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ISSUE 46, APPENDIX C Background for "Indoor Environment '93": Excerpts From the ASH Special Report on ETS ACTION ON SMOKING AND HEALTH 2013 H St., N.W. • Washington D.C. 20006 •(202) 659-4310 INVOLUNTARY SMOKING: The Factual Basis for Action "INVOLUNTARY SMOKING" or "PASSIVE SMOKING," sometimes even called "RESPIRATORY RAPE" - it all means the same thing: being forced to inhale other people's tobacco smoke. Today we know that this substance, now called "Environmental Tobacco Smoke" (ETS) or "secondhand smoke," is the deadliest danger to which we are exposed. Indeed, it kills more Americans than all forms of air pollution, water pollution, food additives, and radiation combined; more than all automobile accidents, guns, AIDS, and illicit drugs - a staggering 53,000 innocent victims each and every year! This document presents the major findings of the Environmental Protection Agency (EPA) Report on passive smoking, and other recent studies and information in a form which can be used to convince business leaders, legislators, agency officials, judges, and others of the need to protect the majority of Americans who don't smoke (including all children) from the deadly effects of ETS. This, the experts and the agencies tell us, can only be done by restricting smoking in all public places; there is no safe lower level for the dozens of dangerous chemicals in tobacco smoke which drift and are recirculated, and' cannot be filtered out or otherwise eliminated by even the finest ventilation systems. Portions of the complete 16-page ASH Special Report are being distributed free to attendees of "Indoor Environment '93." Complete copies are available from ASH. $2/each Table of Contents of Entire Report PAGE 2 presents the official findings of five government agencies that~ ETS causes lung cancer in nonsmokers PAGE 3 answers commonly asked questions about how we know that ETS causes lung cancer in nonsmokers PAGE 4 explains how ETS is the third major U'.S. killer, how it kills over 50,000 Americans each year PAGE 5 answers the tobacco industry's major arguments concerning ETS studies, and provides three questions which should be asked of any witnesses defending ETS PAGE 6 describes how ETS creates very serious health hazards for all children, and cites the major studies PAGE 7 explains how courts protect children: from ETS through court orders and through custody decisions PAGE 8 notes what major newspapers and organizations are saying and doing concerning public smoking PAGE 9 indicates the legal theories under which owners and employees are being held' liable for permitting smoking, and cites some of the major legal decisions PAGES 10-14 reprint of the complete verbatim text of! the EPA Report's "Summary and Conclusions" PAGE 15 reprints additional important information from the EPA Report, including additional citations PAGE 16 tells what you can do to protect yourself and others, and where to get additional information What We Know About ETS Todav. Environmental tobacco smoke (ETS) is a "Group A Carcinogen" like asbestos and benzene - one of the few substances known to cause cancer in humans and for which there is no safe lower limit. Each year it kills:  an estimated 53,000, Americans:  more people than alli the victims of automobile accidents, including those caused'iby drunken drivers;  more than twice as many people as all homicides, including homicides caused by firearms;  more than twice as many people as AIDS;  more than ten times as many people as all the illicit drugs we target in our "war on drugs" ETS presents even greater dangers to children. Each year, even at the levels found in a home where onlw one parent smokes, it is estimated to cause in infants:  150,0001300,000 lower respiratory infections like pneumonia and bronchitis  7,500-15,000 hospitalizations  200,00011,000,000 asthma attacks  8,000-26,000 new cases of asthma  increased middle ear effusion  respiratory symptoms of irritation  significantly reduced lung function  a large increase in the risk of death from S.I.D,S. LEGAL ACTION AND EDUCATION ON THE HAZARDS OF SMOKING• PROTECTING THE RIGHTS OF THE NONSMOKING MAJORITY 878fl5'73G

SH - SPECIAL REPORT ON INVOLUNTARY SMOKING Page 3 How we know ETS causes lung cancer Q: How do we establish that a sub- stance causes cancer? A: Usualh•, because the cancer-causing effects are so small, scientists subject laboratory animals to doses hundreds or thousands of times the equivalent of human exposure. Then we see if there is an increase in the incidence of cancer. In some cases we have been able to observe the effects of very high doses directly on~ humans; e.g., uranium workers exposed to radon. In both cases, because we have never found a safe level below which a carcinogen doesn't cause cancer, we must assume - until proven otherwise - that it can~ cause cancer in any concentration. Q: Does this mean we usuallv have no studies showing that a chemical causes