Abstract
The issue of environmental tobacco smoke (ETS) and the harms it causes to nonsmoking bystanders has occupied a central place in the rhetoric and strategy of antismoking forces in the United States over the past 3 decades. Beginning in the 1970s, anti-tobacco activists drew on suggestive and incomplete evidence to push for far-reaching prohibitions on smoking in a variety of public settings. Public health professionals and other antismoking activists, although concerned about the potential illness and death that ETS might cause in nonsmokers, also used restrictions on public smoking as a way to erode the social acceptability of cigarettes and thereby reduce smoking prevalence. This strategy was necessitated by the context of American political culture, especially the hostility toward public health interventions that are overtly paternalistic.
At the dawn of the public health movement against tobacco in the early 1960s, smoking was ubiquitous. Public spaces and sociability were defined by the presence of cigarettes. For nonsmokers, the presence of smoke was a part of the social environment. Although for many there was little or no annoyance, some found cigarette smoke irritating, and others found it frankly intolerable. For those who found smoking difficult to endure, the only solution was to withdraw from the public space into the protection afforded by privacy.
Over the next 3 decades, a profound social transformation was to occur. What had been a mark of sociability would become antisocial, and smoking would increasingly be restricted to private settings. Such shifts in social attitudes toward and policies regarding public smoking began in the early 1970s, advanced by public health officials and antismoking activists drawing on the first hints and suggestive evidence about the hazards posed by smoking for nonsmokers. The movement against public smoking was shaped by the broader emergent environmental movement, a new health consciousness, and the array of rights-based challenges to the status quo. As a consequence, the needs of the nonsmoking bystander assumed great salience. In the end, however, the most dramatic effect was on smokers themselves, who were forced to change their routines, came to endure increasing stigmatization, and felt mounting pressure to quit their habit because of the transformation in the public context within which smoking could occur.
The exceptional importance that has been accorded to the issue of environmental tobacco smoke (ETS) must be understood in light of the ideological constraints imposed by American culture and politics and the profound hostility occasioned by public policies that are explicitly paternalistic. It was within this context that antismoking policies and activism had to find subjects who were worthy of protection—nonsmokers—and on whose behalf restrictions on smoking could be justified. In this article, the claims of the bystander are the focus of analysis. We examine the ways in which the political and ideological context of the United States influenced evolving notions of the harm caused by secondhand smoke and the public health strategies created as a response.
In an address to a coalition of organizations concerned about smoking and health in 1971, Surgeon General Jesse L. Steinfeld voiced his concern for those placed at risk by smokers, innocents who could not protect themselves. “The mother who smokes,” he said, “is subjecting the unborn child to the adverse effects of tobacco and as a result we are losing . . . and possibly handicapping babies.” Just as he raised alarm about the dangers of fetal exposure, the surgeon general expressed his concern for those compelled to breathe air filled with smoke. “Evidence is accumulating that the nonsmoker may have untoward effects from the pollution his smoking neighbor forces upon him. Nonsmokers have as much right to clean air and wholesome air as smokers have to their so-called right to smoke, which I would redefine as a ‘right to pollute.’ ” The surgeon general then went on to propose a policy agenda that would define the goals of the antismoking movement over the next 3 decades. “It is high time to ban smoking from all confined public spaces such as restaurants, theaters, airplanes, trains and buses. It is time that we interpret the Bill of Rights for the nonsmokers as well as the smoker.”1 The 1972 Surgeon General's Report on Smoking for the first time identified the exposure of nonsmokers to cigarette smoke as a health hazard.2
The newly apprehended hazard served as a catalyst for the nonsmokers' rights movement in the 1970s. Among the most prominent organizations was the evocatively named GASP (Group Against Smokers' Pollution). In its first newsletter, The Ventilator, the call went out to nonsmokers, “the innocent victims of tobacco smoke,” to assert the “right to breathe clean air.” That was a right that took precedence over “the right of the smoker to enjoy a harmful habit.”3 GASP and other groups began to press for policies to restrict public smoking.
