Owen Courreges: Should New Orleans become the model city for anti-smoking extremism?

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Owen Courreges

Aldous Huxley once wrote that “a fanatic is a man who consciously over compensates a secret doubt.”  This helps explain the bizarrely-detailed 25 page anti-smoking ordinance proposed this past Thursday by Councilwomen Latoya Cantrell and Susan Guidry.

Even I didn’t predict the staggering scope of the ordinance.  Instead of being content to simply ban most indoor smoking, already a contentious proposal, the bill seeks to ban most outdoor smoking as well and treats electronic cigarettes, which produce no smoke, the same way as traditional cigarettes.  It contains no exceptions for hookah lounges or cigar bars.

The preamble to the ordinance, the portion consisting of a litany of “whereas” paragraphs, runs over 7 pages long.  It is here where one sees just how little thought and effort actually went into drafting this monstrosity.

Much of the text appears cut-and-pasted from various sources, particularly model legislation from anti-tobacco groups.   This results in at least one embarrassing oversight: the proposed ordinance argues that “employers have a common law duty to provide their workers with a workplace that is not unreasonably dangerous.”

That’s true, but the problem should be apparent if you’re among those qualified to draft legislation. You know, one of those people who recognizes that Louisiana is not a common law state.

Still, the most disturbing aspect of the proposed law is not its poor draftsmanship, but its overreach.  First of all, it contains a very extensive ban on smoking outside.  Smoking is banned within 25 feet of any window or door of any regulated establishment, within 25 feet of any publicly-owned property (including parks), within 25 feet of any bus or streetcar stop, etc., etc.

The end result is that in the denser areas of the city, such as the French Quarter, you’re pretty much never running on the right side of the law if you light up outside.

The justification for this restriction is that “there is no risk-free level of exposure to secondhand smoke,” a trope repeated by various government health organizations and anti-tobacco groups.  While this may be true, it also misses the point.  Countless common things we are exposed to in the world pose some “risk” regardless of the level of exposure, but those risks are typically vanishingly small.

Furthermore, studies have shown that simply moving about 3-6 feet away from a smoker reduces outdoor exposure to secondhand smoke to near background levels.  If you aren’t practically invading a smoker’s personal space, there’s scarcely any risk at all.

When the risks imposed on third-parties are minimal, the need for prohibitive legislation is less than obvious.  Viewing citizens as fragile flowers that cannot take even the most fleeting, slight exposure to secondhand tobacco smoke is ridiculous.  There’s no reason to believe that outdoor smoking poses a significant health risk to others and it’s not worth the city’s time to enforce.

Since the outdoor prohibitions are so expansive as to defy common sense, it’s understandable that the law contains page after page of jaundiced argument.  Were I an anti-smoking fanatic, I’d need several pages of self-serving agit-prop to assuage my secret doubts as well.

Where the proposed ordinance really goes off the rails, though, is by treating electronic cigarettes the same way as traditional (let’s say “analog”) cigarettes.  The ordinance inexplicably deems the use of these devices to be “smoking” even though they produce vapor, not smoke.

The justification for attacking electronic cigarettes, a.k.a. “e-cigs,” is that they pose a “potential” health risk.  The proposed law cites the opinion of the World Health Organization (WHO) that indoor e-cig use be banned due to what amounts to a wholly unproven danger.

Conversely, the WHO has also released reports alleging proven cancer risks from all sorts of items, from cell phones and diesel engines, but I don’t see Cantrell and Guidry proving their health-crusading credentials by taking on those technologies.  Instead, the few early studies that have been performed on e-cigs have not shown any verifiable health risks from secondhand exposure.

It is true that the FDA is pushing for increased federal regulation of e-cigs, but in the absence of anything resembling a proven health risk, it’s obscenely premature to sic the NOPD on people using e-cigs in public.

I’ve gone on record as disfavoring any expansion of New Orleans’ anti-smoking laws, but I’d like to believe that even those who want an indoor smoking ban can agree that this proposed ordinance simply goes too far and needs to be fundamentally reworked.  A lot of people, including Mayor Landrieu, have indicated their support for the law in the abstract.  Now that this dreck has finally been released, I for one am hoping to see some pullback.

Even if we elect to ban smoking in casinos and bars, it makes sense to allow smokers to go outside.  It makes sense to exempt cigar bars and hookah lounges.  And it makes sense to ignore e-cigs entirely because the best evidence indicates they’re harmless.

But what’s on the table now isn’t reasoned policy; it’s a fanatical manifesto.  It has “crippling doubt” written all over it, and that’s why it needs to be rejected.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.

28 thoughts on “Owen Courreges: Should New Orleans become the model city for anti-smoking extremism?

    • TraveLAr,

      It is, but they’re doing it anyway. Plus, they’re attacking e-cigs for no damn reason. This is an irrational, radical movement we’re dealing with here.

      • Yes, I think the ecigs should be used outdoors too — nobody regulates what they put into those things. I’m not so sure that “irrational, radical” applies to a proposed ordinance whose backers probably expect some whittling to be done.

