CARR, Katherine, kec26@pitt

Ten Feet to Fresh Air: Protecting Minors from the Harmful Effects of Secondhand Smoke

Katherine E. Carr, kec154@yahoo.com

University of Pittsburgh School of Law, Pittsburgh, PA, Candidate for J.D., May 2006

Abstract

The adoption of a statute prohibiting smoking within ten feet of the airspace of a minor would help to protect the health of one of our nation’s most precious assets: the health of our children. At the same time, a ten foot ban would minimally encroach on smokers, who would only need to apply a little consideration to be compliant. In most cases, a ten-foot ban would eliminate the possibility of a smoker in the same room, or in the same vehicle, as a child. (The “airspace” provision would permit a smoker to be four feet from a child, for example, but in the next room or outside while the child is indoors.) It seems extraordinarily unlikely that a nationwide ten-foot ban would pass in the United States right now, given the weight of the tobacco industry’s lobbyists, the uproar a ban might cause among smokers, geographic disparities in thinking, and the inertia of unfortunately slow movement towards recognition of the plight of non-smokers. The other end of the spectrum also does not offer a satisfactory result, because local or community-wide bans would necessarily permit a high degree of variance in their passage. For instance, local ordinances might be altered with regard to the banned distance; the age, or even the height, of the child; and whether an older child acquiesces to the smoking or is smoking himself. Such variance, if the nuances are not well known, makes it easier for smokers to skirt the law. A Goldilocks approach would be to employ a method to make the proposal maximally universal yet prevent it from being too unwieldy to achieve widespread passage. The best bet may be to introduce the ten-foot ban as a state initiative. Specifically, the federal government could tie the ten-foot ban to time-limited “bonus” funding offered in conjunction with the amount distributed by the State Children’s Health Insurance Program (SCHIP). Enacted under the Balanced Budget Act of 1997 for a ten year period, SCHIP was designed to provide health insurance for children in poorer families. Because of its’ related concern on the health of children, SCHIP may be the most appropriate vehicle to affect the ten-foot ban. Prior to 2007, (the natural expiration of SCHIP as it was enacted), the additional monetary incentive could simply be added to the federal portion of a state’s SCHIP budget. In 2007, the incentive may continue, or SCHIP may be modified to include the ban as a built-in incentive for states who have not already adopted the measure. The bonus funding should derive from an increased federal tax on all nicotine products that produce smoke, except those (if any) which aid a smoker in quitting. Accepting the bonus funding from the federal government by passing the statute would reward the state for making clean air for children a priority. Similar to SCHIP’s guidelines, the state would be allowed the flexibility to determine the most appropriate utilization of the allocation. Because most states’ Medicaid and SCHIP budgets are already stretched thin (see recent headlines from Tennessee in particular), most states will probably be inclined to try to pass the ban. However, a state would retain the option not to participate. Mainly, the targeted group is smoking parents. Two schemes are proposed for punishment, a citation scheme and an education/community service model. Concededly, most smoking that would violate the ban would not occur in public, but rather in the privacy of the smoker’s home or vehicle. Because in most instances the government is expressly forbidden access to such an area, enforcement of the ban may be its largest hindrance to success. The strength in such a measure, therefore, would rest not in its enforcement per se, but in the widespread publicity of its existence. A state adopting the measure should advertise the new ban and its effective date on television (including children’s programming,) the radio, newspapers, and billboards. Details of the law should be splashed everywhere, and if the general public dissects it with a third of the interest (the collective) “they” demonstrate in celebrity breakups, the ten-foot ban will be an incredible success. Kids should likewise be made aware of the law. Elementary school children should be taught to physically stay away from someone who is smoking. Ideally, they will know the length of ten feet as well as they know their home phone number. Via widespread publicity, the public itself - not the government - will be the vehicle towards encouraging compliant behavior. Especially in the company of other adults who are also aware of the law, parents may tend to be more compliant. Smoking within ten feet of a minor will be seen as being politically incorrect. Another upshot to the proposal is the message it sends to children. Not only is it yet another “don’t smoke, it’s bad for you” message, but it empowers children because they are specifically recognized. It sends the message to children that they are worthy enough to be protected. And, the less children see of adults smoking, the less inclined they may be to perceive the habit as something they will naturally incorporate into their own lives. Mere consideration should not be too much to ask, and a ten foot ban on smoking within the presence of minors is not unreasonable. Ultimately, the ten foot ban will hopefully produce healthier children, and resultantly healthier adults. Further, on the back end, healthier people will require less health care, and their improved health will save them, their employers, and the government money over time.

