloth, once again proving that "activist" means "acting contrary to my preferences"
7.22.2006 3:16pm
If my family's preferences are any guide, private actors would be wise to ban smoking from restaurants and hotel rooms. We will not eat in any establishment where our pleasure in the food offerings is destroyed by wafting second-hand smoke, and we will not stay in lodgings where our sleep will be impaired by the noxious emanations from furniture and carpeting caused by previous smoking occupants.
7.22.2006 3:54pm
jimbino (mail):

If my family's preferences are any guide, private actors would be wise to ban smoking from restaurants and hotel rooms. We will not eat in any establishment where our pleasure in the food offerings is destroyed by wafting second-hand smoke, and we will not stay in lodgings where our sleep will be impaired by the noxious emanations from furniture and carpeting caused by previous smoking occupants.

Yes, Gordo, but the problem, as I have experienced it many times in Europe, is this: You sit down to eat in a restaurant that doesn't reek of smoke and where nobody you see around you is smoking. Right after your meal is served, a group of heavy smokers sits down at an adjoining table and a group on the other side, having just finished eating, pulls out after-dinner cigarettes. What do you do?

What I did, many times, was to call over the waiter at that point and ask to be moved to a non-smoking table. This was always accomplished with some fuss, depending on the size of my party.

Many times, to avoid just this problem, I asked upon entering to be seated as far as possible from smokers. Half the time, in spite of those precautions, a table of smokers got put right next to me!

The worst situation was in the days of airplane travel in the 70s and 80s, when airlines began to separate passengers into "smoking" and "non-smoking" sections. Many times, after specifically asking for the seat farthest removed from smokers, I was seated in the last non-smoking row, right in front of dozens of self-proclaimed active smokers.

I have been offered armed-escort off numerous airplanes and buses in my career, for which they have compensated me when threatened by a lawsuit (and no doubt the negative publicity). Once I remember being accompanied all the way to the urinal by two "FBI agents" after complaining about the airplane smoke.

I successfully doused a smoker and his cigarette with a selzer bottle in an elevator of Siemens AG in Munich, after having been informed by the local fire department that they would come and close down all the plant elevators if they got a report of smoking in an elevator! After smoking regulations were introduced, but not followed, at the Dallas airport around 1990, I offered to help several smokers put out their cigarettes, with great success.

I am a libertarian who will continue to practice guerilla libertarian warfare, and I see no reason not to ban smoking as long as we have a nanny state. Once we take down the nanny state, I will be happy to return to helping smokers put out their cigarettes lit in my presence!
7.22.2006 4:51pm
JosephSlater (mail):
I agree with Owen, and, ATR, I thought Nader got the better of that exchange (granted, I'm not a libertarian).

Back to the worker-safety issue, re the point that only employees of certain establishments (bars, other "entertainment" centers, of course we could add airplanes and some others) are at risk. Does the fact that coal dust is really only a problem for workers in coal mines mean that OSHA shouldn't regulate coal dust levels because, after all, coal miners could get other jobs? Do the more moderate libertarians who might tolerate some worker safety legislation nonetheless think that the only dangerous substances that can be regulated in a workplace are substances that exist in most or all workplaces? Or is the point that smoking bans are arguably too broad?
7.23.2006 6:10pm
John Anderson:
I smoke. And where the proprieter permits it, I do so in bars (but seldom in restaurants even if allowed). I prefer the approach taken by a couple of restaurants, which allow you to smoke outside and let you back in, ie do not make you pay the check and then they clear the table and expect you to return as a "new" customer for coffee and dessert. I am well aware that the smell is objectionable and try not to discommode others.

But the SG "... and concludes, among other things, that a) secondhand smoke poses a health risk to non-smokers, b) there is no risk-free level of exposure, and c) the most effective way to prevent exposure is to prevent smoking" is junk.
a. Yes, but how much? We still have laws against spitting in public because it was a definite risk factor in the spread of TB - is it still? Yes, but the possibility has gone from noticeable to near-extinct. And yes, smoking has been provably linked to a number of health problems for some forty years. But ETS is so linked only by "well, it makes sense" and anecdotal evidence. Worse, at least one study done in California with the stated purpose of finding out how badly second-hand-smoke causes/exacerbates asthma concluded that any link was unnoticeable (well, statistically insignifican).
b. More of the same, but even sillier. There is no "safe" level of exposure to water! You can be drowned by less than a tablespoon! Ban water? Bah!
c. What brilliance! Hey, people get sunburn and cancers from the Sun, so the obvious solution is to stop trying to get a tan! Better, outlaw the practice!

