Action on Smoking and Health
A National Charitable Antismoking &
Nonsmokers' Rights Organization
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The following information about restricting smoking in public places has been prepared by Action on Smoking and Health (ASH) (http://ash.org); the U.S.'s oldest and largest antismoking organization, and the one which started the nonsmoking rights movement by first getting smoking restricted and then banned in airplanes, buses, and a growing number of public places.

ASH is a private non-profit tax-exempt scientific and educational organization concerned with the problems of smoking and the rights of the nonsmoker. ASH serves as the legal action arm of the antismoking community, and thus a number of the questions below refer to legal issues which may sometime be raised.

1. Why should nonsmokers' rights be a major component of the FCTC?
There are at least seven major reasons:
(A) It is the most effective way to generate and mobilize strong public support for antismoking activities.
(B) It can be -- as in the U.S. -- the most important single factor deterring people from smoking.
(C) Unlike other antismoking measures, it costs nothing, and yet generates enormous and immediate savings.
(D) It (like increased tobacco taxes) is one of only two antismoking measures which directly benefit the great majority of
citizens.
(E) It avoids the "intrusive government" "national nanny" argument often made against antismoking programs.
(F) It builds upon a growing momentum already evident in airline smoking bans and elsewhere.
(G) It works synergistically with other measures designed to reduce or discourage smoking.

2. Just how deadly is tobacco smoke pollution?
It is more dangerous than most other major causes of death in westernized countries, and the one which can most easily be corrected. The U.S. Centers for Disease Control [CDC] estimates that "environmental tobacco smoke" [ETS] kills
as many as 65,000 Americans each year, more than alcohol [19,086], homicide [16,831], drugs [18,443], HIV [14,681], firearms [28,839], or even motor vehicle accidents [46,378]. This is in addition to the more than 400,000 Americans who die each year because of their own smoking.

3. How strong is the evidence that ETS kills nonsmokers?
The evidence is overwhelming and virtually uncontroverted. Every major scientific or medical body -- in the U.S. as well as abroad -- which has examined the question reports that ETS causes deadly cancer in nonsmokers. No study has ever found to the contrary. As the U.S. Surgeon General said in his 1986 Report: "In examining a low-dose exposure to a known carcinogen, it is rare to have such an abundance of evidence on which to make a judgment, and given this abundance of evidence, a clear judgment can now be made: exposure to [ETS] is a cause of lung cancer." For further information, including copies of these reports, see; http://ash.org/etsreports.html

4. How do we know -- and how can we prove -- that ETS causes cancer in nonsmokers?
(A) More than 40 individual chemicals present in ETS have independently been found to cause cancer. There is obviously no reason to believe that they mysteriously lose their cancer-causing properties when mixed with other toxins in tobacco smoke.
(B) Thousands of studies have demonstrated that mainstream tobacco smoke --which contains virtually the same chemicals as ETS -- causes cancer in the lungs of smokers, as well as in animals such as mice and rat.
(C) Numerous studies show that nonsmokers absorb large amounts of these chemicals into their bodies -- in some cases the equivalent of a pack a day -- even if they are seated in no-smoking sections, and that they retain the chemicals for long periods of time.
(D) Lab studies show that ETS can cause cancer in animals and damage DNA (an independent causal mechanism in cancer development).
(E) There are now dozens of epidemiological studies in many different population groups showing that persons exposed to ETS have much higher rates of lung cancer than similar groups which were not so exposed; that no other variable or factor can account for this increase; and that -- where the amount of exposure has been measured -- that the increase in risk increases directly with the amount of exposure.

5. But aren't many of the studies statistically insignificant?
No. Some of the studies, because of the relatively smaller number of nonsmokers studied, were not able to establish causation to at least a 95% probability -- the rule of thumb usually used before making a decision based upon only one study. But no reasonable person would willingly agree to be subjected to a substance proven to cause lung cancer to "only" a 90% probability (as most of these studies did). Moreover, when all of these dozens of studies all point in the same direction, the conclusion that ETS causes cancer is established to probabilities of well over 99.99% -- far stronger evidence than we have in virtually any other public health area.

6. What is the minimum level of exposure to ETS which can be dangerous?
There is none: if you can smell the smoke -- or even if you can't -- it can still kill you. One reason is that no reputable scientific organization has ever found a safe lower level below which any of the dozens of known carcinogens (e.g., asbestos) does not cause cancer.
Indeed, it is generally assumed that no such level exists because carcinogens operate on a molecular level. Thus even a few molecules can irreparably harm a healthy cell. Another reason is that there are many people -- e.g., more than 96 million Americans -- who have chronic conditions like bronchitis, sinusitis, or asthma which makes them especially sensitive to even minute amounts of one or more of the hundreds of toxic substances found in ETS. For them, exposure to ETS levels at which most people can't even smell any tobacco smoke can trigger major allergic attacks, and force them into respiratory distress or trigger heart attacks.

