COLUMN -- Absent exaggeration, scientific case for smoking ban is weak

Following my Pioneer Press column is a column that appeared Monday in the St. Paul Legal Ledger. Taken together, the columns make the case that regardless of the outcome on the statewide smoking ban, the state ought to define limits to it's authority to make individual health issues "public health issues" as it defined limits to its authority of eminent domain.



Wednesday, January 10, 2007


In the editorial 'Ban smoking in the workplace statewide,' the Pioneer Press makes an intellectually honest case for extending the statewide smoking ban to include bars and restaurants. It steers clear of misleading exaggerations and attempts an objective view of the science of secondhand smoke. It acknowledges the larger issues of the debate — property rights, economic harm and the limits of government power.

However, eschewing exaggeration leaves the Pioneer Press without convincing scientific justification for a statewide smoking ban. Honestly presenting scientific fact opens the door to questions about if and how government should legitimately be involved. The Pioneer Press sidesteps the most fundamental question: How are the limits of government's public health authority defined?

Anticipating an obesity "crisis," a trans-fat plague and mandatory public health initiatives driven by homeland security, it's critical to define the limits of government's public health activities, regardless of the smoking ban outcome. That's where legislative attention ought be focused.

The Pioneer Press makes thiscase: A statewide smoking ban in bars and restaurants is justified because smoking in public is not a private act. It exposes a roomful of nonsmokers to polluted air. That makes it fair game for public health scrutiny.

According to experts, secondhand smoke is a "powerful trigger" that can cause blood clots in people with diseased arteries. Some diseases, including most cancers, require longer periods of exposure. Nonsmoking employees in smoke-filled workplaces and nonsmoking spouses of smokers are at risk.

The Pioneer Press specifically states it does not want to make smoking in one's home a crime, despite noting that there is stronger evidence that secondhand smoke has negative health impacts on pregnant women, young children and infants, and there is statistically significant evidence secondhand smoke can cause sudden infant death syndrome.

The editorial concedes there are limits to the government's responsibility to protect public health and safety, but it does not define them. The Pioneer Press's ultimate rationale for a statewide smoking ban is its "fear that half-measures, exemptions, city by city rules or voluntary programs" won't change anything. Government, it says, has a responsibility to act.

The debate over a statewide smoking ban highlights a dangerous inconsistency: There are limits on government's ability to physically take private property, but virtually none on its authority to regulate, in the name of public health, what is allowed on private property.

In the 2006 session, the Minnesota Legislature defined limits on the government's authority to use eminent domain to take private property for public use; in a like manner, the smoking ban debate is the opportunity to define when government has legitimate responsibility to limit individual liberty in the name of public health.

The Pioneer Press maintains that possible acute reactions to secondhand smoke and a statistical correlation to increased risk of some cancers is sufficient to necessitate a statewide smoking ban. The acute danger, however, is relevant only to people with pre-existing health conditions. The risk for some cancers correlates (statistically; it is not proven as a cause) only after decades of consistent exposure, and then on the order of two to three additional cases per 100,000 nonsmoker instances. If those levels of risk warrant government action, then some other conclusions follow.

The Pioneer Press says it does not want to make smoking in a private home a crime. Why not? The home is not sacrosanct; government makes it illegal to grow and smoke marijuana in private homes — even if it's recommended for health reasons by a physician. One can drink adult beverages at home, but not if one's intoxication endangers a child. According to the science, any amount of smoke in a house endangers children, spouses and infants. So why shouldn't smoking at home be a crime?

"If public health is the issue, how can we worry so much about smoke blown on adults in a restaurant or bar and so little about infants and children living in smoke-filled homes?" asks the Pioneer Press editorial. It is, however, silent on the obvious answer — public health is not the main motivation behind the statewide smoking ban however much the Pioneer Press would like it to be. It is about borrowing the undefined, unlimited public health authority to ban smoking "as a convenience" for the impatient majority that sees no tyranny when the immediate finality of legislation is chosen over the uncertain results of education and individual choice over time.

