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SHOOK,HARDY&BACON REPORT ON RECENT ETS AND IAQ DEVELOPMENTS May 14, 1993 SHB

REPORT ON' RECENT ETS AND IAQ DEVELOPMENTS - IN THIS ISSUE - IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS • IAQ bill is introduced in House of Repre- sentatives, p. 1. • OSHA rulemaking options paper nears completion, p. 2. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS • Lorillard's motion for sanctions is granted in Broin, p. 5. • Dismissal order is entered in Zwillmart, p. 5. ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS • Texas attorney general wants to know about fast-food chain's smoking policy, In re: Whazaburger, p. 6. • Texas woman sues Ft. Worth jazz club under ADA, p. 6. • Bahura trial is postponed, p. 6. LEGAL ISSUES AND DEVELOPMENTS • IAQ publication focuses April issue on ETS litigation, p. 8. • BOMA urges smoking bans at ADA semi- nar, p. 9. OTHER' DEVELOPMENTS • Antismoking coalition in Los Angeles organize "Clean Indoor Air Week," p. 9. ISSUE 47 SCIENTIFICITECHNICAL ITEMS •"The Etiology of Lung Cancer," p. 10. •"Parental Smoking and Risk of Childhood Brain Tumors," p. 12. •"Smoking and the Sudden Infant Death Syndrome," p. 12. IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS • Legislative activity in Australia, Austria and Ireland, p. 13. ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS • Interlocutory default judgment against the defense is lifted in Mansfieg p. 14. OTHER DEVELOPMENTS • Australian survey indicates 77 percent of top companies have smoking policies, p. 15. • Canadian carpet industry will voluntarily test carpets for VOC emissions, p. 15. • WHO discusses ETS during their 46th World Health Assembly, p. 16. MEDIA COVERAGE "Tobacco Smoking in Aircrafr-A Fog of Legal Rhetoric," p. 16.

- TABLE OF CONTENTS - Issue 47 May 14, 1993 IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS U.S. CONGRESS [1] Indoor Air Quality Act Introduced in House ...........................................................................1 [2] Smoking Accommodation Policy Takes Effect in House Office Buildings ............................... 1 U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) [3] Hearings on Risk Assessment Bill Expected .............................................................................1 [4] Senate Approves Measure to Elevate EPA to Cabinet Level Status ...........................................2 U:S. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA) [5] OSHA Nears Completion of IAQ Rulemaking Options Report ..............................................2 [6] OSHA Revising IAQ Compliance Notice ................................................................................2 [7] Labor Secretary Testifies About OSHA Reform Legislation .....................................................3 [8] ETS-Relared State and Local Legislation..................................................................................3 [9] IAQ Related State and Local Legislation ..................................................................................4 ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [10] Blanchard Hearing on Defendants' Venue Motions Approaches ............................................4 [11] Broirz Lorillard's Motion for Sanctions Granted .....................................................................5 [12] Butler. Dean Butler's Deposition Scheduled ...........................................................................5 [13] ZwiUman: Dismissal Order Entered ........................................................................................5 ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS RESTAURANTS: DECEPTIVE TRADE PRACTICES [14] In rr.• Whataburgrr, Inc. (District Court, Corpus Christi, Texas)' (filed April I 1993)' .................6 AMEwcANs vcnrH DIswBILInEs Acr (ADA) [15] Emery v. Caravan ofDrrams (U.S. Department of Justice) (filed April' 12, 1993)-.--••••.-•••-•••••-•6 PRISONER CASE [16] Blackwelt v. Sheahan. 1993 U.S. Dist. I.F3QS 5650 (UiS. District Court, North District, Illinois, Eastern Division) (decided April 26, 1993) .................................................................6 IAQ-SICK BUILDING SYNDROME [17) Bahtara v. Sb'Wlnvtstors (Superior Court, District of Columbia) (filed September 14, 1990) ..6 PUBLIC PLACES: SEPARATION OF POWFRS [18] Brammer v. Branssad (District Court, Polk County, Iowa) (decided'April 2. 