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.