Saturday, April 2, 2011

Smoking Bans - The Continued War on Smokers Takes a Strange Turn

Dr Michael Siegel continues to take on businesses that refuse to hire smokers.

Of course tobacco control advocates like Dr Siegel are opposed to such discrimination towards smokers by extremist anti-smokers, but I just have a feeling it's not entirely because it's simply unfair to smokers.  What else is there then?  Quite simply because it illustrates the concept of free association which undermines the reasoning legislated smoking bans were able to be forced on business owners in the first place - to protect the rights of the non-smoker.

Now I respect Dr Siegel even though our opinions differ on a number of issues.  He has always been willing to discuss issues, to include his own research with us laymen on the other side of the debate and listen to our concerns with some of their proposals and positions.  Even though he is currently at war with the mainstream anti-smoker extremists who have taken over the business, it's only because he now sees their irrationality as undermining what he considers to be legitimate progress that he has been a part of from the beginning.  He still is very much a tobacco control advocate supporting things like smoking bans which I view as an illegitimate abuse of authority.


The entire anti-smoking movement has been a series of trial and error.  For years anti-smoking activists petitioned the Occupational Safety and Health Administration (OSHA) to issue severely restrictive permissible exposure limits (PEL) for environmental tobacco smoke (ETS) in the workplace, but OSHA continuously refused based on the fact that they had existing PEL on many of the individual constituent carcinogenic substances within ETS and where smoking was present it failed to exceed those PEL.  OSHA maintained that such cavalier rule-making without solid scientific evidence would be indefensible in a court of law. 

Failing that, the anti-smokers then enlisted the help of the Environmental Protection Agency (EPA) to come up with such scientific evidence.  The EPA responded by publishing a meta-analysis in 1992 under the authority of the Radon Act to justify classifying ETS as a class A carcinogen.  But OSHA didn't buy it because the report was seriously flawed and ventured away from traditional epidemiological analytic procedures.  The EPA cherry picked data, excluded studies, and even lowered the confidence interval (CI) from the standard 95% to 90% in this single, stand alone analysis to get anything that even resembled a weak statistically significant relative risk (RR) to indicate there may be an association between ETS exposure and lung cancer.  Indeed, they produced a weak RR of 1.19 for ETS in this report they determined to be sufficient to classify ETS as a class A carcinogen, yet the EPA could not adequately explain why they refused to similarly include other noxious substances with RR of 2.6 and 3.0 on their list of class A carcinogens even at the 95% confidence interval. 

OSHA restated their position in 2003:

Environmental Tobacco Smoke (ETS) Because the organic material in tobacco doesn't burn completely, cigarette smoke contains more than 4,700 chemical compounds. Although OSHA has no regulation that addresses tobacco smoke as a whole, 29 CFR 1910.1000 Air contaminants, limits employee exposure to several of the main chemical components found in tobacco smoke. In normal situations, exposures would not exceed these permissible exposure limits (PELs), and, as a matter of prosecutorial discretion, OSHA will not apply the General Duty Clause to ETS.

The inequities in the methodologies applied by the EPA in the 1992 report were all documented in a federal court decision where Judge Osteen took a discerning look at the methodologies employed by the EPA and found many to be severely lacking in integrity with no plausible explanation from the EPA.  Unfortunately, Osteen's ruling was vacated by a higher court on a technicality in that the report was only advisory in nature and did not actually issue binding regulation on industry and therefore was not a final agency action, meaning the court didn't have jurisdiction to assess the damages because it was not a rule-making mandate.  Thus, the report stands as an advisory opinion of the EPA, but that's all beside the point here with this growing phenomenon of businesses increasingly discriminating against smokers in their hiring practices.


Anti-smokers eventually got rid of the smoke in workplaces with fabricated political rhetoric mostly based on that flawed EPA report by pushing for legislation that precipitated a blizzard of smoking bans across the US under the premise that smokers and non-smokers must co-exist and be able to utilize the same spaces.  The whole premise was accomodation to prevent a sort of job discrimination against the non-smoking employee.   But it apparently didn't stop there and instead of just seeking rational solutions such as smoking break rooms away from non-smokers, and irrational ones of prohibiting business owners from fully utilitizing their property as they see fit by subjecting them to all-inclusive bans, we're now seeing a full out assault trying to get rid of smokers altogether.  Oh that rascally slippery slope...


As long as smokers and non-smokers were forced to mix in society and in the workplace, anti-smokers had some small misguided justification to ban smoking everywhere they could to allow a non-smokers equal access while thinking they were perpetrating some great civil rights movement.  But they sure didn't foresee their campaign to denormalize and demonize smokers as having such unintended effect (or was it really intentional?) as to actually having businesses start to discriminate and institute all out bans on smokers themselves.  

What does this mean for the tobacco control movement?  Well, if businesses can legally ban all smokers and kick them out of workplaces as we are now seeing, then there is no justifiable reason left to ban smoking in all workplaces.  Smokers should reasonably be allowed to run their own businesses and only hire smokers, similarly discriminating against non-smokers, and more specifically, vocal intolerant anti-smokers, because they are the source of all the problems as to why we can't all get along in the first place.  Smokers do not and never had the right to partake of their habit on the property of others to include their places of employment.  Smart business owners would simply accomodate their habit in order to contract for their labor until the ban happy people got involved.  But smokers do have the right of freedom of association and all inclusive bans trample that right into the dirt.

I personally never cared if private businesses saw fit to discriminate against smokers.  They've always been there.  Henry Ford was a notorious anti-smoker and Thomas Edison refused to hire smokers.  The fact is that even after years of anti-smoking activism, smokers still exist in large enough numbers that discriminating business owners only hurt themselves by limiting the pool of available workers.  As more and more businesses go that route, they will quickly exhaust the entire prospective employee pool of non-smokers.  Indeed, that has already happened with the city of North Miami which refused to even interview smokers for police officer jobs for 13 years and has since quietly and unceremoniously reversed that policy even though the Florida Supreme Court ruled that the government had such a right to discriminate (See North Miami (City of) v. Kurtz, 1995).  The fact that such policies even exist in government agencies that confiscate resources from smokers through taxes to provide community services would also refuse those same smokers employment is troubling, if not outrageous.  A similar policy that existed at CNN since 1986 was also quietly reversed when they realized they were turning away better candidates than those they were forced to hire because of the policy.

So, at least according to the Florida Supreme Court, it's perfectly legal in places where they do not have anti-discrimination laws protecting smokers for even government agencies to discriminate.  But in the end, for our government to allow private businesses and even government agencies themselves to exercise such practices is the ultimate in hypocrisy for the government to simultaneously perpetrate all-inclusive smoking bans to deny smokers the right to partake of a legal habit on their own property and in their own businesses under the guise of protecting non-smokers' rights.  One or the other eventually has to go.

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