Regulation of Smoking in Restaurants, Health Law Perspectives, Health Law & Policy Institute

Regulation of Smoking in Restaurants

By Ronald L. Scott
rscott@central.uh.edu
Health Law & Policy Institute

House Bill 290 was recently filed by Representative Maxey in the 77th Texas Legislature. It would prohibit smoking in restaurants that derive 75% or more of their revenue from the sale of food and beverages for on-premises consumption, excluding alcoholic beverages. An offense under the bill would be a Class C misdemeanor. Additionally, a person in charge of a restaurant would be required to make a reasonable effort to prevent smoking in the restaurant and violations could result in civil penalties of up to $500. Smoking would be allowed in outdoor portions of a restaurant.

Forty-eight states and the District of Columbia have enacted laws that restrict smoking in public places. See American Lung Association, State Legislated Actions on Tobacco Issues (1999) (“SLATI”). These laws range from comprehensive clean indoor air acts that restrict or prohibit smoking in virtually all public places, including workplaces, to more limited regulations (e.g., prohibiting smoking on school buses). According to the Centers for Disease Control and Prevention (CDC), 31 states have laws regulating smoking in restaurants.

Texas has no law regulating smoking in restaurants. In 1975, Texas first enacted legislation restricting smoking in certain public places including primary and secondary schools, elevators, theaters, movie houses, libraries, museums, hospitals, and some buses. See TEX. PENAL CODE ANN. § 48.01 (Vernon 1994). SLATI characterizes 14 states, including Texas, as having “minimal” restrictions on smoking in public places. Only Mississippi and Alabama have no restrictions on smoking in public places.

A significant development in tobacco control policy is the Environmental Protection Agency’s (EPA) designation of second-hand smoke as a “Class A” carcinogen. See Fact Sheet on Respiratory Health Effects of Passive Smoking at http://www.epa.gov/iedweb00/pubs/etsfs.html. The EPA has made the following findings regarding second-hand smoke:

It is a human lung carcinogen.

It is responsible for approximately 3,000 lung cancer deaths annually in adult U.S. nonsmokers.

It is causally associated with an increased risk of lower respiratory tract infections in children (estimating that 150,000 to 300,000 cases in infants and young children up to eighteen months of age are attributable to second-hand smoke annually).

It is causally associated with increased prevalence of fluid in the middle ear, symptoms of upper respiratory tract irritation and a small but significant reduction in lung function in children.

It is causally associated with additional episodes and increased severity of symptoms in children with asthma (estimating that 200,000 to 1,000,000 asthmatic children’s condition is worsened by second-hand smoke exposure).

It is a risk factor for new cases of asthma in children who have not displayed symptoms previously.

In addition to the EPA’s findings, a recent Harvard study shows that exposure to second-hand smoke can almost double a person’s risk of a heart attack. The study estimates that each year, the number of people dying from heart attacks brought on by second-hand smoke could exceed 50,000--more than ten times the number of people who die of lung cancers from second-hand smoke. See Secondhand Smoke Almost Doubles Heart Attack Risk at http://no-smoking.org/may97/5-20-97-1.html.

A Texas “Opinion Leaders Survey” recently conducted by the University of Houston found that 84% of respondents think the Texas Legislature should adopt a statewide smoke-free ban for workplaces and public buildings, and a majority think laws and controls of tobacco should be set at the state level. While tobacco prevention and control efforts may focus on programmatic issues such as public education, community-based programs, cessation efforts, school based programs, and enforcement, a number of related policy efforts have proven effective in reducing tobacco use when used as part of a comprehensive strategy. These policies include new restrictions on environmental tobacco smoke in public places.

02/18/01