Tobacco Documents Online

. ~ ~...;.. . , .._..... ~. .. ~. '~ .... .. .. ... . . _ .. .. . .. .. .. ... '~...~. . . .. . . . . . . o...~.~. .__ _ _ . .. , October 1, 1990 CO1ViMENTS OF THE WASHINGTON LEGAL FOUNDATION, AND U.S. REPRESENTATIVES WALTER JONES, STEVE NEAL, HOWARD COBLE, BILL HEFNER, BUTLER DERRICK, ROBIN TALLON, CHARLES HATCHER, TOM BLILEY, JOHN TANNER, ALEX McMILLAN, BART GORDON AND HAL ROGERS concerning the ENVIRONMENTAL PROTECTION AGENCY'S DRAFT "GUIDE TO WORKPLACE SMOKING POLICIES" I. INTRODUCTION The Washington Legal Foundation ("WLF") and U.S. Representatives Walter Jones, Steve Neal, Howard Coble, Bill Hefner, Butler Derrick, Robin Tallon, Charles Hatcher, Tom Bliley, John Tanner, Alex McMillan, Bart Gordon and Hal Rogers ("Congressional Commentators") are submitting these comments to express deep reservations regarding numerous aspects of the EPA's June 25, 1990 draft report entitled: "Environmental Tobacco Smoke: A Guide to Workplace Smoking Policies." (The draft report hereinafter is referred to as the "Policy Guide.") Events surrounding preparation and release of the Policy Guide give every indication that EPA had arrived at its conclusions long before work on the Policy Guide had begun. The record suggests an unseemly desire on the part of EPA to rush to judgment on the very important issues raised by the Policy Guide. The Policy Guide badly distorts the state of the law with respect to workplace smoking. Moreover, even though EPA lacks legislative authority to regulate workplace smoking, the Policy Guide appears to be a thinly veiled attempt to exercise auch regulatory authority. In light of the serious deficiencies in the Policy Guide, WLF and the Congressional Commentators recommend

-H that, at a minimum, further work on the Policy Guide be placed on hold until after EPA's Risk Assessment on environmental tobacco smoke ("ETS") has undergone review by the EPA Scientific Advisory Board ("SAB"). II. INTERESTS OF THE wASHINGTON LEGAL FOUNDATION AND U.S. REPRESENTATIVES WALTER JONES, STEVE NEAL, HOWARD COBLE, BILL HEFNER, BUTLER DERRICK, ROBIN TALLON, CHARLES HATCHER, TOM BLILEY, JOHN TANNER; ALEX McMILLAN, BART GORDON AND HAL ROGERS The Washington Legal Foundation is a non-profit public interest law and policy center based in Washington, D.C. with more than 125,000 members nationwide. While WLF engages in litigation and the administrative process in a variety of areas, WLF devotes a substantial amount of its resources to promoting the free enterprise system and the political and economic freedom of individuals and businesses. Accordingly, WLF is wary of government efforts -- such as EPA's Policy Guide - that significantly intrude upon those freedoms. WLF believes that government agencies, before under- taking actions that significantly affect the manner in which individuals may carry out their business affairs, at a minimum should ensure that they act only after carefully weighing all relevant data. WLF believes that EPA's actions in preparing and releasing its Policy Guide do not meet that standard. . U.S. Representatives Walter Jones (N.C.), Steve Neal (N.C), Howard Coble (N.C.), Bill Hefner (N.C.), Butler Derrick (S.C.), Robin Tallon (S.C.), Charles Hatcher (Ga), Tom. Bliley (Va.), John Tanner (Tenn.), Alex McMillan (N.C.), Bart Gordon (Tenn.), and Hal Rogers (Ky.) are Members of the United States House of Represen- 2

