We Are Not Criminals

Status 9/26: Public calendar continues quiet

The Los Angeles City Council calendar is fairly quiet for the week of September 29-October 3 due to the beginning of the Jewish New Year. That means there will probably be no action this week on any of the smoking ban initiatives currently in front of the Council.

A meeting of the Arts, Parks, Health & Aging committee is scheduled for this week, but none of the smoking matters are listed on the agenda. An expected meeting on the impact of the proposed smoking area in outdoor dining areas has not yet taken place, but is expected soon.

Opposition to the ban has been forming. The new national grass-roots organization, Cigar Rights of America, opposes the ban, noting that events like the recent God of Fire dinner at the Hotel Bel-Air – which raised $228,600 for charities that benefit children – would be eliminated. Other groups, including the California Restaurant Association, are informed on the issue and are considering their positions.

It’s also noteworthy to see that in other cities, a pushback is being felt against anti-tobacco initiatives. In San Francisco, a ban on selling tobacco products in pharmacies has drawn two lawsuits, from Walgreen Co. (complaining that such products can be sold by large retailers such as CostCo and Wal-Mart and supermarkets, even though both have pharmacies) and Altria (complaining that the ordinance blocks a store from selling a legal product). On October 8, a fairly contentious hearing is expected in Boston on proposed new regulations which would ban outdoor smoking, sales in pharmacies and other restrictions.

Tobacco-control research prof rips Parks' proposal

Dr. Michael Siegel is a physician and professor at Boston University who has devoted more than 20 years to research and study of the effects of smoking. He posts comments on tobacco policy on his blog "The Rest of the Story" at TobaccoAnalysis.blogspot.com.

A particularly relevant post was pointed out to me from August 13, 2008, in which Siegal comments on the Bernard Parks motion to ban smoking almost everywhere in Los Angeles. This is an excerpt from a much longer post, but it’s worth reading carefully:

The ordinance would ban smoking in every outdoors location where people "reasonably congregate." Essentially, this means that there would be no outdoors smoking anywhere, with the exception of some dark deserted alleys. If enacted, this would be the most restrictive smoking ban in the nation.

The Rest of the Story

I now understand why anti-smoking advocates and groups are distorting the truth. Because they are promoting such extreme proposals that go far beyond the documented scientific evidence that they need to create their own facts in order to justify these proposals.

You can't credibly argue that smoking needs to be banned everywhere outdoors to protect the health of nonsmokers using the actual truth about the severity of health risk from secondhand smoke exposure. There simply is no evidence that a few wisps of secondhand smoke, as one might encounter from someone smoking on a sidewalk or in a street, parking lot, or park puts people's health at risk and represents a significant public health problem.

The only way to advance these policies, then, is to artificially build up the severity of the harms of secondhand smoke so that you can convince people that any exposure - even a few wisps of smoke - is a severe health hazard.

This, I now realize, is the impetus behind the widespread fallacious claims that are being made by over 100 anti-smoking groups about the cardiovascular effects of brief secondhand smoke exposure.

I no longer believe that this distortion of the science, which goes right up to the level of the Surgeon General (who claimed that brief secondhand smoke exposure was sufficient to cause heart disease and lung cancer), represents a simple, innocent mistake.

It is now clear that this is part of a new agenda (one that I never thought was part of the movement) to extend smoking bans beyond workplaces, restaurants, bars, and other places where there is substantial exposure. The movement is now to virtually ban all smoking outside of the home, so that no nonsmoker ever has to even see a smoker in public.

There simply is no credible alternative explanation for claims - like this one - which are so absurd that they are patently false on their face. You need only think about it for about 3 seconds before you realize that secondhand smoke exposure cannot possibly be more harmful than active smoking.

The epidemiologic evidence obviously does not support such a conclusion. The relative risk of lung cancer associated with chronic active smoking is about 17. The relative risk for lung cancer associated with chronic secondhand smoke exposure is about 1.3. That's a 13-fold difference. It is intuitively clear that smoking is worse than breathing in secondhand smoke. This isn't an example of stretching or exaggerating the facts - it's an example of creating (i.e., fabricating) them.

I should point out that if you take this message seriously, then a rational nonsmoker might actually start smoking. After all, according to the message, it's better to smoke yourself than to be exposed to secondhand smoke. The message truly undermines the severe health effects of active smoking because it states that active smoking is less harmful than secondhand smoke exposure. Thus, the statement is not only fallacious, but it is a dangerous one which undermines years of education of the public about the severe harms of active smoking.