1993) .................6 PUBLIC PIACES: VALIDITY OF SMOKING RESTRICTIONS [19] Operation Badlaw. Inc. v. Licking County General Health Dutrict Board of Health, 1993 U.S. App. LEJQS 8685, (U.S. Court of Appeals, Sixth Circuit) (decided April 13, 1993) ..•..-••.--.---.7 WORIQ'LACE: IAQ/SICK BUILDING SYNDROME [201 Lazarus v. Voith dMacTavitht Karo/] v. Voitb crMacTavirh (Philadelphia County Court of Common Pleas, Pennsylvania) (filed April 1993) .....................................................................7 WoItKPIACE: DISABILITY BENEFTrs [21] Donato v. Metropolitan Lifr Insurance Co., 1993 U.S. Dist. LEXIS 5780 (U.S. District Court. Northern District, Illinois, Eastern Division) (decided April 30, 1993) ........................7 WORIrnrwCE: WORKERS' COMPENSATION [22] Ragle v. State Farm Fire & Casualty Co., 1992 WL 471862 (Alaska Workers' Compensation Board) (decided September 24, 1992) .....................................................................................7 WORKPLACE: COLI.ECTIVE BARGAINING [23] Williams Air Force Base, Ariz, and American Federation of Governmrnt Employees Local 1776. Case No. SA-CA-20302 (Federal Labor Relations Authority) ! (decided April 30, 1993) ...........8 [24] Hi-Ttch Cable Corp: and International Brotherhood ofE/tctrical Workers, Local Union No. 1510,1992 WL 296023 (National Labor Relations Board) (decided September 30, 1992) .....8 LEGAL ISSUES AND DEVELOPMENTS [25] Indoor Pollution Newsletter Features ETS Litigation .............................................................. 8 [26] Insurers Recommend LAQ Inspections ....................................................................................9 [27] BOMA Advises Building Owners to Ban Smoking .................................................................• 9

Contents Continued, Issue 47 OTHER DEVELOPMENTS [281 Division of Publishing House Issues Special Report on ETS ....................................................9 [29] Antismoking Coalition Organizes Clean Indoor Air Week ...................................................:..9 [30] Pizza Hut to Test Smoking Ban .............................................................................................10 MEDIA COVERAGE [31] "Separating Smokers Creates Growing Issue in Restaurants," C. Cambareri, Capital District Business Review, March 29,1993 ...........................................................................................10 SCIENTIFIC/TECHNICAL ITEMS LUNG CANCER [32] "The Etiology of Lung Cancer." D.G. Davila and D.E. Williams, Mayo Clinic Proceedings 68: 170-182, 1993 [See Appendix A] ..................................................................................10 [33] "Implications for Disease Misclassification in Epidemiological Studies of Lung Cancer Risk for Nonsmokers Exposed to Environmental Tobacco Smoke," A.W. Katunstein, Environment International 19: 211-212, 1993 [See Appendix A] ...........................................10 [34] Letters to the Editor Regarding "Environmental Tobacco Smoke and Lung Cancer Risk in Non-smoking Women," H.G. Stockwell, A.L. Goldman, G.H. Lyman, C.L Noss, A.W. Armstrong, P.A. Pinkham, E.C. Candelora, and M.R. Brusa, Journal ofrhe National Cancer Inrtiture 84(18): 1417-1422, 1992 ........................................................................................10 CARDIOVASCULAR ISSUES [35] "Carbon Monoxide and Cardiovascular Disease: An Analysis of the Weight of Evidence," J.H. Mcnncar, Rrgulatory Toxicolody and Pharmacology 17: 77-84, 1993 [See Appendix A] ....................................................................................... 11 ........................... RESPIRATORY DISEASES AND CONDITIONS - CHILDREN [36] "Child Day Care, Smoking by Caregivers, and Lower Respiratory Tract Illness in the First 3 Years of Life," C.J. Holberg, A.L. Wright, F.D. Martinez, W.J. Morgan, L.M. Taussig, and Group Health Medical Associates, Pcdiatrics 91(5): 885-892, 1993 [See Appendix A] .................................................................................................... ...............11 [37] "Risk Factors for Developing Wheezing and Asthma in Childhood." W.J. Morgan and F.D. Martinez, Pediatric Clinirt ofNorth America 39(6): 1185-1203, 1992 [See Appendix A] .................................................................................................... ..............12 OTHER CANCER [38] "Risk Factors for Renal Cell Carcinoma: Results of a Population-Based Case-Control Study," N. Kreiger, L.D. Marrett, L. Dodds, S. Hilditch, and G.A. Darlington, Cancer Causes and Conrrol4: 101-110. 