Action on Smoking and Health A National Legal-Action Antismoking Organization Entirely Supported by Tax-Deductible Contributions    Search  | Info About  | ash.org| To Join |  Email Page

RCA Roundtable
5625 Arlington Avenue
Riverdale, New York 10471

R.C.A. ROUNDTABLE: PROPOSAL ON SMOKING
by,
Rabbi Jeffrey R. Woolf
Rabbi Reuven Bulka
Rabbi Saul J. Berman
Rabbi Daniel Landes

Summary:

1) Since it is an established fact that all tobacco smoke constitutes a
definite and immediate danger to one's health, such activity is in violation of the
Torah's injunction against harming oneself.
2) Since scientific research has shown passive smoking by those in the
presence of non-smokers to be equally dangerous, it constitutes a public danger
and assault (Habalah). Therefore smoking must be banned in all public arenas
such as synagogues, schools, mikva'ot and all public functions.
3) Those who choose to continue smoking rely on shomer peta'im hashem:
In light of contemporary medical knowledge, this idea no longer obtains.

I. Introduction

Over the course of the past twenty-five years, it has become increasingly clear that the smoking (or
ingesting) of tobacco, constitutes a serious, inevitable danger to the user. The ingesting of tobacco
smoke has been intrinsically linked to heart disease, stroke, lung cancer, pancreatic cancer, and
dozens of other fatal and potentially fatal illnesses.1
Indeed, at present, it is the overwhelming opinion of the medical research community, that tobacco
smoke in any amount will render immediate damage to the human physiology.2
Over the course of the past five years, it has also been conclusively demonstrated that non-smokers
who inhale the smoke of other people's cigarettes are at real and significant risk of contracting the
very same illnesses as the smokers themselves.3
In recognition of this fact, an increasingly large number of governments and government agencies
have banned smoking in the presence of or in proximity to non-smokers, out of concern for the
health rights of the latter. In light of this situation, it is both relevant and urgent that the halachic
dimensions of this question be reexamined.

II. Passive Smoke (ETS)
It is axiomatic according to Torah Law, that one individual is not allowed to harm another. This
point is discussed extensively in the Gemara 4 and summed up in the Shulchan Aruch as follows:5
It is forbidden for one man to strike his fellow, and if he does so, he violates a negative
commandment, as it is written, "Lest he add etc," 6 And if the Torah was strict with regard to the
striking of the wicked, a fortiori regarding the striking of the righteous, and he who raises his hand
to strike his fellow, even though he does not do so, he is deemed to be a wicked person.
In light of the above-cited scientific evidence, it is clear that the infliction of injury on another party,
by means of tobacco smoke, constitutes assault. Indeed, even prior to the publication of the lion's
share of the scientific evidence concerning "passive smoke" theate Rabbi Moshe Feinstein (o.b.m.)
asserted that people harmed by the smoke of others were empowered by Halakhah to sue for
damages. As he himself wrote:7
But the matter (i.e. the legal implications of "passive smoke") are far worse, since smokers actually
commit assault...And it is obvious that were the courts competent to adjudicate torts,8 they would
be empowered to enforce collection of their estimate of the suffering caused [by the smoke], and if
[the complainant] had become ill therefrom,he would be entitled to compensation of medical
expenses, even if he had not incurred direct damages due to absence from his employment.9
It might be objected, though, that such a conclusion is only germane when the damage done by ETS
is substantial enough to warrant suit for damages. This, however, can hardly be the case in a short
period of exposure to someone's smoke, on an ad hoc basis. Such a conclusion, however, cannot be
maintained. For independent of the possibility of incurring financial damages, assault constitutes
a forbidden action according to the Torah, irrespective of whether there is significant damage
inflicted or not.10 The point is summed up in the Shulkhan Arukh : 11
If he struck his fellow with a blow which inflicted damage less than the value of a penny, receives
stripes (malkot) [as punishment], since no monetary obligation is incurred thereby.
Since, as already noted, temporary exposure to ETS has immediate, deleterious effects on one's
health, it is clear that it is forbidden to allow smoking in the presence of non-smokers, even on a
short-term basis. What is more, in light of the immediate effects of ETS on the physiology of the
non-smoker, it seems clear that even if he or she is not immediately irritated thereby, that he may not
forgo his prerogative and allow another person to smoke (mehilah).12 This is due to the well-known
fact that an individual is not allowed to harm himself.13
Finally, the upshot of several key rulings in Halakhic literature, make it clear that preventing the
generation of ETS, and its attendant damage to the health of those who inhale it, is not simply the
responsibility of the smoker and the non-smoker, but rather that of the community generally, and
especially that of the court (Bet Din). For example, Rambam writes,14 that over and beyond the
obligation to erect a fence around one's roof (ma'akeh),15 the Sages forbade many things which are
injurious to one's health, "and anyone who violates them and says,"I will place myself in danger and
what business is it of other people [should I do so], "...one inflicts him with 'Stripes of
Rebelliousness' (Makkot Mardut)." Upon this passage the Aruch HaShulchan comments, that the
Rambam does not intend to imply that since the punishment is rabbinic in nature, that so is the crime.
"For certainly this involves the violation of a Torah prohibition, it is only that one cannot receives
normal stripes (malkot) for it, just as there are many Torah prohibitions for the violation of which
no malkot are administered."16 And the Yaffe LaLev 17 adds that not only is the crime of injuring
oneself punishable, this fact plainly establishes that it is the obligation of the court to ensure that
such behavior is not pursued.18
In light of the above, it is clear that rabbis and communities are obliged by Halakhah to ban smoking
at all functions and meeting, buildings and facilities under their jurisdiction, pursuant to the sacred
trust to secure the observance of Torah Law and to protect the physical and spiritual welfare of their
members.19

