Tobacco Documents Online

JUNEa r, 1993 • Vermont On May 28, 1993, Governor Howard Dean (D) signed into law a bill that prohibits smoking in most public places and some private settings. The law will go into effect on July 1, 1993. On July 1, 1995, smoking will be prohibited in restaurants, motels, hotels, and bars, with an exception for establishments that hold a cabaret license, because they derive more than half their revenues from the sale of alcohol or entertainment. See Reuters, May 28, 1993, Miami Herald May 29, 1993, and New York Times, May 30, 1993. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [12] Broin: Court of Appeal Denies Defendants' Certiorari Petition On May 27, 1993, a three-judge panel of the Third District of Florida's District Court of Appeal denied the petition for writ of certiorari filed by seven of the defendants. The Court did not issue an opinion. Defendants' petition asked the court to review the trial court's order denying motions to quash deposition notices served on senior executives of six defendants. After the May 27 ruling, plaintiffs noticed depositions of several senior executives or former executives of the defendants. They are presently scheduled to be taken between June 14 and June 22. The panel that issued the May 27 ruling, Judges Thomas Barkdull, Jr., Gerald Cope, Jr., and Mario Goderich, is a different panel than the one that heard plaintiffs' appeal of the trial court's order dismissing their class action allegations. An order has not been issued in the class action appeal. At issue in this case are the claims of 28 flight attendants 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 other attendants. Injuries alkged by the putative class reptrsauamnes indude lung cancer, breast canoer and unspecified respiratory ailments. Plaintiffs further allege that oaupadonal exposincso ETS on board aircraft causes at least 22A s~ and a reasonable fear of oantractug such diseases. The defendants are putporroed to be the six major U.S. cigarette manufaaiues (plus relared 5 entities), UST, Inc., United States Toba©oo Company, Dosal Tobaaco Corp., tlx Council for Tobaooo Research, The Tobaooo Institute, and throe trade associations. Bmirr, et al, v. Philip Momu et a1(Graiit Court, Dade Cfluunry, Florida) (sled Oaober 31,1991). [13] Butkr. Report on May 28 Status Hearing At a May 28, 1993, status hearing, plaintiffs' motion for leave to file a second amended complaint was granted. The court vacated the November 29, 1993, trial date, which had been unilaterally set by plaintiffs' counsel. There was no new trial date set. In addition, the parties were able to resolve several discovery disputes prior to the hearing. In this case, Burl Butler alleges that he has lung cancer and other injuries caused by exposure to ETS in the barber shop he has owned and operated for ap- proximately 30 years. His wife, Dean, claims loss of consortium and emotional distress. The defendants in this case consist of the six major U.S. cigarette manu- facturers and several local retailers. Butler v. RJ. Rcynolds Tobacco Company, et aL (Circuit Court, Hinds County, Mississippi) (filed October 21, 1992). [14] Dunn: New ETS Case Filed in Indiana On May 28,1993, Craig Dunn and Phillip Wiley filed suit in the Superior Court of Delaware County, Indiana, on behalf of the estate of Mildred Wiley. PlaintifFs contend that Mrs. Wil ey was a nonsmoker who died of lung cancer on June 24, 1991, aIlegedly as a nsult of her exposure to environmental tobacco smoke. The complaint alleges that Mrs. Wiley was exposed to ETS at her place of employment during the 17 years prior to her death. Although her employment is not stated in the complaint, press reports indicate that Mrs. Wiley worked as a nurse at a Veteran's Administration Hospital in Marion, Indiana, throughout the 17-year period. See The Star, June 2, 1993. Plaintiff Phillip Wiley was the husband of Mildred W'iley, the complaint states they had been married for 47 years at the time of Mildred Wiley's death. Mr. Wiley, who claims to be a resident of North Carolina, also claims loss of consortium. Dunn's relationship to the Wileys is not specified in the complaint and it is not known why he is the co-administrator of Mrs. Wiley's estate.

