Smoking as a Property Right

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This article is part of the Tobacco portal on Sourcewatch funded from 2006 - 2009 by the American Legacy Foundation.

Smoking as a Property Right

The argument has appeared, particularly where smoking bans are proposed or have passed, that smoking is a "property right."[1][2][3] The idea of opposing clean indoor air regulations by using the argument that smoking is a property right may have first emerged in a 1995 letter from Ian MacDonald (policy advisor of a group called "Defenders of Property Rights") to Craig Fuller, Senior Vice President of Corporate Affairs at Philip Morris (PM). MacDonald suggested that PM use the "property rights" argument as a strategy to deflect further regulation of the tobacco industry with regard to marketing to children. MacDonald wrote,

"[Philip Morrs'] initiative, Action Against Access, to restrict under-age smoking by itself is unlikely to placate the anti-smoking movement...If so, this could result in a demand for more active measures, confronting the company with having to work openly against its own market interests, and forcing it to give ground on a constitutional right--the right to own and use property."
MacDonald proposed that PM "Take the moral high ground by making property rights the issue."[4]

The next step in PM's application of the "property rights" strategy was to argue that smoking restrictions constitute a government "taking" of private property. This strategy emerged in a brief but telltale PM email from 1996 that shows PM parlayed the "property rights" argument into legislation to try and prevent further regulation of smoking statewide. PM's Colorado lobbyist, Pam Inmann, emailed PM executives in 1996 about a "takings" bill introduced in the Colorado legislature:

Tomorrow barb will fax you a cc [copy] of SB 69 [a private property "takings" bill]...I think this will work on smoking bans in the future... [5]

Property rights groups appear on a list of industry "coalition partners" in this 1995 document listing the industry's public issues "grassroots constituencies" [6]

In many places around the country where smoking restrictions have been proposed or enacted, "property rights" groups spring up to fight these public health measures.

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