Cigarette Smoking as a Public Health Hazard: Crafting Common Law and Legislative Strategies for Abatement

Abstract

The debate over when, and to what extent, the government may regulate public smoking, is a contentious one of great moment. The point at which the line will be drawn with regard to an individual's right to smoke in public is narrowing. This right may stop at public restaurants and the workplace; or it may reach as far as public stadia, outdoor gathering spots and public streets. In 2006, one report showed 461 municipalities in thirty-three states and the District of Columbia, had adopted one-hundred percent smoke-free coverage in restaurants, bars or workplaces; and 135 municipalities had one-hundred percent coverage in all three of these areas. Environmental tobacco smoke (ETS), or second-hand smoke, has been shown to be carcinogenic, yet the streets of the major metropolitan areas bring countless olfactory assaults to the sense of the average pedestrian forced to use them and the sidewalks. Put simply, the sidewalks - as public spaces - must be free from becoming carcinogenic incubators for the citizenry. This Article analyzes efforts undertaken by the global community and The European Union and the World Health Organization, as well as the United States federal government, state governments (notably California) and various municipal responses through the enactment of ordinances, together with model ordinances formulated by the American Medical Association and the Non Smokers Rights, which address the issue - and, to some extent - resolve the limits to which the governments may go in order to maintain the health of the public in both public and restricted environments.

Robert C. Ellickson's effort to divide urban public land spaces within cities into zones and, thus, regulate levels of conduct (e.g., smoking and panhandling) is evaluated and found to be a creative response which should be used as positive step for including smoking as a chronic public nuisance tolerated, as such, more suitably only in one's home. Rather than explore the complex issues of Constitutional Law underpinning the "right to smoke," this Article takes a Property/Tort Law approach to problem-solving. The conclusion is reached that - on balance - common law principles of Public Nuisance, strengthened by the Doctrine of Anticipatory Nuisance, serve as an important tool, in conjunction with municipal regulations, to assure and maintain smoke-free environments and thereby protect the Public Health.