While the main reason why I object to the fabrication of the science is that I view it as unethical, I wish to point out that I also think it undermines our cause of protecting nonsmokers from secondhand smoke. It gives the public the impression (rightly so, apparently) that our goal is not just to save lives and prevent serious medical conditions but instead, that our goal is simply to protect nonsmokers from ever having to breathe in a wisp of secondhand smoke or see a smoker. It makes it appear that we are trying to prohibit smoking through the back door and that de facto prohibition is our real agenda, rather than a legitimate public health interest in protecting nonsmokers from a severe health threat.

To use a half-marathon analogy, I feel like I have been running a half-marathon and I get to the finish line and stop, but everyone else keeps running. I thought the goal was to provide a safe working environment for all employees and to protect nonsmokers from a substantial health hazard in certain outdoors locations where they cannot easily avoid tobacco smoke exposure. Instead, the movement just keeps on going, trying to ban smoking in every possible outdoors location and even starting to infringe upon the private home.

I feel all alone at the finish line, wondering where everyone has gone.

The rest of the story is that I have come to the conclusion that the distortion of the science by anti-smoking groups is not merely an innocent mistake or an uninformed interpretation of scientific evidence. It is, instead, a deliberate attempt to promote an extremist agenda by fabricating scientific evidence that will support an agenda that is simply not supported by the scientific truth.

The entire post goes on for a while, but it’s worth reviewing as it rips the cover off of the anti-tobacco movement now at work in Los Angeles.

Status 9/22: Quiet before the storm?

Action on the three anti-smoking items currently in process before the Los Angeles City Council has slowed for the time being:

>> On the Grieg Smith-Dennis Zine motion (no. 08-1544) for the City Attorney to draft an ordinance prohibiting all smoking of tobacco products in "outdoor dining areas," the Arts, Parks, Health & Aging Committee put off voting on the matter for 45 days so that a meeting could be held with the affected industries, notably restauranteurs. That meeting has not been held as yet, although it is anticipated soon.

>> On the Bernard Parks’ motion (no. 08-2123) to have the City Attorney draw up an ordinance to ban smoking essentially everywhere in Los Angeles, no hearings has been held and it has not, as yet, appeared on the calendar of the Arts, Parks, Health & Aging Committee. It’s not likely they will take it up until the outdoor dining area motion has been handled.

>> On the Parks’ resolution (no. 08-002-S5130) that Los Angeles County ban smoking everywhere, the item was referred to the Rules & Government Committee and no hearing on the item has yet been scheduled. The Rules & Government Committee hearing scheduled for Wednesday, September 24 has been cancelled. The next likely meeting date is Wednesday, October 8.

In the meantime, similar measures in Boston and San Francisco are also in the legislative hopper. Hearings in Boston on a measure to ban smoking outdoors will be held on October 8. A San Francisco ordinance similar to the one proposed by Parks was rejected by the County of San Francisco Supervisors and sent back to committee. Among others, a renter’s union was protesting the inclusion of a section that would allow landlords to evict tenants for smoking in common areas!

L.A. City Council bans smoking at Farmer's Markets

To the surprise of absolutely no one, the Los Angeles City Council voted 15-0 on Wednesday to ban smoking at City-permitted Farmer’s Markets.

What was more interesting were the comments from the individual Council members:

>> Wendy Greuel (2nd District), Janice Hahn (15th) and Tom LaBonge (4th) confined their remarks to the issue at hand and said that smoking should be banned at these weekly market events. Importantly, Greuel pointed out that the ban is about the marketplace and that if someone is smoking, they can move across the street or down the street. She did not make any blanket statements about prohibiting smoking everywhere at all times.

>> Herb Wesson (10th) noted that he is the only smoker among the Council members, but supports this ordinance as a way to keep food and smoking separated.

>> Bill Rosendahl (11th) said he was a reformed smoker and quit at age 39 (he’s 63 now), but had some pointed questions for Assistant City Attorney David Schulman about enforcement. While Schulman – clearly an advocate for this policy – insisted that the ordinance will be self-policing (meaning no one will violate it), but he admitted under close questioning that "if push came to shove," the Los Angeles Police Department would have to be involved in enforcement.

>> Greig Smith (12th) is an activist on this issue and made clear his position that smoking should be banned everywhere and at all times, in the U.S. and "across the world." He related a story of family members who were and are long-time smokers and have either died of lung cancer or are suffering from it. Smith also pushed for quick passage of his proposal to ban smoking in outdoor dining areas and is clearly a driver for banning smoking in Los Angeles.

