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68 Smoking Policy: Law, Politics, and Culture

article. Figures on tobacco production, voting on anticigarette bills in state legislatures, letters to the editors, and articles about other uses of tobacco (e.g., nicotine as a natural insecticide) were excluded. After 1930, the "evils" of tobacco were discounted and almost no information was listed in the Reader's Guide.

3. I am indebted to Milton Silverman, formerly of the San Francisco Chronicle, and to David Perlman, CUITently Science Reporter for the Chronicle, for informative conversations on the history and current functioning of science reporters.

4. "In sum, any scientific estimate is likely to be based on incomplete knowledge com- bined with assumptions, each <?f' which is a source of uncertainty that limits the accuracy that should be assigned to the estimate" (National Research Council 1986, p. 44).

5. As David Perlman, science reporter for the San Francisco Chronicle put it in an interview: "If I write an article about AIDS most everyone in the gay community will read it but very few drug users will do so."

6. City of Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 7 IO (1978). 7. This chapter was completed and in press before the appearance of the widely pub-

licized report on passive smoking of the U.S. Environmental Protection Agency in December 1992 (U.S. EPA 1992). Its general conclusion, that "environmental tobacco smoke in the United States presents a serious and substantial health impact" (p. 1-1), rests chiefly on sources also reviewed for this chapter. The report appears to have already increased support for restrictions on smoking in public places.

8. This figure of absolute risks differs from that of Viscusi, who reported the risk of lung cancer death for smokers in a range of . 05-. l O. He used lung cancer rates per year and thus a much longer period of time in which outcomes of smoking were manifest. He also assumed that 85 percent of lung cancer deaths were due to smoking. He does not report the absolute rate of fling cancer deaths over the same period for nonsmokers. The research reported in the 1964 Surgeon General's report referred to a specific population over a period of approx- imately 10-15 years (Viscusi 1990). My point is not the 'true· rate but the significance of the difference between absolute and relative measurements.

4 Banning Smoking: Compliance Without

Enforcement

Robert A. Kagan and Jerome H. Skolnick

The Scene: Comer of 45th Street and Lexington Avenue The Time: Lunch Hour Dramatis Personae: Hard Hat; Business Man; Paul Rochlin, who ob- serves the players. The Hard Hat is sitting atop metal newspaper vending container. The Business Man is waiting for the light to change. He is smoking. Hard Hat, sternly, reprimandingly: Hey, this is a no-smoking comer! Business Man, very sheepishly: Sorry. [He puts out the cigarette.] Curtain.

Ron Alexander, "Metropolitan Diary" New York Times, May 26, 1991

A mistrial was declared in federal court after jurors deadlocked 7 to 5 in favor of convicting a suburban man of roughing up a flight attendant who asked him to put out his cigarette on a [September 1988] no-smoking flight. ... Smokers revolted on [the] flight because it was overbooked and designated nonsmoking at the last minute .... Attendants testified that many passengers yelled and booed in objection to the smoking ban.

San Francisco Chronicle, July 27, 1991

In recent years, nineteen American states have enacted laws restricting smoking in government buildings and health facilities, bringing the total to forty-one states plus the District of Columbia. Several state laws demand protection for nonsmokers' rights in private workplaces. 1 An estimated 450 municipalities (five times as many as in 1986) have enacted ordinances restricting smoking in restaurants, stores, and offices. Thousands of private enterprises and organizations-including a majority of large corporations-have instituted no-smoking policies covering parts and sometimes all of their facilities. By federal regulation, one can no longer smoke on Greyhound buses or on any domestic airline flights. Smokers have been banned from the seats of the Oakland Coliseum, an open-air baseball park, as well from the domed arena of the Minnesota Twins and the University of Texas outdoor football

69

70 Smoking Policy: Law, Politics, and Culture

stadium. "In a relatively short time," writes Allen M. Brandt (1990, p. 171), "public space has been subdivided; cigarette smoking has become the most rigorously defined of all public behaviors."

Do Americans automatically comply with no-smoking laws and rules? Do smokers usually respond obediently, like the businessman in our opening vignette? Or is their response more often defiance, as in our second vignette? If compliance is the typical reaction, as our research indicates, why has the legal control of cigarette smoking been relatively successful-in contrast to the troubled attempts to prohibit or regulate the distribution and use of marijuana, cocaine, heroin, handguns, and (in the 1920s) alcoholic beverages? Those are the questions this chapter attempts to answer.

Research Strategy

Is the implementation of nonsmoking rules as unproblematic as the Manhattan streetcorner vignette implies? Some readers, we suspect, will recall having observed people smoking, perhaps defiantly, in no-smoking spaces. But few norms, espe- cially those whose breach does not inflict immediate harm on others, meet with perfect compliance. And as in the case of litterbugs and subway graffiti scrawlers, a small deviant population often can create a misleading impression of widespread disregard of the law.

Ideally, therefore, one would like to know rates of noncompliance or resistance. Unlike robberies, however, violations of no-smoking rules are not regularly report- ed to enforcement officials. Nor do we have the benefit of "victimization" surveys in which a random sample of the population is asked how often they have been exposed to cigarette smoke in posted no-smoking areas. How, then, can we tell to what extent no-smoking rules have met with resistance? Lacking any easily accessi- ble body of systematic data, we have followed a variety of research strategies.

First, we started at the top of the enforcement pyramid, asking police and other officials in three California municipalities how often disputes over noncompliance with no-smoking rules have been brought to their attention or resulted in formal legal action against violators.

Second, we interviewed managers in organizations where laws required them to ban smoking entirely or partly, or which voluntarily imposed restrictions on smok- ing. We selected settings where enforcement might be expected to be problematic. Thus, we interviewed principals of three urban high schools; security personnel at the Oakland Coliseum and at a predominantly working-class shopping mall; manag- ing editors of newspapers (about banning smoking from the newsroom); and manag- ers of McDonald's and Sizzler restaurants in a variety of midsize cities.

Third, we searched newspaper files and academic references for stories and studies concerning enforcement of or resistance to smoking bans.

All of this falls short of systematic observation of the behavior of smokers (and nonsmokers) in workplaces, train stations, shopping malls, and restaurants. School principals and restaurant managers may be inclined to minimize noncompliance. A shopping mall security chief said he was not conscious of any problems, but a police

Compliance without Enforcement 71

official in that city said "Some days I walk the mall and everybody's smoking." Nevertheless our interviews do indicate how often smoking in no smoking zones results in conflict that evokes official attention.

What We Learned A Tale of Three Oties

Berkeley, Richmond, and Oakland lie adjacent to each other on the east side of San Francisco Bay. Each of the three cities has substantial minority populations and pockets of poverty and wealth. Oakland, with a population of about 350,000, is three and four times as big as Berkeley and Richmond, respectively. Berkeley enacted one of the first smoking ordinances in the nation, in 1977. Richmond passed its ordinance in 1985; Oakland followed suit in 1986.

Based on model laws disseminated by antismoking activist organizations, all three ordinances prohibit or restrict smoking in nearly all public places. 2 Restau- rants must designate a portion of their seats as nonsmoking and post signs to that effect. 3 Employers are required to establish and make known their smoking policies. Employees have the right to designate their immediate work areas as nonsmoking, and smoking is banned in hallways, elevators, meeting rooms, and restrooms. Employee cafeterias and lounges must have nonsmoking sections. 4 In disputes about workplace smoking policy, all three ordinances state that "the rights of the nonsmoker shall be given precedence."

In Berkeley, the responsible city health department official estimates receiving only ten complaints or so a year. He responds either by telephone or by dispatching an inspector. When interviewed in 1990, he could not recall a single instance in which an additional compliance letter or investigation was deemed necessary. In the past ten years, no formal citations have been issued, and no cases (against noncom- plying businesses or recalcitrant patrons) have been referred for prosecution. Nei- ther the community relations office of the Berkeley Police Department nor the district attorney currently in charge of misdemeanor prosecutions could recall any arrest or prosecution for a smoking-connected incident, such as a physical or verbal assault arising out of a dispute with a smoker.

The same has been tme in Richmond. Complaints5 usually involve workplaces and invariably are resolved through negotiation. Municipal officials, chamber of commerce representatives, and nonsmokers' advocates in Berkeley and Richmond agree in estimating that compliance with the ordinances is very high. Restaurant compliance, they say, is close to 100 percent, workplace compliance around 75-85 percent.

In Oakland, the single enforcement official in the city manager's office told us that although he occasionally spot-checks restaurants and stores, enforcement activ- ities usually arise from complaints. In 1990, the city received fifty-seven com- plaints; the year before, seventy-four. 6 When complaints arrive, the official sends a letter; if the business fails to answer, a second letter is sent. The official says he has had to send out a second letter on only two occasions, and the city has never cited anyone for a violation.

