Tobacco Documents Online

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.

6 LEGAL ISSUES AND DEVELOPMENTS [17] "Environmental Tobacco Smoke and Its Effect on Children: Controlling Smoking in the Home," A.D. Schwartz, Boston College Environ- mentalA,,(~'airs Law Review, 20: 135-171 (1993) This student-written comment discusses the alleged health effects of ETS exposure on children and explores the possible legislative and.judicial approaches that can be taken to prevent parents and caretakers from smoking in the presence of children in the home. The author cites extensively to ASH publications and refers to early drafts of the EPA Risk Assessment on ETS in building her case in support of in-home control of smoking behavior. After noting that the state has a legitimate interest in protecting children's health, the author concedes that problems with enforcement would ultimately foil any attempt by courts or legisla- tures to prevent parents from exposing their children to ETS. [18] "Protecting Job Opportunities of Smokers: Fair Treatment for the New Minority," D.W. Garner, Seton Hall Law Review, 23: 417-458 (1993) Southern Illinois University law professor Donald Garner analyzes the laws enacted in more than half the states since 1989 that protect smokers from job discrimination. Garner's anti-tobacco bias is evident in this article, even as he expresses sympathy for individu- als "mired in an addiction reckoned by the Surgeon General to be similar to that produced by heroin and cocaine. " Garner criticizes the statutes he discusses and says he fears that some legislatures are erring in according to smoking the status of a civil right. He proposes legisla- tion that would prohibit discrimination against only those smokers who are qualified to do the job and would permit employers to refuse to hire smokers whose rates of absenteeism hinder job performance. His proposal would also permit employers to charge smokers higher rates for health insurance and would exempt from coverage small businesses, businesses that have a "rational work related reason" for refusing to hire smokers, and businesses engaging in activities that pose a particular health risk for smokers. Garner appears to be uncomfortable with the total exclusion of smokers from employment opportunities ETS/IAQ REPORT, ISSUE 45 and discusses the privacy infringement which goes hand in hand with employment discrimination practices. He does, however, believe that smoking should be discouraged by government policies and that anti-smoking activists should focus their attention on tobacco companies rather than on smokers. OTHER DEVELOPMENTS [19] Off-the-job Smoking is Survey Subject The Society for Human Resource Management reportedly surveyed its members regarding whether off-the-job activities such as smoking should be used as a basis for employment decisions. The society, which represents the interests of some 50,000 members in the human resource profession, found that of the 467 members responding, more than 75 percent believe that smoking ofF the-job should not be a faaor in employment decisions. More than 77 percent of those surveyed, however, apparently believe that employers should have the right to charge smokers more for health care premiums. Sa PR Newswire, Apri15, 1993. [20] Hot Line Provides ETS Information The Maryland Cancer Control Program has report- edly established a toll-free hot line for residents to obtain information on the alleged effects of ETS exposure, among other matters. The hot line is appar- ently pan of a three-year campaign to reduce the state's cancer mortality rate. See Balt imort Morning Sun, April 6, 1993. [21] Insurer Offers Discounts for Workplace Smok- ing Bans According to press reports, Sun Life of Canada Insurance Co. is offering U.S. companies five percent discounts on their group life premiums if they offer their employees one or more wellness programs, including smoking bans and smoking cessation pro- grams. See Ntwrday, March 28, 1993. [22] Restaurant Bans Smoking In Bar According to a news report, the Islands Restaurant in Manhattan Beach, California, as well as all 12 of the

APRIL 16, 1993 other restaurants in the chain, imposed a ban on smoking in both its bar and restaurant areas. According to the report, the decision followed a release of the EPA Risk Assessment on ETS. See Los Angeles Times, Apri12, 1993. MEDIA COVERAGE [23] "A Dying Breed," 20/2g April 2, 1993 This segment of the ABC News telecast, 20/24, featured interviews with smokers who have been forced by nonsmoking policies in public places, workplaces, restaurants and public transportation to limit their consumption of cigarettes to their homes or out of doors. One smoker stated that nonsmokers harass her when she does smoke by accusing her of killing babies. Other smokers, who refused to be identified for the program reportedly due to pressure from employers and family, were quoted as saying that nonsmokers will emit an "unrelenting light cough" when smokers light up in the smoking section of restaurants. John Banzhaf, executive director of ASH, appeared on the program and predicted that by the year 2000 smoking would be outlawed in virtually all public places. Moderator Hugh Downs noted that bans or restrictions are already in place around the country and reported that in Pennsylvania, a proposal has been made to ban smoking in vehicles where children under the age of 15 are passengers. [24] "No-smoking Bill Example of Government 'Nannyism,'" LT. Izumi, Sacramento Sunday Union, March 28, 1993 Lance Izumi, director of a California-based think tank, writes in this opinion piece that pressure from consumers, and not legislative mandate, should drive the demand for and establishment of smoke-free indoor environments. Ixumi criticizes the EPA Risk Assessment on ETS as an example of "politic.ally correct statistical manipulation," and argues that a bill pending in the California legislature that would ban smoking in any enclosed workplace, including restau- rants, hotels and bars, would cripple the tourism industry and the state economy. 7 A discussion of the bill, A.B. 13, appears in issue 42 of this Report, March 5, 1993. The bill is currently pending in an Assembly committee. [25] "Smokers Run Out of Room; More Smokers Find Thernsdves Out in the Cold," D. Tofig and M. Swift, TIx Hartfnrrl CourmM March 29, 1993 This attick discusses the latest measures being taken by Hartford business and eating establishments to eliminate ETS from indoor environments. Apparently the EPA Risk Assessment on ETS has been a factor for those business owners who have decided to impose total smoking bans. A.C. Peterson restaurants report- edly adopted a smoking ban beginning April 16 in response to the risk assessment. According to a state representative who has proposed legislation to ban smoking in all public buildings, smoking bans may ultimately result from litigation, even if the legislature fails to act to protect nonsmokers from ETS exposure. SCIENTIFIC/TECHNICAL ITEMS LUNG CANCER [26] NCI Study Suggests Lung Cancer Risk Associ- ated with Dietary Fat Press reports indicate that initial data from a study funded by the national Cancer Institute suggests that nonsmoking women whose diet includes a high consumption of fatty foods are at an increased risk for lung cancer. Michael Alavanja, study director, apparently pre- sented his data at a meeting of the American Cancer Society on March 30, 1993. The study was conducted in Missouri, and consisted of a review of reported cases of lung cancer. Some 600 nonsmoking cases and 1,400 controls were studied with respect to their dietary habits. Reportedly, women with a"high-fat° diet, defined as more than 40 percent of daily calories from fat, had an approximately four-fold risk for lung cancer, compared to women with a lower percentage of fat in the diet.

8 [27] "Estimating a Summarized Odds Ratio Whilst Eliminating Publication Bias in Meta-analysis," M. Sugita, M. Kanamori, T. Izuno, and M. Miyakawa, Japanese Journal of Clinica! Oncology 22: 354-358, 1992 [See Appendix A] The authors of this study present a statistical method for calculating the reported relative risk from epidemiologic studies that have not been published. Using this theoretical approach to quantifying publica- tion bias, they suggest that unpublished studies could reduce the summary relative risk generated by meta-analysis of a subset of the studies on spousal smoking and lung cancer. CARDIOVASCULAR ISSUES [28] "Inhalation of Sidestream Smoke Accelerates Arteriosderotic Plaque Development," A. Penn and CA. Snyder, Toxicologist 13: 408, 1993 [See Appendix A] The authors of this abstract report on an experiment in which cockerels (young male chickens) were exposed to sidestream smoke. They report that exposed birds developed larger arterial plaques, although the inci- dencc of plaque formation was not affected. RESPIRATORY DISEASES AND CONDITIONS - ADULTS [29] "'Tobacco Smoke Allergy:' A Fallacy?" J.J. Musmand, M. McCants, M. Lopez, P. Menon, and S. Lehrer, Annals ofAlkrgy70: 55, 1993 [See Appendix A] In this abstract, the authors describe a study in which asthmatic patients were experimentally exposed to ETS, as well as being assessed for an allergic response to tobacco leaf and smoke extracts. They report no correlation between reactivity to the extracts and pulmonary response following ETS exposure. [30] "The Nasal Response to Environmental Tobacco Smoke," J.J. Musmand, M. White, M. Lopez, M.A. Kaliner, and S.B. Lehrer, Journal ofA&-rgy and Clinical Immunology 91 (1 Part 2), 1993 [See Appendix A] ETS/IAQ REPORT, ISSUE 45 In this abstract, the authors report on an ETS exposure study assessing pulmonary function, "nasal secretory response," and subjective reports of symp- toms in eight asthmatics. Reportedly, while subjective symptoms were "significant," there were no significant changes in the other, more quantifiable, parameters. RESPIRATORY DISEASES AND CONDITIONS - CHILDREN [31] "Lung Function, Pre- and Post-natal Smoke Exposure, and Wheezing in the First Year of Life," I.B. Tager, J.P. Hanrahan, T.D. Tosteson, R.G. Castile, R.W. Brown, S.T. Weiss, and F.E. Speizer, American Review of Respiratory Disease 147: 811-817, 1993 [Sec Appendix A] Based on data for 97 infants whose pulmonary function was first assessed before six months of age, the authors report that infants who had a wheezing lower respiratory infection (LRI) in the first year of life were likely to have had reduced levels of lung function prior to the illness. They suggest that maternal smoking during pregnancy is associated with LRI, but report that nonmaternal ETS exposure was not associated with an excess risk of LRI. OTHER HEALTH ISSUES [32] "Ethnic Differences in Mortality from Sudden Infant Death Syndrome in New Zealand," E.A. Mitchell, A.W. Stewart, R. Scragg, R.P.IG Ford, B.J. Taylor, D.M.O. Beaoft, J.M.D. Thomp- son, LB. Hassall, D.M J. Barry, E.M. Allen, and A.P. Roberts, British Medical Journa1306: 13-16, 1993 [See Appendix A] In another publication based on the New Zealand cot death study, the authors analyze potential sudden infant death syndrome (SIDS) risk factors in Maori and non-Maori infants. They report that the higher risk of SIDS among Maoris is related to several lifestyle factors, induding a higher prevalence of maternal smoking.