6 Causes of action in the complaint are focused on claims of fraud and misrepresentation. Other causes of action indude strict liability and failure to warn. Plaintiffs seek unspecified dollar amounts in actual damages and punitive damages on behalf of Mildred Wiley's estate. Mr. Wiley individually seeks unspecified dollar amounts for his loss of consortium claim and for punitive damages on that claim. Defendants named in the case arc RJR Nabisco Holdings Corporation; R.J. Reynolds; Brown & Williamson Tobacco Corp.; Philip Morris, Inc.; Liggctt Group, Inc.; Liggett & Myers, Inc.; American Brands, Inc.; American Tobacco Co.; Loews Corp.; Lorillard Corp.; The Tobacco Institute, Inc.; and the Council for Tobacco Research. Plaintiffs are represented by attorneys from three Indiana law firms, none of which have been involved in prior litigation against the industry. Dunn, et al, v. RJR Nabisco Holdsngs Corporation, et ai: (Superior Court, Delaware County, Indiana) (filed May 28, 1993). (15] McKinney. Motions to Dismiss Granted On May 25, 1993, the court grantect Brown & Williamson's and R.J. Reynolds' separate motions to dismiss the complaint with prejudice based on the court's lack of subject matter jurisdiction over the allegations against them in plaintiff s complaint. Plaintiff William McKinney, who is a prisoner in a Nevada jail, contended R.J. Reynolds and Brown & Williamson failed to warn of the health effects of ETS ecposure. He alleged he has fairly general health problems caused by his exposure to ETS (emotional pain, severe headaches, itchy and watery eyes, recurring chest pains). McKinnry v. CM. Productx Inc., et aL (District Court, White Pine County, 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. Cigarette manu- facturers are not named in that suit. The U.S. Supreme Court heard argument in the case in January. A decision is expected before July 1. > Daubertalso is stil pending in Supreme Coirt, item 25. ETSIIAQ REPORT, ISSUE 49 [16] Votb: New ETS Prisoner Case Filed In Oregon Frank Voth, an inmate at the Oregon State Peniten- tiary, filedsuit pro sron Apri127, 1993, in the U.S. District Court for the District of Oregon. Mr. Voth alleges that his civil rights have been violated as a result of his exposure to environmental tobacco smoke. He claims in the complaint that he has "incurred perma- nent health damage and is at risk of death" as a result of ETS exposure to environmental tobacco smoke. Plaintiff asserts causes of action based on theories of failure to warn and breach of warranty. Mr. Voth seeks $7,000,000 in actual damages, $12,000,000 in puni- tive damages, and $30,000,000 in special damages. As part of his civil rights claim, he secks injunctions directing the defendants to refrain from manufacturing tobacco products and to correct "design defects" in cigarettes that force him to breathe ETS. Defendants in Voth are Forsyth Tobacco Products, R.J. Reynolds and Brown & Williamson. Voth v. Forsyth Tobacco Products, et al. (U.S. District Court, Oregon) (filed April 27, 1993). ETS/IAQ LITIGATION ' NOT INVOLVING CIGARETTE MANUFACTURERS Workplace: Retaliatory Termination (17] Smedley v. Capps, Staples, Ward Hastings and Dodaon, 1993 U.S. Dist. LFMS 6633 (U.S. District Court, Northern District, California) (decided May 18, 1993) The district court has denied without prejudice the defendants' motion to dismiss the plaintiffs daim of retaliatory termination resulting from her complaints about the defendants' failure to provide a smoke-free environment. The plaintiff, Lauren Smedley, was hired by the defendant law firm as an associate in April 1990. She was fired from her position shortly after an artide appeared in a local newspaper identifying her as an officer of a gay rights organization. She filed a com- plaint asserting a number of claims, among them a claim that her employment had been terminated in violation of public policy, specifically that she had

JUNE 11, 1993 complained about the defendants' failure to provide a smoke-free workplace in compliance with a local antismoking ordinance. The court denied the defendants' motion with regard to this claim because the motion "did not address plaintifl's seventh cause of action as articulated in plaintifl's supplemental filing." The court did note, however, that the motion could be renewed at a later time in light of the fact that plaintiff had submitted to the court a list of those causes of action she had agreed to dismiss and those causes of action remaining. The seventh cause of accion did not, according to the court, appear on either list. WORKPLACE: JONES ACT [18] Smith v. Gulf Oil Company, 1993 U.S. App. LEXIS 12986 (U.S. Court of Appeals, Sizth Circuit) (decided June 3, 1993) The Sixth Circuit Court of Appeals has ruled that the plaintiff seamen in this case were properly denied the opportunity to present evidence at trial to prove their claim that the defendant shipowners were liable under the Jones Act and general principles of maritime law for exposing the plaintiffs to allegedly hazardous concentrations of ETS. The trial court had found that the claim was unwor- thy of trial in that plaintiffs' counsel did not raise the issue until trial, did not have any witnesses listed to support the claim, and only raised the issue to counter a defense claim that the plaintiffs' cigarette smoking, rather than exposure to asbestos, caused their respira- tory