Views from the world

Warning : The Tobacco Settlement Is Dangerous to Your Liberty

Robert A. Levy — 2007-03-06T20:54:18Z

The tobacco settlement is a shameful proposal, extorted by public officials who have perverted the rule of law to tap the deep pockets of an unpopular industry. In a 68-page "Proposed Resolution," the industry agreed to pony up $370 billion, submit to Food and Drug Administration regulation, and rein in certain sales and marketing practices. In return, tobacco companies will be exempt from punitive damages for past conduct and immune from new class action lawsuits.

Part of the monetary settlement is to fund kids' health insurance, anti-smoking campaigns, even programs to help kick the habit. But why should tobacco companies be responsible for these crusades ? After all, cigarettes are legal ; the choice to smoke is freely made. Claims that some consumers are hopelessly addicted, having relied on fraudulent information and deceptive advertising, must be proven in a court of law. Those claims cannot be resolved by legislative fiat or by negotiation at gunpoint. And to hold a single industry financially liable because some families are unable or unwilling to insure their offspring is quite simply intolerable.

Moreover, there is no justification whatsoever for the largest component of the monetary settlement, reimbursement of state Medicaid outlays. To fatten their own coffers, states have sued to recover expenditures for Medicaid recipients with "tobacco-related diseases" — without even showing that an injured party smoked, or that smoking caused his illness. Furthermore, authoritative studies have concluded that excise taxes on cigarettes already exceed public costs attributable to smoking.

If the tobacco industry were the only victim of this settlement, that would be bad enough ; but the unhappy prospect is yet more incursions by a nanny state with an insatiable appetite for social engineering. Under the Proposed Resolution, the FDA can ban nicotine after the year 2009, more conspicuous warnings will appear on each pack of cigarettes, and smoking will be prohibited in most public and work places. Right around the corner are similar restrictions on alcohol, diet drinks, dairy products, fast food — you name it. And once the state gets its nose into our business, we should not be surprised at pernicious side effects, including a flourishing black market and rampant crime.

The proposed settlement also contains draconian restrictions on advertising and merchandising. Vending machine sales are prohibited. Text-only, black-and-white ads are the rule. Billboards are proscribed. Joe Camel and the Marlboro Man are history ; no more merchandise with tobacco logos ; no more sponsorship of athletic events.

It doesn't take a constitutional scholar to conclude that these rules are ridiculous. We protect gangsta rap from the censors, for example, despite its message to youngsters that the drug culture is admirable and killing police officers is a pleasurable recreational activity. Yet if Tiger Woods shows up wearing a Joe Camel tie tack, our speech guardians will see to it that R.J. Reynolds is prosecuted. Will the Budweiser frogs be next to croak ? Shall we muzzle Red Dog beer ads ?

Even if we believe that tobacco companies have targeted underage prospects, they clearly have not accomplished their objective. Over the 1985-95 decade, during the heyday of Joe Camel, the percentage of kids aged 12-17 who smoke dropped from 29 percent to 20 percent, with even steeper reductions among minorities. Longer term, the average age of first-time cigarette users has neither advanced nor declined from 1962 through the latest 1994 data. Some ads may have succeeded in gaining brand share, but they have been singularly unsuccessful in expanding the overall market.

Make no mistake, dollars and cents — not health issues — are the driving force behind the settlement. Both federal and state governments opt for financial health over smokers' health when their money is on the line. Facing claims by military personnel for tobacco-related illnesses, Veterans Affairs secretary Jesse Brown told former soldiers to pay their own freight for having chosen to smoke. When sued by a prisoner who was denied a nicotine patch for the habit he developed in a Florida jail, the state insisted it was no more responsible for his purchase of cigarettes than for his "buying a candy bar at the canteen." If that principle renders the government immune from liability, it renders private companies immune as well.

The correct disposition of the "Proposed Resolution" is one that ex-presidential candidate Steve Forbes suggested for the tax code : Kill it, drive a stake through its heart, bury it, and start over. Disputes between private parties cannot be resolved in secret negotiations involving defendants who have the boot of government pressing on their necks, state attorneys general who seek to replenish their Medicaid coffers without fiscal discipline, contingency fee lawyers who wield the sword of the state while retaining a financial interest in the outcome, and advocacy groups that have subordinated the rule of law to their health concerns, however well-intentioned. Our courts, not our legislatures, are constituted to deal with these matters ; but they can do justice only if the rule of law — objective and evenhanded — is scrupulously applied.

The liberty problem

Cervantes — 2007-03-06T20:54:16Z

Yesterday's post invokes a much broader, indeed nigh ubiquitous problem in public health, which is the tension, perceived or real, between promoting the general welfare, and liberty, which is a right that pertains to the individual. (Of course, one way to look at it is that individual liberty is part of the general welfare, so we are really talking about trying to balance competing welfare interests. I note this only to avoid getting bogged down in semantics.)

As it happens, this problem turned out to be a salient one in my weekly reading of medical journals this morning. In NEJM, James Colgrove discusses compulsory vaccination, in the specific context of the new HPV vaccine. In JAMA (subscription only, you inferior riff raff), David Kindig, in a somewhat puzzling essay, discusses the idea of a "pay-for-population health performance system."

As we have noted here before, there is something of a social movement challenging compulsory vaccination. 48 of the states allow parents to opt out on religious grounds, but many people campaign for other exemptions, some on philosophical grounds -- a simple assertion that liberty has priority, or a vaguely justified preference for "natural" or "alternative" methods -- and some maintaining that the consensus on the benefits of vaccination is factually incorrect. (Viz. the vaccines and autism scare.) The argument for compulsory vaccination does not have to depend on paternalism, however, because of what is called "herd immunity." If enough people are vaccinated, then people who cannot receive vaccinations due to medical contraindications, or who happen to be missed (such as recent immigrants or poor children who are historically at disproportionate risk of not being vaccinated) are protected. Hence your liberty to refuse vaccination may deprive someone else of liberty from sickness.

In the case of Human Papilloma Virus vaccine, however, this argument is somewhat attenuated, because HPV is a sexually transmitted infection, not transmitted by casual contact. Some parents believe they can teach their children to be abstinent until they enter a monogamous, lifelong marriage with a (presumably) similarly chaste partner. Therefore their daughter has no need for HPV vaccine and giving it to her undermines their moral authority. Of course, my response is that they are very likely to find they are mistaken in their expectations, but that's an empirical question.

