Smokers huddled furtively around the entrances to office buildings have become a common sight since 1993, when the Environmental Protection Agency issued a controversial report declaring secondhand tobacco smoke to be a Group A Carcinogen. In response to the EPAs claim that 3,000 nonsmokers die of lung cancer every year from unwanted exposure to environmental tobacco smoke (ETS), state and local governments nationwide enacted ordinances banning or restricting smoking in many public places, including places of work, restaurants and other retail establishments. California went so far as to prohibit smoking in bars beginning last New Years Day.
The burden of complying with these regulations has fallen most heavily on small businesses, which usually face the choice of banning smoking altogether or investing in costly smoke-removal equipment. The restaurant industry alone has spent millions to reduce ETS and has lost millions more in revenue from customers who have either refused to wait for a table to become available in the smoking section or have simply decided to eat at home.
Now comes news that the governments science on secondhand smoke was second rate. On July 17, a federal judge in North Carolina ruled that the EPA had committed numerous scientific and procedural errors in concluding that exposure to ETS adversely affects the health of nonsmokers. Working to a predetermined agenda, the agency selectively disregarded relevant information, deviated from its own risk assessment guidelines after it became clear that the evidence supporting its foregone conclusion did not meet standard levels of statistical significance, and ignored contradictory views of its own risk assessment experts. The EPAs report linking ETS to lung cancer in nonsmokers, in short, was not based on sound science, but was rigged to push a particular politically correct point of view.
Although EPA Administrator Carol Browner was quick to protest the decision, implying that a North Carolina court would be inclined to be friendly to the tobacco industry, the judge who invalidated the agencys 1993 report was in fact the same judge who last year won plaudits from antismoking activists by ruling that the Food and Drug Administration has the authority to regulate cigarettes as a drug delivery devicea ruling that was recently overturned on appeal.
While it is unlikely that there will be a rush to repeal smoking restrictions currently in place, the July 17 decision sharply questions whether these regulations have a legitimate scientific basis. Anyone advocating rules restricting or prohibiting smoking in public places can no longer seek justification in the EPAs unsupported assertion that ETS causes cancer in nonsmokers.
Many people still find environmental tobacco smoke annoying, though, even if it doesnt have the alarming health consequences the EPA claimed. What is to be done? Instead of one-size-fits-all regulations that mandate the same smoking policy for every public place, the solution is to allow the owners of these places the freedom to choose the rules that best accommodate the smoking preferences of their employees and customers. Unlike government bureaucrats, private property owners have powerful incentives to see that indoor air quality is maintained at desired levelsand to achieve that goal at the lowest possible cost.
Who knows better than a restaurants owner, for instance, the smoking policy that is best for his or her own establishment? Taking account of the smoking preferences of patrons and workers as well as the benefits and costs of alternative ways of indulging those preferences, some restaurateurs may ban smoking throughout their places of business, others may seat smokers and nonsmokers in separate dining areas, and still others may place no restrictions on smoking. The point is that the establishments owner is in the best position to judge how large the smoking area, if any, should be, how the physical separation of smokers and nonsmokers should be achieved, how much to invest in air cleaning and ventilation equipment, and so on. Failure to adopt the right policy will cost the owner money in lost sales and make it more difficult to hire and retain productive workers.
The good news is that there seems to be no scientific basis for treating environmental tobacco smoke as a carcinogen. The bad news is that inflexible, burdensome regulations continue to prevent the reaching of practical and reasonable solutions to ETS based on respect for individual preferences and for varying circumstances of time and place.
|William F. Shughart II is a Research Director and Senior Fellow at The Independent Institute, J. Fish Smith Professor in Public Choice in the Jon M. Huntsman School of Business at Utah State University, and editor of the Independent Institute book, Taxing Choice: The Predatory Politics of Fiscal Discrimination.|