cancer at the levels at which it is nor- mally encountered? A: That's right - such studies are usual- 1y not available. For example there are no studies showing that radon at typical levels found in homes causes cancer. The same is true for most of the other carcinogens regulated by various agen- cies. Fortunately, these normal-level (so called' "'epidemiological")' studies are available for ETS, and show what hap- pens at typical ETS levels in homes. Q: Is there anyy evidence, in the ab• sence of these epidemiological studies, which shows that ETS causes cancer? A: Yes, many different types: FIRST, more than 40 individual chemicals present in ETS have indepen- dently been found to cause cancer, and there is obviously no reason to believe that they lose their cancer-causing prop- erties when mixed with other toxins in ETS. SECOND, thousands of studies have demonstrated that mainstream tobacco smoke - which contains virtually the same chemicals as ETS - causes cancer in the lungs of smokers, as well as in animals such as mice and rats. THIRD, numerous studies showw that nonsmokers absorb large amounts of these chemicals into their bodies - in some cases the equivalent of a pack a day - even if they are seated in no- smoking sections, and that they retain the chemicals for long periods of time. THUS, this evidence even by itself is far stronger than that under which most carcinogens are regulated. As the U.S. Surgeon General said in his 1986 Report: "In examining a low-dose expo- sure to a known carcinogens it is rare to have such an abundance of evidence on which to make a judgment, and given this abundance of' evidence, a clear judgment can now be made: exposure to [ETS] is a cause of lung cancer." Q: How were the epidemiological studies [listed on page 15]' done? A: The studies examine comparable groups of people to see if the one regu- lhrh• exposed to ETS had higher rates of'lung cancer than the one which was not. In virtually all cases, those ex- posed to ETS had higher lung cancer rates than those who were noo exposed. Moreover, where it was possible to measure the amounts of the exposure, those with the most exposure generally had the highest rates of lung cancer. Q: How do we know that other things didn't cause the higher rates? A: Individual! researchers and EPA scientists looked for these other factors, but found none which could'expiain the higher rates in the many different stud- ies in so many different countries. Also it is unlikelV that any of these other causes would have increased di- rectlv in proportion to ETS exposure.. cancer deaths in nonsmokers: A: The evidence today is far stronger and more conclusive than with regard to virtually any other chemical. In 1986 the National Academy of Sciences - an~ official and impartial body established'bv Congress - unani- mously concluded that ETS caused lung cancer in humans. The same vear the U.S. Surgeon General reached the same conclusion. [see page 2] Indeed, numerous other scientific and medical organizations reached exactly the same conclusion even prior to the EP A Report, and none has ever reached the opposite conclusion. (see page 2] Q: Could the EPA have been biased? A: The EPA Report was prepared by a large number of scientists with the help of consultants from many different independent organizations. It was then subjected to scrutiny - including publie hearings open to all critics and objectors - by a Science Advisory Board (SAB)') composed of other scientists. Even though almost half of the mem- bers of the SAB, including its chairman, admitted to having direct financial ties to the tobacco industry, the SAB never- theless unanimously agreed with the EPA that ETS caused cancer M humans. Besides, alleged bias by the EPA czn't explain why every other scientific bodv both here and abroad which examined the issue reached the same conclusion. "ETS is a human lung carcin- ogen, responsible for approxi- mateh• 3,C00 lung cancer deaths annually in U.S. non- smokers." (EPA Report at f-l.]i Q: How strong is the evidence that ETS causes lung cancer and lung Q: Is 3000 a large number of deaths? A: Yes. It is more than 3C times those estimated to be caused by all EPA-regu- lated cancer-causing chemicals. [see box below] Annual Cancer Deaths Asbestos ............ 15/yr Vinyl chloride ....... <?7 /vr Airborne radionuclides . . 17/yr Coke-oven emissions . . < 15L-r Benzene ............. 8/yr Arsenic ............. <51yr Smurcr: Rep,ca. Rn2i.Anii.+.a. \'l:. \c;. :r9: This is a special isue of the ASH S»to4ing.nd Health Review (fSSN ' 1C3 6-9077:C1. Copyrighted by Action on Smoking and Health (ASH)4 _C1: H'.Sn. \D; ;,u'ase.. DC 2CCC6. (2:-_'1 659-43iC. ASH is a national nonprofit, tax-exempt organitation concerned o,ith the problems of smoking, and the rights of nonsmokers. ASH' is entire!. supported'bv tax-deductib!e contributions.,and regu!ar, contributors receive the ASH Review. Printed portions of the ASH Rrt+xm ma.• be reprinted n•itfi credit to ASH..