They did so against the backdrop of considerable public support for such measures. As early as 1970 (before the surgeon general had spoken out about harm to nonsmokers), 58% of men who had never smoked and 72% of women who had never smoked agreed that lighting up should be allowed in fewer public spaces. More than three quarters of those who had never smoked felt that it was “annoying to be near” someone who was smoking.4
Some initial successes in this area showed how potentially effective the nonsmokers' rights movement—which by focusing on how smokers placed others at risk was able to counter the accusation of paternalism—could be. In 1973, the Civil Aeronautics Board ordered domestic airlines to provide separate seating for smokers and nonsmokers. In 1974, the Interstate Commerce Commission ruled that smoking be restricted to the rear 20% of seats in interstate buses.5 States and localities also began to impose restrictions. In 1973, Arizona became the first state to restrict smoking in some public spaces. In 1974, Connecticut enacted the first statute to restrict smoking in restaurants. In 1975, Minnesota passed a comprehensive statewide law “to protect the public health, comfort, and the environment by prohibiting smoking in public spaces and at public meetings except in designated smoking areas.”6 In 1977, Berkeley, Calif, became the first local community to limit smoking in restaurants and other public settings.2
These successes occurred within a context of scientific uncertainty and some skepticism about the precise nature of the physical harms, if any, incurred by secondhand exposure to tobacco smoke. It was such skepticism that informed a 1975 editorial in the New England Journal of Medicine. Gary Huber,7 who in later years would emerge as a sharp critic of the developing public health consensus on the risks of tobacco smoke to nonsmokers, concluded that beyond the “psychogenic” effect of exposure to ETS, the questions centering on the potential biological effect “remain unanswered.” Writing 5 years later, when a study was published that found that ETS impaired respiratory function, Claude L'Enfant and Barbara Liu8 of the National Heart, Lung, and Blood Institute asserted that until that time, “[t]he case against smoking in the environment has often been anecdotal, based on annoyances, feelings and sometimes more objective physical reactions such as eye and nose irritation.” Even though there was solid evidence that maternal smoking had damaging effects on a fetus and that children could be harmed by secondhand smoke in the home, L'Enfant and Liu acknowledged, “Generally speaking, the evidence that passive smoking in a general environment has health effects remains sparse, incomplete, and sometimes unconvincing.”
With such ambiguity in the available science, it is not surprising that those who were ideologically opposed to regulatory interventions would seek to characterize the efforts of the nonsmokers' rights movement as politically motivated and baseless—an expression of moralism.
The tobacco industry viewed the effect of the nonsmokers' rights movement as potentially ominous. As early as 1973, the US Tobacco Journal, an industry publication, expressed concern that because of the changing social climate, some smokers were beginning to enjoy their habit less and were forgoing it in some social situations. “The tobacco industry must begin to think about this phenomenon along with the groundwork for a countervailing strategy to defeat it.”5(p14)
Most dramatic was a report prepared in the late 1970s by the Roper Organization for the Tobacco Institute.9 The findings of the analysis were quite troubling. Almost 60% of those surveyed believed that smoking was probably hazardous to nonsmokers. Strikingly, 40% of smokers agreed that their smoking posed a danger to bystanders. Given these data, the Roper Organization concluded that the issue was no longer “what the smoker does to himself, but what he does to others.” Writing to the industry that had commissioned the study, the Roper Organization painted a stark picture. “We believe it would be difficult to overemphasize the importance of [these] finding[s], indicating as [they do] that the battle to convince the public of the dangers of passive smoking is in the process of being lost, if indeed it is not already over.” The Roper Organization concluded that the trend posed a hazard to the very viability of the tobacco industry. Although there was little support, suggested the report, for a total ban on smoking in public, there was support for the segregation of smokers and nonsmokers. This trend could transform itself from a “ripple to a tide.” Furthermore, if segregation did not achieve the goal of the antismoking movement, if nonsmokers saw themselves as still at unacceptable risk, “the present sentiment . . . could become support for a total ban.”
The industry had no alternative. It had to confront the proponents of restrictions on public smoking head-on, by “developing and widely publicizing clear-cut, credible medical evidence that passive smoking is not harmful to the nonsmoker's health.”
That effort was to become more difficult in the early 1980s. In 1980, a scientific article in the New England Journal of Medicine reported that the exposure of nonsmokers to tobacco smoke reduced breathing capacity.10 That study led L'Enfant and Liu, in the above-cited editorial, to conclude, “Now for the first time we have a quantitative measurement of a physical change—a fact that may tip the scales in favor of the nonsmoker.”8 In 1981, two studies found that nonsmoking wives exposed to their husbands' cigarette smoking were at increased risk for lung cancer. Whatever their methodological limitations, the studies from Greece11 and Japan12 had a profound effect in shaping public perceptions and concerns.
