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1200 SEVENTEENTH SYRF_~. N.W.. WASHINGIC~. IX: 20036-3097 202~1-5900 FAX: 202~1-2429 NATIONAL RESTAURANT ASSOCIATION National R~aurant Association Members " FROM: Richard E. Marriott, President and Chaixman of the Board S~CT: Smoking in Restaurants DATE: February 12, 1993 Many foodservice operators are confronted daily with potential conflict between smokers and non-smokers. The NationaI Restaurant Association advises its members to resolve this question after considering .the wishes of their clientele and the nature of the particular ~tablishmemt.The Association also contends that local govermnents should leave individual foodservic¢ establishments fr¢~ to work out arrangements in ~gazd to smoking that suit their clientele and operation. On February 10, 1993, the Board of Directors of the National Restaurant Association voted to inform its membership of several new factors that should be taken into consideration when reviewing smoking policies in foodservice establishments. 1. In ~anuary; 1993, the U.S. Environmental l~otection Agency (EPA) issued a report entitled Respiratory Health Effects of Passive Smoke: Lung Cancer and Other Disorders, which links environmental tobacco smok~ (Ers), mor~ commonly known as "second-hand smoke," with cancer and ~piratory illnesses. The rq~ort identifies ETS as a Class A carcinogen. 2. In ~..sponse to this EPA report, the U.S. Secrelary of Labor directed the Occupational Safety and Health Administration (OSHA) to "commence rule-making to address the hazards of occupational exposure to second-hand smoke." Conceivably, OSHA could ban smoking in the nation's workplace, but the speed and stringency of OSHA's response cannot be foreseen at this time. 3. The EPA report may encourage non-smoking patrons who frequent a food,service establishment that allows smoking and who develop lung cancer or other ailments that have been attributed m ETS to sue the foodservice establishment. Assodation counsel advises us, however, that it is unlikely that foodservice operators TI31590786

• would be found I/able in such cases b~cause of the .difficulty of proving that lung cancer or resph'a~ry illn~es.ar~ caus~I by occasional exposure ~ ETS. 4. The .EPA-report~nay :encourage non-smoking,employees who have worked in a food,service.cstaMishment that allows smoking and who develop lung cancer or other ailments that have been.attributed to ETS to make a.claim under state workers' compensation laws. Association counsel advises as #.hat, ,depending on specific circumstances, employers could be held responsible for such claims. 5. According :to a study fielded by the National.Restaurant. Association ha January, 1993, 56 percent of adults said they would be more likely,to go to a .restaurant Sat voluntarily~'banned smoking .as opposed to one that continued .to permit smoking. Twenty-six ~pexcentwould :be ,less likely ..to go to a restaurank that voluntarily banned ,smoking ~ opposed to one that continued to .permi. "t-smoking. These. figures-,.will vary among .your own .ctientele according .to the pei'centage of .smokers versus non-smokers. The :full text.of.this ~tudy is.available ,tln'ough the Assoc~ion. Nothing .contained in this memorandum shall be:deemed or construed as .an .opinion ofthe Association :that a foodservice ~perator is in.any way responsible for ailments that.customers mr.employees claim were caused by ETS. T131590787

LIABIIXI'Y CONCERNS DO. NOT WARRANT RESTAURANT SMOKING BANS Antismokin8 advocates have suggested that restaurants must ban smoking to avoid potential liability under the Americans ~ttt Disabilities Act and state workers' compensa- tion statutes. They assert that the recent U.S. Environmental Protection Agency report classifying environmental tobacco smoke CET$") as a Group A carcinogen will fuel disability and other claims by nonsmokers. Significance of the"Group g' Label Despite suggestions to the contra.,~/, the Group A label merely reflects ~.PA's degree of confidence, based on research performed byothers, that a substance has been shown to be capable of causing cancer in some humans under some conditions. In and of itself, the Group A label does ~ represent a determination that a substance poses a significant cancer risk under particular exposure conditions. The fact that a substance has been given the Group A label does not mean that it must - or should - be banned. Group A subst~mces are commonly found in the environment. They include, among others, benzene, which is emitted from barbecue grills, gas-fired stoves and drinking wa~er; nickel, which is commonly used in kitchen utensils and table- ware; and chromium, whii:h occurs naturally in the earth and is found in all. tap water. The State of California has labelled common beach sand and 300 other substances as known human carcinogens, but has not banned them on that basis. Significantly, the U~. Occupational Safety and Health Administration typically does not ban Group A substances in workplaces. Instead, it establishes permissible exposure limits, if a significant occupational risk is found to be presented. OSHA, not EPA, has regulateD' authority over workplace smoking, and OSHA currently is considering whether ETS presents a health risk in workplace setting. To put EPA's conclusion in perspective, it should be noted that, as Dr. Devra Lee Davis of the National Research Council has observed, the level of the cancer risk attributed to ETS is less than that attributed to chlorinated water. Dr. Morton Lippman, chairman of • e Science A~lvisory Board that reviewed the EPA report, stated in respona, e to a question at a pre~s conference that the questioner probably had incurred a greater risk driving through Washington, D,C., traffic to ask his question than he would incur in a lifetlme's exposure to ETS. EPA's conclusion that ETS is capable of causing cancer in human~ has drawn, and con- tinues to draw, serious scient/fic and academic criticism. Summarizing the criticisms leveled at the report, ~ magazine recently observed: "The scientific evidence supporting the risk assessment is the least persuasive EPA has ever accepted, and there already are indications thai new research may discredit those findings? Alleging that EPA used faulty science and improper scientific procedures, tobacco industry groups have filed suit in federal court to overturn the agency's action. T131590788