Heartland Ideas

Smoker's Rights

This “issue suite” cuts through the propaganda and exaggeration of anti-smoking groups by giving you access to the best available research and commentary from scores of independent research organizations, publications, and government sources.

This essay presents an overview of the controversy over tobacco control, with links to documents in HTML and PDF formats available from PolicyBot, the free electronic clearinghouse of free-market research and commentary that also resides on The Heartland Institute’s Web site. You can go directly to the “Smoking” topic in PolicyBot and search for documents without the assistance of this essay by clicking here.

An Entire Book Available Online!

In July 2006, The Heartland Institute published Please Don’t Poop in My Salad--a collection of essays and presentations written by Heartland President Joseph Bast during the past several years concerning taxes and regulations imposed on tobacco and its consumers.

Defending smokers is a thankless task in today’s politically correct environment, and Bast doesn’t deny that smoking is an unhealthy habit. But today’s taxes and bans go far beyond a reasonable public policy response to a public health problem. Bast asks for a reasoned debate that respects the rights of smokers and the owners of bars and restaurants.

The book includes a foreword by Joel Sherman, president of Nat Sherman International, one of the most recognized and respected names in the worldwide tobacco industry. Sherman writes, “Bast applies the common sense and critical thinking that are often lost by others who search for fame and ratings instead of the truth. ... I believe you will enjoy this book. I certainly did.”

Thousands of copies of the book have been distributed to elected officials at the annual meetings of the American Legislative Exchange Council, National Conference of State Legislatures, Council of State Governments, and National League of Cities. Hundreds have been distributed to tobacco retailers in the metropolitan Chicago area, including Jack Schwartz Fine Cigars, Up Down Tobacco, Marshall McGearty Tobacco Lounge, Old Chicago Smoke Shop, and Old English Pipe Shop. If you can help us make arrangements for similar distribution in your state, contact Government Relations Director John Nothdurft at 312/377-4000, email jnothdurft@heartland.org.

The book is available for purchase in Heartland's online store at http://heartlandstore.org/category/61274923741/1/Heartland-Books-CDs.htm. The entire book is also available online for downloading--free of charge--in Adobe Acrobat's PDF format, and individual chapters are available for viewing in HTML. Click here!


Why Defend Smokers?

Everywhere you look, anti-smoking groups are campaigning against smokers. They claim smoking kills one third or even half of all smokers; that secondhand smoke is a major public health problem; that smokers impose enormous costs on the rest of society; and that for all these reasons, taxes on cigarettes should be raised.

There are many reasons to be skeptical about what professional anti-smoking advocates say. They personally profit by exaggerating the health threats of smoking and winning passage of higher taxes and bans on smoking in public places. The anti-smoking movement is hardly a grassroots phenomenon: It is largely funded by taxpayers and a few major foundations with left-liberal agendas.

A growing number of independent policy experts from a wide range of professions and differing political views are speaking out against the anti-smoking campaign. They defend smokers for several reasons:

  • Smokers already pay taxes that are too high to be fair, and far above any cost they impose on the rest of society.
  • The public health community's campaign to demonize smokers and all forms of tobacco is based on junk science.
  • Litigation against the tobacco industry is an example of lawsuit abuse, and has “loaded the gun” for lawsuits against other industries.
  • Smoking bans hurt small businesses and violate private property rights.
  • The harm caused by smoking can be reduced by educating smokers about their options.
  • Punishing smokers “for their own good” is repulsive to the basic libertarian principles that ought to limit the use of government force.

Taxing Smokers

Cigarettes are already the most heavily taxed commodity in the U.S. The federal excise tax is $0.39 a pack and the national average state excise tax is about $0.60 per pack, for a total of $0.99 per pack. In addition, the 1998 Master Settlement Agreement (MSA) increased the price of a pack of cigarettes by about $0.40 a pack. In a growing number of cities, a pack-a-day smoker pays more in cigarette taxes than he or she pays in state income taxes.

Such high and discriminatory taxes on smokers are unfair. They are also an inefficient and unreliable way to raise funds for government. Excise taxes require regular rate increases to keep pace with inflation, whereas income, sales, and property taxes all rise with inflation or economic growth. Because of their narrow bases, excise taxes are unstable revenue generators. And excise taxes require relatively high rates to raise funds. These rates, in turn, create opportunities for evasion and the transfer of economic activity to states with lower taxes.

Dramatic price hikes and extreme taxes on cigarettes are threatening to create a stampede of tax evasion, black-market transactions, counterfeiting, and even use of lethal violence against convenience store clerks and truck drivers. Tax hikes of $1.00 a pack or more, as have been adopted recently by New York, Cook County, Illinois, and elsewhere threaten to take us to a neoprohibitionist era, with all the crime, expenses, and loss of respect for law enforcement that accompanied Prohibition.