,.,~4SH VJ- SPECIAL REPORT ON INVOLUNTARY SMOKING ETS is the third major U.S. killer The EPA Report concluded that ETS causes approximatelv 3000 nonsmoker deaths annually from lung cancer, but that's only the tip of the iceberg. Actually, other studies noted by the EPA strongly suggest that ETS causes 53;000 U.S. deaths each year, making it the third major killer - after active smoking (by smokers) and alcohol! It is not surprising that passive smok- ing causes diseases other than~ lung cancer, or that lung cancer was the first disease definitively linked to ETS. The same thing happened with regard to active smoking. "amestimated 53,000 Americans die each year from' exposure to tobacco smoke of~ others." Dr. Antonia C. Nbvello, U.S Surgeon General Annual Deaths, Passive Smoking Heart Disease ......... 37;000 Lung Cancer ........... 3,700 Other Cancers ......... 12,000 TOTAL .......... - 53,000 SOCRCe_ Glantz,. et al .. Passtve Smoking and: Hean D,sease.,Circulatson• 1991:63.1.1-11. see, also N'ells. An emmateof adult monalrtv in the CS.S from passive smo'asng• Ennr !ht 199_:2 639, . The original Surgeon' General's report' concluded that smoking caused lung cancer in smokers. Only later did we realize that it also causes heart attacks,, and cancer at many other sites. This also appears to be happening with ETS. The EPA Report stated: "While this report focuses only on the respiratory health effects of passive smoking, there also may be other health effects of concern. Recent analyses . . . suggest that ETS exposure may be a risk factor for cardiovascular disease. . . . If it' is, the totaDpublic health impact from ETS will be greater than that discussed: here." A recent analysis of almost a dozen epidemiological studies concluded'' that ETS increased the risk of heart attack among people living with smokers. In addition' the principal author [Glantz) noted that since smokers are much more densely packed in an office than the,v are in' most houses, "we are almost cenainly underestimating the risks" of workplace smoking. The epidemiological studies upon which the article was based are believed to be particularly reliable because they generally show a "dose-response" effect, with higher exposure causing a higher risk of heart attack. This tends to show that it is the ETS - and not some otherr factor - which is causing the deaths. The studyy also outlines at least five ways in which ETS contributes to hearth attacks. First, the transportation of oxygen to red'''blood cells is immediatelv hampered by the carbon monoxide (CO) in~ ETS. The CO replaces the oxygen which is ordinarily carried by the red'' blood cells. Second, other studies show that the blood not onlv does not carry the oxygen as well, but also that the oxygen a-hich does get to the heart isn't used bv the heart muscle to do work as efficiently. Third, there's evidence that ETS makes bloo& platelets abnormally "sticky,"' and thus more likely to aggre- gate and form~ blood clots. Fourth, while increased platelet aggre- gation plays a direct role in' heart at- tacks, it also contributes to the develop- ment of atherosclerotic plaques, the fatty deposits on the walls of coronarn•. arteries which often lead to heart at- tacks. Fifth, components of ambient tobacco' smoke may damage the delicate inner walls of'~ coronary arteries, and initiate or accelerate development of these plaques. In the next column are the major epidemiological studies linking ETS to heart attacks. Immediatelti•y following are studies which suggest that ETS causes cancers other than lung cancer. Page 4 BGTLPR. The relationshep of pasuve.smoklmR tovanous hesith outcomes among Seaeath'-Dar Ad,entssts in Caiafornua. )e.enth VCorld Conf<renet on Tobacco andHealth 199:J16'. • GAR- IaND, rr al... Effects of Pasn.e SYnoksng on Ischemrc Hun Disease Monahrv of.\onsmoken. Ans J Ep~demsol 19g5:1:1.6a5- 65C • GIIUIS. ec al.. The Effecs of E'nstronmensa) Tobacco Smoke in T+ro Urban Carssmnnmes in the West of Scaiand.. Euro J Resp Dn 19fa.65(Suppl 1331:It1.i26. HE. tinmen'npass.se smoking and coronarv heart diseue. Chung-Hus-YuFanpl-Hsurh. Tu{hm 19/9: !3 ~19d2  HEISING. nal I. Hean. Disease 5lonabn• vn \cnsmokers Lnng With Smokrrs.. Am JEpudrmioi 19gg.L'.',915-9'_?  