Before the Supreme Court's Kelo decision, which Justice Sandra Day-O'Connor opined allowed government to take virtually any person's home for any public purpose, people didn't really mind if government confiscated a car dealership here and there to build a tax-generating corporate campus. Now, the Pioneer Press maintains, although it is unfortunate, some people must bear the economic burden and suffer a loss of liberty and property rights for the public health of a smoke-free state.

It appears it's not government that governs least that is best; the best government governs "them" more than it governs "us." I don't believe the paper on the east side of the river believes that is the position it is endorsing. Unfortunately, without limits on government's public health authority, that is exactly the position the Pioneer Press is supporting.


*****


Monday, January 10, 2007


Last session the legislature faced the issue of whether the state’s authority to exercise eminent domain had limits. The legislature established in law objective criteria defining when the state’s taking of an individual’s private property would be justified – and when it would not.

A proposed statewide smoking ban confronts this legislature with the same legal conundrum – does the state’s authority to protect public health at the expense of private property rights have limits?

Before considering any statewide smoking ban, this legislature ought first set objective criteria, as was done with eminent domain reform, which define when an individual health issue rises to the level of a public health issue necessitating government intervention. Second, legislators must apply those criteria to secondhand smoke exposure to determine if a statewide smoking ban is a necessary government action.

There are three basic criteria that define when an individual health issue rises to a level necessitating government intervention --

1) A person is exposed to a risk to which he does not consent.
2) Every person or any person might be exposed to the risk.
3) A reasonable person cannot protect himself from the risk.

If a statewide smoking ban fails any one of the criteria, it is likely an unnecessary government intrusion on individual rights. Let’s test them --

There are two elements to the first criterion – the first is level of “risk”; the second is “consent.”

Smoking ban proponents are often guilty of exaggerating statistics and making non-scientific statements about secondhand smoke that are false and misleading. Nonetheless, an objective look at raw data does show that over time there is a greater than 99 percent probability secondhand smoke exposure is correlated with an increase in lung disease and other aliments. However, the same research studies show “exposure over time” is measured in decades and even then, secondhand smoke is at best a weak contributing factor statistically insignificant as a causal factor -- even for lung cancer.

There is virtually no risk from secondhand smoke to a casual, healthy bar patron. To put the risk to bar employees into perspective, a person would have to work in a smoking environment for over 21 years to run an increased risk of lung cancer from about 10 in 100,000 (the nominal rate of lung cancer in non-smokers) to 12.5 in 100,000 (based on a 95 percent confidence interval and a median risk ratio of 1.25).

Does that level of risk after two decades of voluntary exposure justify government intervention?

If legislators can answer “yes,” then the issue of “consent” must be considered – to be a public health issue a person must not consent to the risk. A non-smoker patronizing or working in a smoking establishment ultimately makes the choice to be there; he knows and consents to the risk. Even if one believes that secondhand smoke exposure is a health hazard, a smoking ban fails the first criterion on the basis of consent.

To be a public health issue, everyone or any one is at risk of exposure to dangerous levels of secondhand smoke. A smoking ban also fails this test. Only people that enter or accept employment in smoking establishments face the risk. Given the decades of exposure required for secondhand smoke to constitute a health risk, casual exposure does not create a public health issue.

The final criterion of a public health issue is that a reasonable person can’t protect himself from a risk. This criterion incorporates the principle of implementing “least restrictive means” of achieving the state’s objectives.

If the objective of a statewide smoking ban is preventing exposure to secondhand smoke, the least restrictive means is requiring property owners to post warning signs and inform potential employees that smoking is allowed. More restrictive than simple signage, but less restrictive that a smoking ban, is requiring a state-defined air quality level in bars and restaurants. By definition, a “reasonable person” is capable of making an informed decision about risk if given complete and accurate information.

Legislators had the luxury of being on the popular side when they passed eminent domain reform that protected individual rights. Opposing a statewide smoking ban, action that is unpopular but also protects individual rights, is more difficult. Nonetheless, the previous legislature had the intellectual honesty to set limits on the government’s power to confiscate private property. Regardless of the smoking ban vote outcome, the state does not have unlimited regulatory power when it comes to policing public health. Let us hope a few good legislators seize the day and make that clear.