Overview

The adoption of a statute prohibiting smoking within ten feet of the airspace of a minor would help to protect the health of arguably our nation’s most precious asset: our children. This paper will identify the problem of passive smoking by minors and highlight the need for a change. Next, a method of passing the legislation will be discussed. The implications of implementation will be considered. The focus will then shift to the problems of enforcement. Lastly, the public policy ramifications on such a ban will be considered.

Identification of the Problem

Although the facts may be contested by those in the tobacco industry, the effects of smoking remain a major public health concern, and respected health authorities have ample documentation of the effects of the practice. Smokers are susceptible to increased rates of death from cancer, heart disease and emphysema. The American Cancer Society reports that nearly one death in five in the United States is attributed to tobacco use, and that “cigarettes kill more Americans than alcohol, car accidents, suicide, AIDS, homicide, and illegal drugs combined.”[1] Smokers are not the only ones paying the physical cost of their decisions, however.

Of the nonsmoking community, the Environmental Protection Agency estimates that three thousand people in the United States die each year from lung cancer.[2] The children of smokers, who spend substantial amounts of time involuntarily breathing smoke, are also susceptible to more severe and more frequent asthma attacks, as well as increased rates of Sudden Infant Death Syndrome (SIDS), bronchitis, pneumonia,[3] and other severe respiratory diseases.[4] A recent study of 60,000 nonsmokers indicates that children exposed daily, over many hours, are 3.63 times more likely to get lung cancer than fellow nonsmokers who were raised in a nonsmoking home.[5] There is no reciprocity; that is, nonsmokers do not actively do anything to harm smokers, whereas the choices of smokers threaten and assault the health of nonsmokers. This grave imbalance represents a fundamental unfairness, and its results[6] are unacceptable.

Because nearly ninety percent of lifelong smokers initiated smoking prior to turning eighteen[7], “a youth-centered prevention policy is an essential part of any coherent strategy for countering tobacco-related disease and death.”[8] School-based instruction on tobacco prevention has been only modestly effective,[9] or by some accounts, altogether ineffective.[10] Additionally, the positive effects of a non-smoking message may be negated if the child receives conflicting signals about the acceptability of smoking in the home environment. Many movements regarding smoking focus on youth prevention efforts; such is the aim of programs like Drug Abuse Resistance Education (D.A.R.E.)[11] and a goal of Girls on the Run.[12]

Other approaches are to reduce a child’s access to cigarettes. Cigarette dispensing vending machines presently operate at a mere fraction of their rates twenty years ago.[13] Other groups, such as the Coalition for Tobacco Retailing, (with its’ “We Card” program) are ensuring compliance with carding laws and are effectively curbing sales to minors through retailer education.[14] However, the prevalence of youth smoking is not on the decline. The CDC reports that smoking among high school and middle school children has not declined between 2002 and 2004.[15] What is clear is that public policy officials need to reconsider the epidemic of youth smoking. The present approach focuses on youth but tackles the issue from a different angle: it demands the protection of children by those in the best possible position to perform the task.

Parents traditionally are the primary protectors of their children, and society has an expectation that adults will safeguard their minor children. That obligation persists even if the parent must modify her own desired conduct. In the realm of family law, courts have long considered the “best interests” of a child, and the children of smokers have experienced some success through the judicial system. In 1996, the Court of Appeals of Kansas upheld a change in custody based on a finding that the mother’s smoking exacerbated the health problems of her children.[16] In another case recent case in New York, a fourteen-year-old requested that he not be exposed to Environmental Tobacco Smoke during his court ordered visitations with his mother.[17] The child prevailed after a determination by the court that the child’s best interests were being served by limiting his exposure to ETS.[18]

In a particularly strong opinion, an Ohio court admonished a mother who contended her relationship with her significant other would be compromised if she were not able to smoke cigarettes in the presence of her eight-year-old daughter.[19] Citing health as a compelling state reason, the court ordered the mother and her significant other to protect the child from exposure to all tobacco smoke, particularly their own.[20]

The United States Supreme Court recognized the dangers of secondhand smoke in Helling v. McKinney.[21] The case involved an inmate who shared quarters with another inmate who smoked five packs of cigarettes per day.[22] The Court recognized a cause of action based on an Eighth Amendment violation, (on the theory that the exposure to secondhand smoke was cruel and unusual punishment.)[23] The Court’s ruling also included an acknowledgement that the danger of secondhand smoke can be considered both in terms of the present, as well as possible future, harm.[24]

While each of the above decisions goes to great lengths to protect a party to the litigation, millions of children (fortunately) are not in family court, and have no such option of protection from their smoking parents. Something more needs to be done.