Kindig's essay takes off from the movement to "pay for performance" in health care, in which doctors (or hospitals) would be paid more for following standards of care. He is interested in extending this concept to social determinants of disease, such as environmental quality, diet, etc., but the obvious question is, "Pay whom?" He never gets around to making that clear. But the relevance here is that so far, the effective methods we have found for promoting population health are mostly restrictive of liberty, or at least that's what their opponents say.

Smoking bans in public places, laws against drinking and driving, sanitary codes (e.g., you can't build a house without an approved septic tank, or linking to a sewer system and paying a monthly bill), health codes for restaurants and grocery stores, required food labeling, banning junk food in schools, banning advertising junk food to children -- all of these forbid some action, or require people to do something they might not want to do. Hence libertarians are skeptical, if not outright opposed, to many such measures.

It's easy to see that there is another side. The smoking ban in Boston has liberated me to go to restaurants and pubs without having to breathe toxic tobacco smoke. It's worth even more to the people who work there. Sanitary codes liberate us all from cholera and stench, and liberate our waterways from eutrophication and oxygen depletion. Labels on food products liberate me by giving me the power to choose what I want to put into my body. Etc. The point is that the liberty interest is almost never clear or straightforward, it is always a problem of balancing.

And therein lies the essential difference between liberalism and libertarianism. Liberals recognize that the state is not the only entity that can deprive us of liberty. So can business corporations, bullies, and just plain other folks who are careless or indifferent to other people's well being. We need civic order, organized by the state, to find our way through the intricacies of these tradeoffs.

The Economics of Smoking

Pierre Lemieux — 2007-03-06T20:54:15Z

Although the Greeks have one of the highest per capita tobacco consumption rates in the world, their country shows a relatively low incidence of lung cancer. In an obscure annex to its famous 1992 anti-smoking report, the Environmental Protection Agency explains this paradox by high fruit consumption in Greece. Why, asks British philosopher Antony Flew, did EPA bureaucrats not recommend that smokers eat fruit instead of foregoing tobacco ? Yet, in general, the medical literature strongly supports the hypothesis that smoking is dangerous for the smoker's health. Let us take this conclusion for granted. Now, why does one fourth of the population continue to smoke ?

All human activities carry costs that have to be weighed against their benefits. Risk to limb or life is merely a type of cost that will occur with a probability lower than one but higher than zero. Economist Kip Viscusi reports that, in the U.S., the annual death risk from motor vehicle accidents is 1/5,000. In France, 115,000 skiers are injured every year, and more than 50 killed. In a typical year, 390 Canadians drown, and 5 are killed by lightning. Individuals presumably take risks into account when they make choices. They believe that the pleasure of driving, skiing, swimming, or walking outweighs the risk ; otherwise, they don't engage in such activities.

Why does the state try and persuade individuals to quit smoking, but not skiing ? Why do we hear about the "social cost of smoking"—$130 billion per year in the U.S., according to a 1998 Treasury study—but not about the social cost of driving or swimming ? What do we mean by "social cost" ? We shall see that, on these issues, economists generally arrive at conclusions opposite to those of the Public Health approach—i.e., the approach of the medical specialists and government organizations of which we hear so much in popular discourse and the media.

Economics Versus Public Health

Before we look at the main Public Health arguments and the economic counter arguments, let's have a first look at how the two approaches differ on the basic concepts of benefits and costs.

Economics starts with subjective individual preferences. Individuals who smoke tobacco reveal that they gain net "utility" (or satisfaction) from this consumption. The risky character of many activities—whether smoking, driving cars, or skydiving—does not change this conclusion, as the demand that each consumer brings to the market includes his estimates of such non-price costs. Economic theory demonstrates that, given certain conditions, free markets are efficient ; i.e., they lead to the socially optimal allocation of resources.

The Public Health school adopts a radically different methodology. Starting from the observation that smoking is bad for the smoker's health, it goes on to conclude that individuals do not derive benefits from smoking. Anti-smoking activist Scott Ballin asserts that "There is no positive aspect to [smoking]. The product has no potential benefits."

Not only does the Public Health school neglect subjective benefits of smoking, as evaluated by each individual, but it often reveals a confused notion of cost. This was especially obvious in the Public Health literature of the 1970s and 1980s, which assumed that costs of smoking-related illnesses were of the nature of a "social cost," borne by "society as a whole." Typically, 75% of the so-called "social cost" of smoking was made of incomes lost by ill or deceased smokers.

Now, if we consider, like economists, that "society" does not own individuals, such costs are private costs to smokers, not "external costs" transferred to others. Each individual deducts these costs from his subjective benefits before making his consumption choices. It would be double counting to add them again to social costs.

The Transfer Argument

Not all Public Health arguments were so simplistic. A more serious one was related to what economists call "transfers," i.e., subsidies between different groups in society. The transfer argument claimed that health care costs of treating smoking-related diseases was partly supported by non-smokers and, hence, amounted to a forced subsidy to smokers. This claim implicitly relied on the fact that health care has been more or less nationalized ; otherwise, smokers would have to pay for their self-imposed diseases, possibly through higher private insurance premiums. Now, public health insurance regimes have been set up with the avowed objective of operating a redistribution from the healthy to the sick ; in fact, the whole Welfare State is based on cross-subsidies between social groups. It would seem a perversion—if not a totalitarian slippage—of the system to single out certain groups who happen to be on the receiving side.

Consider, for a moment, the similar cases of alcohol and sedentary lifestyle (i.e., lack of physical exercise). Research has shown that alcohol consumption transfers net costs to the rest of society because it is often a causal factor in automobile accidents and violent crimes. Yet, forcing the drunk to bear responsibility for the costs they impose would seem to be a more appropriate response than prohibition for everybody. As for sedentary lifestyle and obesity-related diseases, economists Willard G. Manning, et al. write : "Surprisingly, the lifetime external costs of a sedentary life-style are actually higher than the external cost of smoking. ... We estimate that lack of exercise imposes external costs of 24 cents for every mile that sedentary people do not walk, jog, or run." The fact that not doing something might impose "costs" on others illuminates the troubling implications of this kind of transfer argument.

