Thursday, January 05, 2006

After Time for Reflection, D.C. Smoking Ban Appears Frivolous and Irresponsible

When I reported last night on the D.C. smoking ban, I reacted quickly because I wanted to get the post out in a timely manner. Having now had some time to carefully consider the specifics of the law, I am even more struck by how nonsensical a policy this is, from both a public health perspective as well as a perspective of pure logic. And here I discuss some of the implications of this irresponsible and frivolous policy-making.

First, let me present the policy in this way:

What the D.C. City Council has enacted is a measure that purports to authorize the use of the District's police powers to intervene in the restaurant and bar business because of the health hazards of secondhand smoke. But the basis of the intervention has nothing to do with secondhand smoke at all; instead, it has to do with whether or not an establishment sells tobacco. Here is the law:

If you sell tobacco such that between 0% and 9% of your revenues come from tobacco products,then there is no smoking allowed in your establishment.

If you sell tobacco products such that between 10% and 100% of your revenues come from tobacco products, then there is no regulation of secondhand smoke in your establishment.

It is difficult to see how that is a public health policy in the first place. But it's also difficult to see how there is any logic behind it at all.

What is the possible logic of only regulating bars and restaurants that are in the 0% to 9% range for tobacco product sales, but not in the 10% or more range?

I could understand if the Council chose to exempt facilities that predominantly exist to sell tobacco. For example, cigar bars. In those cases, the smoking ban would essentially mean getting rid of those businesses, and not getting rid of those businesses is certainly a decision that the Council could rationally make.

But now, we are in a situation where every bar and restaurant owner in the District has a decision to make in the next 12 months. Do I go into the tobacco sales business, and thus enable my establishment to be able to allow smoking?

Some have argued that it is impossible for bars and restaurants to achieve a 10% rate of tobacco sales. But if you really think about it, at the prices at which cigarettes go for (and cigars and smokeless tobacco for that matter), it would only take selling about one pack of cigarettes per every four dining customers in a restaurant or bar to achieve such a 10% rate of tobacco product sales. And since 25% of the population smokes, even establishments patronized by a fully proportionate representation of smokers and nonsmokers would only have to sell an average of one pack of cigarettes to each of their smoking customers per visit. This doesn't at all seem impossible or impractical.

Imagine the types of promotions that bars and restaurants will be able to run:

Buy a pack of Marlboros and and get a free beer.
Buy a pack of Marlboro Lights and get a free Light beer.

If a group of four people go to lunch at a restaurant and one is a smoker, and they have a $40 dinner and the smoker buys a pack of Newports, VOILA! There's the 10% revenue from tobacco product sales that you need to allow smoking. For establishments with a higher proportion of smokers, it will be even easier to meet this threshold.

There are several implications, I think, of the frivolous and irresponsible nature of this so-called public health policy that the D.C. City Council has enacted.

The Rest of the Story

First, there are legal implications. While courts have given legislative bodies wide discretion to exercise their police powers, requiring only that there be some rational basis for the invocation of these powers, there still must be some rational basis. I feel that there is at least a chance that a judge might find the D.C. law not to have any rational basis at all.

Rational is defined as "reasonable and sensible; in accordance with logic and reason." But it is difficult to see any logic or reason in a regulatory scheme that gives businesses a year to decide whether they want to sell tobacco and then regulates only those which don't decide to sell tobacco, or which are unable to achieve at least a 10% threshold. I certainly wouldn't want to have to be the one defending the approach before the judge, explaining how logical, reasonable, and sensible that regulatory approach is.

Remember that in Rhode Island, a Superior Court judge on March 31 of last year upheld a lawsuit filed by a group of bar owners who challenged the constitutionality not of the state's action to eliminate smoking in public places, but of the law's exemption of certain bars and restaurants: private clubs and small bars that do not prepare their own food. The judge issued an order extending the state's ban on smoking in bars and restaurants to include all private clubs, which had, in the original 2004 legislation, been granted an exemption until October 1, 2006.

According to an April 1 Boston Globe article: "Newport Superior Court Judge Stephen Fortunato Jr. ruled that temporary exemptions for Class C and D establishments with ten or fewer employees were irrational, and therefore unconstitutional."

If anything, exempting private clubs and small bars seems slightly more rational than penalizing bars and restaurants that do not sell any significant amount of tobacco products.

Second, I think there are implications for the future of smoke-free efforts. I think this is a great blow to future efforts because it makes a mockery of the whole issue. It represents an unwarranted intrusion into the way in which bars and restaurants operate that is not justified by any possible public health principle. This doesn't pave the way for future smoke-free efforts; it exposes the lack of sound reasoning and justification behind the current thinking of many smoke-free advocates. I think it significantly sets back the effort to provide a smoke-free working environment for all employees.

Third, I think this has implications for the appreciation of the free market system. It is, in my mind, an abuse of the free market system to intervene in such a frivolous and irrational way. It is disrespectful to the free market concept. And ultimately, while I personally believe that the degree of the secondhand smoke hazard is severe enough to warrant the elimination of the hazard in all workplaces, I think this is going to make it much more difficult to convince policy makers in the future that we as tobacco control practitioners have a decent respect for the need to justify intervention into the operation of private businesses.

I think public health advocates should be outraged at the actions of the D.C. City Council, not applauding the Council and claiming this to be some sort of victory for the principle of protecting the public's health, as several anti-smoking groups have done.

It is really only one person - Carole Schwartz - who in my mind comes out of this circus with any respect. At least she has the fortitude to stand up for what she believes and to take a position that is consistent with her stated beliefs.

For the rest of the City Council, and for at least some of the anti-smoking groups that appear to be celebrating this non-public health policy, one has to question whether they indeed have the courage to actually stand up for what they believe, given all the propaganda they have thrown about for the past months.

I think it's time that public health advocates and policy makers start demonstrating some integrity and conviction.

As New York Yankees owner George Steinbrenner once said: "Either lead, follow, or get the hell out of the way!"

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