Smoking v. Nursing in Public: The Law

July 21st, 2010 by Dionna | 6 Comments
Posted in Breastfeeding/Lactivism, Compassionate Advocacy, Feed with Love and Respect, natural parenting

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Recently a DJ from an Orlando, FL radio station interviewed a midwife about nursing in public. The DJ would prefer that women not nurse in public, and his questions to the midwife were very anti-breastfeeding in nature. At one point he said something to the effect of, “well if women are allowed to breastfeed anywhere, then smokers should be allowed to smoke anywhere they want.”

Today’s piece is part of a collaborative effort that seeks to demonstrate why smoking in public is not an appropriate analogy for nursing in public (N.I.P.). Please visit the other writers’ sites to learn more. The schedule of posts is as follows:
Monday, July 19:
Lauren at Hobo Mama gives suggestions on how to deal with either smoking in public or N.I.P.
Tuesday, July 20:
Annie at PhD in Parenting writes about the public health aspects of smoking and breastfeeding.
Wednesday, July 21: Dionna at Code Name: Mama compares legislation on both smoking and breastfeeding.
Thursday, July 22: Paige at Baby Dust Diaries discusses the financial costs of smoking versus breastfeeding.
Friday, July 23: Our posts will be posted as a whole at, where they serve as a complete resource anytime smoking in public is compared to nursing in public.


Both smoking and breastfeeding have been the subject of legislation on federal and state levels. But legislation on the two differs significantly: whereas smoking is legislated because it is hazardous to public (and individual) health, breastfeeding is legislated because of its great health benefits.

The Long History of Laws Against Smoking

There are records of laws restricting the growth, trade, and use of tobacco products in the United States and Europe from as early as the 1600’s. The General Court of Massachusetts Bay enacted one of the first laws banning smoking in public in 1632. The 1600’s also ushered in the first laws prohibiting minors from smoking. 1

In the late 1800’s and early 1900’s, the prohibitionists (those who wanted to ban the production/consumption of alcohol) also targeted cigarettes. “Between 1895 and 1921, 14 states banned the sale of cigarettes. Even in the city of New York it was declared unlawful for women to smoke in public.” But partially due to a powerful tobacco lobby, and partially due to the lure of income from taxes on tobacco, the cigarette bans were soon repealed.2

In “1964, the Federal Trade Commission concluded that cigarette advertising was deceptive . . . and that advertisers had a responsibility to warn the public of the health hazards of cigarette smoking.” Thus the warning labels on tobacco packages were born, but not without a fight from the tobacco industry. Regardless, several years later the FTC reported that the warnings were futile, probably in part because of the massive advertising campaigns by tobacco companies: “cigarette advertisers [were] the single largest product advertisers on television.”3

The Federal Communications Commission required television and radio stations in 1967 to start airing information on the health hazards associated with smoking. And in 1970 President Nixon signed into law legislation that banned cigarette advertising completely on television and radio; the law went into effect on January 2, 1971.

Since that time, lawmakers at local, state, and national levels have enacted (and courts have upheld) a variety of laws and regulations limiting the reach of deadly secondhand smoke. Smoking has been banned in airports, courtrooms, restaurants, on city sidewalks, in jails and schools, cities can even refuse to hire people who smoke in their own homes.4 Our neighbor to the north, Canada, has been at the forefront of anti-smoking measures: public smoking is banned in offices, restaurants, and in some cities all indoor spaces.5

There is no constitutional right to smoke, but we do arguably have the right to breastfeed.

“The U.S. Supreme Court has held that “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ are included in the guarantee of personal liberty.” These rights are related to an individual’s bodily privacy and autonomy within the home. Proponents of smokers’ rights often claim that smoking falls within the fundamental right to privacy, by arguing that the act of smoking is an individual and private act that government cannot invade. Courts consistently reject this argument.

The privacy interest protected by the U.S. Constitution includes only marriage, contraception, family relationships, and the rearing and educating of children.”6 By that definition, it would appear that breastfeeding is a fundamental right. The U.S. Supreme Court has never had to answer this question, though.7

State and Federal Legislation Protects Breastfeeding

While the U.S. Supreme Court has never had to answer the question of whether we have a constitutional right to breastfeed our children, there are both federal and state laws in place to protect a mother and child’s right to breastfeed and to nurse in public. There are basically two types of law in place: “(1) those which exclude breastfeeding from indecent exposure or other criminal laws; and (2) those which expressly state a mother may breastfeed in public. . . . The lack of a state law does not mean that it is illegal to breastfeed in public. If a state does not have a law addressing public breastfeeding, it may mean that a private person, such as a restaurant owner, may have the right to ask a breastfeeding mother to leave. States with laws that only exempt mothers from criminal prosecution[] also do not prevent a restaurant or store owner from asking a breastfeeding mother to leave or breastfeed in another area.”8

In Canada, breastfeeding is protected as a fundamental right. The right to breastfeed anywhere, anytime is protected by the Canadian Charter of Rights and Freedoms.9