APRIL 16, 1993 ETS EXPOSURE AND MONITORING [33]' "Passive Smoking and Urinary Cotinine Levels in Young Children," C.C. Johnson, E.L Peterson, and D.R. Ownby, Journal ofAllmgy and ClinicalImmunology91 (1 Part 2), 1993 [See Appendix A] This abstract, scheduled to be presented at a March 1993 meeting, reports on a comparison of reported exposure to smokers and urinary cotinine levels in 103 children. Reportedly, the data on exposure could be used to predict cotinine level. [34] "Urinary Cotinine Excretion at Work," S. Willers, I. Bensryd, G. Skarping, and S. Skerfving, Indoor Environment 1: 373-376, 1992 [See Appendix A] This meeting abstract (fiom "Indoor Air Interna- tional," April 28-30, 1991, in Athens, Greece) reports on urinary cotinine measurements from persons reportedly exposed to ETS at home or at work. The authors report higher cotinine levels in persons work- ing in a cafe or a restaurant, as compared to an office. [35] "Tobacco-Spedfic and Volatile N-Nitrosamines in Environmental Tobacco Smoke of Offices," H. I{lus, H. Begutter, G. Scherer, A.R Tricker, and F. Adlkofer, Indoor Environmart 1: 348-3 50, 1992 [See Appendix A] In thisatudy, nitrosamines were measured in a "poorly ventilated" office in Vienna. The authors report levels of tobacco-specific nitrosamines in this office that, they note, correspond to a"`worst-case' situation." They calculate substantially lower exposures based on "real-lik conditions." [36] "Chronic Sidestream Cigarette Smoke Exposure Causes Lung Injury in Rabbits," M.L. Witten, P.M. Joseph, RC. Lantz, D.S. Iarzrtts, W.K Jung, and C.A. Hales, Indoor Envisivnmrnt 1: 341-347, 1992 [See Appendix A] In this study, a small number of rabbits were experi- mentally exposed to sidestream smoke over a 20-day period. Based on their reported measurements of lung clearance, white blood cell count, and metabolic products, the authors propose that the exposure "can induce lung injury." 9 INDOOR AIR QUALITY [37J "Indoor Air Quality Management: A State of the Art Review and Identification of Research Needs," P.M. Bluyssen, Indoor Environrntnt 1: 326-334, 1992 [See Appendix A] The author of this paper summarizes the conclusions and recommendations generated by participants in a 1991 workshop of the Commission of European Communities. Focusing on indoor air quality manage- ment, the workshop induded reviews of the "state of the art" and future research needs. [38] "Building-Related Asthma in Denver Office Workers," RE. Hoffman, RC: Wood, and K Kreiss, American Journal of Public Health 83 (1): 89-93, 1993 [See Appendix A] Based on two individual case reports of building-related lung diseasc, the authors of this study instituted a survey of employees in the building where the cases worked. They report an excess of respiratory disease among workers in the building, but could not elucidate the etiology of the problem, although they note that the ventilation system did not appear to be involved, [39] "Health and Indoor Climate Complaints of 7043 Office Workers in 61 Buildings in the Netherlands," T. Zweers, L Preller, B. Brunekreef, and J.S.M. Boleij, Indoor Air 2: 127-136, 1992 [See Appendix A] In this paper, Dutch researchers report on question- naire data collected from office workers concerning health complaints, personal and workplace characteris- tics, and indoor dimate complaints. These data are analyzed with respect to some IAQ measurements and building characteristics (e.g., ventilation systems). Overall, the authors report a higher prevalence of reported symptoms in air-conditioned buildings, plus associations between complaints and gender, work satisfaction, and personal control of workplace tem- perature.

10 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS AUSTRALIA [40] New South Wales (NSW) Government Backpedals on Proposed Smoking Ban The NSW government has reportedly decided it will no longer press for a complete ban on smoking in public places by 1998. A press report indicates the decision was made following a meeting with Australian Hoteliers' Association representatives. The president of the association reportedly said that the outcome of the meeting with the minister for industrial relations was to work toward voluntary measures that would result in a smoke-free environment in public places. See Sydney Morning Herald March 27, 1993. Meanwhile, the Australian Medical Association's New South Wales president reportedly criticized the hoto- liers for opposing the proposed ban on smoking in endosed public places. See Daily Telegraph Mirror, March 26,1993. In a related story, it has been reported that the Elephant's Foot hotel in Surry Hills, became Sydney's first nonsmoking pub at the beginning of April: See Sydney Morning Herald March 27, 1993. [41] MP Complains About Smoking Ban Camden MP Liz Kemohan reportedly objects to the smoking ban that has been proposed for Parliament House by Health Minister Ron Phillips. She appar- ently believes that State MPs should be given a special exemption from the rule, and was quoted as saying, "I am not convinced about passive smoking. It is abso- lutely degrading and disgusting the way people have to go out on the footpath to have a cigarette." Kernohan reportedly views a ban as an attack on personal free- dom and the work of a vocal minority. See Sun Hcrald, April 4, 1993; Daily Telegraph Mirror, Apri16, 1993. ETSIIAQ REPORT, ISSUE 45 BELGIUM [42] Royal Decree To Accommodate Smokers and Nonsmokers A Royal Decree regulating the use of tobacco in the workplace will reportedly be published at the end of April. According to the decree, the interests of smokers and nonsmokers must be taken into consideration, and any measures adopted must be based on mutual tolerance, respect of individual freedom and courtesy. Employers are directed to take steps to eliminate any nuisances due to ETS. See IDT, April 1, 1993. Meanwhile, Miet Smet, the Minister of Employment and Labour, has reportedly announced that she will soon force all employers to take measures to reduce the harm allegedly caused by smoking in the workplace. See Rtutrrs, March 29, 1993. POLAN D [43] Health Commission Proposes Smoking Ban The Health Commission of the Christian National Union has reportedly prepared a bill which would, among other matters, ban smoking in schools, hospi- tals, workplaces and restaurants. See Polrsh News Bulletin, March 31, 1993. SWEDEN [44] Parliament Schedules Consideration of Anti-smoking Measure The New Tobacco Act has reportedly been presented to Parliament and will be considered by that body on May 27, 1993. Under the proposal, smoking would be restricted to designated areas in nurseries, schools and health care facilities and on means of public tnnsporta- tion. The measure would also require hotels to make smoke-free rooms available and would require that restaurants seating more than 50 patrons to establish smoke-free areas. With regard to workplaces, the bill would require that employers and employees work together to achieve smoke-free premises. The introduc- tion of the Act is discussed in issue 41 of this Report, February 19, 1993.

APRIL 10, 1993 UNITED KINGDOM [45] ETS Booklets Available in House of Commons Library Junior Health Minister Dr. Brian Mawhinney recently reported to the House of Commons that three booklets on ETS are currently available in the Library. They are (i) the Department of the Environment's "Code of Practice on Smoking in Public Places;" (ii) the Health and Safety Executive's "Passive Smoking at Work;" and (iii) "Passive Smoking A Health Hazard," published by a consortium of statutory and voluntary organizations. According to Dr. Mawhinney, the Health Education Authority's booklet, "Passive Smoking Questions and Answers," is being reprinted and a copy will be placed in the Library. See Hansard (House of Commons Report), March 12, 1993. [46]' More Local Councils Decide to Adopt Smoking Restrictions Among those local councils reportedly adopting or considering adopting smoking restrictions are Buckinghamshire, Thanet and Kent County Councils, Edinburgh District Council and Wolverhampton Council. According to press reports, heated debate in Buckinghamshire was responsible for preventing officials there from adopting a total ban. See Bucks Free Aress, March 16 & 19, 1993; Isle of Thanet Gazette, March 1993; Wolverhampton Express & Star, March 1993; Edinburgh Evening News, March 1993. ETS-RELAI'ED LITIGATION INVOLVING CIGARETTE MANUFACTURERS AUSTRALIA [47] Tobacco Institute ofAu.+tralia Limited a. Stepfien Woodward (Supreme Court, New South Wales) (filed April 15,1993) The Tobacco Institute filed suit against Stephen Woodward on April 15, 1993. In its Statement of Claim, TIA alleges Woodward made certain misrepre- sentations to the media relating to the Full Federal 11 Court's decision in the AFCO case, among other things, in violation of the NSW Fair Trading Act of 1987. The statement alleges that Woodward is a well-known anti-smoking advocate who provides consulting services to AFCO, is Executive Director of Action on Smoking and Health (ASH) and Director of the NSW Cancer Council. TIA seeks injunctive relief, a declaration that the representations made by Woodward were misleading under the Fair Trading Act, correction of the represcn- tations in the media, and costs. For particulars alleged in the case, the Statement of Claim is attached as Appendix C. ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS AUSTRALIA [48] Camerrnn v. Qantas Airrvays Limited (Federal Court, New South Wales) (filed April 7, 1993) A woman who daims that a shopping trip to Bangkok was ruined when she was forced to travel there on a Qantas flight seated next to a heavy smoker, filed an action on April 7, 1993, in Federal Court against the airline for pain and suffering. Leonie Cameron, 50, of Sydney, daims that her request for a nonsmoking seat was denied and she spent eight hours exposed to ETS, which allegedly caused her to contract bronchitis. Cameron is seeking unspecified damages, injunctive relief, and a declaration that Qantas engaged in unconscionable, misleading or deceptive conduct in permitting smoking and its aircraft. The airline reportedly gave Cameron a voucher for another trip to Bangkok, but she apparently decided to sue based upon what she has called "the principles involved." See Sydnry Morning Herald Courirr-MaiZ and Telrgraph-Mirror, April 7, 1993. Cameron is represented by Roland Everingham of the Cashman and Partners law firm. Cashman and Pan= ners represented the plaintiffs in the AFCO and Scholem cases. The action was filed under a procedure which permits anyone with a similar complaint to join. Cashman and Partners has reportedly heard from three