Two editorials in the New York Times captured the new mood. In response to the study reporting the effect of passive smoking on breathing capacity, the New York Times wrote, “The case for restricting smoking in public rooms is getting stronger.”13 Although acknowledging that the clinical significance of reduced lung function was not known, the editorial concluded that unless smokers could be segregated so that they could not “jeopardize their neighbors . . . a prohibition on smoking in indoor places would be justified.”13 In response to the studies of exposed wives, the New York Times, with obvious allusions to violent spousal abuse, titled its editorial “Smoking Your Wife to Death.”14 The New York Times claimed that the new data “adds to the growing evidence that second-hand smoke kills. The result strengthens the case for banning smoking in public places, especially where abstainers are exposed to smoke for long periods.”14
When the National Academy of Sciences addressed the issue of ETS in its 1981 report Indoor Pollutants, it provided an imprimatur to the goals set a decade earlier by the nonsmokers' rights movement. “Public policy should clearly articulate that involuntary exposure to tobacco smoke has adverse health effects and ought to be minimized or avoided where possible.”15
The apparent emerging scientific consensus provided a weapon to antismoking forces, which skillfully used it to mobilize public opinion for greater restrictions despite the fierce opposition of the tobacco industry. In 1983, a Gallup poll found that 82% of nonsmokers believed that smokers should refrain from their habit in their presence and that smoking posed a health hazard for them; 64% of smokers held the latter view as well.16
By 1986, 41 states and the District of Columbia had enacted statutes that imposed restrictions on smoking. Only 8% of the US population resided in states with some restrictions in 1971, whereas 80% of the population resided in states with some restrictions by the mid-1980s. Although such laws varied in their scope, the trend over the 15 years since the surgeon general had called for such enactments in 1971 was in a more restrictive direction.6 In addition to state laws, local jurisdictions began to enact prohibitions or limitations on public smoking. By the end of 1985, 89 cities and counties had done so, approximately 75% of which were in California, a measure of the effect of the Berkeley-based Americans for Nonsmokers Rights.17
In the 15-year-old struggle to impose ever-stricter controls on public smoking, 1986 represented a watershed year. Both the National Academy of Sciences and the surgeon general issued critically important reports that sought to document the dangers of exposing nonsmokers to tobacco smoke and, in so doing, propelled the movement for broader and more restrictive public smoking measures. The National Academy's Committee on Passive Smoking was the more limited of the 2 reports. Nevertheless, its message was clear and direct. “Considering the evidence as a whole, exposure to ETS increases the incidence of lung cancer in nonsmokers.”18 It was unable to come to a firm conclusion on a matter that would, in the next years, become of great concern: the effect of ETS on heart disease.18(p11)
The report of the surgeon general, The Health Consequences of Involuntary Smoking,6 was broad in scope and sharp in its warnings. Data did not permit the report to provide a quantitative estimate of the numbers of lung cancers caused by passive smoking, but there was no question that such cases occurred and that whatever the number, it was “sufficiently large to generate substantial public health concern.” Surgeon General C. Everett Koop was mindful of the controversy that surrounded the issue of passive smoking—a controversy fueled by the tobacco industry, which sought to focus attention on the limitations of the data—and confronted it directly. For the purposes of the public health, the data were good enough, and the costs of inaction were too great. “Critics often express that more research is required, that certain studies are flawed, or that we should delay action until more conclusive proof is produced,” Koop declared. “As both a physician and a public health official it is my judgment that the time for delay is past, measures to protect the public health are required now.” Strikingly, he went on to suggest that many of the measures that had been put into place were inadequate. Merely separating smokers and nonsmokers in rooms that shared a common ventilation system reduced, but did not eliminate, exposure. In the end, Koop returned to the moral foundation of the call for protective measures. “The choice to smoke cannot interfere with the nonsmoker's right to breathe air free of tobacco smoke. . . . [t]he right of smokers to smoke ends where their behavior affects the health and well-being of others.”6
In the years following the publication of these 2 reports, efforts to further restrict smoking intensified, as did resistance on the part of the tobacco industry. In 1987, the US Department of Health and Human Services established a smoke-free environment in all of its buildings nationwide, extending protection to more than 100 000 federal employees. In 1988, Congress imposed a smoking ban on all US domestic flights of 2 hours or less. Two years later, the ban was extended to flights of 6 hours or less, in effect banning smoking on all domestic flights. By 1988, smoking restrictions had been imposed in 125 counties and cities in California; 118 required nonsmoking sections in restaurants, and 117 limited workplace smoking.19 In all, by 1988, 400 local ordinances restricting smoking had been enacted in the United States.20