1993 [See Appendix A] .........................................................................12 [39], "Parental Smoking and Risk ofChildhood Brain Tumors," E.B. Gold, A. Leviton„R. Lopez, F.H. Gita, E.T. Hedley-Whyte, L.N. Kolonel, J.L. Lyon, G.M. Swanson, N.S. Weiss, D. West, C. Aschenbrencr, and D.F. Austin, American journal ofEpidrmiology 137(6): 620-628, 1993 [See Appendix A] .........................................................................................12 OTHER HEALTH ISSUES [40] "Effects of Maternal Smoking Upon Neuropsychological Development in Early Childhood: Importance of Taking Account of Social and Environmental Factors," P.A. Baghurst, S.L. Tong, A. Woodward, and A J. MeMiehael. Paediatric and Perirutal Epidrmiology 6: 403-415, 1992 [See Appendix A] ..........................................................................................12 [41] "Smoking and the Sudden Infant Death Syndrome," E.A. Mitchell; R.P.K. Ford, A.W. Stewart. Bj. Taylor, D.M.O. Becroft, J.M.D. Thompson, R. Scragg, I.B. Hassall, D.M.J. Barry, E.M. Allen, and A.P. Roberts, Pediatrics 92(5): 893-896, 1993 [See Appendix A) ....... 12 [42] "Smoking, Passive Smoking and Smelli° P. Hepper, Medical Sciencr Research 20: 265-266, 1992 [See Appendix A] .................................................................................................... ......12 ETS EXPOSURE AND MONITORING [43] "Toxicology of Environmental Tobacco Smoke," M.J. Reasor. In: Toxicology of Combustion Products. L. Manzo and D.F. Weetman (eds.). Pavia, Fondazione Clinica drllavoro, 71-76, 1992 [Scc Appcndix A] .................................................................................................... ......13

Contents Continued, Issue 47 INDOOR AIR QUALITY [44] "Priority Among Air Pollution Factors For Preventing Chronic Obstructive Pulmonary Disease in Shanghai,"' X. Tao, Cj. Hong, S. Yu, B. Chen, H. Zhu, and M. Yang, The Science ofthe Total Environment 127: 57-67, 1992 [See Appendix A] ...................................13 [45] "Emissions of Volktile Organic Compounds from New Carpets Measured in a Large-Scale Environmental Chamber," A.T. Hodgson, J.D. Wooley, and J.M. Daisey, Journal oftht Air and Warte Management Association 43: 316-324„ 1993 [See Appendix A] ...................... 13 SMOKING POLICIES AND RELATED ISSUES [46] "C1ean Indoor Air Legislation, Taxation, and Smoking Behaviour in the United States: An Ecological Analysis,"'S.L. Emont, W.S. Choi, T.E. Novotny, and G.A. Giovino, Tobacco Control2: 13-17. 1992 [See Appendix A] ................................................................13 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS AusTRALiA [47] Health Authority Considers Restaurant Smoking Ban ........................................................... 13 [48] Cab Drivers Respond to Taxi Smoking Ban ..........................................................................13 AusTRiA [49] Shop Owners Protest Government Plans to Restrict Smoking ...............................................14 IRELAND [50] Dublin Corporation Considers Workplace Smoking Policy ................................................... 14 ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS AusrxwLCA [51] Mansfield v. The Herald etr Weekly Times Ltd. (Victoria County Court, Melbourne) (filed November 19, 1992) .................................................................................................... .........14 LEGAL ISSUES AND DEVELOPMENTS StNGAPORE [52] Ministry of Health Conducts Workplace Smoking Seminar .................................................. 14 OTHER DEVELOPMENTS AvsrRALIA [53] Author Addresses Scare Tactics Intended to Modify Behavior ............................................... 14 [54] Doctors Disagree with Studies on Asthma and Pollution ....................................................... 15 [55] Survey Reveals 77 Percent of Top Companies Have Smoking Policiu ................................... 15 CANADA [56] Canadian Carpet Industry Adopts Voluntary Testing Program .............................................. 