The Cigarette, page 24
The metaphor of the “Nonsmoker’s Bill of Rights” was consistent with the rhetorical shrouding of contemporary consumerist movements. Seizing the mantle of consumerism from zealous advocates like Nader, President Nixon proposed a “buyer’s bill of rights” in a special message to Congress in 1969.97 It was an attempt to coopt the consumer protection movement’s critique of corporate fraud and deception into the Republican vision of market participation.98 Meanwhile, the American Medical Association came in for special scorn when it rejected a proposal by its own committee to provide American patients with a “healthcare bill of rights,” entitling them to certain expectations in their interactions with the American medical system. Steinfeld’s exact language may have been borrowed from a New York state assemblyman who introduced an ill-fated bill limiting smoking on public transportation as a “Nonsmoker’s Bill of Rights” in 1970.99 None of these “bills of rights” went anywhere legislatively. But their simultaneous invocation revealed not just an intense identification of citizenship and consumption, but also a connection between citizenship and skepticism of institutions that structured the marketplace for goods and services. Whether for buyers, patients, or nonsmokers, the bill of rights discourse suggested a growing recognition of social and economic hazards that threatened Americans’ quality of life expectations.
The rhetoric of rights helped Americans to consider where they belonged in an economy increasingly organized around the provision and consumption of services. Without explicit rights-based guarantees, the individual citizen-consumer was likely to get swamped by the superior organization of industry. As one influential 1974 law essay put it, law abetted and reinforced this skewed political-economic arena, making sure that the “haves” came out ahead. “Repeat players” like corporations and the organized professions helped to design the very rules that structured the legal order.100 Even in the absence of legislation, calls for a bill of rights for patients, consumers, or nonsmokers created new paths to power by ennobling the struggle for the recognition of rights.
The bill of rights framing also invoked the elegant rhetoric of enlightenment liberalism, particularly the harm principle expounded by John Stuart Mill in On Liberty: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”101 The tobacco industry portrayed nonsmoking activists as prohibitionists, the inheritors of Carrie Nation’s hatchet. But activists represented themselves as coolly rational, demanding only that when smokers and nonsmokers conflict, nonsmokers receive priority in a hierarchy of rights. Nonsmokers insisted that they were not opposed to smoking itself. But, as with sex, they reasoned that it “should be confined to consenting adults in private.”102 Of course, middle-class nonsmoking activists also brought Great Society expectations to their nineteenth-century analysis: they hoped the state would step in to enhance the quality of their lives.103
The libertarian impulse—a tendency to frame nonsmokers’ rights as paramount because they ensured freedom from another person’s choice—was present from the earliest days of the movement. Indeed, construing nonsmokers’ rights as a negative right helped otherwise left-leaning activists reconcile their support for an expansion of civil liberties—decriminalizing recreational drug use, repeal of vagrancy, obscenity, and sodomy laws—with their demand for the regulation of public smoking. Anthony Roisman, a young public interest lawyer who represented Ralph Nader in his fight against airline smoking, addressed the Interagency Council at a 1970 conference. Neither a scientist nor a member of a public-health organization, Roisman’s speech differed from that of other presenters in that it did not dwell on the health risks posed by smoking. Instead, Roisman deconstructed the “unexamined hypothesis” that the “so-called right to smoke was equal if not superior to the right to be free from smoke.” Channeling the rhetoric of the nation’s founding generation, Roisman continued: “It is safe to state as a general maxim that any activity when it is no benefit to society and which is clearly harmful to the person who participates in it is an activity which can be confined to private places where innocent members of our society will not be forced to suffer from it.” Steinfeld was at the conference and would have heard Roisman’s call for a nonsmoker’s bill of rights, rooted in the Declaration of Independence, which assumed, in Roisman’s words, “the right to be free from tobacco smoke.”104
