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

World Health Organization, WHO Report on the Global Tobacco Epidemic, 2008: The MPOWER package, Geneva, World Health Organization, 2008.

Pascale M. 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.

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.

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.

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.

Goodin R. E. , No Smoking: The Ethical Issues (Chicago: The University of Chicago Press, 1989): at 60.

See Tobacco Advisory Group of the Royal College of Physicians, supra note 5, at 2.

See Goodin , supra note 8, at 61.

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.)

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.

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.

See Health Council of the Netherlands, supra note 3.

See Bosky , supra note 4, at 848.

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.

See Smith , supra note 17, at 286.

Berman M. 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.

Id., at 1665–1668.

See Winokur , supra note 20, at 666.

See Tobacco Advisory Group of the Royal College of Physicians, supra note 5, at 132.

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).

Wilson N. Thompson G. , “Tobacco Taxation and Public Health: Ethical Problems, Public Responses,” Social Science & Medicine 61, no. 3 (2005): 649–659.

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.)

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).

See id., at Articles 4(1), 4(2) (a), and 5(2) (b) of the WHO Framework Convention on Tobacco Control.

Id., at Article 8(1)(2).

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.)

Verweij M. Dawson A. , “The Meaning of ‘Public’ in ‘Public Health,’” in Dawson A. Verwij M. , eds., Ethics, Prevention, and Public Health (Oxford: Oxford University Press, 2007): at 13.

Id., at 14.

Childress J. F. Faden R. R. Gaare R. D. , “Public Health: Mapping the Terrain,” Journal of Law, Medicine, & Ethics 30, no. 2 (2002): 170–178.

See Smith , supra note 17, at 253–254 (nothing the right of the state to prevent identifiable social harm.); Christoffel T. 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.)

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. 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.)

Verweij M. , “Tobacco Discouragement: A Non-Paternalistic Argument,” in Dawson A. Verwij M. , eds., supra note 34, at 181; Ostapski S. A. Plumly L. W. 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.

See The Cigarette Labeling and Advertising Act , 15 U.S.C sections 1331–1341 (2000); see Winokur , supra note 20, at 687.

See Goodin , supra note 8, at 1.

Hospers J. , “Libertarianism and Legal Paternalism,” Journal of Libertarian Studies, IV, no. 3 (Summer 1980): 255–265, at 255–256.

Suber P. , in Gray C. B. , ed., The Philosophy of Law: An Encyclopedia (New York: Garland Publishing, 1999): At 632–635.

Dworkin G. , “Paternalism,” The Monist 56, no. 1 (1972): 64–84.

Beauchamp T. L. Childress J. F. , Principles of Biomedical Ethics, 5th ed. (Oxford: Oxford University Press, 2001): at 178.

See Hospers , supra note 45, at 255–256.

Id., at 256–257.

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.

Id., at 429.

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.

See Pope , supra note 53, at 430.

For the sake of convenience, “hard paternalism” will henceforth be simply referred to as paternalism in this paper.

See Pope , supra note 53, at 430.

Hayry H. Hayry M. Karjalainen S. , “Paternalism and Finnish Anti-Smoking Policy,” Social Science Medicine 28, no. 3 (1989): At 293–297.

See Berman Crane , supra note 22, at 1653.

See Suber , supra note 46.

See supra notes 1–19.

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.)

Feinberg J. , cited in Goodin (id.), at 4–5.

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).

Even the Kingdom of Bhutan allows tourists to smoke in designated places. The outright smoking ban only applies to Bhutan citizens and residents. Id.

Adriaanse H. Van Reek J. , “Physicians' Smoking and Its Exemplary Effects,” Scandinavian Journal of Primary Health Care 7, no. 4 (1989): 193–196.

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. , 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 Teret , supra note 39, at 213.

Przeworski A. Maravall J. M. , Democracy and the Rule of Law (Cambridge: Cambridge University Press, 2003): at 223.

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.)

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.

See supra note 66.

Feinberg J. , cited in Goodin , supra note 8, at 4–5.

Id., at 4.

Mills J. S. , cited in Rosen Wolff , eds., supra note 40, at 133–134.

Holtug N. “The Harm Principle,” Ethical Theory and Moral Practice 5, no. 4 (2002): at 357–389.

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).

An outright ban on tobacco production and use is highly unlikely however.

Tollison R. D. Wagner R. E. , Smoking and the State: Social Costs, Rent Seeking, and Public Policy (Massachusetts and Toronto: Lexington Books, 1988): At 19–37.

Id., at 28–29.

Some U.S. employers would prefer non-smoking employees to employees who smoke, see Berman Crane , supra note 22, at 1653.

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.)

See Verweij , supra note 34, at 188–189.

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. Campbell D. , “Transplant Row over Organs for Drinkers,” The Observer, February 15, 2009, at 1.

Barendregt J. J. Bonneux L. van der Maas P. J. , “The Health Care Costs of Smoking,” New England Journal of Medicine 337, no. 15 (October 9, 1997): 1052–1057.

See Tollison Wagner , supra note 80, at 49.

See Verweij , supra note 34, at 189.

Kymlicka W. , Contemporary Political Philosophy: An Introduction, 2nd ed. (Oxford: Oxford University Press, 2002): at 10.

West H. R. , An Introduction to Mill's Utilitarian Ethics (Cambridge: Cambridge University Press, 2004): at 1.

Brown D. G. , “What Is Mill's Principle of Utility?” Canadian Journal of Philosophy, 3, no. 1 (1973): 1–12.

See Kymlicka , supra note 90, at 11.

See the above discussion on paternalism and the harm principle, supra.

See Smith , supra note 17, at 252 (noting that smokers often argue that they have unfettered right to smoker anywhere and anytime they wish.)

Warnock M. , Making Babies (Oxford: Oxford University Press, 2002): at 17.

1984 Universal Declaration of Human Rights, at Articles 1–30, available at <http://www.un.org/Overview/rights.html> (last visited October 10, 2009).

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.

See Warnock , supra note 97, at 17.

Note however that the existence of a duty does not necessarily connote that someone has a right. Id.

Id., at 19.

See Bentham , supra note 99, at 73.

See Warnock , supra note 97, at 17.

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).

See Smith , supra note 17, at 253.

Jane Roe v. Henry Wade , 410 U.S 113, (1973)

Id., at 152.

See Bentham , supra note 99.

315 F.Supp.2d 461 (2004).

Id., at 473.

Id., at 473.

See Bentham , supra note 99.

Application no. 35207/03, (September 13, 2005).