illnesses. The case was filed as an asbestos-related personal injury action and was consolidated with 20 other cases which were divided into separate phases, i.e., liability and damages, with further divisions permitting groups of four plaintiffs to present evidence at one time during the liability phase. The three seamen against whom a jury verdict on liability was entered challenged a trial court ruling rendered two days after commencement of trial which foreclosed any argument that the defendant shipowners were liable for exposing the plaintiffs to ETS. The court of appeals upheld the trial court's ruling as a proper exercise of discretion but specifically stated it was not "deciding 7 whether a properly presented claim of cigarette-smoke liability would stand as a matter of law." PRISONER CASE [19] Burns v. Sumner, 1993 US. App. LEXIS 12877 (U.S. Court of Appeals, Ninth Circuit) (decided May 21, 1993) The Ninth Circuit Court of Appeals has dismissed a class action complaint which alleged, among other matters, that prisoners' Eighth Amendment rights were violated by exposure to ETS. During a bench trial, prisoners at the Southern Nevada Correctional Center presented expert testimony about the risks of ETS, but there was, according to the court, no "evidence that the levels at the prison endangered inmates." The case was remanded in part to determine reasonable attorneys' fees because the class action had been a catalyst for some prison improvements involving fire protection. WORKPLACE: 1AQ/SICK BUILDING SYNDROME [20] Spungen v. Yoith crMacTavish (Philadelphia County Court of Common Pleas, Pennsylvania) (filed March 1993) A fifth plaintiff has reportedly filed a complaint against the contractors involved in renovating a library building on the Bryn Mawr College campus near Philadelphia, for injuries allegedly caused by exposure to toxic substances. The plaintiffs are two school technicians, a secretary, a division head and a student who all claim they developed symptoms ranging from sore throats, nausea and dizziness to short-term memory loss and permanent chemical sensitivities due to the allegedly negligent renovation process. See issues 44 and 47 of this Report, April 2 and May 14, 1993. Spungen is apparently the only plaintiff represented by an attorney other than Arthur Hankin. Spungen is being represented by Steven Angstreich of Philadelphia's Levy, Angstreich, Finney, Baldante, Mann & Burkett. Evidently, discovery has not yet been completed in the cases, but the lawyers expect them to be "open-and-shut." Hankin predicts that the suits will be consolidated and will probably take three or four years to resolve. Studies of the building have reportedly

8 been scheduled for the end of this year. Sce Indoor Pollution Law Report, May 1993. [21] Watrous v. Oklahoma Dept of YeteransA,'airs (Rogers County District Court, Oklahoma) (filed Apri120, 1993) Twenty-one current and former workers at a veteran's .hospital center in Tulsa, Oklahoma, have r portedly filed a complaint in which they allege chemicals in cleaning products and poor ventilation caused a variety of respira- tory and eye ailments. The defendants in the case are manuFaccurers of three deaning products and the center's builder, architect and ventilation contractor. The plaintiffs apparently claim that improper training in the use of the deaning products and the failure of the ventilation system to comply with building and health codes caused chemi- cals and fumes to recirculate throughout the building. See Indoor Pollutionlitw Rrport, May 1993. LEGAL ISSUES AND DEVELOPMENTS [22] "RCRA, TSCA, and Other Hazardous Waste and Toxic Tort Developments," ED. Elliott & A.B. Horowitz, ALI A,&4 Course of Study, Environmental Law, February 11, 1993 This outline of developments in environmental law condudes with a section about new potential areas of litigation. Citing a Wall Strctt Journal artide, the authors indicate that the EPA Risk Assessment on ETS could trigger a new wave of toxic tort lawsuits "against employers, tobacco companies and public facilities." They also contend that the EPA risk assessment "may be cited as condusive evidence of effects of passive smoking and as a means of alleging forseeabiliry [sic] and notice of effects." [23] Asthmatics Plan to Fight Smoking According to a press report, asthmatics called for a 100-percent smoke-free nation at a press conference at the San Francisco office of the American Lung Associa- tion (ALA). They joined other antismoking advocates to claim that the Americans with Disabilities Act (ADA) gives them the right to a smoke-firee public environment.