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Workplace Smoking

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While making a brief trip recently to a place of business in a local outdoor mall in central Florida, I noticed that a new sign had been posted on the information board in the middle of one of the sidewalks: “Smoking in Workplaces Is Prohibited by Law.” The sign was gone the next week, replaced by an ad for a movie at the mall’s theater, so I was glad that I had written down what was on it. Apparently, these signs change every so often, depending on how long organizations or places of business want to advertise something.

I remember that the smoking sign also contained a phone number for people to call for more information. And in small print at the bottom of the sign was the website address for Tobacco Free Florida (TFF). It turns out that TFF is not some private anti-smoking organization that was trying to draw attention to Florida smoking laws. TFF is a state agency designed “to protect the people of Florida from the dangers of tobacco.”

TFF

According to the TFF website mentioned on the sign at the mall, “TTF is administered through the Florida Department of Health’s Bureau of Tobacco Free Florida (BTFF), and funded by money derived from the state’s tobacco settlement agreement with the major tobacco companies in 1997.”

The state of Florida sued a number of tobacco companies in 1995 and eventually reached an $11.3 billion out-of-court settlement with them to compensate the state for the public-health costs caused by smoking-related illnesses. Florida’s governor Lawton Chiles said the state won on three important battlegrounds: “protecting Florida’s children, making tobacco pay for the damage it has cost our taxpayers, and for cigarette makers to finally tell the truth.” Payments to the state by the tobacco companies under the settlement are made on April 30 and December 31 of each year and are based on the tobacco companies’ national market share. Non-monetary provisions of the settlement included the prohibition of billboard and transit advertisements of cigarettes and the removal of cigarette-vending machines from places accessible to children.

In 2006, the Florida Use of Tobacco Settlement Funds Amendment (amendment 4) appeared on the November election ballot — the result of a constitutional amendment initiative petition requiring 611,009 signatures (720,218 were obtained). More than 60 percent of Florida voters approved amending the Florida constitution to require the funding of statewide tobacco-education and -prevention programs with tobacco-settlement money. More than $5 million was spent on the media campaign focusing on the amendment’s passage — all from one group: Floridians for Youth Tobacco Education.

The ballot title read, “Protect People, Especially Youth, from Addiction, Disease, and Other Health Hazards of Using Tobacco.” The summary of the amendment on the ballot read,

To protect people, especially youth, from addiction, disease, and other health hazards of using tobacco, the Legislature shall use some Tobacco Settlement money annually for a comprehensive statewide tobacco education and prevention program using Centers for Disease Control best practices. Specifies some program components, emphasizing youth, requiring one-third of total annual funding for advertising. Annual funding is 15% of 2005 Tobacco Settlement payments to Florida, adjusted annually for inflation. Provides definitions. Effective immediately.

The ballot language also contained this fiscal note:

This amendment requires state government to appropriate approximately $57 million in 2007 for the Comprehensive Statewide Tobacco Education and Prevention Program. Thereafter, this amount will increase annually with inflation. This spending is expected to reduce tobacco consumption. As a result, some long-term savings to state and local government health and insurance programs are probable, but indeterminate. Also, minor revenue loss to state government is probable, but indeterminate.

TFF was launched in 2007 as a direct result of the passage of this constitutional amendment.

According to the Campaign for Tobacco-Free Kids, tobacco use is the leading cause of preventable disease in Florida, where each year more than 32,000 people die from smoking — more than die from “alcohol, AIDS, car crashes, illegal drugs, murders, and suicides combined.” About 270,000 “kids now under 18 and alive in Florida who will ultimately die prematurely from smoking.” The annual health-care costs in Florida directly caused by smoking are said to be $8.64 billion. The Medicaid costs are said to be $1.51 billion. Productivity losses are said to be $8.32 billion. Florida residents’ state and federal tax burden from smoking-caused government expenditures is said to be $835 per household.

Following the principles established by the Centers for Disease Control and Prevention, TFF “reaches millions of Floridians through hard-hitting media campaigns, public relations, social media, evidence-based tobacco cessation services, grassroots initiatives, county-level grants that advance tobacco-free policies, a youth-led movement called Students Working Against Tobacco (SWAT), school-based interventions, and surveillance and evaluation to ensure effectiveness.”

The BTFF-desired result for the TFF program is “to inspire Floridians to quit smoking and discourage youth from starting.” The agency claims that TFF is working. TFF “awareness” is high throughout the state, and “shows a positive impact on smoking-related attitudes and behaviors.” The smoking rate of adults in Florida is below the national average. The smoking rate for high-school students has decreased. Fewer high-school students are reporting living in a home where someone smokes. TFF “is saving lives and saving taxpayers millions of dollars.”

But regardless of how unhealthy smoking is, regardless of how many people die from smoking-related diseases, and regardless of how successful Florida’s TFF program is, some important questions must still be answered about the proper role of government:

  1. Is it the proper role of government to educate people about the health risks of smoking?
  2. Is it the proper role of government to persuade people to quit smoking?
  3. Is it the proper role of government to help people to quit smoking?