tatives. Each is vitally concerned about the important issues raised by the Policy Guide. III. PREJUDGMENT OF THE ISSUES Numerous epidemiological studies have been undertaken in the past decade re- garding the health effects of ETS (generally defined as a combination of the "side- stream" smoke from the burning end of a cigarette, pipe, or cigar, and exhaled main- stream smoke from a smoker, as diluted and chemically modified in the atmosphere). These studies have arrived at widely conflicting conclusions regarding the health effects of ETS.' Congress was sufficiently concerned about the possible effects of air impurities in the indoor environment that in 1986 it directed EPA "to establish a research program to gather information on all aspects of indoor air quality." Sec. 403(a)(1) of the Superfund Amendments and Reauthorization Act of 1986, Pub. L. 99-499. Thus was born EPA's Indoor Air Division (the "IAD"). Although IAD was directed to look at all aspects of indoor air pollution (a term that plainly encompasses far more than ETS), to date it has focused its research efforts almost exclusively on ETS.= IAD is conducting ' WLF and the Congressional Commentators do not possess sufficient scientific expertise to evaluate the relative merits of the various epidemiological studies. WLF and the Congressional Commentators do note, however, that 19 of 24 studies of which they are aware. found no statistically significant association between ETS and nonsmoker lung cancer. = WLF and the Congressional Commentators understand that EPA has first-hand knowledge of indoor air pollution problems totally unrelated to ETS. A December 12, 1989 article in the Washington Post indicated that numerous employees at EPA's South- west Washington office complex suffer from "sick building syndrome" brought on by air contaminants in the building - mostly chemicals released by carpets and office 3 (continued...)

an assessment of the health effects of ETS and released a draft report, entitled "Health Effects of Passive Smoking: Assessment of Lung Cancer in Adults and Respiratory Disorders in Children," on June 25, 1990. (This draft report is hereinafter referred to as the "Risk Assessment.") The Risk Assessment concluded that approximately 3800 lung cancer deaths per year among nonsmokers in the United States are attributable to ETe The Risk Assessment can only be described as being in a very preliminary form, since it has not yet been submitted for SAB peer review. One would suppose that before recommending action by the nation's employers in dealing with ETS, IAD would have awaited receipt of some scientifically defensible findings regarding the health effects of ETS. However, not only did IAD not await completion of its Risk Assessment before creating policy guidelines, it did not even await the start of work on its Risk Assessment. Rather, IAD began to contract for and assemble its Policy Guide even before embarking on its Risk Assessment project. By proceeding in this highly unorthodox manner, IAD has left itself wide open to charges that it has prejudged issues relating to the health effects of ETS and how employers should deal with such effects. One is left with the unmistakable impression that LAD is led by anti-smoking crusaders who cannot be expected to evaluate fairly the costs of their policy recommendations to the business community. . That impression is only strengthened by IAU's choice of personnel for prepara- tion of the Policy Guide. WLF and the Congressional Commentators understand that 2 (...continued) furniture and bacteria found growing in air conditioning systems. See The Washington Post, "For EPA, War on Pollution Strikes Home," December 12, 1989. 4

James Repace, well known as an anti-smoking advocate, was responsible for EPA's decision to go ahead with preparation of the Policy Guide. IAD then engaged Robert Rosner, head of the Smoking Policy Institute of Seattle, Washington, to draft the Policy Guide. The Smoking Policy Institute is in the business of formulating workplace smoking restriction policies; it derives substantial income each year from employers for whom it formulates such policies. It can come as no surprise, therefore, that Mr. Rosner would prepare a draft report that recommends drastic restrictions on workplace smoking; were employers to abide by those recommendations, the Smoking Policy Institute could expect to gamer a substantial number of new clients. Moreover, IAD appears to have formulated the Policy Guide's major recommen- dation -- that employers either ban workplace smoking altogether or establish separately ventilated, segregated smoking areas - long before the Policy Guide (or ETS risk assessment) was prepared. That recommendation was included in EPA's ETS fact sheet issued in the summer of 1989. The EPA has a well-deserved reputation for basing its policy decisions on scientifically verified evidence. That reputation undoubtedly will be marred if, despite strong evidence that IAD prejudged the issues raised by the Policy Guide, the Policy Guide is adopted in its present form. IV. RUSH TO JUDGMENT IAD has compounded its apparent prejudgment of issues raised by the Policy Guide with an unseemly haste to get the Policy Guide out the door. The Risk Assess- ment was not released for comment in draft form until June 25, 1990, and members 5

