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SHOOK, HARDY& BACON REPORT ON RECENT ETS AND IAQ DEVELOPMENTS May 28, 1993 SHB

REPORT ON RECENT ETS AND IAQDEVELOPMEI*iTS - IN THIS ISSUE - I` THE UNITED STATES REc-.I'LATORI' AND LEGISLATIVE MATTERS • Fairness in Tobacco and Nicotine Regula- P- tion Act of 1993 is introduced in Congress, 1. • Senate holds hearings on IAQ Act of 1993, p. 1. • Defendani s motion to dismiss is denied in ASH v. Department qf Labor, p. 2. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS • Broiii plaintiffs' request for a stay is denied, p. 4. • Motions to dismiss are filed by defendants in Mclunney, p. 5. ETS/IAQ LITIGATION NOT INVOLNItiG CIGARETTE M:A.tiUF.ACTURERS • Updates on suits against fast-food restaur rants and carpet industry; p. 5. • Damages are awarded to woman claiming co-workers ignored'smoking ban. Stotko, p. 6. LEGAL ISSUES AND DEVELOPMENTS • NBC airs story on smoking and child custody, p. 6. • New Jarsry Trial Lawyer articles talk about ETS litigation, p. 6. OTHER DEVELOPT<tENTS/MEDIA COVERAGE • Insurance industry says IAQ complaints are psychosocial, p. 8. • "Carpet Industry Facing Toxic Concerns," p. 9. SCIENrI'IFIC/TECHNICAL ITEMS ISSUE 48 • "Childhood Asthma and Indoor Environ- mental Risk Factors," p. 10. •"Measurement of Cabin Air Quality Aboard Commercial Airliners," p. 11. "Effects of Ventilation on Smoking Lounge Air Quality," p. 11. IN EliROPE & AROUND THE WORLD REGI'LATORI' AND LEGISLATIVE MATTERS • Activity in Australia, Austria, Canada, Sweden, Tonga and the United IGngdom. p. 12. LEGAL ISSUES AND DEVELOPMENTS • "Tobacco Firms Aim to 'Stifle' Legal Actions," p. 14. OTHER DEVELOPMENTS/MEDIA COVERAGE •"No Problem! An Economic Perspective on Smoking," is published by FOREST, p. 15. • International Union Against Cancer releasess series of fact sheets on tobacco, p. 15. •°Freedom Fighters" in the U.K. defi• train smoking ban, p. 15.

- TABLE OF CONTENTS - Issue 48 May 28, 1993 IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS 103D Co.cRFSs 111 , Representatives Svnar and Durbin ]rttroduce Fairness in Tobacco and Nicotine Regulation Act of 1993- ....... ................ .................... ............... ................... .......................... 1 (2] Senate Subcommittee Holds fAQ Bill Hearings .......... ..................... ............. .................... _...... 1 [3] House Smoking Accommodation Policv May Affecr Legislation ................... ........................... I U.S. OCC[:PAT10NAL SAFETY AND HEALTH ADMINISTRATION'(OSHA) [41 ASH v. lJsparrmenr ofGibor. No. 92-1661 (US. Court of Appeals, D.C: Circuit) (filed Decembcr 22. 1992) .................................................................................................... ... 2 (5] Kennedti Says OSHA Reform !vieasures Have Good Chance of Passage ..................................2 CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC) (6J CDC Schedules Meeting to Discuss ETS Exposure in the Workplace ..................................... ~ ASHRAE (7] ASHRAE Committee Chair Says Nb Surprises in Draft Ventilation Standard ......................... 2 STATE AND LOCAL GOVERNMENTS (8] Some State OSHA Plans Roll Back Worker Exposure Limits .................................................. 3 (9] Florida Considers Rules to Implcment Clean Indoor Air Act ................................................... . I (101 ETS-Rdated State and Local Legislati.r Activities ................................................................... 3 ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS (1 1] Blanchard: Hearing on Defendants' Venue Motions Continued .............................................. e (12] Brain: Plaintiffs' Request for a Stay Denied ...................................... .............. ................ .........~ (13] Burltr.• Discoven• .................................................................................................... ................. ~ ~ (14] Aicl4rn.tev: Motions to Dismiss Filc& ............................ ............................. ......... ............ ......... ETSIIAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS AMERICAN V9'ITH DISABILITIES ACT (ADA) ('15] Sraron o. lY'errdlci Old Fashlowed H.amburgrrf oflVtu• York. Inc.. Nb. 3:93C1'-G66 (U.S. District Court. Connecticut) (filed March 30, 1993) ..................................................... ~ IAQ. CARPET EMtSSIO'.vS (16) Horvtll r: Sl+au, Industries. hic.. 93-CV-2068 (U.S: DistricrCourc. Eastrrn District. Pennsylvania) (filed April 19. 1993) ........................................................................................ ~ WORKPLaCE: HARASSMENT (1,'.] Srorko r-: Dakora Counrv (Dakota Counrv. Minnesota)',(decided';tiav -. 199,;a ........................ 6 PRISONER CASE (18] Starrfreld u: Hqv. 1992 Ky. App. LEXIS 228 (Supreme Court. Kenruck}-) (discretionary review denied April 14. 1993) ........................ ....... ................. ..................... ......t. LEGAL ISSUES AND DEVELOPMENTS [19) Television Broadcast Addresses Child Custodv Cases and Smoking .................... ......... ............t, [20]' ASH Creates Form Letter for ADA Complaints to Restaurants ................ ............................... b [21) New Jersey Magazine for Trial Lawyers Issucs'Call to Arms' for ETS Litigatibn .....................6 (22) Smoker Is Assaulted in Restaurant ............................................ .............................. ............ .....- (23) "Resurrecting an Old Cause of Action for a Nevc Wrong: Battery as a Toxic Tort," ...- C.J. McAuliffe (Student Author). 20 Ermrronrnnrral,$/Trirs 265 (1993) ........ ........................ [24] U:S. Supreme Court Decision Expected Soon in Case Involving the Admi.,sihilic.• of Scientific Evidence .............................................. ................................................................ OTHER DEVELOPMENTS (25) Polls in Virginia and Kentucky Cover !\'orkplace Sntokinl; lssues ...........................................8 [261 Restaurants Study, Ban on Smoking .........................................................................................S (2Z] Insurance Industn- Views IAQ Complaints as Psvchosos:ial 1'hcnomrtnou ............. 8 1281 Doctor Who Bans Smoking Turns Away Paticnrs Who Smokr ................................................ )

Contents Continued, Issue 48 MEDIA COVERAGE [29]' "Carpet Ihdustrv Facing Toxic Concerns; at Least 500 People Say New Carpeting (301 Has Made Them Sick." J. Fried, ThcPhiLadrlphia /nquirrr, May 9, 1993 ................................`j' "Smoking Shifts to Front Burner of Property Issues," T.J. Howard, 1311 The Chicago Tri6une.,May 16, 1993 ........................................................................................9 "Workplace Issues: Smoking in the Vi.'orkplace," Fair Employment Practices Guidelines (April 25, 11993) .................................................................................................... ...................9 (32] "Les Miserable ... The Wretched,,the Doomed, the Hard-core Smokers." J'. Adams, Tht Couritr Journa4 April 25. 1993 ........................................................................................ 9 SCIENTIFIC/TECHNICAL ITEMS UPCOMING MEETINGS [33] "Twenr.--sixth Annual Meeting for the Society for Epidcmiologic Research (SER):" (34] Kevstone. Colorado. June 16-18, 1993 .................................................................................. 10 "Third International Conference on Preventive Cardiolog.-." Oslo. Nor.a-ay. June 27'-July 1, 1993 .................................................................................................... ......... lo. RESPIRATORY DISEASE AND CONDITIONS - ADULTS [35] "Long-Term Ambient Concentrations ofToral Suspended Particulates. Ozone. and Sulfur Dioxide and Respiratory Symptoms in a Nonsmoking Population." D.E. Abbey. F. Petersen. P.K. Mills. and W.L. Beeson: Archivrr of Environmental Htalth 48(l)t 33-46. 1993 [See Appendix A] ................................................. 10 RESPIRATORY DISEASES AND CONDITIONS - CHILDREN [36] "Childhood Asthma and Indoor Environmental Risk Factors." C. Infantc-Rivard. American Journal ofEpidrmiologp 137(8): 834-844. 1993 (See Appendix A) .......................... 10 [37) "Indoor Nitrogen Dioxide and Childhood Respiratory Illness." L.S. Pilotto and R.M. Douglas. Auttralian fournal ofPuhlic Health 16( 3): 245-250. 1,992 (See Appendix A] ....... 10 ['38) "The Relationship of RSV-Specific Immunoglobulin E Antibod.