Beaches & Buttheads: Don't bother packing your smokes.

National Review Online ^ | June 24, 2004 | Robert A. Levy

[xsysmgr]

Here we go again. First it was the health police in Santa Monica, Los Angeles and Malibu. Then the buttheads in Los Angeles County. Now it's the legislature, about to consider a bill to shield every sun worshipper statewide from the tribulations of beach smoking, and defend every grain of sand along the 1,100-mile coastline against cigarette litter.

One argument for the beach ban goes like this: Cigarette butts are a major source of litter. On cleanup days, volunteers say they pick up an average of more than 300,000 butts along the beach. If so, that's a powerful argument — but against littering, not against smoking. A ban on smoking is both over-inclusive and under-inclusive. It's over-inclusive because responsible smokers who properly discard their cigarette butts do not contribute to litter. It's under-inclusive because irresponsible non-smokers who improperly discard food wrappers and soda cans are major contributors to litter. By all means, let's keep the beaches clean. Anyone who flips a cigarette butt onto the sand may deserve to be fined. But let's reserve our ire, and our legal remedies, for those who actually do something wrong.

The second argument against beach smoking is that secondhand smoke, even a wisp on breezy days, is a health hazard. The short answer is that no evidence exists to support that bald assertion. Indeed, a substantial body of evidence cuts the other way. In 1996, the American Heart Association journal, Circulation, reported no increase in coronary heart disease associated with secondhand smoke "at work or in other settings." Two years later, the World Health Organization reported "no association between childhood exposure to environmental tobacco smoke [ETS] and lung cancer." A 1999 editorial in The New England Journal of Medicine concluded, "We still do not know, with accuracy, how much or even whether [ETS] increases the risk of coronary heart disease."

Then there's the granddaddy of all secondhand smoke studies: the landmark 1993 report by the Environmental Protection Agency declaring that ETS is a dangerous carcinogen that causes 3,000 deaths annually. Five years later, a federal judge lambasted EPA for "cherry picking" the data, excluding studies that "demonstrated no association between ETS and cancer," and withholding "significant portions of its findings and reasoning in striving to confirm its a priori hypothesis."

More recently, in the May 2003 British Medical Journal, researchers found that passive smoke had no significant connection with heart-disease or lung-cancer death at any level of exposure at any time. Those results, stated the American Council on Science and Health, are "consistent" with studies by the Centers for Disease Control and Prevention.

So what?, you might argue. Maybe secondhand smoke doesn't kill people, but how about the harm to people with pre-existing asthma, respiratory infections, or eye allergies? After all, public beaches belong collectively to the citizens of a community. Why shouldn't those citizens decide, through their elected representatives, what conduct is permissible and what is not? Why should a minority of smokers be able to dictate public policy to a majority of non-smokers?

Ordinarily, in a democracy, we let the political process set restrictions on the use of public property. But there are limits on the exercise of political power. Under our constitutional system, a nonsmoking majority cannot arbitrarily stamp out the rights of a smoking minority. For a regulation to be legitimate, there must be a good fit between the regulation and the goal it seeks to accomplish.

That means smoking should not be banned-even on public property-without showing, first, that the ban will be effective and, second, that it will not proscribe more activities than necessary to reach its objective. Those two showings have not been made. The scientific link between secondhand smoke and various diseases is far from proven-especially on beaches. And regulations often prohibit smoking in locations that are not particularly confining, where patrons can easily avoid harm by taking a step or two away. If the scientific evidence were more compelling and the ban were limited to, say, reading rooms in public libraries, elevators in government office buildings, and restrooms at a state university, then a ban might be warranted. Not otherwise.

Government, not secondhand smoke, is polluting the beaches. Surely we can protect the legitimate rights of non-smokers without prohibiting smokers from relishing an occasional cigarette by the sea.

— Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.

[neverdem]

Since it appears to be filtered cigarette butts that you seem to find so offensive, why can't the ban be limited to just those products? Do people who smoke unfiltered cigarettes, cigars and pipes must also be banned? Why can't people who litter just be issued a summons by the beach patrol or sanitation police?

[Huck]

I'd say ban all smoking on the beach. But provide a close-by place for smokers, who are mostly junkies for cigarettes, to conveniently feed their jones.

Now, let's negotiate. Let's talk about marijuana laws.

[neverdem]

Smoking, outside of your personal air space, it is an unlawful seizure of the air of thise around you and should be constrained by force, if necessary. Am I being at all unclear?

Do you mean you want the government to ban all outdoor smoking? What about the emissions of engines, especially diesel?

[neverdem]

Now, let's negotiate. Let's talk about marijuana laws.

As a practical matter, I believe all prohibitions fail. They just generate more police, more corruption and less freedom.

[CSM]

"It is a property rights issue. I have no obligation to prove to you that a substance you are injecting into my air harms me, or even that I can smell it. If I can see it or smell it I should be able to choose not to breathe it. The limit to this principle is a practical one, not a legal or moral one."

Therefore, I can use the government to enforce bbq bans against my neighbors. How about I use government force to ensure that no one can use lawn mowers. If I can smell it or see the smoke from these activities then we should ban them!

The biggest problem with your "public" property argument is that the revenue generated from the activity being banned adds weight to the smokers argument. The taxes are constantly being raised to make up for budget shortfalls, then the very people carrying more than their weight are banned from participating in the legal activity supporting the governments.

Why not just enforce current littering laws?

I would be able to accept smoking bans on public beaches if that government agency was willing to forego all revenues from tobacco.