MODEL CIGARETTE CONTROL LAWS
from Tennessee, Michigan, and OSHA

The issue of how best to prevent cigarette sales to children is a current one. Concerned parents want to know.

Michigan has a suggestion. Treat all people equally. Make all cigarettes safe. When we go to stores to buy a product, we expect whatever we buy to be safe for its intended use. Michigan law MCL § 750.27, MSA § 28.216 says smokers have the same right.

Smokers should not be discriminated against by being the only people regularly sold a hazardous product. For litigation reasons, the tobacco lobby dare not object (not in 90 years!!) to the Michigan approach, as it dare not, on-the-record, support selling deleterious and adulterated products. Though it regularly violates the law, it dare not oppose the concept on the record.

To avoid the accusation of being prohibitionist, as Tennessee was as implied below, Michigan's MCL § 750.27, MSA § 28.216 carefully avoids banning all cigarettes, it only bans the dangerous ones—the same principle applicable to all other products.

In the context of how to protect children, one of the movement issues, I wrote the below analysis offering four suggestions copied from concepts—laws or court precedents—already extant or available for use. (I merely collected the four separate concepts in one article for illustration purposes.)

My analysis starts by referring to a previous narrative on the subject, then gets to the point. The point is, protect children at least the same way as laws protecting everyone else—by requiring that only safe products be manufactured, given away, and sold. The safe products legal principle protects everyone. Let's do this, treat everyone equally via enforcement of the already extant laws mandating a safe product for everyone. Here is the analysis:
"Alternative Models for Controlling
Smoking among Adolescents"
87 Am J Pub Health (Issue 5) 869-870 (May 1997)

The February 1996 editorial ("Preventing Tobacco Use—The Youth Access Trap") by Dr Stanton Glantz concerns the direction for controlling smoking, perhaps a "focus on keeping kids from wanting tobacco."1 There are four alternative models:

1. Ban cigarette manufacture, sales, giveaway (Tennessee Model). The 1890s' no-smoking movement faced the same directional issue as we do now. Tennessee chose the direction of enacting a law making it illegal
"for any person, firm, or corporation to sell, offer to sell, or to bring into the state for the purpose of selling, giving away, or otherwise disposing of, any cigarettes, cigarette paper, or substitute for the same."2

Tobacco seller William B. Austin violated this law, was arrested, and was convicted. He appealed to the Tennessee Supreme Court. It upheld the law and made the following judicial finding of fact:
". . . cigarettes . . . are . . . wholly noxious and deleterious to health. Their use is always harmful, never beneficial. They . . . are inherently bad, and bad only . . . widely condemned as pernicious altogether . . . impairment of physical health and mental vigor. . . ."3

Austin appealed to the US Supreme Court, and lost again.4 (Unfortunately, after winning the case, Tennessee repealed its law, which due to its well-aimed focus had been easier to enforce than no-smoking laws.)

2. Ban deleterious cigarette manufacture, sale, giveaway (Michigan Model). All cigarettes contain deleterious ingredients.5 After Tennessee won, Michigan passed a law banning such cigarettes:
"Any person within the state who manufactures, sells or gives to any one, any cigarette containing any ingredient deleterious to health or foreign to tobacco, shall be guilty of a misdemeanor."6

(This law is, unfortunately, never enforced).

3. Ban deleterious emissions generally (federal model). All cigarettes emit ingredients deleterious to health.7 A federal regulation, 29 CFR § 1910.1000, already bans deleterious emissions, including those from cigarettes. It needs enforcing.

4. Prosecutions of deaths caused by deleterious substances (case law model).
"Over 37 million people (one of every six Americans alive today) will die from cigarette smoking years before they otherwise would." 8

Cigarettes are highly fatal owing to their deleterious ingredients and emissions. Case law has long declared it unlawful to provide people the means—for example, a deleterious substance—to injure or kill themselves. 9,  10   It is unlawful to do so even if death is slow. 11

The above models (banning the manufacture, sale, and giveaway of cigarettes; banning emissions; and prosecuting deaths caused by deleterious substances) provide a more manageable focus than trying, unsuccessfully as we have seen, to argue kids into not "wanting tobacco." Through the above models, we can accept Philip Morris's cynical dare, "The best way to keep kids away from cigarettes" is to "keep cigarettes away from kids." 12  Yes, we can "keep cigarettes away," by means of any or all the above models.

REFERENCES

1. Glantz, S. Editorial: preventing tobacco use--the youth access trap. Am J Public Health, 1996;86:157.

2. Tennessee General Assembly, Acts of 1897, ch 30.

3. Austin v State, 101 Tenn 563, 566-567; 48 SW 305, 306; 70 Am St Rep 703 (1898).

4. Austin v State, 179 US 343 (1900).

5. Reducing the Health Consequences of Smoking: 25 Years of Progress: A Report of the Surgeon General. Washington, DC: US Dept of Health and Human Services; 1989;86-87. DHHS publication CDC 89-8411.

6. Michigan Compiled Law § 750.27; Michigan Statute Annotated § 28.216.

7. Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service. Washington, DC: Public Health Service; 1964;60. Public Health Service publication 1103.

8. Pollin, W. Foreword. In Research on Smoking Behavior, Washington, DC: US Dept of Health, Education, and Welfare; 1977. Research Monograph 17. DHEW publication ADM 78-581.

9. People v Carmichael, 5 Mich 10; 71 Am Dec 769 (1858).

10. People v Kevorkian, 447 Mich 436, 494- 496; 527 NW2d 714,738-739 (1994).

11. People v Stevenson, 416 Mich 383; 331 NW2d 143,145-146 (1982).

12. Philip Morris USA. [Advertisement] Kids should not smoke, Newsweek; April 15, 1996;127:76.

See also, P M Ling, A Landman, and S A Glantz, "It is time to abandon youth access tobacco programmes," 11 Tobacco Control 3-6 (March 2002).

Note that in 1857, the medical journal The Lancet provided guidance on "excess smoking" in context of a 10-year programme for youth avoidance of tobacco, that if followed, would have led to abolition of smoking by 1867. As we know, it did not work. Focusing on youth does not, and cannot work, as long as adults continue setting a bad example, as long as the product remains available. Wherefore the Iowa-1897 solution (cigarette manufacturing and sales ban) is recommended.
Other Writings by Same Author

"Are You Missing $omething,"
26 Smoke Signals 4 (October 1980)
(discusses cigarette costs to society, following my practice of
consolidating in one narrative, data from a multiplicity of sources,
refuting the then notion that cigarettes are a cost plus to society)

"Smoking as hazardous conduct,"
86 New York St J Med 493 (Sep 1986)
(discusses workplace smoking as already illegal
pursuant to OSHA's 29 CFR § 1910.1000 emissions limits,
which cigarettes regularly exceed)

"Indoor Air Quality Already Regulated,"
3 Indoor Air Rev 3 (April 1993).
(again discusses workplace smoking as already illegal
pursuant to OSHA's 29 CFR § 1910.1000 emissions limits,
which cigarettes regularly exceed)

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