TENNESSEE'S MODEL 1897
CIGARETTE CONTROL LAW

Tennessee Flag

The issue of how best to prevent cigarette effects, and cigarette sales to children, generally a crime, is a current one. Concerned parents want to know. People concerned about crime, want to know—is gun control the way to go? Notice the many cigarette effects; some people want to know how to prevent each.

Tennessee has a suggestion. Parents already generally don't want their children to smoke. Tennessee says, 'So help parents.' And have adults set a good example for children, not a 'do as I say, not as I do' bad example.

Tennessee says, 'Smokers should not be discriminated against by being the only people regularly sold a hazardous product.' Tennesee says, 'cigarette control, not gun control, is the medically-verified way to prevent about 90% of crime.' Re every cigarette effect; Tennessee's ancient example says how to prevent each.

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.) As Tennessee got to the point so well, my analysis starts with Tennessee's.

          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 banning the dangerous product, just as we ban others. The safe products legal principle protects everyone. As you'll see, the tobacco lobby fought Tennessee all the way to the U.S. Supreme Court, losing every step of the way. Here is the analysis citing Tennessee's leading, to-the-point role:

"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; 50 LRA 478 (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.

Tennessee Flag           As you see, Tennessee's solution gets right to the point. The others do so also, just not so bluntly and to the point. The Tennessee law is a model for us all. Back then, people were better educated; and the anti-cigarette movement had a religious connection, as cigarette selling was deemed a sin.

Now we know more about cigarettes' ill effects than they did back in 1897, or even 1889 or 1925. The moral focus then was on cigarettes' role in leading to brain damage and in turn to, e.g., alcoholism, baby deaths, and crime. Now other issues are included as well:

Abortion
Addiction
AIDS
Alzheimer's Birth Defects Brain Damage
Breast Cancer Divorce Drugs
Fires Hearing Loss Heart Disease
Lung Cancer Macular Degeneration Mental Disorder
Seat Belt Disuse SIDS Suicide

Of course, enough was then already known about cigarette hazards for other states to also ban cigarettes, e.g., Iowa, Indiana, and Michigan.

Nebraska law, No. 28-1421 (1919), says inter alia, "Only cigarettes and cigarette material containing pure white paper and pure tobacco shall be licensed" (full text in Nebraska Revised Statutes, Vol 2A, p 299, 1995 Reissue).

Examples of Lawsuits in Tennessee
Concerning Tobacco/Smoking Issues
Tennessee FlagParker v School District, 73 Tenn (5 Lea) 525 (Sep 1880)

Sawrie v Tennessee, 82 F 615 (MD Tenn, 30 Sep 1897)

Austin v State, 101 Tenn 563; 48 SW 305; 70 Am St Rep 703; 50 LRA 478 (22 Dec 1898) (cigarette ban)

Blaufield v State, 103 Tenn 593; 53 SW 1090 (20 Nov 1899)

Austin v State of Tennessee, 179 US 343; 21 S Ct 132; 45 L Ed 224 (19 Nov 1900) (issue of whether commerce clause preempts state cigarette ban). SCB: 101 Tenn 563; 48 SW 305; 70 Am St Rep 703

Liggett & Myers Tobacco Co v Cannon, 132 Tenn 419; 178 SW 1009; LRA 1916A 940; Ann Cas 1917A 179 (25 Aug 1915)

Dark Tobacco Growers' Co-op Assn v Mason, 150 Tenn 228; 263 SW 60 (Tenn, 7 June 1924) (its arbitrariness, coercion and suppression doesn't necessarily make the association illegal)

Dark Tobacco Growers' Co-op Assn v Dunn, 150 Tenn 614; 266 SW 308 (29 Nov 1924) (trade practices case)

Mack v Hugger Brothers Construction Co, 153 Tenn 260; 283 SW 448 (22 May 1926) (fire case)

Mack v Hugger Brothers Construction Co, 10 Tenn App 402 (20 July 1929)

Kelly v Louisiana Oil Refining Co, 167 Tenn 101; 66 SW2d 997 (13 Jan 1934)

Shuck v Carney, 22 Tenn App 125; 118 SW2d 896 (24 Nov 1937)

Ashcraft v State of Tennessee, 322 US 143; 64 S Ct 921; 88 L Ed 1192 (1 May 1944) (smoker confession-of-crime case)

Henry v Gardner, Secretary, HEW, 381 F2d 191 (CA 6, Tenn, 19 July 1967) (smoker Social Security disability case)

Jeffers v Sterling Garrett Coal Co, 583 SW2d 594 (Tenn, 25 June 1979)

Shipley v City of Johnson City, 620 SW2d 500 (Tenn App, 24 April 1981) (smoker lit up while working at a gas line excavation, the resultant explosion caused injury to third party)

Roysdon v RJ Reynolds Tobacco Co, 623 F Supp 1189 (D ED Tenn, ND, 18 Dec 1985) (smokers' rights case against tobacco company)

National Pen & Pencil Co v United Food and Commercial Workers, Local 1557, 87 Lab Arb (BNA) 1081 (25 Oct 1986) (on-job smoking ban)

Loretta Harrell v Douglas Harrell, No. 1084, 1987 WL 6716 (Tenn App, 19 Feb 1987) (child custody case)

Carroll v Tennessee Valley Authority, 697 F Supp 508; 3 IER Cases (BNA) 149; 3.4 TPLR 2.89 (D DC, 3 March 1988) (pure air case)

Karen Mitchell v Robert Mitchell, Appeal No. 01-A-01-9012-CV-00442, 1991 Tenn App LEXIS 337 (26 April 1991) (custody case)

Tamara Helm v Mark Helm, 1993 Tennessee App LEXIS 119; 1993 WL 21983 (3 Feb 1993) (custody case)

Adults' Concern Then For
Setting A Right Example for Youth

The activists of the 1840's - 90's era wanted what is now called a "comprehensive integrated program," meaning that adults must set a proper example for children (not 'do as I say, not as I do'!). Significantly more so than now, that era activism was concerned about national and adults' example,
  • for setting a good one,

  • against setting a bad one:

See that era's writings (1833-1916):

1; 2; 3; 4; 5; 6; 7; 8; 9; 10; 11; 12; 13; 14; 15; 16;
17; 18; 19; 20; 21; 22; 23; 24; 25; 26; 27; 28; 29;
30; 31; 32; 33; 34; 35; 36; 37; 38; 39; 40; 41; 42;
43; 44; 45; 46; 47; 48; 49; 50; 51; 52; 53; 54; 55; 56

For information on tobacco's current impact on Tennessee, after the foregoing model anti-cigarette law was abandoned, see the overview at the Tobacco-Free Kids website.

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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Copyright © 1999 Leroy J. Pletten