Nonsmoking New York?

May 23, 2005 | by Joshua Brustein

Standing outside the cafe he owns in Astoria, Kosta Litzeris smokes a Salem cigarette as he greets a stream of regular customers with kisses on the cheek and pleasantries in Greek. Some customers, once they move through the door and settle in for ouzo or espresso, light up their own cigarettes, despite city and state laws forbidding it.

Litzeris has accepted that $1,000 fines are a regular cost of doing his brand of business. According to the city's Department of Health and Mental Hyigiene, Litzeris' establishment, CafĂ© Kolonaki, is one of the die-hard resisters of New York's two-year old smoking ban. It recently included the cafĂ© among nine restaurants and bars that "willfully and continuously violate" the smoking ban.

But Litzeris says pressure from the city has made it clear that the time has come to change his ways.

"We're trying to push [the smokers] outside now, because the weather is good," he said. "We're trying to take it on slowly."

In the past few years, New York has become a far less friendly place for smokers. Cigarettes cost about $3 more in New York City than the national average, thanks to heavy state and local taxes, and there are far fewer places to light up thanks to state and local bans on smoking in workplaces. The city and state have also been focusing increasingly on programs to help smokers quit. As a result, say city and state officials, fewer New Yorkers smoke, and New York has served as a model for other places wanting to take similar antismoking actions. Antismoking advocates see this as part of a sweeping nationwide, and even international, trend that goes beyond government initiatives.

"A major social change has been underway for a long time," said Russell Sciandra of the Center for a Tobacco Free New York. "The enactment of [the smoking ban] was a landmark in that social change, but it was happening anyway without legislative action."

But recent studies shows that New York is failing to collect its taxes, even as the smoking ban seems to have taken a strong hold. Increasingly restrictive legislation is also being considered: some state lawmakers want to raise the smoking age to 19, while starting last week, 18 year olds in Suffolk county are no longer able to buy cigarettes legally.

As they work on those policies already in place, even some antismoking advocates have begun to wonder if New York's anti-smoking fervor is headed in the wrong direction.

TAXES AND BANS: NEW YORK'S ANTISMOKING LEGISLATION

In 2002, New York City imposed a tax of $1.42 on cigarettes -- adding to a similar state tax -- and banned smoking in all workplaces, most notably bars, nightclubs and restaurants. Suddenly, New York City had the most expensive cigarettes in the country at about $7 a pack, and the country's strongest ban on smoking in public places. Statewide, cigarettes cost about $6 a pack, as opposed to about $4 for the nation as a whole.

The effect, officials say, has been a drop in the number of smokers. Mayor Bloomberg recently claimed that there are 130,000 fewer smokers in the city than there were in 2002, while an independent assessment (in pdf format) of New York State's antismoking efforts show that cigarette sales in the state are dropping faster than they are in the country as a whole.

Can New York Collect The Tobacco Tax?

The tobacco tax was described as a way to discourage people from smoking, rather than as a way to raise money. Bloomberg has said that he would prefer that the city tax be so high that it adds no revenue to the city's coffers. Both city and state taxes are generally given a lot of credit in driving down the number of smokers. Heavy taxation of tobacco, say antismoking advocates, is particularly effective in discouraging young people from smoking because they are less affluent and less addicted than adult smokers.

But those who have analyzed the numbers measuring the tax's success say that may be deceptive, because the high tax has simply sent many smokers to the black market.

In a recent analysis Andrew Hyland, who studies health policy at Roswell Park Cancer Institute, claims that smoking rates have not dropped as quickly as one would expect considering the price increase. In addition, his analysis shows, New York State is losing between $470 million and $635 million annually in tobacco taxes.

"I think that one of the primary reasons for that is that smokers have switched their purchasing patterns," said Hyland.

Plenty of places remain where New Yorkers can buy tax-free cigarettes. According to the Bureau of Alcohol, Tobacco and Firearms, 45 percent of New York State residents "sometimes" or "always" bought tax free cigarettes in 2003 and 2004, either by traveling to American Indian reservations or other states, or by buying cigarettes over the phone or online.

