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SHOOK, HARDY& BACON REPORT ON RECENT' ETS AND IAQ DEVELOPMENTS Ju1y 23, 1993 SHB

REPORT ON RECENT ETS AND IAQ DEVELOPMENTS. - IN THIS ISSUE - IN.TH'E UNITED STATES REGULATORY AND LEGISLATIVE MATTERS • EPA Administrator Browner testifies at Congressionall hearing on ETS Risk Assess- nmenr, p. 1. • EPA moves to dismiss the ETS Risk Assess- ment litigation, p. 2. • ASH and OSHA Fle separate motions to govern further proceedings in ASH v. OSHA, p: 2. • House and Senate hold hearings on OSHAA reform legislation, p. 3. • Summaries of state and local government activity begins on p. 4. SCI ENTIFIC/FECH NI CAL ITEMS ISSUE 52 • "Environmental Tobacco Smoke and Lung Cancer," p. 7. • "Effects of Maternal Smoking,and Child- hood Respiratory Illness on Pullmonary Function in Young Adults: The CARDIA Study,"' p. 8. •"Passive Smoking and Evolution of Lung Function in Young Adults. An Eight-Year Longitudinal Study," p. 8. •"Privilege and Health - What Is the Connection?" p. 8. IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATINE MATTERS ETS-RELATED LITIGATION AGAINST • CIGARETTE MANUFACTURERS • Updares on Butler and Voth begin on p. 4. • ETS/lAQL,ITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS European Parliament releases briefing paper on "Passive Smoking," p: 9. German railway system places further restrictions on smoking, p.. 10. LEGAL ISSUES AND DEVELOPMENTS • Triallcourt j,udge decides summary judg- • ment motion in case involving First Amend- ment free speech claims, p. 5. • LEGAL ISSUES AND DEVELOPMENTS • "Ban Smoking,in Fast-Food Restaurant, Texas Official Says," p. 6. N • Union ratif es agreement requiring smoke- ~ ..r' ?J~ free workplace, p. 6. 4~A • "How Secondhand Smoke Hurts Kids„" 11) Parents Magazine, p. 7. ~ ~ ~ ~ OTHER D£VELOPMLNTSIMEDIA COVERAGE In Australia, former spouses seek injunctions to stop smoking in front of children, p: 10! Australian law firm advises employers to ban smoking, p. 10. OTHER DEVELOPMENTS • Employees of Pembrokeshire NHS Trust forbidden to smoke when in uniform, p: 11. ~

- TABLE OF CONTENTS - Issue 52 IN THE UNITED STATES Jul'y 23, 1993 REGULATORY AND LEGISLATIVE MATTERS U.S.. ENVIRONMENTAL PROTECTIONAGENCY(EPA) . [I] EPA Administrator Testifies at Subcommittee Hcaring on ETS Risk Assessment .................... 1 [2] ETS Risk Assessment Litigation: Defendants,Move to Dismiss Complaint .............................2 [3] Congressman Responds to Colleague's Criticism of EPA Risk Assessment ............................... 2 U.S. OCCUPATIONAL SAFETYANDHEALTM ADMINISTRATION (OSHA) [41 [51 ASH'v. OSHA: Both Sides File Motions to Govern Further Proceedings .................................2 OSHA Clarifies Permissible Exposure Limits for Indoor Air Toxins in Wake of Court Decision Overturning 1989 Standard .....................................................................----.............3 [61 House and Senate Hold Hearings on Reform Legislation ........................................................3 STATE ANDLOCAL GOVERNMENTS [7] ETS-Related State and Local Legislation ............................................... ................................... 4 ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [8] Butltr:, Discovery Continucs, ...................................................................................................4 . [9] Vbth: Plaintiff Files lvlorion to Recusc ........................................................ ............................. ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS WORKI'iACE: : WORKERS' CO1.iPEN5AT1OT7 ['10] Employer: New York City Department ofHaalth', 1993 WL 257343 (New York Workers' Compensation Board) (decided June 22, 1993) .....-•...-••....••.•-•.••-•••.-•••.••--.••-••-••-••••••••••••• •Â•Â•Â•Â•Â•Â•Â• 5 WORKPLACE:'. CLEIAN, INDOOR AIR ACT [11] Smith v: Marrin, 1993 U.S. Dist. LEXIS 8873 (U.S. District Court, Northern District, Illinois, Eastern Division)! (decided June 28, 1993) ............................................. ...... 