For ASH, GASP, and Steinfeld, rights rather than risk were the basis of indoor smoking restrictions. Even in his January 1971 speech before the Interagency Council, Steinfeld cited no new studies testifying to secondhand smoke’s harms to the nonsmoker.105 The 1972 Surgeon General’s Report took up the question for the first time, with new chapters on allergy, “air pollution from tobacco smoke,” and the harmful constituents in cigarette smoke. Even by the Report’s own admission, scant epidemiological studies had been undertaken that would have established a causal relationship between exposure to secondhand smoke and disease. For example, no studies had yet been designed to “determine the prevalence of tobacco allergy.” This meant that the report could only state definitively that “tobacco smoke can contribute to the discomfort of many individuals,” and could exacerbate “allergic symptoms in nonsmokers who are suffering from allergies of diverse causes.”106
Nor was there yet a robust body of literature on the effects of exposures to the “atmospheric contaminants” of tobacco smoke, which contained high concentrations of known toxins like carbon monoxide, benzopyrene, and oxides of nitrogen. The hazardous effects of even low levels of CO were well established: “altered auditory discrimination, visual acuity and the ability to distinguish relative brightness.” Longer exposures—such as those that might be encountered by individuals whose coworkers smoked nearby—reduced motor function and placed “physiological stress on patients with heart disease.”107 But researchers were yet unable to measure typical exposures for nonsmokers. So much depended on variables such as the size, structure, and ventilation patterns of a room; the number, proximity, and smoking style of smokers; and, of course, the underlying physical condition of the nonsmoker. Secondhand smoke might be irritating in a young, healthy person, but could be “particularly significant for people who are already suffering from chronic bronchopulmonary disease and coronary heart disease.”108
However, federal environmental law also created standards to which nonsmokers’ rights activists could appeal. In 1967, a brief article in Science titled “A Damaging Source of Air Pollution” pointed out that while “public concern about air pollution has grown rapidly during the past few years,” very few people considered the contribution of cigarette smoke to the burden of pollution. The article reported that carbon monoxide and nitrogen dioxide (NO2)—both toxins present in car exhaust—actually appeared in much greater concentrations in cigarette smoke. People who worked in garages and tunnels were routinely exposed to concentrations of CO at the rate of 100 parts per million (ppm). Exposures of 120 ppm for one hour were known to cause dizziness, headache, and lassitude. “However, in a poorly ventilated, smoke-filled room, concentrations of carbon monoxide can easily reach several hundred parts per million, thus exposing smokers and nonsmokers present to a toxic hazard.” Nitrogen dioxide, a brown gas responsible for the signature ruddy look of Los Angeles smog, was considered dangerous at levels of 5 ppm. Without specifying a typical length of exposure or speculating as to the conditions under which such an exposure might occur, the article noted that cigarette smoke contained 250 ppm of NO2. While not citing specific studies or hypothesizing routes of exposure, the article also listed other hazardous possibilities of cigarette smoke pollution, rattling off “toxic agents in cigarette smoke [that] do not have counterparts in ordinary air pollution.” In raising more questions than he answered, the author’s motivations were clear: to place the cigarette alongside “the automobile, the smokestack, or the trash burner” in public conversations about pollution—and its regulation.109
Framing tobacco smoke as part of the broader problem of pollution, nonsmokers’ rights activists made their cause intelligible to Americans who supported environmental regulation. As Surgeon General, Steinfeld promoted this environmental framing. His controversial 1971 address indicted smoking as “the so-called right to pollute.” The 1972 Surgeon General’s Report devoted a chapter to “Public Exposure to Air Pollution from Tobacco Smoke.” In reviewing the research on “smoke pollutants,” the Report concluded that in many instances, the tar and nicotine levels in the secondhand smoker were higher than those inhaled by the smoker. Carbon monoxide, benzopyrene, and oxides of nitrogen had been measured by researchers under experimental conditions and found to cause visual and motor impairments.
In short, the 1972 Report provided validation for aggrieved nonsmokers—“not disagreeable malcontents,” according to Steinfeld, but individuals with “a legitimate cause for their complaint.” And by flagging the gaps in the epidemiological and experimental literature on secondhand smoke, the report established an agenda for future study, ensuring that secondhand smoke would be scrutinized as a risk factor for the development of cancer, cardiac, and pulmonary disease.110 Steinfeld’s report would set a research agenda for the next two decades.