The other nine Council members (including Bernard Parks) did not speak on the issue. If you want to watch the "debate," you can do so on the City of Los Angeles website using this link (jump to item no. 10 in the pull-down menu for the Farmer's Market item).

In response to Smith’s prodding, LaBonge reiterated that the outdoor dining areas ban was being discussed with the "restaurant industry" to gauge its impact.

The approved ordinance will now be sent to Los Angeles Mayor Antonio Villaraigosa for signature, which will be virtually automatic. The ordinance will be effective in a couple of months.

Prohibition never works, but the antis are trying hard

The Royal College of Physicians in London, England issued a report last week that suggested ways in which tobacco smoking could be eliminated in Great Britain in20 years. The usual mix of extremely-heightened taxes and limiting exposure was suggested, along with the formation of a new governmental agency (of course) to regulate products with nicotine in them.

Our comment on CigarCyclopedia.com for September 11 included this historical perspective:

The Royal College of Physicians missile nowhere mentions making smoking illegal, but making it anti-social, hard to find and prohibitively expensive. Alcoholic-beverage Prohibition in the U.S. didn’t make drinking illegal either, but prohibited its manufacture, transport or sale.

When Prohibition came to America in 1920, 33 of the then-48 states were already dry. While not quite at the same level, Pennsylvania became the 25th state to adopt indoor smoking bans which became effective today. But national (alcoholic beverage) Prohibition failed in just 13 years because people wanted to drink. Tobacco prohibition will fail – as it has before – because there are plenty of people who want to smoke.

It’s not widely remembered that tobacco prohibition was also tried in the U.S. less than a century ago. In Gordon Dillow’s excellent article called "Thank You For Not Smoking" for American Heritage in 1981, he noted that cigarette sales were banned by state law in Oklahoma in 1901, followed in later years by Idaho, Indiana, Iowa, Kansas, Minnesota, Nebraska, North Dakota, South Dakota, Tennessee, Utah, Washington and Wisconsin. Of these 13 states with cigarette prohibitions, six had repealed their laws by 1917 and ten had dropped the subject by 1921. Utah was the last to give up the fight in 1923.

The chief campaigner against tobacco was an Illinois woman named Lucy Paige Gaston, whose efforts were similar to those of the more-famous Carrie Nation against alcoholic beverages. But having failed, as Nation did, in her try at prohibition, Gaston ironically died of throat cancer in 1924.

The Spanish philosopher George Santayana wrote in Reason in Common Sense (1905), "Those who cannot remember the past are condemned to repeat it." It appears the anti-tobacco activists are ready to relive another failure over the succeeding 20 years.

Status 9/8: Farmer's Market ban on this week

The Bernard Parks motion to ban smoking almost everywhere in the City of Los Angeles is not up for discussion this week (September 8-12) as there is no meeting scheduled of the Arts, Parks, Health & Aging Committee.

Parks’s resolution asking the County of Los Angeles to implement a similar ban is not on the agenda of the Rules & Government committee meeting set for Tuesday, September 10, so there should be no action on it this week either.

Follow-up on last week’s approval by the Arts, Parks, Health & Aging Committee of a ban on smoking at City-permitted Farmer’s Market is on the City Council’s agenda for Wednesday, September 10 (item 10) and is sure to pass. It must be signed by Mayor Antonio Villaraigosa, which is also a surety.

The more contentious issue of banning smoking in outdoor dining areas was continued at last week’s meeting by the Arts, Parks, Health & Aging committee for 45 days, pending a "round table" discussion. We have seen no posting of information about this meeting as yet.

New bans coming to Los Angeles

Sitting and writing about stopping smoking bans is one thing. Sitting in front of a Los Angeles City Council committee and trying to have an impact is something else.

But someone had to stand up, so I did.

On Wednesday, September 3, I attended a meeting of the City’s Arts, Parks, Health and Aging Committee at City Hall. On the agenda were two anti-smoking items which had been working their way through the legislative process:

(1) The first was a draft ordinance (no. 07-1790) banning smoking at city-permitted "farmer’s markets," which had been drafted by the City Attorney following a motion by Council members Wendy Greuel, Jose Huizar and Richard Alarcon in July 2007. The legislative link is here.

