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SHOoK, HARDY& BACON REPORT ON RECENT ETS AND IAQ DEVELOPMENTS April 16, 1993 SHB

REPORT ON RECENT ETS AND IAQ DEVELOPMENTS - IN THIS ISSUE - IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS • Rep. Durbin, sponsor of PRO-KIDS, launches petition drive, p. 1. • Fditorial'7unk Sdenoe" in National Raiezgp.1. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS • Oral argument set for April 23 on class action appeal in Broin, p. 2. • Plaintiffs counsel files motion to withdraw in Zwillman, p. 3. ETS/IAQ LITIGATION NOT INVOLVING CIGARETI'E MANUFACTURERS • ETS lawsuits are filed against fast-food restaurants under the ADA, p. 3. • SBS lawsuit involving EPA headquarters, Bahura, is set for trial, p. 4. • Workplace ETS cases Bennett and Graffare decided, p. 5. LEGAL ISSUES AND DEVELOPMENTS • "Environmental Tobacco Smoke and Its Effects on Children: Controlling Smoke in the Home,"' p. 6. •`Protec*)ob Opportunitics of Smokers," p. 6. OTHER DEVELOPMENTS • Insurance companies to offer discounts to employers who ban smoking, p. 6. MEDIA COVERAGE • ABC 20/20 airs segment on smokers and smoking policies, p. 7. • "No-smoking Bill Example of Government 'Nannyism,'" P. 7. ISSUE 45 SCIENTIFIClTECHNICAL ITEMS • NCI study suggests lung cancer risk associ- ated with dietary fat, p. 7. •°'Tobacco Smoke Allergy:' A Fallacy?" p. 8. IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS • Activity in Australia, Belgium, Poland, Sweden and the United Kingdom, p. 10. ETS-RELATED LITIGATION' INVOLVING CIGARETTE MANUFACTURERS • TIA files suit against Stephen Woodward, p. 11. ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS • Woman claims shopping trip ruined by ETS; files suit against Qantas, p. 11. OTHER DEVELOPMENTS • Two fast-food chains in Australia ban smoking, p. 12. • EC survey on ETS, p. 12. • U.K hospital patients find ways to smoke even though smoking is banned, p. 13.

- TABLE OF CONTENTS - Issue 45 April 16, 1993 IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS CONGRESS [1] Petition Drive Follows House Survey on Smoking Policy ......................................................•.1 U.S. ENVIRONMENTAL PROTECTION'AGENCY (EPA) [2] "Junk Science." Editorial, NasionalRn.iiw„April 12, 1993 ...................................................... 1 STATE AND LOCAL GOVFRNMENTS [3] [4] [5) Privacy Legislation .................................................................................................... ...............1 ETS-Related State and Locsl Legislative Activities ................................................................... 2 Local Governments in Ohio .................................................................................................... 2 ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [6] [7] [g] Broin: Oral Argument Set on Class Action Appeal' ...................................................................2 Burler. Hearing on Plaintifls' Motions Still Set for Next Month ..............................................3 Zroillma= Court Grants Defendants' Dispositive Motions ......................................................3 ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS AMERICANS WITH DisABIIrTIES AC[ (ADA) [9] Staron v. McDonaldi Corp.: Staron cu Burger King Corp.; Staron v. Windyi Old Fashioned (10]' Hamburgers ofNew York, lnc. Nos. 93-CV-665 -666 -667 (U.S. District Court, Connecticut) (filed March 30. 1993) .................................................................................................... ........3 Harmer v. Virginia Electric and Power Co. (U.S. District Court, Eastern District Virginia) (6led March 10, 1993) .................................................................................................... .................4 WoR1rn1AcE: IAQ [11] Bahara v. SEW lnvertors (Superior Court, District of Columbia)' (filcd September 14. 1990) s..4 WORIQ'UCE: SMOKERS' RIGHTS [12] Graffv. TlsermalControZ Inc., No. 20,338 (New Mexico Supreme Court) (decided Febrtun• 17„ 1993) .................................................................................................... ...................................4 WORKPlACE: WoR1ERS' COMPENSATION [13] Bennett v. Cornrrrontara/rh of Virginia. Deparrmrnt of Taxarion, N. 158-42-51 (Virginia Workers' [14] Compensation Commission) (decided March 29, 1993) ......................................................... 5 Burnett v. Polk Centtr, 1993 WL 93274 (Pennsylvania Workers' Compensation Appeal Board) [15) (decided March 19, 1993) .................................................................................................... ... 5 AppeUanr v. Refpondent, 1993 WL 87792 (Texas Workers' Compensation Commission) (decided March 19. 1993) .................................................................................................... ................. 