Published: April 06, 2008 12:46 am      

Approaching smoke-free

Surrounding states pass smoking bans in various ways

FAIRMONT — Efforts to ban indoor, public smoking exist in all the states bordering West Virginia, but the approaches differ depending on rulings by the individual high courts as to what can be done to limit smokers from lighting up.

And activists in Kentucky, with the highest smoking rate in the nation at 28.6 percent, look to West Virginia, with the second-highest rate of 25.7 percent, for ideas.

“We’re really having success at the local level, really great,” said Amy Barkley, based in Louisville, Ky., and director for the Campaign for Tobacco-Free Kids in the tobacco states and the mid-Atlantic. “West Virginia is kind of a pioneer in the region for local, smoke-free ordinances. That’s the model.”

Last week, Marion County became the 18th of West Virginia’s 55 counties to impose a complete ban on indoor, public smoking, joining Ohio, Pleasants, Wood, Ritchie, Tucker, Wirt, Jackson, Calhoun, Upshur, Randolph, Roane, Braxton, Pocahontas, Kanawha, Lincoln, Wyoming and Summers.

All 55 of West Virginia’s counties have some type of public smoking ban, including neighboring Harrison and Monongalia counties, both of which are considering more stringent ordinances.

“We’re OK with incremental progress,” Barkley said. “That’s what’s happening in West Virginia.”

As for bordering states, in the last year or so, both Ohio and Maryland have gone totally smoke-free in public. In Ohio, voters chose a complete ban — instead of a partial ban or none at all — by 58 percent during the 2006 gubernatorial election.

And Maryland’s General Assembly passed the Maryland Clean Indoor Act of 2007, which prohibits smoking in nearly all indoor workplaces “to preserve and improve the health, comfort and environment of the people of Maryland by limiting exposure to environmental tobacco smoke.”

While some might think a statewide ban would make life easier for someone like Barkley, she likes the regional approach.

“That’s the Catch-22,” she said. “A statewide law sounds good because everybody needs to be protected. But unless it’s a strong law and it doesn’t have loopholes,” Barkley does not consider that as effective.

However, in Pennsylvania, a statewide ban is the only choice. That’s because the Keystone State’s Supreme Court ruled that Pennsylvania is a “pre-emptive” state. That means that no city or county can pass a smoking ordinance any stronger than existing state law.

“It’s part of our state constitution of what we can and can’t do,” said Joy Blankley Meyer, the executive director of the Pennsylvania Alliance to Control Tobacco. “The exception is Philadelphia. They are a Class I city because of their population and size, so they are pre-emptive. They have passed a clean indoor act.”

In Pennsylvania, a conference committee of the General Assembly plans to meet at the end of the month to try to work out differences on a statewide smoking ban. If they come up with a compromise bill, the Senate and the House of Delegates each would have to pass it and the governor accept it in order for it to become law.

In addition to bar owners, where many states find opposition to smoking bans, Pennsylvania also has a new entity that tends to dislike the law: casinos, which began setting up business in 2007 after slot machines were legalized.

“We are at the mercy of the state Legislature, which is why it’s so important that a statewide bill comes through,” Meyer said. “And it has to be as comprehensive as it can be in order to protect the workers statewide. It’s our only means to protect workers.”

Both Kentucky and West Virginia are not pre-emptive, noted Barkley and other officials, allowing those states to work at the regional level.

In fact, a bill introduced into the West Virginia Legislature last January that would have banned public smoking throughout the state produced a bit of concern for Bruce Adkins, director of the state Division of Tobacco Prevention.

He approved of the bill the way it had been written, but he worried that if legislators passed it after making changes, the law actually could weaken smoking bans in counties that already have strong ordinances.

“I’m always worried about pre-emptions and exemptions,” he said in February.

According to the March 18, 2005, issue of the Centers for Disease Control and Prevention (www.cdc.gov) Morbidity and Mortality Weekly Report, as of Dec. 31, 2004, a total of 19 states had some type of pre-emptive provision for smoke-free indoor air legislation.

The issue also noted that exposure to secondhand smoke results in approximately 3,000 lung cancer deaths and 35,000 heart disease deaths annually in the United States.

