Yes, and the feds ARE NOT going around arresting people if their diet doesn't follow what is suggested by the food pyramid: be it servings of different types of food or a diet that has more daily calories than suggested, nor is anyone arrested for drinking pop all day. Also, there are no arrests if someone does not exercise. As for alcohol, depending on where one resides, there are local laws regarding passengers with open containers of alcohol, laws regarding drinking in the street, and then there's the laws that prohibit drunk driving with the stiff penalties, and the laws that prohibit underage drinking and the penalties for those who do engage in it if caught, and those adults that allowed to happen on their property.
As for your suggestion that smoking "does not kill", please offer evidence.