From the category archives:

Nanny State

Nick Hogan walks free

by Jacob Grier on March 12, 2010

Nick Hogan, the British pub manager who lost his job and was sentenced to prison for six months after failing to pay £10,000 in fines for violating the smoking ban, has been freed thanks to voluntary contributions gathered online:

Speaking outside the prison, Hogan said: ”I’m devastated to be sent to jail. The smoking ban has cost me my pub, my job and my liberty.

”I’d like to thank everyone who donated money to get me out of jail, and all the well-wishers who sent me cards and letters while I was behind bars. I can’t thank them enough.

”It’s wonderful to know that so many people feel as strongly as I do about the smoking ban and its impact on ordinary working people.”

Blogger Anna Raccoon said: ”Nick Hogan is free because ordinary, hard-working members of the public, smokers and non-smokers alike, dug deep in their pockets to raise the money to return this man to his wife and home.

”The fact that so many people responded is a powerful message from the voting public that politicians would be well advised to heed.”

Congratulations to Hogan, and hopefully the publicity from this case will help raise the profile of opposition to smoking bans.

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The Washington Post reports that DC city councilman Jack Evans has succeeded in obtaining a waiver from the District’s smoking ban for two groups he personally favors:

Jack Evans (D-Ward 2) has asked his council colleagues to keep tradition alive for the all-male Society of the Friendly Sons of St. Patrick and another organization, Fight for Children, which hosts an annual smoke-filled professional boxing fundraiser.

Evans, who is a member of the Irish organization, said the measure was narrowly crafted, making an exception for only two nights a year and protecting workers by allowing venue employees to opt out of working the events.

But the bill has proponents of the District’s 2006 workplace smoking ban in a huff.

Angela Bradbery, co-founder of Smokefree DC, urged Mayor Adrian M. Fenty (D) in a letter Monday to veto the legislation that she said would force workers to choose between their health and a paycheck; open the door for other organizations to request exemptions; and send a message that “it’s okay to break the law if you’re on the council or a buddy of a council member.” [...]

Despite opposition from the smoke-free camp, he succeeded last week in passing a one-year waiver on a 10 to 3 vote. The bill initially failed to get the necessary nine votes, but Yvette Alexander (D-Ward 7) and Marion Barry (D-Ward 8 ) switched positions on a second try.

It’s a rare day that I agree with groups like Smokefree DC, but they’re right to oppose the exemptions. Jack Evans attempted to pass one for the Sons of St. Patrick last year as well, at which time I wrote:

Evans has discovered the pain of having one’s treasured tradition banned by a bunch of meddling bureaucrats. I’d be sympathetic if not for the fact that Evans is one of those meddling bureaucrats. If he doesn’t like the law, he should introduce changes that open up smoking venues to everyone, not just to clubs that happen to have a city councilman in their membership.

In 2005, Evans voted for the DC smoking ban that took away the rights of business owners, employees, and patrons to determine tobacco policies by voluntary exchange.

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In the past year alarmist studies about “thirdhand smoke,” the particles left behind from tobacco combustion, have proliferated. There’s no evidence such residuals are actually causing cancer but that hasn’t stopped anti-smoking activists and journalists from running with the story. Michael Siegel has recently spotted a couple ways this research has been abused to discriminate against smokers. First there’s the “sniff test” policy now in place at Kimball Physics, a technology company in New Hampshire:

No tobacco-residuals emitting person, article of clothing, or other object is allowed inside any Kimball Physics building. This restriction also applies to anyone or anything emitting characteristic tobacco odors. Anyone who has used a tobacco product within the previous two hours is automatically to be turned away, unless measures have been taken such that residuals-sensitive persons are not exposed. The determining factor, regarding allowable residuals levels and/or exposure durations, is whether anyone is either significantly bothered, or even worse, made ill.

This is an absurd policy and it should come as no surprise that the person who created it is a board member of the extremist anti-tobacco group Action on Smoking and Health. Nonetheless it creates a precedent that less fanatical employers might decide to follow.

Speaking of ASH, Siegel also catches them advocating bans on smokers adopting or fostering children. From ASH’s press release:

Midlothian Council in the U.K. is just the latest entity to prohibit smokers from adopting or providing foster care for children, a step Portsmouth, Hants, in England and other jurisdictions took several years ago, says public interest law professor John Banzhaf, Executive Director of Action on Smoking and Health (ASH). Anyone wanting to care for a child under the age of five will be required not to have smoked for at least six months, even if they only smoke outdoors. [...]