12 other individuals who are interested in joining the group action, although one of the three has different health problems that are not purportedly related solely to ETS exposure. See Daily Telegraph, April 8, 1993. UNITED KINGDOM [491 Wnght v. Ladbrokes (Industrial Tribunal, Birming- ham, England) (filed December 20, 1991) On March 26, 1993, panel members of a Birming- ham industrial tribunal reportedly finished hearing evidence in the case of a betting shop employee who was fired for smoking at work in violation of a smoking ban for employees. See issue 44 of this Report, April 2, 1993. According to press reports, a decision as to whether Pauline Wright was unfairly dismissed will be forthcoming in the next several weeks. See Covtntry Evening Telegraph, March 27, 1993. OTHER DEVELOPMENTS AUsrRALIA [50] Fast Food Restaurants Ban Smoking According to press reports, Hungry Jack's and Kentucky Fried Chicken have announced plans to ban smoking in their outlets. Hungry Jack's apparently provided designated smoking areas, but has decided to scrap them because they proved unsatisfactory. See Sunday Mai4 April 4, 1993. CANADA [51] Health and Welfare Considered Smoking Shelter for Employees Health and Welfare Canada seriously considered several options recently that would protect smoking employees in Ottawa from the elements, including construction of a separate building for smokers, according to documents obtained by the press under the Access to Information Act. Smoking was banned in all government buildings on January 1, 1989, and when a new deputy minister took office in October 1992, he was apparently disturbed about public ETS/IAQ REPORT, ISSUE 45 servants smoking around entrances or on loading docks, buffeted by wind and snow. The proposal was evidently scrapped when senior department officials decided that a smoking shelter would send the wrong message to the public. Health and Welfare Canada administers Canada's antismoking laws. See The Ottawa Citizen, April 6, 1993. EUROPEAN COMMUNITY (EC) [52] Anti-tobacco Groups Plan Cancer Week Initiative The Cancer Education Coordinating Group, Europe Against Cancer and ASH are reportedly planning their initiative for this year's Cancer Week, which will be held from October 11-17, 1992. The initiative, entitled "Breathing Space," is apparently designed to help organizations and individuals develop the skills to lobby for smoke-free policies and premises. The initiative will also encourage increased social awareness about ETS. See Europe Against Cancer, March 1993. [53] ETS Survey Shows Strong Support for Smoking Restrictions Although only 52 percent of Europeans believe that ETS can cause serious illness, some 82 percent would like to see smoking restrictions implemented in public places and 88 percent are in favor of the segregation of smokers and nonsmokers in the workplace, according to a survey conducted in the 12 EC member states. The survey also showed that only 38 percent of nonsmokers "often" or "sometimes" ask smokers to stop smoking in their presence, and that 72 percent of smokers "often" or "sometimes" refrain from smoking in order not to disturb others. The survey was appar- ently based upon oral interviews of 12,800 people over the age of 15. The survey was conducted in autumn 1992 and has just been released. See Press Association Newsfile, March 30, 1993; The Reuter European Community Report, March 29, 1993. INDIA [54] ETS is Topic of Public Seminar During a public seminar hdd recently in New Delhi, representatives of the Heart Care Foundation of India reportedly said that ETS is more dangerous than the

APRIL 16„1993 mainstream smoke inhaled by smokers. The vice chairman of the foundation reportedly discussed the alleged health effects on children exposed to ETS and suggested that smoking be banned in government offices. According to press reports, doctors in India are now calling for ETS to be dedared a carcinogen. See Xinhua General News Service, April 11, 1993. SWEDEN [55]' Swedish Tobacco Publishes Booklets on Smoking Svenska Tobaks (Swedish Tobacco) has reportedly published booklets that, among other matters, promote common courtesy and tolerance between smokers and nonsmokers by means of humorous text and cartoons. The company is also promoting a contest among students at Sweden's largest design schools to create an ashtray for public areas. See Tobacco Reporter, March 1993. UNITED KINGDOM [56] Oxfordshire Children Respond to ETS Survey According to press reports, nine of ten Oxfordshire children surveyed do not like to be near smokers, particularly in cars and buses. Anti-tobacco group OxASH reportedly conducted the survey which included 250 students between the ages of nine and 11. A spokesperson for OxASH was quoted as saying the children "expressed their views strongly and showed an understanding of the health risks of smoking and of passive smoking." The survey also revealed that some ten percent of the children had apparently tried smoking. See Witney Gatette, March 18, 1993. [57] Smokers Found Under Hospital Beds Iighting Up A smoking ban introduced two years ago at Walsgrave Hospital in Coventry has reportedly resulted in patients smoking under their beds and blankets, in bathrooms and in store cupboards. According to the general manager of the hospital, an effort will be made, for safety reasons, to accommodate smoking patients in spite of the ban, and a place will be found for them to smoke. See Cmirutry Esrning Telegraph Mareh 24, 1993. 13 [58] Smoking Ballot to be Held The Faculty of Advocates in Edinburgh, Scotland, is reportedly planning to hold a ballot on smoking. Accord- ing to press reports, advocate Siggi Bennett, a former smoker, is urging his colleagues to ban smoking in their Parliament House headquarters. Leading advocate Donald Findlay QC is apparently opposed to implementation of a smoking ban. Quoted in the press, Findlay said "I'd like to ban the people who'd like to ban smoking. There's no bigger hypocrite than an ec-smoker." See The Daily Telrgraph, March 29, 1993. [59] FOREST Publishes Guide to U.K Airlines that Permit Smoking The Freedom Organisation for the Right to Enjoy Smoking Tobacco (FOREST) hu published a new guide for smoker-friendly aircraft entitled "Travel in Tolerance." FOREST'evidently conducted a survey of airlines with offices in the United Kingdom and indudes a table in its guide listing popular destinations and whether smoking is permitted or banned on domestic or international flights to those locations. The lists also contain information on the reasons given for the smoking bans and whether the traveler is informed at check-in that smoking is banned on the flight. WORLD HEALTH ORGANIZATION (WHO) [60] WHO Releases Advisory Kit for "World No-Tobacco Day" WHO has issued its advisory kit for its sixth annual World No-Tobacco Day, which will be held on May 31, 1993. The theme of the event is "Health Services: Our Wmdow to a Tobacco-free World." Activities will apparently be directed toward raising the awareness of workers in the health care field about the alleged health eff'occs of ET S and smoking. WHO will be promoting smoke-free health premises for patients, visitors and staff

APRIL 16, 1993 APPENDIX A The numbers assigned to the following article summaries correspond with the numbers assigned to the synopses of the articles in the text of this Report. SCIENTIFIC/TECHNICAL ITEMS LUNG CANCER [27] "Estimating a Summarized Odds Ratio VVhilst Eliminating Publication Bias in Meta-analysis," M. Sugita, M. Kanamori, T. Izuno, and M. Miyakawa, Japanese Journal of Clinrcal Oncology 22: 354-358, 1992 "Publication bias is a recognized phenomenon, i.e. studies with statistically significant results are more likely to be published than those finding no difference between the groups studied. Summarized odds ratio calculated fiom odds ratios of published studies in a meta-analysis may be overestimated because of publica- tion bias. This is a significant problem in research areas involving weak associations between causes and results. The magnitude of publication bias in a given research area cannot be determined directly. The present study enables us to calculate the summarized odds ratio of hypothetical unpublished studies from odds ratios of published studies indirectly....We can then estimate summarized odds ratio in all studies, which indude not only those published but also those unpublished. When these studies are homogeneous in quality and their odds ratios homogeneous in quantity, the method can eliminate publication bias." "In a meta-analysis, a summarized odds ratio with its 95% CI was calculated using the odds ratios and 95% CIs of fifteen published epidemiological studies on the relation between exposure to environmental tobacco smoke (ETS) and risk of lung cancer. [We calculate] the summarized odds ratio R to be 1.27 and its 95% CI, 1.53-1.05 ° "From the results of the fifteen published epidemio- logical studies, the method employing in the present study revealed the odds ratio of the hypothetical unpublished study to be 1.01 and its 95% CI, 1.44- 0.71. The summarized odds ratio 1.21, of all studies, induding not only those published but also hypotheti- cal unpublished studies, and its 95% CI, 1.42-1.02, were also calculated." A-1 "For review work, especially meta-analyses in a given research area where there is a weak association between a cause and its result, nonpublication of some studies where no significant differences have arisen between the groups studied is a notable problem. In the epide- miological area concerned with the relation between ETS and lung cancer, it is thought that some studies, where there was no statistically significant result, have not been published. Published studies in a given research area may sometimes not be random samples from the population. The summarized odds ratio of published studies in an epidemiological area is consid- ered to be greater than that of unpublished studies. Results of unpublished studies cannot be obtained directly. The odds ratio of a set of unpublished studies, however, can be obtained indirectly using the method of the present study." "The summarized odds ratio of the fifteen published epidemiological studies for the relation between ETS and lung cancer with its 95% CI was calculated to be statistically significant in the meta-analysis. It is considered to be overestimated because of publication bias. The method of the present study gave the sum- marized odds ratios of the unpublished studies and all studies with their 95% CIs. The summarized odds ratio of all studies in epidemiology for the relation between ETS and lung cancer was barely statistically significant in the meta-analysis when the unpublished studies were added to the published studies for the calculation. The present study also revealed the weight percentage of the unpublished studies to be 21.6%. It is impossible to confirm whether or not the values calculated in the present study are dose to the true values. These calculated values can, however, be considered acceptable." "The method of the present study, by which the summarized odds ratio of all studies can be indirectly estimated, is therefore a useful one, providing all the studies used for the calculation in the meta-analysis are of good quality. When the quality of some studies is good and that of others poor, or when some studies are prospective and others arc retrospective, i.e. the study quality is heterogeneous, meta-analysis is not a valid tool. In such a situation the present method is also useless."

