Posted by Jonathan Adler:
Tobacco Regulations and Norms:
http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245079330
The New York Times [1]believes legislation passed by Congress granting
the FDA the authority to regulate tobacco products is an "enormous
victory for public health." For reasons I explain in [2]this NRO
article, I am not convinced the legislation does much for public
health, let alone the public good. Among other things, the legislation
could frustrate the development and marketing of reduced-risk tobacco
products, impose troubling limitations on commercial speech, and
cement Philip Morris' position as the tobacco industry's dominant
player. Is it any wonder Philip Morris was a big backer of the bill?
Speaking of tobacco regulation, Henry Farrell has an [3]interesting
post considering the near "universal success" in implementing smoking
bans in public places in the United States as well as overseas,
including places like Ireland and Italy where one might have suspected
smokers and pub owners to disregard such laws. Specifically, Farrell
suggests:
my best guess in the absence of good evidence would be that the
success of the ban reflected instabilities in previously existing
informal norms about where people could or could not smoke. Laws
that work against prevailing social norms face an uphill battle in
implementation � unless people come to a general belief that
non-compliers are highly likely to be sanctioned by the public
authorities, they are likely to carry on doing what they always do.
Hence, for example, the continued failure of the RIAA etc to stop
file-sharing � file-sharers who both (a) think that there is
nothing wrong with swapping music and movies, and (b) that the
chance that they are going to be punished is low, are going to go
on sharing files (current US law tries to counterbalance this
problem by applying relatively draconian penalties to the few file
sharers who are caught, but this strategy carries its own
problems). Laws that broadly fit with prevailing informal norms,
will, obviously, have few implementation problems.
But what we may have seen (if my guess is right) with smoking bans
is an unusual case in which prevailing norms (that Irish people can
smoke in pubs to their hearts� content, and that others will just
have to put up with it) were much more fragile than they appeared
to be, and that the change in law made it easier for those
disadvantaged by the prevailing norms to challenge smokers and to
shame them into stopping smoking in certain places, hence creating
a new set of robust norms.
This seems plausible to me. While I'm no fan of smoking bans -- I
think rules about smoking can and should be made by individual
businesses -- it is interesting that such prohibitions have not
sparked more resistance, and I think it is clear that even us cranky
libertarian types generally prefer patronizing smoke-free places.
So let's say Farrell is correct, and smoking bans have displaced an
unstable norm that smoking in restaurants is acceptable with a more
robust norm that smoking in restaurants is not. What would happen were
such bans to be repealed? My best guess is that relatively little
would change. When I think about my favorite local restaurants, I
cannot see any of them allowing patrons to smoke even if the law were
changed. There are one or two local bars, however, that I suspect
might allow smoking on the premises, but they would be the exception.
So whereas before the smoking ban here in Ohio, most restaurants and
bars allowed smoking in a separate room or at the bar, were the ban
repealed today I would be willing to bet that most restaurants and
bars would remain entirely smoke-free.
What does this all mean? On the one hand, if most restaurants and bars
would remain smoke-free, it seems to me the argument for allowing some
establishments to adopt different rules is that much stronger. Remove
the bans and us libertarian-types can still toast to the free market
system in a smoke-free pub. But it is important to acknowledge that
this state of affairs exists today because of the initial government
intervention. The smoking ban appears to have helped solve a
collective action problem that had kept a suboptimal norm in place. So
even if a ban limited the ability of business owners to set the rules
for their own businesses, it may have also helped them shift toward
preferable business practices. Non-governmental efforts may have
produced the same result eventually, but it would almost certainly
have taken longer. So smoking bans have been beneficial, but it may
also be the case that the maintenance of such bans is unnecessary to
retain most of their benefits.
References
1. http://www.nytimes.com/2009/06/12/opinion/12fri1.html
2.
http://article.nationalreview.com/?q=YWUwOTExZGNjNTlmNWM1OGZkOWNhY2Q5ZTY5ODA3NTc=
3. http://crookedtimber.org/2009/06/12/smoking-bans-and-public-norms/
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