-Responces in Infancy. Recurrent Wheezing. and Pulmonary Function at Age 7-8 Years." R.C. VC'elliver ................ ] 0 and L. Duff,v. Pediatric l'ulmonologt• 15: 19-27. 1993 [See Appendix A] '.... ............. OTHER HEALTH ISSUES [39] "Protracted Secretorv Otiris Media. The Impact of Familial Factors and Dav-Care Center Attendance." F. Rasmussen„lnttr,tation.rlJot.rnal ofPrdiatric Otor/yinoGrryngology. 26: '9-3 7. 1993 (See Appendix A]'. ........................................................ 1 1 INDOOR AIR QUALITY [40] "Measurement of Cabin Air Quality Aboard Commercialiqirliners." N.L. Nagda. [411 M.D. Koontz. A.G. Konheim: and S.K. Hammond, Atmotphnic Environment 26A(li2)`. '_203-2210. 1992 [See Appendix A] ........................ ........ I "Effects of Ventilation on Smoking Lounge Air Quality.,- P.R. Nelson. R.B. Hege. 42] J.M. Conner. G•B Oldaker, and H.E. Straub. In: Measurement ofTosir and Rrlattd Air Pollutants. Proceedings of the 1992 U!S. EPA/A&WMA International Symposium. Pittsburgh. Air & Waste Management Association. 89-94, 1993 [See Appendix A) ..............................................................................................1 1 "Ventilation and Indoor Air Quality in Finnish Daycare Centers." R. Ruorsalainen. N. Jaakkola, and J.J.K. Jaakkola. Environment lnrrrnario.ur119: 109-1 1~9. 1 993 [See Appendix A] ........................ ....................................................................................... ... 1 1 [431 Indoor Allergens: Assessing and Controlling Adverse Health Etlects. Committee on the Health Effects of Indoor Allergens, Institute of Medicine. A.M. Pope. R. Patterson. and H. Burge (eds.). Washington„ ASJtional Academ), Prers. 1993 ........................................... 1 I IN EUROPE & AROUND THE WORLD -4 REGULATORY AND LEGISLATIVE MATTERS ~ AUSTRALIA ~ (44) Rebel MPs Stall Plan to Implement Parliament Smoking Restrictions ................................... 12 00 AUSTRIA N 1451 Coalition Reaches Compromise on Tobacco Law ...................................................-•••••••••••••• 12

Contents Continued, Issue 48 CANADA [I46] Smoking Restrictions Considered in East York .........................................•.•-,....-..----•.--..,--.-.-] 2 ['47] Scarborough Approvcs in Principle Total Smoking Ban .......................................... -.•.--......... ,1 2 SV['EDElV (48) Debate Over Health Effects of ETS Heats Up ..................................................•-.•-.•..---•••.••.-- 1 3 KI1+:GDOM OF TONGA (49] Government Considers Smoking Ban .................................................................................... 1 3 UNITED KINGDOM [50] Southend Debates Smoking Policy ........................................................................................ 1 3 [51'] Barrow Councillors Disobey Ban They Adopted ................................................................... 1.3 (52), Health Board Adopts Smoking Restrictions ........................................................................... 13 (53] AntismokingCampaign for Children Launched .................... ............................................... 13 LEGAL ISSUES AND DEVELOPMENTS UNITED KINGDOM [54] "Tobacco Firms Aim to'StiFle' Lcgal Acrions." R. Taylor. Yorksl.irr Rost - Leeds. April 21. 1993; "MP on 'Disgraceful' Cigarette Companies." R. Taylor. and "Cigarette Ash in the Works." Editorial 1'orkshrre /'osr - Leedf, April 22. 1993 ....................... 1.4, REPI.'BLIC OFIRElAND [55] Tobacco Companies Make Legal Aid Submissions ...................... .......................................... ]-}' OTHER DEVELOPMENTS Al.'.STRALIA [56) Council Requests Comments on ETS Publication ................................................................. 1-1 (57] Business Makes Smoking Condition of Employment .............. .............................................. 1 i (58] Doctor Links Parental Smoking to Development of Childhood Asthma ................................ 1-4 (59) Smoke-free Restaurants to Be Identitied With New Logo ...................................................... I i [60] Perfume ltlav Join ETS as Public Health Concern ................................................................. I~ SWITZERIA`vD (611 International Union Releases Fact Sheet on ETS ................................................................... 