Tobacco Regulations and Norms:

The New York Times believes legislation passed by Congress granting the FDA the authority to regulate tobacco products is an "enormous victory for public health." For reasons I explain in this NRO article, I am not convinced the legislation does much for public health, let alone the public good. Among other things, the legislation could frustrate the development and marketing of reduced-risk tobacco products, impose troubling limitations on commercial speech, and cement Philip Morris' position as the tobacco industry's dominant player. Is it any wonder Philip Morris was a big backer of the bill?

Speaking of tobacco regulation, Henry Farrell has an interesting post considering the near "universal success" in implementing smoking bans in public places in the United States as well as overseas, including places like Ireland and Italy where one might have suspected smokers and pub owners to disregard such laws. Specifically, Farrell suggests:

my best guess in the absence of good evidence would be that the success of the ban reflected instabilities in previously existing informal norms about where people could or could not smoke. Laws that work against prevailing social norms face an uphill battle in implementation -- unless people come to a general belief that non-compliers are highly likely to be sanctioned by the public authorities, they are likely to carry on doing what they always do. Hence, for example, the continued failure of the RIAA etc to stop file-sharing -- file-sharers who both (a) think that there is nothing wrong with swapping music and movies, and (b) that the chance that they are going to be punished is low, are going to go on sharing files (current US law tries to counterbalance this problem by applying relatively draconian penalties to the few file sharers who are caught, but this strategy carries its own problems). Laws that broadly fit with prevailing informal norms, will, obviously, have few implementation problems.

But what we may have seen (if my guess is right) with smoking bans is an unusual case in which prevailing norms (that Irish people can smoke in pubs to their hearts' content, and that others will just have to put up with it) were much more fragile than they appeared to be, and that the change in law made it easier for those disadvantaged by the prevailing norms to challenge smokers and to shame them into stopping smoking in certain places, hence creating a new set of robust norms.

This seems plausible to me. While I'm no fan of smoking bans — I think rules about smoking can and should be made by individual businesses — it is interesting that such prohibitions have not sparked more resistance, and I think it is clear that even us cranky libertarian types generally prefer patronizing smoke-free places.

So let's say Farrell is correct, and smoking bans have displaced an unstable norm that smoking in restaurants is acceptable with a more robust norm that smoking in restaurants is not. What would happen were such bans to be repealed? My best guess is that relatively little would change. When I think about my favorite local restaurants, I cannot see any of them allowing patrons to smoke even if the law were changed. There are one or two local bars, however, that I suspect might allow smoking on the premises, but they would be the exception. So whereas before the smoking ban here in Ohio, most restaurants and bars allowed smoking in a separate room or at the bar, were the ban repealed today I would be willing to bet that most restaurants and bars would remain entirely smoke-free.

What does this all mean? On the one hand, if most restaurants and bars would remain smoke-free, it seems to me the argument for allowing some establishments to adopt different rules is that much stronger. Remove the bans and us libertarian-types can still toast to the free market system in a smoke-free pub. But it is important to acknowledge that this state of affairs exists today because of the initial government intervention. The smoking ban appears to have helped solve a collective action problem that had kept a suboptimal norm in place. So even if a ban limited the ability of business owners to set the rules for their own businesses, it may have also helped them shift toward preferable business practices. Non-governmental efforts may have produced the same result eventually, but it would almost certainly have taken longer. So smoking bans have been beneficial, but it may also be the case that the maintenance of such bans is unnecessary to retain most of their benefits.

UPDATE: More from Megan McArdle and Stephen Bainbridge. My biggest difference with McArdle is that the market does produce non-smoking bars and restaurants -- I can think of several from Northern Virginia (from when I lived there) and in Ohio pre-smoking ban here. The market even produces non-smoking employers (such as the Cleveland Clinic). It simply does not produce either at a particularly fast rate because it typically takes time for norms to change absent government intervention.

Snuffing Out Tobacco Ads:

The NYT reports that provisions of the new tobacco legislation likely to be signed by President Obama this week is certain to face a First Amendment challenge in federal court. While bill sponsor Rep. Henry Waxman claims it was "carefully drafted" to survive court scrutiny, the legislation contains provisions virtually identical to some struck down by the Supreme Court in Lorillard v. Reilly in 2001. Other provisions that purport to limit tobacco companies ability to inform consumers about the nature and existence of FDA regulation could also be problematic.

One interesting question touched on in the story is who will challenge the law. Philip Morris, the nation's largest cigarette manufacturer, supported the bill. But other tobacco companies, such as R.J. Reynolds, and advertising firms are potential plaintiffs. Civil liberties groups like the ACLU oppose some of the advertising restrictions, but might have difficulty demonstrating standing to mount a legal challenge.