HOIF, et a1_:Passsve smokusg and car~'~ore- spsntorv hultksn a general population in the vta oi Sectland: Br\fed:J. 1919199a?3-427 • HUMBLE. Passive smoiang and nenn• 3'rar.cardsovasndar dJstast monahrv among nonsmofunS ss.es m Evans Countyr Georgra, Am J Public Hcahb 190:: g: 599- 6:1 • LEE. et al... ReliuonsWp of Passsve Smokmg to Rssk of Lung Cancer and Other Smokmg-Assoctatrd Dnrasas. Be J of Cancer 1916.54.97-1:5 • HIRAYAMA. T. liungCancer tn 0 Annual Deaths, Various Causes Active Smoking' . . . . . . 434,000 Alcoholic Beverages2 ... 105,C00 Passive Smoking' ....... 53,CC0 Auto Accidents' ....... 43,500 Homicides'' ........... 24,020 AIDSS .............. ,,,334 Fires' ................ 4,'00 Radon, to nonsmokerss . . . 4,000' Cocaine & Crack' ....... 2,483 Heroin & lvlorphine'` . . . . 1,976 1~.• C:S. Centers forDnnse Concroli 1911 • 2• C.S Cenaers for Daease Control; 1911? . 3• l'S,Sursros Grneu:-.199C • e.• `it1'SaieraCounal. 1991 . S• USStn J,rdKUrv.Conun. Rpt. !991 e 6: Cs. CentersforDsrase.Concrnl_ 1991 . 7• IS. Nst'8 SafttrCeunn,i. 199t Repsce. Rnk' Ans!.-_ V No 1, t99;, :7 . 9. •Nat•I Inst, on Drug Abwe. 199: .1: .. Nail Inst on Dn.g Abuse. 199:. Jlpan: Effects of Numtsnn and Passne SmokSng, in Lung Cancer-Causes and Prevenvon, M. \lsadll.• et al..eds.. pp 175-195.\'erla9 Cheme lnt1„Ne.• York, 19te. MARTIV:,M, . J Increased. Incsdenct of Hean Acuek's u+ ;tiensrnok'ang Women \tarrsed to Smokers. Paper presented at anmual m.nmgnr American Publu: Health Assocsatmn, 1916 . . SYEEDLSND..K.. Passrve Smokrng and tke risk of hrandusease. JA\fA.f1992116-9..99. SWEND- SEN; et al. Effee<s o/ passsve smokmg Ihe mudt,pie nsk iaanr sntenentson tnall Aen J.Eptdemso11917a:6-713-'93 CANCERS: StaTTERY. n al- Ggarenclmoksng and Eaponrre, toPasss.e Smoke are Risk Faesors in Cerwcal Cancer. JANA. Vol. 261 (17), 1593-159g. \Lr 1991) • HIRAYA.MA. T... Cancen. \4orsalrv in Nonsmok.ng.lYbmen With Smoking Husbarsds BassJ ona Large-Scale Coh'on Siudv in Japan: Prev \1hdJ :3(6}:6g:.d9C.. tios-. 1914 . GI W S. n al., The Effect of EnvsronmentA Tobacco Smmoie.,n Ti.ro. L'rban Communsnes mthe \Sestoi Seotland. Eur. J..Resp. Dn. 65(Suppl. 133) 1984 • REYNOIDS, et al.. Pasnvr Smoking and.Caneer Inndrnee~Prespecuve Evdence from th'e AtamrdlCaunm Srnds" Paper pneunted atthe Socsrn-ior Ep,dem,oioga Research. Amherm. \Sass.. jiuse 1987 . Mll1FR.. 0 H Cancer. Passsae )moksng and Nonampi6ved and Empioved. N",vrs. Vl'ev J Neu M:.: 632e3i., 1994 . • SANDLER, n ai. Passne imokms. - Aduiihoo.i and:.ancrr Rui. Am j Epidem.oi 121. PN1 1913 This is a special issue of thr.tSHSrrtoking.rtdHr.lth'Revuav ((SSN' 104(~907X0): Copynghted!by Action on Smoking and Health (ASH).?013 H St., NV:'. VL'asN:, DC ?0006. (.:2)'6594310 ASH is a national nonprofit tax-exempt organization concerned o•nh,thc problems of smoking and the rights of nonsmokers. ASH ii enureh 8'7805'738

0SPECIAL REPORT ON INVOLUNTARY SMOKING Page 5 Answering tobacco industry arguments on ETS studies The tobacco industn• (TI) purports to find scientific flaws in the evidence that tobacco smoke causes cancer in non- smokers. However, since they also find flaws in the overw helming evidence that tobacco smoke causes cancer in smok- ers, it is reasonablie to doubt their im- partiality and their scientific credibility on both issues. Nevertheless, here are some of their major arguments, and brief answers prepared by ASH. TI: The EPA was biased. ASH: It is very doubtful that the scien- tific body which reviewed an& agreed with the EPA's conclusions was biased against tobacco, as almost half of its members admitted to having direct financial ties to the tobacco ind'ustn•. Since the more than a dozen govern- mental, scientific, and medical bodies which have reviewed the issue all agreed that~ ETS causes cancer, and no indepen- dent body has ever reached the opposite conclusior., it is far more likely that the tobacco