Hostname: page-component-848d4c4894-2pzkn Total loading time: 0 Render date: 2024-05-08T08:43:20.471Z Has data issue: false hasContentIssue false
  • English
  • Français

Ethical and Legal Analyses of Policy Prohibiting Tobacco Smoking in Enclosed Public Spaces

Published online by Cambridge University Press:  01 January 2021

Taiwo A. Oriola
Get access Rights & Permissions [Opens in a new window]

Extract

It is axiomatic that tobacco smoking is hazardous to health. The statistics are well documented and often very grim. For example, the 2008 World Health Organization Report on the global tobacco epidemic presented the following statistics: a hundred million people died of tobacco-related diseases globally in the 20th century; there are approximately over five million tobacco-related deaths every year; and an estimated one billion could die of tobacco-related diseases in this 21st century.

Significantly, no other risky, self-indulgent addictive behaviors such as cocaine abuse directly endanger bystanders as much as cigarette smoking or tobacco use endangers nonsmokers through secondhand tobacco smoke or inhaled environmental tobacco smoke (ETS). Environmental tobacco smoke comprises sidestream smoke (smoke that emanates from the burning end of a tobacco product) and mainstream smoke (smoke exhaled by the smoker). About 85 percent of environmental tobacco smoke is sidestream smoke, while the remainder is mainstream smoke.

Type
Independent
Information
Journal of Law, Medicine & Ethics , Volume 37 , Issue 4 , Winter 2009 , pp. 828 - 840
Copyright
Copyright © American Society of Law, Medicine and Ethics 2009

