Vol. 4 No. 7 (July, 1994) pp. 91-92

SMOKING POLICY: LAW, POLITICS, & CULTURE by Robert L. Rabin and Stephen D. Sugarman (Editors). New York: Oxford University Press, 1993. 243 pp.

Reviewed by A. Lee Fritschler, President, Dickinson College, Carlisle, Pennsylvania.

The ill effects of smoking on health is an issue which will not die; it is an area of public policy which seems to have achieved a life of its own. Starting with the Surgeon General's report in 1964, the smoking and health controversy has attracted the attention of scientists, both soft and hard, lawyers, media specialists and to a surprisingly large extent, the general public. When things seem to quiet down, new revelations appear. The latest round includes indications that nicotine is allegedly addictive, and that cigarette manufacturing executives knew from the beginning that their product was unsafe and habit forming. According to recently released internal memoranda, they did a great deal to discourage the release of the unfavorable, even damning information they had before them in the 1960s.

SMOKING POLICY is the flowering of the social science perspective on the smoking and health issue. The authors use social science approaches to the subject to illustrate the wide range of implications, social, political and legal, which are associated with the issue. All of its contributors are Californians. They deserve our congratulations for producing very thorough and interesting studies of this important public policy area.

Although the book is dense with facts and theories, it is engrossing and rewarding. Robert Kagan and David Vogel examine smoking regulations in three countries, Canada, France and the United States. Their socio-political findings relating to the nature of those societies explain the various approaches to regulations those three countries have taken over the past several years. Accordingly, their conclusions about the reluctance to regulate smoking or consumption head-on in this country, rests on our positive views of individualism and negative views on paternalism.

The Canadian and French governments have gone further than the U.S. in regulating tobacco consumption. The U.S. government's response to the smoking threat was hortatory compared to the responses of the other two. Although one could conclude that our approach has been successful, it is noteworthy that our success has been achieved in a peculiarly non-directive way. Further, the three nations have moved in the same direction but the United States has moved faster to protect the health of non-smokers than smokers themselves. Kagan and Vogel conclude that in ten years the United States will probably institute more paternalistic controls because this is the direction government policy is moving generally. The essay is an interesting analysis of how the structure of governments and political cultures affect the extent of government intervention and the nature of regulatory processes.

Two chapters by sociologists and political scientists, Joseph Gusfield, Jerome Skolnik and Kagan once again, deal in very interesting ways with the symbolism of smoking and the problems and prospects of gaining compliance with regulations without enforcement. As other essays in this volume, these rise in terms of their interest and sophistication well beyond the particular case in point. Gusfield points out that cigarette smoking gained popular acceptance in the early part of this century as a symbol of moral looseness and a rebellion against authority. He sees the release of the Surgeon General's report riding on a turn of popular sentiment toward more healthful life styles. In a similar vein, Kagan and Skolnik claim that self- enforcement of anti-smoking regulations conform evermore clearly to current definitions of civility. To support this claim, they present interesting data from questionnaires dealing with reactions to secondhand smoke. The study was done for McDonald's franchises located in communities across the country which have either considered banning or have actually banned smoking in their restaurants.

Franklin E. Zimring has contributed a very useful essay to the volume on the relationship between our approach to diminishing the consump-

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tion of cigarettes and control of illicit drugs and alcohol. He credits the Surgeon General's report of 1964 with most of the social change that has resulted in the intervening thirty years. Conveying the scientific findings with some forcefulness has led to the reduction in smoking. On the other hand, outright prohibition would probably have had the opposite result. He writes, "Crediting the criminal law for the low usage levels of prohibited substances is a bit like congratulating children for the fine job they did of raising their parents." (100) The future for cigarette consumption will probably be one of gradual decline. Zimring notes the frustration which could arise from that slow pace because of the enormous costs of health care generated by smoking behavior. But he concludes that the achievement of an almost smoke-free country will be more remarkable and more solid if it is done in an environment of governmental restraint. On this point, most of the disciplines represented in this volume agree: a regulatory process characterized by low levels of government intervention and high levels of education seem to be most effective in our society.

Two chapters on the reaction of the court system to the cigarette smoking and health controversy written by Robert L. Rabin and Gary T. Schwartz are comprehensive. They are the best brief legal analysis of the fate of the cigarette companies in court I have seen. It is remarkable that in a period of more than thirty-five years, cigarette manufacturers have not lost a case in court. The combination of U.S. traditions of tort liability law, the health warning itself and the difficulty of pinning down with accuracy the specific causes of any disease, have led to these victories. Schwartz writes, "...it is difficult to see how liability doctrines could be expanded (or the uncertainties in current doctrines resolved) in ways that would contribute to the development of an intelligent public policy." (157)

Recent developments suggest a new avenue for judicial activism, however. If nicotine finds its way onto the list of drugs regulated by the Food and Drug Administration there are some interesting possibilities for suit. For example, if cigarette manufacturers manipulated nicotine levels to make their product more addictive, their liability could increase. Hearings were held in Congress last month (June 1994) to determine what role the FDA might have in this area of regulation. One could predict a number of suits arising out of the possibility that nicotine, and hence tobacco, might be treated similarly to other pharmaceuticals.

Stephen D. Sugarman and Helen Halpin Schauffler write about the problems, legal and otherwise, arising out of the fact that smokers and non-smokers are treated differently in employment insurance. As of mid-1992, about half of the states had passed laws protecting the rights of smokers in employment. The contentious juxtaposition of smokers' rights to employment, insurance and related benefits versus the employers' interest in maintaining a healthy workplace and low insurance premiums is one which will not be resolved for years. These essays are particularly interesting in the way that many of the others in this volume are...the implications of the analysis go far beyond cigarettes and health. Fringe benefits as we now know them will change dramatically in the next few years, thanks to changes in the economy and in the way gay and non-married heterosexual demands will be treated. Smokers and their health insurance coverage are a harbinger of those changes.

Michael Schudson concludes the volume with a fascinating discussion of cigarette advertising and the health messages they contain. He reaffirms the position of the cigarette manufacturers that cigarette smoking probably does not induce non-smokers to smoke. Cigarette advertising is a less powerful marketing tool than many people believe and, banning it is not likely to have a dramatic impact on the prevalence of smoking. As in the other chapters, there is no suggestion in this essay that government regulatory efforts be extended to further reduce consumption.

Rabin and Sugarman have come up with a good volume of essays. It is a book which will interest scholars from a variety of academic fields and those with interests beyond smoking and health. They have made a fine contribution to public policy scholarship as well as to the discussion of this particular issue.