Respiratory health and litigation risks in post-pandemic gaming

Casinos are the final frontier of indoor cigarette smoking.

Advocates continue to lobby lawmakers to end indoor smoking loopholes, as New Jersey may be about to do. The arguments to lawmakers are sound and not in dispute — cigarette smoking is bad for the smoker and bad for people around the smoker, and comes at an enormous financial cost to the health-care system.

The decision to snuff out indoor smoking belongs first with casinos. Casinos can, and should, make their own independent decisions to end indoor smoking, regardless of whether government outlaws it.

Consider the potential threat of casino-worker lawsuits over smoking on gaming floors. Casinos that went nonsmoking indoors during the pandemic, then made the affirmative decision to bring smoking back, may face legal liability. When smoke-free casinos are performing as well as, or in many cases better than, smoking casinos, why take the risk?

Tobacco companies have faced litigation for decades. In 1998, the Tobacco Master Settlement saw billions of dollars paid out and important concessions by Big Tobacco about how and where they advertise. Thereafter, as the public increasingly realized the dire health consequences of smoking, tort lawyers turned their sights from suing the companies making tobacco products to suing businesses that allowed indoor smoking. Flight attendants successfully sued Big Tobacco, then  the airlines that allowed smoking passengers in the first place. The first casino-employee lawsuits over indoor smoking took place around the same time.

In some ways, the casino-industry’s vulnerability today to legal claims by employees over their working conditions in smoking casinos is a result of its own successes. The image of casinos in films and the public consciousness used to be of seedy, mob-run places. Mob-connected bosses in smoky back rooms counted the cash and divvied up the profits.

Casinos once assumed that people came to gamble, drink, and smoke — generally, to embrace vice. If you chose to work, or play, at a casino, you got what you deserved. Judges and juries were not sympathetic to your plight. Smoking came with the territory if you went to (or worked in) a casino; nobody thought twice about it.

And casinos today? There is hardly a more regulated industry on the planet. Casinos are no longer the domain of old Las Vegas or small slot houses far away from big cities. They are now managed and run by Harvard and Wharton MBAs. They are sleek, sophisticated, modern, and clean — technological marvels, really.

Enter COVID-19. Every casino in the country shut down in March 2020 and the vast majority re-opened smoke free (visit the ANR Foundation website for a list of smoke free casinos). Hundreds of commercial and tribally owned casinos have adopted their own permanent smoke-free policies or assented to laws banning indoor use. Since reopening smoke free, many casinos have experienced record profits. The cost savings of going smoke free are substantial.

After regaining a sense of pre-pandemic normalcy, some casinos reinstituted indoor smoking, meaning casino executives met and made affirmative decisions to bring it back, despite known health risks to employees and patrons. Tort lawyers around the country are eager to find out everything about these meetings through notes, emails, and depositions. Additionally, every casino in the country claims to follow a responsible-gaming policy on patron length of play, so what will judges and juries make of casino executives lobbying against indoor-smoking bans by claiming smokers going outside for short smoke breaks will cause casinos to lose money?

COVID fundamentally altered our awareness of how indoor spaces impact our respiratory health. We’ve spent two years masking, sanitizing, and protecting ourselves in the places where we breathe. Respiratory health now has a primacy and recency in juror’s minds, to the benefit of tort lawyers.

In 2021, the late marketer and researcher Michael Meczka published new data on smoking in casinos. Patrons go to the casino closest to them; this is not really news (cited by 30% of respondents). But Meczka established, with clarity, that the second factor that influences people to go to one casino over another is that the venue is non-smoking (cited by 30% of respondents). People will drive out of their way to visit a non-smoking casino.

Evidence shows nonsmoking patrons are more desirable players, from the casino’s standpoint. A 2014 report, “Gambling with Our Health,” found that high-tiered players-club members spend more money at smoke-free casinos. Andrew Klebanow’s research recently established that non-smoking casinos are doing as well as, or even beating, smoking casinos within the tightly packed Pennsylvania market. Some tribally owned casinos have reported record distributions to their tribal members since going nonsmoking.

We used to think casinos that went smoke free would be at a competitive disadvantage. However, market research shows people prefer smoke-free gaming and that going smoke free is better for the bottom line. Additionally, indoor smoking is incongruent with the new corporate casino culture. Bringing back indoor casino smoking in this environment is a bad bet indeed.

Chris Siewers is an attorney in Cherokee, North Carolina. In April, Chris was a panelist at the recent Indian Gaming Association annual conference session, “A Tribute to Michael Meczka: The Non-Smoking Casino.”