Sunday, April 24, 2005

IN MY VIEW: Something is Not Always Better than Nothing

Public health advocates are often faced with an interesting dilemma: is it better to support compromise legislation that has been watered down from what advocates initially supported, or to oppose such legislation in the hopes of getting a stronger bill enacted in the future? An example of this dilemma is the Georgia Smokefree Air Act of 2005, which bans smoking in family-oriented restaurants, but exempts adult-only restaurants and bars, and which allows smoking in enclosed, separately ventilated areas of restaurants. The legislation, passed by the Georgia House and Senate, is on the governor's desk awaiting his signature or veto. It is unclear whether the governor will sign the bill or not, but it is clear that public health advocates in Georgia are strongly supporting this watered-down legislation and consider it to be a "success."

While it may, in general, be a difficult decision that requires a careful weighing of potential consequences, I do not see much of a difficulty with this particular legislation. This is because the "something" that the bill does is, from a public health perspective, close to "nothing," yet it comes at the expense of posing a rather large imposition on the restaurant business in Georgia.

On the one hand, the bill allows smoking in certain areas of restaurants: namely, those that are enclosed and separately ventilated, and it completely exempts any restaurant that bans kids. Thus, the bill provides no guarantee of protection from secondhand smoke exposure for ANY restauarant worker in the state of Georgia. Workers in adult restaurants are not protected at all, and workers in restaurants that choose to be family-oriented are protected only at the discretion of their employer, who can choose to create a smoking room, with, notably, no size restriction. In other words, a Georgia restaurant that serves families can be in full compliance with the Act if it creates a smoking area that makes up 90% of the restaurant seating, as long as the smoking and non-smoking areas are enclosed and ventilated separately. Only a privileged sub-class of restaurant workers in Georgia are even afforded this opportunity for "protection."

On the other hand, the bill intrudes upon the autonomy of the restaurant business by forcing owners to make a decision about how to run their businesses (i.e., whether to cater to families or just adults), a decision that is necessary solely because of the legislature's inability to enact a consistent public health policy.

One might argue that the "achievements" within the bill, such as the restriction of smoking in family-oriented restaurants to enclosed, separately ventilated areas are still "worth" something, and that public health advocates should accept the current bill and then come back in the future and attempt to "strengthen" it.

But this argument fails because by forcing restaurants to make expensive alterations to their physical establishments (i.e., creating smoking rooms) as well as their overall marketing plans (i.e., becoming an adult-oriented establishment, firing youth workers, and recruiting and hiring new adult workers) in order to allow smoking, Georgia advocates are actually providing a very strong reason for the legislature not to intervene and eliminate smoking in the future. Is it really fair to force restaurants to make these expensive changes, only to come back in a year or two and eliminate smoking entirely? Whether it is or not, this is certainly an argument that will be used by opponents to stronger legislation and it will make it very difficult to enact a stronger bill in the future.

I think the best chance of achieving a smoke-free workplace for all bar and restaurant workers in Georgia is to scrap the current bill and come back next year with a renewed effort to promote one that actually makes some public health sense and which creates a level playing field for all bars and restaurants in the state. If one looks at the experience of the states that have enacted 100% smoke-free bar and restaurant laws, one sees that most of them enacted these bans from scratch, not as a result of amending previously-passed bans that had significant exemptions.

But I have yet to mention the two strongest arguments against supporting the current legislation. First, by doing so, it frames the issue of secondhand smoke as one of personal choice on the part of restaurant patrons. If we are only aiming to protect restaurant customers, then I think there is a valid argument that these patrons have a choice about whether to go to a smoke-free restaurant or not. I don't see a compelling reason to intervene when there are already a large number of smoke-free restaurants that are available to nonsmokers.

By supporting legislation that provides no guaranteed protection for workers and focuses on protecting kids from secondhand smoke, advocates are sending a message that the purpose of this legislation is to protect kids, and that somehow, exposure to secondhand smoke is not a problem for adult restaurant workers.

Ultimately, this type of framing of the issue is going to damage the overall effort to guarantee smoke-free workplaces for all workers.

But perhaps the strongest argument against supporting the current legislation is that it is simply not justifiable from a public health perspective. If secondhand smoke is bad enough so that the government needs to intervene to protect youths who eat out at certain restaurants for a few hours at a time, then why aren't workers -- who spend eight or more hours at a time in this environment -- being given protection from the same alleged hazard? And why is the limited protection that is provided being afforded to workers based on whether or not they happen to be employed in a restaurant that ultimately decides to allow versus to exclude children?

I don't think we can or should rely on political concerns to justify legislation that is, from a public health perspective, inappropriate, unfair, and devoid of common sense.

2 comments:

anonymous auntie said...

Yeah, what he said.

Don Shopland said...

I agree completely with Mike's analysis. I currently live in GA and strongly supported the bill originally introduced by Sen. Don Thomas and passed overwhealmingly by the GA Senate the last two years. The bill that has emerged and which is awaiting action by the Governor may be a step in the right direction but it is a very tiny step forward indeed.

As Mike has pointed out there are so many loop holes in the present bill that I think implemention will be a nightmare and restaurant owners -- probably with the help from our friends in the industry --will find many creative ways to get around having to go completely smoke-free.

Essentially the bill that emerged is one of those "we need to protect our children" at any cost type actions that ends up having very little if any positive effect. While protecting kids is certainly a laudable goal, this legislation, in my opinion, will do little in that regard as most any parent in GA who wants to protect their kids from SHS already go to restaurants that are either smoke-free or provide so called smoke-free seating. Its the worker in GA that needs protecting, especially food service workers.

Ironically, the % of the GA workforce reporting a smoke-free workplace was slightly above the national average in the early 90's
but today GA workers are lagging more and more behind not only the nation but surrounding states. Last November we submitted a paper to the journal of the GA medical association in which we analyzed 10 year policy trends in the state and (as of last week the paper is still being "considered") the data strongly suggests that the percentage of workers with a smoke-free place of employment declined slightly the last few years -- one of only a handfull of states which such a trend was evident. Even NC is now ahead of GA in this important area of occupational health.

I think in the end the Governor is going to veto this bill -- not because he thinks its a bad bill but because he thinks restaurant owners and patrons rights may be in jeopardy. Thus, he believes people have the right to intentionally expose others to a known health risk; and the public health be damned.

Don Shopland
Ringgold, GA