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Posted on November 21, 2014 at 3:09 AM

by Craig Klugman, Ph.D.

The small city of Westminster, Massachusetts is voting on whether to become the first town in the nation to ban sales of tobacco products, e-cigarettes, and bubblegum-shaped smoking implements within its limits. Many cities already have bans on selling tobacco to minors, smoking bars, businesses, offices, and even in public. The drugstore giant CVS has banned sales of tobacco products from its stores. But this is the first time that a city is making the sale of tobacco and e-cigarettes illegal.

The reasons for the smoking ban are simple. In this town of 7,400, there has been concern that tobacco companies use marketing to create new smokers. Products such as bubblegum-flavored cigars, they claim are meant to encourage young people to smoke. According to the Centers for Disease Control & Prevention, smoking causes 480,000 deaths annually and secondhand smoke causes 42,000 deaths each year. The American Cancer Society suggests that smoking related health care costs were $96 billion from 2000 to 2004.

With 45 million cigarette smokers, 13.2 million cigar smokers, and 2.2 million pipe smokers, such a ban will not come easily. Westminster businesses collected petitions to prevent the ban. They claim that such an action would drive customers to surrounding communities, depriving their businesses of income and the city of tax revenue. Having previously lived in a city around a Native American reservation (where as sovereign nations they do not have to collect the same taxes on a carton), a lot of people drove to the reservation to buy their cheaper cigarettes.

This issue is so contentious that at a recent Westminster Board of Health meeting to discuss the proposed ban, the Chair ended the session after only 25 minutes. She cited unruly behavior and a lack of respect for the rules of order. Residents can instead submit opinions in writing for the 3-person Board to consider. National pundits have come out against the proposal saying it limits liberty and could lead to outlawing cigarettes everywhere. They claim this prohibition would create a huge black market, smokeeasies, and criminalization of people for smoking. In other words, the slippery slope.

Yes, parallels could be drawn with the wildly unsuccessful alcohol Prohibition where a vibrant underground of alcohol sales made it available for those who could pay and knew where to go. Prohibition was a child of the temperance movement—an attempt to force “good” behavior on those who did not hold the same high standards of sanitation and Christian values as proponents. Ultimately, Prohibition failed because it was the government going too far and a realization that an open market was safer than the closed criminal enterprise that took its place. If people want a substance, they will find a way to get it—legal or not. The failed War on Drugs is proof enough.

The tobacco ban, however, is different. It is not based on forcing one group’s morality on all but rather on protecting the community from a known public health threat. Another analogy might be the issue of a lack of gun control. In any given year, 108,000 people are shot in the United States and over 32,000 people die from gun violence. These numbers are small compared to the human life cost of tobacco. Consider from a policy perspective, the U.S. has moved in the direction of preventing even local jurisdictions from prohibiting sales, ownership and use. The city of Chicago had the strongest control limits in the country and was forced to abandon them in court. This is the opposite of Prohibition.

Many parts of the country have experience with the concept of “dry counties.” The repeal of Prohibition under the 21st Amendment allowed states and local jurisdictions to prohibit the sale and or consumption of alcohol. Many counties in Texas, Oklahoma, Kansas, South Dakota, Arkansas, Mississippi, Alabama, Kentucky, and Florida forbid alcohol sales. Many other places such as Michigan, Ohio, Pennsylvania, North Carolina, Georgia, New York, New Hampshire, Connecticut, Nevada, and Illinois have limitations on when alcohol can be sold. Often such rules exist because of history or a strong religious belief held by residents of the area.

Given this fact of U.S. sin management, why should there not be “doused counties”—areas where the sale and/or consumption or tobacco and related products are forbidden by law?

These systems do cause people to travel outside of the dry county to purchase their alcohol. And studies do show higher alcohol-related vehicle crashes involve resident of dry counties (often on their way home from bars in neighboring wet counties) than residents in wet counties. Residents of doused counties are unlikely to cause car crashes on their way home from making purchases in a surrounding burn county. And to address concerns about customers going out of town to buy their goods, the answer is that they will. But we already have this established method for dealing with these issues in local rule for alcohol sales.

Aristotle said that the virtue was the means between the extremes. The two sides of the spectrum in public health preventable morbidity can be seen in the examples of gun control—where no restrictions are permitted and alcohol Prohibition where all alcohol was banned. From the experience with the War on Drugs, complete bans on substances do lead to cartels and black markets. No restrictions on firearms has led to increases in gun-related injuries (and deaths). The virtuous place then would be the mean, letting local jurisdictions choose for themselves. Dousing a county just may be an exercise in courage, standing up to big industry, and promoting public health. And if someone in Westminster wants to smoke, it’s only 5 miles to the next town. Inconvenient yes, an undue burden, no.

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