72 Smoking Policy: Law, Politics, and Culture

Conflicts ansmg from smoking-control ordinances are usually handled in a conciliatory manner. The Oakland enforcement official told us he has some prob- lems with certain restaurants in the Asian community where nearly all the patrons are smokers. But to cite the owner, he thinks, would be wrong because "We're not trying to put this guy out of business." The Oakland official also thought that violations occurred frequently in the indoor Oakland Arena, not so much during basketball games but during the rock concerts often held there, when "just about everything is smoked." As in the case of the Asian restaurants, when he saw a large gap between the nonsmoking law and subcultural patterns, he was not inclined to take legal action.

The Richmond official recalled only three cases in which a letter from the city did not quickly result in a promise to comply. After a complaint about smoking in a municipally owned nursing home, the official held three meetings with residents over the course of a year in order to develop a policy that both smokers and nonsmokers could abide. 7 When agreement proved elusive, the city banned smok- ing in the facility entirely. Management at a large enclosed shopping mall, reluctant to alienate customers, refused to instruct its security guards to enforce the ordinance against noncomplying shoppers. The assistant city manager said, "I did not want to come down in a heavy-handed manner" because "the publicity that could result from that could hurt both the mall and the city." He approached the local chamber of commerce to mediate; after three years an agreement was reached. Today, the mall's security chief says that he has had no incidents of resistance by smokers, but acknowledged that enforcing no-smoking rules is not high on his agenda of wor- ries. 8

Studies of other municipalities report similar results. In March 1987, a Cam- bridge, Massachusetts, ordinance banoed smoking in a variety of public places and required employers to guarantee smoke-free work areas. Researchers observed smoking in stores and surveyed businesses and residents before and after the ordi- nance went into effect. Enforcement in Cambridge was gentle: no one had been cited for violations or fined. After an initial rush of telephone calls, the city health department official responsible for implementation handled a declining number of complaints, averaging three or four a week for the next two months. The researchers observed fewer incidents of smoking in stores. Thirty-two percent of survey respon- dents said they had witnessed a violation, but none had filed a complaint; the most common response to observed violations was to do nothing. But overall, the re- searchers concluded that "compliance was high, especially given the low-key ap- proach to enforcement" (Rigotti et al. 1987). 9 The source of compliance was public support. Knowledge of the ordinance climbed from 57 percent to 80 percent in the first three months after enactment, and 78 percent (90 percent of nonsmokers, 41 percent of smokers) approved of the law.

Similar results emerged from a 1986 survey of shops and restaurants in Win- nipeg, Manitoba, three years after a "clear indoor air" law banned smoking in all retail stores and required restaurants to provide nonsmoking sections. Shopkeepers seemed either more ignorant of the rules or more hesitant to enforce the law than restaurant personnel, but based on this survey and a review of studies in other Canadian cities, the authors concluded that antismoking bylaws are "self-enforcing"

Compliance without E,!forcement 73

when (1) signs are conspicuously posted and (2) officials engage in a periodic program of reminders (Stanwick et al. 1988, pp. 229, 230).

McDonalds

McDonald's restaurants cater to a cross-section of the American population but draw heavily on the working class and teenagers-population groups with higher- than-average smoking rates. McDonald's corporate headquarters told us that all franchise owners are instructed to have smoking and nonsmoking sections, but have discretion to determine their relative size. Picking at random from a list of American cities between 100,000 and 500,000 in population, we called the first-listed McDonald's in the telephone directory, and spoke to the manager on duty. We also added several McDonald's restaurants located in cities which by municipal ordi- nance had banned all restaurant smoking.

As indicated in Appendix I, the reports were virtually uniform. In Savannah, Georgia, the one deviant case, management had not obtained signs and officially designated an area as nonsmoking. In all other cities, management had posted such signs. Relatively few customers, managers said, violated the posted rules. When detected violators were asked to comply, they did so readily. This pattern also held in most cities (Lodi, Paradise, and San Luis Obispo, California; Aspen, Colorado) where ordinances mandated no smoking at all in restaurants, and hence the custom- ers could not simply move to a "smoking area." The one exception we encountered was in Oroville, California, where a number of patrons reacted very angrily when told they could not smoke at all.

Sizzler

Sizzlers are franchised low-price steak and salad bar restaurants. We wondered if they presented a "harder case" than McDonald's, for Sizzler diners probably linger more, and hence smokers may resent the restrictions more. However, our interviews with Sizzler managers, as Appendix 2 indicates, offered no indication of resistance by smokers.

Newspapers

It might be more difficult to institutionalize nonsmokers' rights in workplaces than in restaurants. Smokers typically spend more time at work and hence may find it more difficult to abstain. They may resent enforced separation (when they do smoke) from nonsmoking fellow workers. Assuming that high rates of smoking traditionally prevailed among deadline-combatting journalists and pressmen, we called newspapers in the same medium-sized cities that we used for interviewing fast-food restaurant managers. We also interviewed in Sacramento, Lodi, Oroville, and San Luis Obispo, cities where ordinances forbid smoking entirely in all work- places, or give strong precedence to nonsmokers' preferences. As indicated by Appendix 3, however, implementation of nonsmoking rules in the newsroom does not seem to have been difficult. One reason, perhaps, is that, as one managing editor

74 Smoking Policy: Law, Politics, and Culture

told us, "The image of hard-drinking, hard-smoking newspaper people is a thing of the past. Now it's yuppies who like to write ... not yuppie, really, just healthy."

Out of a newsroom staff of l00-125 at a Baton Rouge, Louisiana paper, we were told, there were only ten to fifteen smokers, and nobody has tried "to stretch the rules" against smoking in the newsroom, "even at night. It's working fine." Every paper we called had similar restrictions, and a few banned smoking "in the whole building," but in each case high levels of compliance and virtually no resis- tance was reported.

Three Urban High Schools in California

Under the Education Code of the State of California, smoking or possession of cigarettes at school are grounds for suspension. We speculated, however, that imple- mentation of "no-smoking" rules in high schools would present problems. Teenage smoking is thought to remain significant, and teenagers often try to evade official rules. Given norms against "snitching," they are also less likely to complain to authorities about violators than are restaurant patrons or coworkers. Since a full- scale study of high schools was beyond our research means, we settled for inter- viewing principals or assistant principals in three urban high schools, two in Oak- land and one in Berkeley.

Oakland High School's student body is drawn primarily from working and lower classes and is 70 percent bilingual. Assistant Principal Wayne Young told us that compared with tardiness, truancy, and interpersonal conflict, smoking has become almost a "nonissue." Because of routine patrolling of the school campus for truants and class cutters, smokers are at risk of being seen. That is not to say violations don't occur. On the day we interviewed him, Mr. Young acknowledged finding a group of Asian students smoking behind the school, and he reported a similar encounter some time earlier. But formal sanctions, such as suspension, he said, would not eliminate smoking and would harm students more than smoking. His style? The last time he saw students smoking, he reported, he made sure they took notice of him and said, "I think I heard the class bell ring. Why don't you go to your next class?" 10

Castlemont High School serves Oakland's poorest community. Principal Reuben Trinidad reported that his two biggest discipline problems are tardiness and student conflict. Smoking, comparatively, "is not a problem." Students model themselves, he said, after body-conscious athletes and entertainers who don't smoke. He re- called seeing a student smoking a cigarette only once in the academic year, and simply issued a reprimand. Even if noncompliance at Castlemont is higher than Principal Trinidad suggested, his statement that smoking violations don't constitute a significant problem seems credible, as is the paucity of enforcement activity. 11

Berkeley High School has twenty-five hundred students, spanning a wide range of socioeconomic and ethnic/racial categories. Ed Randolf, dean of students for eleventh and twelfth grades, told us student cigarette use was not a problem. Smoking is simply not a "cool" thing to do anymore, he said. Students chastise others they see smoking. He himself found only two students smoking in the school yard this year; he told them to put out the cigarettes and warned them it would be

Compliance without Enforcement 75

really stupid of them to mar their school records with a smoking citation. Dean Randolf says he has never caught a repeat offender whom he had to discipline. 12

Dean Randolf, it seems, is not particularly observant-or more likely, doesn't want to be. Our research assistant, walking through the courtyard at lunchtime, counted over twenty cigarette butts near the steps leading to the school theater and observed two students on a somewhat secluded outdoor staircase smoking rather nonchalantly; two teachers walked by and didn't seem to notice. A guidance coun- selor, talking to our research assistant, pointed out two gathering spots on campus where students smoke. When this observation was reported to Dean Randolf, he acknowledged that he notices smoking, but doesn't see it as so major a problem as to wan-ant raiding the area to stop the smoking.

The inference we draw from these accounts is that some high school students, now as ever. evade no-smoking rules. The incidence of smoking among students, however, has declined so significantly that administrators regard it as a low-level problem, not meriting strong deterrent measures.