industry's position is the one motivated by bias and self interest. TI: Studies showing increased inci- dence of lung cancer from exposure to ETS in the home don't prove that ETS in the workplace or in public places likewise causes cancer. ASH: There is no reas= to believe that chemicals shown to cause cancer in one location would suddenly lose their cancer-causing properties in another. Although no studies done in schools show that asbestos causes cancer, we don't allow children to go to school where asbestos is in the air. TI: The EPA unscientifically relied on studies which were not statistically significant. ASH: "Statistically significant," in this context, means that an individual study proves to at least a 95°!o probability that ETS causes lung cancer. While we sometimes needithis very high degree of.f certainty before taking action, lower standards (e.g., 90%) are often used, and have been accepted by courts. After all, shoul& nonsmokers be subjected to a substance if we are only 90% (rather than 95%)~ certain that it causes lung cancer? TI: The EPA unfairly combined dif- ferent studies. ASH: Many studies all pointing im one direction often prove causation to a far greater certainty than any single study. Flipping a coin and having it come up heads 56 out of 100 tries only proves to about a 90% (not 95%) certainty that the coin is imbalanced. But if it keeps coming up heads more often than tails in study after study of 100-200 flips, the odds of that happening by chance be- come so small we can say a•ith~virtual certainty that something other than chance i's causing it to favor heads. Here, looking at different combina- tions of the larger and better studies, the EPA says the odds of the results occurring, by mere chance range be- tween 1 in 10,OC0~to I in 1,00C,CCJ,CCO: In other words, the EPA judged the overall statistical significance of the studies to be at least 99:999^°!! For additional information and argu- ments refuting the tobacco industry's challenges to the EPA Report, see the EPA Report; excerpts from it on pages 11-14 of this document; and Repace & Lowrev, "Issues and answers concerning passive smoking in the workplhce: re- butting tobacco industry arguments,"' Tobacco Control 1992; 1:208-219. ETS CAUSES CANCER The following organizations have all concluded that Envi- ronmental Tobacco Smoke (ETS) causes lung cancer and lung cancer deaths among nonsmokers: American Cancer Society American Heart Association American Lung Association American Medical Association American Public Health Association Environmental Prot~ection Agency National Academy of Sciences National Cancer Institute National Institute for Occu- pational Safety and Health U.S. Public Health Service U.S. Surgeon General World Health Organization TI: The answer to ETS problems is better ventilation, not smoking bans. ASH: Many studies and scientific bodies have concluded that the risks from~ ETS remain higher - even in buildings with the best ventilating systems - than we would accept in other circumstance. For example, air pollution levels in many public places were foun& to ex- ceed federal outdoor air quality criteria, even in the "no smoking"' sections. Repace & Lowrey, "Indoor Air Pollu- tion ...," Science, Vol'. 208, 5/2/80. Even separate smoking rooms don't provide acceptable levels of protection since tobacco smoke is recirculated. No filter can remove the cancer-causing gases, and most of the cancer-causing particles are too smaR to be 'rapped. Repace & Lowrey, "An Indoor Air Quality Standard . .," NY State J. Med., 85:381-83 (1985). -his is a speaal issue of thc ASH Smoking and Health Revrw (15S` 1Z16-9Z7XC). C°pvngnted by Action on Smoking and Heaith, (ASH). 2-1 3 N' St.• NT. u un-• DC 10006, (2C2) 659-4310. ASH is a national nonprofit, tax-exempt orgaiuzation concerned ..-ith the problems of smoking and the rights of nonsmokers. ASK' is entire:p supported by tax-deductible contributions. and regular contributors receive the ASH Rrvtew. Printed pontor» of thc ASH Re-.new may be repr med with eredit to ASH.