In the case of smoking, anyway, the transfer argument is empirically false. Economists who looked at the figures in many countries (including Robert Leu and Thomas Schaub in Switzerland, Willard Manning in the U.S., Raynauld and Vidal in Canada, and Jean-Jacques Rosa in France) discovered that net transfers go the other way around if one factors in tobacco taxes paid by smokers plus the savings that their early deaths brings to public pension plans and other kinds of old-age care. Not only do smokers pay their way, but they actually subsidize non-smokers. Interestingly, Public Health activists have turned this defeat to their advantage : they now argue that this is simply "not the kind of calculation that a civilized society engages in," as MIT Prof. Jeffrey Harris puts it.

The World Bank's Arguments

After the economists' analytical assault, the case for smoking regulations seemed pretty thin in the early 1990s. Then, a new argument was proposed by World Bank economist Howard Barnum. It relied on welfare economics, a field of neoclassical economic theory designed to show that "market failures," created by external costs or other types of "externalities" (phenomena that bypass the market), prevent free markets from maximizing social welfare. The welfare-economics argument against smoking has since been refined by other economists working with the World Bank, and has provided the intellectual basis for the Bank's 1999 report on the smoking "epidemic."

The argument runs as follows. Smoking is not like other consumption choices, and the economic presumption of market efficiency does not apply. This is because, as the World Bank puts it, "many smokers are not fully aware of the high probability of disease and premature death," and because of the addictive nature of tobacco. Consequently, the demand that smokers bring to the market does not represent the true benefits of tobacco for them. Externalities transform what would be private risks and costs of the smoker himself into social costs. Reducing tobacco consumption (or eliminating it, in the original Barnum version) would increase net social benefits.

The first question is whether addiction really take over the free will of its impotent victims. Statistics show that half of non-smokers are former smokers, which suggests that quitting is not infinitely costly. Many smokers claim that they would like to quit, but that they are unable to. Words are only words and, in the economist's eyes, an actual choice to smoke reveals that, all costs and advantages being considered, this is what the smoker prefers to do. Analogously, notes Kip Viscusi, half the residents of Los Angeles claim that they would like to move out, but never do. There is much everyday evidence that one is "addicted" to tobacco because one likes it, not the other way around : many former smokers start again months or even years after any withdrawal symptom has long gone away, and smokers prefer a cigarette to nicotine gum or patches.

Moreover, the theory of "rational addiction", developed mainly by Gary Becker, a Nobel Prize-winning economist, has brought addictive behavior into the realm of rational choice. An addictive good is defined as one whose utility is a function of previous consumption : the more you have consumed, the better you are likely to appreciate it—like for alcohol, drugs, music, television, or religion. Individuals become addicted to something because, given their own circumstances, they judge the benefits higher than the costs, including possible withdrawal costs. One can test the rational addiction theory by testing whether addicts take future prices into consideration in their current demand for the addictive good (as a rational individual would, because he can get hooked into paying higher future prices). Indeed, it has been found that smokers are more responsive to long-term price changes.

The second basis of the World Bank argument lies in the assumed imperfect information about smoking risks. This is contradicted by research showing that American smokers actually overestimate the risks of smoking, compared to the claims of Public Health specialists themselves. While the smoker's risk of getting lung cancer during his life is estimated at around 10% in the scientific literature (much higher than the nonsmoker's risk), opinion polls show that the public's assessment of this risk is at least three times higher. Moreover, if perfect information may be a convenient assumption in formal neoclassical models, it is not an economic ideal as long as information is costly ; i.e., as long as producing or gathering information requires the use of real resources including time, the scarce resource par excellence. The rational consumer will obtain additional bits of information only as long as their advantages are higher than their costs. This is why the typical consumer doesn't get a degree in mechanics before choosing a car, or a Ph.D. in electronics before buying a computer.

Secondhand Smoke and Property Rights

So far, so good : smokers only "hurt" themselves. (This is only a way of talking since they obviously expect to derive more benefits than costs from smoking.) But what about secondhand smoke ? Assuming that secondhand smoke imposes inescapable "external (health) costs" on third parties, most economists (a least in the neoclassical tradition) would consider this as a real case of market failure, which calls for government intervention.

There is a double catch here. First, the health hazards of secondhand smoke may well turn out to be the hoax of the twentieth century. Regarding the 1992 EPA report that classified secondhand tobacco smoke as a "Group A carcinogen," U.S. District Judge William Osteen wrote, in a recent decision : "The court is faced with the ugly possibility that EPA adopted a methodology for each chapter, without explanation, based on the outcome sought in that chapter. ... The record and EPA's explanations to the court make it clear that using standard methodology, EPA could not produce statistically significant results with its selected studies" (Flue-Cured Tobacco Cooperative v. EPA, No. 6:93CV00370 at 60, 77, M.D.N.C. July 17, 1998).

The second point is that, even if secondhand smoke did cause a risk of disease to non-smokers, private property rights would solve the problem better than regulations or prohibitions. Take the example of restaurants. In order to maximize his profits, a restaurant owner must mediate between the demands of customers who want to smoke, and of those who do not wish to have smokers around. Depending on his clientele, on how much they are willing to pay to have their preferences catered to, and on the costs of satisfying them, the owner will decide to which extent he will segregate his customers. The market will show its usual diversity, with non-smoking, smoking-only, and dual-section restaurants. Non-smokers who do not wish to be exposed to secondhand smoke will give their patronage to non-smoking restaurants. Similarly, people who don't like to be punched don't climb on boxing rings, and people who want a zero risk of being hit by an avalanche or a fellow skier don't patronize Alpine ski resorts.

Is Government Perfect ?

If what we have said is right, it appears that, even in the worst possible scenario—i.e., smoking harms smokers' and nonsmokers' health—economics cannot justify regulation of smoking, at least on private properties. Yet, an objection remains : in the real world, markets do not work perfectly. We have returned to the market-failure argument.

Suppose that there are, indeed, unredeemable market failures. It would still remain to be proven that government intervention would succeed in correcting them at an acceptable cost, including the loss of individual liberty. There is no point in comparing imperfect markets with perfect government. Yet welfare economists traditionally do just that.

