Danielle A. Erickson, Staff Writer
On September 14, 2009 New York City’s Health Commissioner, Dr. Thomas A. Farley, announced that he would strive to ban smoking in city parks and beaches. A few years ago, on March 26, 2003 New York legislators approved and Governor Pataki signed a state-wide smoking ban that took effect July 24, 2003. This ban forced cigarette smokers outside- banning smoking in offices, train stations, bars and other public places. The new ban would restrict the areas in which smokers are free to “light up” even further by designating, “1,700 parks and outdoor recreational areas, along with the city’s seven beaches, extending up to 14 miles of shoreline” as smoke free. When questioned about this new ban, Mr. Farley stated that, “[w]e don’t think it’s too far to say that people shouldn’t be smoking in parks.” He then went on to say that, “parents shouldn’t have to breathe smoke while standing on the sidelines of their children’s soccer games, and children shouldn’t even have to look at adults smoking.”
The proposed ban seeks to expand “smoke free” areas in order to further protect the public from the dangers of second-hand smoke and as a tool to reduce the number of smokers overall. Supporters look to the success of the 2003 ban, which gained widespread acceptance and is credited for helping to reduce the city’s smoking rate from 21.5 percent in 2002 to 16.9 percent in 2007. Dr. David Kessler, former Food and Drug Administration commissioner, agrees that second hand smoke is a very real issue and states that “[w]hile undoubtedly some will think this is going too far, 10 years from now, we’ll look back and ask how could it have been otherwise. It’s not only us, but our kids in these parks and beaches.” Dr. Kessler referred to health department statistics, which reveal that 7,500 city residents die each year as a result of smoking related diseases and that 6.9 percent of adult New Yorker’s smoke.
But even with the goal of the proposed ban being to protect the health of city residents, is that enough to pass what could easily be seen as legislation that would effectively restrict the rights and freedoms of a class of people referred to as “smokers”? While the ban championed support from health advocates, and is being promoted by City council Speaker Christine Quinn, it still may require the approval of the City Council. New York Mayor Michael Bloomberg, who is known for his anti-smoking campaigns, was caught off guard by the proposal. Bloomberg, who seemed to want to soften the impact of the proposal, qualified it by saying that he wanted “to see if smoking in parks has a negative impact on people’s health.” Additionally, he stated that, “[i]t may not be logistically possible to enforce a ban across thousands of acres, but there may be areas within parks where restricting smoking can protect health.”
While bans of this nature are rare, they are increasingly becoming a reality in cities across the United States. According to the American Nonsmokers’ Rights Foundation, 429 municipalities nationwide have imposed bans on smoking at public parks and beaches. Residents in Tacoma, Washington are a recent addition to the list. In late August their City Council’s public safety committee passed a proposal to ban smoking anywhere in a city park, with the full council to decide on it next month. Public opinion in Tacoma is mixed regarding the ban. Some applaud the city’s efforts to reduce its citizen’s exposure to second hand smoke, while others question the health risks that can be attributed to second hand smoke when diluted in an outside environment.
In order to enforce such a ban there must be clear definitions of what a “park” and “smoking” is and the fines that will be attached for non-compliance. In Tacoma the City Council has proposed defining a park as, “all parks, squares, drives, parkways, docks, piers, moorage buoys and floats, boulevards, golf courses, zoos, beaches, playgrounds and recreation areas and facilities.” With such an extensive list, a smoker may wonder where exactly they are allowed to smoke besides the confines of their own home. Is such a ban effectively banning the act of smoking in public altogether? The specific designations of what constitutes a park in New York are yet to be disclosed; but in regards to fines New York City Council Speaker, Christine Quinn stated that fines for violating the ban should be modest, and that their primary intent was not to punish. Seeing as New York’s initiatives in the non-smoking arena tend to be replicated across the U.S. and in Europe, some may expect New York to be especially vigilant when deciding whether such a ban is appropriate.