5 PRISONER CASE [16] Brigaeru v. Cardoza, 1993 U.S. Dist. 1-E)CIS 3925 (U.S. District Court, Northern District California) (decided March 19, 1993) .....................................................................................5 LEGAL ISSUES AND DEVELOPMENTS [17) "Environmental Tobacco Smoke and Its Effect on Children: Controlling Smoking in the Home," A.D. Sehwartz, Boston CoUege EnvironmrntalAffairt Law Review, 20: 135-171 (1993)G [18] "Proteaing Job Opportunities of Smokers: Fair Treatment for the New Minority," D.W. Garner, Sewn Ha!! law Rrvieto, 23: 417-458 (1993) ...............................................................6 OTHER DEVELOPMENTS [19] Off-the-job Smoking is Survey Subject ....................................................................................6 (20] Hot Line Provides ETS Information ........................................................................................6 [21] Insurer Offers Discounts for Workplace Smoking Bans ................. .......................................... G [22] Restaurant Bans Smoking In Bar .............................................................................................G MEDIA COVERAGE [23] "A Dying Breed," 20120, April 2, 1993 ....................................................................................7 [24] "No-smoking Bill Example of Government 'Nannyism,'" LT. Izumi, Sacramento Ssandav Union. March 28, 1993 .................................................................................................... ...................7 "Smokerz Run Out of Room; More Smokers Find Themselves Out in the Cold," D. ToAg and [25] M. Swift, The Hartford Courant, March 29. 1993 ....................................................................7

Contents Continued, Issue 45 SCIFNTIFICITECHNICAL ITEMS LUNG CANCER [26] NCI Study Suggests Lung Cancer Risk Associated with Dietary Far ........................................7 [27] "Estimating a Summarized Odds Ratio Whilst Eliminating Publication Bias in Meta-analysis," M. Sugita, M. Kanamori, T. Izuno, and M. Miyakawa, JapanereJournal ofClinical OncolW 22: 354-358, 1992 (See Appendix A] ............................................................................................ 8 CARDIOVASCULAR ISSUES [28] "Inhalation of Sidestream Smoke Accelerates AnerioscleroticPlaque Development." A. Penn and C.A. Snyder, Tazicolodiitt 13: 408, 1993 [See Appendix A] ...................................................... 8 RESPIRATORY DISEASES AND CONDITIONS - ADULTS [29] "Tobacco Smoke Allergy:' A Fallary?" J.J. Musmand, M. McCants, M. Lopez, P. Menon, and S. Lehrer, Annals o A!lrrA'70: 55, 1993 [See Appendix A] ...................................................... 8 f [30]' "The Nasal Response to Environmental Tobacco Smoke,"'J.J. Musmand, M. White„M. Lopez, M.A. Kaliner, and S.B. Lehrer, Journal ofAl/r.gy and Clinirallmmvnology91 (1 Part 2); 1993 [Sec Appendix A) .................................................................................................... ................. 8 RESPIRATORY DISEASES AND CONDITIONS - CHILDREN [31] "Lung Function, Pre- and Post-natal Smoke Exposure, and Wheezing in the FirscYnr of Life." 1.B. Tager, J.P. Hanrahan, T.D. Tosteson, R.G. Castile, R.W. Brown, S.T. Weiss, and F.E. Speizer, American Review ofRupirarory Disease 147: 811-817„ 1993 [See Appendix A] ............8 OTHER HEALTH ISSUES [32] "Ethnic Differences in Mortality from Sudden Infint Death Syndrome in New Zealand," E.A. Mitchell, A.W. Stewart, R. Scragg, R.P.K. Ford, B.J. Taylor, D.M.O. Becroft. J.M.D. Thomp- son, 1.B. Hassall. D.M.J. Barry, E.M. Allen, and A.P. Roberts, British Medical Journal306: 13-16, 1993 [See Appendix A) ................................................................................................ 8 ETS EXPOSURE AND MONITORING [33] "Passive Smoking and Urinary Cotinine Levels in Young Children," C.C. Johnson, E.L. Ptterson, and D.R. Ownby. Journal ofAllergy and Clinical /mmunology 91 (1 Part 2), 1993 [See Appendix A] .................................................................................................... ........................9 [34] "Urinary Cotinine Excretion at Work," S. Willers, 1. Bensryd, G. Skarping, and S. Skcrfving, Indoor Environment 1: 373-376, 1992 [See Appendix A] .........................................................9 (35] "Tobacco-Speci9c and Volatile N-Nitrosamines in Environmental Tobacco Smoke of Offices," H. Klus, H. Begutter, G. Scherer, A.R. Tricker, and F. Adlkofer, Indoor Environment 1: 348-350, 1992 [See Appendix A] ............................................................................................9 [36] "ChronicSidestream Cigarette Smoke Exposure Causes Lung Injury in Rabbits," M.L. Witten. P.M. Joseph, R.C. Lantz, D.S. Lazarus, W.K. Jung, and C.A. Hales, Indoor Environment 1: 341-347. 