1 S UNITED KIT:GDOM (62) FOREST Publishes Article by Economic Analyst .................................................................. 1j; [G3] Tobacco "Freedom Fighters" Defi• Train Smoking Ban ......................................................... I'~ [64] Leading Bridge Club Bans Smoking .............. .... . . . . . .. . . ... .. . . . . .. . . ... . . . . ... . . . . . . . . . . . .. . . . . . . . . .. . . . . . . . . . .. . . I : MEDIA COVERAGE UNITED KINGDOM (65] "Only a Smoke Screen: Why Cigarettes are Not Rcallv the \'illains." C. Turner.. Doncaster Star. April ?0. 1993 ....................... ................................................ ........................ ,lYs APPENDIX A .................................................................................................... ................ .............. Article Summarie. .

\LAl''_8l 1993 I REPORT ON RECENT ETS AND IAQ DEVELOPMENTS IN! THE UNITED STATES REGULATORl' AN!D LEGISLATIVE MATTERS 103L) CONGRESS [1]I, Representatives Synar and Durbin Introduce Fairness in Tobacco and Nicotine Regulation Act of 1993 All aspects of cigarette manufacturing and marketing would be regulated by the U.S. Food and Drug Administration (FDA) under the provisions of the Fairness in Tobacco and Nicotine Regulation Act of 1993 (H.R. 2147); introduced on May 18. 1993, byy two Democratic Representatives, Mike Synar of Oklahoma and Richard Durbin of Illinois. The text of the Act indudes "findings" that "environ- mental tobacco smoke is a cause of disease in nonsmok- ers"; that the "labeling of tobacco products is inadequate to provide smokers and nonsmokers alike with full and complete information about tobacco products"; and that "there is no listing of chemical constituents found in mainstream and sidestrearn smoke (induding benzene, arsenic, cyanide, etc.)." In addition to complying with the requirements of the current Cigarette Labeling and Advertising Act, cigarette packaging would have to include "a warning and information about the dangers associated with environmental tobacco smoke" as well as "a list of chemical additives and constituents found in tobacco products and tobacco smoke." The Act would also, among other things: (i) require the FDA to promulgate a regulation requiring that all additives used in the manufacture of tobacco products be "safe"; (ii) require tobacco product manufacturers to pay the costs of their own regulation under the new chapter, at whatever level Congress specifies; (iii)) replace the statutory carbon monoxide warning for cigarettes with an addiction warning; and (iv) repeal the preemption provision of the Federal Cigarette Label and Advertising Act, 15 U.S.C. § 1334(b). At about the time the bill was introduced, the Coalition on Smoking or Health released a poll which purportedly found that 68 percent of Americans believe the FDA should regulate tobacco and that 75 percent feel that warnings about the ETS exposure should be added to cigarette packages. As of this writing, a companion bill had not been introduced in the Senate. [2] Senate Subcommittee Holds IAQ Bill Hearings The Nuclear Regulation Subcommittee of the Senate Environment and Public Works Committee held hearings on May 21 and May 25 to consider the Indoor Air Quality Act of 1993 (S. 656) and the Indoor Rad'on Abatement Act of 1993 (S. 657). EPA Deputy Administrator Robert Sussman and Represen- tative Joe Kennedy (D-Mass.) testified. See The Reuter Washington Report, May 21, 1993; BNA Daily Rtport for Evrcutiver, May 24, 1993. Kennedy. who has introduced his own Indoor Air Quality Act in the House (H.R. 1930), says he has met with EPA Administrator Carol Browner and White House officials, whom~he says agree that indoor air quality is a priority issue. The House measure must pass through three committees, and, without support from the Bush Administration, the bill stalled' in committee in past years. Kennedy reportedly believes that the committee logjam will be broken this year. See Statrs News Serrice May 19, 1993. [3] House Smoking Accommodation Policy May Affect Legislation The smoking policies recently addressed in House office buildings and on the House side of the Capitol mav have satisfied those Congressmen who had been calling for complete bans. Representative Jim Traficant (D-Ohio), who introduced legislation to ban smoking in all federal buildings (H.R. 881): apparently met recently with Speaker of the House Thomas Foley (D-Wash.) to discuss the new smoking