Oakland Coliseum

The Oakland Athletics baseball team prohibited smoking in seats in its open-air ballpark, the Coliseum, beginning in the spring of 1991. To smoke, patrons in reserved seating areas are directed to an area partway down the stadium ramps, where they may watch the game on a television screen. In the bleachers, one can smoke standing on a walkway behind the seats, in full, but exceedingly distant, view of the field.

Despite the inconvenience and the novelty of banning smoking in an outdoor space, compliance was high and relatively conflict free. Security guards patrolling the bleachers told us they had to enforce the rule, on average, less than once each game, and fans caught smoking typically comply immediately when guards ask them to move; only a few ask questions or grumble. According to Athletics vice president Andy Dolich, as of August 5, 1991, only three people had been ejected for violating the smoking policy, out of an attendance of more than 1,800,000. Based on his mail, which runs about 70 percent in favor of the no-smoking policy, Dolich estimates that about twenty season ticket holders have cancelled, but just as many have signed up because of the policy (Dickey 1991 ). During a well-attended mid- summer night game, one could observe hundreds of smokers meekly leaving their seats in the bleachers to smoke a cigarette in the designated area.

Other Settings

Published studies suggest a lack of resistance to smoking bans in a variety of other settings. Some experimental studies in the late 1970s and early 1980s found that the posting of no-smoking signs, if accompanied by polite reminders from nonsmokers, resulted in high compliance in supermarkets and elevators (Jason et al. 1979-80), a university cafeteria ( Jason and Liotta 1982), and a barber shop ( Jason and Clay 1978), although no-smoking signs by themselves, if not supported by reminders

76 Smoking Policy: Law, Politics, and Culture

from nonsmokers, had only minimal effects on smoking levels (see also Dawley et al. 1980).

A smoking ban was found to be reasonably effective in an American hospital (Dawley and Burton 1985; Dawley and Baldwin 1983). At a large Australian tele- communications company that banned smoking, after eighteen months only IO percent of employees surveyed reported regular violations, although 31 percent noted that a de facto smoking room (contrary to company policy) had been estab- lished in the building (Hocking et al. 1991 ). Other studies have measured employee attitudes, and with one exception (Gottlieb et al. 1990) found that as time went on, smokers and nonsmokers alike expressed increasing approval of the nonsmoking policy (Rosenstock et al. 1986; Millar 1988; Budzinski and Frohlich 1990). In no case did a smoker rebellion develop. 13

In 1991, the Bureau of National Affairs (BNA) sent questionnaires on smoking policy to 2715 American employers; 833 personnel managers, 76 percent from organizations with fewer than one thousand employees, responded (BNA 1991). Eighty-five percent of responding firms had prohibited smoking on some or all of their premises, up from 36 percent in a 1986 survey; 34 percent had total bans, compared with 2 percent of 1986 respondents. 14 The survey found:

Seven out of 10 organizations with smoking policies "rarely'' (50 percent) or "never" (20 percent) experience violations of their smoking restrictions. Twenty percent ... reported "occasional" violations, while only 4 percent have observed "frequent" transgressions.

When complaints about violations are received, employers more often reported that they had stepped up efforts "to communicate their smoking policies" than that they had strengthened enforcement or disciplinary provisions. Only 2 percent said they had incurred higher enforcement or maintenance costs as a result of their smoking policy.

Explaining Compliance

Why does implementation of antismoking regulations seem to be relatively smooth, as compared with attempts to regulate narcotics use, firearms, drunk driving, and some forms of pollution? In view of the prevalence and addictive nature of cigarette smoking, why has there been so little open defiance of nonsmoking rules, at least in the United States?

Social scientists sometimes have argued that law cannot change folkways (Sum- ner 1959), but that surely is not always the case. As Zimring and Hawkins (1971) point out, much depends on two sets of factors: ( 1) the social organization of enforcement and (2) the culture of enforcement, that is, the values attached to a regulated "folkway" by the dominant culture and affected subcultures.

The Social Organization of Smoking

To understand why no-smoking rules seem to have elicited relatively little resis- tance, consider the social restrictions, risks, and incentives that are faced by "regu-

Compliance without E11forceme11t 77

lated" smokers. Compared with laws concerning cocaine use, to take an extreme case, no-smoking rules (if obeyed) impose relatively minor "compliance costs" on addicted users. Second, violations often are hard to conceal from nonsmokers. including potential complaints. Third, violators usually are not surrounded by a strongly supportive "deviant subculture" that will help resist potential enforcers. 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.

Zoning versus Prohibition. In contrast with cocaine or marijuana. the produc- tion and sale of cigarettes, although regulated and taxed, is completely legal. With some restrictions, cigarette advertising, intended to heighten demand. is also per- missible in the United States. Smoking regulations are predominantly "zoning" rules, applicable to public, not private spaces. Smokers in restaurants and work- places retain the option of repairing to alternative sites if they wish to smoke. Smoking must be postponed, not abandoned. The costs of compliance to smokers, in sum, are relatively low.

Pa11ly because smoking is lawful, partly because it has heen such a normal aspect of social life, and partly because it is so common to cross the line. the "social distance" between smokers and nonsmokers is insignificant. Rule enforcers are often former smokers, or relatives of smokers. Not surprisingly. thererorc. our research indicates that violators are treated as errant family members. not as crimi- nals. Like the unmannerly, they are reproved, even shunned, but scarcely penalized. The gentleness of the social condemnation they encounter probably contrib11tcs to the generally gracious way in which they respond. For example, after the Dav1011 (Ohio) Daily established a strict no-smoking policy (except for closed editors' offices) in 1988, the newspaper's human resources director told us that she left enforcement to supervisors in each office. 'Tm not going to call out the smoking police," she said. "Smokers are aware of how others feel. and they are basically courteous-so they follow the rules."

Exceptions underscore the general observation. Smokers seem inclined to com- plain or resist only when compliance seems especially difficult or painful. as it may to addicted smokers on six-hour transcontinental flights. 15 In the first months fol- lowing the federal government's smoking ban on all domestic airline flights. police at Chicago's O'Hare Airport arrested five people for smoking aboard plane~. When smokers resorted to furious puffing before boarding, airline lounges became clouded with smoke and many airlines banned smoking in the lounges. "I told one guy to stop, and he put it out on the wall," the director of the Minneapolis airport told a reporter (Dahl 1990). Several legislatures enacted smokers' rights legislation after employers began to refuse to hire employees who smoke even off the job. Off- the-job smoking rules, besides transgressing the unwritten norm that an employee's private behavior is no business of the boss, raise compliance costs for smokers to extraordinary levels, since they arc faced with the choice of giving up either smok- ing or employment.16

Enforceability. In contrast to violations of laws against driving and drinking. narcotics use, and tax evasion, infractions of no-smoking rules in public places arc relatively visible, not only to officials responsible for enforcing the rules. but to an

78 Smoking Policy: Law, Politics, and Culture

almost omnipresent army of self-interested, highly motivated private enforcement agents-nonsmokers who resist exposure to tobacco smoke. Research teaches us that the likelihood of detection and complaint, even more than the severity of threatened punishment, is the most imp011ant term in the deterrence equation (Zimring and Hawkins 1973). And violations of no-smoking rules in public places, workplaces, and commercial establishments are particularly vulnerable to detection and complaint.

From that perspective, consider the primary examples of noncompliance we learned about. One was a shopping mall where transient shoppers are exposed to smokers only briefly, and hence have less incentive to complain than when they are exposed to the smoke of coworkers or diners. The other relatively high noncom- pliance sites (perhaps) were high schools, where the potential complainants, non- smoking students, are bound by schoolyard norms not to "snitch" on fellow stu- dents. These are also places in which unwanted exposure to smoke is fleeting.

The Absence of a Socially Supportive Deviant Subculture. People will defy dominant norms or laws, despite considerable risks of punishment, when they enjoy the social support of a "deviant subculture" that continues to endorse the validity of condemned behavior. But unlike marijuana-smoking musicians (Becker 1963), po- lice (Skolnick 1975), and tax-evading housepainters (Kagan 1989), cigarette smok- ers in the United States generally lack such consortiums of support. Smokers and nonsmokers do not belong to distinctive groups or occupations. Smokers, we can assume, prefer to be socially accepted. And despite efforts of tobacco companies to foster resistant smokers' rights organizations, smokers rarely, if ever, see them- selves as part of a major cause or self-defining social movement, such as those on either side of the abortion issue.

We could find only one instance of resistance by smokers as a group. It hap- pened when a cluster of smokers with airline tickets were suddenly told that they had been entirely "zoned out" of a flight. But smokers rarely find themselves in such solitary assemblies. Soon after the federal government banned cigarette smok- ing entirely on all domestic airline flights, a lone woman insisted on lighting up while her plane was still boarding in Pittsburgh. According to the police, when uniformed officers arrived on board:

She pleaded with her fellow passengers. "Shouldn't I be allowed to smoke?" she asked. "No!" the passengers shot back in unison, miffed at being held up twenty minutes by the woman's tantrum. "When we led her away," recalls Lt. Norbert Kowalski of the airport police ... "everybody was cheering." (Dahl 1990)

A majority of smokers don't even approve of their own smoking. Surveys show that a majority of adult smokers say they want to quit. and have tried and failed several times. Some say they are grateful for workplace restrictions, or for restric- tions on airlines, because the added inconvenience might help them try once again to quit.