15 HONG KONG [57] Survey Reveals Support for Smoking Bans .............................................................................15 SINGAPORE [58) Survey Finds Sick Buildings ...................................................................................................1 5 UNITLD KINGDOM [591 BAT Publishes Brochure on "Social Engineering" .................................................................15 WORLD HFALTH ORGANIZATION (WHO) [60] WHO Meets In Geneva for 46th World Health Assembly .................................................... 16 MEDIA COVERAGE CANADA [61] "Tobacco Smoking in Aircraft - A Fog of Legal'Rhetoric?," R.LR. Abeyratne, Air dSpacrlaw, No. 2 1993 .................................................................................................... ........................16 APPENDIX A .................................................................................................... .................................Arricle Summaries

MAY 14, 1993 1 REPORT ON RECENT ETS AND IAQ DEVELOPMENTS IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS U.S. CONGRESS Kennedy introduced similar IAQ legislation in past sessions of Congress that failed to gain passage. Provi- sions of the prior bills, which some believed blocked earlier passage, would have required an OSHA ventila- tion-based standard as well as mandatory, product- emission labelling. Those provisions were dropped fromiH.R 1'930.. [1] Indoor Air Quality Act Introduced in House On April 29, 1993, Representative Joseph Kennedy (D-Mass.) : introduced the House version of the Indoor Air Quality Act of 1993 (H.R. 1930). Co-sponsored by 23 other, mostly Democratic, House members, the measure would' authorize $47 million in spending over the next five years to fund indoor air research, a federal indoor air response plan, and state matching grants for devising local response plans. The House bill does not explicitly mention ETS, and Representative Kennedy did not cite the EPA Risk Assessment on ETS in his remarks at the time the bill was introduced. The bill, in many respects, is similar to the legislation introduced in the Senate in March 1993 (S. 656), in that its focus is on research into the causes of poor indoor air quality, methods of mitigation, upon coordination of federal and state activities regarding the improvement of indoor air quality. Also, like its Senate companion, the House bill would require an assessment of the role of ventilation in mitigating IAQ problems, but does not establish ventilation standards. The bill would not preempt any other federal or state law incorporating more restrictive compliance standards. Unlike its Senate counterpart, the Kennedy bill does not require publication of a list designating contami- nants known to have an adverse impact on human health. It does, however, require the EPA to publish "indoor air contaminant health advisories" on a prescribed schedule. The bill has been referred to three House committees: Education and Labor, Energy and Commerce; and Science, Space and Technology. At the time this Report was prepared, no committee action had been scheduled on the measure. [2] Smoking Accommodation Policy Takes Effect in House Office Buildings On May 7, 1993, the House Office Building Com- mission announced its policy for smoking restrictions in public areas of all House office buildings would take effect immediately: Smoking will only be permitted in designated areas. Speaker of the House Thomas Foley (D-Wash.) directed that a similar policy be imple- mented for the House side of the Capitol. In areas assigned to House members, committees and support offices, smoking policies are to be determined by each member, committee chair and support office head. The Capitol Architect has been directed to develop a plan for the Office Building Commission's approval designating public areas where smoking will be permitted. U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) [3] Hearings on Risk Assessment Bill Expected The Senate Environment & Public Works Commit- tee is reportedly expected to hold hearings in May or June on a bill that would coordinate the development and implementation of environmental policies at EPA. The bill, S: 110, was introduced in January 1993 by New York Senator Patrick Moynihan (D). See issue 41 of this Report, February 19, 1993. The measure would establish committees that would attempt to formalize risk assessment by ranking relative risks and by estimating the quantitative benefits of reducing risks. Critics have warned that current scientific knowledge is insufficient to support such an