, policy and his bill. According to a press report. Traficant expects the bill to be marked up soon and anticipates that it will be amended during mark-up to permit designation smoking areas in federal buildings. In a related development, the ranking member of the Rules and Administration Committee in the Senate, Ted Stevens (R-.R1laska), told the press that he does not anticipate that any measures will be taken in the Senate to establish any official smoking or nonsmoking policy. See RoQ'Call May 13, 11993. U.S. OCCUPATIONAL SAFETY AND HEALTH ADttINISTRATION (OSHA) (4] ASH v. Department of Labor, No. 92-1661 (U.S. Court of Appeals, D.C. Circuit) (filed December 22, 1992) On May 20, 1993, the Court of Appeals issued an order denying the Department of Labor's motion to dismiss this action. In the suit, ASH seeks to overturn .vhat it had characterized as a denial by OSHA of its request to commence a separate rulemaking on ETS. In denying the motion, the court specifically found that the October 30, 1992, letter from OSHA re- sponding to ASH's request for rulemaking "meets the criteria of a final, reviewable order." In thatlener, then-Acting OSHA Director Dorothy Strunk stated that nothing would be gained by separating the issue of ETS from other indoor air quality issues. See issue 34 of this Report, November 6, 1992. The court has also granted ASH's request to hold the case in abeyance for 60 days and directed the parties to file motions to govern further proceedings "within 60 days of the date of this order." ASH had filed the abeyance request in light of then-Secretary of Labor Lynn Martin's directive to the agency to prepare a report for the incoming Secretary outlining separate rulemaking options for ETS. See issues 39, 41, 42, and 44 of this Report, January 22, February 19, March 5, and April 2, 1993. [5]', Kennedy Says OSHA Reform Measures Have Good Chance of Passage Prospects for passage of the Occupational Safety and Health Reform Act (H.R. 1280, S. 575) in this Congress are "very, very good,° according to Massa- ETS/IAQ REPORT, ISSUE 48 chusetts Senator Edward Kennedy. The only roadblock to passage, according to Kennedy, is scheduling, because the "first order of business" in the Senate will be the economic and national health care programs. Kennedy acknowledged the failure of Labor Secretary Robert Reich to endorse the bill in House testimony on April 28, but said he expects that the Clinton administration will strongNy back the measure. He is also quoted as saying that the bill is "a high priority with the administration." See BNA Washington Insider. May 12, 1993. CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC) [6] CDC Schedules Meeting to Discuss ETS Exposure in the Workplace ETS exposure in the workplace will be the focus of a meeting of the CDC's Interagency Committee on Smoking and Health. scheduled'for June 23, 1993. in Washington. D.C. The meeting will be open to the public. See 58 Fed. Reg. 29227 (May 19, 1993). In January 1993, simultaneously with the release of the EPA Risk Assessment on ETS, the CDC launched a multimedia public information program relating to the alleged health effects of ETS. The CDC is within the Department of Health and Human Services (HHS). HHS then-secretary Louis Sullivan announced the program in a joint press conference with then-EPA Administrator William Reilly. Sullivan said HHS had adopted certain "goals regarding secondhand smoke to be achieved by the year 2000." According to Sullivan, those goals include the following: reducing by half the percentage of children living in a home with one or more smokers; establishing tobacco-free environments in all public schools; and passing legislation in all stares that "prohibit or strictly limit smoking in the work- place and in enclosed public places." See issue 38 of this Report, January 7. 1993. ASHRAE [7] ASHRAE Committee Chair Says No Surprises in Draft Ventilation Standard Revisions that are being considered for ASHRAE 62- 1989 will reportedly not be startling or revolutionary.

