READER RESPONSE -- Another "Taking Exception" to the illogic of smoking bans

Scott Johnson was lamenting the other day about how much time the Powerline guys are spending defending themselves from attacks in the Star Tribune. They have my sympathy. After umpteen columns detailing the arguments against a statewide smoking ban, yet another critic, completely ignoring those arguments, chimes in with another rehash of the old arguments.

In today’s Pioneer Press, J. Michael Gonzalez-Campoy, president of the Minnesota Medical Association, takes exception to my column on the “Freedom to Breathe Act,” the bill working its way through the state legislature that would ban smoking in bars, restaurants and private clubs.

It would be easy to link his objections to death with a simple “click, here, here, and here. But he writes a nice tight complete litany of the objections that makes it ripe for a respectful fisking. (I am indebted to Edmund Contoski, a retired environmental consultant and author, for his extensive research into the literature and research on secondhand smoke -- both private and government conducted studies.)

Dr. Gonzalez-Campoy begins --

The debate over secondhand smoke and the Freedom to Breathe Act, which has been introduced in the Minnesota Legislature, is indeed a debate about personal rights (Craig Westover's column Jan. 26). But exactly whose rights should we be fighting for?

In thousands of Minnesota bars and restaurants, employees and customers are exposed to more than 4,000 chemicals in secondhand smoke. At least 11 of these chemicals are known to cause cancer. What is the justification for not protecting workers and patrons from these dangers?

The debate over secondhand smoke brings to mind the famous 1994 news photo of the country's top tobacco company executives, standing with right hands raised, swearing to tell the truth in testimony to Congress. The photo was taken just before they testified that smoking did not cause cancer. A decade later, even the tobacco companies admit that cigarette smoking kills.

No doubt there will be a similar turning of the tide on the issue of secondhand smoke. The scientific evidence is overwhelming — secondhand smoke is one of the country's leading causes of preventable death. It has been linked to diseases such as lung cancer, heart disease and asthma.

The Centers for Disease Control and Prevention — to cite just one example — has gone so far as to warn people who have heart disease, or are at risk for heart disease, to avoid exposure to secondhand smoke because less than 30 minutes of exposure can trigger a significant heart event.

Let’s look at his facts -- 4,000 chemicals in secondhand smoke, 11 of which are known to cause cancer. Second hand smoke is one of the countries leading causes of preventable death. It has been linked to diseases such as lung cancer, heart disease and asthma.

I’m surprised he claims only 11 carcinogens for tobacco smoke. Pro-smoking ban ads showing a waitress carrying a tray of drinks claim she’s exposed to 69 carcinogens -- and that number is probably accurate. Pretty scary, huh? And that’s what it’s meant to be, but it’s not science.

What science tells us is that many of these chemicals are found naturally in the human body and in the air we breathe whether we are in a smoky or a smoke-free restaurant, or walking in a public park. Yes, there is more exposure in a smoky bar, but -- again scientifically speaking -- not enough exposure to reach “threshold” danger levels.

A “threshold level” is the point at which substance safe in trace amounts becomes toxic. For example, there are around 100 known carcinogens in a cup of coffee, which are entirely consumed by a coffee drinker. Drinking a cup of coffee exposes a person to more carcinogens that sitting next to a chain smoker. But don’t worry, in neither case does the level of exposure even approach a threshold danger level. That’s science.

Is secondhand smoke a “leading cause of preventable death”?

EPA has claimed that secondhand smoke accounts for 3,000 deaths annually. This is a computer-generated figure that has been thoroughly discredited. The Congressional Research Service is a branch of the Library of Congress. It is non-partisan, highly respected, and is not beholden to the tobacco industry. The CRS -- looking at the same data as the EPA while reviewing the EPA study (at the request of Congress) -- concluded: “It is possible that very few or even no deaths can be attributed to ETS (Environmental Tobacco Smoke).”

As to the CDC warning, indeed, it does make sense to warn people with specific medical conditions to exercise special care about the positions they put themselves in. Yesterday, for example, these same people were warned about strenuous exercise outdoors. They should probably avoid bonfires in enclosed shelters. This is really a personal accountability issue, which is dealt with later.

Dr. Gonzalez-Campoy continues --

But how long must workers keep waiting for public policy to catch up with science? Minnesota workers have every right to an environment that will not seriously damage their health. So do customers in bars and restaurants. The Freedom to Breathe Act would protect that right.

Throughout history, the health of workers and the public has been a high priority. In 1970 the Occupational Safety and Health Administration was created to protect workers. In 1975 Minnesota passed the Clean Indoor Air Act to protect office workers from secondhand smoke.

Do bar and restaurant workers and customers deserve less protection than office workers?

Do they have fewer rights to a safe environment?