1992 [See Appendix A] ............................................................................................9 INDOOR AIR QUALITY (37] "Indoor Air Quality Management::A State of the Art Review and Identification of Research Needs," P.M. Bluyuen, Indoor Environment 1: 326-334, 1992 [See Appendix A) ....................9 [38] "Building-Related Asthma in Denver OfFice Workers." R.E. Hoffiman, R.C. Wood, and K. Kreiss. American fotrntal ofPublic Healrh 83(1): 89-93, 1993 [See Appendix A) ......................9 [39] "Health and Indoor Climate Complaints of 7043 Office Workers in 61 Buildings in the Netherlands," T. Zweers. L. Prellcr, B. Brunekreef, and J.S:M. Boleij, Indoor Air 2: 127-136.. 1992 [See Appendix A] .................................................................................................... ........ 9

Contents Continued, Issue 45 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS AUSTitAtIA [40] New, South Wales (NSW) Government Backpedals on Proposed Smoking Ban .................... 10 1411 MP Complains About Smoking Ban .....................................................................................10 BELGIUM [42] Royal Decree To Accommodate Smokers and Nonsmokers ................................................... 10 POLAND [43] Health Commission Proposes Smoking Ban ..........................................................................10 SWEDEN [44] Parliament Schedules Consideration of Anti-smoking Measure ............................................. 10 UNITED KINGDOM [45]' ETS Booklets Available in House of Commons Libnry .........................................................11 [46] I More Local Councils Decide to Adopt Smoking Restrictions ................................................11 ETS-RELATED LITIGATION INVOLVING CIGARETTE MANUFACTURERS Aus'rw+Lu [471 Tobacco Institute of Ausrralia Limited v. Stephen Woodward (Supreme Court, New South Wales) (filed April 15. 1993) .................................................................................................... .........11 ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS AusraALu [48] Camtron v. Qantas Ainamyr Limited (Federal Court, New South Wales) (filed April 7, 1993) 11 UNITED KINGDOM [49] Wright v. Ladbroker(Industrial Tribunal, Birmingham, England) (filed December 20. 1991) 12 OTHER DEVELOPMENTS Ausrwu.fA [501 CANADA (51] Fast Food Restaurants Ban Smoking ......................................................................................12 Health and Welfare Considered Smoking Shelter for Employees ........................................... 12 EUROPEAN COMMUNm (EQ [52] Anti-tobacco Groups Plan Cancer Week Initiative ................................................................12 (53] ETS Survey Shows Strong Support for Smoking Restrictions ................................................ 12 INDIA [54] ETS is Topic of Public Seminar .............................................................................................12 SvvEDFN (55] Swedish Tobacco Publishes Booklets on Smoking .................................................................13 UNJTFD KINGDOM [56] Oxfordshire Children Respond to ETS Survey ......................................................................13 (57] Smokers Found Under Hospital Beds Lighting Up ................................................................13 [58] Smoking Ballot to be Held .................................................................................................... 13 [59] FOREST Publishes Guide to U.K. Airlines that Permit Smoking .......................................... 13 Wow.D HEw1TH ORGANlurlorr (WHO) [60] WHO Releases Advisory Kit for `World No-Tobacco Day." .................................................. 13 APPENDIX A .............. ......... ».....».................... »...................... .......................................... ARTICLE SUMMARIES APPENDIX B ..................................................... .............. ................................ NATiONAL REVIEW EDITORIAL APPENDIX C .................................................................................................... ......... 77A V. lY/OODWilRD CLA1M

