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6 dants purport to represent a class of approximately 60,000 other attendants. The injuries alleged by the putative class representativess include lung cancer, breast cancer and unspecified respiratory ailments. Plaintiffs further allege that occupa- tional exposure to ETS on board aircraft causes at least 22 diseases and a reasonable fear of contracting such diseases. The defendants are purported to be the six major U.S. cigarette manufacturers (plus related entities), UST, Inc., United States Tobacco Co., Dosal Tobacco Corp., the Council for Tobacco Research, The Tobacco Institute,, and three other trade associations. Broin; et al v. Philip Morris, eta1. (Circuit Court, Dade County, Florida) (filed October 31, 1991). [ 12] Butler. Case Remanded to State Court On March 18, 1993, the federal court remanded this case to the Circuit Court of Hinds County, Mississippi. In this case, Burl Butler alleges that he has lung cancer and other injuries caused by exposure to ETS in the barber shop he has owned and operated for ap- proximately 30 years. His wife, Dean, claims loss of consortium and emotional distress. The defendants are the six major U.S. cigarette manufacturers and four tobacco wholesalers. Butler v. R.J. Reynolds Tobacco Co., et a1 (Circuit Court, First Judicial District, Hinds County, Mississippi) (filed October 21, 1992). [ 13] Schultx Cases Earlier this year, Greg Schultz was released from an Arizona State prison and handed over to the federal marshall. He is now incarcerated in the federal peniten- tiary at Leavenworth, Kansas. Beginning in 1990, Schultz has filed at least seven cases against cigarette manufacturers and others, alleging injury from exposure to ETS in prison. Three of those cases are now pending, and all of them are on appeal from trial court orders disposing of Schulds daims. Only one of the pending cases involves a major U.S. cigarette manufacturer. Schultz u TheAmerrcan Tobacco Company, etal (U.S. Court ofAppeals, 9th Circuit) (trial court dismissal entered February 27, 1992). In November 1992, the appeals court changed the panel assignment for the case, removing it from a panel designated to decide cases without oral argument to an oral argument panel. E•7iS/IA(Z REPORT, ISSUE 43 Nevertheless,,as of this writing„the panel still had not determined whether to hear argument or simply decide the case on the brief submitted. ETS/IAQ LITIGATION NOT INVOL VING CIGARETTE IvIANUFACTURE- RS WORKPi.ACE: WORKERS' COMPENSATION [14] •In re CarolAnn Coy (California Workers' Compensation Appeal Board) (filing date unknown) Later this year, the Workers' Compensation Appeal Board in California will reportedly consider the appeal of a deceased airline flight attendant who claimed that she had contracted lung cancer due to 17 years of exposure to ETS in airline cabins. The husband and son of Carol Ann Coy, who died in 1991, are continu- ing to pursue the claim. Coy reportedly smoked cigarettes for a year or two before she began working for the airlines but is described as a"nonsmoker° in press reports of the case. Coy's attorney apparenth believes that the EPA Risk Assessment om ETS willi boost the prospect for a successful appeal. Coy also joined Broin, the class action lawsuit that was filed in Florida on behalf of airline flight attendants. See Los Angeles Times, March 4, 1993. >Newsday article discusses Coy case, hem 21. [15] Wisconsin Workers"Compensation Cases (Ne..•ly Added to Westlaw Database) Decisions from the Wisconsin Labor and Industn- Commission have recently been added to the Westla-,+• database. As a result, the following four cases appeared in a search covering additions made to the database during the first week of March 1993. The Westlaw database now contains the decisions of the workers' compensation appeal boards of 15 state.: Alaska, Arkansas, Colorado, Connecticut. Maine. Massachusetts, Minnesota, Montana, Npbraska, Ne..• York, Oregon, Pennsylvania, Texas, Washington and Wisconsin. I Fish v. City of Waukrsha Water Utiliq; 1992 WL 447497 (Wisconsin Labor and Industry Review Commission) (decided April 16, 1992). The revie.+, .