2 effort. Supporters, howevery contend that the matter must be addressed regardless of its complexity. According to a press report, Representative Dick Zimmer (R-NJ) is considering introducing a compan- ion bill in the House. See Inside EPA, April! 30, 1993. [4] Senate Approves Measure to Elevate EPA to Cabinet Level Status On May 4, 1993, the Senate voted 79-15 to approve a bill which would give the EPA a seat in the President's Cabinet (S. 171). The Senate measure would establish a new Department of Environmental Protection and would permit regional offices to continue as they are presently set up. The bill would abolish tlie'White House Counsel on Environmental Quality. Among the amendments reportedly added to the bill is a provision requiring a risk assessment and cost benefit analysis of each final regulation. See BNA National Environment Daily, May 5, 1993. Meanwhile, the House has apparently begun to conduct hearings on its draft EPA bill. Critics of the agency, such as Representatives John Dingell (D- Mich.), Michael Synar (D-Okla.), and Henry Waxman (D-Calif.), are reportedly seeking major reform of the EPA's management, contracting, procurement, science and enforcement policies before they will agree to * elevate the agenry to Cabinet level. Waxman report- edly opposes the cost benefit analysis that was added to the Senate measure by amendment. During subcom- mittee hearings, Dingell apparently stressed the need for truthful science, called for an end to "cooked" studies at the agency, and criticized the agency's use of contractors. According to EPA Administrator Carol Browner, the agency supports much of the House draft bill, which is said to contain many of Dingell's suggestions, indud- ing changes in contracting practices and peer review of EPA analyses and reports. See BNA National Environ- ment Daily, May 10, 1993. U.S. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA) [5] OSHA Nears Completion of IAQ Rulemaking Options Report According to Charles Adkins, director of OSHA's health standards program, a policy options report ETS/IAQ REPORT, ISSUE 47 offering several approaches for OSHA to take in promulgating an IAQ rulemaking is nearing comple- tion, and the next agency administrator is expected to make a decision on how to proceed by the summer. The Clinton administration has yet to name an administrators but the top candidate for the position, former director of the Washington Department of Labor and Industries John Dear, has apparently been hired as an OSHA consultant. The options paper is expected to offer two major policy options, i.e., either a wide-scale IAQ rule to address ventilation concerns and various contaminants or a separate rule addressing only ETS. Adkins is quoted as saying, "We're looking at a period of six months after a decision is made [by the OSHA admin- istrator] before the rule could be proposed." Adkins further stated that job stress and other "psychosocial factors" will not be addressed in OSHA's efforts to develop an IAQ rule for the workplace. Some studies have indicated that psychosocial factors are at least partly responsible for generating IAQ complaints. According to an OSHA industrial hygienist, a preliminary assessment of the 1200 comments submit- ted in response to OSHA's request for information on indoor air has revealed substantial public support for (i) performance-based ventilation standards giving employers flexibility to achieve compliance; (ii) mandatory training for employees who maintain or operate HVAC systems; and (iii) control of the use and introduction of contaminants, solvents and gases in the workplace. A more thorough analysis of the public comments is apparently due this summer. See BNA Occupational Safety d Health Reporter, April 28, 1993. [6] OSHA Revising IAQ Compliance Notice According to a press report, OSHA is currently revising a compliance notice for agency inspectors to continue to conduct workplace IAQ investigations. The compliance notice being used by inspectors evidently expired in October 1991. Even though OSHA has no workplace IAQ regulations, inspectors have reportedly been instructed to respond to em- ployee IAQ complaints and may cite employers under other related standards. According to an OSHA directive on the issue, compliance officers cannot cite employers under the general duty clause of the Occu- pational Safety and Health Act because (i) most