5 LEGAL ISSUES AND DEVELOPMENTS [12) "Ban Smoking in Fast-Food Restaurant, Texas Official Says," B. Scharrer, GannetrNcws Servite, July 9, 1993 .................................................................................................... .............6 113) "Whcelchairs at Third Base; Americans With Disabilities Act of 1990," L.H. Rockwcll, Jr.,, Narional Rrvieu, Junc 7, 1993 .................................................................................................6. OTHER DEVELOPMENTS [14] Union Ratifies Agreement that RequiresSmokc-free Workplace ..............................................6. [15] Workplace Smoking,Policies Subject of Glantz Study ..............................................................6 [161 Risk Assessment Provides Impetus for SchoollSmoking Ban ....................................................6 [17] CDC Launches New Anrismoking Campaign ................................ ........................................ 7 MEDIA COVERAGE j18] "Invironment: The New Horizom- Indoor Environmental Quality," Consulting Specifying [19], Engineer, Junr 1993 .................................................................................................... .............7 "The Great American Smokeout"„CNN Crossf,re„July 2; 1993 ...-.-.••.-.•...--•.---••---•-•••••••-•..----. 7 [20] 1 "How Secondhand! Smoke Hurts,Kids," R. Israeloff, Parents Magasinr„August 1993.............. 7 [2ii] I "Anti-scent Sentiment Catching on in OfFices," S. Rostler, The Plain Dealer, July 16; 1993 .... 7 SCIENTIFIC/TECHNICAL ITEMS LUNG CANCER [22]' "Environmental Tobacco Smokc and Lung Cancer," E.T.H. Fontham, P. Correa, P.A. BufBer, R. Greenberg,: P. Reynolds, and A.,Wu-Williams, The Cancer Bulletin 45(1): 92-94, 1993 [See Appendix A] ................................................................................................7 CARDIOVASCUlARASSUES [23), "Associarion of Passive Smoking with Increased Coronary Heart Disease Risk Is Not Explained by Elevation of Leucocyte Count," M.S. Green, J, Shaham, J. Green, G. H,arari,, and'iJ. Bernhcim, Europran Jburnal of PubGc Health 3: 14-17, 1993 [See Appendix A] ........... S RESPIRATORY DISEASES.AND CONDITIONS - ADULTS [24] "Effects of Maternal Smoking and Childhood Respiratory Illness on Pulmonary Function in Young Adults: The CARDIA Study," J.E. Dunn, S. Kellie, K. Liu, and J. Keller, Society for Epidemiological Research, 1993 Annual Meeting„Keystone„Colorado, Abstract No. 306, June 1993 [See Appendix A) ...................................................................................................8

Contents Continued, Issue 52 [25] "Passive Smoking and Evolution of Lung Function in Young Adults. An Eight-Year. LLongitudinal Study," M.S. Jaakkola, J.J.K.Jaakkola, P. Ernst, and M.R. Becklakc, American Review ofRespirarory Disca.ra 147(4 Part 2): A215, 1993 [See Appendix A] ............................. 8 [26] "Effets Sanitaires d'unc Exposition Chronique a ]h Fumee d'e Tabac sur une Population de Non Fumeurs (Hea]th Effects of Chronic Exposure to Tobacco Smoke on a Non-Smoker Population)" [English abstract only], A.M. Laurent, A. Bevan, N. Chakroun„Y: Courtois, B. Valois, M. Roussel„B: Fesry„and S. Preret, Rev. Pncumoi Clin. 48: 65-70, 1993 [See Appendix A) ...............°................................................. .....----• ................................................ 8 RESPIRATORY DISEASES AND. CONDITIONS - CHILDREN [27] "Privilege and 4-Iealth - What Is the Connection?" M. Ange11, New Englvnd fournal of Medicine 329(2)i 12(r127t 1993 [See Appendix A] ................................................................ 8 [28]1 "1s Passive Smoking a Cause of Asthma in Childhood?" R. Ehrlich, ML Kattan, and D.E. Lillenfeld, Joumnl'ofSmroking-Relattd Disordrrs 4(2): 91-99;, 1993 [See Appendix A] .............. 8 ETS EXPOSURE AND ~ MONITORING [29] "Measuring Exposure to Environmental Tobacco Smoke in Studies of Acute Health Effects," M.C. Marbury, S.K.,F-lammond, and N.JL Haley, Amrrican Journal ofEpidemiology 1i37{] 0); 1089-1,097, 1993 [See Appendix A) ........................................................................................9 INDOOR. AIR. QLIALITY[301 "Indoor Air: Potential Health Risks Related to Residential Wood Smoke, as Determined Under the Assumptions of the US EPA Risk Assessment Moddl° K.S. Sidhu, J.L. Hesse, and A.W: Bloomer, Indoor Environment 2: 92-97, 1993' [Sec Appcndix A] .............................9 [31']' °A Prevalence Study of the Sick Building Syndrome (SBS) and Facial Skin Symptoms in Office Workers," B. Stenberg, K.H. Mild~ M. Sandstrom„J. Sundclll and S. Walll Indoor Air3: 71-81, 1993 [See Appendix A)' .....................................................................................9 [32)' "Volatile Organic Compound's in Ventilating Air in Buildings at Different Sampling Points imthe Buildings and Their Relationship with the Prevalence of Occupant Symptoms," J'. Sundell( B. Andersson„K. Andersson, andlT. Lindvall, IndoorAir 3: 82-93; 1993 (See Appendix A] .................................................................................................... ........................ 