Maryland county ridiculed for attempted smoking ban

Published February 1, 2002

Montgomery County, Maryland, already nationally known for its stringent anti-smoking laws, passed and then retracted a law penalizing people for smoking in their own homes. The law was approved on November 20, but was retracted just seven days later after the county became the object of national and global ridicule.

Under the law, a person could be fined up to $750 for each time a neighbor complained about smelling tobacco smoke coming from a person’s home. The law was originally drafted to protect persons from exposure to indoor pollutants such as asbestos, radon, molds, and pesticides. However, the Montgomery County Council voted to add tobacco smoke to the list of alleged pollutants.

Council members argued tobacco smoke is a carcinogen and should be treated like any other indoor air pollutant.

“My sympathies are with the kid next door who has asthma who has to put up with a pollutant crossing the border,” explained Democratic Councilman Philip Andrews.

“Ripe for abuse”

When news of the law became public, it was met with nearly universal derision. American and European commentators frequently compared the law to the authoritarian excesses of the Afghanistani Taliban.

“Montgomery County might be a plausible asylum for the Taliban,” asserted the AmericanSpectator’s R. Emmett Tyrrell, Jr. “Once settled there, the Taliban might also find Americans who share their phobia against kite flying and the public playing of music.”

“What about barbecue grilling?” mused syndicated columnist Cal Thomas. “If smoke from someone’s grilling steak offends his Montgomery County neighbor, can the neighbor call the cops? What about perfume? Some people are allergic to such scents. Could the wearer be a potential criminal? This law is ripe for abuse, especially if one dislikes his neighbor.”

Arthur Spitzer, legal director for the American Civil Liberties Union, warned the county its legislation had gone too far.

“They shouldn’t be able to prevent a person from smoking in their home unless they can show that the amount of smoke is harmful to the health of others,” said Spitzer. “If someone can just say, ‘Yuck, I don’t like the smell of cigarettes,’ that’s no different than someone saying, ‘Yuck, I don’t like the smell of your cooking because you use too much garlic.'”

“We’ve become the laughingstock of the world,” lamented Michael Subin, one of only two Councilmen who originally opposed the bill.

Subin further observed the law would have a disproportionate effect on poor people. “If you live in a house on a two-acre lot, you are exempt from the moral police, but not if you are unfortunate enough to live in a small townhome or an apartment.”

One size fits all

Feeling the heat, Montgomery County Executive Director Douglas Duncan vetoed the legislation, and Councilman Howard Denis reversed his support of the ban, ensuring the veto could not be overridden by the Council.

Stated Duncan, “Upon further consideration, it has become clear that the tobacco smoke provision will be nothing more than a tool to be used in squabbles between neighbors.”

“If the ordinary folk of Montgomery County had not asserted common sense,” observed Tyrrell, “imagine all the quarreling and general hostility that would have spread with neighbors calling the cops on suspected cigarette smoke.”

“Regulating the minor potential irritations of apartment life is basically the job of the building owner, not the county,” agreed Sam Kazman, general counsel for the Competitive Enterprise Institute. “Some owners might well choose to operate their buildings as totally smoke-free, others might reserve the right to restrict smoking on a case-by-cases basis, and still others might not restrict at all. Each of these approaches serves a different segment of the public. We don’t need a one-size-fits-all standard imposed by the county.”

The law was especially suspect, according to critics, because it failed to distinguish between a profusion of smoke that might he harmful and a slight odor that merely causes offense.

Dangers of secondhand smoke doubted

Even the assertion that higher levels of secondhand smoke cause serious health problems is speculative at best.

Steven Milloy, an adjunct scholar at the Cato Institute, points out that “A credible link between secondhand smoke and lung cancer remains elusive despite more than 40 published studies. The largest-ever study on secondhand smoke and lung cancer, published in 1998 by the World Health Organization’s International Agency for Research on Cancer, reported no statistically significant increase in lung cancer risk associated with exposure to secondhand smoke.”

Moreover, reports Milloy, in 1993, at the time the Environmental Protection Agency declared secondhand smoke was linked to lung cancer, “there were about 30 studies from around the world involving human populations exposed to secondhand smoke. Some studies reported weak statistical associations between exposure to secondhand smoke and lung cancer. The vast majority of studies reported no statistical association.”

“But since EPA already had pre-determined that secondhand smoke caused lung cancer–issuing guidelines for banning workplace smoking in 1989–something had to be done to whip the science into shape,” says Milloy. “The agency released a fudged result as its final product, concluding that secondhand smoke was a lung carcinogen that caused 3,000 deaths per year.”

A federal district court threw out the 1993 risk assessment leading to EPA’s decision to list secondhand smoke as a cancer-causing carcinogen. Stated the court, “EPA disregarded information and made findings on selective information; . . . deviated from its [standard procedures]; failed to disclose important findings and reasoning; and left significant questions without answers. EPA’s conduct left substantial holes in the administrative records.”

Dr. Elizabeth Whelan, president of the American Council on Science and Health in New York, points out that “the role of ETS [environmental tobacco smoke] in the development of chronic diseases like cancer and heart disease is uncertain and controversial.”

Instead, the major effect of secondhand smoke is to act as an irritant, exacerbating minor, preexisting conditions. “The evidence linking ETS with chronic disease is much more speculative than that linking it to acute diseases like ear infections and respiratory effects,” notes Whelan.