International Regulations on Breastmilk Substitutes

Not only is breastfeeding protected by law, but there are measures in place to regulate the companies that produce and market breastmilk substitutes (including formula). Because  “[t]here are no benefits of breastfeeding[; t]here are risks of formula feeding,” every member of the World Health Assembly has voted to adopt the World Health Organization’s International Code of Marketing of Breast-milk Substitutes. As part of the World Health Assembly’s plan to protect and encourage breastfeeding, the Code places restrictions on how and where companies can advertise infant formula and other foods and beverages. Among other things, the Code provides:

  • Article 4.2 requires “[i]nformational and educational materials . . . dealing with the feeding of infants” to include information on: “(a) the benefits and superiority of breast-feeding; (b) maternal nutrition, and the preparation for and maintenance of breast-feeding; (c) the negative effect on breast-feeding of introducing partial bottle-feeding; (d) the difficulty of reversing the decision not to breast-feed; and (e) where needed, the proper use of infant formula . . . . When such materials contain information about the use of infant formula, they should include the social and financial implications of its use; the health hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula and other breast-milk substitutes. Such materials should not use any pictures or text which may idealize the use of breast-milk substitutes.”
  • Article 5.1 prohibits advertising or other promotion of the products covered by the Code.
  • Article 5.2 prohibits distribution of product samples of items covered by the Code.
  • Article 5.3 prohibits point-of-sale advertising, product samples, or other promotions at the retail level (including special displays, coupons, special sales, etc) of items covered by the Code.
  • Articles 6 and 7 place similar restrictions on health care facilities and health care workers.
  • Article 9.2 sets certain standards for labeling products. Manufacturers must include: “(a) the words “Important Notice” or their equivalent; (b) a statement of the superiority of breastfeeding; (c) a statement that the product should be used only on the advice of a health worker as to the need for its use and the proper method of use; (d) instructions for appropriate preparation, and a warning against the health hazards of inappropriate preparation.” Labels may not include “pictures of infants, nor should they have other pictures or text which may idealize the use of infant formula.”

Smoking in public is not analogous to nursing in public.

Tobacco use has long been regulated and restricted to protect the health of the users and of those subjected to secondhand smoke. Conversely, governments have enacted laws in order to protect the rights of breastfeeding mothers and children. And, similar to tobacco products, breastmilk substitutes are regulated in order to protect consumers and encourage breastfeeding. To compare smoking in public to nursing in public completely misses an important point: the laws governing breastfeeding exist to protect mothers and children who are safeguarding their own health by breastfeeding. The laws governing tobacco use exist to protect against the dangerous health consequences that occur because of tobacco, both to tobacco users and to those around them.

Photo credit: stringberd

  1. Jane Lang McGrew, History of Tobacco Regulation (citations omitted)
  2. History of Tobacco Regulation (citations omitted)
  3. History of Tobacco Regulation (citations omitted)
  4. Action on Smoking and Health
  5. Global Anti-Smoking Efforts
  6. Public Health Institute, There Is No Constitutional Right to Smoke (citations omitted, emphasis added)
  7. Melissa R. Vance, Breastfeeding Legislation in the United States: A General Overview and Implications for Helping Mothers
  8. Breastfeeding Legislation in the United States: A General Overview and Implications for Helping Mothers
  9. For more information, visit INFACT Canada.

6 Responses to:
"Smoking v. Nursing in Public: The Law"

  1. Well this is a nice hard-hitting alternative to most of the rest of us who just went “WHAT?”, then used a lot of expletives.

  2. Marilyn (A Lot of Loves)   ALotofLoves

    Great detailed post. For me it boils down to the fact that smoking kills while breastfeeding sustains life. Plus that guy is an idiot.

  3. Maman A Droit   MamanADroit

    Very interesting, especially about whether each is a fundamental right. It’d be interesting to see how the Supreme Court would rule. I’d like to say in favor of mamas and babies but who knows.

  4. Amber   AmberStrocel

    Thanks for the great and thorough and very impressive-sounding summary. And as a Canadian, can I just say yay Canada? I’m glad to know that we have that protection under law.

  5. Lauren @ Hobo Mama   Hobo_Mama

    You’ve really summed it up perfectly: “The laws governing breastfeeding exist to protect mothers and children who are safeguarding their own health by breastfeeding. The laws governing tobacco use exist to protect against the dangerous health consequences that occur because of tobacco.”

    I love this overview of the legal history of both tobacco use and breastfeeding. I hadn’t known prohibitionists tried targeting smoking as well. The tobacco lobby is really powerful, isn’t it? As is the formula lobby, sigh.

    I also liked the overview of the WHO Code. Now if more companies and countries would actually follow it.

    • karhleen   none

      I agree with yay Canada.

      Wish the World Health Organization could clear up DDT and other poisons that show up in mother’s milk — horrible symbolism of our culture — and cancel the insane widespread US fluoridation of water, which if the water is used in preparing commercial infant formula can seriously injure the baby. Fluoride traditionally is a rat and roach poison; if a child swallows her fluoride toothpaste you have to dial 911 aand PRAY and get to the E.R. FAST. No one thinks about the live human being in the middle of all these nutty toxin baths. How great that WHO and Canada defend the baby’s health this way.

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