APRIL 16, 1993 l REPORT ON RECENT ETS AND IAQ DEVELOPMENTS IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS CONGRESS [1]' Petition Drive Follows House Survey on Smok- ing Policy Representative Richard Durbin (D-Ill.), who is the principal sponsor of the PRO-KIDS legislation cur- rently pending in Congress (H.R. 710), reportedly circulated petitions among House staffers on Apri15, 1993, to garner support for a push to establish restric- tions on smoking in the Capitol and House office buildings. Last month, Durbin conducted a survey of House members on their views about a smoking policy and found that nearly three-fourths of those polled favored a complete smoking ban. See issue 43 of this Report, March 19, 1993. The signatures reportedly gathered during the petition drive were to be turned over to the House Building Commission on April 13. The commission sets smoking policies for the House and has apparently promised in the past to establish some kind of policy. According to a press report, the petition calls for the protection of nonsmokers from "the health hazard of secondhand smoke by restricting smoking in the US Capitol and House Office Buildings." Some 200 signatures had reportedly been gathered during the first two days of the petition's circulation. See Roll Call, April 8, 1993. U.S. E1VVIRONMENTAL PROTECTION AGENCY (EPA) [2] "Junk Science," Editorial, National Reaiew, April 12,1993 This editorial discusses the EPA Risk Assessment on ETS and excoriates it as "another piece of junk science from the EPA." Stating that the EPA's classification of ETS as a Group A carcinogen "was achieved by a quite shamelecs abandonment of regular scientific proce- dures," the editorial suggests that the agency engaged in "lying" to reach a preordained resulc. Also addressed in the piece are recent EPA pronouncements about the purported dangers of radon, which the editors of the National Review said they found to be unsupported by the documentation EPA provided. A copy of the artide is attached as Appendix B. STATE AND L,OCAL GOVERNMENTS [3] Privacy Legislation On March 26, 1993, Montana Governor Mark Racicot (R) signed a bill that prohibits an employer from refusing to employ or from discriminating against an individual who legally uses a lawful product away from the workplace. See S.B. 160, 53d Legislature - Reg. Sess. (1993). In Idaho, the legislature adjourned before approving a bill that would have prohibited an employer from refusing to hire or from disciplining an employee for using a lawfvl product away from the workplace. See S.B. 1169, 52d Legislature - 1st Reg. Sess. (1993). In Washington, two bills that prohibited employer discrimination against employees who consume lawful products or who engage in lawful conduct off employer premises died in their respective committees. See H.B. 1365 and H.B. 1553, 53d Legislature - Reg. Sess. (1993). For purposes of this Report, there are three types of privacy legislation. They provide protection for those who (i) engage in lawfui activities, (ii) use lawful products, and (iii) use tobacco products. Bills that would prohibit discrimination against employees who engage in lawful activities away from the workplace are pending in six states: Florida, Hawaii, Iowa, Kansas, North Dakota and Washington. Bills that would prohibit discrimination against employees who use legal products in a legal manner are under consider- ation in four states: Alaska, Iowa, Nebraska and

2 Pennsylvania. Bills that would prohibit employers from discriminating against employees who use tobacco products specifically are pending in Alabama and Massachusetts. [4] ETS-Rdated State and Local Legislative Activities • Louisiana On March 29, 1993, a bill was introduced that would prohibit smoking in public places of governmental buildings, regulate smoking in other public places, and provide for local regulations. See S.B. 150, Regular Session (1993). • Minnesota Governor Arne Carlson (R) signed a bill on March 31, 1993, that would prohibit smoking in family or group family day care centers. See H.F. 29, 78th Legislative Session - Reg.. Sess. (1993). On March 24, 1993, a bill was introduced that would require the Department of Health to collect and disseminate information on the alleged effects of ETS on children, using a mass media program and restau- rant signs. The measure would also establish a children and smoking prevention account funded by revenue from certain mill percentages of cigarette tax. The bill would bar smoking in child or family day care resi- dences and would require restaurant signs on "smoking disease hazard" and on ETS eflieccs on children: See H.F. 1427, 78th Legislative Session - Reg. Sess. (1993). [5] Local Governments in Ohio The Cincinnati City Council has reportedly adopted a smoking ban in stadium seats, which will go into effect on January 1, 1994. The ban will affect sporting events, concerts and other events at city stadiums, induding Riverfront, which hosts the Cincinnati Reds major league baseball team. Council members had considered implementing an immediate ban in light of the EPA Risk Assessment on ETS, but agreed to delay the ban when the Cincinnati Reds agreed to voluntar- ily restrict smoking during the 1993 season. Under the voluntary policy, patrons bothered by ETS can enlist the aid of stadium workers in getting the smoker to move or in changing seats. The Reds' director of stadium operations reportedly told a council committee that a city-imposed smoking ban might induce the dub to leave the city. Under the ETS/IAQREPORT; ISSUE 45 new ordinance, smoking in