- The ALA daims 25.8 million Americans have chronic lung disease or asthma. Nonsmoking ETS/IAQ REPORT, ISSUE 49 sections alone are not enough for most of these people, according to the co-director of Americans for Non- smokers' Rights. The press report claims that under the ADA, people with respiratory ailments could sue for as much as $100,000 in damages plus attorney's fees if they do not receive reasonable accommodation. See San Francisco C'bronicle, May 26, 1993. [24] Architects' Approval Required in Some States Citing an artide in the W/all Strret JournaZ an IAQ journal reports that several states require a plaintiff to obtain a certificate from an architect stating that the complaint is legitimate before an indoor air quality lawsuit may be filed. Evidently, those states requiring a certificate of merit are California, Georgia and Colo- rado. In Hawaii and Florida, plaintiffs must take their complaints before an industry panel for non-binding review. Such procedures have reportedly reduced the number of insurance claims fikd by design firms. See Indoor Pollution Law Report, May 1993. [25] DaubrrtRemains Pending in U.S. Supreme Court A decision by the U.S. Supreme Court still is ex- pected before the end of June in Daubert v. Merrell Dow Pharmaceuticals, Inc., No. 92-102 (U! S. Supreme Court) (review granted 10/13/92), a products liability case in which the parties have asked the Court to decide the appropriate standard for the admissibility of scientific evidence. The petitioners in the case are two minors born with limb reduction birth defects, who allege that a prescription drug taken by their mothers during pregnancy, $endeczin, caused their birth defects. Bendectin is an anti-nausea medication. Oral argument was held on March 30, 1993. See issue 48 of this Report, May 28, 1993. > McKimey ETS case also remains penKft in Supreme Caxt; Rem 15. OTHER DEVELOPMENTS [26] Minor League Baseball Bans Smoking Effective June 15, 1993, use of tobacco products of any kind will not be permitted in any minor league

JUNE 11, 1993 baseball team area, including ballparks, buses and planes. Baseball officials cite concerns for the health of baseball' personnel and the image they portray as motivating factors behind the new policy. Violators are subject to game ejection and fines up to $300; umpires will be charged with enforcing the ban. The same rule is not imposed on major league players, because it is the subject of collective bargaining with the Major League Baseball Players Association. See USA Today, June 3, 1993. [27] Smaller Companies Deal With Smoking in the Workplace A recent article in the Philadrlphia lnquirerexarnines some of the responses by small businesses in the Philadelphia area to the EPA Risk Assessment on ETS. Philadelphia Gas Works, along with manufacturing company Bently Harris, have reportedly prohibited smoking in their workplaces following release of the EPA risk assessment. The Philadelphia area workers have apparently responded to the smoking bans with mixed feelings. There are some who feel targeted or discriminated against, saying their rights have been violated, while others saw the ban as an opportunity to quit smoking. See Philadrlphia Inquirer, May 25, 1993. [28] Antismoking Organization Holds Conference On June 4, 1993, the Asian Pacific Islander Tobacco Education Network reportedly met in San Francisco and discussed its progress in educating the diverse Asian Pacific Island (API) population on the purported dangers of ETS. Citing the EPA Risk Assessment on ETS, a spokesperson for the group apparently chal- lenged community leaders and elected officials to show their concern for nonsmokers who are exposed to ETS. See Business Wire, June 3, 1993. [29] Cab Driver Shoots Gun at Smoking Passenger An argument over smoking in a cab reportedly ended in gunfire recently in Chicago. The driver had appar- ently picked up several passengers at a convention center, one of whom lit a cigarette. The passenger, who apparently refused to extinguish the cigarette after being asked to do so, allegedly struck the cab driver. The driver was said to have then begun firing a weapon 9 at the passengers. The driver was later charged wirh unlawful use of a weapon; the passenger was charged with assault. See Chuago Tribune, May 24, 1993. MEDIA COVERAGE [30] "Children, Elderly Especially Vulnerable to Secondhand Smoke," D. Anderson, Star Tri- bune, May 25, 1993 This article focuses on the EPA Risk Assessment on ETS. Citing some of the alleged effects of ETS expo- sure on children and the elderly, the article discusses a few of the responses which have occurred in Minne- sota. It was reported that smoking recently has been banned at the Minneapolis/St. Paul International Airport and at several major shopping centers. Recent legislation prohibits smoking in Minnesota's licensed family daycare centers. The Minnesota Coalition for a Smoke-free Society 2000 says it anticipates more regulations to be announced by OSHA, in response to the EPA risk assessment. [31] "Frequent Fliers Saying Fresh Air is Awfully Thin at 30,000 Feet," M. Tolchin, New York Times, June 6, 1993 In an effort to hold costs down, airlines are circulat- ing less fresh air into the cabins of many airplanes, according to this article. Older planes recirculate cabins with 100 percent fresh air every three minutes while newer models provide a 50/50 mix of fresh and recirculated air that is freshened every six or seven minutes. The artide claims this practice has lead to complaints of headaches from both passengers and crew, although airline officials say there is no conclu- sive correlation between cabin air and passenger health. [32] "Environmental Fear-Mongers Exposed," S.F. Singer, a/all Strcct Journa4 Apri128, 1993 This artide, written by a professor of environmental sciences at the University of Vuginia, reviews books that are skeptical of those who warn of global environmental disasters and who use science to create unfounded fears about risks of cancer. The books reviewed are F.co-Scam: Tfie False Py»phets ofF.cological Apocalypse by Ronald Bailey and Science Under Siegr.- Balancing Tichnology and the Envirovnmtnt by Michael Fumento.

