HOLY SMOKE! And Other Transgressions

By Diane M. Grassi

We can only hope as products of generations that have preceded us, that we have become wiser on issues of self-governance and that our dependency on the courts should always be used with discretion. But this week the precedent setting U.S. Court of Appeals for the 2nd Circuit in the state of New York has reminded us that this is certainly not the case by allowing the re-opening of the federal class action lawsuit initially brought by several parents on behalf their underage children in New York City in 2003 against fast-food giant, McDonald’s. The original suit stated that McDonald’s and the sale of its food products lead to obesity and the onset of secondary health problems as a direct result of having consumed such food products. This time around however, the newly acquired crafty legal counsel appealed the case by restating that McDonald’s illegally practiced deceptive advertising, by not disclosing their methods of food processing or the ingredients of their products and the implication that their food is nutritious.

Now we all know that no matter how this case is couched for the sake of legal technicality it still represents, as originally ruled, a frivolous suit. Unfortunately lawyers bringing these such suits have taken the place of what was once known as personal responsibility and reasonableness. And these types of lawsuits have steadily resonated through the inner workings of federal and state governments throughout the country effecting both the public and private sectors. So as much as we would like to dismiss them and roll our eyes, we do not have that luxury.

However there are two conflicting messages being relayed. The first, for example, that we are not discerning enough to know that overeating and lack of exercise combined with consumption of high fat and empty-calorie laden foods will eventually lead to obesity. And secondly, that for most of us on both sides of the aisle, while we scream that we want less government and the government out of our homes, we are insinuating that we need the law’s steady hand to help keep our personal habits in check by initiating such suits and also through our lack of public outcry against them. At the very least this is distressing. For every frivolous lawsuit filed, we feel the long-term repercussions of these suits. Bearing witness to the continuing onslaught of newly proposed laws and legislative bills we seemingly no longer know how to take care of ourselves or how to impart common sense.

Awards in the billions of dollars against tobacco companies in the 1990’s then brought by plaintiffs who claimed they did not expect to develop lung cancer or emphysema from their smoking habits only led to aggressive cigarette taxes in California and New York, with each state now commanding about $7.00 for a pack. The lawsuit awards and tax revenues were also to be earmarked for healthcare programs for the respective states in which they were collected. Sadly, much like money collected by state lottery commissions for education, these monies are put into a general fund and largely are not earmarked as promised. (To fund healthcare from the proceeds from sale of cigarettes, whose government objective is to discourage such sale, is laughable enough.)

But it gets even better, as now employers have gotten even more aggressive with smoking policies regardless of existing state smoking laws. A Michigan healthcare company has fired four of its employees so far in 2005 for refusing to take a test to determine whether they smoke cigarettes. Weyco, Inc. of Lansing, Michigan, enacted a new policy on January 1, 2005, providing for workers to be fired if they smoke, even if the smoking takes place when off duty, after-hours or at home.

The founder of Weyco Inc. said the company does not want to pay the higher healthcare costs associated with smoking. And due to the absence of law in Michigan which does not prohibit smoking as a cause of termination, employees have no recourse. Each employee upon demand must comply with a breathalyzer test. So, should you go out to lunch and light up, if you come back and fail the test, your pink slip awaits you.

On January 25, 2005, the city of San Francisco’s Board of Supervisors approved an amended smoking law to prohibit smoking in all public parks, stadiums and beaches with the exception of privately owned golf courses. It is even more far reaching than the ban on smoking at beaches in the cities of Santa Monica and Beverly Hills, CA, as well as beaches in Florida and Delaware. Giving summonses for smoking to pay for city services apparently is lucrative enough to enact such legislation.

And lest we forget the federal government, this week in its inimitable wisdom in proposing more encroaching legislation, none other than Senator Dianne Feinstein (D-CA) along with members of the Senate Judiciary Committee, proposed a bill on January 26, 2005, to further restrict the sale of cold medication products containing the ingredient psuedoephedrine.

Psuedoephedrine, found in common cold products such as Sudafed, Tylenol Flu, NyQuill and Afrin, would require limiting sale to purchasing one box at a time, with no more than 64 tablets, within a designated time frame. (Currently some boxes of Sudafed come with a total of 96 tablets.) In addition, the term “over-the-counter” would no longer apply as these common cold formulas would only be allowed to be sold by licensed pharmacists and pharmacy technicians, behind the counter, accompanied by presentation of a photo ID and a signature, much as required when purchasing prescription medication.

The proposed bill, stemming from an Oklahoma state law, would be an effort to cut down on the production of methamphetamine, an illegally manufactured substance, predominant in the west and southwest in homemade labs. The cold pill sale panic started nearly 10 years ago, regarding methamphetamine manufacture, with many western states having already adopted the Oklahoma law which restricts the buyer to one box per purchase. Yet its effectiveness has yet to be established. The new bill which would create additional inconvenience and implied illicit purchases by law abiding citizens has not been weighed. It is one thing to limit the number of packages sold, but to require ID for another legal product sold to adults, is more continued erosion of what is left of our personal privacy and consumer rights.

And until cigarettes, cold pills and foods fraught with high fat and high calorie content become illegal, it is important that we keep a watchful eye on ever-intrusive laws which continue to limit our right of personal choice. The re-evaluation of sound drug law policies and more scrutiny paid to the illegal importation of drugs; amended insurance policies to perhaps charge a premium for smokers or obese patients; better FDA oversight of drugs which come to market concerning their levels of safety; and the reinstatement of physical education classes in all of our public school curriculums would better serve us.

Those attorneys and individuals bottling up the courts and the committees of Congress to retro-fit our laws for every individual circumstance which arises, predominantly by those who choose not to exercise personal responsibility and would rather have the public-at-large pay for their own indiscretions, should perhaps be charged for all court costs and administrative resources for bringing forth such specious claims, as common sense and appreciation of others’ rights is at an all time low.

And if you think that this is the end of it, the doughnut police are coming next!