9 IN' EUROPE & AROUND THE WORLD REGULATORY'AND LEGISLATIVE MATTERS EuROPEAN PARLI147vIENT [33] Briefing Paper on "Passive Smoking" Released .................................................................... GERMANY' [34] Railway System Places Further Rtsrrictions on Smoking ......................................... ............... 1 LEGAL ISSUES AND DEVELOPMENTS AusrRALu [35] Former Spouses Seek Injunctions to SropSmoking in Front of Children .............................. 10 [36] Employers Advised to Make Premises Smoke Free ................................................................. 10 OTHER DEVELOPMEIA]"S FRANCE [37[ Booklet Counters Misrepresentations About Smoking Bans .................................................. 10 NETHERIANDS [38] Amsterdam Airport to Impose Smoking Restrictions ..................................................... ........ 1 UNITED KINGDOM [39] Employees Forbidden from Smoking When in Uniform........................................................ lil (40] Smoking in Restaurants Leaflet Produced ................................................................................ 1I1 [411 Bare Majority Favors Restaurant Smoking Bans .................................................................••• 11 APPENDIX' A .................................................................................................... ................................. Article Summaries ............................................ APPENDIX, B ............................................................................................... EPA Brochure APPENDIX C .................................................................................. ................... Browner and Lippmann Testimony APPENDIX D .................................................................................................... ............................... FarlandlTcsrimony

JULY 23, 1993 1 REPORT ON RECENT ETS AND IAQ DEVELOPMENTS IN THE UNITED STATES REGULATORY ANID: LEGISLATIVE MATTERS U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) [1] EPA Administrator Testifies at Subcommittee Hearing on ETS Risk Assessment On July 21, 1993, at a time scheduled to coincide witL a subcommittee hearing at which testimony critical of the EPA Risk Assessment on ETS was heard, Representative Henry Waxman (D-Cal.), sched'uled a hearing before a House subcommittee on health: and the environment, which he chairs. Among those testifying at the Waxman hearing,were EPA Adminis- trator Carol Browner, Dr. Morton Lippmann and representatives of the American Lung Association. At the hearing Waxman said he planned to introduce legislation to banish smoking from allibuildings open to the public except in designated,, separately ventilated smoking rooms. During her testimony, Administrator Browner defended the EPA Risk Assessment on ETS and summarized' its conclusions before announcing the release of a new brochure, titled What You Can Do About Secondhand Smoke. A copy of the brochuse is attached as Appendix B. The broc4iure recommends (i) that people not smoke in their homes or permit others to do so; (ii) that all facilities serving children have a smoking policy to protect children from ETS exposure; and (iii)~that every company have a smoking policy to protect nonsmokers from ETS exposure in the work- place. Browner asserted that simple separation of smokers and nonsmokers is not adequate to eliminate nonsmoker exposure to ETS, and she claimed that banning smoking will be the least costly way to eliminate the purported risks associated with ETS exposure. According to Browner, the agency's workplace smoking policy guide will be published later in the year. She concluded her prepared remarks by stating, "EPA believes that exposure to environmental'~ tobacco smoke provid'es sufficient risk to recommend prevent- ing,involuntary exposure in all indoor environments." Dr. Morton Lippmann also defended the risk assess- ment in testimony at the Waxman hearing. Dr. Lippmann ~ chaired the EPA Science Advisory Board committee that reviewed the risk assessment. He detailed the methodology used by the EPA in reaching its conclusion that; ETS is a Group A carcinogen. Appendix C contains