Excise taxes are also regressive. People with low incomes not only pay a higher percentage of their incomes on cigarette taxes than do wealthier people, they even pay more in absolute terms. Persons earning less than $10,000 paid an average of $81 a year in tobacco taxes, versus $49 for those who make $50,000 or more. This was before recent massive tax hikes!

Social Costs

Are high taxes on cigarettes justified by the social costs smokers impose on the rest of society? No.

Harvard Professor Kip Viscusi has repeatedly demonstrated that smokers already pay more in excise taxes than the social costs of their habits. Even before the MSA, “excise taxes on cigarettes equal or exceed the medical care costs associated with smoking.” For example, Illinois’ cigarette taxes, according to Viscusi, were $0.13 more per pack than the social costs of smoking before the settlement added $0.40 to the price of a pack of cigarettes, before the $0.40 a pack tax hike approved by the state legislature in 2002, and before Cook County’s $0.82 a pack boost in 2004.

Instead of raising cigarette taxes, simple justice demands that cigarette taxes be reduced to zero. In fact, states should consider taping a dime or a quarter to every pack of cigarettes as a way of thanking smokers for reducing the burden on taxpayers!

Junk Science

How harmful is smoking to smokers? Public health advocates who claim one out of every three, or even one out of every two, smokers will die from a smoking-related illness are grossly exaggerating the real threat. The actual odds of a smoker dying from smoking before the age of 75 are about 1 in 12. In other words, 11 out of 12 life-long smokers don’t die before the age of 75 from a smoking-related disease.

In a 1998 article titled “Lies, Damned Lies, and 400,000 Smoking-related Deaths,” Levy and Marimont showed how removing diseases for which a link between smoking and mortality has been alleged but not proven cuts the hypothetical number of smoking-related fatalities in half. Replacing an unrealistically low death rate for never-smokers with the real fatality rate cuts the number by a third.

Controlling for “confounding factors”—such as the fact that smokers tend to exercise less, drink more, and accept high-risk jobs—reduces the estimated number of deaths by about half again. Instead of 400,000 smoking-related deaths a year, Levy and Marimont estimate the number to be around 100,000.

This would place the lifetime odds of dying from smoking at 6 to 1 (45 million smokers divided by 100,000 deaths per year x 75 years), rather than 3 to 1. However, about half (45 percent) of all smoking-related deaths occur at age 75 or higher. Calling these deaths “premature” is stretching common usage of the word. The odds of a life-long smoker dying prematurely of a smoking-related disease, then, are about 12 to 1.

Second-hand Smoke

Is second-hand smoke a rationale for higher taxes on tobacco or smoking bans? The research used to justify government regulation of second-hand smoke has been powerfully challenged by critics, including Congress’s own research bureau. According to the EPA, the risk ratio for forty years of exposure to a pack-a-day smoker is just 1.19. Epidemiologists as a rule are skeptical of any relative risks lower than 3 and dismiss as random ratios less than 1.3.

The latest word on second-smoke appeared in the May 12, 2003 issue of the British Medical Journal. Two epidemiologists, James Enstrom at UCLA and Geoffrey Kabat at the State University of New York at Stony Brook, analyzed data collected by the American Cancer Society from more than 100,000 Californians from 1959 through 1997.

“The results do not support a causal relation between environmental tobacco smoke and tobacco related mortality,” the researchers wrote, although they do not rule out a small effect. “The association between tobacco smoke and coronary heart disease and lung cancer may be considerably weaker than generally believed.”

“It is generally considered that exposure to environmental tobacco smoke is roughly equivalent to smoking one cigarette per day,” according to Enstrom and Kabat. “If so, a small increase in lung cancer is possible, but the commonly reported 30 percent increase in heart disease risk--the purported cause of almost all the deaths attributed to secondhand smoke--is highly implausible.”

Smoking Bans

Concern over the health effects of smoking and second-hand smoke have led to calls for bans on smoking in public spaces. Are these bans justified?

Most seats in most restaurants are already designated nonsmoking, and there is little evidence that nonsmokers who visit restaurants and bars believe smoking is a major concern. In restaurants with smoking and nonsmoking sections, better ventilation systems rather than smoking bans can solve any remaining concerns.

Smoking bans have had severe negative effects on restaurants, bars, and nightclubs in cities where such bans have been enacted. Smokers choose to stay home or visit with friends who allow smoking in their homes, or spend less time (and less money) in bars and nightclubs before leaving. Smoking bans can also move noisy and potentially dangerous crowds onto sidewalks, and divert police resources from battling more serious crime.