A-2 CARDIOVASCULAR ISSUFS [28] "Inhalation of Sidesueam Smoke Accelerates Arteriosderotic Plaque Development," A. Penn and C.A. Snyder, Toxicologist 13: 408, 1993 "Exposure to environmental tobacco smoke (ETS) has been blamed for 40,000 excess deaths from heart disease annually in the U.S. In cockerels, chemical carcinogens accelerate development of fibromuscular aortic arteriosclerotic plaques. These cockerel plaques exhibit histological, morphological and molecular similarities to fibromuscular plaques in human coro- nary arteries. To test whether inhalation of sidestream smoke (SS; the principal component of ETS) affects plaque development, cockerels were exposed in inhala- tion chambers to SS or filtered air, 6h/day, 5 days/wk from 6-22 weeks of age.... Plaque sizes were increased significantly along the lengths of the aortas of SS- exposed animals as compared to controls, while plaque incidence and compared to controls, while plaque incidence and distribution were not altered signifi- cantly. Thus, in this model system, daily exposure to SS early in life is sufficient to accelerate arteriosclerotic plaque development." RESPIRATORY DISEASES AND CONDITIONS - ADULTS [29] "'Tobacco Smoke Allergy:' A Fallary?" J.J. Musmand, M. McCants, M. Lopez, P. Menon, and S. Lehrer, Annals ofAUergy70: 55, 1993 "Many physicians diagnose 'tobacco smoke allergy' in patients with asthma or rhinitis by skin testing with tobacco leaf extracts although there is no basis for this practice. To investigate whether an IgE-mediated reaction to environmental tobacco smoke (ETS) is a cause of asthma, 58 asthmatics underwent a 4 hr inhalation challenge with ETS in an environmental chamber. Pulmonary function was obtained pre- and during challenge....All subjects were skin tested with 16 acroallergens as well as with a commercial tobacco leaf mix (CTLE), and a tobacco leaf (TLE) and tobacco smoke extract (TSE) prepared in our labora- tory. 7/58 displayed a significant drop in FEV, during the 4 hr challenge and not during a control challenge (reaccors).... Of reactors, 7/8 (88%) were atopic...218 ETS/IAQ REPORT, ISSUE 45 (25%), 1l8 (13%) and 2/8 (25%) reacted to CTLE, TLE, and TSE. Of those who did not manifest a significant change in FEV, (non-reactors), 43/50 (86%) were atopic; 11/50 (22%), 7/50 (14%), and 2/ 50 (4%) reacted'to CTLE, TLE, and TSE.... The lack of correlation between skin test reactivity to tobacco leaf or smoke extracts with an objective pulmonary response to ETS does not support an IgE mediated mechanism.... The pattern of pulmonary response (mean onset after 1.8 hours of exposure) is also not consistent with a Type I allergen reaction. In conclu- sion, our tests do not support the concept of a 'tobacco smoke allergy' or the use of tobacco leaf extract in its diagnosis and treatment " [30] "The Nasal Response to Environmental Tobacco Smoke," J.J. Musmand, M. White, M. Lopez, M.A. Kaliner, and S.B. Lehrer, Journal ofAllergy and Clinicallmmunology9l (1 Part 2), 1993 "To investigate the basis of upper respiratory symp- toms after exposure to environmental tobacco smoke (ETS), 8 asthmatic subjects, 6 of whom are atopic, underwent a 4 hr ETS exposure in a dynamic environ- mental challenge chamber during which markers of nasal secretatory response were assayed....The samples were analyzed for levels of total protein (TP), albumin (A), lacroferrin (LF), lysozyme (LZ), and IgG. Subjects' FEV, and subjective symptoms were obtained at baseline and at 1/2 hr intervals during the challengea...Subjective scores of nasal congestion, nasal drip, eye irritation, breathing difficulties, and symp- toms overall increased significantly during the challenge.... None of the nasal lavage substances assayed demonstrated significant change in their levels. FEV, also did not change significantly in any of the subjects. These results indicated a lack of nasal secre- tory response during a prolonged ETS exposure, despite significant subjective symptoms. Further study will investigate the nasal response in subjects who demon- strate a significant change in FEV, in response to ETS."

APRIL 16, 1993 RESPIRATORY DISEASES AND CONDITIONS - CHILDREN [31] "Lung Function, Pre- and Post-natal Smoke Exposure, and Wheezing in the First Year of Life," I.B. Tager, J.P. Hanrahan, T.D. Tosteson, RG. Castile, RW. Brown, S.T. Weiss, and F.E. Speizer, American Review of Respiratory Disease 147: 811-817, 1993 "The relationship between initial level of lung function and subsequent wheezing,Jower respiratory illness (LRI) was studied in 97 infants in whom the first measurement of pulmonary function (PFT) was made before 6 months of age. Occurrence of LRI was evaluated by standardized questionnaires at each well- baby visit, biweekly telephone calls to mothers, and review of all visits to physicians. Infutt PFT was assessed by partial expiratory flow-volume curves and helium-dilution measurement of functional residual capacity (FRC). Maternal, prenatal smoking was assessed by urine cotinine and standard qucsrionnaires." "The present investigation was undertaken as part of a study to investigate the role of exposure to environ- mental tobacco smoke on the respiratory health of infants and children. This analysis examines the relationship of early levels of lung function on the subsequent occurrence of wheezing LRI in the first year of life and defines the modifying effects of maternal smoking during pregnancy, postnatal exposure to environmental tobacco smoke (ETS), and maternal history of wheezing." "The influence of maternal smoking during preg- nancy on the preceding results was explored. There was a significantly increased risk of LRI for infants of mothers who smoked during pregnancy (23 of 30 versus 34 of 65; RR = 1.47, 95% confidence interval, to CI, 1.08 to 1.99). The excess risk was identical for male and female infants. Among infants with an LRI after PFT, the percentage of males and kmales with mothers who smoked during pregnancy was identical." "Postnatal exposure to ETS was not associated with an excess risk of LRI. Of 28 infants with no reported pre- or postnatal household ETS exposure from any source, 16 (57.1%) had an LRI. Of 34 infants who had no pre- or postnatal exposure to maternal smoking but who were exposed to ETS from other household mem- bers, 16 had an LRI (RR = 0.82, 95% 0 0.51 to 1.32)." A-3 "This study demonstrates that the level of lung function measured before age 6 months is an impor- tant determinant of the subsequent occurrence of a wheezing LRI in the first year of life. The relationship of antecedent lung function was most pronounced in the measures of forced expiratory flow and in females." "Maternal and parental smoking during pregnancy have been demonstrated to affect infant lung function (flows and patterns of tidal breathing). Exposure to ETS has been associated with the increased occurrence of LRI in the first year of life. The extent to which this association reflects prenatal and/or postnatal exposure has not been elucidated fully, since mothers who smoke during pregnancy usually continue to do so after delivery. Although prenatal maternal smoking was associated significantly with the occurrence of posttest LRI (RR = 1.47) in the present study, postnatal exposure to ETS from nonmaternal household sources was not associated with an excess risk of LRI." "Although these data suggest that the effects of prenatal maternal smoking on neonatal lung function could underlie the relationship between lowered lung function and increased risk of LRI, the data are not consistent with this as the sole explanation. An effea of prior pulmonary function on LRI occurrence was observed among those infants whose mothers did not smoke during pregnancy. This effect was observed for both white and Hispanic infants, although the differ- ences were greater among whites. Nonsmoking moth- ers of infants who had a post-PFT LRI were more likely to report a history of wheeze (RR = 2.08, males; RR = 1.46 females). Unforrunately, the number of infants with smoking mothers was too small to evaluate directly any interaction effects of maternal smoking." 'In summary, the data from the present study provide further evidence that infants who experience a wheez- ing LRI in the first year of life have reduced levels of lung function (VrRC) before the onset of such illnesses. In utero exposure to maternal smoking and familial factors probably contribute independently to reduced airway size and/or changes in respiratory mechanics, especially in females. Overall, these data and those of at least two other studies suggest that the lowered levels of lung function that have been observed many years after an initial episode of bronchiolitis or other child respiratory illness in part reflect preexisting alterations in airway geometry and/or the mechanical properties of the lung already present at birrh."