Other research focused on the cigarette’s violation of federal air quality standards. These provided a structure for scientific inquiry into the effects of tobacco exposure, as well as a rallying cry for nonsmokers’ rights groups. The 1975 opening of Pontiac Stadium furnished an occasion for further scientific inquiry. Home to the Detroit Lions, the 82,000-seat domed structure was the largest NFL venue in the country at the time—a distinction it held for more than twenty years. But sheer square footage did not do enough to alleviate the air quality burden of thousands of smoking fans. At halftime, the CO level in the stadium set off an alarm in researchers’ instruments, which registered a reading of 50 ppm, as compared to 5 ppm before and after the game. The U.S. government recommended that Americans not endure CO exposures of more than 35 ppm more than once per year. Nitrogen oxides measured at the stadium also exceeded federal standards.111 And particulate levels during the game were high enough to “cause an air pollution alert in any major city in the U.S.,” in the words of Dr. Wilbert Aronow, a cardiologist summarizing the research at a 1977 public hearing sponsored by the American Cancer Society.112
Such studies helped to shade over the fact that scientists did not yet have a definitive body of research on the long-term effects of “passive smoking.” The medical director of McGraw-Hill framed this uncertainty in terms of probability: “It is probable that air pollution by smokers is harmful to nonsmokers because of CO, tars, and nicotines, introduced into the air breathed by all.” Or as the director of the Illinois Department of Public Health explained: “People with certain heart, lung, and allergic conditions may have their disease symptoms intensified as a result of the exposure to the tobacco smoke of smokers.” Even a 1977 report by the National Cancer Institute conceded that “the effects of CO absorbed by nonsmokers are not yet fully known,” and that “while nicotine in the environment is of concern, attempts to measure the amount of nicotine absorbed by nonsmokers have not as yet proven it to be a major health hazard.”113 Federal Air Quality Standards legitimated activists’ demands for public smoking regulations even though harms to nonsmokers from typical exposures were far from definitive. It was enough to contend, as did the co-chairman of the organization Californians for Clean Indoor Air, that “tobacco pollution pervades the health of the American public.”114 Unlike emissions from cars or smokestacks, cigarette pollution would fail to elicit federal regulation. But that did not mean that smokers’ pollution went unabated.
The impulse behind calls for nonsmokers’ rights was civic, not scientific. It rested upon nonsmokers’ assertion of virtuous citizenship, and was fueled by a resentment of smokers. “Sensible people who happen not to smoke will always be at the mercy of the most selfish, stupid, uncaring, weakest, filthiest slobs in the world: smokers,” wrote one irate reader of the Village Voice, particularly incensed with a columnist’s defense of the habit.115 Recognition of nonsmokers as a category of people meant reckoning with the ways they had been harmed, irritated, or inconvenienced by smoke—and by smokers themselves. Although Steinfeld spoke with a great deal more sobriety than some of the Village Voice’s readership, he too courted confrontation. This was a departure from the practice of previous surgeons general, who tended to be cautious in making pronouncements about tobacco until amassing overwhelming—some might say superfluous—evidence of harm. At the press conference preceding the release of the 1972 Surgeon General’s Report on Smoking and Health, Steinfeld admitted that “we cannot say with certainty that exposure to tobacco smoke is causing serious illness in nonsmokers”—only that “exposure can contribute to the discomfort of the nonsmoking individual.”116 Widespread discomfort was enough to trigger government action “to give the nonsmoker relief” from forced inhalation of smoke in public spaces. This logic was convincing, at least to the New York City commissioner of marine and aviation, who quickly banned smoking on the Staten Island Ferry, purportedly on the strength of Steinfeld’s recommendation.117
Steinfeld’s own career did not escape the tobacco industry’s machinations. A Democrat and the son of Jewish immigrants, Steinfeld was never entirely at home in the Nixon administration. “I certainly wasn’t on the same political page as Nixon,” he later recalled.118 And his independent streak did little to endear him to other political appointees within the Department of Health, Education, and Welfare.119 When Steinfeld broke with precedent and banned tobacco industry lobbyists from his office, HEW secretary Elliott Richardson opened his doors to the industry instead, reminding Steinfeld that the Office of the Surgeon General possessed little clout.120
After Nixon won reelection in the landslide of 1972, he asked for the resignation of all HEW appointees. Steinfeld’s was accepted. Until his death, Steinfeld insisted that he lost his position due to pressure applied directly by the president of R. J. Reynolds on the president of the United States.121 In the absence of documentation of such a claim, it would seem equally possible that Steinfeld was simply seen as disloyal and politically out of step with the Nixon administration. The position of surgeon general would go unfilled for four years, until President Carter’s appointment of Julius Richmond in 1977. Steinfeld would later lament that he “felt frustrated in seeing how much good I might have achieved, and how much actually was accomplished.”122 But he understated his significance. Having helped to create a new political figure—the nonsmoker—the surgeon general endowed her with rights, legitimating her grievance.