1,~4SH ~(J SPECIAL REPORT ON INVOLUNTARY SMOKING What others are saying and doing about ETS "EPA Report Sparks Antismoking Plans: Plaintiffs' Suits May Prod Firms To Bar Smoking - The [EPA] is counting mainly on plain- tiff's lawyers, rather than regulators, to drive businesses to ban smoking on their premises, and the lawyers are eager to comply. As a result of the EPA's report linking 'passive' tobacco smoke to lung cancer and other ailments, a new wave of tobacco-related! lawsuits is likelv, legal specialists say. These are expected to include workers' com- pensation claims [andJ damages suits by customers who experience ad- verse reactions." Wall Street Jour- nal~ 1/7/93 "Already,, 56% of organizations sur- veyed are completely smoke-free; by the year 2002, another 40% a•: l have enact- ed a smoke-free policy. ~'~nly 4% said they expected to cont:n;:e allowing smoking during the next 10 years." International Facility Management Association "It's just a matter of time before smok- ing is completely banned in the work- p15ce. It will happen in 10 years - may- be less." National Alliance of Business "WV Our Kids Are Breathing. Easier: Our Restaurant is Now a Smoke-Free Environment - Since we are a restaurant concept catering to families, we are always concerned about health risks affecting children. One of' those risks is the effect of second-hand~ smoke. Recent health advisories have studied the effects of second-hand smoke and„ because of the results, we have determined it is a risk we cannot afford to take. therefore, our restaurant is now a smoke-free environment." ShowBiz Pizza Time, Inc. [ChuckEChecse] "Employers that continue to allow smoking in the workplace, even under the most restrictive circumstances, may be more vulnerable than ever to litiga- tion by nonsmokers."' Employee Bene- fit News, 3/93. "'More and more the owners or opera- tors of public facilities like the Orioles are sending tobacco smoke the way of flaking asbestos - and for the same reason. It kills innocent people." Baltimore Sun, 1/10 "When I learned that second-hand; smoke is a known carcinogen with no safe level of exposure, and that air-con- ditioning simply recirculates it, I decid- ed I did not want my family, my cus- tomers or my employees to breathe tobacco smoke. Ten months ago I made all four of my restaurants no smoking.. . yet [my restaurants'] sales are about the same. I've had a few guests upset about my policy, but most of thems after hearing the reas= whv„ decided to stay." Pasadena [CA] Res- taurant Owner "If indoor smoking isn't curbed, some people who think they've been put at risk by secondhand smoke may wind up taking their complaints to court." Raleigh News & Observer, 1/10 "An increasing number (;of restaurants) are in the process of banning smoking. There is not a chain in the country that is not considering it today." National Restaurant Association "McDonald's Corp., the world's largest restaurant operator, is considering ban- ning smoking in its nearly 9,000 U.S. outlets .. McDonald's . . has been a kind of corporate weather vane on social policy issues." Washington Post, 2/19/93 "As a result of the EPA ruling, Grey- hound Lines Inc. says it plans to reas- sess a smoking policy that had alreadv Page 8 "The Heat is on: Anti-smokers Promise an All-Out War This Year, and They're Going After Restaurants - Even before the EPA declared secondhand smoke a Class A carcinogen - along with asbestos and benzene - the nation- wide movement to ban virtually all smoking in restaurants had roared to a blaze. Three years ago, only three localities had outlawed smok- ing, either in restaurants or all workplaces. By [1/1/93J, the total was up to 47 (including]IFlagstaff, Ariz., Stockbridge,,'•vIass., and Madir son, Wisc." Restaurant Business, 2/10/93, grown increasinglyy restrictive in recent years. 'Given the EPA findings, we will seriously consider abandoning smoking for all of our locations.'" Wall Street Journal, 1J7/93 "No one would grant his neighbor the right to blow tiny amounts of asbestos into a room or sprinkle traces of' pesti- cide onto food. By the same logic, smokers have no right to spew even more noxious clouds into the air around them."' New York Times, 1/16 "Lawmaker Would Punish Drivers Who Smoke With Kids in the Car - Anyone caught smoking in a car carrying kids under 16 .. would be fined S50 under legislation proposed .. by state Rep. Peter Daley. The Washington County [PA] Democrat says the bill was spurred by a Janu- ary report from the [EPA) docu- menting the health risks to children from secondary smoke. 