The main thrust of the Public Choice school of economics has been to show that government failures are often worse than market failures. Incoherent policies are one manifestation of government failures—when, for example, government subsidizes tobacco farmers while trying to reduce tobacco consumption. Public policy is more an outcome of pressure group politics and bureaucratic incentives than a product of enlightened welfare economists.

Regulation against smoking is not only a theoretical debate. In most Western countries, smoking is legally prohibited, or regulated, on private properties—not yet in people's private homes, but in many private places open to the public, like restaurants, shopping centers, or workplaces. Laws—and the armed men that ultimately enforce them—not only prohibit businesses from mixing smokers' and nonsmokers' accommodations, but also from offering smoking-only restaurants or smoking-only flights.

Most economists are opposed to regulating adult smoking because economics shows how markets are generally more efficient than political and bureaucratic processes. On the contrary, the Public Health school expresses a heavy prejudice in favor of coercive government intervention. There are some economic arguments for government regulation of smoking, but they resort to the most questionable aspects of welfare economics, and assume that bureaucrats and politicians are disinterested and omniscient. History suggests that, between imperfect markets and imperfect governments, liberty and prosperity side with the former.

Ideas for Further Readings

The EPA report that had a major impact on the smoking debate and smoking regulation is Respiratory Health Effects of Passive Smoking : Lung Cancer and Other Disorders (Washington, DC : December 1992).

A good layman's introduction to the economics of smoking can be found in Robert D. Tollison and Richard E. Wagner, The Economics of Smoking (Boston : Kluwer Academic Publishers, 1992). My little book Smoking and Liberty : Government as a Public Health Problem (Montréal : Varia Press, 1997) provides a non-technical account of surrounding issues. The reader may also want to look up my review of Jacob Sullum, For Your Own Good. The Anti-smoking Crusade and the Tyranny of Public Health (New York : Free Press, 1998), in The Independent Review 3 (Winter 1999), 8-13, available at http://www.pierrelemieux.org/artsullum.html.

Many references to the Public Health literature of the 1970s and 1980s can be found in A. Markandya and D.W. Pearce, "The Social Cost of Tobacco Smoking," British Journal of Addiction 84 (1989), 1139-1150. Journals of the Public Health school include the New England Journal of Medicine, the Journal of the American Medical Association, and Tobacco Control.

The transfer debate has been settled by Willard G. Manning, Emmet B. Keeler, Joseph P. Newhouse, Elizabeth M. Sloss, and Jeffrey Wasserman, The Costs of Poor Health Habits. A RAND Study (Cambridge : Harvard University Press, 1991).

The main studies by the World Bank, or economists associated with it, are : Howard Barnum, "The Economic Burden of the Global Trade in Tobacco," Tobacco Control 3 (1994), 358-361 ; Iraj Abedian, Rowena van der Merwe, Nick Wilkins, and Prabhat Jha, eds., The Economics of Tobacco Control. Towards an Optimal Policy Mix (Cape Town : University of Cape Town, 1998) ; and the World Bank report, Curbing the Epidemic : Governments and the Economics of Tobacco Control (Washington, DC : World Bank, 1999). A technical analysis of the World Bank's welfare argument is given in my La Banque mondiale et le coût social du tabac, paper presented at the "Individual Choices and Liberty Seminar," Université du Québec à Hull, January 14, 2000, available at http://www.uqah.uquebec.ca/lemieux/en/papers.html, and at http://www.pierrelemieux.org/lemieux_bm.pdf.

The rational choice approach in the social sciences as well as the Beckerian theory of rational addiction are discussed in Alan E. Woodfield, The Rational Approach to Consumer Risky Choices, paper presented at the "Individual Choices and Liberty Seminar," Université du Québec à Hull, December 10, 1999, available at http://www.uqah.uquebec.ca/lemieux/en/papers.html. Gary Becker's original work is presented in a more technical article : Gary S. Becker and Kevin M. Murphy, "A Theory of Rational Addiction," Journal of Political Economy 96 (August 1988), 675-700.

W. Kip Viscusi's path-breaking work on smokers' risk and information include his article "Do Smokers Underestimate Risks ?," Journal of Political Economy 98 (1990), 1253-1269, and his book Smoking : Making the Risky Decision (Oxford : Oxford University Press, 1992).

Coalition rekindles fight over smoking

Matthew Graham — 2007-03-06T20:54:15Z

“It has affected my livelihood,” said Joel Thiel, owner of Otto's Corner Bar and Grill at the corner of Eighth and Walnut streets. “In the past month, we've seen our Monday through Thursday night numbers drop by half.”

Jackie Cockrell, owner of the Bull Pen Cafe, said her business has been hurt because patrons have started going to nearby bars outside the city limits.

“I feel like it's just not fair for them to walk in here and do this to us because this is our bread and butter,” Cockrell said.

The Boone Liberty Coalition, which formed to fight the ordinance's initial passage and is leading the fight to repeal it, is relying on the businesses to collect the 2,265 votes needed by March 30.

If they collect the necessary number of signatures, the council will have two options: to immediately vote to repeal the smoking ban or to let the petition sit for 30 days. After 30 days, the ordinance would be put to a public vote in the city's next general election.

The smoking ban was passed by the City Council by a 4-3 vote on Oct. 9 and it took effect on Jan. 9.

Gary Kespohl, who is running for the Third Ward council seat to be vacated by Bob Hutton, said that because the ordinance is so controversial, he would probably like to see it put to a public vote. Doing so, he said, would give the businesses, council and patrons until November to decide.

“I think they ought to give (the ordinance) a chance,” Kespohl said. “In the cities where they have passed this ordinance and enforce it, it takes about 6 or 8 months for people to really get used to it. I think the customers will come back to those places.”

He also said it's too early to make judgments on the ban's business impact.

“(Business owners) need to give this a chance I think,” he said. “With the weather like it's been, a lot of people aren't getting out at night. And I think that's down-turned that business somewhat. And maybe they should hold off on passing judgment on this until the weather clears up a little bit ... And I don't know that's the reason, but I bet it adds to the downturn.”

Kespohl said he understood arguments on both sides and that it's a difficult balance between civil liberties and the public health. He said he'd have to hear more information before making a solid decision.

Business owners insist the ordinance is an infringement on their rights as private property owners and business operators.