MAY 14, 1993 industry consensus standards are derived from a combined consideration of comfort and adverse effects and (ii) there are no formal occupational exposure guidelines addressing ETS. See BNA Occupational Safety ti'Health Reporter, Apri128, 1993. [7] Labor Secretary Testifies About OSHA Reform Legislation During an Apri128 hearing conducted by the House Education & Labor Committee, Secretary of Labor Robert Reich discussed the issue of proposed OSHA reform. The subject of the hearing was H.R. 1280, see issue 43 of this Report, March 19, 1993, but Reich did not address his comments to specific provisions of the reform measure, indicating that the new Administra- tion has not yet had an opportunity to fully consider the bill. Reich did not discuss indoor air quality in his testimony, although several press reports indicated that he did so: See The Houston Chronicle, Apri129, 1993; States News Service, Apri128, 1993. [8] ETS-Related State and Local Legislation •California The Governmental Organization Committee has approved a bill that would enact limited statewide smoking restrictions, but would prohibit many cities from adopting tougher anti-smoking laws in the future (A.B. 996): Cities and communities that already have tougher restrictions would be allowed to keep them. The bill is controversial because it supposedly threatens A.B. 13, a bill that has been approved by the Labor and Employment Committee and would prohibit smoking in enclosed workplaces throughout the state. Both bills are now pending in the Assembly Ways and Means Committee. Bill' 996 could generally ban smoking in restaurants, but would allow a restaurant to set aside up to 30 percent of its area as a smoking section if ventilation meets ASHRAE Standard 62-1989. The restaurant would have to display signs notifying patrons that smoking is allowed in specified areas. The bill would also restrict smoking in workplaces and other indoor public areas. The bill has been criticized as "a tobacco industry Trojan horse. It has the exterior appearance of restricting smoking, yet upon examination it is a ploy by the tobacco industry to stop the momentum for the total workplace smoking ban." See BNA California - 3 Safety [r Health Report, Apri126, 1993, The United Press Internationa4 April 27, 1993, Sacramento Bee, April 28, 1993, and Los Angeles Times, Apri130, 1993. •Local Governments in Georgia According to press reports, Fulton County Commission- ers passed an ordinance Apri121, 1993, banning smok- ing in most public places. The Clean Indoor Air Ordi- nance goes into effect May 20, 1993, and prohibits smoking in elevators, hallways, indoor sports arenas, and health care facilities. Employers must create a smoke-free workplace; however, they are not required to spend any money to make structural changes. Restaurants must set aside at least 50 percent of their dining areas for smokers. Fulton's ordinance was patterned on a DeKalb County law passed last year, but Fulton's law applies to all cities in the county, induding Atlanta, while the DeKalb County Legislation applies only to unincorporated areas of the county. The Fulton law exempts state-owned or run buildings, such as jails, the Capitol or the Georgia Dome, and it excludes bars, hotel rooms and cigarette shops. Hartsfield International Airport main terminal is in Fulton County and will fall under the ordinance; however, the concourses do not because they are in Clayton County. A spokesman for the Tobacco Institute was quoted to say that the ordinance "strikes a balance." See The Atlanta Journal and Constitution, April 21, April 22, and April 24, 1993. •Hawaii Governor John Waihee (D) has signed into law a bill that prohibits smoking in all group child care homes, group child care centers and family child care homes during their hours of operation. See S.B. 831, 17th Legislative Session - 1st Reg. Sess. (1993). •Local Government in Massachusetts On May 5, 1993, the Boston City Council approved an ordinance that requires employers to formulate policies on workplace smoking. The measure also prohibits employers from regulating off-the-job use of tobacco by employees. Dropped from the final version of the measure was a section that would have required giving a preference to nonsmokers in making accommodations between smokers and nonsmokers. See Daily Labor Report, May 7, 1993. On April 27, 1993, the Norwell Board' of Health reportedly proposed a ban on smoking in public places and workplaces that employ more than three people. Restaurants are exempt as long as they provide a separate