the stadium will be punish- able by a fine of up to $100. See USA Today and' Associatrd Press, March 31, 1993. • Local Governments in Pennsylvania According to a news report, a state senator has written to Governor Robert P. Casey and the heads of several state departments asking them to impose a smoke free state building policy. The lawmaker was quoted to say that a smoke free policy would be "more than a matter of courtesy" since, according to the article, the EPA Risk Assessment linked ETS exposure to a list of serious ailments. Sar Uniud Pra.c Intenrationa% April 8, 1993. • Rhode Island According to the derk of the Senate, a bill that would have allowed the family court to consider the smoking habits of a parent when awarding custody has been "recommended for further study" by the Senate Judiciary Committee. The clerk stated the bill has now essentially died. Set S.B. 318, Reg. Sess. (1993). ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [6] Brvirx Oral Argument Set on Ctass Action Appeal Oral argument has been set for April 23, 1993, on plaintiffs' appeal of the trial court's order dismissing the dass action allegations of plaintiffs' complaint. If plaintiffs choose to file a reply brief, the brief is due on April 20. The appealszourt still has not indicated whether it will entertain oral argument on defendant's petition for certiorari. The certiorari petition seeks review of the trial court's denial of a protective order concerning notices to depose senior executives of six defendants. In proceedings in the trial court, the hearing on defendants' motion to compel discovery of plaintiffs' medical records is still set for April 20. The deposition of plaintiff Gary Hayes remains set for April 26; the deposition of plaintiff Valerie Gibson is scheduled to follow on May 17. At issue in this case are the claims of 30 flight atten- dants allegedly injured by occupational exposure to ETS. In addition, the husband of one of the flight

APRIL 16, 1993 attendants claims loss of consortium. The 30 atten- dants purport to represent a class of approximately 60,000 other attendants. The injuries alleged by the putative class representa- tives indude lung cancer, breast cancer and unspecified respiratory ailments. Plaintiffs further allege that occupational 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 associa- tions. Broin, et aL v. Phik'p Morrir, rt a1(Circuit Court, Dade County, Florida) (filed October 31,1991). [7] Butkr. Hearing on Plaintiffs' Motions Still Set for Natt Month A hearing is scheduled for May 21, 1993, on a series of motions filed by plaintifFs in which they request, among other relief, an order compelling discovery, leave to file a second amended complaint that would include additional claims of fraud and conspirary, and an order scheduling a discovery conference. (In the previous issue of this Report, the date of the hearing was incorrectly reported as Apri121.) Plaintiffs propose that the court retain the November 1993 trial date unilaterally scheduled by plaintiffs' counsel. Defendants, in a separately-filed motion, request that the court set aside the 1993 trial date, establish a discovery deadline of August 1, 1994, and schedule a pretrial conference for October 1, 1994. 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 discress. The defendants are the six major U.S. cigarette manufacturers and four tobacco wholesalers. Butltr v. RJ. Rrynoldr Tobacco Co., et aL (Circuit Court, First Judicial District, Hinds County, Mississippi) (filed October 21, 1992). [8] Zwillman: Court Grants Defendants' Dispositive Motions Plaintiffs counsel, David Gott, has filed a motion to withdraw from this case, stating that plaintiff has 3 consented to the withdrawal. A hearing on the motion has been scheduled' for Apri! 19, 1993. Gott filed the motion less than a week after the court granted defendants' dispositive motions. See issue 44 of this Report, April 2, 1993. The order gave plaintiff leave to reassert some of its claims against defendants Brooke Group, Ltd., and The American Tobacco Company. Brooke Group is the successor corporation to Liggett & Myers. This originally was a smoking-and-healtli case filed pro se by Wolf Zwillman for himself and as the personal representative of his wife, Marjorie, a smoker who allegedly died in 1989 of lung cancer. ETS claims were added in an amended complaint, which was filed after David Gott had entered his appearance. Based on the allegations in the current complaint and a trial court memorandum, the theory of plaintiff's case appears to be that Marjorie Zwilhnan's lung cancer was caused by her own smoking as well as the ETS from cigarettes smoked by herself and others. Plaintiff asserts that his ETS daims should be governed by environ- mental and toxicton law rather than products liability law. Zwillman v. Brooke Group LtcL, ct aL (U.S. District