… thirdhand tobacco smoke, what the New York Times called “the invisible yet toxic brew of gases and particles clinging to smokers’ hair and clothing,” has just been reported by researchers at Lawrence Berkeley Laboratory to combine with a common indoor air pollutant to form very potent cancer causing substances. This, the researchers say, places children at serious risk, even if parents smoke only outside the home, because they carry the residues inside with them.

I criticized that Times article when it came out last year for taking such a credulous approach to the “thirdhand smoke” study it covered, buying into the researchers’ hype despite the fact that the study consisted of nothing but a phone survey. At the time the author couldn’t have known that her words and the reputation of the paper would be used to deny children foster care, but that’s how low the anti-smoking movement has sunk. Reporters need to realize that today’s anti-tobacco researchers should be treated with just as much skepticism as the Big Tobacco-funded scientists of the pre-Master Settlement days.

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Lately I’ve been doing a lot of reading related to tobacco policy in preparation for some upcoming writing projects…

Velvet Glove, Iron Fist: A History of Anti-Smoking, Christopher Snowdon — I link to Chris’ blog of the same name frequently here. He’s one of the best critics of paternalist excesses writing today and one of the few journalists exposing the shoddy science put out by many anti-tobacco researchers. His book-length review of the anti-smoking movement goes back all the way to Columbus and is essential for putting the current movement in historical context. His coverage of secondhand smoke and bibliography of ETS papers is also very valuable. Highly recommended and lively written.

Ashes to Ashes: America’s Hundred-Year Cigarette War, the Public Health, and the Unabashed Triumph of Philip Morris, Richard Kluger — A 700+ page doorstop of a book chronicling the history of the American cigarette business. Though a little dated by its publication prior to the Master Settlement Agreement, the book presents a remarkably balanced view of the players involved. Though by no means a tobacco apologist, Kluger manages to portray Big Tobacco executives with enough sympathy to make them human and sometimes admirable businessmen working in an embattled industry. Reformers, too, are shown in a balanced light. (Only John Banzhaf appears completely without redeeming qualities; he manages to come off as an ass no matter who is profiling him.)

Kluger fairly describes the progress of science, from when tobacco companies could legitimately claim skepticism of cigarettes’ health effects to when their denials became absurd. Similar scrutiny is given to the overblown claims of secondhand smoke by their opposition. In the final pages he even comes close to predicting the MSA, though in the details he fails to guess how the tobacco companies would use it to raise prices and create a legally protected cartel.

Addiction: A Disorder of Choice, Gene M. Heyman — The title is a bit off-putting, suggesting that the book accuses addicts of choosing to have their disorder. That’s inaccurate. Heyman, a lecturer in psychology at Harvard Medical School, is actually offering an economic model of addiction, explaining substance abuse in terms of individual decisions and the way they can be distorted by addictive substances. Specifically, addictive substances tend to offer immediate benefits and long-term costs (exacerbated by withdrawal symptoms), to induce intoxication, and to undermine the value of more productive activities, all making habitual use hard to break.

Heyman is primarily concerned with illegal drugs but cigarettes do get a mention as a partial exception to the pattern. They don’t intoxicate the user and don’t interfere too much with other valuable activities, making the choice to smoke in any given situation very easy. This suggests that a useful approach to treating cigarette addiction would be to develop safer products that fill the same niche. This perspective is of special interest now given the development of e-cigarettes and research suggesting that nicotine alone can only partially explain cigarette addiction.

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Writing in Slate today, Deborah Blum shines light on the little-known Prohibition horror in which the US government deliberately poisoned the nation’s industrial alcohol supplies:

Frustrated that people continued to consume so much alcohol even after it was banned, federal officials had decided to try a different kind of enforcement. They ordered the poisoning of industrial alcohols manufactured in the United States, products regularly stolen by bootleggers and resold as drinkable spirits. The idea was to scare people into giving up illicit drinking. Instead, by the time Prohibition ended in 1933, the federal poisoning program, by some estimates, had killed at least 10,000 people.