Thomas Frieden, the city's health commissioner, said in a recent interview that for the city's antismoking policies to truly be effective, state and federal enforcement efforts are key.

The state has taken several steps. Governor George Pataki recently signed into law a bill that would stop non-Indians from buying tax-free cigarettes on American Indian reservations. New York State has been failing to pursue this uncollected revenue, something which Hyland says costs it up to $300 million annually.

The state attorney general's office and the federal Bureau of Alcohol, Tobacco and Firearms also came to an agreement with credit card companies in March to stem Internet sales. Such sales have long been illegal in New York because it is impossible to verify a consumer's age online with any degree of reliability. Because credit card companies generally have policies that forbid cardholders from using their cards for illegal purposes, the companies agreed to stop allowing their cards to be used for online cigarette purchases at all.

Advocates are waiting to see how well such measures are implemented before counting them as a victory. The state attorney general's office says that it has anecdotal evidence that online tobacco retailers -- who it sees as criminals -- have been harmed by its agreement with the credit card companies.

But other illicit online industries, such as gambling, have found ways around similar restrictions in the past. Both advocates and officials are convinced that online tobacco retailers will find such a way to adapt to this measure as well.

Have Fears About The Smoking Ban Come True?

Banning smoking in bars and restaurants has arguably been the most controversial thing that Bloomberg has done in his four years as mayor. Signs can still be seen near outdoor ashtrays outside of Manhattan bars showing the mayor with his pants down, urging him to "Butt Out," and it is not difficult to get those who object to the idea of a ban to explain their reasoning at great length. But despite some persistently loud opposition, implementation of the smoking ban has presented less serious problems than implementation of the tax.

The ban was originally envisioned as a workers' safety issue. By having to inhale second hand smoke, proponents of the law argued, bartenders, waitresses and others were being forced to work in unreasonably dangerous conditions. Opponents said they objected in principle to such "government nannyism", that bargoers would wreak noisy havoc on city streets once forced out of doors, or that smokers would feel so shunned by the law that they would simply refuse to patronize bars and restaurants.

City and state officials say that the past two years have vindicated those who supported the law. A year after the ban went into effect, the city said that the level of cotinine, a byproduct of nicotine, had dropped 85 percent in nonsmoking workers at bars and restaurants, a sign that it took to indicate success in its primary goal.

Further, both city and state studies show there has been no nightlife crash. The state's Department of Taxation and Finance published a report last month that analyzed tax revenues, showing that business suffered for about six months after the ban, but then picked back up. Bars did the worst -- their business was six percent lower in the first three months after the ban compared to the same period one year earlier. The next year, however, business had crept back up five percent, still slightly lower than it was before the ban in 2002, but on the upswing.

Neither the state nor those who remain opposed to the ban believe such broad statistics tell the whole story, because they do not take into account factors like the improving economy or changes in state taxes.

Some opponents of the ban, who admit that the restaurant and bar industry as a whole may not have suffered, still argue that certain businesses have been hurt badly nonetheless. One Web site has a list of bars and restaurants that claim to have suffered from the ban, including a dozen establishments that have supposedly gone out of business at least in part because of it. Litzeris claims that CafĂ© Kolonaki didn't allow smoking for the first month of the ban, but suffered from such a dramatic drop in business that he had to change tact. He is gloomy about being forced to comply with the law he has flouted for the last two years.

"It will shut us down," he said.

Charles Hunt, executive director of the New York City chapter of the New York State Restaurant Owners Association, questions whether businesses that go out of business can reasonably blame the ban, but he does believe that a certain type of business has been harmed.

"The neighborhood tavern where they open the doors at eight in the morning and sixteen retired guys sit around smoking and played cards - or did. These are the places that got hurt," he said.