Culture

Not many years ago, the imposition of restrictions on smoking probably would have resulted in widespread evasion, and enforcement efforts would have encountered

Compliance without Enforcement 79

considerable defiance. Nonsmokers would have been reluctant to complain to or about smokers who violated the rules. That is still true in parts of Europe and in the Third World. In Milan, Italy, for example, porters in the arrival section of Linate Airport smoked cigarettes in the summer of 1991 in violation of the no-smoking signs. 17 A couple who politely asked nearby diners in a London restaurant "if they would mind not smoking" was bluntly told "to mind their own business" (Schmidt 1991 ). A Dutch journalist and former managing editor we spoke with recently expressed amazement at the ease with which smoking bans have been imposed in American newsrooms. "We could never get away with it," he said. American compliance with nonsmoking rules thus cannot be explained solely by such factors as relative ease of detection and low cost of compliance.

Throughout the United States, in universities, in other workplaces, in restau- rants, there has been a dramatic change in the social acceptability of tobacco smoking. Smokers feel condemned, isolated, disenfranchised, alienated. 18 There appears to have been, in the United States, nothing short of a transformation of the rules governing the civility of smoking, which, we suggest, is what ultimately quells resistance by smokers. Why that should have occurred primarily in the United States is not entirely clear, but it seems related to several aspects of American civic culture. First, the emerging civility norm-"don't smoke where others may object"-dcveloped as cigarette smoking declined among publicly visible American elites. Second, the norm was given a huge boost by the 1986 U.S. Surgeon Gener- al's report concerning the hazards of exposure to "secondary smoke." More funda- mentally, however, these messages fell on receptive ears; for a variety of reasons, American popular culture has come to emphasize concern about personal health, and especially about exposure to carcinogens. Finally, we suggest that as long as communities enact no-smoking ordinances only when and where support for the informal no-smoking norm has been growing, the embodiment of the norm in law strengthens the position of nonsmokers, further legitimates the norm, and helps ensure that defiance will be minimal.

Changing Norms of Civility. Most human beings seek to conform rather than to rebel, to be accepted in a group rather than to be ostracized. Even the most symbol- ically rebellious of us, the adolescent, is defiant only with respect to the older generation. Among their peers, adolescents are hugely conformist, among the most compliant beings in the entire spectrum of human associations. Thus, most smokers initiate the activity during adolescence. Those who begin to smoke cigarettes usu- ally do not experience, as do initiates of other drugs, feelings of pleasure. On the contrary, they feel sick or at least discomfited. That they continue to inhale smoke is a measure of the power of peer group understandings as to what renders one an "adult" woman or man. Once smoking is regularized, smoking becomes pleasur- able, even addicting. Addicted smokers who run out of cigarettes are palpably uneasy, and will say that they are "dying'' for a cigarette. When they get one, and smoke it, they smile. But initiation is unpleasant, and has to be understood as a profoundly social phenomenon rather than as a physiologically or psychologically generated experience.

Peer influence may be less involved in the cessation of smoking. Stopping, it could be argued, is simply a rational response, since smoking has been shown to

,

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80 Smoking Policy: Law, Politics, and Culture

impose high risks on the smoker and under some circumstances on others. There are no excuses for continuing to smoke, save one: "I am an addict." And that excuse has become increasingly unacceptable in the United States (but not in Europe, Africa, or Asia), for here 75 percent of adults no longer smoke, twice the percentage of thirty years ago. Nevertheless, fifty million Americans still smoke, some defiantly, some because they enjoy smoking, some because they are strongly addicted. Most would prefer to stop, their families and friends urge them to, but they have become psychologically and physiologically dependent.

Hence the question remains: why is there so much compliance with nonsmoking rules among those who continue to smoke and find it difficult to do otherwise? The answer, we suggest, cannot be grounded primarily in a theory of deterrence through fear of punishment. In many nonsmoking areas, one could sneak a cigarette and not be caught. Or, if caught, the offender is more likely to be admonished than brought to trial.

The answer, we believe, is predicated on the social and psychological power of what Norbert Elias, in The Hist01y of Manners, calls civility norms (Elias 1978, p. 159). In a Hobbesian world, human beings strain toward conflict. Each individual seeks to gratify his or her desires and impulses, regardless of their effect on others. Life is nasty, brutal, and by implication, inconsiderate. In Norbert Elias' world of manners, there is a strong need to achieve acceptance in face-to-face interaction, primarily by our friends, lovers, and spouses-but also by strangers, whom we wish to have view us as significant persons. People comply with norms of propriety. Thus, lawyers do not wear their legendary three-piece suits to baseball games or wear a baseball cap and shorts in the courtroom.

Elias does not present a well-developed theory of how behaviors become de- fined as socially unacceptable irrespective of an enforcement apparatus. What he does do brilliantly, however, is to show the power of civility norms, and how conceptions of "civilized" behavior have shifted through time without apparent reason or logic. In medieval society, for example, people ate with their hands and also blew their noses into their hands. Doing both with the same hand, however, came to be considered to be impolite. It was advised, rather, to eat with the right hand, and to reserve one's nose blowing for the left. But this restriction applied only at the table. "The distasteful feeling frequently aroused today by the mere thought of soiling the fingers in this way was entirely absent" (Elias 1978, p. 148). Similarly, spitting, Elias maintains, was quite common as late as the eighteenth century. 19

If smoking in the presence of objecting nonsmokers-like spitting at a dinner party-is emerging, as we maintain, as a violation of a civility norm, it is relevant to consider how and why civility norms change. Social stratification and the search for upward mobility always have had a catalytic effect on manners. "Courtesy" derives its name from the court and court life. "The courts of great lords," Elias wrote, "are a theater where everyone wants to make his fortune. This can only be done by winning the favor of the prince and the most important people of the court." Courtin, writing in 1672, tells his readers in his Nouveau traite de civilite that it is no longer permissible, before people of rank, to spit on the ground and cover the sputum with one's foot (Elias 1978, p. 154). 20 As wealth increased in the eighteenth century and the bourgeoisie sought inclusion in court society, pressures to conform to the manners of the nobility spread through the ranks of the growing middle class.

Compliance without Enj<>rcemellt 81

Sometimes royal authority could "upgrade" social practices in a relatively short time. In seventeenth-century France, according to the historian W. H. Lewis (I 957, p. 174), visitors in the Louvre, the royal palace, would relieve themselves "not only in the courtyards, but on the balconies, and staircases, and behind doors," despite repeated complaints about the consequences. But when the court moved to Ver- sailles in the 1680s, visitors discovered "that the King there insisted on the same degree of decency and cleanliness which was to be found in a private house." Compliance at Versailles was high because failure to abide by the elaborate code of etiquette was sure to lead to gossip, rumors of royal disfavor, and a lower credit

rating. 21 Highly visible elites likewise have contributed to the rapid social redefinition of

cigarette smoking. Only a generation ago, Franklin Delano Roosevelt's jauntily tilted cigarette holder provided an indelible public symbol of feisty political leader- ship. Humphrey Bogart's hard-bitten heroes, blowing cigarette smoke into the faces of threatening villains, symbolized masculine courage and decency. Edward R. Murrow, thoughtfully puffing his cigarettes on television, epitomized journalistic intelligence and integrity. A few decades later, American talk show hosts, movie stars, and even outwardly antiestablishment pop singers are never seen smoking cigarettes. The Clinton White House has banned smoking entirely. It seems clear that a rapid decline of smoking among publicly visible elites has painted smoking in negative colors and nonsmoking in affirmative ones.

Health Risks and Civility Norms. Why has smoking declined among American elites? One obvious factor would seem to be the dissemination of research docu- menting the link between cigarette smoking and high risks of death from lung cancer and heart disease. As in the case of defecation in public places and sharing of utensils, shifts in manners often seem related to concerns about the adverse health effects of common social practices. Elias observes, however, that while it became impolite to spit by the late eighteenth century, the dangers to public health of spitting were not known until the late nineteenth century. "It is well to establish once and for all," Elias maintains (1978, p. 158), "that something which we know to be harmful to health by no means necessarily arouses feelings of distaste and shame. And conversely, something that arouses these feelings need not be at all detrimental

to health." Similarly, discussing cross-cultural differences in the practices that are consid-

ered polluting, Douglas and Wildavsky say "ideas about pollution are not suffi- ciently explained by the physical dangers." While recognizing that some perceived dangers, as in the links between lung cancer and smoking, can be genuine, they add that the connections between "a certain selection of troubles" and a "particular set of moral faults" are always socially constructed and are not necessarily rational (Doug-

las and Wildavsky 1982, p. 38). Thus, even as American workplace norms are changing to give nonsmokers'

preferences clear priority, the American Smokers' Association News (a tobacco-

industry newsletter) reported in 1990:

In Cologne [Gennany], when a department store clerk complained about having to share a small office with a heavy smoker, she was asked to sign a paper declaring herself willing to live with existing conditions_ When she refused she was sacked.