A-4 OTHER HFALTH IssuEs [32] "Ethnic Differences in Mortality from Sudden Infant Death Syndrome in New Zealand," E.A. Mitchell, A.W. Stewart, R. Scragg, RP.K. Ford, B J. Taylor, D.M.O. Beaoft, J.M.D. Thompson, I.B. Hassall, D.M J. Barry, E.M. Allen, and A.P. Roberts, BritiahMedicalJourna1306: 1}16,1993 "[W]ithin New Zealand the death rate from sudden death infant syndrome differs between ethnic groups, with Maori rates substantially higher than those in non-Maori children. This ethnic difference has not been explained. We therefore used data from a large case-control study to look at differences between Maori and non-Maori children and examine factors that might explain the higher mortality from sudden death infant syndrome among Maori children." "485 infants who died of sudden infant death syn- drome were compared with 1800 control infants. There were 229 Maori and 240 non-Maori cases of sudden infant death syndrome (16 cases unassigned) and 353 Maori and 1410 non-Maori controls (37 unassigned)." "Information was collected by examining obstetric records and from interviews with the parents." "[V]ariables examined related to the selection process (infant's age, region, and nominated time of day/time of death), sociodemography (occupation, marital status, age mother left school, age of mother), preg- nancy (age of mother at first pregnancy, number of previous pregnancies, months pregnant when first attended antenatal dinic, attended antenatal dasses), and postnatal factors (infant's sex, birth weight, gestation, admission to special care baby unit, breast feeding only at discharge from obstetric hospital, maternal smoking in last two weeks, season, infant's sleeping position, and infant sharing a bed with another person)." "Maori children were significantly more likely to live in the North Island, have lower socioeconomic status, have an unmarried mother, have a mother who had left school young, and have a mother young at the birth of the infant." ETS/IAQ REPORT, ISSUE 45 "Mothers of Maori infants were also significantly younger at their first pregnancy, had had more previ- ous pregnancies, attended antenatal dinic later, and were less likelyto have attended antenatal dasses." "Maori infants had significantly lower birth weight. After birth they were more likely to have shared a bed with another person than non-Maori infants. Maori mothers were significantly more likely to have smoked in the previous two weeks than non-Maori mothers. There were, however, no differences between the two groups in the sex of infant, gestation, breast feeding, season of nominated date for interview, or sleep position." "Multivariate analysis controlling for all the above variables found that being Maori increased the risk of sudden infant death syndrome 1.37 fold (95% confi- dence interval 0.95 to 2.01), which was not signifi- cantly different from 1.... [BJed sharing was a risk only in the Maori population." "Population attributable risk was calculated for maternal smoking during the past two weeks, not exclusively breast feeding on discharge from the obstetric hospital, sleeping prone, and the infant sharing a bed with another person. In total these four risk factors accounted for 89% of Maori and 79% of non-Maori infant deaths. The relative attributable risks for Maori children compared with non-Maori children were 57% for the higher rate of maternal smoking and 22% for the higher rate of bed sharing." "Population attributable risk provides an indication of the impact that controlling a rausal factor might have on the incidence of sudden infant death syn- drome. The national cot death prevention programme is attempting to reduce the prevalence of four modifi- able risk factors - namely, maternal smoking, lack of breast feeding, prone sleep position, and infant sharing a bed with another person. In total these four risk factors may account for 89% of deaths from sudden infant death syndrome in Maori infants and 79% in non-Maori infants.... If these four risk factors were eliminated then mortality from sudden infant death syndrome could be reduced to 0.8/1000 for both Maori and non-Maori infants." 1j (b O C11 ~ Go CA

APRIL 16, 1993 ETS ExposuRE AND MONITORING [33] "Passive Smoking and Urinary Cotinine Levels in Young Children," C.C. Johnson, EL Peterson, and D.R. Ownby, Journal ofAllergy and Clinicallmmunology9l (1 Part 2), 1993 "We have evaluated reported exposure to smokers, by relationship of the smoker to the child, and urinary cotinine levels in a population-based cohort of 103 children followed prospectively form birth to two years of age." "Average cotinine/creatine ratios (COTs) for the study children were compared using four categories: smoking status of mothers, fathers, otber household members or daycare sta$; and friends and relatives visited during the previous month. These people were classified as constant non-smokers, as one of two intermediate categories, or constant smokers. The mean COTs were lowest in each relationship category when the individual was a non-smoker. However, even when mothers were consistent nonsmokers, 41g'o of the measured COTs were greater than 30.0 ng/mg. When other relative categories were included, this percentage declines to 13%." "[T]he specificity of maternal non-smoking as a predictor of a COT < 30.0 ng/mg was 98%. Maternal smoking as a single variable was an insensitive (33%) predictor of a COT Z 30.0 ng/mg. Adding the smok- ing of fathers, daycare stafl, and other household members, the sensitivity rose to 90%. These data demonstrate that sequentially collected survey data on smoking behavior can reliably assess a young child's exposure to tobacco smoke. Further, while a mother's non-smoking status is strongly related to a child's expo- sun; the smoking behavior of other individuals that have frequent contact with the child must be considered." [34] "Urinary Cotinine Excretion at Work," S. WiIIas, I. Bensryd, G. Skarputg, and S. Skmfiing, Indaor Environment 1: 373-376, 1992 "The exposure to environmental tobacco smoke at work was assessed by measurement of the nicotine metabolite cotinine in urine (U-cotinine).... As a material for comparison, 56 non-smoking adults with or without smoking spouses were used. Nonsmoking staff without smoking spouses at a police department, a A-5 restaurant, and a cafe were examined. U-cotinine of the police interrogators were low as compared to the control group with smoking spouses. Further, it was not statistically significantly higher than the control group consisting of non-smokers with non-smoking spouses. For the staff at the cafe, U-cotinine was significantly higher than the control group without smoking spouses, but comparable to the control group with smoking spouses. U-cotinine...in the staff at the restaurant [was] significantly higher than in both control groups. In conclusion, there is evidence of a passive absorption of tobacco smoke constituents at some workplaces. Smoking should be allowed only in well-ventilated rooms. Measurement of U-cotinine makes workers aware of the exposure to tobacco smoke and may lead to an improvement of the working environment." [35] "Tobacco-Specific and Volatile N-Nitrosamines in Environmental Tobacco Smoke of Offices," H. Klus, H. Begutter, G. Scherer, A.R Tricker, and F. Ad[kofer,lndoorEnvinvnment 1: 348-350, 1992 "The tobacco-specific nitrosamines (TSNA) N- nitrosonornicotine (NNN) and 4-(N- methylnitrosamino)-1-(3-pyridl)-I-butanone (NNK) as well as the volatile N-nitrosamines N- nitrosodimethylamine (NDMA) and N- nitrosopyrrolidine (NPYR) were determined in the indoor air of a poorly ventilated office where extensive smoking took place." "The mean nitrosamine concentrations were (in nanograms/cubic meter): 2.8 [not deteaed (nd)-6.0] NNN, 4.9 (nd-13.5) NNK, 19.8 (7.9-45.0) NDMA and 10.0 (3.5-27.0) NPYR" "The data for TSNA are slightly lower than those of Brunnemann et al. who reported concentrations of 8.3 ng/ms NNN and 9.3 ng/m' NNK in ETS of a`moder- ately smoke-polluted' bar. However, comparison of the results in impeded by the lack of information on the actual ETS concentration (or an appropriate surrogate for it) in the bar. The presence of NNN and NNK in ETS is solely due to tobacco smoke. However, volatile nitrosamines occur ubiquitously in the environment." "Subjects (both smokers and nonsmokers) present in the office during air sampling complained about the bad air conditions. This allows the conclusion that, normally, the air quality would have been improved by

A-6 opening the windows.... As a result, the NNN and NNK concentrations measured in ow study exceed the concentrations found under realistic conditions and present a `worst-case' situation." "From the present data, occupation of the office by a nonsmoker for 1 h would result in a maximum expo- sure of 0.01 ug/h TSNA (NNN and NNK) and 0.03 ug/h volatile N-nitrosamines (NDMA and NPYR).... If the exposure from actual ETS concentra- tions is calculated for real-life conditions, the uptake amounts to only 0.004 ug TSNA and 0.015 ug volatile N-nitrosamines." "ETS exposure provides only a small contribution to the total daily N-nitrosamine exposure, which has to be taken into consideration when calculating any carcino- genic risk due to ETS exposure." [36] "Chronic Sidestream Cigarette Smoke Exposure Causes Lung Injury in Rabbits," M.L. Witten, P.M. Joseph, RC. Lantz, D.S. Lazarus, W.K. Jung, and C.A. Hales, Indoor Environment 1: 341-347,1992 "The effects of sidestream cigarette smoke (SSCS) (a 15 min exposure per day for 20 days) were determined on markers of lung injury in New Zealand white rabbits (n = 9) and a control group (n = 6). The SSCS consisted of air and smoke which were aspirated by syringe from a funnel inverted over a lit cigarette. The rabbits were placed in an environmental chamber into which 3 liters of SSCS were injected over a 15-min period each day. Chronic SSCS caused an increase in pulmonary epithelial dearance. . . . This increase in lung permeability was accompanied by an increase in bronchoalveolar lavage (BAL) white cell count ... and an increase in BAL leukotriene E4...Cultured SSCS alveolar macrophages (AMs) produced more supcroxide." "ETS exposure may increase pulmonary permeability and ultimately allow environmental toxins into the systemic circulation." "Very little information is available regarding the effects of chronic SSCS on lung function. Thus, the present paper reports the effects of 20 days of SSCS exposure on pulmonary epithelial permeability and lung eicosanoid metabolism in rabbits." ETS/IAQ REPORT, ISSUE 45 "Chronic SSCS exposure caused an increase in pulmonary epithelial permeability that was present at least for 18 h after the last exposure to smoke." "Light microscopy showed minor airway injury in the SSCS group that consisted of bronchial epithelial cell degeneration and desquamation. However, this airway injury was not consistent, since it was present in < 25% of the bronchi examined." "Chronic exposure to SSCS caused lung injury that consisted of increases in pulmonary epithclial perme- abiliry, BAL LTE4, and AM [superoxide] production. In addition, SSCS caused minor airway injury charac- teriud by infrequent epithelial cell degeneration and desquamation and histologic evidence of parenchymal injury as evidenced by focal clusters of neutrophils in the perivascular spaces." "One of the major symptoms of asthma in humans is airway hypersensitivity to acroalkrgens. Perhaps, over the 20-day SSCS exposure period, rabbits develop a similar hypersensitivity to SSCS. Another possibility is that chronic SSCS exposure increases lung permeabil- ity, and this allows more aeroallergens to invade the lung mucosa and contribute to the development of a chronic inflammatory state characterized by an influx of neutrophils and eosinophils." "It is concluded that the rabbit model has demon- strated that SSCS can cause lung injury. This lung injury is characterized by increased pulmonary epithe- lial permeability, changes in lung eicosanoid metabo- lism, increased AM [superoxide] production, scattered histologic evidence of bronchial epithelial cell injury, and the influx of neutrophils and eosinophils into the lung mucosa." INDOOR AIR QUALITY [37] "Indoor Air Quality Management: A State of the Art Review and Identification of Research Needs," P.M. Bluyssen, Indoor Environnient 1: 326-334, 1992 "A workshop on indoor air quality management (IAQM) was held by the Commission of European Communities (DG XII) in Lausanne on May 27-28, 1991, to determine the state of the art of the current