From a libertarian perspective, the answer, of course, is a resounding “no” to all three questions. Libertarians see the purpose of government as being limited to the protection of people’s lives, liberty, and property from the violence or fraud of others. The only legitimate purposes of government are to prosecute and punish those who initiate violence against others, commit fraud against them, or violate their property rights. Acts of government paternalism lead to a nanny state from which there is never an end. A nanny state is a perversion of government.

If it is the proper role of government to educate people about the health risks of smoking, then what about government’s using tax money to educate people about the health risks of obesity? If it is the proper role of government to persuade people to quit smoking, then what about government’s using tax money to persuade people to eat healthy foods? If it is the proper role of government to help people to quit smoking, then what about government’s using tax money to help people to lose weight? And why should the government stop with obesity, healthy eating, and losing weight?

In a free society, private organizations would be free to educate people about the health risks of smoking, persuade people to quit smoking, and help people to quit smoking — as long as they were privately funded and not government funded. Once a nanny state is accepted in the name of the public interest, no logical argument can be made to limit its reach.

But what about the need for the state of Florida to be compensated for the public-health costs caused by smoking-related illnesses? That question also has a simple answer. There should be no public-health costs of any kind to begin with. There should be no Medicaid. Hospitals should not be forced to admit all comers. Smokers should be liable for their own medical expenses incurred as a result of their use of tobacco. Health- and life-insurance companies should be able to charge whatever they deem appropriate to insure smokers; and they should be able to refuse to issue any policies to them in the first place. Every member of society should be responsible for the consequences of his own actions. It is simply ludicrous to blame the tobacco companies for the premature deaths of smokers. And it should be noted that when Florida and the other states sued the tobacco companies, the money they were awarded included punitive damages, not just money to reimburse them for public-health spending.

Do states with anti-tobacco programs really want all of their residents to quit smoking? All states with anti-smoking programs face a dilemma. Cigarette excise taxes are a nice source of revenue for the states. Missouri has the lowest state tax on a pack of cigarettes at only 17 cents. The tax rates in Virginia (30 cents), Georgia (37 cents), and North Dakota (44 cents) are also fairly low. But the tax rate in most states is much higher, especially in the Northeast, where the tax on a pack of cigarettes is $3.90 in Connecticut, $3.51 in Massachusetts, $3.75 in Rhode Island, $4.35 in New York, and $3.08 in Vermont. And then there are local cigarette taxes, as in Chicago, where the combined state, county, and municipal taxes total $6.16 and in New York City, where smokers pay a total of $5.85 per pack. That is all in addition to the federal excise tax of $1.0066 on each pack of cigarettes. And then there is state sales tax on each pack sold.

It is one thing for the government to educate people about the health risks of smoking; it is one thing for the government to persuade people to quit smoking; it is one thing for the government to help people to quit smoking, but it is an entirely different matter for the government to ban smoking in workplaces. To do so is to go from a nanny state to an authoritarian state.

But that is exactly what the state of Florida did when it amended the Florida Clean Indoor Air Act (FCIAA).

FCIAA

The FCIAA was enacted by the Florida Legislature in 1995. Its stated purpose was “to protect the public health, comfort, and environment by creating areas in public places and at public meetings that are reasonably free from tobacco smoke by providing a uniform statewide maximum code.” It decreed that “a person may not smoke in a public place or at a public meeting except in designated smoking areas.” A “public place” was defined as an “enclosed, indoor area used by the general public.” That included government buildings, public transportation and their associated terminals, elevators, hospitals, nursing homes, educational facilities, public-school buses, libraries, courtrooms, jury-waiting and jury-deliberation rooms, museums, theaters, auditoriums, arenas, recreational facilities, restaurants, retail stores, grocery stores, places of employment, health-care facilities, day-care centers, and common areas of retirement homes and condominiums.

In 2002, the Florida Prohibit Workplace Smoking Amendment (amendment 6) appeared on the November election ballot. Like the Florida Use of Tobacco Settlement Funds Amendment, it was the result of a constitutional amendment initiative petition. This time the initiative petition required 488,722 signatures (517,217 were obtained). The initiative was sponsored by Smoke-Free for Health, Inc. More than 70 percent of Florida voters approved amending the Florida constitution to prohibit smoking in more indoor workplace environments.

The ballot title read, “Protect People from the Health Hazards of Second-Hand Tobacco Smoke by Prohibiting Workplace Smoking.” The summary of the amendment on the ballot read,

To protect people from the health hazards of second-hand tobacco smoke, this amendment prohibits tobacco smoking in enclosed indoor workplaces. Allows exceptions for private residences except when they are being used to provide commercial child care, adult care or health care. Also allows exceptions for retail tobacco shops, designated smoking guest rooms at hotels and other public lodging establishments, and stand-alone bars. Provides definitions, and requires the legislature to promptly implement this amendment.