Read the whole thing here. Like Blum, this is an aspect of Prohibition I’d heard about but never read a full account of, so I’m grateful that she’s giving it the attention it deserves.

The wrong lesson to take from this is that we’re more enlightened now. Poisoning the alcohol supply was an egregious abuse, but it’s a small step from that to forcing terminally ill AIDS and cancer patients to give up the marijuana that suppresses their vomiting, to mention just one of the most tragic casualties in the War on Drugs. With prohibition of any kind, grotesque absolutism often leads the government to choose killing its citizens over letting them get high.

[Via Coldmud.]

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Though bans just get worse here in the US and UK, they’re still meeting resistance elsewhere. Bulgaria is having second thoughts:

Bulgaria’s ruling party has proposed watering down a new smoking ban in the country with the second highest percentage of smokers in the European Union.

The centre-right GERB party, which won general elections last July, said its proposed relaxation of a ban on smoking in all public places would avoid hurting the tourist industry during tough economic times. [...]

According to a draft submitted to parliament, restaurants and cafes smaller than 100 square metres (1,000 sq ft) in size will decide whether to allow smoking while larger establishments would be required to designate separate non-smoking halls.

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One more menu disclaimer

by Jacob Grier on February 16, 2010

It’s a safe bet that I won’t like any article that begins by praising bans on smoking and transfats, and Ming Tsai’s piece for The Atlantic on Massachusetts’ new allergy regulations doesn’t disappoint. The law starts with yet another requirement for restaurant menus:

First, there has to be a blurb on every menu that asks customers, “Before placing your order, please inform your server if a person in your party has a food allergy.” In addition to promoting safety, this only makes it easier for restaurants to service customers. We’d much rather know about allergies in advance. It becomes a service nightmare when you have to redo a whole meal.

Well, pardon my language here, but no shit. If you’re dangerously allergic to a food item you should tell your server this when you order. This statement doesn’t need to be mandated. Between this, the calorie labels, the admonition to consume no more than 2,000 calories per day, and the warnings about raw meat, fish, and eggs, one wonders what page space will be left for food by the time every health lobby gets their way.

At least this is mostly harmless. The other aspects of the measure might even do some good, adding basic allergy and cross-contamination education to the safety course some restaurant staffers must already take. And Tsai’s optional binder system for tracking allergens in a restaurant’s dishes is a positive contribution. But does the fight for greater allergy awareness deserve inclusion in this paragraph? You be the judge!

Everybody should have the right to be able to eat safely in any restaurant. Going back in history, it used to be that if you had a certain color of skin, you couldn’t go into certain restaurants, then it was if you were a handicapped person you couldn’t go in, and now if you have allergies, you can’t.

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“Regulation of the Day” is actually Ryan’s bag, but alcohol is mine so I’m stealing his title just this once. This regulation is from Alabama, where brewpubs (restaurants that serve beer they make themselves) face many onerous requirements, including these:

Alabama law allows for this special class of breweries, but the legal restrictions on opening and operating these businesses are enormous. This is a large reason why Alabama has only two operating brewpubs while the states surrounding us have dozens.

Let’s take a look at the restrictions on brewpubs in Alabama:

1. Must be located in an historic building
2. Must be located in a wet county that had a brewery prior to 1919
3. You can ONLY sell the beer you brew in the brewpub. You can’t sell to wholesalers or stores
4. Must have a restaurant which seats at least 80
5. Must not brew more than 10,000 barrels of beer annually

There’s no sensible justification for limiting brewpubs to historic buildings in the counties that happened to have breweries operating in 1919. It’s just a very strange law in a state that has a decidedly mixed view of alcohol.

Fortunately Free the Hops, recently successful in bringing higher alcohol beers to Alabama, is on the case pushing the Brewery Modernization Act to improve the state’s beer culture. Read all about it here.

[Via Tom Pearson, aka the Pint Pundit, who will hopefully resume blogging more after getting an enormous flood of two or three new readers from this link back.]

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Reuters reporter Maggie Fox buys into the thirdhand smoke scare:

Old tobacco smoke does more than simply make a room smell stale — it can leave cancer-causing toxins behind, U.S. researchers reported on Monday.

They found cancer-causing agents called tobacco-specific nitrosamines stick to a variety of surfaces, where they can get into dust or be picked up on the fingers. Children and infants are the most likely to pick them up, the team at Lawrence Berkeley National Laboratory in California reported.