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

World Health Organization, WHO Report on the Global Tobacco Epidemic, 2008: The MPOWER package, Geneva, World Health Organization, 2008.Google Scholar
Pascale, M. and Wortley, M. D., “Exposure to Secondhand Smoke in the Workplace: Serum Continine by Occupation,” Journal of Occupational and Environmental Medicine 44, no. 6 (2002): 503–509.Google Scholar
Health Council of the Netherlands, The Impact of Passive Smoking on Public Health, Publication no: 2003/21, The Hague: Health Council of the Netherlands, 2003.Google Scholar
Bosky, A., “Ashes to Ashes: Secondhand Smoke Meets a Timely Death in Illinois,” Loyola University Chicago Law Journal 39, no. 4 (Summer 2008): 847–907, at 853.Google Scholar
Tobacco Advisory Group of the Royal College of Physicians, The Medical Case for Clean Air in the Home, at Work, and in Public Places (London: Royal College of Physicians, 2005), at 3.Google Scholar
Id.Google Scholar
Id.Google Scholar
Goodin, R. E., No Smoking: The Ethical Issues (Chicago: The University of Chicago Press, 1989): at 60.Google Scholar
See Tobacco Advisory Group of the Royal College of Physicians, supra note 5, at 2.Google Scholar
Id.Google Scholar
Id.Google Scholar
Id.Google Scholar
See Goodin, , supra note 8, at 61.Google Scholar
Id.Google Scholar
See Bosky, , supra note 4, at 847–848 (nothing the story of one Heather Crowe, a waitress for over 40 years in cigarette smoke-filled restaurant, who in March 2002 was diagnosed with inoperable lung tumor.)Google Scholar
Passive smoking was characterized by the U.S. Surgeon General as “involuntary smoking.” For a robust discussion on this characterization, and for countervailing views such as Tollison and Wagner who claimed that”.prolonged exposure to ETS cannot be anything but the result of voluntary choice,” see Goodin, , supra note 8, at 69–73.Google Scholar
The argument has been advanced that the release of environmental tobacco smoke should be an actionable tort. See generally Smith, G. P., “Cigarette Smoking as a Public Health Hazard: Crafting Common Law and Legislative Strategies,” Michigan State University Journal of Medicine & Law 11, no. 2 (summer 2007): 251–335, at 269-285.Google Scholar
See Health Council of the Netherlands, supra note 3.Google Scholar
See Bosky, , supra note 4, at 848.Google Scholar
Winokur, S. J., “Seeing Through the Smoke: The Need for National Legislation Banning Smoking in Bars and Restaurants,” George Washington Law Review 75, no. 4 (2007): 662–693, at 666.Google Scholar
See Smith, , supra note 17, at 286.Google Scholar
Berman, M. and Crane, R., “Mandating A Tobacco-Free Workforce: A Convergence of Business and Public Health Interests,” William Mitchell Law Review 34, no. 4 (2008): 1651–1674, at 1653.Google Scholar
Id., at 1665–1668.Google Scholar
See Winokur, , supra note 20, at 666.Google Scholar
Id.Google Scholar
See Tobacco Advisory Group of the Royal College of Physicians, supra note 5, at 132.Google Scholar
BBC NEWS, “Scotland Begins Pub Smoking Ban,” March 26, 2006, available at <http://news.bbc.co.uk/1/hi/scotland/4845260.stm> (last visited October 10, 2009).+(last+visited+October+10,+2009).>Google Scholar
Wilson, N. and Thompson, G., “Tobacco Taxation and Public Health: Ethical Problems, Public Responses,” Social Science & Medicine 61, no. 3 (2005): 649–659.CrossRefGoogle Scholar
See Bosky, , supra note 4, at 848, at footnote 11 (noting that countries from France, Ireland, New Zealand, Norway, and Uruguay have passed legislations banning smoking in workplaces.)Google Scholar
The WHO Framework Convention on Tobacco Control opened for signature in June 2003, and came into force on February 27, 2005. To date, 168 countries are signatories to the Treaty. See <http://www.who.int/fctc/en/> (last visited October 10, 2009).+(last+visited+October+10,+2009).>Google Scholar
See id., at Articles 4(1), 4(2) (a), and 5(2) (b) of the WHO Framework Convention on Tobacco Control.Google Scholar
Id., at Article 8(1)(2).Google Scholar
See Smith, , supra note 17, at 251 and 253–254 (nothing that smoking is an expressive act of autonomy although it is subject to reasonable restrictions.)Google Scholar
Verweij, M. and Dawson, A., “The Meaning of ‘Public’ in ‘Public Health,’” in Dawson, A. and Verwij, M., eds., Ethics, Prevention, and Public Health (Oxford: Oxford University Press, 2007): at 13.Google Scholar
Id., at 14.Google Scholar
Id.Google Scholar
Id.Google Scholar
Childress, J. F., Faden, R. R. and Gaare, R. D. et al., “Public Health: Mapping the Terrain,” Journal of Law, Medicine, & Ethics 30, no. 2 (2002): 170–178.CrossRefGoogle Scholar
See Smith, , supra note 17, at 253–254 (nothing the right of the state to prevent identifiable social harm.); Christoffel, T. and Teret, S. P., Protecting the Public: Legal Issues in Injury Prevention (New York: Oxford University Press, 1993): at 25–65, (nothing the power of the state to enact injury prevention laws and the judicial support for governmental health and safety measures.)Google Scholar