Confronted with a movement that enjoyed widespread popular support, the tobacco industry sought to thwart smoking restrictions through several strategies. Most significant was the effort to undermine the very basis of such efforts by challenging the scientific evidence that ETS represented a health hazard. In 1984, the Tobacco Institute issued a broadside critique of the scientific “misinformation” strengthening the emerging public health consensus. “We don't think [the harmful effect of exposure to tobacco smoke] has been shown,” an industry publication claimed.21 Seeking to undermine the claims of those who argued that the industry always denied that smoking posed a hazard, the Tobacco Institute was willing to embrace strategically those whom it typically denounced: “Many scientists who believe smoking is harmful to smokers have publicly stated there is not sufficient evidence to conclude [that] public smoking is harmful to nonsmokers.”
Central to the industry's strategy was the perpetuation of controversy to preclude closure of the scientific discussion. In 1988, the industry created the Center for Indoor Air Research to fund studies that would attempt to undercut findings that ETS threatened the health of nonsmokers.22
A second element of the industry's strategy was to transform the issue of restrictive smoking policies from one centered on potential hazards to one focused on the core American values of liberty and choice. Hence, the industry fostered and then underwrote smokers' rights activities and publications.23 Characterizing regulatory efforts to restrict smoking and smokers as intrusive and unnecessary, the industry proposed as an alternative the virtues of common sense, courtesy, and mutual respect by smokers and nonsmokers.
Finally, as it discovered that it could not match grassroots efforts in cities and counties to restrict smoking, the industry supported the enactment of state statutes that preempted legislation and regulation at the local level.
Reflecting on the significance of what had been achieved and what still needed to be done, antismoking activists recognized that the shift to an environmental perspective had been extraordinarily effective in providing justification for the imposition of measures to restrict public smoking, changing the public debate about the legitimacy of governmental efforts to limit the freedom of smokers, and permitting the movement to shed the taint of an intrusive paternalism. The executive director of Americans for Nonsmokers Rights thus said in 1987, “We're just telling smokers to step outside, not how to save their lives.”17 In addressing himself to other activists, Stanton Glantz,24 who more than any other individual had defined the ETS issue as crucial, emphasized the strategic importance of the focus on protecting innocents. “Activists should state that they are not ‘antismoker’ but rather environmentalists concerned with clean air for everyone. The issue should be framed in the rhetoric of the environment, toxic chemicals, and public health rather than the rhetoric of saving smokers from themselves or the cigarette companies.”24
However, despite that strategic posture, Glantz's vision was broader, concerned as it was with lifting the burden of smoking on American society. “Although the nonsmokers' rights movement concentrates on protecting the nonsmokers rather than on urging the smoker to quit for his or her own benefit, clean indoor air legislation reduces smoking because it undercuts the social support network for smoking by implicitly defining smoking as an anti-social act.”24(p746) These remarks were included in an editorial titled “Achieving a Smokefree Society.”24 Glantz's aspirations were echoed in the mid-1980s by the director of the Office on Smoking and Health of the federal Department of Health and Human Services. “Of all the issues, [the issue of passive smoking] will propel the United States toward a smoke-free society.”25
In the 1990s, the pivotal moment for those seeking to rid the public space of smoke and smokers came with publication in 1992 of the Environmental Protection Agency's Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders.25 The agency placed numbers on those affected that previously had been only vaguely apprehended, and it did so with an apparent precision that made the published statistics politically electric. Many children and infants were being placed at risk. Between 150 000 and 300 000 annual cases of lower-respiratory-tract infections such as bronchitis and pneumonia were linked to ETS exposure in children younger than 18 months. Between 200 000 and 1 000 000 asthmatic children had their conditions exacerbated by exposure to tobacco. The Environmental Protection Agency's declaration that ETS was a class A carcinogen, placing it in the same category as asbestos, benzene, and radon, was even more damaging. Approximately 3000 annual lung cancer deaths were attributed to ETS.26
Newspapers across the United States responded to the report with a sense of urgency. In an editorial titled “No Right to Cause Death,” the New York Times claimed that “the evidence is now overwhelming” that ETS was dangerous.27 In the New York Times' view, the “toxic fumes” and “lethal clouds” generated by smokers made them “at least a small hazard to virtually all Americans—and a fitting target for tighter restrictions.” The New York Times drew an analogy between secondhand smoke and other hazards regulated by the Environmental Protection Agency: “No one would grant his neighbor the right to blow tiny amounts of asbestos into a room or sprinkle traces of pesticide onto food.”27
The antiregulatory Wall Street Journal remained a contrarian voice, openly questioning the antismoking science even after the government reports of 1986 and 1993. In a 1994 editorial,28 the newspaper claimed that “the anti-smoking brigade relies on proving that secondhand smoke is a dangerous threat to the health of others. ‘Science’ is invoked in ways likely to give science a bad name. . . . [t]he health effects of secondhand smoke are a stretch.”