copies of the statements of Administrator Browner and Dr: LippmannL As the Waxman hearing was proceeding,, Representa tive Charles Rose (D-N.C.), Chair of the House Agriculture Committee's Subcommittee on Specialty Crops and Natural Resources, also held a subcommit- tee hearing concerning the risk assessment. Among those appearing at the hearing or submitting state- ments to the subcommittee were Maurice LeVois, Ph. D.,, former Director of the Veterans Administration's Agent Orange Research and Education program, and Dr. Gio Gori, former director of the Smoking and Health Program at the National Cancer Institute. LeVois stated that the risk assessment was "contrary to accepted statistical methodology" and warned the subcommittee that "EPA's ETS risk assessment should not be relied upon as an unbiased estimate of the riskk of ETS exposure because it exploits flawed data and employs biasedti unscientific methods." Gori expressed his concern about "what the Agency staff acknowledges was 'fancy statistical footwork."' He observed that the EPA "doubled the statistical' 'confidence interval' from the standard five percent margin usually posted - and employed in the early drafts of the EPA report - to a l0 percent margin." He warned the subcommittee that "scientists who ?1~ reviewed the EPA report disagree privately with its tj conclusions, even though they feel the need to agree im F11L public with an agency that influences much of the 4t research funds they obtain. Many of these scientists have strong,ties to militant anti-smoking organizations."

2 Also appearing,at the Rose hearing was William Farland, director of EPA's Office of Health and Environmental Assessment. A copy of his statement, which includes a response to tobacco industry criti- cisms of the risk assessment, is attached as Appendix D.. [2] ETS Risk Assessment Litigation: Defendants Move to Dismiss Complaint In a motion to dismiss the lawsuit challenging the validity of the EPA Risk Assessment on ETS, the EPA and its Administrator, Carol Browner. avoided' the merits and argue& for dismissal1 on largely procedural grounds. The motion contends that the court, has no jurisdiction over the subject, matter of the actioniand! that plaintiffs failed to state a claim uponiwhich relief can be granted. EPA's lack-of jurisdiction claim is basedlon three arguments. First, EPA maintains rhat neither the risk assessment nor the classification of ETS as a carcinogen is an agency action under the Administrative Procedure Act, which prescribes the scope of judicial review of agency actions. The statute precludes review of EPA's actions relating to the risk assessment, the agency argues. Second, EPA asserts, even if the risk assessment or the carcinogen classification, were an agency action, neither is a"final"'agency action reviewable under the APA. And third, according to EPA, neither the APA nor the due process claims raised by plaintiffs are "ripe for review"'by the courts. EPA's contention that the tobacco ind'ustry plaintiffss failed to state a claimifocuses on the industry's charge that the risk assessment and the classification of ETS ass a Group A Carcinogen unlawfully deprived them of a constitutionally-protected property interest without due process. EPA argues that property oFdx tobacco industry was not rendered "ill'egal or valueless ' by the agency's actions, and, in any event, "EPA's responsibil- ity to protect public health and to inform the public of threats to public health plainly outweigh the injuries alleged by plaintiffs." The motion to dismiss was made public on1July 21, 1993, in conjunction with Administrator Browner's testimony concerning ETS to a Congressional subcom- mittee. See item 1 of this Report. The complaint in the case, filed in June 1:993, charges EPA with exceeding its statutory authority in conduct- ETS/IAQ REPORT, ISSUE 52 ing the risk assessment, using faulty science and improper scientific conclusions in classifying ETS as a Group A carcinogen, failing to follow its own risk assessment guidelines, and violating the guarantee of due process of law in the Fifth Amendment to the U.S.. Constitution. The six plaintiffs consist of three organi- zations related to tobacco growers, two cigarette manufacturers, and one cigarette vending machine operator. Flue-cured Tobacco Cooperative Stabilization Corporation, et al. v EPA, No. 6:93CV370 (U,S. District Court, Middle District, North Carolina) (filed )une 22, 1993). (!3] Congressman