'The major focus of that report was the fact that secondan• tobacco smoke causes serious health problems for thousands of American children.' Dalevv said." U:P.I, 3/3/93. Ttiis is a special issue o6 the ASH S»sokieg .nd Healih Retxw QSSN 10a6•907a0). Copyrighted by , Action on Smoking and Health (ASH); 2C13 H St.. NW. Wash.. DC 20006, (202) 6i9.4310. ASH is a national nonprofit. tax•esempt orgutization concerned a•ith thc problems of smoking and the rights of nonsmokers. ASH is entireh• su.nnnrted h- tisaicduitihlc cnntrihutinn.. snd rec.tl,r .nntrihutnrc reocivethcASHRrts>u, n•,n,rcl n-.,n.ACH Rrtv+rm- k•----ni -•^ , ^dil ,n ACiY 8'7805'740

an W- SPECIAL REPORT ON INVOLUNTARY SMOKING Legal liability for permitting smoking Even without the new evidence now available in the EPA Report, workers have long been able to recover com- pensation for injuries cause& by expo- sure to tobacco smoke. So far, they have been successful under a variety of legal theories and doctrines: • common law and negligence: when an employer fails to provide a rea- sonabh• safe and healthful work- place, even in the absence of a statute; • workers' compensation: designed to compensate workers for job-related injuries and health problems;, • unemployment insurance: protects workers who lose their jobs through no fault of their own; • disability: to protect workers made unable to work;, an& even • discrimination:' unfair retaliation against nonsmokers In addition, a number of rulings held that persons who are sensitive to tobac- co smoke are "handicapped persons." That meant that entities covered by the law at the time - governments and large recipients of federal funds - had to make a reasonable accommodation to protect such people. Since the new Americans With Dis- abilities Act (ADA) imposes the same obligations on virtually all businesses, many more legal actions under this theory are likely to be filed and to be successful. Already, ASH has filed an ADA complaint against an airport, and ADA lawsuits have been filed against McDonald's and other fast-food outlets. The EPA Report is likely to make it much easier for employees to prove the harmful effect of ETS in all of the types of cases outlined above. It is also likely to open the door for new types of suits- For example, a child brought into the smoking section of a fast-food restau- rant or other public place could sue the owner if'~he or she suffered an asthmatic attack or other medical problem as a result. In such a suit, the carelessness of the adult who brought the child into the smoking sectiom is not a valid legal Cases of Particular Interest Smoke drifting up from a first- floor smoking area into a second- floor classroom was enough to trigger chronic lung disease in x teacher who was awarded 529;999,' A waiter who suffered a heart attack as a result of'' working in a smoke-filled bar received 595,000.= A secretary was held to be "envi- ronmentally disabled" because she could not work where she was exposed' to tobacco smoke. Her employer paid her S50;000' plus 5500/mo for the rest of her life,, even though she was free to work in any other smoke-free office.' Pointing out that smoking was banned in one room because it adversely affected a computer, a judge, even' prior to evidence of lbng-term health hazards from ETS, ordered a smoking ban in the office of a smoke-sensitive employee.a An Army employee sensitive to tobacco smoke was a "handicapped person" under the Federal Rehabili- tation Act, and his employer was required to make a reasonable ac- commodation to his handicap.5 A government employee had' no righr to smoke, and' could be fired for smoking even one cigarette on his own time off the job.b iL Schd)Irr v.,Los Angeles Cmhed School: Diancs PAS 656. PAS 175:. LA6:7f".9, CGhf Workeri Comprnutmn Appeals Bnard, 3/2^•/92: • 2. Lbht v. Staue Compensauon Innuanee Fund. Cat-N' Fiddle Restaurant (C+li[. tY'orkrrs' Compensation Appeals Board 199:): . • 3. Piarod, v\fens Systems Ptotecuon Baard'697 ~Fad 7)1(91h Car. 1912). •+. Shsmp v. Nea- Jersey BeB. Telepltone Company, 366 A1d +08 (1976);. • 5. Plenen v Departmens of the Atmv, L'5. \feat SVitems Protection Board Nos. CH"-75211:1::99, CH:1527 29:1 (1981):.