10 The Fumento book apparently observes that the purported dangers from tobacco, alcohol and poor diet dvvarf the health risks Gom chemical residues; yet, irrational fears lead to costly, ill-advised programs such as the removal of asbestos from school buildings. The reviewer condudes that "science is bcing politicized," but that "journalists are getting wise to environmental hype.°" [33] Tdevision Commercial Airs on Dangers of ETS The Califomia Department of Health Setvioes has released a Spanish-language commercial for its tobacco education media campaign. The commercial shows family members drinking from a beaker as a narrator describes the contents - formaldehyde, cyanide, and nicotine - and explains that these substances arc found in cigarettes and ETS. See ADWEFK May 17, 1993. SCIENTIFIC/TECHNICAL ITEMS UPCOMING MEETINGS [34] "ASHRAE Indoor Air Quality'93: Operating and Maintaining Buildings for Health, Comfort and Productivity," Philadelphia, Pennsylvania, November 7-10, 1993 According to a news announcement, this conference will address a variety of IAQ problems such as micro- biological contaminationy pollutant-specific concerns, maintaining IAQ during building renovation and ETS. Technical presentations and workshops will cover areas such as duct deaning, HVAC system commissioning, legal issues, and IAQ in health facilities. Fourteen organizations are sponsoring the event. [35l "Second Annual IAQ Conference and Exposi- tlon," Tampa, Florida, May 5-7, 1994 The National Coalition on Indoor Air Quality (NCIAQ), sponsor of this IAQconference, has called for papers. Although conkrence topics were not immediatdy available, the deadline for abstracts is August 1, 1993. Those interested in further informa- tion can contact NCIAQ at (202) 628-5336. NCIAQ is also reportedly conducting a series of IAQ seminars for itidividuals who provide HVAC-related ETS/IAQ REPORT, ISSUE 49 services. The seminars are apparently designed to prepare participants to offer IAQinvestigation services to building, owners, engineers and property managers. The seminar outline includes sections on sources of "indoor airborne pollutants," HVAC systems, IAQ testing methods and investigation procedures, case studies, and marketing IAQ invesagations. ETS is identified as an indoor airborne pollutant. Participants receive a 120-page manual and a cerrificate of completion. The seminar will be presented June 28-29 in Chicago, and July 15-16 in Boston. [36] "Contemporary Concepts of Indoor Air Qual- ity," Ankara, Turkey, November 11-13, 1993 Topics for this conference will include IAQ manage- ment, ventilation, volatile organic compounds and indoor air-related infections. Hacettepe University, Department of Pharmacology is the principal sponsor. LUNG CANCER [37] "The Hazards of Passive - and Active - Smoking," P. Boyle, New England Journal of Medicine 328(28): 1708-1709, 1993 [See Appendix A] This editorial was published along with the Chilmonczyk, et al., study on asthma. However, the author focuses on lung cancer, citing the EPA risk assessment. He calls for further examination of biologic markers for assessing exposure, noting problems in exposure assessment in epidemiologic studies. CARDIOVASCULAR ISSUES [38] "A Critique of the Methods Used to Assess the Toxic Efftcts on Man of Combustion Products," D.F. Weetman. In: Indoor Air Quality in Asia. B.R Reverente, D.F. Weetman, and M. Wongphanich (eds.). Proceedings of IAI Con- gress, Bangkok, Thailand, November 28-29, 1991. Tyne and Wear, Jasprint Ltd., 275-285, 1993 [See Appendix A] The author of this article examines the epidemiologic data on ETS exposure and cardiovascular disease. He

JUNE 11, 1993 condudes that it is "not yet possible to decide whether or not there is an association." RESPIRATORY DISEASES AND CONDITIONS - CHILDREN [39] "Association Between Exposure to Environmen- tal Tobacco Smoke and Eucerbations of Asthma in Children," B.A. Chilmoncxyk, L.M. Salmun, KN. Megathlin, LM. Neveux, G.E. Palomaki, G.J. Knight, A.J. Pulkkinen, and J.E. Haddow, New England Journal ofMedicine 328(23): 1665-1669, 1993 [See Appendix A] In this study, parental reports of smoking behavior and urinary cotinine levels were examined in a group of asthmatic children. The authors report "dose-response" patterns of increases in the frequency of exacerbations of asthma and reductions in pulmonary function with increased exposures to ETS. [40] "Further Analyses of the Role of Confounding Variables in Epidemiologic Studies of Environ- mental Tobacco Smoke and the Respiratory System in School-Age Children," RJ. Witorsch, J.M. Wu, RD. Hood, and P. Witorsch. In: IndoorAir QualityinAsis. B.R. Reverente, D.F. Weetman, and M. Wongphanich (eds.). Pro- ceedings of IAI Congress, Bangkok, Thailand, November 28-29, 1991. Tyne and Wear, Jasprint Ltd., 313-360, 1993 [See Appendix A] The authors of this review examine the extent to which 16 potential confounders were addressed in studies of parental smoking (as a surrogate for ETS exposure) and children's respiratory conditions or pulmonary function. They condude that treatment of possible confounders is "inconsistent and inadequate," and that the data do not support claims of an associa- tion between parental smoking and childhood respira- tory conditions or pulmonary function. 