Article published Monday, August 04, 2008, at Fox News.

Where There's Smoke, There's Government Intrusion

By John R. Lott, Jr.

This is still a free country, right? Last week, the US House of Representatives passed legislation to more closely regulate the wages that firms pay workers and more strictly regulate tobacco products by putting them under FDA supervision.

The Los Angeles City Council also approved a one-year-moratorium on new fast-food restaurants in a 32 square mile low-income area in the city, the poor after all have “above-average rates of obesity” and must be protected from themselves.

Perhaps the government may just want to ask people if they are poor before we let them enter certain restaurants.

Barack Obama promises a national ban on smoking in public places. Such micro-managing of peoples’ behavior will likely to only get worse, as anyone who has been to countries such as Sweden can attest.

When I visited Sweden in back in 1979, Swedes were worried that binge drinkers were damaging their health. But shouldn’t how much people drank in the privacy of their own home be their own business? Not to other Swedes who worried that the government health care system meant that they would have to pick up other’s medical costs.

I watched the television news in horror as police broke into homes and took people to detox centers after neighbors alerted the government to people whom they felt were drinking too much. But they were equally outraged that people would do things to their bodies that would make others pay for their health care.

The Democrat’s “Family Smoking Prevention and Tobacco Control Act” is a strange creature. It prevents the FDA from banning existing tobacco products. However, products introduced after February 15, 2007 must receive FDA approval, a process that may take up to a couple of years to even start. The bill allows the remaining forms of advertising and the promotion of cigarettes to be banned.

The regulations would actually benefit existing tobacco companies, protecting them from competition. Past academic research has found that the 1970 TV and radio advertising ban actually increased tobacco company profits because it protected established brands from competition. The FDA approval process for new cigarettes only adds to this protection.

Congressmen backing the legislation point to estimates that 400,000 people die each year from smoking. But while smoking undoubtedly causes illnesses and deaths, it is hard to take such estimates seriously.

No matter what other risk factors a person might have, when a smoker dies the death is attributed to tobacco. But smokers are more likely to drink heavily, less likely to exercise, be overweight, and have poor nutritional habits. If a smoker who is obese, never exercises, and has a long family history of heart problems dies from a heart attack, why should it automatically be classified as due to smoking?

The ultimate question though is whether we should let people make choices for themselves. Should ice cream be banned? Surely it adds to obesity, causing some heart attacks. But some people amazingly enough like the way ice cream tastes and are willing to take the risks. Are they making a mistake?

Smokers, like those who eat ice cream, have trade-offs. Some might like the taste, others its calming effects. But smoking may also reduce the risk of Parkinson’s and Alzheimer’s diseases as well as cancers of the thyroid, breast and skin.

In any case, whether it is hang gliding or smoking, it ought to be the customer’s preferences that count.

Proposals, such as Obama’s, for a national ban on smoking in public places has its own problems. The ultimate objection to smoking focuses on the harm that it imposes on others. The evidence for harms from second hand smoke is extremely weak, but, for the sake of argument, let’s accept the claim.

Environmental problems arise because the costs of polluters’ actions are passed on to other people. The classic case is the “common pool” or “overfishing” problem. Fishermen tend to overfish an area until the fishery is depleted. If one fisherman lets a fish go so that it can spawn, there is no guarantee that another fisherman won’t catch that same fish. But this problem is eliminated in privately-owned fisheries, such as private lakes or fish farms. If a fishery is running low on fish, the owner can leave fish to spawn, knowing that no one else will catch them.

Outdoor air pollution suffers a similar “common pool” problem; if too many individuals or companies emit too much pollution, the combined result can produce illness and even death. Everything from cars to power plants emit byproducts that could be classified as harmful, but no one would argue that we should eliminate cars and power plants because their pollution costs outweigh all their benefits. Similar to fishermen out at sea, individual car makers or factory owners are unlikely to take into account the cost that their pollution imposes upon others. Altruism only goes so far. This creates a legitimate space for government intervention—governments can regulate pollution levels by limiting, taxing, or otherwise restricting pollution emissions.

Allowing the government—whether federal, state, or local—to regulate pollution may be necessary, but we can only watch with dismay as the government uses this authority to steadily expand its coercive powers. In doing so, it inevitably begins mandating solutions to tangential “problems” that are best left to the market to solve. Solutions that actually make the country poorer.

This is most evident today in the restaurant industry, where local governments are becoming increasingly intrusive in ensuring clean air. A restaurant owner will face competitive pressures to decide whether his customers want to be allowed to smoke, just as he must figure out what food to serve, how big the portions will be, and what kind of décor to have. Restaurants that don’t satisfy their customers on these issues will quickly go out of business.

That’s why smoking in restaurants should not be considered a common pool problem subject to government intervention. Restaurants that allow smoking don’t base their policy merely on their love of smokers; they are responding to competitive pressures and customer preferences. And of course, the choice doesn’t have to be between perfectly pristine air and air so cloudy that you can’t see more than a few feet; many restaurants simply create smoking and non-smoking sections. But this solution, too, is outlawed by government smoking bans.

If restaurants can go out of business when they don’t get small things right, such as whether to include an extra side dish with a meal or what kind of background music is played, why is there any less reason to believe their decision on smoking will likewise reflect customer demand? If anything, the fact that people feel so strongly about smoking—both for and against—implies that restaurants will very carefully tailor their smoking policies to their customers’ wishes.

The situation is no different for employees at the restaurant. If employers provide a work environment that employees don’t like (say because some object to smoky air), employers have to pay more to get people to work there. Restaurant smoking is more like a private fishery than a common pool.

Nonsmokers may feel better off because of bans, but what they gain is less than what smokers lose. If the opposite were true, it wouldn’t be necessary to impose the bans.

*John Lott is the author of Freedomnomics and a senior research scientist at the University of Maryland.

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