Next From The Nanny State: Bloomberg Tries To Make You Not Think About Cigarettes

from the and-next-we-close-down-candy-shops dept

Cross-posted from

Mr. Burns: Since the beginning of time, man has yearned to destroy the sun. I shall do the next best thing: block it out.
Mr. Bloomberg: Yes. The people must be protected from the sun’s harmful UV radiation!
Mr. Burns: Umm, sure, whatever. [Activates Sun Blocker]
Mr. Bloomberg: Excellent.

I fully believe that Bloomberg would ration sun time if he could — or at the very least force everybody to wear sunscreen. Like your mother, he simply thinks that he knows what is better for you and what you should be allowed to do. And he’s willing to use any means necessary, fair or unfair, legal or illegal, to make you do what he thinks you should be doing.

The latest: since he can’t force stores to display horrific images with the purchase of cigarettes, he now wants to prohibit stores from displaying cigarettes at all.

Will the courts smack him down again?

The WSJ Law Blog has a very interesting analysis of the possible legality of Bloomberg’s (a former smoker) latest attack on cigarettes. Here’s the actual law that Bloomberg is proposing:

A retail dealer shall not display or permit the display of any cigarettes or cigarette packaging in a manner that allows a person to view such cigarettes or cigarette packaging prior to purchase at any place of business operated by such dealer.

You’re allowed to buy them, but not look at them… because looking at them will remind you that you are LIVING IN A FREE COUNTRY and can do what you want.

But this paternalistic restriction might be legal, or at least not as illegal as Bloomberg’s attempt to force cigarette sellers to have posters of lung cancer:

Enacted in 1965, the Federal Cigarette Labeling and Advertising Act required that cigarette ads and packages contain those now-ubiquitous health warnings. But it also offered tobacco companies assurance that they wouldn’t have to comply with a whole other set of local labeling laws.

Federal courts concluded that New York City’s poster law failed to conform with the national standard.

But in 2009 Congress amended the statute to give cities and states more leeway to impose tobacco restrictions. Local governments still couldn’t regulate the “content” of tobacco advertising or promotion. But they could say where and when cigarettes may be sold.

Great, so saying “smokes can only be sold out of a trashcan in the alley out back after you put your money into a rat’s ass” might be legal.

You know, law is better when people are just honest about what they want. If Bloomberg wants to ban the purchase of cigarettes in the city, he should just say that. Pass a bill (does he even have to pass these bills? Is the New York City Council even awake?) outlawing smoking and argue it to a court. Go ahead, let’s fight this battle between personal freedom and public health out in the open, and let the courts (or, you know, the people) decide.

But trying to slowly erode the rights and freedoms of New Yorkers is for the birds. Bloomberg is hoping that everybody will wake up one day and just not want to smoke (or have soda, or eat salty food). But like your mother found out, nagging people to death doesn’t change their desires. It just makes people more creative about doing what they want behind their mothers’ backs.

A Legal Look at Bloomberg’s Latest Anti-Cigarette Push [WSJ Law Blog]

More stories from Above The Law

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Comments on “Next From The Nanny State: Bloomberg Tries To Make You Not Think About Cigarettes”

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55 Comments
Anonymous Coward says:

Re: Re:

Same thing in Western Canada, honestly it seems like such a non-issue. I understand that erosion of freedoms happens slowly but to claim this as one such issue seems pretty silly. Not to say I support the idea but I can think of so, so many things that matter a hell of a lot more than the fact that you can no longer look at the packages of cigarettes in stores.

btr1701 (profile) says:

Re: Re: Re:

I understand that erosion of freedoms
happens slowly but to claim this as one
such issue seems pretty silly.

The thing is with Bloomberg, this is just one in a long line of intiatives where the man really does seem to believe he’s your benevolent nanny, who’s restricting your freedom at every turn ‘for your own good’.

The author of this article is right. If Bloomberg thought he could legally get away with it, he’d issue regulations on how long you’re allowed to be out in the sun and fine people who don’t use sunscreen.

rorybaust (profile) says:

the nannies were in Australia 1st

welcome to Australia , all those are law , can’t advertise , can’t display , can’t have logo’s , all packaging covered in health warnings and graphic pictures of diseased body parts, but in a nanny state tobacco and cigarettes makes lots of taxes for the nannies so of course you can legally buy the stuff.

and don’t get us started on the speed camera’s , but at least one of our ISP’s iinet stood up to big content and walked away from a voluntary 3 strikes agreement. So yes in Australia the nannies are well advanced but at least we still have one ISP standing up for us, you win some lose a lot.

special-interesting (profile) says:

Re: Re: Can't you see how awesome I am?

Hey. Didn’t I agree with you (partially) once? I forget the post but since composing the essays on a wp have the text. It was some comment about markets are ?not free? and are locked up.