APRIL 16, 1993 knowledge concerning IAQM, the missing know how and possible research areas. Twenty-six IAQ experts participated,,and each expert presented a state of the art and future research needs on one of the following topics: sick building syndrome [SBS], IAQ measure- ment, IAQand energy, sources and source control, ventilation, ventilation systems, and European activi- ties and regulations. This paper presents a summary of the outcome of this workshop." "[Selected] Condusions of the Workshop" "SBS is a multifactorial cause-efl•ea problem. A key issue is the knowledge of the mechanisms behind it and the strength of the effects. Mechanisms for the symp- toms have not yet been defined." "A question still exists over which of the two groups of factors, psychological or physical, is the determining element or whether they at all interfere." "No statistically significant information on ventila- tion performance in buildings is available." "Quantification and' identification of each of the hundreds of compounds present in indoor air is impossible with the instruments developed so far. On the effects of mixed pollutants, little or no knowledge is available." "The challenge in the near future is to simultaneously aim at low energy consumption and a comfortable and healthy indoor environment." "Effects of prolonged pollution exposure are not completely known." "Indoor pollutant levels are strongly influenced by factors such as the deposition of pollutants, absorption, adsorption, desorption and condensation." "Present ventilation guidance is insufficient." "Little has been done to analyze the IAQ problem stemming from ventilation systems, to identify poten- tial sources and to eliminate them. Guidelines of hygiene requirements are almost totally lacking." "Development of guidelines and/or standards is recommended as an essential tool to promote the achievement of high IAQ e.g. international standards on emission testing; and guidelines on indoor pollutant concentrations, ventilation, material emission, methods for IAQassessment and control, the commissioning A-7 process of building and installations, and quality assurance and product responsibility." [38] "Building-Related Asthma in Denver Office Workers," RE. Hoffman, R.C. Wood, and K. Kreiss, American Journal of Publlc Health 83 (1): 89-93, 1993 "This paper describes two sentinel cases of office building-related lung disease that triggered a public health investigation. We report our findings regarding building-related respiratory disease that was not associated with a humidification system." "Both sentinel cases of building-related lung disease were reported to the Occupational Epidemiology Program of the Colorado Department of Health, and by August 1988 the department had received reports of five additional cases of respiratory illnesses potentially related to working in the building. Because of these reports, an epidemiologic survey was designed to determine whether there was an excess of building- related respiratory disease in people working there." "The building was mechanically ventilated, without operable windows or a humidification system. Twenty- seven fan coil units with drip pans above the false ceiling provided cooling and heating of air, with intakes on the north wall. Water damage was visible in ceiling tiles, and employees reported recurrent water damage to the carpet from overflow of a janitor's sink and sewage backup. The south wall of the building was built into an earthen bank below street level." "In the spring of 1988, carbon dioxide levels were documented..,as increasing from 0.04% to 0.06% in the morning to 0.11% to 0.15% in the afternoon, suggesting insufficient fresh air intake during the hours that the building was occupied.... [B]ioaerosols sampling ... revealed low counts of viable airborne bacteria and fungi, both inside and outside the build- ing, with 10 of 20 outdoor samples surprisingly showing no growth....Aspergillus was the only organ- ism found inside the building near the south entrance; no aspergillus grew from outdoor samples." "In late 1988, we performed cross-sectional surveys of employees in the Denver building (case building) and a comparison building (control building) housing the same type of agency in Adams County, in suburban Denver."

A-8 "Seventy percent of Denver employees thought there was a problem with their building, compared with 75% of Adams employees. Prevalences of nonspecific symptoms attributed to the work environment by respondents were high and comparable in both buildings." "Statistically significant excesses existed among Denver building occupants for shortness of breath, shortness of breath while at rest, and chest tightness. The differences in shortness of breath while at rest and chest tightness remained significant when analyses were limited to nonsmokers." "There were 32 asthma cases in Denver workers, compared with 11 in Adams employees; no cases of hypersensitivity pneumonitis were reported." "The two sentinel cases of building-relatcd allergic respiratory disease led to a public health investigation that suggested that they were neither unique nor the first reported cases. Case 1 met the criteria for occupa- tional asthma of the surveillance case definition disseminated by the National Institute for Occupa- tional Safety and Health. For case 2, the temporal relation of respiratory and constitutional symptoms to work in the Denver building pointed to a diagnosis of occupational hypersensitivity pneumonitis; the pathologic diagnosis was compatible with hypersensi- tivity pneumonitis, in which all cases have interstitial pneumonitis and at least 50% have bronchiolitis obliterans." "We are aware of an additional case of interstitial lung disease in a former Denver employee. Her building- related symptoms began within 4 months of building occupancy, and she died with a diagnosis of bronchiolitis obliterans within 4 years. In retrospect, her pulmonary physician felt that hypersensitive pneumonitis was the probable diagnosis." "Allergic respiratory disease associated with office buildings is usually caused by dissemination of anti- genic material from a microbial source in ventilation systems or humidifiers. No evidence to support a ventilation-related etiology surfaced in the epidemiologic investigation. The possible clustering of cases along the south wall, which was built into an earthen bank, suggests that moisture incursion may have led to microbial amplification and dissemination." "This investigation leaves many questions pertinent to prevention unanswered. Nevertheless, we report our ETS/IAQ REPORT, ISSUE 45 findings to alert clinicians, indoor-air-quality investiga- tors, and public health epidemiologists to the phenom- enon of office building-related asthma." [39] "Health and Indoor Climate Complaints of 7043 Of$ce Workers in 61 Buildings in the Netherlands," T. Zweers, L Preller, B. Brunekreef, and J.S.M. Boleij, Indoor Air 2: 127-136, 1992 "During the winter of 1988/1989, the relationships between the prevalence of work-related health and indoor dimate complaints and a number of building, management, workplace and personal characteristics have been investigated in a study in more than 60 office buildings located throughout the Netherlands." "The present study was set up to examine the associa- tion between several building, ventilation, manage- ment, workplace, job and personal characteristics and the prevalence of health and indoor dimate com- plaints, and to investigate the relative importance of these different factors in attempting to explain the 'Sick Building Syndromc'." "To collect data on symptoms and other personal and workplace characteristics, a self-administered question- naire was used. A checklist served to gain information on building characteristics. In addition, some indoor climate measurements were performed." "The questionnaire included approximately 115 questions about gender, age, work-reiated health and indoor dimate complaints, general health complaints, sickness leave, job characteristics, job satisfaction, workplace characteristics, level of education, smoking habits, etc. Work-related health questions included questions about the skin, eyes, nose/throat, nervous system and about fever. Inquiries about work-related indoor dimate complaints induded questions concern- ing temperature, humidity, perceived air quality, lighting, noise, static electricity, and organoleptic environmental quality." "The checklist included questions about tlhe type of organization, ventilation and heating installation, maintenance of installations, and characteristics of office rooms." "In almost every building, the CO2 concentration was measured and in most buildings the air-temperature

APRIL 16, 1993 and the relative humidity were measured at five selected locations at four different times during the day. The noise level (during one hour) and the general and workplace luminance were also measured at these locations." "The most frequently reported health complaints were eye (mean 19.5%), nose/throat (mean 23.5%) and nervous system complaints (mean 20.3%). The most frequent indoor climate complaints were tem- perature (mean 54.6%), dry air (mean 43.5%) and air quality complaints (mean 45.7%)." "The measurements of CO2 concentration showed that the variation between the buildings was high. In 8 buildings, the mean of the highest CO= concentrations measured in each workplace was greater than 1000 ppm. Of these 8 buildings, 7 had natural or simple mechanical ventilation. In 6 buildings a mean relative humidity lower than 30% was measured....Overall, the indoor dimate measurements in the buildings showed no extreme conditions. Relationships between indoor climate variables and complaints were generally weak and inconsistent." "[I]t is dear that the complaint prevalence in build- ings with natural ventilation is somewhat lower than in buildings with simple mechanical ventilation, except for skin, air quality and noise complaints." "Being dissatisfied with the job, having allergic or respiratory symptoms or having no personal control over temperature at the workplace were associated with an increased prevalence of nearly all health and indoor climate complaints. Environmental Tobacco Smoke (ETS) exposure was associated with an increased reporting of complaints about air quality and organo- leptic environmental quality, and with eye, oronasal and nervous system symptoms. When office workers performed VDU work more than half of their time they reported more eye, nervous system, lighting and static electricity complaints. The number of people in one's room was associated significantly with more oronasal, nervous system, temperature, air quality and dry air complaints. The presence of operable windows was associated significantly with fewer skin, tempera- ture and noise complaints. There were no dear rela- tionships between the prevalence of complaints and age, education, active smoking, the presence of fleecy materials (carpets, curtains or open shelves) and the A-9 handling of carbonless copy paper." "The multivariate analysis showed that being female, being dissatisfied with the job or having allergies and/ or respiratory symptoms was associated with an increased prevalence of nearly all complainu.... Dissatisfaction with the job had a stronger relation with the nervous system complaints than with skin, eye or nosdthroat complaints." "This study also suggests that personal control over workplace temperature is associated significantly with a lower prevalence of all health and indoor climate complaints." "There was little association between the results of the indoor climate measurements and complaints." "Our study can be compared to the Town Hall study from Denmark and the Office Environment study from the UK in some respects. In these studies, different definitions of work-related complaints and different complaint groupings were used. In general; however, our study findings are in line with the findings from Denmark and the UK"