Armed with science, activists, linked with their public health allies and sympathetic political figures, pressed for more extensive restrictions in the early and mid-1990s. Two measures that were proposed but not implemented illustrate how far-reaching the efforts to restrict smoking had become. The Occupational Safety and Health Administration proposed a rule that would have effectively banned smoking in most workplaces in the United States, and Congress considered the Smoke-Free Environment Act, which would have barred smoking in every building “entered by 10 or more people at least one day a week.” Smoking in buildings open to the public could occur only in rooms restricted for that purpose and that permitted venting to the outside. Smoking also would have been prohibited outside building entrances.29 Endorsed by the Clinton administration, the American Medical Association, and several former surgeon generals, the legislation failed to move forward when the Republicans took control of Congress in 1994.
A review of restrictions undertaken by the surgeon general noted that by the end of 1999, 45 states and the District of Columbia had enacted some legislation to protect indoor air. Forty-three states and the District of Columbia restricted smoking at government worksites; 29 of the 43 limited smoking to designated areas, and 11 imposed total bans. Despite the failure of the Occupational Safety and Health Administration to promulgate its workplace rule, 21 states had restricted smoking at private worksites. Twenty-one states regulated restaurant smoking.2 The number of local ordinances restricting smoking also grew dramatically from the mid-1980s, when there had been some 400 such measures, to 1998, when there were more than 800.30 Capturing the transformation that had occurred, historian Allan Brandt could say of smokers in the United States that they “literally had no place to hide.”31
Public health officials for almost 4 decades had been calling attention to the enormous toll exacted by cigarette smoking, generally estimated at close to 400 000 lives a year. The consensus about the effect of ETS on lung cancer was that 3000 to 4000 deaths a year could be traced to exposure of nonsmokers to tobacco smoke. Agreement eluded efforts to determine whether passive smoking also increased the risk of heart disease. Some proposed as early as 1991 that 37 000 deaths each year from heart disease were linked to ETS.31 Those estimates served as a rallying cry for antismoking activists, who argued that with tens of thousands of deaths each year attributable to ETS, passive smoking was the “third leading preventable cause of death in the United States, behind active smoking and alcohol.”32(p10)
However, by the end of the 1990s, uncertainty remained about the centrally important question of the effect of ETS on coronary heart disease. When a summary of epidemiological studies published in the New England Journal of Medicine in 1999 concluded that “passive smoking [was] associated with a small increase in the risk of heart disease [italics added],”33 the accompanying editorial, written by a biostatistician who had previously been critical of the meta-analytic method used in the review, noted, “We still do not know, with accuracy, how much or even whether exposure to environmental tobacco smoke increases the risk of coronary heart disease.”34 To such doubt, the advocates of strict control over ETS continued to respond with new evidence buttressing the politics of certainty that defined their posture.35 Forceful editorial commentaries urged the importance of protecting “everyone . . . from even short-term exposure to the toxins in second-hand smoke.”36
Given the ongoing debate about the relation between ETS and heart disease, and the fact that the health burden in smoking-related death and disease is so much greater on smokers themselves than on nonsmokers, why had the plight of the bystander assumed such salience in the rhetoric and political strategy of the official and grassroots antismoking movements? Why did the addictive nature of tobacco not provide the foundation for strategies that directly targeted smokers themselves in the first decades of the antitobacco campaign? How can one explain the fact that in the 1970s and early 1980s, the efforts to restrict public smoking outstripped the scientific evidence on the effects of ETS? What can account for the alacrity with which efforts were made to extend the scope of restrictions from settings in which the evidence was clearest, such as exposure of infants and children in home environments, to those in which the evidence was at best suggestive, such as exposure in restaurants and other public spaces?37