?I kind of agree with OOTB in that our markets are locked up in layers (and layers and tons) and tons of regulation as it seems every industry from sugar to aircraft have their own special interest protectionist legislation. The realm of intellectual growth and advancement (and the culture of such) is tied by eternal copyright.

Yes there is still a lot of dynamism left in the markets and am grateful for that. The attitude of ?it moves; tax and legislate it!? will kill off many of the good ideas in favor of the one (firm, group?) writing the text of the legislation.

Legislation by itself is not always bad but legislation written by and for a monopoly is.

These are the Dragons of our age we must slay.?

One can argue that even copyright monopoly is used to lock up the market for media.

kenichi tanaka says:

Bloomberg is simply out of control. The soda pop law has already been overturned by a federal judge and now he’s trying to push another insane law through?

I admire Bloomberg for trying to curb smoking among New Yorkers but this is ridiculous. Now, Bloomberg is so far out of control that he thinks children will want to smoke cigarettes if they even see a cigarette package.

NBC News reported this on their website last week. Techdirt.com is behind on this story.

Next, Americans think that Bloomberg will go after such things as alcoholic beverages and then probably move on to junk foods, snacks, candy bars and simply move on down the list.

New York is simply turning into a “we’ll ban you” type of city.

Anonymous Coward says:

“welcome to Australia , all those are law , can’t advertise , can’t display , can’t have logo’s , all packaging covered in health warnings and graphic pictures of diseased body parts, but in a nanny state tobacco and cigarettes makes lots of taxes for the nannies so of course you can legally buy the stuff.”

Replace Australia with Canada. We have all the same restriction

Anonymous Coward says:

Re: Re:

and if you are from Australia, or Canada, and you don’t smoke do you care.?? If you are from Aust or Can and you do smoke DO YOU CARE ???

IS anyone stopping you from buying smokes, or stopping your from getting cancer and dyeing ??

Government with decent health care (Australia) pay a huge amount of money because of people who are sick or dying from smoking.

But it’s not just the smokers who pay for that health care, it is all Australians, all tax payers. It’s only reasonable that smokes should be a highly taxed product to offset those expenses.

Anonymous Coward says:

I don’t mean to America bash, but why do things like domestic surveillance get at most a ‘meh’ response, but things like this make people go all Braveheart?

I’d suggest going further and saying tobacco products could only be sold in plain white package with 14pt arial black font for the name.

Will it stop smokers from smoking? no. But it will reduce the ‘cool’ factor among teens. If marketing didn’t do anything, companies wouldn’t do it.

Niall (profile) says:

Re: Re: Re:

No-one is saying that they only smoke because of the packaging, but it can have an effect on which you choose, or even if you want to be seen with it. If you made a law that said that boys could only smoke from pink cigarette packets, they’d really not want to be seen with them… especially teenage boys.

Smoking is a serious public health nuisance which affects many other people. Whilst banning it outright may be a tempting idea, Prohibition shows that is unlikely to work. However, gradually making it more and more socially unacceptable and unappealling does seem to work and helps a lot.

Anyone who feels they have some god-given right to smoke around others should be made to sit next to someone with a boombox and a pack of stinkbombs, and then see what they feel their ‘rights’ are. In their own homes, on their own lungs be it.

Anonymous Coward says:

It’s fair to say that smokers in this situation have a subjective view, and non-smokers have an objective view. As a non-smoker it seems obvious that smoking should be banned, but in gradual steps like any other addictive habit.

I won’t produce the laundry list because everybody knows it, including smokers. From my perspective, if smokers resorted to cutting themselves every time they lit up, it would result in better health for them and everyone around them – but we would all find this repulsive – such is how ingrained smoking is as a social norm.

When smokers look at another habit that is less destructive and find it repulsive, it should make them seriously question their own judgement. But they won’t. Because ‘freedom’. They’re free to enjoy their destructive addiction. If only they could look upon themselves objectively and see how repulsive that is.

btr1701 (profile) says:

Re: Re:

As a non-smoker it seems obvious that
smoking should be banned

I’ve never smoked even a single cigarette and I’m not on board with your ban-a-thon.

Because ‘freedom’. They’re free to enjoy their
destructive addiction.

Exactly. Freedom. Freedom from a bunch of nanny-state do-gooders who want to regulate you for your own good.

If only they could look upon themselves objectively
and see how repulsive that is.

Yes, that’s a wonderful reason for the state to step in and restrict personal liberty under penalty of criminal law– because you think something is icky.

kenichi tanaka says:

I’m a non-smoker, never smoked a day in my life, but even I have enough sympathy for smokers as well as for common sense laws. Removing cigarette displays form all public areas is just not very common sense.

Maybe require retailers to place tobacco in a private room, like video rental places were forced to do that rented out porn videos along with other general audiences films.

Bloomberg is simply trying to use this law to ban the sales of tobacco products in new York City. I expect that a Federal judge is going to strike this law down, as well.