The text of the amendment defined “enclosed indoor workplace” as

any place where one or more persons engages [sic] in work, and which place is predominantly or totally bounded on all sides and above by physical barriers, regardless of whether such barriers consist of or include uncovered openings, screened or otherwise partially covered openings; or open or closed windows, jalousies, doors, or the like.

It included as “work,” without limitation, “any such service performed by an employee, independent contractor, agent, partner, proprietor, manager, officer, director, apprentice, trainee, associate, servant, volunteer, and the like.” The smoking prohibition became effective on July 1, 2003, and applied to all enclosed indoor workplaces “without regard to whether work is occurring at any given time.”

Now, there is no question that cigarette smoking is not only unhealthy, but potentially deadly. According to the Centers for Disease Control and Prevention,

  • Cigarette smoking harms nearly every organ of the body, causes many diseases, and reduces the health of smokers in general.
  • Cigarette smoking causes more than 480,000 deaths each year in the United States.
  • More than 10 times as many U.S. citizens have died prematurely from cigarette smoking as have died in all the wars fought by the United States during its history.
  • Cigarette smoking increases risk for death from all causes in men and women.
  • Smokers are more likely than nonsmokers to develop heart disease, stroke, and lung cancer.
  • Smoking causes diminished overall health, increased absenteeism from work, and increased health-care utilization and cost.
  • Cigarette smoking causes most cases of lung cancer.
  • Smoking can cause cancer almost anywhere in the body.
  • If nobody smoked, one of every three cancer deaths in the United States would not happen.

Is there a cigarette smoker in America who doesn’t realize that smoking is unhealthy and potentially deadly? The danger of smoking was never the issue.

It is one thing for the government to ban smoking in government buildings and public; that is, government-owned and -operated, places such as libraries, schools, buses, hospitals, transit systems, parks, museums, auditoriums, arenas, and recreational facilities; but it is an entirely different matter for the government to ban smoking in restaurants, theaters, stores, workplaces, health-care facilities, nursing homes, day-care centers, common areas of retirement homes and condominiums, and privately owned libraries, schools, buses, hospitals, transit systems, parks, museums, auditoriums, arenas, and recreational facilities.

It is simply not the business of government to prohibit the use of what it deems to be unhealthy, addictive, or harmful substances. A government with the power to outlaw unhealthy, addictive, or harmful substances is a government with the power to ban any substance for the populace’s “own good.” The fact that a majority of people might favor banning some activity or a majority of voters indicate to a legislature that they want such a prohibition binding on others does not make the prohibition any less misguided, wrong, or authoritarian.

In a free society, all elements of the private sector individually decide on smoking policies. In a free society, it is entirely up to the owners of restaurants, transportation services, stores, shops, entertainment venues, recreation venues, and other places that do business with the general public to prohibit smoking, permit smoking, set up designated smoking areas, or otherwise regulate smoking on property or in vehicles they own. In a free society, it is likewise entirely up to the owners of offices, factories, plants, and other workplaces that don’t do business with the general public to formulate their own smoking policies.

But it is not just decisions about smoking that should be left up to each individual business. The same principle applies to a whole host of things in the workplace that government at some level currently regulates or that many people would like to see government regulate.

Workplace sovereignty

In a free society, the workplace is sovereign. That means that the owners of the workplace — not the government — set policies relating to employees in the workplace and members of the public who enter the workplace to engage in commerce. If an employee (or potential employee) doesn’t like a policy in the workplace he can suffer in silence, seek to have the offending policy changed, or find another place of employment. It is that simple. If someone from the general public doesn’t like a policy in a particular workplace, he can likewise suffer in silence, seek to have the offending policy changed, or find another workplace to engage in commerce. It is that simple. It all comes down to the right of property owners to establish the rules for being on their property.

As it relates to employees, workplace sovereignty means that employers are free to mandate that certain uniforms be worn, whether facial hair is allowed, what hair styles are permitted, whether head coverings can be worn, and whether religious or other exemptions will be granted for any of those things. Workplace sovereignty means that questions of salary, health insurance, sick pay, family leave, and overtime pay are things to be negotiated between employer and employee — the government should have nothing to do with any of them or otherwise interfere with the employer/employee relationship. Workplace sovereignty also means that it is up to each employer whether employees are required, permitted, or forbidden to say “Merry Christmas” or “Happy Holidays.”

As it relates to the general public, workplace sovereignty means that patrons of businesses may be required to dress a certain way as a condition of entering or engaging in commerce with a particular place of business. I am old enough to remember signs outside of stores reading, “No shirt, no shoes, no service.” Workplace sovereignty means that patrons may be required to behave a certain way; for example, not using profanity. Workplace sovereignty also means that businesses have the right to refuse service to anyone for any reason or offer discounts to particular groups on any basis.

Workplace sovereignty works — in a free society where property rights are respected, freedom of association is observed, and the government stays out of the workplace.

This article was originally published in the December 2017 edition of Future of Freedom.

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