Bayles, M. D., Principles of Legislation: The Uses of Political Authority (Detroit: Wayne State University Press, 1978), at 95–118 (nothing that one of the purposes of political authority was to protect people from harm); Locke, J., “Political Power,” in Rosen, M. and Wolff, J., Political Thought (Oxford: Oxford University Press, 1999), at 54 (nothing that political power connotes a right of government to make laws to safeguard the security of property, defense of the realm, and generally for the public good.)Google Scholar
Verweij, M., “Tobacco Discouragement: A Non-Paternalistic Argument,” in Dawson, A. and Verwij, M., eds., supra note 34, at 181; Ostapski, S. A., Plumly, L. W. and Love, J. L., “The Ethical and Economic Implications of Smoking in Enclosed Public Facilities: A Resolution of Conflicting Rights,” Journal of Business Ethics 16, no. 4 (March, 1997): 377–384.Google Scholar
See The Cigarette Labeling and Advertising Act, 15 U.S.C sections 1331–1341 (2000); see Winokur, , supra note 20, at 687.Google Scholar
See Goodin, , supra note 8, at 1.Google Scholar
Id.Google Scholar
Hospers, J., “Libertarianism and Legal Paternalism,” Journal of Libertarian Studies, IV, no. 3 (Summer 1980): 255–265, at 255–256.Google Scholar
Suber, P., in Gray, C. B., ed., The Philosophy of Law: An Encyclopedia (New York: Garland Publishing, 1999): at 632–635.Google Scholar
Id.Google Scholar
Dworkin, G., “Paternalism,” The Monist 56, no. 1 (1972): 64–84.CrossRefGoogle Scholar
Beauchamp, T. L. and Childress, J. F., Principles of Biomedical Ethics, 5th ed. (Oxford: Oxford University Press, 2001): at 178.Google Scholar
Id.Google Scholar
See Hospers, , supra note 45, at 255–256.Google Scholar
Id., at 256–257.Google Scholar
Pope, T. M., “Balancing Public Health against Individual Liberty: The Ethics of Smoking Regulations,” University of Pittsburgh Law Review 61, no. 2 (winter 2000): 419–498, at 428.Google Scholar
Id., at 429.Google Scholar
Id.Google Scholar
However, while noting that 70 percent of American servicemen who were addicted to heroine in Vietnam gave up the habit upon returning to the United States, Goodin posited that “the test of addictiveness is not impossibility but rather difficulty of withdrawal.” See Goodin, , supra note 8, at 25.Google Scholar
See Pope, , supra note 53, at 430.Google Scholar
For the sake of convenience, “hard paternalism” will henceforth be simply referred to as paternalism in this paper.Google Scholar
See Pope, , supra note 53, at 430.Google Scholar
Hayry, H., Hayry, M. and Karjalainen, S., “Paternalism and Finnish Anti-Smoking Policy,” Social Science Medicine 28, no. 3 (1989): at 293–297.CrossRefGoogle Scholar
See Berman, and Crane, , supra note 22, at 1653.Google Scholar
See Suber, , supra note 46.Google Scholar
See supra notes 1–19.Google Scholar
See Goodin, , supra note 8, at 4–6 (referencing philosophers such as Mill and Feinberg, who subscribed to the Victorian view that smoking is no more than a private indulgence that should merely be scolded and not sanctioned.)Google Scholar
Feinberg, J., cited in Goodin (id.), at 4–5.Google Scholar
In the Himalayan Kingdom of Bhutan, sales of cigarette and tobacco products were prohibited and the country became the first in the world to impose a complete ban on the sale and smoking of cigarettes in 2005. See BBC, “Smoking Is Stubbed Out in Bhutan,” February 22, 2005, available at <http://news.bbc.co.uk/1/hi/world/south_asia/4287331.stm> (last visited October 10, 2009).+(last+visited+October+10,+2009).>Google Scholar
Even the Kingdom of Bhutan allows tourists to smoke in designated places. The outright smoking ban only applies to Bhutan citizens and residents. Id.Google Scholar
Adriaanse, H. and Van Reek, J., “Physicians' Smoking and Its Exemplary Effects,” Scandinavian Journal of Primary Health Care 7, no. 4 (1989): 193–196.CrossRefGoogle Scholar
It is axiomatic that not all laws or policy no matter how well-intended, are just or fair as exemplified by historic laws, which institutionalized slavery and racial segregation. This is aptly summed up by Christoffel, T. et al., as follows: “Even though a law may be legally supportable and even though it may be effective in reducing the toll of injuries, if it offends other socially important interests, maybe it ought not to exist as a law.” See Christoffel, and Teret, , supra note 39, at 213.Google Scholar
Przeworski, A. and Maravall, J. M., Democracy and the Rule of Law (Cambridge: Cambridge University Press, 2003): at 223.Google Scholar
Verweij, M., “Tobacco Discouragement: A Non-Paternalistic Argument,” in supra note 34, at 182–183 (noting that paternalistic interventions may be justified in certain circumstances such as when there are public interests or concerns at issue.)Google Scholar