“These findings raise concerns about exposures to the tobacco smoke residue that has been recently dubbed ‘third-hand smoke’,” the researchers wrote in the Proceedings of the National Academy of Sciences, available here.

Of course there are policy implications:

James Pankow, who also worked on the study, said it may raise questions about the safety of electronic cigarettes, or “e-cigarettes.” which produce a nicotine vapor but not smoke.

The researchers said regulators who have cracked down on second-hand smoke with smoking bans may decide to consider policies on third-hand smoke.

That nicotine works on surfaces in this way is interesting from an abstract, scientific point of view. What the article fails to mention is that there is essentially no evidence that anyone, anywhere, has ever suffered from exposure to so-called “thirdhand smoke.” The reason these carcinogens are so deadly to cigarette smokers is that smokers inhale them deeply through their mouths directly into sensitive lung tissues dozens of times per day. Exposure from surfaces or from dust inhalation through the nose is going to be far less substantial.

Nonetheless, you probably shouldn’t wrap your infant in smoky blankets. Fair enough. But spreading paranoia about thirdhand smoke has significant negative consequences. We’ve already seen employers discriminate against smokers using these fears as justification. And if this research is used to back legislation against e-cigarettes — devices that are unequivocally safer to smoke than actual tobacco — that will be a blow to public health.

Unfortunately journalists tend to be extremely credulous of any research that condemns tobacco and its related products. Last year The New York Times gave significant coverage to a thirdhand smoke study that consisted entirely of conducting a telephone poll of random people. Soon after Scientific American published an uncritical interview with the study’s author, Jonathan Winickoff, who said in an unmeasured words, “Smokers themselves are also contaminated…smokers actually emit toxins.”

If reporters are going to cover these sorts of stories, they owe it to readers to put the actual risks in proper perspective.

[Via Lene Johansen's Twitter feed.]

Update: Since writing this some debate has gone back and forth on Twitter among science writer Lene Johansen, Jeff Stier at the American Counsel on Science and Health, and Reuters health editor Ivan Oransky. Since Twitter isn’t the most conducive format for extended comments I thought I’d clarify here why I object to the article.

The problem is not that this is junk science or that it shouldn’t be covered. The problem is that people reading the article aren’t interested in the abstract question of how nicotine reacts with other chemicals on a household surface. What they want to know is whether tobacco residue presents a real health hazard to them and whether there are policy implications stemming from the research.

A layman reading about all the carcinogens mentioned in the article would conclude that the health hazard is real. Given the dosages involved this belief is likely false and is certainly unproven. As science journalism, the article fails to give readers the context they need to make sense of the research.

As for policy, the article itself notes that the research is bound up with political goals. The findings may be used to justify such measures as employment discrimination, bans on e-cigarettes, and further restrictions on smokers. This makes providing the proper context doubly important. There are plenty of reputable skeptics of these measures and at the very least the article could have quoted one.

Update 2/9/10: Chris Snowdon’s lengthy debunking of thirdhand smoke fears from last year is worth rereading.

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The NYT explains the recent egg controversy at the excellent Pegu Club:

Nevertheless, on that fateful evening, an inspector from the New York City Department of Health cited Pegu Club, at 77 West Houston Street in SoHo, for serving the MarTEAni without telling the customer who ordered it that it contained raw egg. The notice said it was a serious infraction that required a court appearance.

Raw eggs are among the ingredients most fervently embraced by cocktail revivalists who have sought out new techniques and circled back to classic recipes. And the MarTEAni is a signature drink at a bar that is seen as a paragon of the new cocktailians.

Serving raw eggs in drinks is, thankfully, not illegal. You just have to tell customers that the drink contains them. A simple note on the menu serves as adequate warning. Unless a customer orders without looking at the menu:

The inspector reported that the customer who asked for the MarTEAni didn’t order it from the menu and that the bartender didn’t mention raw eggs were in it. But the bartender on the night of the inspection, Kenta Goto, said that no MarTEAnis were served while the inspector was present. The inspector who signed the violation sheet, Nathalie Louissaint, could not be reached for comment.

This puts a ridiculous burden on bartenders. How is one supposed to know if a customer has looked at the menu? If a regular comes in and orders the drink, must one warn him of the eggs every time in case a city inspector is watching? Rather than take these chances Pegu Club has taken the drink off the list, a loss to craft cocktail drinkers in the city.