7.23.2006 9:30pm
John S. (mail):
Actually, I think the best solution to all this would be "smoke helmets". Basically, they would be hermetically-sealed spherical plexiglass helmets that contain all the smoke from a cigarette and do not allow it to permeate a room. This way, smokers get to stay where they are and don't have to go outside to brave the elements, and non-smoking patrons are not exposed to the deleterious health effects and other unpleasant aspects of second-hand smoke.

I can't understand why someone hasn't suggested this before...
7.24.2006 2:42am
jallgor (mail):
I don't know about the long term health risks but when I go to a bar that allows smoking I always have a cough the next day. While at the bar my eyes get red and irritated and inevitably my clothes and hair reek. I have also been burned by people's ciggarettes at least 3 or 4 times and twice I found burn holes in clothing the day after a night out. Would we allow people to do this to each other by any other means but smoking? The question of why state action is needed to address this rather than leaving it to the market is an interesting one.
7.24.2006 10:56am
Jack Diederich (mail) (www):
Mr Adler,

In the "Saving the taxpayers' money by passing a law against smoking" you missed my favorite. They can pass a law restricting my behavior only because first - they took my money! Reapply the same logic and the more of my money they take to spend on others the more they can tell me what to do. Some deal.
7.24.2006 10:12pm
Not a lawyer, but ...:
As pointed out above, the argument against government regulation in this area is exactly the same as the argument against workers compensation (why pay workers who were hurt, when the CHOSE to work at a dangerous place of employment) and against safety regulations (workers, after all, could have CHOSEN to work in a less dangerous place). Is it a surprise to Thomas Lambert that people don't want to live in a world where they are free to risk life and limb at work without any hope of compensation by the employer?

In the real world, employees and consumers (a) are NOT rational calculating engines, particularly about low-probability, high-cost situations (see Kahneman and Tversky, for evidence); and (b) are NOT in possession of perfect knowledge about all costs and benefits.

Perhaps most importantly, jobs are NOT fungible. If Worker A and Manager B have worked for 10 or 15 years at a company, they are NOT going to quit and go elsewhere if their employer refuses to ban smoking. Their choice is clearly (c) government regulation, since changing jobs has substantial costs (for example, loss of firm-specific knowledge, which increases their value to a company). [Only if knowledge were static - if everyone knew, from the beginning of time, that second-hand smoke was dangerous, for example, would this argument be irrelevant.] And even if in theory there were no costs for switching employers in mid-career, employees don't have PERFECT knowledge of possible employers, so changing jobs voluntarily involves substantial risk.

From an employer's viewpoint, it isn't obvious that banning smoking will happen even if it results in lowering total combined costs for employers and employees. There are costs to the company to implement such a ban (not as much cost, of course, as in other "let the market work" cases, such as voluntarily paying workers compensation, voluntarily implementing safer operating procedures, etc.). Setting up new procedures, enforcing them, and losing some employees who smoke (newer ones, presumably) are up-front costs. Benefits are longer-term (better job applicants, presumably; lower pay?).

When employers face up-front costs and delayed benefits, often "economic rationality" doesn't describe what happens in the real world (where real people live). A company may be under pressure to minimize current costs (competition); management may prefer not to reduce their bonuses today in hopes of increasing their bonuses in future years; and future years are subject to uncertainty (government regulation that wipes out first-mover advantage; outsourcing that makes the entire matter irrelevant, etc.) so they are heavily discounted.

Finally, the argument against government regulation in this area can be extended to banning lawsuits over damage suffered by non-smokers (because, of course, they CHOSE to work in a place where smoking occurred, even though the hazards of second-hand smoke have been discussed for many years). Or lawsuits over anything that an employee might conceivable have known (that safety regulations aren't followed; that overtime regulations aren't observed; that sexual harrassment is occurring, etc.). Because, after all, employees CHOSE to incur such costs, and if they don't like them, they are free to go elsewhere.
7.25.2006 3:00am