Wednesday, May 25, 2005

IN MY VIEW: Clean Indoor Air Laws Are Justified Only if They Guarantee Protection for Workers

Yesterday's post (A Sad Day for Clean Indoor Air in Indiana) generated much discussion among tobacco control advocates regarding what constitutes a "good" versus a "bad" secondhand smoke regulation and what effects enactment of various restaurant smoking laws might have on the overall effort to protect workers from secondhand smoke exposure. Today, I want to suggest a simple criterion that advocates could use in evaluating whether to support a proposed law.

Contrary to the way some readers portrayed my argument, I am not arguing that anything short of a "perfect" law (i.e., one that provides protection for all workers in all establishments) should not be supported, although I think that if secondhand smoke is the hazard that advocates are arguing it is, then all workers deserve equal protection from this hazard and the goal is to provide a level playing field for all workers and all establishments. However, with an eye towards ultimately providing protection to all, there is room in the policy making approach for an incremental strategy (e.g., one that starts with restaurant workers and then later extends to bar workers). Such an approach can, I think, be justified on the grounds that if the public is not ready for eliminating smoking in a particular type of establishment, then a law may not be enforceable and it is not in the interests of public health to deny protection to workers in a particular type of establishment while waiting for social norms to change to support a broader policy.

However, I think that in order to justify a law that only provides partial protection, there must be a specific, systematic, and reasonable consideration that dictates the need for such an incomplete approach and for the establishment of an unlevel playing field. Social considerations may justify such an approach. But the key factor is that exemptions from the law must not be capricious.

Now the question becomes: how can one judge whether decisions to exempt particular establishments are capricious, or whether they are reasonable based on public health considerations?

I think the answer is whether the law guarantees protection for a broad class of hospitality workers - such as all restaurant workers. If the law is only guaranteeing protection for customers, then a reasonable interpretation of the law is that it is intended to protect the customer and not the worker.

There are two major problems with laws that are intended to protect customers, rather than workers. First, customers have a choice about whether to eat out at a smoke-free restaurant or not. It is difficult for me to justify the degree of government intervention that is required to set an unlevel playing field for business establishments by setting up inconsistent rules for different types of establishments if the primary reason for the rules is simply to give customers more choices of where they can eat out.

Second, by framing the issue as one of customer protection rather than occupational health, advocates who support such legislation are actually, I think, harming the overall goal and long-term success of the clean indoor air movement. After all, it is really the fact that we have been so successful in framing this as an issue of worker health and protection that explains the widespread success, especially recently, in the enactment of smoke-free bar and restaurant laws that do provide equal protection for all workers. A California publication put out by the Department of Health Services and BREATH explains how the framing of this issue as one of occupational health, rather than customer health, is one of the key factors in the successful promotion of smoke-free laws.

So, for example, I think that basing exemptions on something like the clientele of a particular restaurant (i.e., whether it allows youths or not) is capricious and there is no justification for such an approach on public health grounds. Such a policy does not guarantee protection for any workers, much less for a broad class of workers. What such a policy is actually doing is allowing restaurant owners to make the decision about whether to protect their employees or not. After all, it is up to the restaurant owner to decide whether to be an adult-only or a family-oriented facility. Theoretically, if all restaurant owners decided to cater only to adults, there would be no smoke-free establishments left. While this is obviously not going to happen, it does highlight the capriciousness of a policy whose approach is to base protection from secondhand smoke on whether or not there are children present in an establishment. Such an approach is clearly based on protecting customers (youth customers), not workers.

Similarly, a law that allows for smoking rooms within an establishment, even if they are separately ventilated, does not guarantee protection for any workers. Protection is decided, under such an approach, by the restaurant owners who can decide whether to establish a smoking room or not. The approach is, again, clearly intended to protect customers and not workers.

Thus, I think that the Indianapolis smoking law is unjustified because it fits into the first example (allowing restaurant owners to make the decision about whether to protect their workers or not by tying smoking in restaurants to their decision about whether to be adult-only or family-oriented). I find the Georgia smoking law to be unjustified because it fits into both examples (basing protection from secondhand smoke for workers on the decisions of the restaurant owners whether to allow youths and whether to establish a smoking room).

On the other hand, I think one could make an argument that there is some justification for a law that guarantees protection for a broad class of workers (such as all restaurant workers), but which temporarily exempts a specific group of workers (such as bar workers), where there is a declared intention on the part of policy makers to extend protection to all workers at a later date.

I personally could not support such an approach (exempting bar workers) at this date and time because I think public opinion data clearly shows majority support for elimination of smoking in both bars and restaurants and I no longer think it is accurate to argue that social norms do not support the creation of a level playing field of smoke-free establishments (just look at what happened in Ireland if you have any doubts). Nevertheless, I would not criticize advocates who employed such a strategy, assuming that the clear and expressed intention was to extend protection to bar workers at a later time.

However, I must criticize advocates who support any policy that does not guarantee protection for a broad class of hospitality workers because I simply do not see any public health justification for a policy that is clearly intended to protect customers rather than workers, and which capriciously exempts certain workers from protection based on business decisions of their employers.

Perhaps even more important, though, is the consequences that framing the issue in terms of customer health is going to have on the clean indoor air movement. It serves to set back the movement significantly, and to undermine years of progress in changing social norms in terms of the way the public views the problem of secondhand smoke exposure in bars and restaurants.

So I don't opine here that the Indianapolis and Georgia smoking laws should not have been supported by public health advocates because they aren't perfect, but are just good, or a step in the right direction. On the contrary, they are a step in the wrong direction: they represent going backwards in time to when we portrayed this issue as one of customer health, rather than worker health. And they are "bad" public policies, because they represent a regulatory approach that is not justified on any public health grounds.

In conclusion, I hope that advocates considering supporting restaurant smoking laws in the future will ask themselves one simple question before deciding whether to support a proposed law: does the policy advance the public's health by guaranteeing protection from a significant health hazard for a broad class of hospitality workers? If the answer is yes, then I think the approach can be justified. If the answer is no, then I hope advocates will think twice before committing to support such an approach.


Norbert Hirschhorn said...

Discussions about partial or total bans are about customers' or workers' health, the presumption being that most of these persons are non-smokers.

Here is another perspective: If smokers are required by law to sit in separate smoking rooms or smoky bars, their health will surely be made worse by heavy exposure to main- and side-stream smoke. Why would any government want to mandate that. It would be like requiring different driving speeds for different classes of motor vehicles.

Michael Siegel said...

A very important comment. There is substantial evidence that smokers are harmed by secondhand smoke and that requiring smokers to be confined to a small space, especially a separately ventilated room, can result in their being exposed to inordinately high levels of carcinogens and toxins which may well increase their disease rates. It may even be that the increased number of deaths caused by such a policy may exceed the lives saved by protecting nonsmokers. So this is a very important public policy consideration.