• see also t',ckenv.The t'emons Admsmnuurm..S+B F. 5upp 85 (19829. • V"eer v: Oldae wPersonnrl \1ana8ement (\li'nr Si•ssrms ProtecttanBo+na- Dallas ReBtonal OIlrce. Dockn ~o DA 831L861:~j l l 1986/. • 6: . Gwendori v: Cnv on Oklahoma Gsv, 116F2d 539. !1-th.. C,.r. 19871 ~. Page 9 defense for the business. Similar legal actions could' also be brought on, behalf of young children who suffered medical problems as a result of exposure in the smoking sec- tions of airplanes on overseas flights. Some of the legal precedents involving exposure to tobacco smoke are dis- cussed or cited on this page. COMMON. L1>tr: Hemss) v. SmBer183. Cal.i Rpsr 159. (App 19121:: • Smmh v. VC'enern Eleevrc Compan. 6+3, 5 W . :d Ato. App. 1983) NEGLIGENCE: 'scCarslip, v. Depanmenc of Socul Hrauti Senices. 11: Wash. d 812, 759P.2d 351 (19/81 a'ORSMEN'S COMPEN5ATION= Brookss v Tnm.)Conid Aulma ee al Caldornu tYorkm~en:'s Compensumn Apprals Board.: Case No 76 SF 257-975 (.197'1; • Schober v V ountarn 3ell Telephone N.\f.: App 63: P,d./2+1 i198!l: • Bncheiorv. Fresno. Couniv (C+ldornul d196:): •!n she Matter of the Com~penunon oi SlarkneV['.' Anchse...OreBon VCorkers' Compenutton.Board. WCB CaseNo. B.L7248- CGsm tio. D69:SC8..WCDNo Nonr 5 5,N ..5i3-r6-56P (198570 • In the V aosrr of she Compensaaon oi . Stan-.1. Dou-nev. Oregon `t'ork'ersCcc.pensauon Board WCB Case No 63-:19C1. Clarm ~No D6:5:9:. DEl! 'a'CD ~Fae No. C15179G. SSN'593=3+2883 (1985):,• Jland R Eler. No :853 , 28:..fh 1-..VC-orien' Comp, Bd.: Dec 1988, (N-ESTLA>C.,k1WC- AD\bN.datahase. 1929 Vsl 1917:+): • JohSnnesrn v 1r. York . Gn Department oi . HouunB Presenatwn and Devrlnpmem .1 L4 , A.D: 2d 753; 3+6.I:.Y.S 2d +^. (196'fr •';wahi.v. ti`nconnn Bri;. Inc...(Wtsconsm .abor and Indunrtai. Re- Commauon, a.:anm. No. 88:..:676. 199C)', • Bem w Stassacfsusens Turnpske Authornv tRepon oi Ad•ssmussrauve JudBe of thc Depar-mer.toi Induanall. Acodent (Dunne Solomon) Board: No. :392s-:86.. Octeber :.., 1991); • Servrnv The Chdd Cmter (}t'orkers' Compenut.on Board of ILsdiana Appitcatson \umben 11:+9C- Janusn 6. 199]'i , L".VES'IPLOYME\T INSIIRANCE:Hahman._N YSDepan- ment oi La6or. F.A. Russo Incorp; 5.5 A. e1:=3:-H65. Appeal' e'-33:526, Rrferee 76.)29•83 (19761-, • Stn- s-C-P. Clarr. and Campanv. et, a).. Industnal Communon oi.Idilio DOE 615-CB (19711)- • Aleaander v Cnemplmvmen:Ins. AppealsB,1. ::+ CG1. App. ~f 97, G1. Rptr 411 .(198C), ,• Ennu and SeroehmannBro.s.... Pennsvlvanu tlnemplovment . Compensauon: Board: of Reac- AppealNo 8-83-SR-2+. Deas,on Nc 82135::G (198ri: • >1eCrocklm v Emplovment Developmem Depar.mrnte: lI 15e C.1. App.?d 1:67. 2:5Cal Rp:r 156'lCa: App. - vsn.. Deve., 198+i. • Laph'arn v. Commo-alth Cnemplo,m.rnr Compenu- eson Board. 519 A.2d 11:1 (Pa. Cm.ish:.l98'1. DISCABMINATiON AGAINST NONSMOKERSo Tar, Wa..vArerABenev on ApnB Initial Derermmauen..EOC CGSe Equai Opporrunases Comm.- Cim of \fsdison. R-fsconssn (19.^,:.. • Department of Fatr Empiovment andHousmBv. Frrmna . Coun,. CaidornuFasn Empiovmenu and Hkusm6 Commns- C+se No. FEP81,/: C8::C9ph (196+). • Depanrnent of FiuEmpi-nsand'HousmB v. Cou- oi..FresnoDepartmem ct, SOC41St-cesCastNof FEP62-L'C9~'e+p.F'_^83-BS.C9.::+srr N_16+3 FEP8L83.C9::85p. FEP8:-63 C9:19ere N*2165] tl9s>':.  Counn-of.Fresnov: Fav Empl6vment.and Houstn8 CSmm:s- aonobshe Swm.of Caldornu: • Brooks ana Capo. RruilPannen. . m IAteren. Ct ob App. State of Caldornu. Fifth App Dsss. 266 0). App. Sd 15+1, 277.Ca1. Rptr 555: J+nua- 23. 1991): FEDERAL REHABILITATION ACT CASES fDISABILITYAND HANDICAP):Flamk'en. v. Off- or Personnd %tanaeemen.t. L'S. \Ierrt SvarmsProtem- Board: Da;las F:eid Othce No. DAH31L1---1i (J91:11 • R4tuc•Cnned 5tasn Ponai,5enae (Equal. EmplovmentOpporrsmrtrCommusucn. Appeall 1b :1853426. 19671. This is a sperui issue of the ASH Srraoking and'Health Revmw (ISSN 1Ci6-9C7XC). Coprrtghted br Action on Smoking and Health (ASH);,_:13 H':=t.. NXV:,V'ash.- DC 2=26„(2i,3) 659-j*31C. ASH is a nationalinonprofit& tir-exempt orgamzauon concerned with the problems of smoking and the rtghts of nommoke;s. ASH is entirciY supported by taad6duetible contributions- and regular contributors receive the ASH Revsew: Printed portions of thc ASH Resnew mav be reprinted s'nh ereaic to ASH..