Opinion

Knowing when to butt out

You’d think state attorneys general would know what’s legal. But 25 of them, including New York’s Eric Schneiderman, are asking five big retailers to pull tobacco products from stores with pharmacies — even though there’s no law against selling them.

Under both federal and state law, retailers from Rite Aid and Walmart to Kroger and Walgreens have every right to sell cigarettes. Last month, CVS Caremark announced it would no longer do so, but it acted voluntarily.
So by what right do these AGs tell a merchant to pull a legal product from his store’s shelves?

Yes, we know smoking can lead to cancer. But cigarette buyers know that, too — and they buy cigs anyway. Meanwhile, how healthy is it for businesses to have their states’ top lawyers “urging” them to stop selling a legal product, with an implicit threat of litigation if they decline?

It’s not just the attorneys general. Gov. Cuomo recently announced his own new anti-smoking campaign. It’s a textbook case of how government spending gets so, uh, puffed up.

Here’s how Cuomo’s press release describes the initiative: “The State Health Department (DOH) plans to develop a statewide network of contractors, who will combine community engagement efforts with youth advocacy . . . [and] engage a core group of youths aged 13-18 in action-oriented activities and teach them the leadership skills needed to engage in policy-related tobacco control work . . . ”

In plain English, it’s a $9.4 million program to discourage smoking. Anti-cigarette warriors will lobby apartment buildings to ban smokes and urge film companies to exclude them from teen-oriented movies. Like the AGs, they’ll urge stores not to sell tobacco. And they’ll work for new local and state restrictions on marketing and sales.

Yes, the $9.4 million for Cuomo’s campaign is peanuts when set against the state’s $137 billion budget. And state AGs have been going after tobacco for a long time. The question is: At what point do the campaigns and the litigation they encourage stop?

Judge Robert Bork said it best more than a decade ago: If politicians want to stop smoking, they should persuade the public to pass laws banning it. Instead they opt to use litigation “to bludgeon private firms in order to accomplish a prohibition that government could not muster the political support to legislate.”