◄

82 Smoking Policy: law, Politics, and Culture

Some German courts, the publication added, have ruled that mandatory no-smoking sections in restaurants infringe on smokers' rights to sit where they choose. And Lufthansa dropped plans to ban smoking on domestic flights because "We feared trouble on board." In Japan, where information on the carcinogenic effects of smoking is widely available, smoking rates among women rose in the 1970s and 1980s. There are few nonjumeur sections in expensive restaurants in France. When the management of a Hewlitt-Packard branch in France tried to impose smoking restrictions, Gooding reports (1992, p. 54), "staff members threatened to barricade the company restaurant and keep fat people out, on the grounds that more food would be bad for their health." Cross-cultural evidence thus suggests that the dis- semination of epidemiological knowledge alone has not yet produced changes in civility norms as dramatic as those that have emerged in the United States.

Similarly, although cigarette smoking has been proven to create elevated risks of cancer and heart disease for nonsmoking relatives who are pervasively exposed to family members' tobacco smoke, the published scientific studies provide no com- pelling evidence of comparable danger to fellow diners intermittently exposed in restaurants, to fellow workers in reasonably well-ventilated buildings, or to fellow patrons at baseball games. The emerging hegemony in the United States of the civility norm-"don't smoke where nonsmokers object"-cannot be explained en- tirely by demonstrated danger.

The Risks of Secondary Smoke. It remains true, however, that the authority of science has been enormously important in stimulating the cultural redefinition of smoking in the United States. Few scientific reports have received as much publicity and have been accorded as much legitimacy as the U.S. Surgeon General's report in January 1964, asserting that smoking was unquestionably very harmful to human health. Public health elites seized upon it to mount a steady propaganda campaign against smoking. By 1965, Congress had mandated warning labels on cigarette packages, and in 1970 it banned broadcast advertising for tobacco products. By the time laws and corporate policies designed to protect nonsmokers were implemented, in the mid-to-late l 980s, nonsmokers had become a majotity in many settings, and the foundations of an antismoking civility norm had already been laid.

Even in 1980, however, those who continued to smoke often felt free to do so in the presence of nonsmokers. Restaurants, bars, and hotel rooms routinely provided ashtrays. Gaming casinos in Nevada provided free cigarettes to bettors. Non- smokers' "rights" enjoyed little official recognition. If cigarette smoking was dis- agreeable, its unpleasantness was supposed to be accepted amiably by the non- smoker. Nonsmokers often spoke up, but they had to be somewhat bold, and might be regarded as contentious whiners.

Nonsmokers, year by year a larger majority, were not happy with a norm requiring them to defer to smokers' preferences. In 1982, 82 percent of nonsmokers polled by Gallup said "Yes" to the question, "Should smokers refrain from smoking in the presence of nonsmokers?" Asked again in 1985, 85 percent answered affir- matively. More significantly, a majority of smokers agreed-55 percent in 1983 and 62 percent in 1985. And most adults surveyed also supported workplace restric- tions. In 1983, Gallup found that 79 percent of adults thought companies should

Compliance without Eriforcement 83

restrict smoking at work, assigning it to certain areas; 76 percent of current smokers agreed, as did 80 percent of former smokers (Rigotti 1989, p. 20).

The release of the Surgeon General's 1986 report, with its data on "involuntary" smoking, gave nonsmokers' rights activists the ammunition to turn their preferences into a civility norm and the civility norm into law. The establishment of the detri- mental health consequences of secondary smoke, Allen Brandt (1990) points out, made it difficult for smokers to take refuge in a libertarian ethic, claiming that cigarette smoking affected only themselves. In 1985 only ninety municipalities had adopted nonsmokers' rights laws; by 1988, 320 local communities had adopted laws restricting smoking, and smoking was banned on all domestic airline flights and interstate buses by 1990.

American Health Values and Civility. Yet not every municipality or employer adopted such a policy; far from it. And more significantly, the same epidemiological information has not led to similar nonsmokers' rights rules in Japan (where some of the most important research was done) or in Germany or in Great Britain--at least not nearly to the same extent as in the United States. In countries that have enacted restrictions on smoking in public places, such as France and the Netherlands, compliance appears to be much lower than in the United States. It would seem, therefore, that there is an intervening variable between medical finding and social response, one that is strongly present in substantial segments of American life, weaker in many other societies. The mediating factor in the United States, we suggest, is a cultural disposition, strongest in the educated classes but with wide support throughout the middle and working classes, to decry the ingestion or inhala- tion of chemical substances that are thought to be causes of disease, especially if carcinogenic, and especially when people are involuntarily exposed to those sub- stances.

The roots of this particular disposition are not entirely clear but several features of American culture seem to tie together here. Americans have long had a rural ascetic Protestant tradition, which was once ascendant in American society, and was validated by the Eighteenth Amendment prohibiting the sale of alcoholic bever- ages. This tradition has always eschewed smoking, as well as alcohol. But America also has an urban immigrant tradition, which in the past was more accepting of drinking and smoking. Yet many observers have also noted that Americans-the children of immigrants, less beaten down by cycles of war and despotism---are on average less fatalistic, more optimistic than "Old World" peoples. Hence they may be more inclined to think it possible to ban disease from their world if they are sufficiently vigilant against chemical "risk factors." There is also a populist strain in American culture, which leads Americans to mistrust "big business" and its inten- tions. Finally, America has an individualist tradition which tends to mistrust govern- ment and its capacity and willingness to protect citizens from chemical risks (Vogel 1986).

Whatever the background reasons, fears of toxic chemicals were enough to produce successful demands for abandonment of Times Beach, Missouri, and neighborhoods near Love Canal in Niagara Falls, New York, although subsequent studies indicated the dangers posed were exaggerated (Irvine 1991; Verhovek 1990).

84 Smoking Policy: Law, Politics, and Culture

Countless schools were closed to remove asbestos ceiling tiles, even though the cleanup effort itself seems to have caused far more risk (Stevens 1990). 22 Multina- tional corporations that successfully market packaged foods in the United States as low-in-cholesterol find they have to change their pitch entirely to succeed in the Common Market.

In short, it appears that American popular culture incorporates special receptors that could amplify the Surgeon General's message about the dangers of secondary smoke, transforming it not only into law but also into a nonsmokers' rights norm that even smokers could interpret as being legitimate. It seemed to matter little that the Surgeon General's report did not indicate exactly how much exposure to second- ary smoke would increase the risk of disease. American society's traditions and health values turned "carcinogenic"-a taboo word-into a trump card with which a nonsmoker could parry the smoker's claim that "a little smoke once in a while won't hurt you." Indeed, our interviews indicate that most smokers have not de- tected the scientific vacuum concerning the threshold level at which secondary harm poses a significant risk; many seem to accept uncritically the idea that their smoke invariably poses an unreasonable risk of harm on others (Viscusi 1990).

More important, our research suggests that certified harm does not mark the bright line where civility begins. Rather, smokers seem to accept that if nonsmokers find smoke annoying or unpleasant, and possibly harmful, that alone is sufficient justification for mandating nonsmoking areas. Thus, a spokesman for the Oakland Athletics baseball team, explaining the team's decision to ban smoking in stadium seats, told us "it was more of a social decision than a medical one. We did not consult a panel of seventeen experts about the dangers of secondhand smoke." He continued, "Our goal was to be the most affordable, safe, clean family attraction in Northern California."

From the perspective of the development of civility norms, the most important word in that statement is "clean." Once smoking is labelled "dirty," as well as unpleasant, to nonsmokers, smokers are obliged to take their dirty habit somewhere else. This seems especially true among the affluent, who doubtless have a strong affinity to health values. The smoker is now obligated, under the developing norms of politeness, to ask the permission of the nonsmoker before lighting up, and is expected to extinguish the cigarette if asked. Dinner party hosts and hostesses feel entitled to refuse permission to smoke, even to guests who ask politely if they may.

The deference of the smoker to the rights of the nonsmoker, however, seems to prevail in every social class. The McDonald's in Savannah, Georgia, for example, is one of the few that in June 1991 had not designated a nonsmoking section. Nev- ertheless, when people smoke in the lines, waiting for service, they may be asked by other customers to abstain. "The smoking customers hold the cigarette off to the side, or put it out," reported Annette, the manager. "Most people are polite," she said. Similarly, the manager of a McDonald's in Lodi, California, told us, "It used to be that the nonsmoking workers would take their break in the lobby or out-of- doors if they needed to get away from the smoke." Now everything has changed. "Most of the crew are nonsmokers," he observed. "If anything, now the smokers make themselves scarce by smoking out-of-doors."