7. But how can we convince delegates and government officials -- many of whom are middle aged or older, have already been exposed to ETS for much of their lives, and may know that cancers tend to have a long
latency period anyway -- that they should really worry about brief additional exposure in public places?
A recent article in the prestigious Journal of the American Medical Association [JAMA] shows that exposure to ETS for as little as 30 minutes can damage a nonsmoker's heart to the point where his risk of a heart attack is the same as a smoker's. So, even for middle aged people who have so far escaped lung cancer from breathing second hand tobacco smoke all these years, why risk a sudden life-threatening heart attack from exposure in restaurant in less time than it takes to eat a meal? This is especially true since the CDC estimates that more than 95% of all deaths causes by ETS involve heart attacks rather than lung cancer.

8. In view of all of this, what is necessary to provide an adequate
measure of protection for nonsmokers?
To begin with, it is incorrect and unfair to talk about providing protection from deadly chemicals which kill tens of thousands of people (in the U.S. alone) each year which is merely "adequate." In cases of chemicals used in factories, or
substances found in outdoor air, it may well be impossible to lower the level of exposure to zero, so that all we can talk about is adequate protection -- particularly since for many of these chemicals there are believed to be safe lower levels below which harm is minimal or nonexistent. But any discussion of protection for nonsmoker which is merely "adequate" is clearly inappropriate since there is no safe lower level below which ETS doesn't cause lung cancer in nonsmokers, and the level of exposure to ETS can easily be reduced to zero by simply prohibiting smoking.

9. Why not simply provide no-smoking sections in large rooms, airplanes, terminals, etc.?
Many studies have shown that dividing an airplane, room, or other area into smoking and no-smoking sections offers
virtually no protection to nonsmokers since they still absorb virtually as many deadly chemicals as if the area had not been divided. These chemicals have been found and measured not only in the air nonsmoker's are forced to breathe, but also in their urine, blood, and saliva.

10. If no-smoking sections isn't the answer, what is?
The simple answer is to stamp out the problem at its source by banning smoking. Even separate smoking rooms are not very effective. Unless the smoking room is both negatively pressurized and separately vented to the outside, the toxic components of tobacco smoke are still recirculated through the common ventilation system and drift out around the door and whenever it is opened. Many governmental bodies and businesses have also found it to be too expensive to set aside such rooms solely to benefit the small minority of workers who smoke.

11. But doesn't banning smoking infringe on the rights of smokers?
The answer is no for several reasons. No court or governmental agency has ever held that there is a right to smoke in a public place, and many have repeatedly rejected that very argument. If there were a right to smoke tobacco in public places, there would presumably have to be a right to chew and spit tobacco, and to burn incense -- the two closest
analogies to smoking tobacco -- and rather clearly no such right exists. Most governments already prohibit many activities which can provide joy, relief, or satisfaction to their practitioners but which are an annoyance to those around them: e.g., spitting, playing loud music, setting off fireworks, public nudity and/or sexual activities, etc. If these activities can be prohibited even though they cause no health risk, so can smoking which is just as annoying, and also kills
thousands of people each year. There is an old saying that a person's right to swing his fist ends where someone else's nose begins. Since bystanders must inhale the toxic fumes of smokers, there's no right to smoke, especially in public places.

12. In dealing with ETS, aren't we at least required to try to balance the rights of nonsmokers against the rights of smokers?
The answer is no because nonsmokers have rights but, as explained above, there is no right to smoke. Under the laws of every civilized society, people have a fundamental right to be protected from others who would inflict harm upon them or place them at unnecessary risk of harm, and thus should have a right to be protected from ETS. But since there is no
corresponding right in smokers to inflict such harm, there is no reason in the world to try to balance one against the other. To do so would be equivalent to saying that we must balance their rights of victims against their attackers, or balance the rights of rape victims against the rights of rapists.

13. But doesn't a ban on smoking constitute discrimination against people who smoke?
This answer is no more than a ban on playing loud music discriminates against music lovers or a ban on spitting discriminates against spitters. Prohibiting any activity in a public place by definition "discriminates" against those who wish to engage in it, yet no reasonable person can argue the prohibiting activities which risk the lives of others constitutes improper or unlawful discrimination.

14. Why isn't discrimination against smokers just like discriminating against the disabled or members of an ethnic or racial group?
Generally the only form of discrimination which is prohibited is against that based upon immutable (unchangeable) characteristics for which there is no reasonable basis. For example, refusing to hire a lawyer based upon ethnicity or gender or religion is often prohibited because there is no reasonable basis for doing so, and because a person cannot change these factors. But protecting the lives of others is surely a rational basis to prohibit smoking in public, and smoking -- like chewing gum or chewing tobacco -- is an activity people choose to engage in, not an immutable characteristic such as race or gender.

