Surgeon General

In the early 2000s smokers risk more than their health. Bans and restrictions on smoking have swept through nearly every walk of public life, driving smokers out of offices, restaurants, and public buildings. Some firms even limit hiring to nonsmokers. Since the mid-1960s, the antismoking movement has changed social attitudes and laws that govern this age-old habit. Leading this change were numerous studies warning that exposure to secondhand smoke kills thousands of U.S. citizens each year. Increasingly provoked by the antismoking clampdown, smokers' rights groups and the U.S. tobacco industry protest what they see as discriminatory treatment.

Laws against smoking date back to the late nineteenth century, when 14 states prohibited cigarettes. Contemporary anti-smoking efforts began with a U.S. surgeon general's report in 1964 endorsing medical findings that smoking causes cancer. Congress required warning labels on tobacco products in 1965. In 1967 the FEDERAL COMMUNICATIONS COMMISSION (FCC) mandated that broadcasters carry antismoking messages in proportion to tobacco advertisements. This ruling led to the disappearance of tobacco ads from television and radio.

In the 1970s, public concern shifted. A long-standing awareness of smokers' personal health risks was surmounted by growing fears about hazards to the public in general. Increased attention to secondhand smoke, or environmental tobacco smoke (ETS), fueled this significant change. A 1972 report by the U.S. Surgeon General's Office, containing a chapter on ETS, gave antismoking activists a powerful new weapon (The Health Consequences of Smoking: A Report of the Surgeon General). Restrictions on public smoking began to appear. In 1973 the Civil Aeronautics Board required airlines to provide separate smoking and nonsmoking sections. States passed clean indoor air acts to protect the health of nonsmokers, beginning with Arizona in 1973 (Ariz. Rev. Stat. Ann. § 36-601.01). The U.S. tobacco industry lobbied strongly against such measures and defeated a 1977 California bill, but momentum was with the antismoking movement. By the early 1990s, all but five states had enacted some form of state antismoking law.

The next victory for nonsmokers came in a landmark 1976 court case that upheld a worker's right to a smoke-free work environment (Shimp v. New Jersey Bell Telephone, 145 N.J. Super. 516, 368 A. 2d 408 [N.J. 1976]). Donna Shimp, an office worker, successfully sued her employer after complaining that an allergy to smoke caused her physical suffering. Her employer installed an exhaust fan, but when this proved ineffective, Shimp was asked to move to a different work site; the move amounted to a demotion and pay cut. In Shimp, the court ruled that workers who are especially sensitive to smoke must not be subjected to it in the course of performing their job. The court's opinion cited clear and overwhelming evidence that cigarette smoke poses general health hazards by contaminating the air.

A turning point came in 1986 when Surgeon General C. EVERETT KOOP issued a report titled The Health Effects of Involuntary Smoking. The report concluded that ETS causes lung cancer and other diseases in nonsmokers. It carried a dramatic warning: separating smokers and nonsmokers within the same airspace might reduce—but could not eliminate—the hazards of breathing ETS. Koop's report coincided with a study by the National Academy of Sciences that reached similar conclusions. Although the tobacco industry disputed these findings, the reports galvanized the anti-smoking movement.

The first effect on federal legislation was seen in December 1987, when Congress enacted an amendment to the Federal Aviation Act of 1958 (§404[d][1] [A]) that placed a two-year ban on smoking on all domestic airline flights of less than two hours' duration.

Debate over the amendment was fierce. Supporters of the ban included flight attendants and a coalition of health groups, including the American Cancer Society. Their argument centered on the perils of ETS. The airline industry noted that smoking on airplanes created many problems, ranging from damage to aircraft interiors to the difficulty of purifying recirculated cabin air. Opponents, particularly members from tobacco-producing states, argued that the ban would depress tobacco prices. They also said it would be difficult to enforce. But enforcement proved effective because Congress granted the FEDERAL AVIATION ADMINISTRATION (FAA) the power to fine violators without resort to judicial intervention. After the two-year ban expired, Congress passed a law permanently banning smoking on all domestic airline flights under six hours' duration (103 Stat. 1098 [49 U.S.C.A. § 1374(d) app.]), which went into effect February 25, 1990.