As a social process, the institutionalization of the civility norm is bound to

Compliance without Enforcement 85

proceed in fits and starts. Smoking has not yet, like blowing one's nose in one's hands, or spitting, or eating with the fingers, been stigmatized as "disgusting." But when smokers are segregated a powerful message is conveyed: their conduct has formally been recognized to be so harmful that it defiles others, with whom the law forbids them to congregate. American smokers-in fast food restaurants, in base- ball parks, in universities, in police departments-have largely come to understand that it is the nonsmokers, not the smokers, who enjoy the moral superiority confer-

red by civility rules.

The Role of Law

In a society where elites visibly engage in aerobic exercise, teach their children to drink nonfat milk, and denounce nuclear power, it is not surprising that smoking rates have declined and smokers are regarded as somewhat weak-willed or self- destructive. But what about smokers in McDonald's and the Sizzler-more likely to be the Hard Hat in our opening vignette than the Business Man-who meekly extinguish their cigarette when asked? Why has the civility norm spread to the fast food restaurant, the ballpark, and the high-pressure pressroom? Another. even ma- jor, part of the answer, is traceable to the role of law as a form of symbolic authority.

Anthropologist Paul Bohannan ( 1967) saw law as a body of norms "restated in such a way that they can be 'applied' by an institution designed ... for that purpose." The idea of "double institutionalization" suggests that the law reinforces an already existing normative order. The American experience with laws restricting smoking suggests that in a rapidly changing society, legal enactments can transform norms that arc only partly or tentatively institutionalized at the social level into more authoritative and widely institutionalized social norms.

Although smoking was declining and opinion polls indicated majority accep- tance of the idea of smoking controls, social norms regulating smoking changed slowly until the 1986 Surgeon General's report emphasizing that cigarette smoke contained carcinogens harmful to nonsmokers. In the years following the report, hundreds of new ordinances and corporate policies subdivided public space, seg- regating smokers (Rigotti 1989). These laws and corporate regulations. we believe. articulated and legitimated the inchoate norms concerning nonsmokers' "right" to breathe "clean" air, and thereby, accelerated the acceptance of "no smoking among

nonsmokers" as a civility norm. Law, of course, cannot do this alone. The same regulations, if promulgated

twenty-five years ago, might have been flouted and contested. Like surfers, legisla- tors and corporate officials who wish to change everyday social norms must wait for signs of a rising wave of cultural support, catching it at just the right time. Legislate too soon and they will be swamped by the swells of popular resistance. Legislate too late and they will be irrelevant. Legislate at the right moment and an emerging cultural norm, still tentatively struggling for authority-such as that condemning involuntary exposure to tobacco smoke-acquires much greater moral force.

There used to be no clear smoking norms at the Lodi (California) News-Sentinel, according to Toni Matta, a reporter. Smoking policy changed, she said, with who- ever was in the majority, smokers or nonsmokers, and with the attitudes of the

1

86 Smoking Policy: law, Politics, and Culture

editor. Due to turnover in the newsroom, policy changed frequently. In other sec- tions of the paper, where turnover was lower, the nonsmokers were more vocal in demanding a no-smoking policy and there was "a constant battle." Then, in 1990, Lodi enacted a municipal nonsmokers' rights law. After the enactment, which gave nonsmokers preference in the designation of smoke-free areas in workplaces, the paper banned smoking entirely except in closed editors' offices-including the newsroom and the cafeteria. Despite the earlier conflict, says Matta, when the new policy went into effect, "nobody flouted it." Asked to explain why, she speculated it was because (a) smokers were in the minority; (b) they realized it was "not a rights issue, but a health issue"; (c) the policy was a reasonable compromise; and (d) "common courtesy." But all those factors, it might be pointed out, were present before the law was enacted.

The change was in the official endorsement of the validity of the nonsmokers' claims based on heal th and "common courtesy." The articulation of emerging norms in formal rules appears to have four effects. First, formal rules serve an important communication function, overcoming the familiar problem of pluralistic ignorance and inaction. Even if, in 1983, most nonsmokers (and many smokers) favored restrictions on smoking in the workplace (Rigotti 1989), individual nonsmokers may not have realized the extent of support for such rules, and hence may not have felt emboldened to complain directly to smokers. The enactment of ordinances and workplace rules told nonsmokers that they had a right to breathe air that was free of smoke. Signs were posted. Memos were circulated. Smokers were confronted un- ambiguously with indicators of their social undesirability, underscored by spatial banishment and by the cheers of nonsmokers who openly expressed gratitude for the new regime.

Second, formal rules have what Joseph Raz ( 1979) has called practical authori- ty, that is, rules tend to be obeyed because people generally believe that they are supposed to obey rules. Most drivers, when confronted with a red light on a deserted but well-lit street at three o'clock in the morning, will wait for the light to change even when there is no apparent reason for doing so. Most smokers will similarly obey po-smoking rules. Even when they do not, however, formal rules permit the nonsmoker to rely on the authority of the rule itself to justify asking the smoker to stop smoking. In effect, the smoker is now empowered to say "I am not asking you to stop smoking as a favor to me. The rule requires that you stop."

If the violator refuses to comply, the "victim" of the rule-breaking can invoke the third feature of rules, namely, enforcement authority. Now, the tasks of posting no-smoking signs, checking to see that they are not widely flouted, and dealing with complaints all have been incorporated into the everyday work of restaurant host- esses, managing editors, flight attendants, and hospital administrators. The non- smoker, instead of having to confront directly a forbidding-looking stranger or a prickly coworker, can appeal to a third party-a security guard at a ballpark, an office manager, or whoever has been designated to enforce the rule. That only three persons have been ejected from the Oakland Coliseum for violating the "no- smoking in the seats" rule may be attributable in good part to the visible presence of a platoon of ushers and security personnel responsible for enforcing rules.

Finally, the legal subdivision of public space into smoking and nonsmoking

Compliance without Enforcement 87

areas adds moral authority to emergent civility norms concerning the deference smokers owe to nonsmokers. The laws influence attitudes even in settings where there arc as yet no such formal rules. For in the course of a day, smokers (and nonsmokers) now often encounter some legally segregated places, amplifying the basic message and fw1her relegating smokers to the demeaning social territory of the deviant and faintly unrespectable.

This is not true everywhere in the country. Casinos in Las Vegas, while will- ing to provide a few nonsmoking tables, are still not inclined to restrict smoking in general. Whereas the California Restaurant Association endorsed a state law banning smoking entirely in restaurants, Nevada casinos lobbied successfully to exempt themselves from a state nonsmokers' rights law. California, like most of the rest of the United States, is responsive to emerging concerns about health values. Nevada, by contrast, advertises itself as an oasis of hedonism (Skolnick 1978, pp.

35-46). Yet most of America is not Las Vegas or Atlantic City. Fewer and fewer public

spaces remain open to the smoker. Cigarette machines are harder to find. As this chapter was being written the Veterans Administration banned the sale of cigarettes in its hospitals. In ever-increasing numbers, smokers are ceasing to smoke, joining the ranks of the nonsmokers, and affirming their standing as responsible champions of health values and the Puritan tradition. When former smokers implicitly condemn smoking by stopping the practice, when they support the subdivision of public space into ever-shrinking areas for smokers, they slowly but inevitably push the idea of cigar and cigarette smoke, ash, and butt--like the spittle and nasal drippings of the seventeenth and eighteenth century--toward the "disgusting" encl of the civility

continuum. As long as new legal controls do not leap too far ahead of the spreading social

norm-which seems unlikely--then enforcement of the rules should remain un- problematic. Resistance is likely to arise only if and when smoking becomes so confined to particular subcultures or deviant communities that it comes to be re- garded as a badge of defiance or dissent, and enforcement becomes less civil. more intolerant, and more coercive.

City

Corpus Christi, TX

Dayton. OH

Fort Wayne. IN

Appendix 1. Responses of McDonald's Managers

Proportion of Nonsmoking Arca (%)

25

50

33

Problem Involving Violators?

Never had a problem. Never had to say anything. One staff member smokes in crew room, rather than outside. and "We all think he's pretty rude."

No real problem. Usually they just move to designated area.

No. Detected violators are "always pretty agreeable." "We spend a lot of time sweeping up butts hy the front door."

(co11ti1111ed)

88

City

Kansas City, KS

Pittsburgh, PA

P011land, OR

San Bernardino, CA

Savannah, GA

Stockton, CA

Auburn, CA

Bell, CA

Aspen, CO

Bellflower, CA

Lodi, CA

Oroville, CA

Paradise, CA

Smoking Policy: Law, Politics, and Culture

Appendix 1. ( Continued)

Proportion of Nonsmoking Area(%)

none

60

50

50

30

(plan to make 25% nonsmoking)

66

50

50 (by law)

100 (by law)

100 (by law)

100 (by law)

100 (by law) 2 '

100 (by law)

----------------

Problem Involving Violators?