For discussion on smokers' right to smoke, see Tyler, M. L., “Blowing Smoke: Do Smokers Have a Right? Limiting the Privacy Rights of Cigarette Smokers,” Georgetown Law Journal 86, no. 3 (January 1998): 783–811, at 783.Google Scholar
See supra note 66.Google Scholar
Feinberg, J., cited in Goodin, , supra note 8, at 4–5.Google Scholar
Id., at 4.Google Scholar
Mills, J. S., cited in Rosen, and Wolff, , eds., supra note 40, at 133–134.Google Scholar
Holtug, N. “The Harm Principle,” Ethical Theory and Moral Practice 5, no. 4 (2002): at 357–389.CrossRefGoogle Scholar
Epstein, A., “Beyond the Harm Principle,” Paper No. 3, General Aspect of Law Seminar, University of California, Berkeley, 2004, 1–32, at 1, available at <http://repositories.cdlib.org/Berkeley-gala/fall2004/3> (last visited October 10, 2009).Google Scholar
An outright ban on tobacco production and use is highly unlikely however.Google Scholar
Tollison, R. D. and Wagner, R. E., Smoking and the State: Social Costs, Rent Seeking, and Public Policy (Massachusetts and Toronto: Lexington Books, 1988): at 19–37.Google Scholar
Id., at 28–29.Google Scholar
Some U.S. employers would prefer non-smoking employees to employees who smoke, see Berman, and Crane, , supra note 22, at 1653.Google Scholar
See Pope, , supra note 53, at 437–440 (noting the change by U.S. courts from initially denying to affirming the legality or constitutionality of states statutes aimed at preventing self-harm, such as the ones requiring mandatory helmets for motorcyclists and seatbelts for motorists. The change in courts' attitude to such laws was rationalized on the grounds that the self-harm meant to be prevented by the laws was not an entirely victimless crime, as the courts initially thought, and that the society as a whole would ultimately bear the concomitant healthcare burden.)Google Scholar
See Verweij, , supra note 34, at 188–189.Google Scholar
For example, on the propriety of alcohol abusers and heavy drinkers receiving one in four of liver transplants in 2007, the Chairman of the Medical Ethics of the British Medical Association, Dr. Tony Calland suggested that it was up to the surgeons whether or not to refuse organs transplants to anyone with alcohol-related liver disease, if they did not demonstrate a genuine desire to stop drinking. See Doward, J. and Campbell, D., “Transplant Row over Organs for Drinkers,” The Observer, February 15, 2009, at 1.Google Scholar
Barendregt, J. J., Bonneux, L. and van der Maas, P. J., “The Health Care Costs of Smoking,” New England Journal of Medicine 337, no. 15 (October 9, 1997): 1052–1057.CrossRefGoogle Scholar
Id.Google Scholar
See Tollison, and Wagner, , supra note 80, at 49.Google Scholar
See Verweij, , supra note 34, at 189.Google Scholar
Kymlicka, W., Contemporary Political Philosophy: An Introduction, 2nd ed. (Oxford: Oxford University Press, 2002): at 10.Google Scholar
West, H. R., An Introduction to Mill's Utilitarian Ethics (Cambridge: Cambridge University Press, 2004): at 1.Google Scholar
Brown, D. G., “What Is Mill's Principle of Utility?” Canadian Journal of Philosophy, 3, no. 1 (1973): 1–12.CrossRefGoogle Scholar
See Kymlicka, , supra note 90, at 11.Google Scholar
Id.Google Scholar
See the above discussion on paternalism and the harm principle, supra.Google Scholar
See Smith, , supra note 17, at 252 (noting that smokers often argue that they have unfettered right to smoker anywhere and anytime they wish.)Google Scholar
Warnock, M., Making Babies (Oxford: Oxford University Press, 2002): at 17.Google Scholar
1984 Universal Declaration of Human Rights, at Articles 1–30, available at <http://www.un.org/Overview/rights.html> (last visited October 10, 2009).+(last+visited+October+10,+2009).>Google Scholar
See Bentham, J., “Anarchical Fallacies and Supply without Burden,” in Waldron, J., ed., Nonsense on Stilt: Bentham, Burke, and Marx on the rights of Mans (Methuen, London: Routledge, 1987): at 53, 72–73.Google Scholar
See Warnock, , supra note 97, at 17.Google Scholar
Note however that the existence of a duty does not necessarily connote that someone has a right. Id.Google Scholar
Id., at 19.Google Scholar
See Bentham, , supra note 99, at 73.Google Scholar
See Warnock, , supra note 97, at 17.Google Scholar
Waldron, J., “The Decline of Natural Right,” New York University School of Law, Public Law & Legal Theory Research Paper Series, Working Paper no. 09–38, July 2009, 1–31, at 4, available at <http://ssrn.com/abstract=1416966> (last visited October 19, 2009).+(last+visited+October+19,+2009).>Google Scholar
See Smith, , supra note 17, at 253.Google Scholar
Jane Roe v. Henry Wade, 410 U.S 113, (1973)Google Scholar
Id., at 152.Google Scholar
See Bentham, , supra note 99.Google Scholar
315 F.Supp.2d 461 (2004).CrossRefGoogle Scholar
Id.Google Scholar
Id., at 473.Google Scholar
Id., at 473.Google Scholar
See Bentham, , supra note 99.Google Scholar
Application no. 35207/03, (September 13, 2005).Google Scholar
Id.Google Scholar