The anti-tobacco movement was, of course, spurred by the degree to which ETS unfairly injured nonsmokers and by the preventable deaths and illnesses for which it was responsible. However, more was involved. By repositioning the bystander to center stage, public health advocates were able to press for changes that, if pursued directly, would have been politically unpalatable. Just as restrictions on advertising could most easily be justified in the name of protecting children from manipulation, restricting smoking could be justified by the claims of the bystanders. It was possible to pursue the goal of a smoke-free society without adopting the paternalistic posture that would have been necessitated by expressly seeking to regulate the choices adults made on their own behalf. This approach thus represented a public health equivalent of the Catholic doctrine of double effect, which holds that an outcome that would be morally wrong if caused intentionally would be permissible if unintended, even if foreseen.
Finally, the changing social class composition of smoking has facilitated the campaign against ETS. As tobacco consumption has become concentrated among those of lower socioeconomic status, it has become easier to stigmatize as undesirable behavior. In this way, efforts by public health activists to reduce smoking mirror campaigns by Progressive Era reformers to impose hygienic behavior on the “lower orders” in the name of public health. Unlike those earlier efforts, however, contemporary antismoking strategies have not been overtly paternalistic.
Some antismoking activists have exulted in the ever-more-stringent limitations on public tobacco consumption, lobbying to extend such restrictions because of their broad effects on the social acceptability of smoking. Others have begun to worry that their movement may have begun to take on the taint of moralism and authoritarianism. The debate over how far to push flared in the journal Tobacco Control in 2000, centering on the question of the legitimacy of imposing bans on outdoor smoking, efforts that could be justified only in terms of annoyance abatement, not of disease prevention. Two officials at the National Cancer Institute's tobacco program noted approvingly that some communities had chosen to restrict outdoor smoking for reasons other than health, including the reduction of fire risks, litter control, and the elimination of nuisances.38 Antismoking activist James Repace, who was among the first to quantify the health burdens of ETS, asserted, “Even if outdoor environmental tobacco smoke were no more hazardous than dog excrement stuck to the bottom of a shoe, in many places laws require dog owners to avoid fouling public areas. Is this too much to ask of smokers?”39 To all of this, Tobacco Control's editor Simon Chapman expressed his dismay: “We need to ask whether efforts to prevent people smoking outdoors risk besmirching tobacco control advocates as the embodiment of intolerant, paternalistic busybodies, who not content at protecting their own health want to force smokers not to smoke, even in circumstances where the effects of their smoking on others are immeasurably small.”40
But it was precisely because restrictions on public smoking had important effects on smoking itself that many public health activists gave such emphasis to broadening the range of prohibitions. It would have been impossible to ignore the fact that measures initially pursued in the name of protecting nonsmokers had secondary benefits—restricting smoking itself—that far outweighed the contribution associated with limiting exposure to ETS.41
Only the risk of overreaching in a way that would have made clear the paternalistic impulse and the prospect of political resistance served as a restraint. In a nation where efforts to limit liberty in the name of public health can so readily provoke opposition, the shape of the anti-tobacco strategy was all too predictable.
The strictures imposed by the cultural and ideological antipathy to paternalism may serve as an impediment to the further development of policies designed to alter the normative and public context of smoking in America. To the extent that such a transformation is critical to reductions in smoking and to the death and disease to which smoking is linked, it may well be necessary to directly address public smoking as a matter of protecting not only nonsmokers, but smokers themselves.
Work on this article was supported by the Robert Wood Johnson Foundation through the grant Tobacco Control and the Liberal State: The Legal, Ethical, and Policy Debates.