“Our city council — four out of seven — decided for thousands of people what's good for them,” Thiel said. “I'm paying the bills, trying to make a living.”

And while some of the council's concerns when passing the ban focused on the health of employees, bar and restaurant owners said Thursday that the ordinance is having a detrimental effect on workers in another form: money.

“The sales are lower, what your employees will take home in tips now has become even lower,” Thiel said.

The Boone Liberty Coalition is trying to collect data from individual bars and restaurants in order to show the economic impact of the ordinance. Schultz said the numbers will not be given to the City Council in their entirety, but will be analyzed by an economist in their group and presented as a whole.

Liberty cannot be sacrificed in the name of public health

Michael Hugman — 2007-03-06T20:54:13Z

You're awakened to the sound of furious pounding on your door.

“This is the police, permission to enter!”

The voice seems loud enough to wake the neighborhood. You look at your alarm clock - 6:15 A.M. - and you wonder what on earth is going on. You stumble towards the door and open it, only to be greeted by a dozen black-garbed men with submachine guns. They quickly set you aside and begin rummaging through everything you own. One of the officers spots several cigarette butts in an ashtray on your kitchen table, and places them in a plastic bag labeled “Evidence.” Before you know it, you're headed to the local police station in handcuffs. The following day, the police blotter in the local newspaper reads, “local citizen charged with class 1 misdemeanor for possession of tobacco.”

Does that situation sound too ridiculous to ever happen? It should. But think about it: the police already conduct raids that are just like the one I described. Except they're for marijuana. Actually, I witnessed one while I was on my way to the bus stop one morning a couple months ago.

Now consider the fact that cigarettes are more harmful than marijuana, and considerably more addictive. Also consider the fact we seem to be experiencing the beginning of a war on tobacco, with bans on smoking in public places cropping up everywhere. Does the situation I described seem so farfetched now? I really see it happening 10 or 20 years into the future, if current trends continue.

Of course, I'm not saying that all the people who want to ban smoking in restaurants, bars and workplaces actually want to ban smoking entirely. But the problem is that the ban on smoking in those so-called “public” places (they're actually private property) is a slippery slope towards a total ban. That is because the people arguing against smoking in those places are arguing as if saving lives is more important than anything else - including freedom.

If you take that argument to its logical conclusion, then we'd have to outlaw alcohol (kills 80,000 Americans per year), obesity (300,000 per year) and finally, tobacco (400,000 per year).

I'm not sure if I believe the numbers are actually that high, but regardless, people die because of those things. If life was the overriding value, then we'd have to round up all drinkers, the obese and smokers, put them in camps, and “reeducate” them so that they would live healthier lifestyles.

I don't really think we want that. What we need to do instead is recognize that a wide range of things are valuable, including life, freedom, and happiness. And we also need to recognize that we are not omniscient, and our values aren't necessarily the same as other people's values. Therefore, we shouldn't act like we're doing “good” by imposing one value on everyone.

Rather, we should let people make their own value judgments as much as possible. If someone judges that smoking is more valuable than avoiding health problems down the road, then we shouldn't interfere if we respect him or her as an autonomous person. The freedom to choose may very well result in people choosing dangerous activities that eventually kill them. So be it.

When you hear a statistic like “Tobacco kills 400,000 Americans per year,” remember that tobacco isn't jumping out of bushes and killing people that walk by at night. People choose to smoke tobacco, and they choose to accept the health risk (which is well known by now). You may try to convince these people to change, but you may not force them to change.

Unfortunately, many of the people involved in government and public health haven't realized that yet. Our current Surgeon General, Richard Carmona, has stated that he supports a ban of all tobacco products. Also, about 25 states have some sort of ban on smoking in restaurants, bars, workplaces or other “public” areas. A number of public health groups are working right now to make Virginia a “smoke-free” state.

A lot of what is happening is due this claim: smoking doesn't just kill smokers but also other people with second hand smoke. That claim sounds so plausible that even I used to believe it. The problem is that it's unproven. You can cite all the studies you want that “show” that SHS kills, and I can tell you why they have problems. The most fundamental problem with them is that most claim a relative risk from SHS of about 1.3.

A relative risk of 1.3, in theory, means that living with a smoker all your life increases your risk of getting cancer by about 30%. In reality though, a relative risk below about 2 or 3 doesn't mean anything at all. According to the National Cancer Institute, “In epidemiological research, relative risks of less than 2.0 are considered too small and difficult to interpret. Such increases may be due to chance, statistical bias, or the effect of confounding factors that are sometimes not evident.”

In addition, the 1.3 is for people who live with a smoker all their lives. For people who are exposed to a little smoke in restaurants and bars on weekends, I think we can safely assume that the increase in risk of getting cancer is zero. SHS, therefore, is a non-issue.

We need to reverse this disturbing trend towards banning tobacco. Regardless of whether you smoke or not (I don't), you should still care about preserving freedom from misguided people. However good their intentions may be.

Galveston considers a Smoking Ban

Liberty — 2007-03-06T20:54:11Z

It looks like they are going, to make a no smoking ban, but the city council seems open to being a little less restrictive than earlier conciderations according to Daily News.

The city council is planning a town meeting on a proposal to ban smoking in bars, restaurants and other public spaces.

However, council members made clear Thursday they are likely to settle for an ordinance that does considerably less.

They hope to use public comments from a meeting next month to fashion an ordinance.

Months ago, the council began tossing around an ordinance banning smoking indoors in all public spaces.

But as members began hearing from business owners and others, they began to soften their stance.

“"I think having a zero-tolerance policy would be harmful to some small businesses",” Mayor Lyda Ann Thomas said Thursday.

Councilman Danny Weber said: "“I think a total ban is a bad idea at this point in time."

Most of the other members of the council said they agreed.

Except Jackie Cole.

"“Less than 20 percent of the population smokes,"” she said. "“So you''ve got 80 percent of the population, — if they choose to go out, they have to be exposed to this."”

Thomas proposed to allow smoking in stand-alone bars. In restaurants, smoking areas would have to be in areas separated from nonsmoking areas with walls and their own air-handling systems.

"We need to give people time to do this,"” she said.

The rest of the council seemed to agree, but that raised doubts about the necessity of a new ordinance.