Smoking parents acknowledge that their conduct is a problem. In fact, when polled, seventy percent of smoking parents, in consideration of what their children see them do, “were concerned that their children would eventually start smoking.”[25] Indeed, children of smokers are more than twice as likely to smoke as children of nonsmokers.[26] Another study found a cumulative effect of additional smoking family members on a child – children with smoking parents and two older siblings who smoked or had tried smoking were four times as likely to try cigarettes.[27] While adolescents living with both biological parents were the least likely to smoke or take up smoking during a given school year, researchers point out that, regardless of their composition, “poor family relationships predict teenage smoking independently of parental smoking behaviour (sic)”[28] (emphasis in original). Only occasionally has parental smoking “resulted in a rejection of smoking by . . . children. . . [m]ore usually, however, exposure to parental smoking was seen by adolescents themselves as a factor contributing to their smoking uptake”[29] (emphasis in original).

A ban that impacts a child in the spheres of the home and the community at large would supplement school instruction and present a unified and consistent smoking prevention policy. While smokers might protest the imposition of a ten foot ban, a state could offer - as the court did in the Julie Anne case, supra[30] - a compelling state interest in protecting the health and welfare of its citizens. Previous challenges to restrictions on smoking have failed also on a “fundamental rights” theory, which proved dispositive in House of Corrections Block Representatives v. Creamer.[31] The court found that because a smoking ban does not deprive a smoker of life, liberty, or property implicating due process rights, smoking is not a fundamental right.[32] A First Amendment challenge by a smokers lobbying group has also failed: the court did not find the act of smoking “sufficiently expressive conduct” to warrant Constitutional protection.[33]

In reality, the ten foot ban would only minimally encroach on smokers. In all cases, the provision does not diminish a smoker’s personal choice to smoke; it would merely establish a zone of protection for children to be free from the byproduct of the smoker’s choice. Adults have the choice to request a smoker to refrain from smoking. They can make the choice to physically relocate from a smoker’s airspace, discontinue frequenting an establishment which permits smoking, or can even push legislation to create smoking bans. Children, on the other hand, and particularly those of smoking parents, are substantially hindered in each of the aforementioned regards. Already disadvantaged by the very real possibility of having to watch their parents eventually die from a smoking related disease, the children of smokers must be protected from a similar fate. Additional statutory protection is the vehicle necessary to reduce the disadvantage.

Legislation

Helpful to the cause, legislators are more willing to enact child protecting anti-tobacco legislation than they are other types of anti-tobacco legislation,[34] and there has already been substantial legislative recognition of the plight of children. As of the fourth quarter of 2004, twelve U.S. states have laws which prohibit smoking while children are on the premises of a day care center, (and fifteen states have no restrictions in place in day cares.)[35] Internationally, Queensland has banned smoking within 10 meters of children’s playground equipment,[36] and Ireland has had a nationwide smoking ban in effect for all public places since March 2004.[37]

Clearly, the targeted group is smoking parents. In most cases, a ten-foot ban would eliminate the possibility of a smoker in the same room, or in the same vehicle, as a child. (The “airspace” provision would permit a smoker to be four feet from a child, for example, but in the next room or outside while the child is indoors.) The proposed statute would reduce children’s exposure to secondhand smoke and consequently curtail respiratory ailments among the children of smoking parents. Additionally, the ban may implicitly discourage children from mimicking the behavior of their parents because smoking would not be as visible to the child.

Due to difficulties with implementation and enforcement, the ten foot ban would realistically probably only be enforced where it might be most needed: in a car. Since being in the car with a chain-smoking parent has been considered analogous to “being locked up in a mobile gas chamber,”[38] the vehicle seems as good a place as any to start.