As with many food dishes, raw eggs play an important role in giving cocktails texture. Sensitive buyers should beware and avoid egg drinks if they’re worried, just as they would avoid housemade mayonnaise or other products. For the rest of us a simple menu disclaimer should suffice.

If you’d like to try the drink in question, the recipe is here. Be sure to warn yourself about the raw egg before proceeding.

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Costs of calorie counts

by Jacob Grier on February 1, 2010

A reader responds to my Washington Examiner column about mandated calorie labeling:

Jacob Grier’s concerns hardly amount to a hill of beans. What, precisely, is so prohibitively expensive about publishing simple calorie counts for the ingredients that restaurants use all of the time? (I would like to see fat and carb grams, too, but I suppose that’s too much to ask.) Restaurants spend far more money on less important things, like interior design and mints.

The cost of accurately measuring the number of calories can be hundreds of dollars per dish. For a large chain this isn’t a great burden, but for smaller chains this is significant. Recall the local NY pizza chain that spent $10,000 testing its pizzas just to get measurements of dubious precision. Add into this the costs of creating new menus and menu boards at all locations.

The costs will be high for vending machine operators as well. From McClatchy:

At the National Automatic Merchandising Association, which represents the vending industry, Ned Monroe, senior vice president for government affairs, said that while “we’re not opposed to calorie disclosure, we do have other concerns.”

Among them are potential legal problems _for instance, what if someone attached the wrong label to a vending machine product? He also called the provisions costly.

“The vending industry is under severe economic strain,” he said, and the one-year cost to achieve labeling is an estimated $56.4 million. About 7.5 million vending machines would need product labels, a task that’s generally done by a senior route driver.

Will the gains be worth these expenditures? Cost-benefit analysis is not a strength of calorie labeling studies, but I am skeptical given how ineffective labeling appears to be so far.

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Sticking it to the stogies

by Jacob Grier on January 29, 2010

Following the lead of New York’s David Paterson, Massachusetts Governor Deval Patrick has proposed new taxes on tobacco, candy, and soft drinks. Cigars may be hit especially hard:

It would also increase taxes on smokeless tobacco and cigars, generating $15 million for the state. (Administration officials said a $2 cigar that now costs $2.76 would jump to $4.46.)

As cigarette taxes hit their maximum and states lose revenue to SCHIP, they’re going to turn to other forms of tobacco. This will leave cigars especially vulnerable. They can’t be smoked quickly like cigarettes, making them much harder to consume under smoking bans. Nor do they enjoy the cartel protections of the Master Settlement Agreement.

Note also that Boston is scheduled to force its six remaining cigar bars out of business.

[Via the Stogie Guys.]

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I’m in the Washington Examiner today arguing against taking calorie labeling laws national:

Among the many proposals under heated debate between the House and Senate health care bills is one provision both sides will likely support: a national law mandating calorie labels on chain restaurant menus and in vending machines.

Advocates have described the measure as a symbolically important step against obesity and have spun recent research in their favor, but a closer look reveals a weak case for labeling.

Read the whole thing here.

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This was only a matter of time:

On January 13, 2010, Rep. Steve Cohen (D-TN) and co-sponsor Rep. Lloyd Doggett (D-TX) introduced bill H.R. 4439 to congress to raise the federal pipe tobacco tax from $2.8311US per pound to $24.78US per pound and “To amend the Internal Revenue Code of 1986 to impose the same rate of tax on pipe tobacco as is imposed on roll-your-own tobacco.”[...]

If this bill passes, the average increase to your favorite blends will be about:
$2.43US per 50gr
$2.74US per 2oz
$4.86US per 100gr
$10.98US per 8oz
$21.95US per 16oz
$24.15US per 500gr
These prices would be added onto the price you are currently paying for those amounts of pipe tobacco. So with the average price of 100gr tin McClelland Frog Morton being about $13.20US, the new price would be $18.06US! That is outrageous!

The motivation for the tax increase is to stop producers of roll-your-own tobacco (RYO) from repackaging their product as pipe tobacco, which is taxed at a lower rate. The two products are very similar and in the past were taxed at the same rate of $1.10 per pound. SCHIP created a huge disparity by raising the tax on pipe tobacco to $2.81 and the tax on RYO to an astronomical $24.62. RYO producers predictably reclassified their products just to keep their companies alive.