Lawsuit Abuse

“The states’ legal crusade against the tobacco industry will one day rank as one of the worst developments in American public law in the twentieth century,” wrote Michael DeBow, a professor of law at Cumberland School of Law, Samford University.

In 1998, Philip Morris and other major tobacco companies settled a lawsuit brought by 46 states and five territories, promising them an astounding $243 billion over 25 years, and then approximately $18 billion a year in perpetuity. The cost of this so-called Master Settlement Agreement (MSA) is entirely passed through to smokers; it is not paid by “tobacco companies.” The agreement has already dramatically increased the retail price of cigarettes.

The MSA was supposed to end litigation against tobacco companies, but lawsuits continue to be filed anyway, with irresponsible juries awarding millions and even billions of dollars to smokers who knew the risks but continued to smoke anyway. Besides thousands of frivolous civil suits pursued by lawyers who long ago forgot the meaning of justice, the U.S. Justice Department is still pursuing a legal case against the tobacco industry initiated by the Clinton administration.

The MSA also “loaded the gun” for trial lawyers to go after other industries, generating approximately $13.75 billion in projected payments to lawyers. It was, wrote DeBow, “the largest transfer of wealth as a result of litigation in the history of the human race, a transfer that is being and will continue to be financed almost entirely by smokers paying higher prices for cigarettes.”

Smoker’s Rights

Another reason to oppose the current campaign against smokers is because it violates the legitimate rights of smokers. John Stuart Mill, in a slender book published in 1859 titled On Liberty, wrote: “The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” This is the basic premise of libertarianism, the political philosophy of the Founding Fathers.

Mill’s statement is directly applicable to the controversy over smoking. Quite simply, a just government does not have the authority to ban smoking on private property or to tell smokers to quit or to punish them if they do not. Smokers are adults, not children, and they deserve to have their informed choices respected by others.

If we pass laws forcing smokers to change their behavior “for their own good,” we need to ask: Where do we stop? Do we pass laws against smoking in private homes? Against frying food indoors (which also releases known carcinogens into the air)? Eating the wrong kinds of food? Eating too much? Weighing too much? Drinking too much (and not just when driving)? Exercising too little? Should we ban other risky behavior, such as skydiving, bungee-jumping, or riding motorcycles? How about drinking more than one cup of coffee each day?

Harm Reduction

Anti-smoking activists give smokers a stark choice: Stop smoking or die! In fact, there is a third path: reduce the harm by shifting to less-hazardous kinds of tobacco products. For example, moving from unfiltered to filtered cigarettes, and from regular to “low tar” cigarettes, both appear to reduce the risk of lung cancer. Switching from cigarettes to chewing tobacco dramatically reduces the health risk.

For many years, Swedes have used a kind of “spitless tobacco” called “snus.” At least partly because of the widespread use of snus, Sweden has the lowest rate of cigarette smoking and lung cancer in Europe. Surely there are lessons here for U.S. tobacco policy.

Unfortunately, in the U.S. advertising the comparative health effects of different tobacco products is strongly discouraged by the FDA, state attorneys general, the courts, and a variety of government funded antitobacco organizations. As a result, few smokers know that the health risks of smoking can be dramatically reduced simply by reducing the number of cigarettes smoked or by switching to filtered and light cigarettes or to chewing tobacco.

Underaged Smoking

Kids shouldn’t smoke cigarettes, but what is the best way to discourage underaged smoking? The tobacco industry is working hard to enforce minimum age standards by pushing retailers to require proof of age at the time of purchase. Despite hysteria from the anti-smoking establishment on this matter, cigarette advertising does not target young people.

Saying we need high taxes on cigarettes to discourage teenagers from smoking is dishonest, since most teenage smokers don’t buy their cigarettes, and get them instead from parents and adult friends. It is unfair to impose dramatically higher taxes on the adults who buy 95 percent or more of all cigarettes sold in order to make cigarettes less attractive to the few teenagers who actually pay for their cigarettes.

Where to Go for More Information

Two credible and interesting people who write frequently on tobacco issues are Jacob Sullum and Kip Viscusi. Joseph Bast, a coauthor of this essay, also writes frequently on the subject. You can find articles by them in PolicyBot simply by searching for their names in the Author search box.

Some very good Web sites on the smoking issue include http://www.forces.org, http://www.mysmokersrights.com, http://www.smokersclub.com, and Illinois Smokers Rights. The FORCES Web site includes a list of links to other sites.

The anti-smoking movement, fueled with billions of dollars a year in taxpayer dollars and grants from liberal foundations, also has Web sites devoted to attacking smokers.


Maureen Martin was Senior Fellow for Legal Affairs at The Heartland Institute, and Joseph L. Bast is president of The Heartland Institute.