11 OTHER HEALTH ISSUES [41] "Passive Smoking Is Associated with an In- creased Risk of Developing Inflammatory Bowel Disease in Children," B.A. Lasher, NJ. Shaheen, S.B. Hanauer, and B.S. Kirsdiner, American Journal of Gastroenterology 88(3): 356-359, 1993 [See Appendix A] , The authors of this paper report on a case-control study of persons diagnosed with Crohn's disease or ulcerative colitis by age 18. Reportedly, "passive smoking" at birth was associated with a statistically significant increase risk of developing these diseases. INDOOR AIR QUALITY [42] "The Impact of Ventilation on IndoorAir Quality: Meeting Health Standards," LD. Holcomb and J.F. Pedelry. In: Indoor Air Quality in Asia. B.R. Reverente, D.F. Weetman, and M. Wongphanich (eds.). Proceedings of IAI Congress, Bangkok, Thailand, November 28-29, 1991. Tyne and Wear, Jasprint Ltd., 47-66, 1993 [See Appendix A] Using modeling approaches to assess the presumed contributions of various substances to indoor air quality, the authors conclude that ventilation should be the "first choice for IAQ control." ETS is used as an example in their calculations. [43] Editorial Regarding "The Effect of Varying Levels of Outdoor Air Supply on the Symptoms of SidcBuilding Syndrome," Menzies, R, Tamblyn, R, Farant, J.P., Hanley, J., Nunes, F., and Tamblyn, R, New England Joumal of Medicine 328(12): 821-827, 1993 A commentary on the Menzies, et aL, paper was recently published in the newsletter IndoorAir Bullexin, edited by Hal Levin. Menzies, et al., studied reported symptoms in 1,500 workers in four office buildings, before and after instituting an experimental increase in ventilation level. The results of the study have been cited as supporting the position that ventilation has no influence on reports of sick building syndrome symp- toms. The editorial, entitled "New England Journal of

12 Medicine Ventilation Report - Good Research, Wrong Problem," appears in IndoorAir Bulktin 2(10): 7-10, 1993; its author is anonymous. The author of the commentary notes that Menzies, et al., compared ventilation rates of 64 cfm/person and 30 cfm/person, when "the range of interest for SBS symptoms is between 5 and 20 cfm/p, with 20 cfm/p widelybelieved to be sufficient to prevent an excess of SBS symptoms." The editorial continues: "[T]he researchers completely missed the mark in their range of ventilation rates." Moreover, the editorial reports that "IAQ authorities" have indicated that the Menzies, et al., study did not actually achieve the reported ventilation rates, and that the study's methodology for estimating those rates was "seriously flawed." According to the editorial, there were also "significant errors" in the researchers' tech- niques for measuring carbon dioxide levels and using those levels to estimate ventilation rates. The editorial also comments on data from the Menzies, et al., study that suggests there were "significant differences in the environments at the different ventilation rates," induding decreases in VOC and formaldehyde levels at the higher rates. The editorial also states: "[T]here is little concern about buildings with ventilation rates in excess of 30 dm/p. The concerns tend to be about buildings with ventilation rates less than 20 cfm/p. Even the lower of the two ventilation rates they reported studying was well above the highest level at which any IAQ authori- ties have suggested SBS symptoms might occur except in cases of unusually strong contaminant sources." STATISTICS AND RISK ASSESSMENT [44] "Relating Risk Assessment and Risk Manage- ment: Complete Separation of the Two Pro- cesses Is a Misconception," S. Jasanoff, EPA Journal 19(1): 35-37, 1993 [See Appendix A]' The author of this article, a companion to the Goldstein artide reviewed in this section, proposes that risk assessment is "an 'art' rather than a`science.'" She suggests that the judgment inherent in risk assessments is influenced by their policy context. ETS/IAQ REPORT, ISSUE 49 [45] "Relating Risk Assessment and Risk Manage- ment: If Risk Management Is Broke, Why Fix Risk Assessment?" B. D. Goldstein, EI'A Journal 19(1): 37-38, 1993 [See Appendix A] This artide, published with the Jasanoff article also discussed in this section, considers risk assessment the "driving force for regulatory actions." The author suggests that concerns about policy be addressed by dcveloping guidelines induding both policy and science. IN EUROPE & AROUND THE WORLD REGULATORY & LEGISLATIVE MATTERS AuSTRA1.IA [46] Health Council Recommends IAQ Law The National Health and Medical Research Council has reportedly recommended that a level of 5,000 micrograms per cubic meter be set for volatile com- pounds in indoor air to improve the health of office workers. Included in the Council's definition of volatile compounds are building materials, cleaning products, glues, office materials and ETS. See Herald Sun, June 3, 1993. CANADA [47] Tough New Bylaw on Smoking Adopted On May 25, 1993, the Kanata Council reportedly adopted the toughest smoking bylaw in the Ottawa- Carleton region. The new law, which will take effect in June, restricts smoking in restaurants to one-half of the floor space, and will decrease designated smoking areas to 30 percent of floor space by 1995. Smoking will also be restricted in bingo halls, bowling alleys, and billiard halls where smoking will be permitted in 75 percent of the space unti11995, and after that will be permitted in only 50 percent of the space. The original draft of the bylaw evidently would have totally banned smoking in restau- ranu by the year 2000: Critics of the bylaw induded the

JUNE 11, 1993 Ontario and the Ottawa-Cadeton Restaurant Associations. Sre The Ottauaa Citizrn, May 26, 1993. [48] Party Leaders Discuss Stands on Workplace Smoking The leaders of Alberta's three major political parties reportedly agreed to answer questions posed by newspa- per readers on issues of concern prior to the next elec- tion. In response to a question about smoke-free work- places, the leader of the Liberal Party cited the EPA Risk Assessment on ETS to support his party's concern about the issue and challenged the government for not acting to restrict smoking in the workplace. The Premier and leader of the Progressive-Conservative Party supported initiatives taken by local municipalities regarding ETS in the workplace, stating "Albertans need fewer laws and less government intervention in their daily lives." The leader of the Alberta New Democrats responded to the question by stating that his party would work toward making workplaces and public places smoke free. See Calgary Herala; June 1, 1993. [49] Health Care Groups Charge Government Delay on Smoking Regulation A coalition of health care groups has reportedly charged that the Ontario government is stalling on introducing a bill that would, among other matters, ban smoking in public places and workplaces by 1995. Members of the antismoking coalition have reportedly been told by the Health Minister that caucus opposition is preventing her from introducing the bill. The coalition apparently argues that adoption of such measures would cut the number of youngsters who start smoking. See The Toronto Star, June 3, 1993. CYPRUS [50] Health Minister Seeks Tougher Antismoking Laws Announcing that the Cyprus government will spend some $90,000 on its antismoking campaign this year, Health Minister Manolis Christofides reportedly stated that his ministry is seeking tougher antismoking laws and will press for strict implementation of existing laws. In Cyprus, smoking is prohibited on buses and taxis and 13 in cinemas, theatres, and educational and health care facilities. Restaurant owners are required to post signs containing a warning about smoking and danger to health. The government apparently sponsors an antismoking week in the country which coincides with World No-Tobacco Day. The health minister's remarks were made at a press conference which was held to mark the event. See Xinhua General News Service, May 24, 1993. EUROPEAN COMMUNITY (EC) [51] EC Health Council Discusses Smoking Ban At a meeting of the EC Health Council in Brussels on May 27, 1993, representatives reportedly adopted a set of Condusions in which they invite the Commission to routinely assess the measures being taken by mem- ber states to ban smoking in public places. See Euro- pean Report, May 29, 1993. KENYA [52] Government Bans Smoking in Health Institutions According to a press report, the government banned smoking in all health institutions in the country as of May 31, 1993. Imposition of the ban coincided with "World No-Tobacco Day" and was announced by Health Minister Joshuaaa Angatia who stated that "the health sector should lead the way in our endeavor toward a tobacco-free world." Scr )Gnhua General Nrws. Service, June 1, 1993. SWEDEN [53] Parliament Approves Smoking Ban On May 28, 1993, the single-chamber Riksdag reportedly approved a ban on smoking in schools and hospitals. The measure is part of a larger proposal that has been debated in recent months. See issue 48 of this Report, May 28, 1993. See The Reuter Library Report, May 28, 1993. Meanwhile, according to a press report, the Swedish parliament has ordered the drafting of a law that would ban smoking in workplaces and public buildings. See Wall Strrrt Journal Europe, June 2, 1993.

