Also like alcohol, tobacco use is detrimental to the health of the user, except even more so. Whereas alcohol consumption generally benign and only acutely harmful when it is overused, tobacco use (especially in the form of cigarettes) is extremely dangerous for practically all users. This is simply a function of the fact that "typical" use of tobacco entails physical addiction to nicotine, its primary active ingredient. For this reason, it is very rare for smokers to use tobacco too infrequently to become chronic daily users

In contrast, most alcohol users do not partake so often that it compromises their physical health.

The dramatic long-term medical consequences of long-term tobacco use are universal as well as predictable; in fact, the medical community is united in the position that tobacco use causes more preventable illness and death than all forms of criminal violence, alcohol-related automobile accidents, non-alcohol-related automobile accidents, and all illicit drug use combined (Brecher, 1972). Furthermore, unlike alcohol, which is not directly (i.e. except in combination with driving) a danger to the health and welfare of others, second-hand tobacco smoke has been identified as a specific irritant and a direct agent of medical harm to nonsmokers exposed to its smoke in significant quantities. For this reason, recent legislation in some states has begun to restrict certain indoor public smoking, such as in the workplace, and federal law changed to prohibit it from government facilities and in air travel. However, many instances of smoking in public is still permitted that definitely exposes nonsmokers to the harms associated with it. Only within the last year has any law been enacted that is designed to protect children from their parents' smoking, but even that law only pertains to the enclosed space of the interior of a car....

In general, there are no restrictions against smoking outdoors or in the home, despite the overwhelming evidence of its effects on others who breathe second- hand cigarette smoke.
If any type of private conduct warrants greater paternalistic governmental control, it is difficult to argue that tobacco use should not be higher on the list of appropriate activities meriting regulation than marijuana, for just one example. Smoking marijuana may very well be associated with certain medical consequences for the user. It is also associated with perceptual and behavioral changes that justify prohibition in conjunction with operating motor vehicles in the same manner as alcohol. Similarly, it may be appropriate to regulate the exposure of others (including children in the home).

However, marijuana, whose risks to the "typical" private user are almost certainly less than the corresponding risks undertaken (perfectly legally) by cigarette smokers, is currently prohibited in all 50 states by federal law (Syracuse Post-Standard, 2003).

This is fundamentally unjustifiable logically, given the permissibility of alcohol consumption (even to the point of profound incapacitation), provided it is not in combination with driving. Furthermore, the known physical consequences associated with "typical" cigarette use (both to the user as well as to others) in comparison to those associated with "typical" marijuana use only underscore the indefensibility of this legislative disparity. It is not even necessary to express a specific position either approving or disapproving of smoking tobacco or marijuana to point out the unjustified discrepancy that permits one (even to the extent it forces nonsmokers to inhale its smoke) while imposing criminal penalties on the other (even when it is practiced in the complete privacy of one's home).

A strictly paternalistic approach to regulating conduct would prohibit both absolutely, even in private, to protect the individual from the harms of his own vices. A less paternalistic approach would permit the private indulgence of virtually any substance of choice, regulating only the resulting behavior that affects others. Either position is defensible for different reasons, provided only that it is applied equally in a manner appropriate to the actual risks at issue. Current U.S. legislation of alcohol, tobacco, and marijuana does not correspond appropriately to those specific concerns at all.