MARCH 19, 1993 commission held'that workplace ETS exposure aggra- vated a construction workers' pre-existing chronic obstructive pulmonary disease; claimant was deemed permanently and'totally disabled. I Kufahl v. Wisconsin Bell Inc., Milwaukee, 1990 WL 483427 (Wisconsin Labor and Industry Review Commission) (decided December 11, 1990). Claimant was deemed partially disabled by the review commis- sion; she alleged she developed permanent "sensitiza- tion" to ETS. A summary of this case appeared in issue I of this Report, Apri130, 1991. I Quick v. Newspapen; Inc., 1988 WL 383948 (Wisconsin Labor and Industry Review Commission) (decided September 30, 1988). The review commission ruled that a copy editor didnot sustain an occupational injury caused by ETS exposure. Specifically, the Commission found that the employee did not have asthma or any loss of lung function but merely suffered discomfort when exposed to ETS, hairspray and spray deodorants. I Josephine Krueger v. New York Life Ins., 1987 WL 245852 (Wisconsin Labor and Industry Review Commission) (decided April 13, 1987). Total, tempo- rary disability benefits were awarded to an employee who daimed ETS workplace exposure caused a run- ning nose and eyes, chest pains and coughing. WORKPLACE: DISABILITY DISCR1m1NATION 7 Harmer avers that he filed a charge of disability discrimination with the Equal Employment Opportu- niry Commission (EEOC) on August 11, 1992, and~ received a right-to-sue letter from the EEOC on February 22, 1993, Harmer seeks unspecified wages and benefits awards and an award' of compensatory and punitive damages in the amount of $300,000. He also seeks a dedaration that VEPCO unlawfully discrimi- nated against him and "an injunction against any further such conduct." Attached to the complaint is the affidavit of Harmer's physician who states that Harmer has "a severe reactive airway disease" and that "the presence of tobacco smoke in his work environment is a major contributor to and significant aggravant to this health problem." The affidavit further states that the doctor is aware that VEPCO moved two smokers away from Harmer s work area, provided fans, smokeless ashtrays and air purifiers, limited'smoking to individual smoker's cubides, prohibited smoking in rest rooms, conference rooms and hallways, and created a nonsmoking area in the cafeteria. Harmer's doctor's opinion is that these measures "are insufficient, without more, to enable Mr. Harmer to perform the essential' functions of his position." >Richard Daynard urges potential claimants to sue under ADA, ttem 22. WORKPLACE: COLLECTIVE BARGAINING [17] Local 1186 of Council No. 4, AFSCME v. State [ 16] I Harmer v. Virginia Electrir and Power Co. (U.S. Board ofLabor Relations, No. 14502 (Connecticut District Court, Eastern District Virginia) (filed Supreme Court) (decided February 23, 1993) March 10, 1993) On March 10, 1993, an employee filed an action under the Americans with Disabilities Act (ADA) to force his employer to adopt a smoke free policy in his place of employment as a reasonable accommodation of his disability. Robert E. Harmer, an employee of Virginia Electric and Power Co. (VEPCO) since 1981, claims he suffers from bronchial asthma "which substantially limits his ability to care for himself, his ability to breathe, his ability to walk and his life expectancy." He futther alleges The Connecticur Supreme Court has determined that the New Britain Board of Education may be required to bargain about "discretionary" aspects of a 1987 smoking ban if "implementation of the smoke-free policy has a substantial secondary impact on employee working conditions." The "discretionary" aspects apparently include prohibitions on~smoking out of doors and when classes are not in session and student activities have ceased. that tobacco smoke is a major contributor to and signifi- The court acknowledged that the implementation of cant aggavator of his disability. According to Harmer's a ban on smoking is a managerial' prerogative and may complaint, VEPCO refused to dedare the building or the not be a mandatory subject of bargaining, but that the floor where Harnter works smoke free, reduced Harmer's board was nevertheless required to bargain over purchasing authoriry as a buyer, and passed over Harmer secondary effects. The Court suggested that the board for a promotion because of his disabiliry. may be required to bargain over its failure to provide a