Cigarette Federalism
In 1975, John Banzhaf, Luther Terry, and Clara Gouin flanked Father Robert Drinan as the Massachusetts congressman, antiwar activist, and Jesuit priest announced his introduction of “The Smoker and Non-Smoker Health Protection Act.” The bill would have tightened the requirements for a warning label on imported cigarettes, imposed a tax on cigarettes to fund research into smoking-related disease, and restricted smoking in federal facilities in a vindication of the “rights of non-smokers.” In response, the Tobacco Institute circulated a “factsheet” to members of Congress. Calling the bill a “thinly veiled subterfuge for the mandated prohibition of smoking and the forced segregation of smokers,” the text argued that “it could take the nation a giant step backward to the days of Carrie Nation and Jim Crow.”123 The Institute need not have wasted the paper: Drinan’s multiple efforts to pass nonsmoker protection legislation all failed in committee.
Yet by the mid-1970s, the nonsmokers’ rights movement began to score legislative victories—the kind of victories that suggested that activists had drawn closer to their goal of undermining the social acceptability of smoking, and the kind of victories that would be harder for the tobacco industry to undo by pressuring Washington. Indeed, industry continued to flex its muscles, helping to orchestrate the ouster of President Carter’s Health, Education, and Welfare secretary, Joseph Califano. But tobacco’s clout had become something of a double-edged sword: it vindicated activists’ assertions that only a grassroots drive could snuff out industry influence, and it made the industry less prepared to combat local regulation.
In 1973, after two years of dogged and contentious lobbying, Betty Carnes succeeded in her goal of persuading the Arizona state legislature to implement the nation’s first statewide law restricting smoking in some public places. Like Gouin, Carnes was moved to anti-tobacco activism from the depths of personal anguish. Carnes became involved with ASH—eventually becoming the organization’s fundraising chairwoman—after a close friend died of lung cancer, leaving two young children bereft of a mother.124 ASH helped Carnes in the design of the Arizona statute, but Carnes herself did the politicking, studying the smoking history of the legislators she was trying to persuade. She was also aided by a prop of her own design: “Thank You for Not Smoking” signs, which she sent to lawmakers, and to Surgeon General Steinfeld, who displayed one proudly on his desk, until he was asked to clear out his things.125
Described by the Tobacco Institute as an “ornithologist of substantial means,” Carnes had long been active in conservation circles—highlighting the overlapping concerns of the environmental and anti-smoking movement, particularly in Arizona, long a destination for those suffering from respiratory disease.126 The Arizona law was modest: it banned smoking in elevators, theaters, libraries, and buses, and established smoking sections in government buildings and health-care facilities. It appropriated no money for compliance or policing. But even so, the Tobacco Institute understood that it had been caught flat-footed, and it announced that California, Massachusetts, Illinois, Arizona, Connecticut, Michigan, Texas, Florida, and New York would be deemed “priority states” for more intensive legislative monitoring. But as field officers in these populous states monitored the dockets in the capital cities, South Dakota and Nebraska passed statewide restrictions nearly identical to Arizona’s. The Institute’s vaunted defenses, which relied on a concentration of political and media power, were ill-equipped to play the state-by-state game of legislative whack-a-mole, though they did thwart the passage of statewide laws in Illinois and Maine.