have not even been chosen yet for the SAB that will review the accuracy of the Risk Assessment's medical conclusions. Nonetheless, the Policy Guide - which relies heavily on the Risk Assessment's medical conclusions' - was also released in draft form on June 25, 1990. Given the Policy Guide's heavy reliance on the conclusions of the Risk Assessment, common sense dictates that the Policy Guide should not have been released -- even in draft form -- until after the Risk Assessment had been sub- jected to peer review. Moreover, IAD released the conclusions of the Risk Assessment and Policy Guide to the press well in advance of their official June 25, 1990 release for public comment. That action indicates IAD's desire for wide-spread public awareness and acceptance of the conclusions of the two documents, despite IAD's disclaimer that the documents are in "draft" form and are not to be quoted or cited. IAD's news leak appears to have had the desired effect: anti-smoking organizations have been claiming, and the news media have been reporting, that the draft conclusions of the two docu- ments are established facts. Mr. Repace has been making similar claims in public appearances in the U.S. and elsewhere. Issuance of the Policy Guide in final form is particularly premature when one considers that IAD has characterized the Policy Guide as a simplified version of a third ETS-related project being undertaken by IAD: a compendium of ETS technical literature. The- compendium has not undergone peer review; it is still in draft form and ' Tbe first four chapters of the Policy Guide are derived almost exclusively from the findings of the Risk Assessment. Subsequent chapters explicitly base their policy recommendations on the Risk Assessment findings. 6

the chapter authors reportedly are considering possible revisions. Following its initial release, the compendium will also be subject to SAB peer review. It is difficult to comprehend how IAD believes that it can release the Policy Guide in final form when the document upon which the Policy Guide is based is so far from completion.` The rushed nature of the Policy Guide's release is apparent from the many crucial issues not addressed by the Policy Guide. For example, the Policy Guide recommends that employers either ban workplace smoking altogether or establish separately ventilated, segregated smoldng areas. Yet, nowhere in the Policy Guide does IAD discuss the economic practicality of the establishment of separate ventilation systems within existing buildings. From its limited research in the area, WI F and the Congressional Commentators understand that the establishment of separate ventilation systems is not an economically viable option for most employers. The net effect of the Policy Guide, therefore, is a recommendation that employers ban all workplace smoki.ng. Yet, the Policy Guide does not address the economic consequences of such a ban, other than to state conclusorily that a ban on workplace smoking is the "least expensive" option. Policy Guide at 22. ` It is also worth noting that the draft compendium includes a chapter by Mr. Repace himself. In addition, a compendium chapter on heart disease and ETS was written by Stanton Glantz, the founder of Americans for non-Smokers' Rights. Dr. Glantz's extensive antismoking activities have been widely reported in the press. Further, the public docket of comments filed on thee Policy Guide contains a submission by Dr. Glantz in which he indicates that his heart disease chapter - which was funded by EPA and has not been reviewed by the SAB - has been accepted for publication by the medical journal Circulation. 7