"“I don''t know if what you''ve got right now is any different,"” said Assistant City Attorney Mike Miller.

I don't see the need for all of this. If it becomes important to customers, then it becomes important to the proprietors. I don't understand why the bussiness owners can't make these decisions. Those who visit this blog and pay any attention to the little photo on the right hand side, might figure out that I enjoy a good cigar now and then. I won't go to a watering hole if I can't enjoy a cigar with my my beverage. The two just go together for me. Now if a bar doesn't want people smoking in their place of business, thats perfectly fine with me. I just will not go there. If some doesn't like smokey bars or restraunts they shouldn't go to smokey bars or restraunts, let the market dictate. We don't need Mayor Thomas' City council telling busineses how to operate. I do think we need to remember Jackie Cole come election time.

There will be a public meeting at the gymnasium at the Island Community Center, 4700 Broadway in Galveston. 6 p.m. Nov. 1. Its an opportunity to let the city leaders know what you think.

Equality and Liberty : Can We Integrate These Two Concepts ?

Jonathan Dolhenty — 2007-03-06T20:54:10Z

The Greek philosopher, Socrates, once said that the unexamined life is not worth living. With all due apologies to that great thinker, I would like to suggest that unexamined concepts or ideas are not worth having and, in fact, may cause great harm. What do I mean?

The rhetoric is heating up in the political arena these days, particularly since some of the social changes being suggested involve such "basic rights and entitlements" as welfare, Social Security and affirmative action. Underlying these "basic rights and entitlements" are some key concepts or ideas which allegedly justify them and provide the arguments for their existence and promotion. It is these key concepts and ideas that I want to briefly discuss in this article.

The Concept of Equality

The concept of equality appears in the Declaration of Independence in the phrase "all men are created equal." What did that mean to the framers of our government? The clue to the meaning appears in the next phrase: "endowed by their Creator with certain unalienable rights; that among these are Life, Liberty, and the pursuit of Happiness."

The Founding Fathers were not stupid men. They knew that individual persons were not equal in personal characteristics and abilities. They knew that some people were more intelligent than others, some were disabled in some way or other, and some people had artistic or mechanical talents which others lacked in significant ways.

What was meant by the concept of equality was "equal before God" and "each individual is an end in himself." Each individual is entitled to serve his own purposes and pursue his own objectives. An individual is not to be treated simply as an instrument to promote someone else's purposes.

The men who wrote the Declaration of Independence and the Constitution knew that individuals are not identical to one another. Each person has different values, different capacities, and different tastes. As a result, individuals want to live different lives and they want different things. The concept of personal equality demands that these differences be respected.

Regardless, however, of what particular circumstances one was born into or what specific characteristics one possessed, each individual was "equal before God (or the Creator)." The Founding Fathers accepted this as a basic principle or axiom of American political philosophy.

The concept of equality was further expanded to include "equal before the law." Individuals who are wealthy are not to be treated differently from those who are poor, and individuals who are intelligent or talented are not to be treated differently from those who may be lacking in mental ability or limited in talents, as far as the law is concerned. In other words, each individual stands before the bench of justice on an equal footing. That, at least, is the ideal, regardless of the fact that sometimes that ideal is not reached in some situations.

Eventually the concept of equality expanded even further to include "equality of opportunity." What this meant was that an individual should not be prevented by arbitrary obstacles from using his capacities, talents, and so forth, to pursue his own objectives and goals. This does not mean "identical" opportunities (that is impossible), but simply that one is not denied his right to Life, Liberty, and the pursuit of Happiness, on the basis of birth, color, religion, gender, and so forth.

The concept of equality in the sense of equal before God, equal before the law, and equal access to opportunity, has served this country well. It is the basis for a society of free minds and free markets. It is the cornerstone of the right to Life, Liberty, and the pursuit of Happiness.

Many decades ago the concept of equality was revised, and with disastrous results. The new meaning of the concept of equality became "equality of outcome." The goal of equality under this meaning is "fairness," a radical departure from the traditional concept of equality. And one of the real difficulties with "fairness" is that it is not an objectively determined notion. After all, what is fair? Or what is a fair share?

The most insidious thing about the idea of "equality of outcome" is the extent to which it reduces another key concept in American political philosophy, the concept of liberty. The concepts of equality before God, before the law, and equality of opportunity, enhance liberty. On the other hand, equality of outcome, in the name of "fairness," leads to arbitrariness, subjective determinations, differences in the treatment of individuals, and a general reduction in personal freedom.

If what individuals acquire is determined by "fairness" and not by what they actually do, who is to determine what an individual gets and who is to determine from whom that acquisition comes. It means that those who work hard and produce will have to give up part of their production so that others who may not work and produce will, nevertheless, have a "fair" share of what is produced. It also means taking from those who have earned and giving to those who have not earned. It means everyone finishes the race at the same time, even though some may run faster than others.

This irrational concept of equality of outcome is the foundation for all the policies of the Welfare State. It is the sole justification for forcibly depriving individuals of what they have gainfully earned and giving the fruits of that work to those who have not earned them. Or, in other words, it is the basis for stealing from the haves and giving to the have-nots, simply because they somehow "deserve" a fair share.

We have seen all too well where this concept and the programs it supports has led us as a nation. And so now, finally, after decades of failure, the welfare system and its corolaries are under attack. It is unfortunate, however, that the attack is being made for economic reasons, the high cost of the present welfare system and the fraud it involves, rather than because it has reduced individual freedom and the welfare system is incompatible with the traditional concepts and ideals of the American political philosophy as envisioned by the Founding Fathers.

And that brings us to the next key concept to be discussed.

The Concept of Liberty

Americans have traditionally been proud of living in the "land of the free." Unfortunately, today that should read the "land of the somewhat free." The entire concept of freedom that our Founding Fathers accepted as a principle to guide the new nation they created has been turned on its head.

The change in the concept of liberty that took place was very subtle; so subtle, in fact, that few citizens at the time took notice. Whereas the original meaning of freedom meant "freedom to," the new meaning of freedom meant "freedom from." That slight change in wordage has spawned one of the worst disasters in American history.