8 smoker's lounge for those teachers who smoke. The case has been remanded to the State Board of Labor Relations. See BNA Washington Insider, March 8, 1993. WORKPLACE: IAQ/SICK BUILDING SYNDROME [18] Wright v. McDonald's Corp., 1993 U.S. Dist. LEJflS 2635 (U.S. District Court, Eastern District of Pennsylvania) (decided March 2, 1993) The U.S. District Court has denied a defense motion for summary judgment in this case involving a claim for damages due to injuries allegedly suffered by exposure to carbon monoxide. Plaintiff is the operator of a McDonald's restaurant. McDonald's owns and'maintains the building in which the restaurant is located and is, according to the courr,, responsible for latent defects in the property. Plaintiff s neurological injuries allegedly resulted from an accumula- tion offumes caused by the improper venting of a gas water heater in the basement in which the plaintiff kept his business office. The court gave three reasons for turning back McDonald's summary judgment motion,, which was based in part on a contractual exculpatory dause and the statute of limitations: McDonald's could not immunize itself from liability contractually; there were disputed issues of material fact; and the pertinent facts could not be discovered earlier by the plaintiff. [19] In re Voith &MacTavish (Pennsylvania) According to press reports, two female employees of Bryn Mawr College near Philadelphia, Pennsylvania, are suing three firms thatwere renovating buildings on campus. The suit reportedly alleges that the firms were negligent in exposing the employees to toxic chemicals and in failing to remediate the problems after complaints were filed. See Indoor Pollution News, March 5, 1993. LEGAL ISSUES AND DEVELOPMENTS [20] *Labor Attorneys Question Value of EPA Risk Assessment in Workplace litigation According to Ohio labor lawyers, the EPA Risk Assess- ment on ETS will' have limited value to employees who ETSIIAQ REPORT, ISSUE 43 sue their employers for injuries allegedly due to workplace ETS exposure. "'That study technically looked at the home environment,"' said'one such attorney interviewed for an article on the subject. Although some predict that plaintiffs will bring more ETS exposure lawsuits, meeting the burden of proof on causation is viewed as a significant obstacle to success given the level of carcinogens workers are exposed to in places other than the workplace. Ohio's occupational disease statute does not apparently list lung cancer as a recognized condition that can be contracted in the workplace, and proof of actual causation is required thereunder. Nevertheless, many labor attorneys are reportedly advising their clients to restrict workplace smoking and many companies are expected to do so, relying upon the EPA Risk Assessment on ETS as a catalyst. See Business First-Columbus~ January 25, 1993. [21 ]•"Burl Butler is Dying," G. Kessler, Newsday, March 14, 1993 This article discusses the history of tobacco litigation in the United States and indicates that cases involving plaintiffs who claim injury as a result of ETS exposure "could open new avenues of attack on the powerful tobacco companies." The article notes that jurors have been reluctant to hold tobacco companies liable for the injuries of smokers because smokers have been warned since 1965 by cigarette pack labels of the alleged adverse health consequences of smoking. Some legal experts say they believe that ETS lawsuits can overcome such credibility hurdles in that there are no warning labels concerning ETS. Experts,,according to the article, are divided on how well the ETS suits will fare. Critics observe that causation, although potentially strengthened somewhat by the EPA Risk Assessment on ETS, is still a problem and that some jurors may want to blame the intermediary that permitted smoking, such as the airlines in the Broin and Coycases and shop owners, as in the Bntlercase. See Newsday, March 14, 1993. sCoy workers' compensation case is under appeal, Hem 14. [22] •"The Impact of the (ADA) on (ETS) Exposure Following the EPA Report," R. Daynard, Tobacco on Tria4 February 25, 1992 Richard Daynard, declaring an end to the controversy over the alleged health hazards associated with ETS

MARCH 19, 1993 exposure following release of the EPA Risk Assessment on ETS, proposes that individuals who are sensitive to ETS will be able to force workplaces and public places to adopt smoking bans by bringing actions under the Americans with Disabilities Act (ADA): In his Tobacco on Trial publication, Daynard sets forth the various definitions under the ADA which he refers to as "the simplest and most powerful tool for creating smokefree indoor environments." He concludes that "the ADA not only requires that afflicted nonsmokers be accom- modated at work and in public places, it also prohibits retaliation, interference, coercion, or intimidation against anyone who asserts their rights under the act." See Tobacco on TriaZ February 25, 1993. >Harmer ADA case is filed n vrgiNa„ttem 16. OTHER DEVELOPMENTS [23] Airport Opens "Smokers Only" Rooms On March 9, 1993, San Francisco International Airport, which has one of the nation's most restrictive smoking policies, opened two "smokers only" rooms, one in the international terminal'and the other in the north terminal. According to airport authorities, the facility is the first U.S. airport to physically separate smokers from nonsmokers by constructing designated smoking areas. An airport spokesperson stated that it was the airport's intention to provide some accommodation for smokers while protecting others from ETS exposure. See The San Francxsco Chronicle, March 10, 1993. [24] *Minneapolis Airport Bans Smoking According to a news report, smoking will be banned in the public areas of the Minneapolis/St. Paul Interna- tional Airport beginning April 19, 1993. An airport official was quoted as saying, "`We've had limited success with restricted areas for smokers over the past 10 or 15 years. However, following the EPA announce- ment late last year [sic] 1 regarding the health effects of second-hand smoke on thousands of persons annually, we decided that it is time for the public use areas of our terminal facilities to be entirely smoke-free.'" See PR Newswirr, March 3, 1993. 