Given that an outright ban on workplace smoking is diametrically opposed to the approach currently taken by most employers,' one would expect the Policy Guide to contain some sort of analysis of the economic consequences of an outright ban. One could reasonably expect, for example, that a smoker will feel quite put out by a directive from his employer that he can no longer smoke anywhere in the workplace. Accordingly, an employer imposing a smoking ban can reasonably expect as a result of the ban to lose at least some valuable employees 6 IAD should address that issue before issuing a policy guide that, in effect, recommends a ban on all workplace smoking. In sum, release of the Policy Guide in final form anytime soon would be extremely premature. At the very least, IAD ought to suspend further work on the Policy Guide until after the Risk Assessment and technical compendium have undergone SAB review. V. DISTORTION OF EXISTING LAW Chapter 6 of the Policy Guide includes a discussion of existing "regulatory controls" for dealing with ETS in the workplace, including a discussion of judicial ' Currently, most employers attempt to satisfy the desires of all members of their workforces by attempting, to the extent possible, to accommodate both the desire of smokers to smoke and the desire of many nonsmokers to be separated from smokers. As the Policy Guide recognizes, that is the policy generally followed by the federal government in its role as employer. Policy Guide at 27. ` Given that many smokers lack the desire to quit smoking, it is unr*~alistic to address the issue of what to do with smokers following a workplace smoking ban by proposing (as does the Policy Guide) that smokers be offered counseling to help them quit smoking. 8

I decisions dealing with that issue. WLF and the Congressional Commentators find this portion of the Policy Guide highly objectionable. Chapter 6 appears to be designed to accomplish two objectives: (1) to scare employers into imposing workplace smoking bans, in order to avoid lawsuits by nonsmoking employees; and (2) to encourage suits by nonsmoking employees against their employers. That second objective is particularly out of place in a federal agency's policy manual. Any decision to force employers to impose workplace smoking bans ought to come from those bodies empowered to make such decisions: Congress and the Occupational Safety and Health Administration (OSHA). In the absence of such a directive from one of those two bodies, IAD ought not to be soliciting litigants to perfonn an end run around OSHA and Congress by asking the courts to legislate in this area. Our courts are already overcrowded enough and our society is already sufficiently over-litigious without IAD encouraging additional lawssuits. Moreover, the Policy Guide's discussion of existing legal precedent is badly distorted. The Policy Guide misrepresents the holding of virtually every case decision cited in Chapter 6. Accordingly, WLF and the Congressional Commentators recom- mend that Chapter 6 be omitted entirely from the final version of the Policy Guide. Chapter 6 begins by asserting that all citizens have a right under the common law to a "safe and healthy environment." Policy Guide at 26. That assertion is a complete misstatement of the rule; the common law merely entitles citizens to an environment that is "reasonably safe." See, e.g., Smith v. Western Electric Co., 643 S.W.2d 10, 13 (Mo. App. 1982). The distinction between a "safe" and a "reasonably 9

safe" environment is crucial; the former implies that an individual has an absolute right to insist that others refrain from exposing the individual to any potentially dangerous substances, while the latter recognizes that in order to permit society to function, all individuals have to make some accommodations to the needs and desires of others. Despite the Policy Guide's repeated suggestion that courts are likely to be receptive to lawsuits brought by employees demanding smoke-fite working environ- ments, the Policy Guide cites only one court decision in which such a lawsuit based on common law grounds met with any success at all: Shimp v. New Jersey Bell Telephone, 145 NJ. Super. 516, 368 A.2d 408 (Ch. Div. 1976). While Shimp was a victory for the nonsmoking employee; the Policy Guide fails to note that the relief granted to that employee (separation of smokers from nonsmokers within the workplace) fell far short of the total workplace smoking ban advocated by the Policy Guide. Nor does the Policy Guide note the following statement in Shimp: "In determining the extent to which smoking must be restricted, the rights and interests of smoking and nonsmoking employees alike must be considered." Id. The court determined that a ban on smoking in Ms. Shimp's immediate work area would constitute a proper balance between the rights of smokers and nonsmokers. Id. Accordingly, any discussion of Shimp in the Policy Guide should make clear that employers who make reasonable accommodations to the needs of smokers and nonsmokers alike need not fear suits based on Shimp, and that Shimp lends no support for a lawsuit seeking a total ban on workplace smoking. ' It should be noted that the decision in Shinip was rendered at the trial court level. Trial court decisions generally are accorded considerably less weight than are decisions of appellate courts. 10