Court, New Jersey) (filed February 15, 1991; second amended complaint adding ETS daims filed February 13, 1992). ETS/IAQ LITIGATION NOT INVOLVING CIGARETI'E MANUFACTURERS AMEx1Cr+NS a7iTH D1sABIUr1FS AcT (ADA) [9j Staron v. McDonald's Corp.; Staron v. Burger IGag Corp.; Staron v. Wendy's O!d Fasbioned Hamburgers ofNew York, Inc. Nos. 93-CV-665 -666 -667 (U.S. District Court, Connecticut) (filed March 30,1993) Alleging discrimination under the ADA, plaintiffs in these cases seek to enjoin three fast food chains from permitting smoking anywhere in their restaurants. Plaintiffs Matthew Staron and Brandon Staples, who are named in all: three of the complaints, are minors who allegedly suffer from asthma. Plaintiff Jennifer Champagne, a minor who also alleges that she suffers from asthma, is named in the complaints against

4 McDonald's and Burger King. Plaintiff Linda Ravenell, named in all three of the complaints, alleg- edly suffers from lupus. All of the plaintiffs daim that they have been unable to enter the defendants' restau- rants without affecting their ability to breathe. Al- though the EPA Risk Assessment on ETS is not cited in the complaints, ETS is identified as a "Group A carcinogen." Plaintiffs claim "all that is necessary to give the plaintiffs full access to the defendant[s]restaurant[s] is the 'readily achievable' modification of the defendant's policies by prohibiting smoking in the premises owned, leased, operated, or franchised for operation by the defendant[sj." Plaintiffs seek a declaratory judgment of discrimination on the basis of disabiliry, an injunction prohibiting the defendants from continuing any policy which interferes with the plaintiffs' use of their facili- ties, costs and attorneys' fees. Plaintiffs' attorney is Robert Farr of Hefferman, Farr, McChord and Morelli in Hartford, Connecticut. An article appearing in The Wall StnetJournal discusses the lawsuits and asserts that the "vague wording" of the ADA gives plaintiffs' lawyers the opportunity to apply it "in a wide range of surprising contexts." In the artide, Farr asserts that the ADA is broad enough to prohibit smoking in restaurants; discrimination law specialists interviewed for the artide say, "screwy daims" that Congress never intended under the ADA will probably be made. The article notes that Farr "makes no secret that anti-smoking zeal rather than concern for the disabled triggered his initial interest in the ADA. As a Connecticut state representative, he tried unsucassfully to win legisla- tion banning restaurant smoking." Apparently, the American Lung Association gave him the names of the mothers of children who are named as plaintiffs in the complaints. See The Wa1lStrcetJou»iaZ March 31, 1993. [10] Harmer v. Virginia Electric and Power Co. (U.S. District Court, Eastern District Virginia) (filed March 10, 1993) The defendant employer in this ADA action has filed its answer refuting claims that it discriminated against employee Robert Harmer by not adopting a workplace smoking ban to accommodate his alleged bronchial ETS/IAQ REPORT, ISSUE 45 asthma. See issue 43 of this Report, March 19, 1993. Raising a variety of defenses, Virginia Power asserts that it has provided reasonable accommodation to Harmer's condition and that a smoking ban is not necessary to allow Harmer to perform the essential functions of his position. Virginia Power also daims that the Virginia Workers' Compensation Act bars some or all of Harmer's claims. The court has scheduled a pre-trial conference for July 8, 1993. WORxP1 ACE: IAQ [11] Babara v. SEWInvestvn(Superior Court, District of Columbia) (61ed September 14, 1990) A pre-trial conference, postponed from November 1992, has been scheduled for June 6, 1993. A June 28 trial date has been set. The case involves employees of EPA who have sued various parties involved in renovat- ing the Waterside Mall building complex that serves as EPA's headquarters. Plaintiffs allege health problems due to poor indoor air quality. See issues 9 and 14 of this Report, October 17, 1991 and January 17, 1992. WORKPLACE: SMOKERS' RIGHTS [12] Graff v. Thermal Contr+o4 Inc., No. 20,338 (New Mexico Supreme Court) (decided Febru- ary 17, 1993) The New Mexico Supreme Court has affirmed a district court decision entering summary judgment against a smoker who was fired for smoking during her lunch break off her employer's premises. Ann Graff was fired before enactment of the New Mexico Em- ployee Privacy Act which protects smokers from job discrimination, and had sued Thenmal Control for breach of contract, wrongful termination, negligent misrepresentation and prima faae tort. See issue 31 of this Report, September 25, 1992. The supreme court based its decision upon the state's employment-at-will case law and specifically rejected Grafl's daims that a discharge for smoking cigarettes violates a fundamental right to privacy.