-26- APRIL 12. 1993 / NATIONAL REVIEW Junk Science L AST WEEK'S scare from the Environmental Protection Agency (EPA) was radon itn schools. It grabbed headlines with the claim that there are 73,000 classrooms in 15,000 schools where this radioactive gas is over the agency's "ae- tion level" of 4 pCiJL. This led Congressman Henry Waxman to say breathlessly that it is'more danger- ous to attend school than work in a nuclear-power plant." (He did not add that nuclear-power plants in the U.S. have proved among the safest places any- one could choose to work. Indeed, in decades' opera- tion of up to two hundred nuclear-power plants not a single worker has died of radiation.) Some months ago we asked the EPA for the scien- tific articles and reports justifying their radon action level, and after a month's delay, during which our interest ebbed, we received an intimidatingly thick package. Last week we took that EPA package off the shelf and spent some hours going through the studies. We were amaied to find. that they don't sup- port the EPA position at all. They fail to find any statistically proven associa- tion between residential or school radon levels and lung cancer. They constantly emphasize the '~mcer- tainty" surrounding the arithmetical eztz apolation to residential radon levels of lung disease suffered by workers in mines with high radon concentrations. As one cancer scientiat, Gio Gori, wrote recently, the official cancer risk assumptions are "poignantly out of step with the scientific evidence." (Re,gulatary Tox- icology and Pharmacology, 16, 10-20, 1992.) And the EPA omitted from its package the most damning set of radonAung-cancer studies, from Ber- nard Cohen, professor of physics and radiation health at the University of Pittsburgh. • Cohen's group has measured radon levels in 350,000 homes across the U S. and subjecied the data to every oom- eeivable statistical check. He finds no basis for con- cern about low-level radon-indeed, the reverse: 'The (EPA'sl linear theory predicts that lung-cancer rates should increase by 7.3 per cent for each pCi/L of radon concentration in homes, whereas our stud- ies indicate that lung cancer rates actually decrease by about 6 per cent pCi/L" . How so? An eminent biochemist, T. D. Luckey, has experimentally shown the health benefits of low- level radiation and called the process "hormesis." Cohen's statistics suggest that not only is the EPA radon scare phony, but it could deprive millions of people of the benefits of hormesis. After all, rich peo- ple have been seeking better health for centuries by going to spas whose sole distinguishing physical characteristic is that they have higher levels of radon and other sources of ionizing radiation. Another piece of junk science from the EPA is the notion that thousands of non-smokers die of lung cancer from the smoke of smokers-a/Wa environ- mental tobacco smoke (ETS). Now, everyone accepts that smokers assume a major risk for themselves. They increase their risk of lung cancer at least ten- fold. But ETS is cigarette smoke diluted thousands of times compared to the smoke smokers inhale di- rectly into their lungs. And it is hard to distinguish chemically from cooking smokes and from boiler- flue, tailpipe, and industrial emissions. The closest thing to science in the debate over ETS is a slew of statistical studies of the incidence of dia- ease among couples where one pa;rtner amokes and the other doesn't. Some of the studies show a mild statistical association (risk ratios like 1.2, compared to ratios of 2.0 and more that are normally required to establish association and a ratio of over 10.0 for direct smoking). Most fail to meet the 95 per cent confidence level usually adopted by statisticians to exclude chance clustering. The EPA's recent declaration that ETS is a"Class A carcinogen" was achieved by a quite shameless abandonment of regular scientific procedures. Since the American studies don't prove the case, the EPA dragged in a large collection of studies from Asia and Europe. Though it claimed to have "proved" the asso- ciation by a'Sneta analysis" or combining of the ex isting studies, the EPA simply abandoned the con- ventional 95 per cent confidence level and applied a 90 per cent test in order to claim the result was sta- tistically significant. Alvan Feinstein, professor of medicine and epi- demiology at Yale medical school, wrote recently in Toxicologfc Pathology that the EPA study on envi- ronmental smoke "simply ignored the inconvenient results and emphasized those that are (in a memora- ble phrase)'helpful.'"He said he had been told by a colleague that the EPA report on ETS was 'rotten science" in the worthy cause of getting a smoke-free society. Professor Feinstein observed that govern- ment agencies funding scientific research often be- come "mechanisms of advocacy." That used to be called '7ying," and it still should be. ~ ~ W O C!; ISSUE 45 ce'01~~ APPENDIX B

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION No. ;21 (f ~6 of 1993 1. TOBACCO IIdSZT1'CTTB OF AUSTRALIA 2. LIIvIIZBD (A.C.N. 005 498 359) Plaintiff The plaintiff was at all material times a duly incorporated oorporatioa. So far as relevant, the memorandum of association of the plaintiff provides that the STEPHE'N wOODwA *,*;D Defendant objects for which it i.ycluctZ. the foll~ to .. f.:.L .•.~K ; ~y. (i) p~~ ..•.. :Ft-.a:. ~'Yl -e~ M a l 2r.l • STATffiNSNT OF CLAIIM CLAYTON UTZ Solicitors Levels 27-35 No.1 O'Connell Strxt SYDNEY NSW 2000 DX: 370 Sydney Tel: 353 4000 Fax: 2517832 Ref: 150/956260 t /. /[ tobacco iadus ~try in Australia by the public, by all levels of Goverameat and of public admfnisttadoa ~; and by other . authorities, institutions or associatfons whether public or private. rii) to represent and to assist the tobacco industry in Australia in the legitimate 1SOMS12EC1 ISSUE 45 APPENDIX C

2. maintenance, support and furtherance of its interests. (iii) to tabe part in, carry on, develop and awourage, stimulate and aid research into tobacco and its products, into smoking and into any type of enirironmentat.factor which may affect human bealth and to do so by way of direct participation or by providing or contributing to funds to enable su, h research to be underW= by others or in such other manner as may ser-s desirable. (Iv) to engage in discussions and negotiations with and to determine or assist in the determination of matters of policy by or for all or any authorities, insdtutions or associations, whether Governmental public or private on matters rdating to or affecting directly or indirectly any of the foregoing matters. 3. The main bu.:-.ness and activity of the plaintiff is the advancement of the objects set out above. :, 4. The membership of the plaintiff is and at all material times has been comprised of the three manufacturers of cigarette and tobacco products in Austcalia. S. The plaintiff was the respondent at first instanee and the appellant on Appeal in proceedings instituted by Australian Federation of Consumer Organizations Inc in the Federal Court of Australia on 11 June 1987 being proceedings numbered 0253 of 1987 (the 'Proceedings"). 6. The defendanf was at all material times eagaged in uade.or commerce within the meaning of the Fair Trading Act (NSW) 1987 fn that the defendant by way of business or profeuional activity: O is the co-author of the book "Tobacco L.itigation"; (ii) is a consultant to Cashman & Partners the solicitors for Australian gSOMS1Z.BC1

3. Federation of Consumer Organisations Inc. (iii) is a consultant In connection with the provision of support services for litigation including in eonnection with scientific matters; (iv) is a consultant in relation to dealing with the media; (v) is a consultant in relation to advocacy matters; (vi) is a consultant in matters of Government and Public Affairs; (vii) is Executive Director of Action on Smoldug and Health Limited; (viii) is a Director of the Cancer Council NSW; ('~x) is a member of the Public Affairs and Behavioural Committee of the Australian Cancer Society; (x) is a prominent spokesperson against smoking; : 7. On 17 December 1992 and 10 March 1993 respectively the Full Court of the Federal Court of Australia published Reasons for Judgment and Supplementary Reasons for Judgment in the Proceedings. 8. Between 17 December 1992 and 8 January 1993 the defendant made certain statements in the media, which represented and inferred the following: () Th:.: the Full Court decision has confirme3 Judge Morling's factual findings that passive smoking is dangerous in that it causes lung cancer and respiratory disease in young children. Patsiculars 2GB Ne" • 17 December 1992 (ii) That the Full Court concluded or confirmed that passive smoking is dangerous in that it causes lung cancer and respiratory disease in young children. - Particulars 2GB News - 17 December 1992 (iii) That It would be false and misleading for the Tobacco Institute to assert 1S0MS12.EC1

4. that the Full Court did not confirm that passive smoking is dangerous in that it causes lung cancer and respiratory disease in young children. Particulars , 2GB News - 17 December 1992 (tv) That it would be false and misleading for the Tobacco Institute to assert that there was a disagreement as to whether passive smoking causes lung cancer or respiratory disease In young children. PaT6culars 2GB News - 17 December 1992 (v) That all of the medical and scientific evid:nce in relation to passive smoking is to the effect that passive smoldng c:auses lung cancer and respiratory disease in young children. Particulars The World Today - 2BL Nationa1-17 December 1992 That there Is no medical or scientific evidence In relation to passive smoking which reports no increase in risk for lung cancer or respiratory dismsE in young children. , Ps-ticulals The World Today - 2BL National - 17 Decemb x 1992 (vii) That there is no medical or scientific evidence which suggests that passive smoking may not cause lung cancer or respiratory disease in young children. ParticulM3 The World today - 2BL National • 17 December 1992 (viiu') Thr? the Full Court made findings which established withoui doubt that pas..?vc smoking causes lung cancer and respirs{iory disease in young children. ± iSOMSi2.BCi