Two weeks ago customer was smoking in nonsmoking section. When manager asked him not to smoke, he said "No problem." Even that is fairly rare.

Normally, no problem. Once in a while, someone makes a mistake and smokes in wrong area.

No problem at all.

Never had any problem with someone smoking in nonsmoking section.

People smoke at tables with ashtrays and in line "all the time." Most smokers are polite about complying with neighbors' request not to smoke. Management reluc- tant to intervene until they post "no smok- ing" signs.

Someone smoked in the wrong section "maybe once in the last 2 months." Cus- tomer apologized and moved. Even in the evening, no problem.

About once a month someone found smoking in nonsmoking section; they al- ways comply without trouble after being asked to move.

Three to four weeks ago, smoker in wrong section; immediately moved when asked. "The rule doesn't bother people in this area; they don't mind."

Two or three violations a month. When manager tells them, they put it out, usu- ally apologizing. Sometimes they then smoke outside. Never any resistance, nev- er had to call police.

Almost every day, I or 2 violators. When manager mentions it, "they just step out- side and finish cigarette. Some get mad, but vast majority say, 'Tm sorry, I didn't know."

Some grumbling, but no real complaints or recalcitrant violations.

In first month of total ban rule, manager had to remind people five times. All got angry. One dumped food on floor and left, another dumped ashes on floor. 24

Management allowed grace period. Since management started "seriously enforcing

(cominued)

San Luis Obispo, CA

City

Auburn, CA25

Baton Rouge, LA

Bellflower, CA

Corpus Christi, TX

Dayton, OH

Fort Wayne, IN

Portland, OR

Compliance without E1forcement 89

Appendix I. (Continued)

Proportion of Nonsmoking Area(%)

100 (by law)

Problem Involving Violators?

it" (2 months ago) they "had a problem two times." Both times "they were nice" and put out the cigarette.

Violations very infrequent, by out-of- towncrs. They respond politely, usually go and smoke outside. Never any prob- lem.

Appendix 2. Respo11se.1· of Sizzler Managers

Proportion of Nonsmoking Area(%)

80

5()26

l00 (by law)

60

50

75 27

50

Problem with Violators'?

Only one violation in last 6 months-an elderly couple who, when asked by man- agement, moved to smoking area without complaint. Some smokers complain he- cause scats with best views are nonsmok- ing.

One "problem'' in last 6 months. Smoker sat in nonsmoking section because no clean, set tables in smoking section. "We had to run and clean up."

One confrontation with a "kind of drunk" patron who continued to smoke. Finally manager cajoled him into stopping, em- phasizing legal obligation to do so. All other violators (about 2 a week) comply immediately ~hen approached.

"Rare to never. There might have been a couple of problems six years ago but none that arc really memorable." "Smokers ask where the smoking section is; nonsmokers never ask."

About once a month someone smoking in nonsmoking section. Manager asks them to move and 99 times out of I 00 there's no problem. Occasionally they complain.

Sometimes smokers sit in wrong section (or "complain if you can't find smoking spaces for them"). But most people will get up and move if told they're in wrong section.

Doesn't happen very often. The server oc- casionally will remind someone. No one

( continued)

90

City

San Bernardino, CA

San Luis Obispo, CA

Savannah, GA

Stockton, CA

Walnut Creek, CA

City

Baton Rouge, LA

Dayton, OH

Fort Wayne, IN

Kansas City, KS

Portland, OR

Smoking Policy: Law, Politics, and Culture

Appendix 2. (Continued)

Proportion of Nonsmoking Arca(%)

50

100 (by law)

122s

!00 20

60

Problem with Violators?

ever puts up an argument. "Smokers feel pretty persecuted anyway ... They don't want to get into a hassle."

Violations don't happen often. "Maybe 2 times in 3 years." Can't remember any difficult incidents.

People from town comply fully. About once a month, out-of-towners found smoking; 90 percent comply with no trou- ble, some complain. Once in a while gives them their money back.

Never a problem.

Never had to tell someone to stop smok- ing, although some people complain. Many signs on buffet line make no- smoking policy very clear.

Saw only one violation in last year and a half, heard of one other. Customer imme- diately extinguished cigarette when viola- tion pointed out.

Appendix 3. Newspaper Editors' Responses

No-smoking Areas

No smoking everywhere except designated room, segment of coffee shop, & individual exec. offices.

No smoking everywhere except in a few hallways, staircase, ed- itors' offices. None in cafeteria.

No smoking in whole bldg, or sidewalks around bldg (500 em- ployees).

No smoking control policies at alP 1

Smoking only in small desig- nated room off newsroom, part

Enforcement Problematic?

Out of newsroom staff of I 00- 125, only 10-15 smokers. No- body has tried to stretch the rules even at night. "It's work- ing fine."

In first few months, some com- plaints about violations; now only J or 4 a year, and "It's not a problem. People have handled it.":\O

Only small percentage of news- room staff smoked. "We had one or two people who tried to stretch the rules, but when they saw that didn't work, they stopped."

Not applicable

No recollection of resistance. Nobody disobeys. "When they

(colltinued)

City

Savannah. GA

Sacramento. CA

San Bernardino, CA

San Luis Obispo, CA

Lodi, CA

Oroville, CA

Compliance without Enforcement

Appendix 3. (Continued)

No-smoking Areas

of cafeteria, & closed editors' offices (300 employees). 32

No smoking (since 6 months ago) except for small designated room and editors' closed offices.

No smoking except in 3 outdoor

areas.

No smoking except in desig- nated areas-hall, half of lunch- room. No smoking in editors' offices. Preference for non- smokers in disputes.

Since enactment of strong mu- nicipal law, no smoking in bldg.

No smoking except in closed editors' offices, pursuant to strong local ordinance.

No smoking except in small

break rm.

Notes

I. Congressional Rerord. 5 March 1991. S2675.

91

Enforcement Problenrntic?

put this in, there were two assis- tant managers who smoked. Once we complied, that didn't leave the writers much choice."

When policy instituted by new antismoking managing editor, some surreptitious violations. Some still occurs, but generally it works. One editor quit when staff complained .. n

For the most part, people follow the rules. Last complaint was someone smoking in bathroom, a year ago. Smokers were in minority, and weren't happy about it, but didn't fight it. "They could read the ordinance and see the handwriting on the wall."

No problems except late eve- nings, when people smoke at their desk. Frequent complaints by nonsmokers about smoke wafting from designated smok- ing areas.

No trouble, never seen or heard of violation (staff of 125). "In this town ... you're practically an outcast if you smoke."

At first some friction about ordi- nance, but "nobody flouted it." (4 of 16 newsroom employees smoke; they realize it is "not a rights issue, but a health issue."

Few violations (except perhaps in bathroom) or complaints. No conflict. (Only 5-6 of 52 staff members are smokers.)

2. Traditional smoker havens such as bars and tobacco shops are exempted. 3. In Berkeley, 50 percent nonsmoking is required; in Oakland and Richmond, it is 40

percent. Oakland exempts restaurants with fewer than 30 scats; Richmond exempts those with

fewer than 50. 4. Oakland's ordinance does not specify a set amount of nonsmoking space in lounges

and cafeterias, but guarantees employees a "smoke-free environment."

92 Smoking Policy: Law, Politics, and Culture

5. During the first 90 days after enactment, the Richmond enforcement official estimated, 15 percent of his time was taken up with implementing the ordinance; since then, enforce- ment has required no more than 5 percent.

6. In 1990, nine of the complaints were filed against private employers, two against the city, seventeen against public businesses, and nineteen against restaurants (ten other com- plaints were apparently not categorized). In 1989, fifteen complaints were against employers, seven against the city, thirty against businesses and twenty-four against restaurants (Office of the City Manager, 1989. 1990 Annual Repm1s).

7. Depriving the elderly, disabled, and ill smokers of opportunities to smoke raises difficult questions, even for some advocates of nonsmokers' rights. Speaking of two Florida hospitals that banned smoking entirely in the building, Hewitt ( 1991) noted:

My mother, at age 77, still enjoys a couple of cigarettes a day. This lady survived the catastrophic flu epidemic of 1918, the Depression, and two husbands .... Anyone who believes she is to be told that ... she may not smoke is in for a tangle .... And if she were again immobilized with a fracture and lying in a hospital bed, she'd prove it. ... Will each room be equipped with a fire extin- guisher to handle the blazing beds ignited when patients ... light up under their sheets? Are staff members going to tell dying patients ... that smoking is bad for their health?

8. A Richmond patrolman, referred to earlier, told us that sometimes he goes into the mall and secs a fair number of people smoking, including shop personnel on break. More- over, the mall is a very large space; encounters between smokers and nonsmokers usually are transient. Consequently one might expect that complaints by nonsmokers would be infre- quent.

