Against Restaurant Smoking Bans

Like a regulatory tidal wave, smoking bans are sweeping the nation. When D.C. goes smokeless in January, it will join 18 states and 474 municipalities that have imposed smoking bans on restaurants, bars, and other workplaces.

Proponents of smoking bans contend that they address the "negative externality" smokers impose upon nonsmokers, shape individual preferences against smoking (thereby reducing the incidence of smoking), and alleviate the health risks associated with exposure to environmental tobacco smoke or "ETS." Considered closely, though, each of these arguments fails to justify the government-imposed restrictions.

EXTERNALITY First consider the externality argument. Negative externalities are costs that are borne by people other than the cost-creator -- for example, the smoke a factory foists costs onto its neighbors. Such externalities often give rise to injustices (third-parties are victimized by the conduct at issue) and inefficiencies (there's an excessive level of the activity at issue, because the party doing it captures all the benefit, but not all the cost, of his conduct). Accordingly, governmental restrictions may be desirable as a means of avoiding injustice and inefficiency.

Ban proponents contend that indoor smoking imposes externalities on the nonsmoking patrons and employees of public establishments and is therefore an appropriate target for government regulation. But that's not right. When it comes to indoor smoking (as opposed to pollution outdoors), there is a single individual who ultimately bears the costs and benefits associated with smoke-filled air.

That person is the business owner. If he permits overly dirty indoor air, he'll tend to lose business unless he somehow compensates aggrieved patrons with lower prices and/or more attractive products. Similarly, he'll lose irritated employees unless he pays them some premium for working in smoke-filled air. A vast body of empirical evidence demonstrates that employers must routinely pay this sort of risk/inconvenience premium to their workers. Thus, no patrons or employees are victimized (they're compensated for the inconveniences they agree to suffer), and we needn't worry about an inefficient level of smoking. The owner has every incentive to select the level of air quality that maximizes the welfare of his patrons and employees -- many of whom may desire smoking-permitted space.

PREFERENCE-SHAPING Ban proponents' "preference-shaping" argument contends that smoking bans are justified as means of changing individuals' preferences away from smoking. The idea is that smoking bans stigmatize smoking, making the behavior "costlier" and thereby reducing its incidence.

This argument rests, of course, on an extraordinarily slippery slope: Is it appropriate for the government to limit individuals' rights in order to "shape preferences" regarding, say, fat consumption? Moreover, the strategy may backfire.

A large percentage of smokers acquire the habit at a young age, and they frequently do so because smoking is "cool." Smoking is cool, of course, because it's rebellious. The harder anti-smoking forces work to coerce people into stopping smoking, and the more they engage the government and other establishment institutions in their efforts, the more rebellious -- and thus the cooler -- smoking becomes. Smoking bans may therefore have the perverse effect of enticing young people to smoke.

RISK Finally, ban proponents seek to justify sweeping smoking bans, regardless of whether externalities are present, simply as a means of reducing the risks associated with ETS inhalation. Citing a recent report from the U.S. surgeon general, ban advocates maintain that ETS exposure poses significant risks that justify intrusive regulations. Examined closely, though, the surgeon general's "scientific" report cannot support imposition of sweeping smoking bans.

In releasing his ETS study this past June, Surgeon General Richard Carmona proclaimed that "there is no risk-free level of exposure to secondhand smoke" and that "even brief exposure to secondhand smoke has immediate adverse effects on the cardiovascular system and increases risk for heart disease and lung cancer."

The problem is, that's not what his study actually concluded. The report was a "meta-analysis" that combined the results of a number of previous studies, and those studies considered only chronic, long-term ETS exposure. The raw data covered in the report thus doesn't address the risk of short-term exposure that is the subject of Carmona's hyperbolic statements -- statements that conflict with the toxicology conventional wisdom that "the dose makes the poison."

Moreover, the report itself, which covered only studies published through 2002, ignored perhaps the largest ETS study ever conducted -- a 2003 study that followed, from 1959 to 1998, the health histories of more than 35,000 never-smoking Californians who were married to smokers. The authors found no "causal relationship between exposure to (ETS) and tobacco-related mortality," though they acknowledged that "a small effect" cannot be ruled out.

But even if the surgeon general's report is accepted on its face, it still does not provide sufficient support for government-mandated smoking bans. The report purports to find a 20 to 30 percent increase in cancer and heart disease risks for nonsmokers after chronic ETS exposure. While those numbers sound large, nonsmokers' risks of cancer and heart disease are quite small to begin with, and even with a 20 or 30 percent increase, those risks remain quite small. They hardly justify preempting people's right to choose to accept those risks and patronize a smoking-allowed establishment.

CONCLUSION The case for smoking bans thus fails. Contrary to ban advocates' claims, the costs of smoking's externalities are ultimately borne by the owners of smoking-allowed establishments who, as a group, have incentives to efficiently accommodate smokers and nonsmokers. Efforts to shape people's preferences regarding smoking run into individual choice issues and may be counterproductive. Scientific evidence on the risk of ETS may be overstated and never addresses the important point that some people are willing to take that risk.

A better approach would be a hands-off policy permitting business owners to set their own smoking policies. Motivated by the pursuit of profits, the owners would have the proper incentive to maximize social welfare. The market would be far more likely than government regulation to accommodate the various preferences of nonsmokers and smokers alike.

Thomas A. Lambert is associate professor of law at the University of Missouri School of Law. His article "The Case against Smoking Bans" will appear in the winter issue of the Cato Institute's Regulation Magazine.