Whose Body Is It Anyway?

Spring 2021 • Regulation
By David R. Henderson

When I taught benefit‐​cost analysis at the Naval Postgraduate School, one of the first principles I explained was that, to do a good analysis, you need to consider the costs and benefits to the various people affected rather than taking as gospel the desires of policymakers. We studied both good and bad examples of benefit‐​cost analyses. In the bad ones, a common error was to leave out the gains to consumers when they consumed items that policymakers did not want them to. A typical case was alcoholic beverages; policymakers kept overlooking the enjoyment that consumers receive from a drink.

In his book The Rediscovery of Tobacco: Smoking, Vaping, and the Creative Destruction of the Cigarette, independent journalist (and one‐​time Cato staffer) Jacob Grier avoids that error. Not only does he consider the costs of cigarettes and other forms of tobacco to their users and to nonsmokers, but he also considers the benefits to users. In doing so, he makes a case for people’s freedom to smoke or inhale what they want when it does not inflict harm on non‐​users. Along the way, he details how the antismoking movement has shown its disregard for the interests of smokers. He also shows that the damage from secondhand and “thirdhand” smoke is often overstated and that the harm from e‐​cigarettes is overstated and the benefits understated. Although I am a dyed‐​in‐​the‐​wool nonsmoker and non‐​vaper and Grier did not persuade me to try these substances (nor did he attempt to change readers’ minds), I learned a lot from this book. You could say that I “rediscovered tobacco.”

Health effects research/ One of the best parts of the book is Grier’s discussion of the use of bad science to support antismoking policies. He tells the story of the apparent health effects of a June 2002 ban on smoking in workplaces, bars, restaurants, and casinos in Helena, MT. During the first six months of the ban, Helena’s reported rate of heart attacks fell by 60%. Then, after a judge struck down the law, the reported rate of heart attacks shot back up. Prominent antismoking activist Stanton Glantz of the University of California, San Francisco, with whom I debated the smoking bans in restaurants on the pages of Econ Journal Watch, touted those numbers in a press release as strong evidence that protecting people from secondhand smoke saves lives. The New York Times and the Wall Street Journal carried stories about the Helena experience and people advocating smoking bans seized on the heart attack findings to buttress their case.

Later studies with much larger sample sizes reached different conclusions. A study of a statewide ban in Colorado, for example, which had 5 million residents, found no effect on heart attacks. The study’s authors explained that their own earlier studies had found a large effect. They noted that when you have a small population, as in their earlier studies, random fluctuations can cause the effect to appear large. Helena’s population is 0.6% of Colorado’s. Also, the authors noted, rates of heart attacks were falling and their previous studies had failed to account for that fact.

Grier notes an interesting difference in research methodologies between studies of the health effects on smokers in the 1940s and 1950s and the later studies of researchers on secondhand smoke. The earlier researchers had noticed a huge increase in deaths from lung cancer in the first half of the 20th century and wanted to figure out why. They established a clear relationship between smoking cigarettes and lung cancer. But, notes Grier, research on secondhand smoke “reversed that approach.” He writes, “Scientists started out with a hypothesis — that secondhand smoke was causing lung cancer in nonsmokers — and took on the task of finding the bodies.”

One place that researchers looked for bodies was Japanese households. Grier explains why: in the 1960s and 1970s, smoking by Japanese men was common whereas smoking by Japanese women was taboo. In a 1981 study in the British Medical Journal (now known as BMJ), Takeshi Hirayama reported that the risk of lung cancer for women married to smokers was higher than the risk for women married to nonsmokers. Specifically, the risk for women married to men who smoked fewer than 20 cigarettes per day was 61% higher, and for women whose husbands were heavy smokers it was 108% higher. That sounds high and is high, but Grier puts it in perspective. He reports data from other studies that show the risk of lung cancer for smokers to be 1,400%-1,900% higher than the risk to nonsmokers. So, the risk from secondhand smoke for people who live in close quarters with smokers for years is substantial but a whole order of magnitude lower than the risk for smokers.

Moreover, a 2003 study in the BMJ by epidemiologists James Enstrom and Geoffrey Kabat using an American Cancer Society data set that spanned 39 years found no evidence that secondhand smoke increased the risk of lung cancer or coronary heart disease. Tobacco companies funded their final years of research, a fact that led many people to call Enstrom and Kabat shills for big tobacco. A BMJ editor pointed out, though, that of 140 written responses by readers, only 3% (that means four responses) referred to data. Some sociologists who wrote about the controversy stated that the responses were evidence of “an authoritarian cult.” Georgetown University law professor Lawrence Gostin stated that research into secondhand smoke was not motivated by a crisis in public health, but rather by “the increasing intense secular value that smokers were becoming a public nuisance.”

