The Case Against Smoking Bans

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R I S K

Despite their popularity, government-mandated smoking bans are not justified.

The Case Against Smoking Bans
T HOMAS A. L AMBERT
University of Missouri–Columbia School of Law

In recent months, dozens of localities and a number of states have enacted sweeping smoking bans. The bans generally forbid smoking in “public” places, which are defined to include not only publicly owned facilities but also privately owned properties to which members of the public are invited (e.g., bars, restaurants, hotel lobbies, etc.). Proponents of the bans insist that they are necessary to reduce risks to public health and welfare and to protect the rights of nonsmoking patrons and employees of the regulated establishments. Specifically, ban advocates have offered three justifications for government-imposed bans: First, they claim that such bans are warranted because indoor smoking involves a “negative externality,” the market failure normally invoked to justify regulation of the ambient environment. In addition, advocates assert that smoking bans shape individual preferences against smoking, thereby reducing the number of smokers in society. Finally, proponents argue that smoking bans are justified, regardless of whether any market failure is present, simply because of the health risks associated with inhalation of environmental tobacco smoke (ets), commonly referred to as “secondhand smoke.” This article contends that government-imposed smoking bans cannot be justified as responses to market failure, as means of shaping preferences, or on risk-reduction grounds. Smoking bans reduce public welfare by preventing an optimal allocation of nonsmoking and smoking-permitted public places. A laissez-faire approach better accommodates heterogeneous preferences regarding public smoking. THE EXTERNALITY ARGUMENT

to combat the inefficiencies created by negative externalities. Negative externalities are costs that are not borne by the party in charge of the process that creates them. For example, the owner of a smoke-spewing factory does not fully bear the costs associated with the smoke, stench, and health risks his factory produces; many of those costs are foisted onto the factory’s neighbors. When conduct involves negative externalities, participants will tend to engage in that conduct to an excessive degree, for they bear the full benefits, but not the full costs, of their activities. Quite often, then, government intervention (e.g., taxing the cost-creating behavior or limiting the amount permitted) may be desirable as a means of ensuring that the cost-creator does not engage to an excessive degree in the conduct at issue. Advocates of smoking bans insist that indoor smoking involves negative externalities. First, ban advocates argue that nonsmoking patrons and employees of establishments that allow smoking are forced to bear costs over which they have no control. In addition, smokers impose negative externalities in the form of increased healthcare costs, a portion of which is paid from the public fisc. Thus, taxpayers are required to foot the bill for some of the costs associated with smoking in general. Examined closely, each of these externality-based arguments for smoking bans fails. PATRONS AND EMPLOYEES

The conventional justification for regulation of the ambient environment (i.e., outdoor air and water) is that it is necessary Thomas A. Lambert is associate professor at the University of Missouri–Columbia School of Law. He may be contacted by e-mail at lambertt@missouri.edu.

Outdoor air pollution involves the sort of negative externality likely to result in both an inoptimal (i.e., excessive) amount of the polluting activity and a violation of pollution victims’ rights. When it comes to indoor air pollution, by contrast, there is no such externality. That is because the individual charged with determining how much, if any, smoking is permitted in an indoor space ultimately bears the full costs of his or her...
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