9 [25] •Lung Association Publishes New Pamphlet on ETS The American Lung Association has reportedly pub- lished a pamphlet entitled "Reducing the Health Risks of Secondhand Smoke." A spokesperson fbr the organization referenced the EPA Risk Assessment on ETS and said the pamphlet is the first of its kind to explain how nonsmok- ers can protect themselves from ETS exposure at home, at work and in public places. The pamphlet is being made available free of charge to the public and can be obtained bycxlling a toll-free number, 1-800-300-LUNG. Str Business Win, March 4, 1993. [26] *EPA Risk Assessment Factors in School Board Decision on Smoking Citing the EPA Risk Assessment on ETS, a Dallas area school board president recently called for the district to prohibit the use of tobacco anywhere on school grounds. Teachers' associations are reportedly critical of the plan and favor retention of designated smoking areas in school and administrative buildings. Nine of the district's 54 schools are already smoke-free. According to a press report, a proposed policy will be drafted in the next few weeks and the board is expected to vote on it in March. See The Dallas Morning News, February 25, 1993. [27] Restaurant Association No Longer Oppose Regulations The Restaurant Association of Maryland' is reported to no longer oppose statewide legislation regulating smoking as long as restrictions apply to "all places of assembly" - not just restaurants. The association reportedly changed its position for three reasons: increasing reports about the alleged health effects of ETS exposure; increasing customer requests for smoke- free dining areas; and proposals for local bans that could create statewide inconsistencies. See Indoor Pollution News, March 5, 1993. [28] •Restaurant Association Officials Speak Out About Smoking Bans According to some restaurant industry representa- tives, statutory smoking bans might not arise as quickly as antismoking activists have predicted since release of the EPA Risk Assessment on ETS. Restaurant Associa-

10. tion officials in New York and California have reportedly observed that tax revenues and profitable smoking cessation services would be threatened if nationwide or statewide bans were put into effect. Enforcement is also seen as a problem; police and fire departments say they do not want to be responsible for enforcement, and restau- rant owners do not want to be penalized if patrons do not comply with smoking regulations. See Nation's Restaurant News Newspaper, February 15, 1993. [29] *Food Store Chain Adopts Smoking Ban In response to the EPA Risk Assessment on ETS, a grocery store chain near Minneapolis has reportedly adopted a smoke-free policy in its 27 stores and corporate offices. Rainbow Foods' corporation presi- dent made the decision "as a goodwill move to protect all Rainbow employees and customers from the dangers of second-hand smoke." See Star Tribune, March 12; 1993. ['30] Organization Promotes Study of Multiple Chemical Sensitivity An attorney who has allegedly developed multiple chemical sensitivity has reportedly launched the Founda- tion for Environmental Health Research. This non-profit organization will promote the study of chemical-induced illnesses and public awareness of the problem. The foundation is apparently seeking grants from corporate benefactors to sponsor medical'research. AttorneyAlan Bell does not know what triggered his sensitivity but suspects exposure to molds and bacteria and the chemicals emitted by carpet, paint, pesticides and furniture played a key role. Bell's brother, Robert, who owns a pharmaceutical company specializing in sun and skin care products, has provided $1 million in seed money to attract corporate grants. A foundation office has reportedly been opened in Tucson, Arizona, and a five member advisory board has been appointed. See The Toronto Star, March 5, 1993. MEDIA COVERAGE VAiring out the Issue: More Communities, Companies Join the Antismoking Bandwagon," L Matchan, The Boston Globti February 28, 1993 This article highlights smoking restrictions that are affecting communities throughout Massachusetts, with ETS/lAQ REPORT, ISSUE 43 the author observing that "antismoking forces are overwhelming their adversaries in the battle for control of public space." Communities such as Somerville, Needham and Lexington have apparently placed restrictions on smoking in workplaces and public places. And the author reports that New England Telephone, Fleet Bank, Arthur D. Little Co. and Houghton Mifflin offices are