Risks from secondhand smoke took on more meaning in 2006 when U.S. Surgeon General Richard H. Carmona issued a report in which he stated that no risk-free exposure to secondhand smoke exists. He also concluded that nonsmokers exposed to secondhand smoke at home or at work have a 20 percent to 30 percent increased risk of developing lung cancer and a 30 percent increased chance of developing heart disease.

The report, which can be found at www.surgeongeneral.gov, also questions the use of ventilation systems in a variety of settings, including restaurants and bars that have smoking and non-smoking sections.

“He came out and said that there was no safe exposure to smoke,” Meyer said. “That fits all the studies that’s been happening. That puts it all under the Surgeon General, which is the authority on health in the United States.

“He also talked about ventilation and how it does not work. It does not rid the air of any carcinogens.”

Wendy Simpkins, senior director of communications for the American Cancer Society in Ohio, has her own analogy about the effectiveness of smoking sections in bars and restaurants.

“We feel very strongly that everybody has the right to breathe smoke-free air,” she said. “It’s a health regulation like any other,” Simpkins said. “You can’t have a peeing section of a pool. Secondhand smoke is a proven cause of heart disease and lung cancer, and the only way to protect everyone is to provide smoke-free public places.”

She also compared the new law to any other health regulation, such as “requiring employees to wash their hands before they serve you food.”

Simpkins’ organizations aided the effort to get a smoking ban on the ballot when Ohioans went to the polls in November 2006 to elect a governor.

After passing with 58 percent of the vote on a ballot that had three choices, the law went into effect without enforcement in December 2006.

“We began enforcement on May 3, 2007,” said Kristopher Weiss, a spokesman for the Ohio Department of Health.

Before the regulation went to a vote, a four-hour public hearing was held in the state capitol of Columbus, Weiss said.

Simpkins and her colleagues gathered 400,000 signatures in two rounds, twice the amount needed, in order to get the measure placed on the ballot.

“I had smokers who were willing to sign,” she said. “Some wanted to quit, and there were others who said they did not mind stepping outside to smoke if it protected the health of everyone around them.”

The measure had support from Republicans and Democrats, Simpkins said. “Everyone but Libertarians supported this,” she said.

And since the election in which the law won with 58 percent of voter approval, that support has grown to 80 percent, according to surveys taken since implementation, Simpkins said.

Prior to the statewide ban, some Ohio municipalities, including Columbus, already had instituted indoor public smoking bans. Columbus’ went into effect nearly two years before the statewide law, in January 2005.

Compliance has gone fairly well, said John Richter, a supervisor at the Columbus City Health Department.

“With everything, you have hold-outs,” Richter said. “You have people who feel it infringes on their rights. But actually, it was quite successful in its early implementation as far as the facilities we license, such as restaurants, where we had close contact.”

Complying with the new state law requires that public establishments prohibit smoking, post signs listing the toll-free enforcement number and remove ashtrays and other tobacco receptacles, according to the Ohio Health Department’s Web site.

The Ohio statewide push, however, was not cheap, according to Christina Mickey, project coordinator for the Smoke-Free Initiative of West Virginia.

“They bypassed the Legislature, so that cost $8 million to $10 million,” she said. “So it was very expensive.”

Barkley of Kentucky also has found the county-by-county approach — or sometimes, cities — to also help with the credibility and enforcement of the smoking bans.

“These things can be a major drain on resources,” she said. “It doesn’t make sense to push it forward if it’s not supported.”

So far, 11 Kentucky cities and towns have passed ordinances, including Louisville, which was tricky because of Churchill Downs, home of the Kentucky Derby.

Initially, Churchill Downs was exempted, but that was going to lead to lawsuits from other areas that wanted the same consideration.

“They said, ‘OK, we see the writing on the wall,’” Barkley said of Churchill Downs officials.

To ensure legality, the Louisville ordinance was passed again without the Churchill Downs exemption, which was not difficult, Barkley said, because people had seen the ban in action.

“Our opponents were like, ‘People love this. There hasn’t been a loss of business.’”

E-mail Mary Wade Burnside at mwburnside@timeswv.com.