The original intent of the framers of the American government was that all individuals would be "free to" pursue their own Happiness, work toward their own goals, and reap the benefits of their hard work. Americans were "free to" speak their own minds, read a free press, create wealth, build businesses, farm the land, raise their children, and so on.

About six decades ago a new concept of freedom was promoted. This was the notion of "freedom from." This notion was based on a number of false assumptions, including the assumption that "security" was paramount as a value. The argument went something like this.

Everyone likes to feel secure. Life is full of insecurities. There are a lot of risks out there in the real world. People need food, shelter, jobs, education, and so forth. None of these things are guaranteed in the normal course of living. So what to do about it? Why, of course, use the government as an instrument to provide security. The government will guarantee food, shelter, jobs, and so on.

But security and "freedom to" are not compatible concepts. The notion of "freedom to" involves risks, such as the risk of failure and the possibility of mistakes and errors. The notion of security includes the idea of "freedom from," freedom from, that is, failures, mistakes, errors, and risks. Eventually, to have "freedom from," an individual has to give up "freedom to." And that's what has been happening in this country. Let me illustrate by pointing out a few recent examples.

According to the proponents of this new concept of "freedom from," everyone should be secure from insults, ethnic jokes, and politically incorrect speech. In fact, a new policy of so-called "hate" crimes has been widely promulgated, partly based on this idea. In order to enforce this new security or "freedom from," what has to go? Well, of course, the "freedom to" speak (or write, or think) whatever is on your mind. Freedom of speech and freedom of press are thereby diminished.

Now let's look at "freedom from want." The proponents of the new concept of freedom argue that everyone should have the basic necessities of food and shelter. In one sense, I agree, everyone should. That is certainly a laudable ideal. I would argue instead, however, that everyone should have the "freedom to" pursue whatever enterprise they desire to provide themselves and their loved ones with food and shelter. The proponents of the new concept may not disagree with that but they argue that somehow, should someone not be willing or able to provide food and shelter for themselves, that somehow this puts an obligation on others to provide such for them. From whence does such an obligation arise? Why am I obligated to provide for some stranger the so-called necessities of life? Why does "freedom from" put a claim on my "freedom to?"

Now, on to a last illustration which will lead into another key concept much abused these days. At this time, everyone of adult persuasion has the "freedom to" smoke tobacco. This freedom is increasingly coming under attack because of the notion of "freedom from" so-called secondhand smoke. This has led to legislation prohibiting smoking in "public" places, such as restaurants, offices, and so on. In this case, "freedom to" appears to be in conflict with "freedom from." But is it? I answer in the negative. The reason it appears to be in conflict is because of the new concept of "public" place.

Public Places and Private Parts

Once upon a time there was an enterprise called the private business. It could be a restaurant where the owner provided food services to customers or a private office where professionals saw their clients. We have all seen the signs in restaurants, for instance, that say "We reserve the right to refuse service to anyone." We are aware that a lawyer or an accountant can refuse to represent anybody they care to. They are "free to" do that, at least for now.

Let's deal with restaurants for now. A restaurant has always been considered to be a "private" business serving its customers who "choose" to use its services. The restaurant owner decides what's to appear on the menu and what sort of ambiance the restaurant will provide. The owner has financed the business, worked hard, taken the risks of success or failure, and generally made all the important decisions inherent in the running of any business. If the restaurant is popular and makes money, the owner reaps the benefits. If the restaurant doesn't succeed, the owner takes the lumps.

Over the past few decades, this "private" business has now become a "public" place. How? Simply by definition and a changing concept of what "public" means. There is no business now that is truly "private." The government has decreed such. And this means that the owner of the business can no longer make all the decisions so critical to the success or failure of the business.

Now that there is no such thing as a "private" business, all businesses are now "public" places, the government can pass whatever legislation it wants to regarding the conduct of the business. The concept of "private" property as seen by our Founding Fathers has undergone a radical shift. Essentially there is no such thing as "private" property anymore. And that brings us to the tobacco issue.

More and more restaurants are being subjected to a ban on smoking in their establishments. The general trend seems to be toward federal legislation prohibiting smoking in all businesses. This phenomenon can only come about by declaring that all businesses are "public." The owner has no choice. The decision is taken out of his hands. The customer has no choice, either.

So what is next? Now that there is (by government decree) no such thing as a "private" business, the next step may well be the menu of the restaurant. Already there are forces out there complaining about the dangers of certain foods that are high in fat content and other "bad" things. There is pressure to clean up the American diet. Since restaurants are now "public" businesses, the logical place to start would be there. From now on, no more breakfasts can be served which contain eggs, sausage, bacon, or beef. No more hashbrowns, either. Lunches of hamburgers and fries are out. Dinners will be only government-approved foods.

I know some of you may think this is an obvious exaggeration. But think again! Look back and see how far things have come. A farmer in California can no longer plow his "private" land because of a mouse. A man in New York is arrested for killing a rat at his "private" home. A farmer cannot dig a ditch on his "private" farm because it is now declared a protected wetland. Some jurisdictions prohibit you from smoking in your "private" office. And there may be more to come.

The concept of private property or private business is no more. A "public" place is now almost everywhere that once was private. The change in the concept has been, as I've said, very subtle. But that's how totalitarian governments and dictatorships work. They start out with promises of "freedom from" and "security" and "equality of outcome." They redefine "private" and make it "public." And the Founding Fathers look down from above in tears. They gave us an idea and an ideal. We sold them out for the security of thirty pieces of silver.

Senate panel backs statewide smoking ban in MN

The Admiral — 2007-03-06T20:54:08Z

Amendments that would have allowed bar and restaurant owners to install ventilation systems or pay a license fee to allow smoking failed in the Senate Health, Housing and Family Security Committee. The bill heads now to the Business, Industry and Jobs Committee before a likely floor vote.

A House version, which passed its first committee last week, also has one more stop in committee before it could head to the floor.

The ban, long sought by antismoking advocates and headed toward likely passage.

At what point are we willing to stop expanding government's powers? Government does not have the right to infringe on private business, nor does it have the right to interfere with commerce. In Minnesota, it will be doing so. How many freedoms, and inalienable rights are you willing to forfeit? If our founding fathers only knew what the misguided government here in Minnesota was up to, they'd be calling for another revolution in very short order. Who are you, to tell me, my rights don't count, but yours do? This is a page out of communism. "All men are created equal, but some are more equal than others." That seems to be Minnesota's motto. This isn't just about smoking, and it certainly won't stop with just smoking either.

liberty up in smoke ?

