Following the dumping of the Wales Public Health Bill and its attempt to ban vaping in public places, the Daily Telegraph covered the story (Plans to ban e-cigarettes in public places defeated) and included an online poll – see above. But I think they ask the wrong questions. These were the questions asked:
Should e-cigarettes be banned in public places?
- Yes, they are a threat to public health
- No, they help people quit smoking
It is so frustrating. These questions embody the logical fallacy that pervades the debate on banning vaping in public places. The use of the law is not about a person’s preferred vaping policy in a given place. It is about coercion – the overriding of the preferences of owners and managers of public places by a single policy for the jurisdiction.
This is poorly framed because it implicitly invites the reader to consider whether they want vaping where they visit – and many will not. The question above implies that non-vapers will have to endure clouds of e-steam in order to help people quit smoking. But that is not actually the choices offered by a no-vaping law and its alternative. A better question would be:
Who should decide whether to ban or allow vaping in public places?
- The government should ban vaping in public places by law
- Owners or managers of public places should decide their own policy
In practice, with no vaping law, lots of places will not allow vaping or it will seem culturally inappropriate to vapes – these are not affected by a no-vaping law. But what about the places that do want to allow it – these are the ones affected by law. Let’s imagine owners and managers decide the following:
- A pub wants to have a vape night every Thursday
- A pub wants to dedicate one room where vaping is permitted
- In a town with three pubs, one decides it will cater for vapers, two decide they will not allow vaping
- A bar manager decides on balance that his vaping customers prefer it and his other clientele are not that bothered – he’d do better allowing it
- A hotel wants to allow vaping in its rooms and in its bar, but not in its restaurant, spa, and lobby
- An office workplace decides to allow vaping breaks near the coffee machine to save on wasted smoking break time and encourage smokers to quit by switching
- A care home wants to allow an indoor vaping area to encourage its smoking elderly residents to switch during the coming winter instead of going out in the cold
- A vape shop or pharmacy is trying to help people switch from smoking and wants to demo products in the shop
- A drop in centre for homeless people want to allow it to ease the conversation between users and care-workers
- A day centre for young mothers allows vaping instead of smoking to help them feel comfortable
What’s wrong with this? Why should these quite reasonable and nuanced judgments be blocked by an overriding law? I’m not saying these are good or bad policies, just that they (hypothetically) reflect the preferences of the owners and managers of the places concerned and their judgement of what is right for their clientele and them. So the question to those who want a law is: why should these and thousands of similar nuanced and reasonable micro-decisions be over-ridden by a single macro-decision made by law? It is not: why should vaping be allowed everywhere?
The case for overriding the choices of owners and managers. The only reason for using law to override these preferences can be if there are material harms associated with vapour exposure, and then a bystander-protection and occupational safety rationale kicks in – and these have a stronger ethical basis than using state power to impose rules governing issues of etiquette and minor nuisance. And even these principles are not that strong where those exposed can make an informed choice. But I think we need a fairly high bar before the law is brought in to determine what choices are made in bars and restaurants etc and that owners and operators are making bad/wrong decisions. If we allow legal prescription to be justified on a highly speculative assessment of risk (which actually currently suggests no material risk at all – see Burstyn, I 2014 for example), where does this sort of state intervention in private choices end?.
Risk aversion? Perhaps a case can be made by invoking an extremely high degree of collective risk aversion? I say ‘collective’ because individuals can take risk-aversive action by not going to places that worry them or taking responsibility for their children. Using a law to ban vaping when there is no material evidence of harm imposes a very high implicit level of risk aversion on all of us even if we would be perfectly happy in a place that allows vaping. Applied to real world living, we would simply unable to function with that level of risk aversion – and society would permit almost no innovation.
Maybe a precautionary approach? Perhaps we should invoke the precautionary approach because we don’t yet know the full extent of the risks. While a high a degree of risk aversion might sound pleasingly cautious and responsible, I believe it is quite likely to be harmful and irresponsible. In this case, excessively precautionary action may have unintended consequences – for example causing vapers to be excluded from premises to join smokers thereby promoting to relapse to smoking or to see less advantage in switching in the first place. Smokers often report feeling hounded by authorities and wider society. Part of the appeal (‘value proposition’) of vaping is to reduce the stigma of being hounded and demonised – that doesn’t mean vapers want to vape everywhere and at all times, but they would like to be able to find places that cater to them and make them feel welcome. A pervasive legal ban degrades that part of the vaping value proposition and can, in effect, be seen as a protection of smoking and the cigarette trade from a competitive low-risk pro-social alternative. Seemingly cautious action could thus be reckless and counterproductive both in public health terms as well as for civil liberties.
Children? Even without law, in reality pretty well all places where children congregate (schools etc) will not allow vaping – but that will be their choice and school authorities will make that decision. But should the law go further? In my view, it is wrong to bend adult society out of shape in order to hide it from the view of children. If parents for whatever reason don’t want their children in a pub that allows vaping, then parents can choose not to take them to that pub – it is not a reason to impose the force of law to ban vaping in all pubs. There are some things that you really don’t want children to see (mostly readily available on the Internet), but in the grand scheme of child-protection worries a reasonable adult behaviour – especially one that is an alternative to smoking – is not something to hide or worry too much about. I think there is a tendency among some activists to exploit children, using them as a kind of human battering ram to break down genuine objections to policies that are really about controlling adult behaviour based on judgmental prohibitionist instincts. Think of the children? Yes, of course, we should think of the children – but with a view to them growing up tolerant and thoughtful about others, and not as an activist tool for bullying grown-ups.