New Jersey Casino Staff Ask High Court to Weigh in on Right to Safety in Smoking Case

A coalition of casino workers has tapped New Jersey’s Supreme Court to rule on their attempt to close a loophole permitting smoking in state casinos. 

In the 137-page filing, the United Auto Workers union argues that New Jersey’s lower court erred in its earlier findings. Specifically, the union takes issue with the court’s position that the state’s constitution doesn’t guarantee a right to safety. Filed in conjunction with C.E.A.S.E. NJ (Casino Employees Against Smoking’s (Harmful) Effects), the petition also challenges the finding that casinos’ exemption from the 2006 Smoke-Free Air Act is not unconstitutional special legislation.

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 Nancy E. Smith, the coalition’s attorney, told the New Jersey Monitor that the court should recognize the seriousness of the issue.  

I’m really hoping that they take this seriously and quickly because every single day is dangerous for my clients.” 

A Problem of Dueling Data

According to the petition, the state’s arguments predominantly relied on a 2021 Spectrum report, which claimed banning smoking would result in mass layoffs and economic devastation. The coalition argues that those findings conflict with independent research, including a 2022 analysis by Gaming Casino Consultants Consortium (C3). 

The C3 report concluded that data from “multiple jurisdictions” clearly showed that smoking bans no longer cause dramatic revenue drops. Rather, the results showed that non-smoking properties appear to perform better than their smoking-friendly counterparts.

In addition to C3, the coalition references “Eliminating Tobacco-Related Disease and Death,” a 2024 US Surgeon General report.

From the Surgeon General’s report: 

Casinos are also important venues for smokefree policy efforts because workers and patrons in casinos are exposed to high levels of secondhand tobacco smoke.

Studies of air quality in casinos and ofbiomarkers in casino workers and patrons show that smoking in casinos is a public health problem, as documented by dangerous levels of secondhand tobacco smoke in these venues and elevated levels of tobacco smoke biomarkers in the blood, urine, and saliva of casino employees and patrons who do not smoke.

The tobacco industry routinely works through a ‘plurality of third-party voices,’ including those of business owners and concerned citizens, to argue that tobacco control laws, including smokefree laws, will harm other businesses ~ for instance, from revenue loss. However, numerous economic studies have found that smokefree laws do not adversely impact business revenue.”

Battle Headed Toward Final Boss

This latest petition follows years of effort to end the anti-smoking carveout that critics say burdens workers with the fallout from secondhand smoke.

Casino workers unsuccessfully lobbied the legislature to end the casino exemption early in the pandemic. Then, in 2024, they sued, also unsuccessfully, despite arguing that the carveout violates their rights. 

The petition notes that the New Jersey constitution states that all people “have certain natural and unalienable rights among which are those … of pursuing and obtaining safety and happiness.” As a result, it argues the trial judge who found the constitution contained no right to safety ruled in error. 

Simultaneously, the coalition wants the carveout declared unconstitutional special legislation — law that favors one person or group over others. 

Notably, a January appeals court decision ordering the judge to rehear the case declined to revisit the workers’ safety claims. The matter, it suggested, is best left to the state Supreme Court.

Now that the fight is possibly heading there, Smith told the Monitor the ned is near.

I think it’s the endgame here. I really do. I feel very optimistic that we are going to stop poisoning these workers as a result of this case.”

Smith said she hopes the Supreme Court gives weight to the opening lines of the state constitution. 

I want the court to say, ‘Yes, the statement in the first sentence of the New Jersey constitution isn’t meaningless,’ that no words in the constitution are meaningless, that there is a right to safety.”

Favorable Ruling Could End Carveout

If the Supreme Court opts to hear the appeal, a ruling in the coalition’s favor could end the carveout immediately. Alternatively, a favorable decision could shift its fate to New Jersey’s Superior Court. In either case, the determination would challenge the economic arguments raised by casinos and competing unions. 

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For now, the involved parties continue to battle over discovery. In July, an evidentiary hearing will test those competing economic claims.

“This is an exceptional case with exceptional stakes, and it must be regarded as such,” the petition argues. “Of course, we intimate no views on the appropriate outcome of the remand.”

A message to the Casino Association of New Jersey seeking comment was not immediately returned.