    • david,

      That’s just something I don’t buy — a politician going after radical policies they don’t even believe in as a “negotiation ploy.” Usually the politician actually supports the more extreme policy even if they don’t believe it can pass. That’s because as a political matter they’ll be associated with the more extreme view either way.

      Plus, I just don’t see the need for it. Cantrell seemed to have enough support to get an indoor smoking ban passed before. I think the more likely case is that she’s overestimating that support and trying to push even further.

  1. One could argue that being within 25 feet of another person constitutes a health risk. Disease, violence, emotional stress, vehicular accidents… second-hand smoke as an immediate threat is way down the list!

    • I’ve thought it over and no, there’s no argument for that! It’s people who specifically do harmful things to others that one should be concerned about, and that certainly includes indoor smoking. Outdoors, it is not so concentrated or lasting, so I don’t support that part.

  2. This is truly bizarre. With the stack of pressing issues facing the council, I have a hard time seeing the priority of anti-smoking legislation in NOLA. Let’s just pretend for a minute that this ordinance passed with unanimous support. Who would enforce it? Certainly not the police. If they can’t enforce littering, loitering, public intoxication, etc… then how would they enforce no smoking?

    If public health is the motivating factor here, then why pick on outdoor smoking or vaping? We’re surrounded by refineries who’s carcinogenic releases are ignored by the city’s leadership. Diesel exhaust is far more harmful than tobacco but you never hear a peep about that either. What about malfunctioning Don’t Walk signs, missing crosswalks, broken traffic signals, no streetlights, etc… Even our celebrated food poses a massive public health risk.

    No one believes for a second that our city leadership cares about public health and safety. This is nothing but shameless political posturing.

  3. Why are people against eating contaminated food and drinking contaminated water BUT
    it’s perfectly ok to breathe contaminated air from the 7,000 chemicals in other people’s cigarette smoke?
    We don’t choose to breathe!

  4. I am an extremely liberal environmentalist nonsmoker who rarely agrees with you, Owen – but you nailed this one. Parts of this anti-smoking ban are incredibly overreaching and based on nothing at all. I’m pro-science more than anything else, and there is just no basis for any of the outdoor bans. And especially not for the e-cig bans, which make ZERO sense based on the current science. E-cig bans are based on a puritanical idea that if smoking is bad, anything that can replace smoking but still be enjoyable must also be bad. I have numerous friends who have quit smoking cigarettes thanks to e-cigs, and while they still are using the e-cigs, there is no doubt that they are safer than actual tobacco.

    On the indoor smoking bans, I tend to be on the side of supporting them, unless there is an actual reason not to (e.g., they’ve taken mitigating actions to prevent second hand smoke exposure). It’ll be interesting to see what the lobbyists / lawyers for Harrah’s have to say on this, and whether they’ll be able to influence the direction of it.

  5. It sounds like the American Lung Association or similar folks are writing laws now. Grades(and money) are given to cities passing similar laws throughout the states. Excellent article and thanks for standing up for us smokers and vapers!

  6. The only problem with this article is that it continues the use of the inaccurate term “anti-smoking.” These fanatics aren’t “anti-smoking,” they are “anti-smoker.” They are interested in wielding power over and practicing discrimination on people who smoke.

  7. No intelligent person believes tobacco controls’ santimonious twaddle anymore. That only leaves paid shills and the mentally unstable.

  8. I’ve always thought that OSHA could put an end to smoking in bars by requiring bar workers to wear proper PPE for the workplace exposure.

    • OSHA doesn’t list tobacco smoke as a hazardous substance, so maybe if you don’t like smoking in bars you should patronize those that don’t allow it and leave the rest of us be.

    • generalsn,

      A lot of the ordinance was cut-and-pasted from the model law, but it was modified significantly as well, so anything inapplicable to Louisiana should have been identified. It’s my understanding that a lawyer reviewed everything, so there’s no excuse for the slipshod product.

  9. TraveLAr,

    That’s nonsense. There’s no evidence of danger, and yet you want the city to regulate anyway. Even more than that, early studies haven’t shown any verified risk of harm. I don’t know how much further from reasonable you can get. I stand by the idea that this is both irrational and radical; I frankly don’t know how else you’d describe it.

    And they aren’t just making e-cigs be used outdoors, they’re imposing the same restrictions to e-cigs as traditional cigarettes. Finally, they proposed this legislation and so they own exactly what it provides for — with or without “whittling.”

  10. Stephanie,

    It’s a matter of risk, and the restrictions here go beyond preventing excessive exposure to secondhand smoke. E-cigs are not the same as traditional cigarettes, and outdoor smoking does not generally cause significant exposure to the toxic chemicals you decry.

  11. I’m a Vegan and also Gluten intolerant. I think restaurants that don’t serve an entirely Vegan menu should be banned.
    Also, I believe anyone caught with any type of banned substance, such as marihuana so be arrested on a felony charge, as illegal drugs lead to criminal activity which is rampant in this city.

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