No-smoking ordinances have proved surprisingly resistant to challenge.
Smoking bans are proliferating just now. Rival ballot initiatives are competing in three states, and Omaha went smoke-free last month after its prohibition survived a court challenge. In New York City and Denver, tobacco has become so verboten that actors smoking onstage light up clove cigarettes. Is this because anti-tobacco crusaders have come up with airtight evidence that secondhand smoke really does cause health problems?
Well, yes and no. The U.S. surgeon general did issue a report in June stating that exposure to secondhand smoke significantly increases the chance of heart disease and lung cancer. But the political battle has not so much been won by the anti-smoking activists as it has been lost by the other side, which seems to be running out of ammunition.
The strategy of the pro-smoking forces has generally been to challenge the bans on the basis of equal protection, because the ordinances often exempt certain types of businesses or grant them grace periods unavailable to others. Under Omaha's law, for example, customers at a racetrack, a keno establishment or a bar that doesn't serve food can smoke freely for five more years. But the courts have been inclined to dismiss this argument. In Omaha, County District Judge John Hartigan ruled in September that bars and gambling establishments have always been regulated more heavily than other enterprises, and so it was acceptable to treat them differently when it comes to smoking.
The other common complaint against smoking bans has been that they drive down business in bars and restaurants. That argument, too, has fallen a bit flat. Several studies indicate that once a smoking ban is put in place, people adjust. Business doesn't suffer; in fact, in some cases it prospers. Smokers still have to eat, after all, and there are plenty of people more willing to enjoy an establishment once its air has been cleaned up.
Don Mullineaux, a University of Kentucky business professor, found that restaurant employment increased in Lexington after a smoking ban went into effect. "You have people going outside to smoke and coming back in," he says. "From an economist's point of view, yeah, you've imposed some costs, but those costs are not so high that you would stop patronizing the restaurants."
It's not that the restaurants like being in this position. Most of them clearly don't. But they're learning to live with it. Some are even climbing on board the smoking-ban bandwagon, in hopes they can shape the details of laws they wouldn't be able to block. "Fighting local and statewide smoking bans remains an uphill battle for our industry," concedes Melvin Thompson, of the Restaurant Association of Maryland.