The legislation for the proposed statute will be two-tiered. First, Congress will be the best vehicle to enact an across-the-board increase on cigarette taxes (the revenue of which would be redistributed to states upon passage of the ban.) The Commerce Clause in the U.S. Constitution empowers Congress with the ability to regulate commerce among the several states.[39] Congress currently exercises this power with a federal excise tax on cigarettes, and addressing the issue of increased taxes in this manner is beneficial because the structure to implement it is already in place.[40] However, while ideal, it appears extraordinarily unlikely that a ten-foot ban would pass at the national level in the United States at the present time. There are a number of roadblocks to the passage of the law on every level, but because of the sheer size and scope of a nationwide ban, certain obstacles at the national level may prove insurmountable.

For one, the tobacco industry is resourceful and politically active. Although the major players in Big Tobacco (Philip Morris, R.J. Reynolds, Brown & Williamson, and Lorillard) took a significant financial hit with the massive nationwide 1998 Master Settlement Agreement (MSA),[41] the industry’s lobbying efforts are still substantial[42]. A second roadblock, somewhat related, is the potential for a mutinous uproar, led by the tobacco industry, but carried out by the smoking community.[43] The mere thought to the smoking community of a so-called “smoking police force” has the potential to provoke a backlash strong enough to weaken or even overturn laws.[44] (However, as previously mentioned, the compliance of the smoking community can be achieved with a little consideration on the community’s part.)

Another problem with national passage is the inertia of slow movement towards recognition of the plight of non-smokers: the Surgeon General’s report linking smoking and lung cancer was issued in 1964, and, except in rare cases,[45] the children of smoking parents are no better protected from secondhand smoke in their homes now then they were forty years ago. Opponents might also argue that the ban, while decreasing sales, would also decrease the funding available to the states through the taxes applied to cigarettes. Although decreased cigarette sales were one effect of the MSA, the settlement also created the somewhat undesired result of decreasing state revenues.[46] (However, with the implementation of the proposed statute, states would raise funds through further additional taxes on cigarettes. States would garner additional funds for their SCHIP programs. Additionally, over time, tobacco-related health care expenditures shouldered by the state would also decrease.)

Geographic disparities in thinking would be another major impediment to national passage of a law. Although states such as California and New York are particularly progressive in terms of pushing anti-smoking legislation,[47] in parts of Virginia and North Carolina, as well as elsewhere in the southeastern United States, tobacco farming is a “way of life.”[48] Because tobacco was an instrumental in the formative years of this country and still is a very viable economic industry,[49] it is anticipated that there will be particularly strong opposition at the state level in the southeastern portion of the United States. Lastly, there is the concept that big government, and comprehensive, across-the-board regulations tend to offend “basic American cultural values.”[50]

The solution to leveling the tobacco-producing playing field is simple, notes one recent article (and the solution would help curtail smoking as well): Congress should create a major hike in the federal excise tax on tobacco and then impose equal-across-the-board advertising restrictions on tobacco companies.[51] The author further highlights the limitation of a Congressional approach: “Simple, yes. Sensible, yes. But if getting it through Congress were as easy as describing it, we wouldn’t be in this mess [with tobacco companies] in the first place.”[52]

Given the above factors, if Congress is not an optimal forum for passing a nationwide ban, another avenue to attempt is to try a portion of the ban through a federal agency, as “agencies are capable of adopting regulations under delegated authority that Congress itself might not have adopted.”[53] The Administrative Procedures Act permits an agency to engage in rulemaking procedures,[54] which can find their source from one of several avenues - the legislature; through staff recommendations; by political pressure, or; via public interest groups.[55] Filing a petition for rulemaking will elicit some definitive action from the agency,[56] even if the action is a failure to act.[57] However, success is not guaranteed. In fact, in asking an agency to utilize its rulemaking authority, a lobbyist needs to keep in mind that any decision made by the agency will harm another group’s interest:[58] “a 100% win is not attainable. It is probably a waste of money to pursue, and unwise in the end.”[59] While a nationwide ban on smoking would be ideal, implementation of a ban does not seem feasible for passage in Congress or through an administrative agency.

The other end of the spectrum also does not offer an optimally satisfactory result, because -although perhaps more likely to achieve passage- local or community-wide bans would necessarily permit a high degree of variance in their passage. For instance, local ordinances might be altered with regard to the banned distance, i.e., why not eight feet, or seven and a half? The height of the child may come into question – if a toddler is crawling underfoot, and the parent is blowing smoke straight up in the air the age, there may be argument that the child is unaffected. Variance with regard to the age of the child may factor in, i.e., it would seem that older children would be more able to make decisions for themselves. If the child himself is smoking, is it fair to require another smoker to stop smoking? Such variance, if the nuances are not well known by the public, makes it easier for smokers to skirt the law. A Goldilocks approach would be to employ a method to make the proposal maximally universal yet prevent it from being too unwieldy to achieve widespread passage.