N1A1' 28; 1993 The biggest changes could include a discussion of residential ventilation, a section on HVAC operation and' maintenance, and greater emphasis on a procedure to make adjustments to pollutant concentrations with variable ventilation rates. This according to W. Gene Tucker. chair of the ASHRAE committee that is reviewing the ASHRAE Standard 62-1989, Ventilation for ,-Icceprablt Indoor Air Quality. Tucker told the press that the committee hopes to have the first draft of the standard ready for ASHRAE's annual meeting this June in Denver, Colorado. The committee is apparently planning to have a version ready for public comment by 1995. See IndoorAir Qiralitl• L pdrre, May 1993.. STATE AtiD LOCAL GOVER:`ME:`TS [8] Some State OSHA Plans Roll Back Worker Exposure Limits A number of states that have state OSHA plans have reportedly decided to roll exposure limits back to the levels set bv OSHA in 1971. This, reportedly, in the wake of a decision by the U.S. Court of Appeals for the Eleventh Circuit to invalidate federal OSHA exposure limits for some 400 hazardous substances (AFL-CIO n. OSHA, see issue 35 of this Report, November 20, 1992). Other states that are required to keep pace with federal OSHA standards.vill, nonetheless, continue to enforce the limits that have been overturned by the court. According to a press report, among those states which .vill enforce the more stringent standards are California and Connecticut (only with respect to public employ- ces): In Oregon, regulators will reportedly temporarily revert to the 1971 standards until they can determine which of the more stringent exposure limits adopted by the state predated the 1989 federal OSHA rulemaking. See BNA Daily Labor Report, May 12, 1993. [9] Florida Considers Rules to Implement Clean Indoor Air Act The Florida Department of Health and Rehabilitative Services conducted rule development workshops in April and May to consider draft rules that would implement the provisions of the state's smoking restrictions statute, the Clean Indoor Air Act. Com- mentary on the draft rules was solicited by the depart- 3 ment from interested parties. The draft rules (i)'specifv what acts constitute violations of the statute;, (ii) adopt procedures to be followed by government personnel in responding to complaints about smoking or inspecting, workplaces and public places for violations of the statute; and (iii) impose certain fines for first, second and third violations. The statute, which has been in effect since 1988.. restricts smoking to designated areas in public places, prohibits smoking in places such~ as elevators, school buses, waiting rooms, and day care centers, and requires that employers adopt smoking policies desig- nating smoking and nonsmoking areas that accommo- date the interests of smokers and nonsmokers. Com- mon areas in workplaces, however, may not be desig- nated as smoking areas. Fines for violations of the statute cannot exceed 5100 for a first offense and S500 for subsequent offenses. [10]. ETS-Related State and Local Legislative Activities • California According to a news report, a bill was defeated in California that would have allowed lawsuits against tobacco manufacturers by people claiming they had been harmed by exposure to ETS. Backers of the bill had relied in part on the EPA Risk Assessment on ETS. In the past, similar bills had failed in the Assembly Judiciary Committee because of a 1987 agreement among insurers, trial lawyers and', doctors to refrainn from passing any type of tort reform legislation. Now that the agreement has expired, the bi11~s backers had hoped that the legisiation would be approved. See The Recorder, May 11 and Mav 1'3, 1993. On May 13, 1993, the Assembly passed two measures that would prohibit smoking in state buildings. including the Capitol. The first bill affects buildings owned or leased by the state, including prisons, courts, and University of California and California State Universiry classrooms. Governor Wilson had previ- ously issued an executive order prohibiting smoking in buildings under his administration's jurisdiction, but the order had not included universities, the judiciary or the legislature. The second measure passed prohibits smoking in buildings owned, leased or occupied' by the legislature. including the Capitol, floors of both houses, commit-