Anonymous Coward says:

Re: Re:

Clearly he isn’t trying to do anything of the sort.
Banning display and banning sales are completely different things. They already do this in Ireland, large retailers already do it in Britain and smaller retailers will follow next year. I do smoke and I also find this perfectly acceptable. Smoking should not be banned, it didn’t work for alcohol in the prohibition era, it doesn’t work for narcotics as has been blindingly clear over the last thirty plus years. But not encouraging something is not the same as banning it and in no way infringes on anyone’s rights.

Angel (profile) says:

I started smoking not because of Joe camel, Not because of the displays behind the counter, not because of the fact that I saw advertisements for them. It was because my girlfriend had a cigarette and she looked cool smoking in my 12 year old mind. The can pass all the laws they want, put out disgusting images, and everything else. The fact is some dumb kid is still going to think that smoking is cool because they see other people doing it. Kids get crazy ideas in their heads it’s why we call them kids, because they haven’t learned common sense yet. Then some other kid is going to see that kid and think “Wow they look cool and I want them to think I’m cool, so I’ll smoke too”. The bullshit nanny laws won’t get people anywhere.

If Anti-smokers really gave a rats ass about the health of smokers they would all be doing their very best to find out why electronic cigarette’s have a much higher success rate at helping people quit smoking, when their current NRT’s have such an appalling failure rate. Instead they are fighting e-ciggs as well with this whole quit or die mentality.

No, nothing you inhale other then air is going to be 100% good for you, but at least with e-ciggs there is no second hand anything so others aren’t put in danger by it’s use. Also Electronic Cigarettes have thousands less chemicals in them than a regular cigarette’s and while they might contain nicotine, most people are surprised to learn that nicotine is one of the least harmful chemicals in cigarette’s. As a matter of fact Nicotine is found naturally in Eggplant, Green Tomatoes, Cauliflower, and potatoes.

Ninja (profile) says:

In Brazil cigarette packs must come with pictures related to the harms the habit of smoking can cause by law. Some of those pictures are quite shocking. There are other initiatives that are Govt sponsored to try to reduce the number of smokers such as high taxes (illegal products flourished unfortunately) and even prohibiting people from smoking indoors or inside public (Govt owned) facilities.

I tend to agree with the article when he says ppl should be free to do what they want (and honestly nobody has been forbidden to smoke or buy cigarettes here in Brazil). However from the point of view of public health this only makes sense (reducing the smokers). Most of these people will have serious health issues during their lives and this is a huge burden on the public health system. And they are tackling the problem without forbidding those who enjoy it to smoke.

There’s more to discuss on this issue but it’s a nice article.

David MD says:

Smoking and Obesity health costs

The health care costs of tobacco far exceed that of taxes, so this blog writer and all the readers who do not smoke are subsidizing those who do smoke in the form of a hidden tax.

Bloomberg has donated $600 million (matched by Bill Gates $125 million) to combat tobacco in low- and middle-income countries.

About 90-95% of smokers regret ever having started.
44% of tobacco consumed is consumed by those who are mentally ill and/or substance abusers. They are self-medicating for their illnesses.

If you want to lower health care costs, you must lower the amount of smoking and the amount of obesity.

Funny how all of these articles that mention “Nanny State” never mention the huge hidden taxes all of us pay for health care costs of tobacco and sugar water users.

DCX2 says:

Re: Smoking and Obesity health costs

The problem with the “Nanny State” idea is that people want to be protected from what’s bad for them (e.g. FDA inspections of meat packing plants)…unless it’s something they like (e.g. easily visible cigarettes, large quantities of pop, driving without a seat belt).

I wish that more insurance companies would just totally stop covering people who get an illness from smoking cigarettes. If someone wants their “freedom” then they should also suffer the consequences of that freedom, instead of running to society when their idiotic behavior has resulted in consequences they don’t want to bear.

Dennis F. Heffernan (profile) says:

Smoking is different

I have nothing good to say about Bloomberg’s war on salt and soda, but smoking is different. If all smoking did was kill the smoker I’d say “knock yourself out, preferably before you breed”. That’s not the case though. Second-hand smoke impacts the health of everyone nearby. I myself have asthma from second-hand smoke, according to the doctors that treated me. People have the right to make their own choices but not to choose for others. The tobacco industry needs to die.

As for arguments like “Funny how all of these articles that mention “Nanny State” never mention the huge hidden taxes all of us pay for health care costs of tobacco and sugar water users”: if you don’t want to pay for the health care costs of other peoples’ choices then stop trying to socialize health care. C. S. Lewis went on at some length but I’ll keep it to the opening line for the sake of brevity: “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive.” The truth is that socialists don’t care about “helping the people”, they’re just another brand of control freak.

nasch (profile) says:

Re: Smoking is different

if you don’t want to pay for the health care costs of other peoples’ choices then stop trying to socialize health care.