Despite that “[t]he tobacco industry focuses most of its efforts at the state level, where it typically lobbies to pass legislation that would preempt local ordinances,”[60] the best bet may be to introduce the ten-foot ban as a state initiative. Specifically, the federal government could tie the ten-foot ban to time-limited “bonus” funding offered in conjunction with the amount distributed by the State Children’s Health Insurance Program (SCHIP). Enacted under the Balanced Budget Act of 1997 for a ten year period, SCHIP was designed to provide health insurance for children in poorer families.[61] Because of its’ related concern on the health of children, SCHIP may be the most appropriate vehicle to affect the ten-foot ban.

Prior to 2007, (the natural expiration of SCHIP as it was enacted), the additional monetary incentive could simply be added to the federal portion of a state’s SCHIP budget. In 2007, the incentive may continue, or SCHIP may be modified to include the ban as a built-in incentive for states who have not already adopted the measure. The bonus funding should derive from the previously mentioned increased federal tax on cigarettes and other nicotine products that produce smoke. Exempt from additional tax should be those products which aid a smoker in quitting.

Accepting the bonus funding from the federal government by passing the statute would reward the state for making clean air for children a priority. Similar to SCHIP’s guidelines, which permit a state to 1) obtain coverage meeting the requirements of the SCHIP legislation; 2) provide benefits under the State’s Medicaid plan; or 3) enact a combination of both,[62] a state enacting the ban would be allowed the flexibility to determine the most appropriate utilization of the allocation. Because many states’ Medicaid and SCHIP budgets are already stretched thin, most will probably be inclined to try to pass the ban. For instance, cuts to TennCare, Tennessee’s version of Medicare, have not eliminated any children from coverage, but have restricted benefits to children.[63] “The lack of comprehensive health care for children is a serious concern,”[64] and additional funding to SCHIP programs would alleviate some of the restrictions to care in states like Tennessee. However, in recognition of state autonomy, a state would retain the option not to participate.

Enforcement

The Fourth Amendment states: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[65] Concededly, most smoking that would violate the ban would not occur in public, but rather in the privacy of the smoker’s home or vehicle. Because in most instances the Fourth Amendment rightfully forbids the government access to such an area, enforcement of the ban will be its largest hindrance to success. The notion of the government entering a home in an attempt to enforce the ten-foot smoking ban is enough to make even the most adamant nonsmoker extremely uncomfortable.

In recognition of privacy, the ban should include a provision making a home search secondary to a primary reason for search. That is, the government will be expressly denied access to a smoker’s home for the sole purpose of enforcing the ban. However, once inside for another purpose, an officer could issue a citation for a violation of the ban. For the most part, then, enforcement of the ban by the government within the home of a smoker will necessarily be virtually nonexistent.

Enforcement by the government in public will also be difficult, due to the mobile nature of the public and the potential for due process problems. For instance, it would seem fairly easy to ambush a smoker by placing a child nearby. There is also a judgment call on the distance of ten feet: an officer is not likely to get out a tape measure to document the distance between a smoker and a minor. However, it would be at a state’s discretion to implement enforcement policies in the general public. If a state chooses to enforce the ban in public, police officers or health agency officials could enforce that portion of the ban through earmarked SCHIP money.

Most public health measures tend to be long on legislation and short on implementation and enforcement, and with the Fourth Amendment as a roadblock, the ten foot ban initially appears no different. However, despite the problems with the government’s necessarily limited role in enforcing the ban within the home and the logistical problems with enforcing the ban in public, there are at least two ways to elicit compliance of the ban.

Compliance of the ban through enforcement of the vehicle provision

First, similar to state seat belt laws, the ban can be enforced on the driving public by the officers who already patrol communities. Each state, (except for New Hampshire, where legislation is pending),[66] allows ticketing by a police officer if a driver or passenger is unrestrained. In 2004, twenty-one states, plus Washington D.C., have primary seat belt laws,[67] which mean an officer can stop the driver solely if the driver is not wearing a seatbelt. As previously indicated, secondary seat belt laws allow a citation if the vehicle is stopped for another reason.