The congressmen introducing this bill are correct that the two types of tobacco should be taxed equally, but the solution is to lower the tax on RYO, not to tax both products at the insane new rate.

[Hat tip to the ever-alert Jan!]

Previously:
SCHIP tax avoision
Children, say “thank you for smoking”

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A victory for food freedom

by Jacob Grier on January 22, 2010

Some great news yesterday for Michael Schmidt, an Ontario raw milk dairy farmer who risked jail time challenging Canadian regulators. In a remarkable ruling, the court decided that his program by which customers by shares in cow ownership in exchange for the milk they produce is a legitimate enterprise not covered by existing law. In broader context, it seems an encouraging precedent for allowing consumers to opt out of restrictive safety regulations:

Although it is not illegal to consume raw milk in Canada, selling or distributing violates laws that require pasteurization of most commercial milk products.

The Schmidt case, which began when his farm was raided in 2006, has captivated food-rights academics and advocates in Canada, and around the world, who argue the court’s decision will ripple well beyond the raw-milk community. At its crux, they argue, the case is really about the extent to which consumers should be free to buy foods, however rarefied, and whether constitutional rights stretch as far as the grocery basket, farmer’s market and the people who own shares in – but do not live on – food-producing farms.

[Thanks to Kimberly Hartke for the tip. My article on raw milk for Reason is here, and a visit to a Virginia cow share program here.]

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The Stogie Guys have the scoop on a private cigar club opening soon in Alexandria, VA, in the wake of the state’s smoking ban:

[...] CXIII Rex will have all the amenities of traditional cigar lounges, including a well-stocked walk-in humidor, a selection of top libations and small-batch wines, ample seating, wireless internet, private humidor lockers, and the like. But this club, slated to open in late March, will also feature more luxurious accommodations. Included will be a state-of-the-art air ventilation system, an access-only elevator, an all-female wait staff, and a private cigar blend crafted by none other than Rocky Patel. [...]

Individual memberships, as you might expect from a club of this caliber, are not inexpensive. The cost is $5,000 to join CXIII Rex and $100 each month thereafter. Franco and Noe tell me that 200 slots are available, with 160 already claimed for. If, like me, this is above your price range, or if you reside outside the Washington metro area, you still have to appreciate the high attention to detail and passion that’s going in to creating a premier cigar lounge. I haven’t seen anything like it before.

Some of this sounds great, some of it a little gauche. (Is touting an all-female wait staff really necessary? It doesn’t exactly challenge the stereotype of the rich, male, self-important cigar smoker.) But what’s significant is that this business can exist at all. The Virginia smoking ban, as misguided as it is, at least allows for a market response. Dedicated lounges where smokers can congregate without offending others are free to open. This is in stark contrast to states like Oregon where the right to allow smoking in one’s bar is limited only to the favored few who happened to do so when a ban was passed.

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Marion Nestle loves being called a nanny statist:

I love nanny-state accusations. Whenever I hear them, I know either that food industry self-interest is involved or that the accuser really doesn’t understand that our food system already is government-regulated as can be. These kinds of actions are just tweaking of existing policy, in this case to promote better health.

This is wrong on both counts. It’s extremely disingenuous to suggest that anyone against new regulations is in bed with the food industry. In many cases it’s just the opposite. The fight over calorie labeling in restaurants is a good example. Large chains were initially against it but now favor having a national standard over dealing with a mix of local statutes. As big businesses they can absorb the fixed costs of regulation more easily than regional chains. Collaboration between big government and big business at the expense of smaller firms is hardly unusual when it comes to food regulation (see NAIS for another instance of this).

Critics of the nanny state aren’t ignorant of the fact that our food supply is already heavily regulated and most would like to see many of these rules disappear. They know there’s a difference between regulations intended to prevent unequivocal harms (no one wants to get salmonella) and regulations intended to eliminate choice on matters for which people may value the trade-offs differently (eating foods cooked in trans fats, consuming more or less salt, patronizing new fast food restaurants rather than banning them). The fact that Nestle appears incapable of recognizing this difference is one reason libertarians are distrustful of giving technocrats like herself control over food policy.

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