Major Loophole in Georgia Restaurant Smoking Law Could Nullify Health Protections

The Georgia "Smokefree" Air Act of 2005 could result in extremely hazardous working conditions for many restaurant workers in the state, thanks to a major loophole that essentially nullifies any guaranteed health protections in the bill. In addition, this loophole is sure to cause confusion and delay, and to create an expensive alteration of the restaurant environment that will lead to an unlevel playing field for restaurant owners and employees alike.

The loophole is exception 9B, which exempts from the smoking law any "private rooms in restaurants and bars if such rooms are enclosed and have an air handling system independent from the main air handling system that serves all other areas of the building and all air within the private room is exhausted directly to the outside by an exhaust fan of sufficient size."

The loophole is already causing confusion and uncertainty, and some restaurants are apparently prepared to establish enclosed smoking areas for their patrons.

The Rest of the Story

Perhaps the folly of public health advocates supporting such an inconsistent approach to the regulation of a supposedly dangerous health hazard is expressed best by one Gainesville restaurant owner, who is quoted in a Gainesville Times article as stating: "I don't like the gray area we have in the law. Either you do or you don't allow smoking."

He's exactly right. As I argued previously, either secondhand smoke is or is not a significant health hazard for which all employees deserve protection. Senate Bill 90 creates an unlevel playing field, in which no employee is guaranteed protection, workers in bars and restaurants are treated differently, workers are treated differently depending on the nature of the patrons they serve and on whether their employers are financially well-off enough to afford the creation of a separately ventilated smoking area.

But loophole 9B could be an extreme problem because it essentially nullifies even the weak health protection that SB90 might otherwise provide. Because there is no size limit on the allowed smoking areas, restaurants may presumably create smoking rooms that take up most of the seating capacity of their establishments. It is even conceivable that the legislation actually allows the designation of an entire restaurant as a smoking room, as long as the room is considered private and is ventilated directly to the outside.

The critical point for interpretation is the meaning of the phrase "private room." Not only is this phrase not defined in the bill, but it is not referring to establishments such as "private clubs" in other legislation, for which there is a definition available in the statutory language that allows the creation and/or licensing of such establishments. Given the absence of any definition for this term, courts are likely to adopt the broadest of possible interpretations, which would essentially mean that a restaurant could create a smoking room that occupies the substantial majority of the seating capacity of the facility.

Because the carcinogen levels in enclosed smoking rooms are extremely high, SB90 represents an extreme health hazard to the employees who will have to serve in such areas. In fact, epidemiologic data suggest that this law will cause more health damage because of the pollution chambers it will create for many restaurant workers than any health benefits it may offer for restaurant workers who are fortunate enough to work in an establishment that cannot afford to create a separately ventilated smoking room. In a 1995 issue of Tobacco Control, I and fellow researchers at CDC estimated that this type of policy will actually cause more deaths than lives saved (see: Siegel M, Husten C, Merritt R, Giovino G, Eriksen M: The health effects of separately ventilated smoking lounges on smokers: Is this an appropriate public health policy? Tobacco Control 1995; 4:22-29).

Thus, the loophole in this legislation could not only nullify the health protections offered to Georgia workers by this bill, it could actually create hazards that did not exist prior to the legislation.

One of the central tenets of medicine and public health is the expression "First, to do no harm." The passage of Georgia's inconsistent and nonsensible workplace smoking law violates this principle of public health practice by creating harm for many of the very workers who this law is supposedly aiming to protect.

While public health practitioners in Georgia are not to blame for the enactment of the law, they still chose to support the law's enactment, despite its inconsistencies, the unlevel playing field it creates, and the harm that it is going to cause for many restaurant workers. I do not think this is the way we should be practicing public health, and I certainly hope that public health advocates in other states will avoid a replay of this saga.