Enforcing the ten foot ban in vehicles removes the excuse that the smoking was inadvertent or accidental. Unlike a violation in public, a smoker could not easily claim that she did not realize a minor was in the car. (Also, unlike a seatbelt violation, the harm is not just a potential in the future, but happening the moment the vehicle is stopped.)

If the ten foot ban is passed at the state level, it could be to the state’s discretion to pass the legislation in the vehicular context as a primary law, or the state could choose to piggyback the ban as a secondary law to another citation. If passage occurs with the ban as a primary law, additional funding could be funneled to police departments to alleviate the potential for the law to be an unfunded mandate. (When a new piece of legislation, without the resources to fund enforcement, is handed to a body to enforce, the body must prioritize its assignments. Often, unfunded mandates are placed low on the list of priorities, or ignored all together.) However - similar to the federal excise tax - the structure to enact enforcement of the ban is already largely in place with seat belt laws.

Although Texas, a primary seat belt law state, imposes a maximum fine of two hundred dollars on the first violation, Iowa only issues a citation for ten dollars.[68] Most states tend to place the seat belt citation at twenty-five dollars.[69] Recognized for its effectiveness at the local level, “a graduated penalty structure that starts with a moderate fine for the first offense and escalates in severity with each subsequent offense”[70] might also work on the state level. A state would have the authority to set the fee for a violation of the ten foot ban, and a moderate fine of eighty or ninety dollars on the first citation would not be unreasonable. A second violation might result in a higher penalty, maybe two hundred dollars. A third violation might result in the suspension of the smoker’s driver’s license or even a modest jail sentence.

Through traffic court or a magistrate’s office, an offender could request a hearing to appeal her citation. Although there are virtually no conceivable excuses for smoking in a vehicle with a minor, if the smoker is able to prove, through the production of the birth certificate of the passenger, that the passenger was at least eighteen, the charge will obviously be dropped.

An alternative approach to punishment for violations is to treat the first two offenses as opportunities to rehabilitate the offender. Similar to requiring anger management classes after certain criminal offenses, violators of the statute may be required to attend a class. The class could be paid for, in part, by the offenders, and could be implemented through hospitals, universities, or clinics, with the state overseeing the content of the curriculum. Although some variation is likely, the class should educate the offender about the inherent health risks to themselves and others because of their smoking. If at all possible, the class should include a component which would require visitation to, or volunteering on, a lung cancer unit of a hospital. Because smokers have only a twenty percent chance of quitting successfully on their first attempt,[71] such a visit may provide an incentive to change habits away from a future quite possible.

Compliance through self-execution of the ban in public

One way to consider the obstacle of enforcement is to tailor the ban to be self-executing. Aside from enforcing the vehicular component of the ten foot ban, the second way to elicit compliance is to arm the public with knowledge of the ban. Given the limitation of the ban with regard to its enforcement, the ban will derive the bulk of its strength from the widespread publicity of its existence. While a goal of the ban is not to outright encourage citizens to become vigilantes and police each other; the goal is to encourage citizens to police themselves. The best way to encourage compliance with the ban, then, is to ensure that the general public is knowledgeable about the ban, or at least aware of it. Extensive advertising of the ban is will be the key to informing the public.

Compliance through self-execution of the ban in public through advertising

The tobacco industry spends billions of dollars on advertising.[72] Although similar funding to advertise any ban will be difficult to amass, there is no reason why the focus should not be countered to directly combat the tobacco industry’s influence. A state adopting the measure should enlist the assistance of anti-tobacco coalitions and together they can “initiate large-scale educational and media campaigns to inform . . . the general public about the provisions of the law and what is required of them to comply with it.”[73] Health organizations like the American Cancer Society, American Heart Association and American Lung Association may be consulted for statistics and guidance with advertising. Advertising agencies should be awarded special recognition for ads which are found to particularly move the public.