It doesn’t matter what kind of health care system you have; the healthy always subsidize the sick. So it’s in everyone’s interest to reduce the number of sick people, especially those who essentially choose to get sick.

DCX2 says:

Re: Re: Smoking is different

Exactly! If you aren’t paying a tax to cover nationalized health care, then you’re paying higher premiums for privatized health care.

The money has to come from somewhere. I think the only reason people don’t realize this is because the ones who do have health care feel entitled to it because they’re employed, and those who don’t have health care are suffering because they’re lazy. Never mind how wrong those stereotypes are.

Niall (profile) says:

Re: Smoking is different

So why do ‘soh-shul-ist’ countries like the UK actually have national Health Services that actually want to help people? It’s a genuine wish that runs through our NHS. We’d far rather people acted and were healthy than want to ‘control’ them – we also know that you can’t, and shouldn’t control them on issues like this – which is why people are ‘discouraged’ using high taxes and unattractive packaging/smoking environments.

lisag121ny (profile) says:

NJ Tried and Failed

They tried this in NJ and the law was withdrawn when the tobacco companies sued (the town did not have the funds to fight it out in Court). I am curious what will happen in NYC where the pockets are deeper for such legal battles. How much is Bloomberg willing to spend to get his way? Same as his continuing battle to win the soda restriction? Seriously, Bloomberg will shovel money at his pet projects and endless Court battles, but does nothing to elevate the real issues of the city (e.g. the public school bus transportation strike, etc.).

special-interesting (profile) says:

Oh, thats right. Put it in the back room so nobody will notice. This would be the sweep it under the city carpet plan.

Mayor Bloomberg has apparently never read history and the influence of Speakeasies (hidden bars) and the increase of public usage when something becomes illegal. (Both proven facts.) Driving cultural behavior (good or unhealthy) into hidden back rooms is bad for business and tax revenue. (and healthy culture of sharing ideas and opinions out in the open)

No I don’t smoke but do climb a mountain every now and then. Which is more dangerous? Law relating to culture be it healthy, unhealthy, risky, fun or dangerous is never a good thing.

I don’t mind the warning label controversy. Yes there are free speech issues but tobacco industry play hard ball with consumers and all detractors so a public warning may not be a bad thing. Cigarette firms have their own problems of which I have to thank for helping coin the term ‘cigarette argument’.

http://www.techdirt.com/articles/20130215/02462421991/undisclosed-uspto-employees-write-report-saying-uspto-does-great-job-handling-software-smartphone-patents.shtml#c381 The cigarette argument is hilarious in a lethal kind of way. Short, sweet and deadly.

If I had a personal dog to kick (sic) it would be to require ALL taxes collected through tobacco sales go to medical bills and research.

I remember mentioning some rules to know you are entering an civilized democratic uncensored place/bar/store/blog/forum/pool/etc. One was to look for cuss words which is a good sign that nobody will harass you for a slip of the tongue or a expletive rant or two. Two would be to find a few lewd photos of either gender and maybe an explicit one or two also. Adding a new third one will be if the commissary displays cigarettes.

Reactionary:

Anon had a good comment about how we make such a fuss about things like cigarettes and not blow a valve over CISPA and negotiations done in secrecy. (and all the rest of the rat infested bureaucracy)

It will hopefully be soon that we all wake up from our individual dreams and realize the everyone exists together in a shared risk environment and only by accepting each other that can we get along.

What ratio are you willing to allow? Average world lock up ratio is ~2% (to total population). The US currently ~5% which is a huge drain on the economy. Allowing religious puritans to make law is expensive.

NullOp says:

Bloomburg

Rich idiots are elected and continue to be elected because they can afford to get elected. Also, riches make most people believe they are smarter than everyone else. Few realize they rode to riches on the backs of other peoples hard work. They get that “starry eyed” look and think “I was born to be rich. God intended this.” Stop voting for rich people!

Anonymous Coward says:

While some may see it as a conflicting view, I believe in radical individual freedom and strong corporate regulation. See for the most part individual action has little impact on society at large.

Advertising does have a significant impact on the impressionable masses, and I am ok with regulating that while still allowing individuals to smoke. As an ex smoker in eastern Canada, i’ve lived the hidden smokes thing and it’s not a big deal. I’ve worked a gas station, most smokers buy the same brand every time so they aren’t even affected.

Dan Mclaren (user link) says:

Can e-cigarettes substitute Tobacco?

I am a smoker. I am planning to leave it. Where shall I start from? Some of my friends suggested me to start e-cigarettes. Their logic is, since it’s not tobacco, it will not harm my body. And by turn, hopefully one day I shall be able to leave smoking totally. Is it correct?
http://www.youtube.com/watch?v=Y5qdO20yjjY

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