In this section Dr. Gonzalez-Campoy gets into rights issues, but he simply states an opinion with no basis for argument. Dr. Gonzalez-Campoy nor any of the other “Taking Exception” columns that appear after I write an anti-smoking ban column nor the Pioneer Press Editorial Board in their repetitive harangues on the need for statewide legislation have addressed the fundamental question of when does a “widespread” health issue rise to the level of a “public” health issue requiring government intervention? I have offered three neutral criteria --

1) A person is exposed to a risk without his consent;

2) The risk is community wide -- any one and everyone can be exposed to the risk;

3) A reasonable person can not take individual action to avoid the risk.

People may quibble with my criteria, but if they do so, they are obligated to offer their own. My critics never do. They do not want to be limited by a “rule of law”; they want to be able to arbitrarily decide when government can step in an take rights from one group and give them to another. Rights cannot be argued without appeal to some authority, and the smoking ban proponents posit none other than their own “common sense.”

The point is all jobs have some degree of risk that an employee assumes in choosing a career, a job and an employer. Government cannot and should not try to eliminate all risk at the expense of autonomous individual freedom. There are ways a reasonable person can take individual action to avoid secondhand smoke short of infringing on fundamental rights.

A note about OSHA. If one starts at about 1950 and looks at any trend line relating to industrial accidents or deaths, one sees a steady-slope decline in the number of casualties up to 1975 and the creation of OSHA. From 1975 on, the trend lines continue at virtually the same slope as before the implementation of OSHA. The point is, billions of dollars have been lost to the economy since 1975 complying with OSHA regulations with no visible effect on the overall rate of industrial accidents and deaths. The decline is due more to improved technologies and other factors than any government regulation.

Dr. Gonzalez-Campoy continues --

Experience shows that smoke-free policies protect our health. Studies of Delaware's hospitality venues before and after a smoke-free law showed that the levels of airborne cancer-causing substances decreased by at least 90 percent. The result is healthier workers and customers, and that translates into lower health care bills and fewer employee absences because of smoke-related illness.

Experience shows that most consumers support smoke-free policies. In New York City, restaurant and bar tax receipts increased 12 percent following the enactment of a smoke-free indoor air law. After passage of the Indoor Air Act in California, bar and restaurant sales increased from $8.64 billion to $11.30 billion from 1997 to 2002.

And right here at home, 93 percent of Minnesotans who participated in the 2003 Minnesota Adult Tobacco Survey said they would eat out more often or the same amount if there were a total restaurant smoking ban.

Again, Dr. Gonzalez-Campoy exhibits a lack of scientific and statistical rigor. It’s obvious that if you ban smoking in a bar, airborne cancer-causing substances are going to decrease significantly, but thank God government spent taxpayer dollars to confirm that. Such a study has a political intent. The scientific question is whether or not the level of airborne “cancer-causing” substances were at a “threshold” level of danger before the ban. Science, as noted above, says they were not.

Now let’s look at Dr. Gonzalez-Campoy’s hospitality numbers -- which I’ve refuted many times before. Both the New York and California numbers are aggregate data. In other words, they both reflect influences other than the smoking ban and don’t consider negative and positive influences on sub categories.

First, the New York figures include a period of recovery following 9/11. In other words, hospitality revenues were down because of the aftermath of the terrorist attacks and people were returning to more normal entertainment activities. The California numbers represent a 9 percent increase in hospitality industry revenue. For the same period, in surrounding states without smoking bans, hospitality revenue was increasing at around 14 percent.

[An interesting side note -- these statistics come from state sponsored studies. For one of my recent columns refuting these exact same statistics, I had to supply citations so that “readers would know if the studies were biased.” Apparently that standard doesn’t apply to points of view that agree with the particular editor responsible for both pieces.]

Second, the aggregate influence ignores that small, neighborhood working-class bars are more affected by smoking bans than other venues. Can a law be justified on the ground that it is only unjust to a few people? If governments insist on smoking bans not justified by public health criteria, don’t they owe these businesses compensation as a property taking? Would the public be so ready to impose smoking bans if tax dollars were required to compensate damaged businesses?

And finally let’s look at that 93 percent figure for people who would go out more often. Any statistician will tell you there’s a huge difference between what people say they will do and what they actually will do. The fact is, there are many voluntarily smoke-free establishments for people to patronize. In a free society, a majority cannot take away a fundamental right from a minority without just cause -- i.e. a rule of law based criteria of “public” health.

The good doctor wraps up --

In the coming months, we owe it to ourselves to fully consider the health impact of the Freedom to Breathe Act. Some will argue that the generally low-wage workers in the hospitality industry really have "freedom of choice" to change jobs in order to protect their health. Others will debate that.

But the science of secondhand smoke is beyond debate. Secondhand smoke harms everyone who breathes it. The Freedom to Breathe Act would grant Minnesota bar and restaurant workers and patrons the same right to a healthy environment that we already guarantee to white-collar office workers. Only clear indoor air will protect a person's lungs and heart.

If the science of secondhand smoke is beyond debate, it is because it clearly fails to establish either casual connection between secondhand smoke and diseases and does not indicate a significant danger. It’s still a personal choice whether or not to avoid secondhand smoke, but science is not on the side of a ban. I’d urge everyone to take a look at Mr. Contoski’s report.