The three-member committee – Tom LaBonge (chair), Janice Hahn and Jan Perry – approved the ordinance without objection and it will now be sent on to the full Council, where it will be approved quickly. It will no doubt be signed into law by Los Angeles Mayor Antonio Villaraigosa.

(2) The second item was a request from June made by Council members Greig Smith and Dennis Zine (no. 08-1544) for a ban on smoking in all outdoor dining areas. The committee was being asked to approve the motion to have the City Attorney draw up an ordinance, and then that approval would then have to be agreed to by the full Council to start the drafting process. The legislative link is here.

This was expected to be a more contentious matter and there were 10 speakers. Nine were in favor of the ordinance and I was the lone opposer. My statement to the committee (which Hahn didn’t hear because she was late) included:

I am here today to oppose the proposed, unnecessary ordinances against smoking at Farmer’s Markets and in outdoor dining sections of restaurants.

I am urging you to reject these proposals as unnecessary because they pose no threat to the public health and serve only to demonize smokers.

In the U.S. Surgeon General’s 727-page report on the consequences of involuntary smoking issued in 2006, no recommendations were made concerning outdoor smoking restrictions. In fact, less than a single page in the entire report dealt with outdoor smoking; that report was concerned solely with the impact of indoor smoking. And there are no studies which demonstrate that transient encounters with outdoor smoking create any kind of health hazard.

Because there is no health threat in these outdoor settings, I submit that the City already has an ordinance which covers this issue in section 41.16 of the Municipal Code which reads, "No person shall throw, blow or otherwise scatter on any street, sidewalk, restaurant, cafe, theatre, place of amusement or other public place any snuff, or any substance which injuriously affects the olfactory nerves or which causes sneezing or coughing or otherwise injuriously affects the person."

While it is today fashionable to ban smoking almost everywhere, the proposed ordinance does not address a public health issue and will do nothing to reduce the incidence of smoking in Los Angeles. It does subject smokers, a minority in this community, to additional ridicule for consuming a legal product.

If the City were serious about trying to reduce smoking using Farmer’s Markets or outdoor restaurant sections, it could be promoting smoker’s help programs in these locations. If the City wishes to remove smokers from public view, then it must give them someplace to go which is out of public view.

But for the City to simply continue to ban smoking and then hope it will not have to enforce violations is bad policy and will make a bad law.

The promoters of the ban were the usual suspects: deputies from the Council members who proposed it, the American Lung Association, American Heart Association and so on. Hahn, although for the motion, had questions about enforcement (the Assistant City Attorney present agreed enforcement would have to be done by the Los Angeles Police Department) and LaBonge was concerned about economic impacts to restaurants.

The committee did not approve the motion to have an ordinance drafted, but LaBonge asked for and received a 45-day continuance during which time a "round table" discussion will take place which is to involve all of the stakeholders who would be effected.

But LaBonge had no doubts about the outcome. He said, during the meeting, to the anti-smoking groups, "you’re going to see success eventually" on this item. How much success will depend on how strong the push-back is from restaurants and others during the round-table hearing and then in subsequent hearings when the ordinance is actually drafted.

For myself, I count the continuance and the "round table" meeting as a small win. There is something to the notion that simply showing up is important.

We will post the time and place of the "round table" meeting as soon as we know it. For further information about this meeting, please contact the Fourth District’s legislative deputy, Young-Gi Kim at (213) 485-3337 or by electronic mail at Young-Gi.Kim@lacity.org.

Status 8/29: City Council continues on hiatus

No action at all this week since the Council is finishing its two-week summer break. City Council members will return to business on Tuesday, September 2.

Status 8/25: City Council on hiatus this week

No action this week (August 25-29) since the City Council is on hiatus; Council business will resume on Tuesday, September 2.

Several of the Council members are in Denver for the Democratic National Convention (most are Democrats); it’s worth wondering how many were at the Distilled Spirits Council party last night smoking Rocky Patel cigars?

If you would like to tell Councilman Bernard Parks or other members of the Council what you think of Parks's motion, check out this flyer we prepared for Cigar Rights of America here.

Chief Legislative Analyst files report on Parks Resolution

The City's Chief Legislative Analyst filed a report on the Bernard Parks' Resolution to urge the County of Los Angeles to ban smoking everywhere in the County (Council file no. 08-002-S5130).

The report does not make a recommendation concerning the Resolution itself; it provides background on City smoking bans and on what other cities in Los Angeles County have done on the issue.

The Resolution currently sits in the Rules & Government Committee awaiting further action. The text of the CLA Report is here.