ETS/IAQ REPORT. ISSUE 48 tee hearing rooms, offices, hallways, stairwells. restau- rants and' bathrooms. The bill's sponsor reportedly said the EPA Risk Assessment made it clear that the Capitol should be smoke-free. "If there were ever an argument that smokers are doing it to themselves and no one else is affected, this report and the seven years of reports that have preceded it put that issue to rest," he was quoted to say. SeeA.B. 291 and A.C.R. 27', Regular Session (1i993-94) and Sacramento Bee. May 11, 1993, C'nited Press Inuernationaa! May 13, 1993, The San Francisco Chronicle, May 14, 1993, Los Angeles Times, May 15. 1993. • Local Governments in California The City Council of San Carlos passed an ordinance on May 10 that will prohibit smoking in restaurants, private workplaces and public transit waiting areas with shelters. The ordinance goes into effect June 10. Exemptions were provided for bars, private residences, bowling alleys, pool halls and conference or meeting rooms in hotels. Work- places.vhere all employees smoke and agree to allow smoking in the building also were exempted. Outdoor restaurants will be required to reserve half their seating for nonsmokers. Smoking will be allowed in restaurants having separate, enclosed smoking rooms with separate ventilation systems. See The San Francisco Chronich, April 28 and May 12, 1993. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [ 11 ] Blancharrk Hearing on Defendants' Venue Motions Continued The hearing on defendants' motions to transfer venue and motions to strike, scheduled for May 20„ 1993, has been continued to July 1, 1993. Most defendants have now filed responses to plaintiffs' interrogatories and document requests. 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 claims she smoked "for about ten years." The third ETS plaintiff, Pamela Kastrin Stephens, claims 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, the Council for Tobacco Research, and a number of wholesalers and retailers. Blanchard, et al., v. R.J. Reynolds To6acco Company, et al.' (District Court, Galveston Counry: Texas) (filed July 31, 1992). [12j Broire Plaintiffs' Request for a Stay Denied At a hearing on May 17, 1993, Judge Robert Kaye denied plaintiffs' motion for a stay of the case before the triatcourt while the two appeals im the case are being resolved. Plaintiffs filed the motion for a stay on May 14. Plaintiffs have appealed the trial court's order dismissing the class action allegations in their com- plaint, while seven defendants have filed a petition for writ of certiorari to review the trial court's order denying,their motions to quash deposition notices served on senior executives of six of the defendants. At the same hearing, Judge Kaye granted in part the motions to dismiss filed by The Tobacco Institute and the Florida Tobacco and Candy Association. The court dismissed the strict liability, negligence and breach of implied warranty claims against both defendants in plaintiffs' amended complaint but denied the motions to dismiss as to the fraud and'conspirac}• counts. Judge Kaye also denied the motions to dismiss the fraud'and conspiracy counts in plaintiffs' amended complaint that were filed by the Council for Tobacco Research and the Tobacco Merchants Association. Also on May 17, 1993, Judge Kaye issued an order that dismissed the claims filed by plaintiffs Bonita Baker and Terry Casto. Baker's claims were dismissed due to Lorillard's renewed motion for sanctions. while Casto sought a voluntarily dismissal of her claims. Plaintiffs have filed motions for protective order regarding the depositions of plaintiffs Gary Haves and Valerie Gibson. scheduled for June 2 and June 16. They are the first plaintiffs scheduled for depositions. At issue in this case are the claims of 28' fliQht atten- dants allegedly injured by occupational exposure to ETS. In addition, the husband of one of the flight attendants claims loss of consortium. The attendants purport to represent a class of approximately 60.000.