The new ban and its effective date should be advertised on television (including children’s programming,) the radio, newspapers, and billboards. While the intent is not to terrorize children with the notion that their smoking parents are on death’s door, the shock factor, as a way to strike a chord of remembrance in an observer, should not be overlooked. Publicity of the law should include ads “that portray real people with cancer, emphysema, or heart disease,” noted University of Massachusetts researcher Lois Biener.[74] The Biener study, utilizing youth judges, found the most effective anti-tobacco ads were those that caused kids to become “frightened, sad, or disturbed by images of real people with smoking diseases.”[75] Biener notes: “[f]ederal and state health agencies, as well as public health groups, who have limited resources for advertising, should also adopt the same strategy for their anti-smoking message to be effective.”[76] As David Byrne, the European Commissioner for Health and Consumer Protection put it: “People need to be shocked out of their complacency about tobacco. I make no apology for some of the pictures we are using. The true face of smoking is disease, death and horror - not the glamour and sophistication the pushers in the tobacco industry try to portray.”[77]

Television ads might be mirrored after the widespread success of an eerie, posthumous anti-smoking airing of a Good Morning America clip by the late Yul Brynner (the Tony and Oscar award winner for his performances in “The King and I.”)[78] Radio spots might include the haunting sound of a lung cancer patient attempting to breathe on a portion of one lung, with an announcement at the end of when the law will go into effect in the state. Newspaper ads could show color pictures of comparisons: diseased lungs versus healthy lungs; normal sized lungs versus reduced size of lungs, again with the key details of the ban and information about when it will go into effect.

Details of the law should be splashed everywhere, and if the general public dissects it with a third of the interest (the collective) “they” demonstrate in celebrity breakups, the ten-foot ban will be an incredible success. Similar to training about the 911 emergency call system, kids should likewise be made aware of the law. Age-appropriate analogies demonstrating a link between smoking and familiar objects can enhance a child’s understanding of the ad content.[79] As a way to learn the law, elementary school should be encouraged to do an exercise in learning the length of ten feet. Ideally, they will know the length of ten feet as well as they know their home phone number. The focus should be less on what their parents is doing is “wrong” and more on what the child can do that is “right:” stay away from someone who is smoking.

Via widespread publicity, the public itself - not the government - will be the vehicle towards encouraging compliant behavior. Much more than it is now, smoking within ten feet of a minor will be seen as being politically incorrect. Especially in the company of other adults who are also aware of the law, parents may tend to be more compliant. The cost of compliance in public is minor, it is difficult to conceal a violation of the ban, and violators typically are not surrounded by a “deviant subculture.”[80] “In short, because of the social organization of legally restricted smoking, smokers encounter a social world that to a remarkable degree discourages evasion and defiance”[81] (emphasis in original). The threat of detection and the possibility of complaints tend to be a more effective deterrent than the punishment handed out by the state anyway.[82]

Another upshot to the proposal is the message it sends to children. Involuntary passive smoking is also dangerous because it instills in the child that smoking is an acceptable behavior,[83] and the ban would help eliminate that perception. Not only is it yet another “don’t smoke, it’s bad for you” message, but it empowers children because they are specifically recognized. It sends the message to children that they are worthy enough to be protected. And, the less children see of adults smoking, the less inclined they may be to perceive the habit as something they will naturally incorporate into their own lives.

Ultimately, the ten foot ban will hopefully produce healthier children, and resultantly healthier adults. Further, on the back end, healthier people will require less health care, and their improved health will save the government money over time. The smoker himself bears only a “small portion” of health care costs (“in the form of direct payments, medical deductibles, contributions to health insurance and tax payments that support government-funded health care.”)[84] Reducing the number of smokers will ease the burden on parties who foot the remainder of the bill, co-workers, employers and taxpayers.[85] The American Cancer Society reported the additional annual cost of medical expenditures to be $1,623 more than a nonsmoker for 1999.[86] One employer has already drawn national attention for its strict anti-smoking policy, which could involve the firing of an employee if the employee is found to have smoked.[87] Put simply, Howard Weyers, the founder of Weyco said: “I don’t want to pay for the results of smoking.”[88]

Sometimes, to enact large change, all it takes is to reach a Tipping Point, which is referred to as “the moment of critical mass, the threshold, the boiling point” which brims with the “possibility of sudden change.”[89] In Minnesota, Dave Thune, a St. Paul City Council member who also smokes and plays in a band, initiated a smoking ban in cities and countries across Minnesota, and has been referred to as “the pebble that started the landslide.”[90] Perhaps we can prime the nation to the point where the enactment of the ten foot ban would reach the Tipping Point… and drastically alter the health of a nation for the better. Mere consideration should not be too much to ask, and a ten foot ban on smoking within the presence of minors is not unreasonable.