now smoke-free. Antismoking activists say they believe the EPA Risk Assessment on ETS has accelerated legislative and workplace activity with respect to the adoption of smoking restrictions in recent weeks. [32] "Nonsmoking, Please," A. Wolf, The Philadel- pbia Inquirer, February 26, 1993 The writer of the two articles on smoking comprising this weekend edition special discusses the growing trend in the Philadelphia area for eating and entertain- ment establishments to offer smoke-free environments. Although some restaurants report an increase in business after adopting smoking bans, others, such as Macaroni's, found that banning smoking caused a dramatic decrease in business. Evidently, all' 12 of the casinos in Atlantic City offer smoke-free gaming areas as well as advanced air filtration systems. TropWorld Casino & Entertain- ment Resort is, according to the writer, the only Atlantic City casino to ban smoking in its showroom. Gaming hall workers have reportedly launched a group called "Casino Employees Against Second Hand Smoke" and daim that the smoke blown into their faces by gamblers is an occupational hazard. [33] "Interview: Joe LaMacchia and Martha Fineman on Secondhand Smoke," NBC's Saturday Today, March 13, 1993 Joe LaMacchia, who formed Parents Against Second- hand Smoke (PASS) after obtaining a custody order requiring his ex-wife to refrain from smoking in the presence of their son, was interviewed during a recent segment of the NBC television broadcast of Snrurrlal• Today. He said there has been a great deal of interest in his organization and reiterated the stand'of former Surgeon General C. Everett Koop that smoking is a form of child abuse. Go a O Cl? CJ1 Ca ~

MARCHi 19, 1993 Appearing on the program with IaMacchia was a Columbia Law School'professor who questioned the wisdom of placing smoking issues into the realm of child custody law. According to Professor Martha Fineman, it will be difficult for courts to ignore the claims of a parent who is a vegetarian and who is involved in a divorce action that his or her children should not eat red meat now that the use of tobacco products has been placed at issue. She also speculated that the issue may not remain limited to cases involving divorce. Smoking, she stated "'might be harmful, but it is legal conduct, and to argue it is in and of itself the determining factor in abusive conduct seems to me to be problematic."' 11 building operation, material sciences, air chemistry, and regulatory issues. ETS will be discussed in at least five presentations. Douglas Dockery will present "Health Effects of Combustion Products." Michael Lebowitz will discuss "Biological Indicators and Tests in Indoor Air Re- search:" Brian Leaderer will discuss "Semi-volatile Combustion Products and ETS." James Woods will speak on "Building Diagnostics and Evaluation of Remedial Measures." And Ken Sexton will address "Policies and Regulations." LUNG CANCER SCIENTIFIC/TECHNICAL ITEMS UPCOMING MEETINGS [34] "The Risk Assessment Paradigm After Ten Years: Policy and Practice Then, Now, and in the Future," Wright-Patterson Air Force Base, Ohio, April 5-8, 1993 This conference will mark the tenth anniversary of the National Academy of Sciences risk assessment paradigm. The goals of the conference are to: (i) acquaint individuals with the basics of the risk assessment process as originally developed by the Academy; (ii) to highlight current issues, emphasizing strengths and weaknesses of the current paradigm; and (iii) to discuss current research related to improving the risk assessment process. The sponsors of the conference indude the EPA, the National Research Council Committee on Toxicology and divisions of other government agencies. [35]! "Indoor Air '93: The Sixth International Con- ference on Indoor Air Quality and Climate," Helsinki, Finland, July 4-8, 1993 According to informational materials, this conference will consist of plenary sessions, scientific and technical sessions with oral and poster presentations, and work- shops. Topics to be discussed indude public health, biosciences, occupational health, environmental engineer- ing, building design and technology, energy consumption, [36] *"Commentarys Environmental Tobacco Smoke and Lung Cancer," C.W. Heath, The Lancet 341: 526, 1993 [See Appendix A] This brief article focuses on the recently-released EPA Risk Assessment on ETS. The author contrasts it with the other reviews on the topic that appeared in 1986, saying that EPA "strongly reaffirmed" their conclu- sions, and provided a "firm regulatory basis for in- creased societal action to eliminate ETS." OTHER HEALTH ISSUES [37] "The Effect of Parental Smoking on Outcome After Treatment for Glue Ear in Children," A.R. Maw, A.]. Parker, G.N. Lance, and M.G. Dilkes, Clinical Otolaryngology 17: 411-414, 1992 [See Appendix A] In this study, 201 children with chronic otitis media of both ears were reexamined one year after surgery had been performed on one ear. The authors claim that the condition was less likely to have resolved in those children whose parents smoked.