Grier notes that the Centers for Disease Control claim that secondhand smoke kills 41,000 Americans per year. That would put it on a par with annual fatalities from traffic accidents. But is the CDC’s claim true? Grier points out that the World Health Organization estimates 13,200 annual deaths from secondhand smoke for the United States, Canada, and Cuba combined. That would make the death rate for the United States less than 30% of the CDC’s estimate. Adding further doubt to the CDC’s numbers is the fact that the decline in the percentage of Americans who smoke and the increase in smoking bans over the last few decades should mean that the death rate from secondhand smoke is falling. And yet, writes Grier, “estimates are surprisingly sticky.”

Antismoking activists, he notes, didn’t stop with secondhand smoke. They raised the ante by stirring up concern about “thirdhand smoke.” What’s that? Grier quotes a definition the New York Times posited in 2009: “the invisible yet toxic brew of gases and particles clinging to smokers’ hair and clothing, not to mention cushions and carpeting, that lingers long after secondhand smoke has cleared the room.” Grier comments that he does not know “if studies will ever successfully demonstrate that thirdhand smoke increases the risk of any particular disease, and, crucially neither do the researchers who have been promoting these fears to the public for more than a decade.” This is awkward wording. He seems to be saying that the researchers have no evidence, but I wish he had stated his point more clearly.

He tells the interesting story of Boston University School of Public Health professor Michael Siegel, an epidemiologist trained at the CDC. In much of his research and public activism, Siegel had made the case for indoor smoking bans. But activists’ push for bans even in outdoor spaces was too much for him. In 2013, in an email to Grier, Siegel wrote that tobacco control “is now guided more by ideology and politics than by science.” He also suggested that one reason the debate is so lopsided is that the 1998 Master Settlement Agreement between big tobacco companies and state attorneys general tied the hands of the tobacco companies. The companies are now forced to fund antismoking research. This, in the land of the free and the First Amendment.

Sliding down the slippery slope/ Although Grier is not an economist, he uses the public choice framework to explain why some cigar bars in Oregon (where he lives) are allowed and others are not. To be allowed to exist, cigar bars must document that they sold tobacco before 2006, don’t have more than 40 seats, must be licensed to sell liquor (not just beer and wine), and must have a humidor present. These rules, he notes, accomplish three goals: keep wealthier (and presumably more politically powerful) cigar smokers happy, allow a few businesses to stay in existence, and protect those businesses from other competition.

Grier also tells the story of a hypocritical Washington, DC city councilman named Jack Evans, who voted in favor of the city’s smoking ban but pushed through an exception that accommodates a cigar dinner held by the Friendly Sons of Saint Patrick, a charitable and social organization to which Evans belongs. Evans’s razor‐​sharp logic for the exception? “To eliminate cigars would be ludicrous.”

Libertarian critics of tough regulations often argue that they put us on a slippery slope to even more extreme regulations. Grier points out that the more extreme proponents of smoking regulations are doing this. He quotes one Vox writer’s proposal that indoor smoking be banned “everywhere — inside bars, restaurants, your home. Full stop” (italics in original). Grier responds, “The writers at Vox deserve a perverse sort of credit for gliding down the slippery slope that smoking ban opponents have long warned against.”

A standard idea in public health policy is that if a product causes harm, it should be regulated or banned. Those who advocate such an idea often claim the mantle of science. Grier points out the problem: “To treat the debate over smoking bans as entirely a question of science is to make a basic category error.” The science, even if it weren’t so sketchy, is simply an input. It cannot resolve issues of rights. Do waiters and waitresses have the right to work in bars and restaurants that allow smoking? Grier maintains that they do. He points out that the fatality rate for fishermen seeking West Coast Dungeness crabs is almost 80 times higher than the average fatality rate for U.S. workers, but no one advocates not allowing fishermen to catch Dungeness crabs. I would also point out that when I discussed this issue in a class of military officers years ago, one of my students, who had worked in a bar, said that even though she hated breathing cigarette smoke, it had been worth it to her because smokers tended to pay much bigger tips. That’s the market at work.

Marlboro monopoly/ Grier also offers an interesting discussion of the Tobacco Control Act of 2009, which, he notes, other tobacco companies refer to as the “Marlboro Monopoly Act.” When the law passed, Philip Morris’s Marlboro brand accounted for 40% of U.S. cigarette sales. The law exempted the menthol flavor, which Philip Morris uses, and forbade flavors used by competitors R.J. Reynolds and Brown & Williamson.

The law treats cigarettes like drugs, giving the Food and Drug Administration the power to say no to any new tobacco products. Cigarette companies must submit their applications to sell “substantially equivalent” products 90 days before they plan to sell. Of 3,500 substantial equivalence applications submitted in the four years after the law took effect, the FDA, with over 100 employees reviewing them, had issued exactly zero rulings. In one case involving a small company, the FDA responded to an application by asking what the product’s “heating source” was. This was a simple stalling tactic; Grier notes that it is well known that cigarettes are heated with fire. The law does seem pretty clearly aimed at limiting competition.

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About the Author
David R. Henderson

Research Fellow, Hoover Institute