4 ventilated area for smokers. Voters accepted the measure by a 120-101 vote, according to officials. The president of the Norwell Chamber of Commerce was reported to say, "It's government intrusion in small business." See The Boston Globe, May 2, 1993. •New York According to a news report, Governor Mario Cuomo (D) proposed legislation April 14 that would toughen existing smoking restrictions by, among other things, limiting smoking in the workplace to separately- endosed, designated rooms. The measure-would also require that restaurants, bowling alleys and bingo halls have separate enclosed areas where smoking is allowed. Smoking would be prohibited in fast-food restaurants and other eating establishments that seat fewer than 50 people and don't have a liquor license. Smoking also would be banned in youth centers, child care facilities, community residences, public institutions for children, and residential treatment facilities for children. See BNA Product Liability Daily, May 3, 1993, Gannet News Servict, May 3, 1993, and National Public Radio, May 3, 1993. >New Yak IAQ Bils, ftem 9. •Vermont According to press reports, the legislature passed a bill on April 27, 1993, that prohibits smoking in restau- rants, motels, banks and stores. Governor Howard Dean (D) reportedly has promised to sign the bill after the legislative session ends. If Governor Dean signs the bill, it,will take effect in two stages. On July 1, 1993, smoking will be prohib- ited in all public buildings, as well as some private buildings that are open to the public, such as libraries, stores, waiting rooms and video arcades. On July 1, 1995, smoking will be prohibited in restaurants, bars, hotels and motels, with an exception for establishments that hold a cabaret license, because they earn more than half their revenue from the sale of alcohol or entertainment. The bill's sponsor was reported to say that the bill was prompted in part by concern over the EPA Risk Assessment on ETS. However, one legislator who opposed the bill was quoted as saying, "The EPA findings were based on prolonged in-home exposure to smoking. There's no evidence about the health risks from occasional, casual exposure." See The Associatad Press, The New York Times, and Miami Herald May 2, 1993. ETSIIAQ REPORT, ISSUE 47 [9] IAQ Related State and Local Legislation •New York Bills are pending in both chambers of the New York legislature that would require building owners to develop a"plan°° for heating, ventilation and air conditioning and to maintain a log of IAQ complaints (S.B. 4594 and A.B. 3603). The HVAC "plan" would indude a description of the building's HVAC system, its operation, and procedures and schedules for mainte- nance. The plan also would describe ways to minimize contaminant exposure and adverse effects on building occupants during or after renovation or construction. Most of the bills' provisions are similar, but there are some differences. Only A.B. 3603 requires building owners to keep logs of complaints and maintenance records and to prepare reports responsive to com- plaints. Only S.B. 4594 specifically requires that the HVAC plan comply with~ standards established in ASHRAE Standard 62-1989 "or subsequent, updated standards." S.B. 4594 also would require that the HVAC plan be prepared by an engineer licensed by New York State. SceA.B. 3603 and S.B. 4594, 215th: General Assembly - 1st Reg. Sess. (1993). ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [110] Blanchard Hearing on Defendants' Venue Motions Approaches A hearing is still scheduled for May 20, 1993, on defendants' motions to transfer venue and motions to strike. The motions have been pending since January. Three of the 14 plaintiffs in this case presently allege injury from exposure to ETS. Raye Blanchard and Tamara Reed, mother and daughter, both claim damages for unspecified "illness and disease" allegedly resulting from exposure to the ETS from cigarettes smoked by Raye's deceased husband, Thomas, and by Raye herself, who daims she smoked "for about ten years." The third ETS plaintiff, Pamela Kastrin Stephens, daims unspecified "lung and respiratory diseases" allegedly caused by exposure to the ETS from the cigarettes smoked by her deceased father. The named defendants are purported to be the six major U.S. cigarette manufacturers, The Tobacco Institute,