12 SMOKING POLICIES AND RELATED ISSUES [38J "Interaction of Public Policy Advocacy and Research in the Passage of New Zealand's Smoke-free Environments Act 1990," J. Carr- Gregg, Addiction 88 (Supplement): 35S-41S, 1993 [See Appendix A] The author of this article, a public policy advocate, describes the events leading up to the passage of an act requiring smoke-free workplaces, and banning tobacco advertising in New Zealand. He invokes claims about health effects related to ETS exposure in his discussion. IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS AUSTRALIA [39] New South Wales MP Introduces Bill to Prohibit Smoking On March 4, 1993, Independent MP Dr. Peter Macdonald reportedly introduced a bill in the New South Wales Legislative Assembly that would prohibit smoking in any enclosed workplace. The measure would amend the Occupational Health and Safety Act 1983 and would penalize employers who fail to take steps to prevent smoking in the workplace. [40] ACT Government's Agenda Indudes Smoking Bans The Australian Capital Territory (ACT) Labor Government is reponedlyconsidering legislation that would ban smoking in public places such as hotel lobbies, pubs and restaurants. The proposal, which may be introduced in the first half of the year, has evidently caused concern among restaurateurs and pub and hotel owners who are worried about loss of business. According to Richard Mulcahy, executive director of the Australian Hotels Association, no one in the industry was consulted by the Labor Party before ETS/IAQ REPORT, ISSUE 43 the Government announced its proposal. Mulcahy further criticized the Government for appearing to be using the hospitality industry as an instrument for social reform. "`We have no doubt at all that the effect will be immediate and dramatic on our businesses and suppliers of those businesses,"' Mulcahy said. See The Canberra Times, February 18 & 19, 1993; TheAustra- lian National Daily, February 19, 1993. CHINA [41] Manufacturers Face Execution for Products Causing Death The legislature has reportedly passed a consumer protection law that permits the execution of manufac- turers of products that cause deaths. Although press reports do not link the new law to tobacco or tobacco products, discussion of the matter includes reference to faulty water heaters that have electrocuted bathers, cosmetics that: cause burns and ferrilizers that ruin crops. The new law apparently links the severity of the penalties to the damage caused by the product and the amount of profit made by the manufacturer. The la%.•, which takes effect on September 1, 1993, provides for the death penalty when a product causes death because it is poorly made or claims to be something it is not. See TheAsian Wall StreetJorrnra!' March 1, 1993. FINLAND [42] Draft Bill on Tobacco and Smoking Released A draft bill which would amend the Finnish Tobacco Act has been released for comment to some 40 inter- ested parties. Comments on the measure will be due on or before April 2, 1993. After the comments are reviewed a second draft will be submitted to Parlia- ment. The proposed amendments include provisions which would significantly restrict smoking in work- places and public places. Chapter 5 of the draft act is entitled "Protection of Population from the Health Hazards of Smoking." According to Section 12, smoking,would be prohibited in: (i) indoor areas of day care homes and educational facilities as well as these institutions' outdoor areas primarily intended for persons under the age of 16; (ii) virtually affindoor areas intended for the public and

MARCH 19;,1993 customers; (iii) indoor areas in which public events have been organized and to which the public has unrestricted access; (iv) the indoor areas of a means of public transport; and (v) the general and common indoor areas of work communities and in workrooms in which two or more persons work. Section 13 of the proposal permits smoking in designated areas, but tobacco smoke cannot spread to areas in which smoking is prohibited. In addition, smoking areas may not be designated in any indoor area used primarily by persons under the age of 16. The smoking,restrictions would not be applicable to the customer areas of restaurants, other catering establish- ments, hotels, and other accommodation facilities. The owners and proprietors of such facilities could impose restrictions and/or bans at their discretion. In addition, a home-operated business used solely by members of the same family and others living in the household would be exempt from the smoking restrictions. Fines would be imposed upon smokers who continue to smoke in restricted areas aker receiving a warning,, and fines would be imposed' upon building owners, managers or event organizers for failing to enforce smoking restrictions. UNITED ARAB EI\91'RATES [43] Smoking Ban Adopted in Schools The Education Ministry has reportedly imposed a nationwide smoking ban in schools. In a circular issued February 18, 1993, the Ministry Under-Secretary informed the directors of