APRIL 16, 1993 WOwcriACE: WOIZICERS' COMPENSATION [13] Bennett v. Commonwealth ofVirginia, Depart- ment of Taxation, N. 158-42-51 (Vi rginia Workers' Compensation Commission) (decided March 29, 1993) The Virginia Workers' Compensation Commission has rejected a claim for medical benefits and temporary total disability benefits filed by a state employee who alleged that ETS exposure in the workplace caused her to contract asthmatic bronchitis. See issue 38 of this Report, January 7, 1993. Suzanne Bennett, a data entry operator in the Vir- ginia Department of Taxation, had begun complaining about ETS in April or May 1992, approximately a year and a half after she had quit smoking. Bennett, upon request, was moved to a nonsmoking section of the office, but she refused an offer of a transfer to a totally smoke-free area. In addition, she stopped wearing a respirator given to her by her employer, complaining that it was heavy and uncomfortable. The commission determined that asthmatic bronchi- tis was an ordinary disease of life which would only be compensable if Bennett could prove whether the smoke in her work area was the primary source of her condition. Based upon the fact that Bennett had a pre-existing history of asthma and had been a smoker, the commission found that her asthmatic bronchitis was not primarily caused by workplace ETS exposure. [14] Burnett v. Polk Center, 1993 WL 93274 (Penn- sylvania Workers' Compensation Appeal Board) (decided March 19, 1993) The Pennsylvania Workers' Compensation Appeal Board has affirmed, in part, the decision of a referee denying a daim of workplace injury on the basis of ETS exposure. Claimant Janet Burnett alleged that the cigarette smoke from a smoking room at her place of employment caused or aggravated her chronic bronchi- tis. The board determined that there was sufficient evidence in the record to support the referee's finding that the claimant had failed to prove she worked in a "smoke environment " The referee's decision was overturned to the extent that it prematurely terminated benefits for a work-related hernia injury. 5 [15] Appolant v. Respondent, 1993 WL 87792 (Texas Workers' Compensation Commission) (decided March 19, 1993) The Texas Worker's Compensation Commission has affirmed the decision of a hearing officer who determined that the claimant, a nonsmoker who alleged that ETS exposure caused her to suffer an occupational disease, did not sustain a compensable injury in the course and scope of her employment. The unidentified claimant was a senior accounting clerk employed by a chemical company. She claimed that excessive work hours in a trailer with smokers caused her to suffer tiredness, memory loss, nausea, abdominal pains and dizzy spells. The commission determined that there was insufficient evidence in the record to support her claims. PRISONER CASE [16] BrigaerRs v. Cardoza, 1993 U.S. Dist. LFJQS 3925 (U.S. District Court, Northern District California) (decided March 19, 1993) Dismissing a state prisoner's claims that his civil rights were violated due, among other matters, to the absence of nonsmoking cells and to inadequate ventila- tion, a U.S. District Court has granted the motion for summary judgment filed by the defendants in this action. The case was on remand from the Ninth Circuit Court of Appeals, which required the develop- ment of a factual record on prisoner Robert Brigaerts' claims for damages for alleged inadequate medical treatment and conditions of confinement. The court gave these reasons for deciding that Brigaerts did not state valid Eighth Amendment claims: Brigaerts had failed to daim that he suffered any harm from ETS exposure or from allegedly inadequate ventilation; the defendants showed that Brigaerts `did not alert anyone to any irritation that he might have been experiencing due to cigarette smoke"; and the ventilation system was functioning adequately.