9. Rigotti ct al. ( 1992) reached the same conclusion after conducting a similar survey of compliance with a I 987 Brookline, Massachusetts, smoking control ordinance. Researchers saw a customer smoking. in apparent violation of the law, in 36 percent of businesses visited, and an employee in 14 percent. But overall, the researchers found that businesses complied willingly, reporting few implementation problems, and that "the law achieved much of its intent-reducing exposure to passive smoke."

JO. High schools. of course. arc also workplaces. Ten years ago, when Oakland High moved to a new building, it adopted a no-smoking policy for faculty and staff. There is no smoking in the faculty lounge, and Mr. Young says conflict over violations is unheard of. However, social studies teachers, most of whom smoke, use the social studies work room (a supply and copy machine room) as an informal smoking area.

11. Officially. Castlcmont faculty and staff arc not supposed to smoke on school grounds, for there are no designated smoking areas (as would be allowed under Oakland's ordinance). But infonnally. Mr. Trinidad acknowledges, smoking is allowed in the faculty lounge in off- peak hours; it is prohibited during lunch period and before classes begin. Arguably, this laxity should be read to color the principal's statement that there is no significant smoking problem among the student body. Still. Mr. Trinidad claims he twice wrote letters to faculty/staff members during the past year for violating no-smoking rules.

12. Dean Randolf says smoking is prohibited in Berkeley High School's faculty lounge, but some teachers occasionally smoke there. Twice, violations by older teachers were called to his attention, and he did tell them "in a friendly manner" not to smoke there. Now, he claims, there is no problem. To Randolf, as to the other school administrators we spoke to, "problem" does not mean that there are no violations of no-smoking rules, but that violations are neither epidemic nor endemic, but infrequent and not increasing.

Compliance without Enforcement 93

13. The 1989 U.S. Surgeon General's Report (U.S. DHHS, Surgeon General 1989. pp. 590-9 l) summarizes additional studies reaching the same results.

14. About 60 percent of respondents reported prohibitions against smoking in employee lounges, cafeterias, and even private offices, compared with 27-33 percent in a 1987 BNA

survey. 15. In fact, the resistance of the smokers mentioned in the vignette at the beginning of

this article arose not only because they were prohibited from smoking. but because they had no advance warning of that restriction; they were informed only at the last minute that the "smoking" seats they had booked would be eliminated.

16. By one account, however, "at least 6,000 U.S. companies, including Atlanta-based Turner Broadcasting, refuse to hire smokers," presumably to help control health-care costs (Elson 1991 ). Another survey found that in a sample of 833 firms, 17 percent accorded hiring

preferences to nonsmokers (BNA 1991). 17. Personal observation by one of the authors. 18. Yvonne Hester, a Belmont, California, woman who works as a ballroom dance

instructor, has smoked two packs a day for forty years. But she feels condemned. lonely. and angry in the society of nonsmokers. "I used to be in the mainstream," Hester laments. "Now

I'm out of it" (De!Vecchio 1991 ). 19. For centuries earlier, it had been believed that the retention of spittle was harmful. As

late as 1729, medical writers advised that, for reasons of personal health. spittle should not be withheld in the body. There was not the faintest suggestion that spitting might be unhygienic. although admonitions about how and where to spit are found in the late seventeenth to early

eighteenth century. 20. Similarly. La Salle in 1774 advises that "It is even good manners for everyone to get

used to spitting into a handkerchief when in the houses of the great and in all places with

waxed or parquet floors" (Elias 1978, p. 155). 21. Lewis (1957, p. 205) provides another example of very rapid change among the elite

regarding table manners: "In the earlier part of [Louis XIV's] reign, soup was not served in plates but in a two-handled porringer, from which each guest drank in turn; and even when tureen and soup plates came into existence, everyone dipped into the tureen with his own soup spoon. 1695 seems to have been a revolutionary year in matters of table deportment; Coulanges then expresses his disgust at a lady helping him to sauce with a spoon which she has just removed from her own mouth . . . and the Due de Montaurier, who was held to carry cleanliness to the point of absurdity, invented the soup ladle."

22. Similarly. when an environmental group publicized research suggesting that Alar. a chemical used to treat apples, was unsafe, school boards across the country removed apples from school cafeterias, even though. according to the EPA, 95 percent of American apples were Alar-free and many researchers thought the risks posed by the chemical were low (Shabecoff 1989). The FDA banned saccharin with only minimal evidence of risk, discount- ing the health benefits of the sugar substitute for diabetics and dieters (I-lavender 1982a,

1982b). 23. Before the Oroville ordinance, which took effect July I. 1991, the Oroville

McDonald's was 65 percent nonsmoking, but at times smokers were allowed to smoke in the nonsmoking section if it wasn't obviously bothering anybody. ("We're a people busi-

ness.") 24. Oroville is a working-class northern California community with a high unemploy-

ment rate. The McDonald's also gets many patrons who stop off from a major highway and arc unaware of the ordinance.

25. We called the Sizzler in Auburn because that city had enacted an ordinance banning smoking in restaurants completely. We wondered if compliance would be more problematic

94 Smoking Polic~v: Law, Politics, and Culture

where there was no "smoking section" at all. It turned out, however. that the Sizzler was just outside the city limits and was not covered by the ordinance.

26. Baton Rouge Sizzler increased nonsmoking area from 20 percent six months before our interview because the smoking section often remained largely empty while patrons waited for nonsmoking tables.

27. Increased from 50 percent nine months before our interview, following agreement among nine Sizzler owners in Indiana. "Now, <luring busy times, we often run out of smoking seats"-which suggests that 75 percent nonsmoking runs ahead of social patterns. But manager claims he has received more praise from nonsmokers than complaints from smokers.

28. Considering expanding nonsmoking to 50 percent. Sunday lunch is the only time that smoking section fills up first.

29. Since July 1, 1991, by company decision for the region. Previously, 75 percent nonsmoking.

30. A copy-desk employee at the Dayton Daily (staff of over one thousand) who is a smoker told us, "We still cut a butt in the toilet," and that he sometimes smokes at his desk if there are few people (and no nonsmokers) around. But he accepted the restrictions as legiti- mate (nonsmokers have a legitimate complaint about secondhand smoke).

31 . According to the circulation manager of the Kansas City Kansan, the paper ( employ- er of about sixty people) has no restrictive policies concerning smoking because (I) five out of the seven department heads smoke ("What are they [nonsmokers] going to do if they want to complain? The bosses all smoke, too") and (2) "The newspaper business is 'pressure city' so we pretty much let them do want they want." The experience of other papers suggests that (2) is not universally accepted as a justification.

32. Assistant managing editor of Portland Oregonian: "When I started here over twenty years ago, half the people smoked. We're down to ... at most a couple dozen [out of 300], that's at most."

33. Managing editor, Savannah Morning News: When she first arrived, only a few of the day staff smoked, but at night the newsroom was full of smoke. Maybe 30 percent of night staff smoked. After new restrictions were announced, nonsmokers on staff expressed great appreciation.

5 Comparing Cigarette Policy and Illicit Drug

and Alcohol Control

Franklin E. Zimring

Tobacco is not the only habit-forming psychoactive substance that is regarded as a special problem for public policy in modern American life. Alcohol, prescription drugs, and a variety of currently illicit substances, including marijuana, heroin, and cocaine, are judged to pose significant challenges to public health and public order, and these substances are associated with a variety of public law strategies to mini- mize the damage they inflict.

The variety of substances and the range of regulatory strategies associated with them invite comparative study. While the various components of modern society's psychoactive cornucopia differ from each other in important ways, the lessons we learn in regulating one substance should prove helpful in assessing the costs and benefits of strategies to regulate others. The question of the moment is, what insight into the social and governmental dynamics of cigarette regulation can be gained from comparing public policy toward cigarettes with policy toward drugs and alco- hol'?

The first section of the chapter discusses three respects in which pa1tcrns of drug, alcohol, and cigarette use have been parallel despite contrasting lcg;il regimt?s. I argue that. rather than changes in legal regulation causing changes in levels of substance use, often it is the other way around. Socially caused decreases in drug and tobacco use, particularly those that remove large numbers of high-status users, prepare the way for the adoption of get-tough programs by government.

The second section of the chapter examines the distinction between the general criminal prohibition of some drugs and the kind of regulation without prohibition that currently governs alcohol and tobacco. What is thought to be the distinctive attribute of criminal prohibition is the capacity to convey stigma, yet not all criminal prohibitions generate strong social stigma and some forms of noncriminal govern- ment policy may still convey disapproval effectively.

This leads to the final section of the chapter, where I suggest that the late twentieth-century tobacco policy seems increasingly like a stringent but nonprohibi- tionist policy that facilitates, if it does not cause, a substantial level of social stigma against cigarette smoking. If this combination works well with cigarettes, it might become a model for control of other substances.

95