James Wagner — 2007-03-06T20:54:07Z

A silly piece in the local section of today's NYTimes is more than a case in point, since it represents itself as a news article about the not-so-private campaign of the editor of another publication to reverse New York City's smoking ban.

The reporter writes that Mayor Bloomberg and Graydon Carter, the editor of Vanity Fair, used to be friends.

But that was before Mr. Bloomberg imposed an almost total ban on indoor smoking in public places in New York City, infuriating Mr. Carter [actually, it was the City Council which imposed the ban, in 42 to 7 vote], who enjoyed lighting up in restaurants, bars and, according to three summonses he has received from city inspectors, his office at the sleek West 42nd Street headquarters of Condé Nast. Mr. Carter has called the enforcement of the new law harassment, among other things.
"It is an important issue," said Mr. Carter. "It is about freedom and your own civil liberties, and it is about the city. This is not Denver, it is not Seattle, it is a big rough turbine that is fueled by cigarette smoke and food and liquor. People want to go out at night. If your best friend smokes, it makes it very awkward."

Over the last six months, Vanity Fair has been ripping into Mr. Bloomberg on almost a monthly basis, vexing the mayor's staff and angering Mr. Bloomberg at times, too. In September, the magazine ran a lengthy profile of Mr. Bloomberg that was far from flattering, referring to him as "waiflike."

Mr. Carter has also devoted no fewer than three editor's letters to criticizing the mayor. In the latest, in the February issue of the magazine, Mr. Carter says the mayor is "like a husband who returns home after the honeymoon and announces to his new bride that he has decided that henceforth they will be vegans."

For that same issue now on newsstands, Mr. Carter commissioned an article by Christopher Hitchens in which Mr. Hitchens chronicled his minor crime spree throughout the city — feeding pigeons, smoking in a luxury car — painting Mr. Bloomberg's New York as something just short of a police state.

Carter is in good company, but he and his company are wrong. Lewis Lapham and Rick MacArthur, editor and publisher respectively of Harpers Magazine together with [perhaps less good company] Christopher Hitchens are among the more illustrious and outspoken sour critics of New York's public smoking ban, and all of them have used their very prominent professional names, visibilty and pulpits to attack it relentlessly either in print, on radio, in public forums, or in any combination of the three.

But New York is not a police state because of laws which protect public health. Mr. Carter and the rest would deserve our attention and our respect if they were talking about the laws and police tactics which directly threaten freedom of speech and assembly in the city they all profess to be defending.

Smoking ban debate is about personal liberty

Craig Westover — 2007-03-06T20:54:06Z

It is the 229th year of the American experiment and some tremble still at the consequences of liberty. They consistently barter individual freedom for the chimera of "collective public good." Case in point — the collective preference for a smoking ban on bars and restaurants that strips autonomy from individuals, who uncoerced, would seek employment at and patronize those private establishments.

That brings us to the tale of two legislators who exemplify the best and worst of these times.

As is depressingly frequent, our tale begins with state government. In August 1998, the Ramsey County District Court approved the state's plan for administering significant dollars from the Minnesota tobacco lawsuit through a nonprofit corporation, the Minnesota Partnership for Action Against Tobacco.

Can it still seem "magic" that a state-seeded agency planted in a bed of power and watered with public money would grow an education charter into an enforcement beanstalk?

Inevitably MPAAT funds found their way to local smoking ban initiatives, most notably in Duluth. Despite objections by Attorney General Mike Hatch that MPAAT was inappropriately using state money, a tepid 2002 court decision only delayed MPAAT political activism.

In 2003 Rep. Tim Wilkin, R-Eagan, was one of eight state-appointed members of the 19-member MPAAT board of directors. Opposed on principle to forming MPAAT, Wilkin nonetheless felt that given the reality, MPAAT's chartered mandate to help people voluntarily quit smoking was worthwhile. He agreed to serve.

Then despite objections by Wilkin and others, MPAAT announced grants of up to $1.5 million for political action activities.

MPAAT's policy, wrote Wilkin in his MPAAT resignation letter to House Speaker Steve Sviggum, "will allow the organization to fund direct lobbying efforts of its own on questions in front of the Legislature," an action Wilken characterizes a "fundamentally unfair" use of taxpayer dollars and a "conflict of interest" for legislators sitting on the MPAAT board.

Sen. Scott Dibble, D-Minneapolis, who will be a sponsor of the statewide smoking ban bill this session, sees no such conflict of interest. However, as a matter of expediency and appearance and "to avoid the distractions of a manufactured issue," he followed Wilkin with a resignation from MPAAT. Dibble construes that taxpayer money isn't at issue because MPAAT funding comes from the tobacco industry lawsuit.

Contrasted with Wilkin, who opposes a statewide smoking ban on principle, Dibble holds a "common sense" (tempered by public opinion) approach to government intervention. It is "inhumane" to "deny" nonsmokers access to employment and enjoyment of "quasi-public" bars and restaurants despite the rights of proprietors and patrons, he said.

And there shorn of its rhetoric is the naked crux of the smoking ban debate. It's not a debate about public health. It's not about economic consequences. It's about our essential understanding of the principles of liberty and limited government.

Either you believe there is a fundamental right of personal autonomy — defined by court cases like Roe v. Wade (legalizing abortion) and Lawrence v. Texas (striking down sodomy statutes) — or you believe there is no end to the inequalities of fortune that must be rectified by the brutal force of government.

Either you believe that constitutional principles limit government action or you believe that "common sense" is the criterion of constraint, and there is no "rule of law" protecting your private life from government intervention.

Either you care, or you don't.

It is always incumbent upon a free people to defend individual autonomy. In a free society, some will always do things that seem morally reprehensible, stupid, and that yes, sometimes, even defy "common sense." But when we resist acting from fear and envy and initiate action in defense of liberty, and insist that our legislators do the same, that is the "far, far better thing that we do."

UPDATE: In one of those "dark of night" moves, the House scheduled a minimum notice public hearing on the smoking ban bill for this morning at 10:15, Room 10 of the State Office Building. More posts following the hearing.