Surgeon General Koop's report also sparked a surge of state legislation. In June 1989, New Jersey became the third state in the nation, after Kansas and Utah, to ban smoking in buildings owned by boards of education. The New Jersey law, New Jersey Statutes Annotated, section 26.3D-17(b) (West 1990 Supp.), was aimed at preventing teenagers from picking up the smoking habit. Many other states passed antismoking laws as well, including Virginia, a tobacco industry stronghold. Virginia's law, Code of Virginia Annotated, section 15.1-291.2 (West 1990 Supp.), restricted smoking in public places such as common areas of schools, government buildings, and restaurants. A more comprehensive New York law, New York Public Health Law I, sections 1399-n to 1399-x (McKinney 1990), took effect January 1, 1990, and targeted most public areas and workplaces. The law permitted smoking at work in limited areas as long as all present agree to allow it.

Federal policy making followed this trend. In 1987 the GENERAL SERVICES ADMINISTRATION (GSA) banned smoking in its 6,900 federal buildings, and Amtrak, the federal passenger rail line, imposed new limits on smoking in its trains, effective April 1, 1990. Also in 1990, the INTERSTATE COMMERCE COMMISSION banned smoking on interstate buses.

Private bans on smoking also increased. Some companies, such as Turner Broadcasting, in Atlanta, Georgia and Northern Life Insurance, in Seattle, Washington refused to hire smokers.

Many smokers view laws dictating when and where they may smoke as an infringement of their personal rights. However, a federal appeals court in 1987 rejected the argument that the U.S. Constitution protects the right to smoke. In Grusendorf v. City of Oklahoma, 816 F.2d 539 (10th Cir. 1987), the court upheld a city fire department's dismissal of a trainee for smoking during a lunch break in violation of a policy prohibiting smoking both on and off the job. The ruling said this limit on individual liberty was justified by a rational purpose: namely, to protect the health of employees in an industry that demands that its workers be in good physical condition.

Supported by civil libertarians and tobacco industry LOBBYING, smokers have had some success seeking laws designed to protect them from being fired or passed over for job promotions. By 1992, 13 states had passed smokers' rights legislation. Not everywhere have such laws been successful, however. In New Jersey, Governor James J. Florio vetoed smokers' rights legislation in January 1991. The New Jersey bill would have protected smokers in much the same way CIVIL RIGHTS laws now protect people against job discrimination on the basis of race, religion, and sex. Florio refused to put smoking into that category.

On January 7, 1993, the ENVIRON-MENTAL PROTECTION AGENCY (EPA) handed antismoking forces further ammunition in a report on secondhand smoke ("Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders" [EPA Report EPA/600/6-90/006F]). Based on several years of research, the report designated ETS as a potent carcinogen that kills about 3,000 U.S. citizens annually and causes hundreds of thousands of respiratory illnesses in children. Strikingly, the agency placed ETS in the same risk category as radon and asbestos.

Reaction to the EPA risk assessment was swift and dramatic. In the six months that followed, approximately 145 local governments banned smoking in public buildings. Los Angeles passed far-reaching legislation that banned smoking in most restaurants. Effective August 2, 1993, the law applied to some 7,000 indoor restaurants, permitting smoking only in outdoor seating areas. Violators face citations of up to $250, and restaurant owners who permit indoor smoking face jail sentences of up to six months and $1,000 fines. An effort to repeal the controversial law was soon underway.

Although the U.S. Surgeon General's Office did not reach its hoped-for goal of a smoke-free United States by 2000, antismoking laws have continued to proliferate. As of May 2003, according to the American Nonsmokers' Rights Foundation, more than 1,600 municipalities in the United States had some sort of smoking restrictions. Probably the most noteworthy development is the growing number of municipalities that are banning smoking from restaurants and bars. Nonsmokers in New York City found a staunch ally in Mayor Michael Bloomberg, who lobbied relentlessly for a smoke-free workplace ordinance that went into effect in April 2003. Boston implemented a similar ban a month later. Tobacco firms remain resolutely opposed to further controls, arguing that these would endanger a legitimate $350 billion industry. But the trends since the mid-1960s suggest that smokers will find fewer and fewer places to light up legally.