Hunt's group opposed the city ban, but he is not the ban's only political opponent who said that he personally enjoys the lack of smoke when he goes out.

Meanwhile, antismoking advocates -- Mayor Bloomberg included -- point out that New York's positive experience is spreading momentum for bans in other places. Since New York City and New York State passed bans on smoking, the pace at which other areas passed bans increased dramatically. In 2004, 69 cities implemented smoking bans, compared to 34 in 2002, the year before New York's bans took effect. Ten states and several countries including Italy and Ireland have decided to implement bans of some sort, and over 100 million Americans now live in places with smoking bans (in pdf format), according to the American Nonsmokers' Rights Foundation.

While it is difficult to credit New York for directly inspiring any of these laws, the health department says it has been fielding a stream of inquiries from other jurisdictions interested in implementing their own bans. Even detractors of the ban agree that its effect has been profound.

"I knew that if New York City went, the rest of the country would go," said Audrey Silk, the founder of New York City Citizens Lobbying Against Smoker Harassment, a group opposing smoking bans and increased tobacco taxes. "Not to be snobby New Yorkers, but we're trend setters: 'If New York can do it, we can do it.' And we saw that happen immediately."

LOOKING AHEAD IN A CHANGED ATMOSPHERE

Advocates still find plenty of shortcomings in New York's tobacco control efforts. The billion dollars coming in annually from the tobacco tax and the hundreds of millions that the state receives from a nationwide legal settlement against tobacco companies do not translate into more money for such efforts. The state currently spends $40 million a year on tobacco control, less than half of the Centers for Disease Control's recommended level. The tobacco companies spend 200 times that amount promoting its products in New York State annually, according to the American Lung Association of the City of New York.

But Blair Horner of New York Public Interest Group believes that the tobacco tax and the smoking ban have caused a significant political shift, weakening the tobacco companies' traditionally powerful influence on New York State policymakers.

According to Horner, this trend actually started in 1999 when a scandal broke out over Philip Morris (now Altria) illegally giving gifts to state legislator. (Horner detailed the scandal in an online book). The scandal led legislators to prove their good intentions towards tobacco control measures according to Horner. "Once lawmakers got used to passing pro-health measures -- or anti-tobacco measures depending on how you look at it -- it seemed to create its own momentum," he said.

There is evidence of the anti-tobacco momentum in New York City and State. The city is in its third year of an expanding program to give away free nicotine patches, with Pfizer, a company that manufactures the patches, donating millions of dollars worth of its product to the city. New York State's average annual tobacco control budget this decade is ten times higher than it was in the 1990s. It is the only state in the country to have legislation mandating that efforts be taken to manufacture cigarettes that are less likely to start fires.

Also, within the last month there has been movement in Albany to raise the smoking age to 19, a measures that Long Island's Suffolk County has already adopted on the local level.

The prospect of raising the smoking age has left some antismoking advocates feeling that their regular allies are overreaching. Smoking is, after all, legal, and 18 year olds are adults, said Horner, adding that this particular measure has not been effective in other states that have implemented it. Other antismoking advocates have said that even if they do agree with raising the smoking age, it should take a secondary role to other efforts like antismoking advertisments; health commissioner Frieden says he has no opinion on the subject.

For pro-smoking activist Silk, the movement to raise the smoking age is just another sign that legal prudishness is spreading. Junk food and other unhealthy behaviors, she says, may be next.

So while the atmosphere is distinctly hostile to her views at the current moment, Silk holds out hope that the antismoking trend will not always be in vogue.

"Alcohol prohibition lasted 13 years and there was a constitutional amendment, but it was overturned eventually," she said. "It's fashionable now to beat up on smokers, but liberty could be fashionable again ten or fifteen years from now."

The New York Libertarian Party has nominated Silk to run for mayor, and she says that her candidacy will be a way to voice the pro-smoking perspective. She does admit that her campaign is going slowly, though. The reason, says Silk, is that she refuses to go to Libertarian party meetings because they make her go outside to smoke.