education zones and school principals that teachers and administrative staff would no longer be permitted to smoke in school. See Moneyclips, February 19, 1993. UNITED KINGDOM [44] MP Vows to Introduce Smoking Ban Legislation MP Ian McCartney is reportedly putting the finishing touches on a draft bill which would ban smoking in all public places and workplaces. According to McCartney, ETS exposure is more damaging than exposure to asbestos. He added that, °'In the Wigan area, up to 50 children a day need treatment because of 13 the effects of passive smoking."' MeCartney evidently hopes to have his proposal discussed in Parliament this summer. See Wigan EvenrngPost, February 1993. [45] Lincoln City Hall Goes Smoke Free Following complaints by staff members to their union Nalgo, the same union that represented Veronica Bland, about the alleged health risks of ETS exposure and a survey of workers about the adoption of a smoking ban, the Lincoln City Council has reportedly decided to make City Hall smoke free beginning April 1, 1993. The City says it surveyed building employees last Fall, and 74 percent were in favor of a ban. Anyone entering the building will apparently be subject to the ban, including officers, councilors„staff and visitors. The City also planned to house a display of smoking for National No-Smoking Day on March 10, 1993. See Lincolruhire Daily Echo, February 15, 1993. [46]' Smoking Ban To Extend to County Officials in Exeter County Hall Council leaders in Exeter have reportedly taken an all- party decision to ban smoking in committee rooms in County Hall. The move was apparently a response to union complaints of hypocrisy when workers were banned from smoking while politicians continued to "puff away" in the building. A final decision on the issue will'reporr- edly be taken by the full council within the next month. See Fxeter Erpress 6- Eelio, February 1993. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS AUSTRALIA [47] • Tobacco Institute ofAustralia Ltd. v. Austra- lian Federation of Consumer Orga»isations Inc. (Full Federal Court, New South Wales District Registry, Australia) (decided December 17, 1992, final judgment March 10, 1993) In three separate opinions totalling 62 pages, the Full Federal Court rendered its final judgment on March 10, 1993, and in so doing: (i) declared that paragraph 3 of the advertisement published by TIA in July. 1'986

14 was misleading and deceptive; (ii) denied AFCO's request for injunctive relief; (iii) refused AFCO leave to introduce "fresh evidence," i.e., the U!S. EPA Risk Assessment on ETS, a TIA brochure on smoking in the workplace and statements made by TIA's executive director; (iv) refused TIA leave to argue the constitu- tional free speech issue; and (v) awarded AFCO three- fourths of its trial costs and one-half of its appeal costs on a party/party and not an indemnity basis. This award is considerably less that the award made by Judge Morling, as parry/parry costs generally amount to one-third to two-thirds the amount actually paid by the litigant. TIA will have 21 days in which to file an appeall to the High Court of Australia. ETS/IAQ LITIGATION! NOT INVOLVING CIGARETTE MANUFACTURERS AUSTRALIA [48] Scobell v. RSL Club (New South Wales) (filed 1993) A press article reports that a NSW registered dub employee has filed a claim against her employer alleging injury caused by ETS exposure. Margaret Scobell, 55, says she worked at the RSL dub for 10 years, but left her job in January 1993 because ETS exposure allegedly caused her lungs to "hemorrhage. " Described as an "infrequent smoker," she says she will have to have a section of her lung removed. She is reportedly making a claim for loss of income and medical expenses. A clubs association spokesperson was reported to claim this is the first case involving a NSW registered club. He said he understands Scobell has sever bronchi- tis. The club's manager said the case is being assessed by the club's insurance company. See The Daily Telegraph Mirror (Sydney), March 17, 1993. [49] Stewart v. State of Victoria, 1992 No. 99207283 (County Court of Victoria, Melbourne) (filed October 1992) The State of Victoria has filed its defence in a case involving William Roy Stewart's claim that ETS ETS/IAQ REPORT, ISSUE 43 exposure in the workplace caused him to suffer impaired! respiratory function, emphysema and asthma. See issue 34 of this Report, November 6, 1992. Stewart, a 60-year-old County Court official, alleged negligence for failure to properly train court workers about the alleged risks of ETS exposure and negligence in failing to provide court employees with a safe place to work. In its defence, the State of Victoria: (i) denies Stewart was exposed to large quantities of ETS and denies the effect of ETS exposure; (ii) denies that Stewart was under the care, control and supervision of servants and agents of the defendant; and (iii) denies that Stewart has suffered any injury. The State of Victoria further "does not admit" negligence and breach of statuton• duty. A