In 2005, The New York Court of Appeals upheld the Appellate Division’s ruling denying a claim against cigarette manufacturers for negligent design in Rose v. Brown. In that case, the court found that despite the numerous health risks associated with smoking, a cigarette manufacturer could not be held liable for the diseases caused by smoking if there was not a safer alternative design that was acceptable to consumers. In essence even though light and ultra-light cigarettes, which contain substantially lower levels of tar and nicotine, exist and are in production, if smokers do not readily accept them as an equivalent to regulars then they are not a viable alternative. This is significant because the court specifically cited language from Clinton v. Brown & Williamson Holdings, stating, “[a] state law requirement that allows only cigarettes with no tar or no nicotine to be sold is avirtual a ban on cigarettes.” In the same vein aren’t state laws that restrict the act of smoking to smaller and smaller designated areas, effectively preventing a smoker from participating in the activity, thus banning the act of smoking if not the cigarettes themselves?
No one disputes the scientific evidence proving that second hand smoke is dangerous, or that the act of smoking exposes the user to numerous health risks. Similarly, measures that have been implemented in order to protect citizens from exposure to second hand smoke have been widely accepted. It is not a question of intent but a question of scope, when is it too far? Whether you are a smoker or a non-smoker, is a choice that you were able to make because you had the right to do so. If the right to choose to smoke is removed because you do not have access to areas where smoking is permitted then your right has effectively been taken away from you. Keeping in mind that the ban is promoted as a tool to help further reduce the number of smokers in New York, the question then becomes: How do you feel about loosing your autonomy to decide whether or not to smoke?
Edited by Andrew Dructor & Stephen Dushko
 Sewell Chan, New York Eyes ‘No Smoking’ Outdoors, Too, N.Y. Times, Sept. 14, 2009, available at http://www.nytimes.com/2009/09/15/nyregion/15smoking.html.
 New York City C.L.A.S.H: Citizens Lobbying Against Smoker Harassment, 2003 NY State-Wide Smoking Ban, last visited Sept. 28, 2009).
 Jason Ramsey, New York Likely to Expand Smoking Ban in Parks Beaches, Topnews, Sept. 16, 2009, available at http://topnews.us/content/27146-new-york-likely-expand-smoking-ban-parks-beaches.
 Adam Lisberg, NYC = Nanny State?Health Dept. considering smoking ban in parks,N.Y. Daily News, Sept. 14, 2009, available at http://www.nydailynews.com/ny_local/2009/09/14/2009-09-14_nyc__nanny_state_health_dept_considering_smoking_ban_in_parks.html.
 Sara Kugler, NYC Officials Want to Ban Smoking in City’s Parks, Newsday, Sept. 14, 2009, available at http://www.newsday.com/news/new-york/nyc-officials-want-to-ban-smoking-in-city-s-parks-1.1446430.
 See Sewell Chan, City Seeks Ban on Smoking in Parks and Beaches, N.Y. Times, Sept. 14, 2009, available at http://cityroom.blogs.nytimes.com/2009/09/14/city-seeks-ban-on-smoking-in-parks-and-beaches/.
 Ramsey, supra note 3.
 Chan, supra note 7.
 Chan, supra note 1.
 Lewis Kamb, Possible Tacoma Park Smoking Ban Burns Some: TACOMA: Smokers Would be Outlaws Under New Rule, News Tribune, Sept. 15, 2009, available at http://www.thenewstribune.com/news/local/story/880074.html.
 Chan, supra note 1.
 Tom Leonard, New York Health Chiefs Want to Extend Smoking Ban, Telegraph.co.uk, Sept. 15, 2009, http://www.telegraph.co.uk/news/worldnews/northamerica/usa/6195008/New-York-health-chiefs-want-to-extend-smoking-ban.html.
 Rose v. Brown & Williamson Tobacco Corp., 53 A.D.3d 80 (1st Dep’t 2008).
 Clinton v. Brown & Williamson Holdings, Inc. 498 F. Supp.2d 639, 648 (S.D.N.Y.2007).