MA1' '_2i. 1993 ~ Injuries alleged by the putative class representatives include lung cancer, breast cancer and unspecified respiratory ailments. Plaintiffs further allege that occupa- tional exposure to ETS on board aircraft causes at least 22 diseases and a reasonable fear of contracting such diseases. The defendants are purported to be the six major U.S. cigarette manufacrurers (plus related entities), UST. Inc.,. United States Tobacco Company, Dosal Tobacco Corp., the Council~ for Tobacco Research, The Tobacco Insti- tute. and three trade associations. Broin, et al., v. Philip .4lorris, et al. (Circuit Court, Dade County, Florida) (filed October 31, 1991). [13] Butler. Discovery The deposition of plaintiff Dean Butler, the wife of plaintiff Burl! Butler, was taken as scheduled 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- matehy 30 years. As of this writing, a status hearing was 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. Butltr v. R.J. Rcn•nold~ Tobacco Company, etaL (Circuit Court. Hinds Countv, Mississippi) (filed October 21, 1992). (14) McKinney. Motions to Dismiss Filed Brown & Williamson and R.J. Reynolds recently filed separate motions to dismiss the complaint with prejudice based on the court's lack of subject matter jurisdiction over the allegations against them. Plaintiff William McKinney, who is a prisoner in a Nevada jail, contends that defendants failed to warn of the alleged health effects of ETS exposure. He claims emotional pain, severe headaches, itchy and watery eyes, and recurring chest pains as a result of his expo- sure to ETS; McKinney v. C.AM. Products, Inc., et al. (District Court, White Pine Counry, Nevada) (filed March 3, 1993). Mr. McKinney is also the plaintiff in a civil rights case against Nevada prison officials regarding his exposure to ETS while incarcerated. The U.S. Supreme Court heard argument in the case earlier this year; a decision is expected within the next month: ETS/IAQ LITIGATION NOT' INVOLVING CIGARETTE MANUFACTURERS A\fERIG1N \Y'1TH DIS,\-BILIT[ES ACT (ADA) [15] Staron v. Wendy's Old Fashioned Hamburgers of New York, Inc., No. 3:93CV-666 (U.S. District Court, Connecticut) (filed March 30, 1993) . On May 11, 1993. Wendv's filed its answer to the discrimination complaint filed under the ADA by two children who allegedly suffer from asthma and a woman who allegedly suffers from lupus to force the defendant to adopt a smol:ing ban as an accommodation of their "disabilities." The defendant specifically denies that it owns or operates a Wendy's Restaurant at any location in Hartford County,,but asserts that of its restaurants in Connecticut. all are in compliance.vith applicable federal. state and local laws with respect to smoking. Other defenses asserted include (i) failure to state a claM upon which relief can be granted: (ii) lack of standing: (iii) the absence of any requirement under the ADA for restaurants to ban smoking: and (i.-) "[t]he issues raised by plaintiff in~ the Complaint are essentially political in nature. and therefore are matters for legislative rather than judicial resolution.° As of this writing, the defendants in the related ADA cases of Staron m McDonald s Corp. and Staron :,. Burger King Corp. had not yet filed their responses. IAQ: C.aRrET EmissiONS [16] Howell v. Shaw Industries, Inc., 93-CV-2068 (U.S. District Court, Eastern District, Pennsyl- vania) (filed April 19, 1993) Three of four defendants in this class action involving damages allegedly caused by toxic emissions from ~ carpeting have, bv stipulation, extended the time to file their answers until June 2. 1993.