claim of contributory negligence is pleaded, i.e., Stewart was negligent in: (i) "Failing to advise the defendant that he was exposed to excessive tobacco smoke"; (ii) "Failing to advise the defendant that he was suffering from the effects of the inhalation of tobacco smoke and/or excessive tobacco smoke"; and (iii) "Failing to advise the defendant that he was suffering from health problems associated with expo- sure to excessive tobacco smoke." [50] Department of Occupational Health and Safety v. Burswood Resort (Manage7nent) Ltd (Magistrate's Court, Perth) (filed December 1992) Defendant Burswood entered a plea of not guiln• during a hearing conducted on February 24, 1993. A trial date of August 2, 1993, has been set in the case. The case involves charges brought by the Western Australia Department of Occupational Health and Safety against the owners of a casino for failure to protect employees from ETS exposure. See issue 38 of this Report, January 7, 1993. LEGAL ISSUES AND DEVELOPI\-i1:Nl'ti UNITED KINGDOM [51]' Solicitors Discuss Workplace Smoking Policies A recent press article reports that the Trowbridge law firm Bishop Longbotham and Bagnall predicts the Veronica Bland case wiffcause employers to introduce smoking policies in the workplace and will "encourage

MARCH 19; 11993 other people who have suffered as a result of passive smoking at work to take action against their employ- ers." Many West companies, including Future Publish- ing and Avon Rubber, are apparently among the estimated three out of every four companies nation- wide which have no-smoking policies. The most common policy is to restrict smoking to designated areas in the workplace. See Bath er West Evening Chronicle, February 16, 1993. In a related story, John McMullen of the Leeds-based commercial law firm Simpson Curtis has reportedly warned that employers who rush to impose workplace smoking bans could face claims by smokers that the right to smoke on the job has been incorporated into their contracn through "custom and practice." McMullen advises employers to consult their employ- ees first and give advance warning about the disciplin- ary consequences of noncompliance. See Yorkshire Post, Leeds, February 20, 1993. Meanwhile, solicitors Nabarro Nathanson have reportedly warned employers that the Workplace (Health Safety and Welfare) Regulations 1992, require that all new workplaces separate smokers from non- smokers in rest areas. Existing workplaces will evidently have to comply by 1996. In addition, the regulations require all employers to prepare risk assessments. According to a partner at the law firm, employers who do not include the alleged effects of smoking in these assessments could face criminal enforcement proceed- ings. Serious breaches of the law can apparently be penalized by fines or shut downs. See AressAssocration Newsfrle, March 10, 1993. OTHER DEVELOPMENTS AUSTRALIA [52] Smokers Act to Overturn Clubhouse Smoking Ban Smokers at the Riverside Golf Club have reportedly replaced half of the 14-member committee that voted last year to ban smoking in the clubhouse. A postal vote has apparently been scheduled for March at which 115 time members will be asked if smoking should be allowed'in a specially designated area. According to press reports, the smoking issue has been contentious at clubs throughout the country. The smoking ban at Riverside has caused a significant slump in the bar trade, but club management is evidently being warned that personal liability could result from a successful common claim by someone alleging injury due to ETS exposure. See Sunday hlai4 February 14, 1993. [53] Sports Groups Divide Over Smoking Policy The leading sports sponsor, Foundation South Australia (FSA), has reportedly demanded that smoke- free zones be established at all'indoor sporting venues and that smoke-free areas be provided for half the spectator areas outdoors beginning in July 1993. According to a random survey of FSA-sponsored groups, all would comply to avoid losing their funding.' but some are critical of the newpolicy: SeeAdelaidP Advertiser, March 2, 1993. FINLAND [54] Employers' Group Opposes Statutory Smoking Bans The Finnish Employers' Confederation STK reportedh• opposes a statutory ban on smoking in the workplace. The group evidently prefers legislation which would oblige employers and employees to agree among themselves where smoking would be permitted and doubts the claim that nonsmokers are more productive than smokers. See Helringen SanomaA February 20, 1993: ITALY [55] CDIT Publishes ETS Brochures This year the Centro di Documenrazione e Informazione sul Tabacco (CDIT) in Milan has published three short booklets on ETS issues. "Smoking in the Workplace" will be distributed to journalists and the members of a national association of personnel managers. "ETS: A Summary of the Scientific Literature" and "ETS: Indoor Air Quality and the Need for Adequate Ventila- tion° will be distributed to journalists and to the readers of a tobacco publieation, Frirnd~ of tGP Pipe.