14 ETS-RELATED LITIGATION INVOLVING CIGARETTE MANUFACTURERS AUSTRALIA [54] Tobacco Institute qfAustralia Ltd v. Australian Federartion of Consuraer Organisations Inc. (Austra- Iian High Court) (appeal filed April 1, 1993) AFCO has discontinued its appeal to Australia's High Court. The appeal was from the Full Federal Court's March 10, 1993, ruling which held that a TIA adver- tisement was misleading and deceptive under the Deceptive Trade Practices Act, but did not reimpose the trial court's injunctions against TIA. The March ruling allowed AFCO to submit a bill of costs to TIA, and that matter is now expected to proceed. ETS-RELATED LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS GERMANY [55], Court Decides Mother Can Smoke Near Children On June 1, 1993, a Munich court reportedly ruled that it could not legally bar a mother from smoking in front of her children. The children's grandmother brought the case, claiming that her daughter's tobacco smoke was harming the two children, aged 14 and four-and-a-half The court apparently agreed with claims that ETS exposure is harmful to nonsmokers, but, finding that smoking is an acceptable social activity, the court stated,. "Individuals are not bound by law to stop smoking when they are in the same room as non-smokers." Ser Reuur.; June 1, 1993; The Gazeru, June 2,1993. UNITED KINGDOM [5b1 Wright v. Ladbrokes (Industrial Tribunal, Birmingham) (filed December 20, 1991; decided May 27, 1993) An industrial tribunal has determined thac the dismissal ofa'betting shop -nployee for smoking at the ETSIIAQ REPORT, ISSUE 49 counter after the imposition of a smoking ban was unfair procedurally, but that dismissal "fell within the band of appropriate sanctions which a reasonable employer would effect" in light of the employee's consistent statements that she would not or could not comply with the new policy. In so ruling, the tribunal upheld the right of the employer to require that employees not smoke in the presence of customers. The claimant, Pauline Wright, was a valued employee who had worked for the betung shop as a cashier for nine years. She claimed that smoking permitted her to perform her job with efficiency and helped her control her emo- tions, and that she would be unable to oamplywith the smoking restrictions which were imposed upon employees in July 1991. She was offened a transfer to a slower shop where she could take breaks away from the counter to smoke, but she refused the transfer. Disciplinary proceedings were begun against Wright as early as July 9, and she was terminated on July 25. Evidence presented to the tribunal indicated that customers were not subject to the smoking ban and that some employees were given extensions of time in which to comply with the restrictions. The tribunal found that the employer was reasonable in trying to present a particular image to the public by restricting employee smoking and that the extensions given to other employees did not make Wright's dismissal unfair in that the other employees had indicated that they were trying to comply with the policy. The tribunal furcher found thar the right to smoke on the job was not a subject of the employment contract. The case has been rrlisted for a hearing as to remedy. LEGAL ISSUES AND DEVELOPMENTS AuSTRAI.In [57] ASH Waros Employers About Liability for Cexvical Cancer According to a press report, Stephen Woodward of ASH has warned employers that they could face compensation payouts if they permit smoking in the workplace and their female employees contract cervical cancer. Apparently, ASH is reporting that a Dutch