5. ParticLl rn Sarah Henderson - 2BL - 17 December 1992 ('ix) That the Pull Court well and truly established as a fact that passive saroking causes lung cancer and respiratory disease in young children. ParIS'ulars Sarah Henderson - 2BL - 17 December 1592 (x) Tb2t the Full Court had regard to all of the available scientific information concerning passive smoking and disease. EaWculars Sarah Henderson - 2BL - 17 December 1992 (xi) Th^t the Full Court found or concluded that passive smoking caused respiratory disease in young children and was aa important cause of lung Can.:-„rr in non smokers. ~. Particulars Sarah Henderson - 2BL - 17 December 1992 Fewings File - SAA - 18 December 1992 (xii) That the Full Court found or concluded, with certainty, that indoor smoking increased the:fsk of non smokers contracting respiratory disease in yvung children and lung cancer. Particulars gaaah Henderson - 2BL - 17 December M-2 Fewings File - SAA 18 December 1992, (xiii) Tbat the Full Court made findings in relation to the lack of credibility of the witne3ses who gave evidence on behalf of the Tobacco Institute in the Proceedings• Particulars Sarah Henderson - ZSL - 17 December 1992 tsoUsu.= , ao tft dn ~ ~

6. ~ (xiv) That the Full Court concluded or confir3ned `hat passive smoking cauxs lang cancer and respiratory disease. ^ J!Arficulau Herald-Sun Melbourne 17 December 1992 (xv) That a final report issued in early January 1993 by the United States Environmental Protection Agency in the United States of America has ecRcluded that heart disease is caused by passive smokiag. Particutats Murray Olds - 2UE - 8 January :99' s (xvi) That a final report issued in early January 1993 by the United States Environmental Protection Agency in the United States of America made findings that the evidence that has accumulatcd since 19861inking heart disease with passive smoldng is conclusive. Particu]ars Murray Olds - 2UE - 8 January 1993 9. The conduct ; tnz defendant referred to in paragrarh 8.bove was conduct in trade ~ or commerce within the meaning of Section 42(1) of eha ?air Trading Act (NSW) 1987 by reasc;n of the matt,cis referred in paragraph 6 above and because the reprexatations referred to in paragraph 8 above were calculated to affect the business of cigarette manufacturera, importers, distri'butors and retailers and the conduct of cigarette consumers. 10. In fact, C) The:=,uli Court decision did not confirm Judge elorling's factual findings that ;assive smoldng is dangerous in that it cau::6 lung cancer and , respiXatory disease in young children. P (Ii) The Full Court did not conclude or coafirm that passive tmoldng is . iSOMSiZ.ECl

7. dangerous in that it causes lung cancer and respiratory disease in young childrea. (iii) It ~rould not be false and misleading for'-the '"obacco Institute to assert tha.t the Full Court did not coafirm that passia e smoldng is dangerous in thnt it causes lung cancer and respiratory disease in young children. (1v) It :vould not be false and misleading for the Tobacco Institute to assert that there was a disagreement as to whether passive smojdng causes lung cancer or respiratory disease in young children. (v) Nc, all of the medical and scientific evidazce,in relation to passive szn..ildng is to the effect that passive smoldng mausea lung cancer and respiratory disease in young children. ;: (vi) Not all of the rnedical or scientific evidence in rdation to passive amn]dng reports an increase ia risk for lung cancer or respiratory disease in voung children. (vii) Z'h&e is medical or scientific evidence which suggests that passive am•:king may not cause lung cancer or re•=puatory disease In young chi'.Irr:a. ' ( The Full Court did not make findings which established without doubt that. passive smoldng causes lung cancer and respiratory disease in young ehildren. . , . .: ('ix) The Full Conrt did not well and truly establish as a fact that passive smo':dng causes lung cancer and respiratory disease 3n young children. . t. (x) The~Ful1 Court did not have regard to all of th ~ available scientific ; infoimation concerning passive saw]dAg aad dlaease. . F tsoMSiZ.sct ~ :. . .. O . G~ m

8. (xi) The Full Court did not find or conclude that passive smoYing caused respiratory disease in young children and was an important cause of lung cancer in non smokers. I I N) T!+e Full Court did not find or conclude, with certainty, that indoor sr^oldng increased the risk of non smokers contracting respiratory disease in 'young children and lung cancer. The Full Court did not make findings in relation to the lack of credibility of the witnesses who gave evidence on behalf of the Tobacco Institute in the Proceedings. (xiv) The Full Court did aot conclude or confirm that passive smokiiag causes ivng cancer and respiratory disease. (xv) T.; s:inat report issued in early January 1991 by United States E:ivi_*onmental Protaxioa Agency in the Uai 'id States of America has not ccmcluded that heart disease is caused by passive sinoldng. The final report issued in early January 1993 by United States Environmental Protection Agency ia the United States of America did not find that the evidence that has accumulated since 1986 linldng heart . disease with passive smoking is conclusive. . ii. By reawn c1 the matters set out in paragraph 10 ubovcthe conduct of the defendant was misleac;ing or decxptivG or likely to mislead or dapive within the meaning of Sactioa 42 pf the Fair Trading Act (NSW) 1987. , " .,. 1. A declarattc~t that each of the representations set out in paragraph 8~s nuslesdiag tsoMStZ.ECs

9. or deceptive ;r likely to mislead or deceive within the cuauing of Section 42(1) of the Pair Trawng Act (NSW) 1987. 2. An order ~restraining the defendant from: (a) broadcasting, transmitting, disseminating or publishing; or (b) ca,.,sing, procuring. permitting or arranging for the broadcasting, tra?smisaion, dissemination or publication through the medium of radio, tO_viyion, motion picture or audio visual.eass ;ttes or newspapers, periodicals or other publication or by mea.na c-: any other form of advertising or promotion; any of the represeatadons set out in paragraph 8 above In trade or commerce including in the course of the defendant's activities as: (1) a consultant to Cashman & Partners the solicitors for Australian Federation of Consumer Organisations Inc. (ii) a consultant in connection with the provision of support services for 1idAation including in connection with scientific matters; (iii) a c.,:asaltant in relation to dealinP with the melia; .. , , r. (iv) a caasultant in relation to advocacy matters; 1 (v) a consultant in matten of Government and Public Affairs; (vi) Executive Director of Action on Smoldng and Health Limited; (vii) a Director of the Cancer Council NSW; (viii) a member of the Public Affairs and Behavioural Committee of the Au:tralian Cancer Society;. (ix) a spolwperson against unoldng; 3. An order und~pr Section 65(1) of the Fair Trading Act OW) 1987 that the defeadaat publish or cause to be publish at the expenie 61 the defendant tuch advertisement through such media as to the Court may seem appropriate to correct each of the rqraeatations referred to in paragraph 8 above. iSOMSU.Mi ,

10. 4. Interest pursuant to Section 94 of the Supreme Court Act, 1970. 5. Such further=or,other, oorders as the Court may deer.~ fit. :i 6. Costs. To the Defeadasrt: Stephen Woodward of: 2A 8 Hampden St;eet PADDINGTON NSW 2021 You are liable to :uffe- judgment or an order against you unless t:ic prescribed form of aotioe of your appearaace is received in the Registry withia 14 days aftr' service of this Statement of Claim upon you ana you comply with the rules of Court relatiuiS to your defence. M 1SOMS12.BC1 -j Q CA j 0 ~

11. Plaintiff: Tobacco Institute of Austczlia Limited Plaintiff s Address: 1391Viacquarie Street SYDNEY NSW 2000 42 Plaintiff's Solicitoj: . Julieann Patricia Ahern Plaintifl's Address CJ- CLAYTON UTZ for Service: soliciton Levels 27-35 1 O'Connell Street SYDNEY NSW 2000 DX: 370 Tel: 353 4000 Address of Registry: Levet 5 Supreme Court of New South Wales Law Courts Building Queeas Square SYDNEY NSW 2000 ~...~,..'~.,..r.,.....r Phultifi's Solicitor Julieana Patricia Ahern 1S01KS12.EC1

12. AFFIDAVIT On 15 April 1993 I, Donna Marie Staunton of 139 Macquarie Stroet, Sydney say on oath: 1. I am the General Counsel and Company Socrctary of the Plaintiff. 2. I believe that the allegations of fract in the Statema~t of Claim set out above are ltue. ) SWORN at Sydney this 15'~April 1993 ) Before me: ) ..~ .. . .. ............................ !C Solidtor of the Supreme Court of New South Wales ba3ing a current Practising Certificate -uida Part 3 of the LeYal Profeuir a Act, 1987 1SQM312.EC1

ETSIIAQ RzpoRT ~ ~ FAX COMMUNICATION SHEET NOTE.- if you would like additional informuion on one of the etories oontained in this issue, or if you have Ioformuion or idees " we could ineorporue into future iswe;, plase complete and FAX this form. To: Mark W. Cowirlg. Esq. fsorrs: Shook, Hardy & Bacon Companymtk FAX 816-421-5547 Tekphone: Due•. I would like additionaJ information that may be available on the astides in Issue numbered as folloM•s (indicate the bracketed number nesa to the ar=ide headline): t l ( l ( l ( ] ( ] t l I l t l ( l ( l ( ] ( l [ ] ( ] ( ] ( I Name ~._.. FAX f Address Ovemight Delivery Regular Mut (r1Wfi"+":r w i/imrd( iifwai.. wDk.ar iJ wr+Jo w.il) SHB