III. Active Smoking
Based upon the above presentation, it ought to be equally apparent that if ETS is forbidden according
to Halakhah, owing to its not only being a nuisance but actually constituting an immediate danger,
the same must be said a fortiori of active smoking.20 And, indeed, this is the published opinion of
both Rabbi Hayyim David HaLevi, the Sephardic Chief Rabbi of Tel Aviv,21 and of Rabbi Eliezer
Waldenberg,22 both of whom are outstanding contemporary Halachic authorities. They both base
themselves upon the prohibition against harming oneself and upon the explicit statement of the
Rambam that the Rabbis have the authority to ban any action which harms one's health.23
The one authority who consistently refused to prohibit "active smoking" per se, was the late Posek
HaDor, Rabbi Moshe Feinstein (zt'l). While he strongly urged people to stop smoking, and
discouraged others from developing the habit,24 he held tenaciously to the position that smoking
could not be banned on purely Halakhic grounds. In light of the preeminent position occupied by
Rabbi Feinstein, any proposal to ban smoking on purely Halakhic grounds must perforce address his
objections thereto.
Rabbi Feinstein heavily based his inability to forbid smoking on the argument, that when a specific
action possibly entails an element of danger, and people are willing to take that risk (which albeit
is only a risk) one cannot forbid people from that action for "the L-rd Protects the Simple" (Makom
SheDashu Bo Rabim, Shomer Peta'im HaShem).25 As he wrote in his last responsum on the subject: 26
To generalize the principle of "the L-rd Protects the Simple" which appears in Shabbat (129b) and
in Niddah (45a) relates to two cases where there is some risk of danger and [nevertheless] people are
not careful [avoid them], though it certainly is true that in an average case of possible danger it is
forbidden to rely on this principle...[nevertheless] it appears obvious that as regards something which
does not entail any negative effects upon the health of a large number of people...even though it does
exert harm upon a distinct minority , there is still no prohibition to eat them 27 as per the possible
danger involved, since the majority are not harmed therefrom...And cigarette smoking is akin to such
things, since those who are accustomed to smoke enjoy it very much, and suffer from the lack of
cigarettes more than the lack of certain types of good food, and even more than total food deprivation
for an abbreviated amount of time. [What is more] the danger (kilkul) of becoming ill from this is
in any case very small, afortiori is the possibility of developing cancer and other life threatening
illnesses exceedingly small...and in a risk like this one applies the rule, "the L-rd protects the
Simple..."
The upshot of Rabbi Feinstein's presentation is that the rule of Shomer Peta'im HaShem applies
when two conditions are present: 1) The activity in question only presents a possible danger to the
individual and 2) Most people are willing to take the risk involved in pursuing that activity. At the
time that Rabbi Feinstein wrote this responsum, both of these factors seemed to indicate Halachic
license to smoke. Today, however, in light of the scientific evidence published in the decade since
this responsum was written, and based upon Rabbi Feinstein's explicit definition, it is clear that
neither of these considerations obtains any longer.
First, the danger involved in smoking is not merely possible, it is inevitable. And while death from
lung cancer may well only affect a minority of smokers, damage to the cardio-vascular and
pulmonary systems is immediate and inevitable. Thus, we have entered into a situation in which
smoking is a definite danger (Bari Hezeka).28
Similar conclusions may be reached regarding the second element in Rabbi Feinstein's equation, i.e.
the willingness of people to take the risk involved in smoking. Here there seems to have occurred
a substantive change. Over the past ten years a large anti-smoking educational effort has been
undertaken by the American Cancer Society and the Office of the Surgeon General of the United
States. The results of this campaign have been that large numbers of people have stopped smoking,
while others have not cultivated the habit because of the risks involved. Clearly, then, smoking is
no longer a Davar SheDashu Bo Rabim. 29
Each of these considerations, taken both separately and together, leads us to one ineluctable
conclusion. Namely, that based upon present research and the stated argument of Rabbi Moshe
Feinstein, the smoking of cigarettes constitutes a blatant violation of the Torah's commandment
against inflicting harm on oneself and hence is absolutely prohibited according to Jewish Law.30

IV. Conclusions
As a result of our discussion here it is apparent that definite action must be taken in order to
eradicate smoking from the Orthodox community. This is called for both out of consideration for the
health of the smoker, as well as that of the innocent bystander assaulted and harmed by the smoke
he generates. In both instances, the community (as represented by the Rabbinate and Batei Din) are
responsible for the enforcement of Halachic norms regulating the general welfare. As practical steps
toward the realization of a smoke-free community, we recommend that our colleagues take the
following steps:

1) Smoking should be banned from all synagogues, synagogue functions, Day
Schools, Mikva'ot and all other institutions and events under the supervision of
the rabbi.
2) Rabbis should themselves cease to smoke, and should publicly educate their
congregations as to the medical and Halachic severity of smoking. This should
include not tolerating smoking in their own homes and businesses, as this either
facilitates or causes assault on others.
3) It must be carefully pointed out that had the present-day research been
available, that scholars of previous generations who themselves smoked, would
not have sanctioned this conduct.