MAY 14, 1993 the Council for Tobacco Research, and a number of wholesalers and retailers. Blanchard, et a1 v. RJ. Reynolds Tobacco Company, et al. (District Court, Galveston County, Texas) (filed July 31, 1992). [11] Broin: Lorillard's Motion for Sanctions Granted At a hearing on May 11, 1993, Lorillard's renewed motion for sanctions was granted as to the claims filed by plaintiff Bonita Baker. Judge Robert Kaye also said he would dismiss plaintiff Terry Casto, a subject of the sanctions motion who has asked that her daims be dismissed. In the motion for sanctions, Lorillard sought dis- missal of the claims of those plaintiffs who had not fully responded to Lorillard's discovery requests. When the motion was filed, it was directed to eight plaintiffs, but six of them (all except Baker and Casto) filed responses to the discovery requests prior to the May 11 hearing. The depositions of plaintiffs Gary Hayes and' Valerie Gibson have been re-noticed by defendants for June 2 and June 16. They will be the first plaintiffs to be deposed. A hearing is scheduled before the trial court for May 17 on motions to dismiss plaintiffs' second amended complaint that have been filed by The Tobacco Institute, the Council for Tobacco Research, the Tobacco Merchants Association, and the Florida Tobacco and Candy Association. At issue in this case are the claims of flight attendants allegedly injured by occupational exposure to ETS. Following the dismissals noted above, the claims of 28 flight attendants remain in the case. In addition, the husband of one of the flight attendants claims loss of consortium. The attendants named as plaintiffs purport to represent a class of approximately 60,000 other attendants. Injuries alleged by the putative dass representatives include 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 Company, Dosal Tobacco Corp., the Council for Tobacco Research, The Tobacco Institute, and three trade 5 associations. Broin, et al., v. Philip Morris, et al. (Circuit Court, Dade County, Florida) (filed October 31, 1991). [12] Butler. Dean Butler's Deposition Scheduled The deposition of plaintiff Dean Butler, wife of . plaintiff Burl Butler, is scheduled to be taken on May 19 and 20, 1993. Mrs. Butler alleges loss of consortium as a result of Mr. Butler's lung cancer. Mr. Butler claims his lung cancer was caused by exposure to ETS in the barbershop he owned and operated for approxi- mately 30 years. A status hearing is still scheduled'for May 28 on plaintiffs' various motions, including their motion for a discovery conference, their motion for leave to file a second amended complaint, and several motions relating to discovery matters. It is possible that a trial date will be set at this hearing. The defendants in this case consist of the six major U.S. cigarette manufacturers and several local retailers. Butler v. RJ. Rtynolds Tobacco Company, et al (Circuit Court, Hinds County, Mississippi) (filed October 21, 1992). [13] Zwillman: Dismissal Order Entered On April 21, 1993, the court formally granted plaintifl's request to dismiss this case with prejudice. Plaintiff had asked that the case be dismissed when he was contacted by telephone during a status conference on April' 16. Zwillman was originally a smoking-and-health case fded' pro se by Wolf Zwillman for himself and as the personal representative of his wife, Marjorie Zwillman, a smoker who allegedly died of lung cancer. Claims that Mrs. Zwillman's injuries were also caused by exposure to ETS were added in an amended complaint. Brooke Group, Ltd., and The American Tobacco Company were the only defendants at the time the case was dismissed. Brooke Group is the successor to Liggett and Myers. Zwillman v. Brooke Group Limiud, et aL (U.S. District Court, New Jersey) (filed February 15, 1991; second amended complaint adding ETS claims filed February 13, 1992).