15. But if a person is addicted to nicotine and has to smoke, doesn't a ban on smoking constitute discrimination based upon handicap?
The answer is no. No one is addicted to smoking, and there are other ways people who are addicted to nicotine can satisfy their craving. Even those smokers who can meet the difficult evidentiary burden of proving that they are truly medically addicted -- rather than simply psychologically habituated -- can satisfy their medical addiction by administering nicotine to themselves through nicotine chewing gum, nicotine patches, or other methods like nicotine inhalers. All of these satisfy whatever true medical addiction there may be for the drug nicotine, and none creates any of the risks that smoking poses to innocent bystanders. Indeed, despite the fact that the U.S. law probably provides the broadest protection of anywhere in the world against all forms of discrimination -- including discrimination against the handicapped or disabled -- no court has even held that prohibiting smoking constitutes unlawful discrimination. On the other hand, numerous courts and public agencies have held that persons sensitive to tobacco smoke are entitled to protection from it, even if it means prohibiting smoking entirely.

16. Isn't it virtually impossible to enforce bans on smoking, and don't they inevitable lead to disobedience and outrage by smokers?
Quite to the contrary. Despite dire predictions, a growing number of jurisdictions are finding that, once there is a reasonable time for the posting of signs and for public adjustment, even very stringent bans on smoking are generally complied with, relatively easily enforced, and create no major backlash from smokers. The overwhelming majority of
airline flights are now smoke free, even though smokers cannot step outside -- as they can with bans on smoking in offices, buildings, restaurants, etc. -- to indulge their habit, and even though many of the flights last far longer than one would typically spend in an office, building, or restaurant. Several U.S. states and hundreds of individual jurisdictions have banned smoking in virtually all workplaces (including restaurants) with great success. Many more restaurants have banned all smoking voluntarily, as have many building owners. Clearly, in the absence of a governmental requirements, they would not do so unless the bans were well accepted and good for business.

17. But isn't it true that bans on smoking in restaurants and other places causes many of them to go out of business, or at least to lose considerable amounts of money?
Actually, just the opposite is true. Several careful studies based upon revenue figures reported to the government for tax purposes and printed in professional journals show that there is no significant lose of revenue, and that in many cases
revenues actually increased.

18. How can this be true?
The reason is simple. Smokers who wish to eat out can easily refrain from smoking for the hour or so that it takes
to eat a typical meal, whereas nonsmokers -- especially those who are especially sensitive -- cannot refrain from breathing while eating out. Thus any family with an adult family member or child who is sensitive to tobacco, or who doesn't like the smell or is concerned about the health hazards, will eat out only where they can enjoy smokefree air. There are far more of these people than smokers who insist upon smoking during their meals -- a ratio of as much as 4 to 1 according to one survey. Thus, as millions of restaurants in the U.S. and elsewhere have found, prohibiting smoking is good for business.

19. Is there ever any justification for prohibiting smoking outdoors?
Yes, of course there is, and that is why the FCTC should include it. Literally dozens of jurisdictions, in both the U.S. and abroad, have now prohibited smoking on beaches, in parks and playgrounds, on lines waiting for buses, etc. Many people do find it annoying to be seated near a smoker (e.g., on a beach), and don't feel that they should have to keep moving simply to protect their families. Young children are often inadvertently burned by adults' cigarettes while waiting on line or even in a playground. Cigarette butts are a major source of litter on beaches and in most parks, and a major cause of forest fires in parks. These are all very valid reasons for prohibiting smoking in outdoor public places where other people congregate.

20. Is there any other good reason for banning smoking outdoors?
Yes, there is one final reason, and it brings us back to an important reason for including a very strong nonsmokers' rights provision in the FCTC. Virtually throughout the U.S. it is illegal to drink alcoholic beverages outdoors in public, or even to have an open bottle or glass containing an alcoholic beverage. The primary reason is obviously not to prevent
public drunkenness or drunk driving, since people manage to consume plenty of alcohol in bars, restaurant, and in private homes. Rather, the underlying purpose of the ban is to help discourage young people from drinking. In the same way, prohibiting public smoking -- whether in an airport, restaurant, or in a public park -- helps to send the
message that smoking is not a desirable thing to do, and does not help to make one popular. Indeed, one of the reasons why the U.S. -- and in particular states like California -- have been so successful in holding down cigarette consumption despite widespread tobacco advertising and promotion is that prohibitions on smoking send a clear message to
smokers and to those who are thinking of becoming smokers. Every no-smoking signs says clearly that smoking doesn't make you sexy, sophisticated, and socially desirable; instead it makes you stinky and smelly and shunned. In short, one of the most effective antismoking campaigns, and one which is virtually free and should enjoy widespread
support from the great majority of people who do not smoke, is the nonsmokers' rights movement. It should occupy a central place in any Framework Convention on Tobacco Control.