“If at first you don’t succeed, try, try again.” Such is the mantra of Representative Hugh Holliman (D-Davidson). After failing to round up enough votes to pass a comprehensive ban on smoking in all buildings and workplaces open to the public, Holliman has rewritten HB 259 in an attempt to find an acceptable alternative. In its current form, the bill seeks to prohibit smoking only in restaurants and bars, while giving local governments the authority to further regulate smoking in all other “public” areas. (Holliman says public, but doesn’t he really mean private – that is, privately owned property open to the public?) The question then becomes: is this new bill any better than the first?
If a smoking ban is going to pass, the proposal will have to find a balance between the rights of business owners and those who do not wish to be subjected to the health risks of second-hand smoke. Perhaps we can look to our neighbors in Virginia for guidance in finding a compromise.
Earlier this year, Virginia lawmakers approved a bill that would ban smoking in all bars and restaurants unless the restaurant posted a sign that said “smoking permitted” at each patron entrance. The bill passed the Virginia House of Delegates by a 74-22 vote and passed the Senate unanimously.
Polling by the Civitas Institute shows that an overwhelming majority of North Carolina voters would support a similar proposal. In a poll of 800 voters taken April 11-15, 2007, respondents were asked: “Would you support or oppose legislation allowing a restaurant, bar or tavern owner to decide their own smoking policy as long as the policy was clearly posted at the entrance to their business?” 70 percent of those surveyed supported the measure while only 24 percent opposed the policy.
Property rights advocates can support such a proposal since the smoking policy would be determined by the business owner. If an owner chose to do nothing, a ban is in effect by default. But if the owner thinks it is in his best interests to allow smokers to light up on his property, he would be allowed to do so. The compromise is a result of giving patrons the ability to make an informed decision prior to entering. The property rights of the business owner are respected – that is, the right to allow a legal activity on his property is not infringed upon. Health concerns of would-be patrons are likewise respected.
Indeed, health advocates can support this proposal since it also allows both consumers and potential employees to visit an establishment and have piece of mind in knowing that, when they enter, they can make clear choices about risks to their health. Just as the sanitation rating of a restaurant is clearly posted, so too should smoking permitted signs be posted for all to see. The purported health risks of second-hand smoke would thus be limited to those patrons and employees who chose to accept those risks.
Although there is some debate about the correlation between second-hand smoke and lung cancer (cf. the 39-year prospective study by Enstrom and Kabat (2003)), there is little argument that there is a strong correlation between sun exposure and skin cancer. If we are going to require restaurants and bars to protect their customers and employees from the potential health risks of second-hand smoke, should we not also require restaurants with outdoor seating to offer beach umbrellas in order to protect patrons from harmful, cancer-causing UV rays? Should servers working outdoors be required to apply sunscreen?
Advocates for smoking bans cite the need to protect employees from the risks of second hand smoke. Intelligent people are just as capable of choosing a place of employment as they are of choosing where to dine. In fact, workers choose risky professions all the time. What about Alaskan crab fishermen? Roofers? Sanitation workers? Their jobs are far riskier than most and yet they fully understand and accept the risks.
Freedom of choice is almost always the best policy – i.e. the freedom of a proprietor to set his own smoking policy and the freedom of consumers to make informed choices via increased transparency. The Virginia-style proposal capitalizes on the ability of the open market to offer a range of choices to people with different interests and risk calculations. Simply put, consumers can be the ultimate judge of which policy is appropriate for them and their families. If consumers want more and more smoke-free facilities, the market will respond. North Carolina’s smoking policy will thus be determined by millions of decision-makers, rather than government fiat.