Responds to Colleague's Criticism of EPA Risk Assessment In a July 5, 1993, letter to the editor of Roll Call,Representative Richard Durbin (D-Ill.), principal sponsor of the pending PRO-KIDS legislation (H.R. 710), responds to the Guest Observer article written by his colleague, Representative James Clyburn (D-S.C.), in May 11993. For a summary of the Clyburn article, see issue 49 of this Report, June 11, 1993. Durbin repeats the EPA's findings that ETS is a "Group A carcinogen" and compares it to asbestos, benzene and arsenic. Durbin summarizes his PRO-KIDS legislation and'asserts that the bill "is vital to protecting the health of both children andlfederal workers." The lenter criticizes Clyburn's suggestions abour ventilation, claiming that they are ineffective and/or too costly, and'concludes with the following; "The simplest, most effective, and most economic way to protect nonsmokers from tobacco smoke is to make the workplace smoke-free." See Roll Call,' July 5, 1993. U. S. OCCUPATIONAL SAFETY AND HEALTH ADMINZSTRATION (OSHA)~ [4] ASH v. OSHA: Both Sides File Motions to Govern Further Proceedings On July 19; 1993, ASH and the Department of Labor filed separate motions in response to the Court of Appeals' May 1993 order granting,ASH's request to hold the case in~abeyance and directing the parties to~ file motions to govern further proceedings within 60 days. For further details about the May 1993 order entered by the panel assigned to the case (Mikva, CJ;,

JULY 23; 1993 Wald, J; and Ginsberg, J), see issue 48 of this Report, Pvlay 28', 1993. . In brief, ASH seeks the establishment of an immedi- ate briefing and argument schedule, and the Depart- ment seeks a continuation of the order holding the case in abeyance. The Department states that the Secretary of Labor has not yet made a decision about regulating ETS and cannot say "when he willI decide whether, or how to regulate occupational exposure to tobacco smoke." The Depanment also requests an order requir- ing the Secretary to file status reports with the court. The motion filed by ASH is a request to proceed' with briefing and oral argument "at the earliest possible opportunity." Stating that "OSHA has notiprovidedl ASf-I' withiany indication that it plans to remedy its failure [to initiate rulemaking proceedings to regulate ETS in the workplace] by today's Court deadline," ASf-I! continues to characterize OSHA's inaction as an unlawful and unreasonable delay in regulating ETS. ASH reminds the court that it has been six years since ASI-I! filed its first petition seeking the regulation of ETS by OSHA. ASH cites a number of studies, including the study of ETS done by the EPA, to bolster its argument regard- ing the purported threat to worker health posed by ETS exposure in the workplace. ASH' states that this lawsuit principally seeks "the initiatiomof the regula- tory process by the publication of a notice of a pro- posed rulemaking for environmental tobacco smoke, as a known carcinogen, in a separate rulemaking proceed* ing apart from other indoor air pollutants." ASH admits that it is ukimate]yseeking a:workplace smoking ban. Accordingly, it alko requests that the courr retain jurisdiction~ over the case even after rulemaking is commenced "to assure tlnt OSHA does not continue its unlawful and unreasonable delays in promulgating a final, permanent regulation banning tobacco smoke in the workplace." The Department of Labor motion requests a continu- ation of the order holding the case in abeyance inas- much as "[t]he Secretary still has not determined whether or how to regulate occupational exposure to tobacco: smoke.°' The Department argues that the litigation will be unnecessary if the Department d'ecides to regulate occupational exposure to ETS, and thus,. "[i]t wouldnot be an efficient use of either the Coun's. 3 or the government's resources to require briefing,and argument directed at the Secretary's decision not to address cancer hazards of tobacco smoke separate komm other hazards,,when~all parties recognize that a subsequent regulatory decision may well overtake that litigation." According to the motion~ filed by the Department, the Secretary is "prepared to filed status reports to inform the Court of the progress of this matter." The Department requests, therefore, that the court direct the filing of am initial status report in 90 days. ASH u: Depanment'ofLabor, No. 92-1661 (U'.S. Court of Appeals, D.C. Circuit) (filed December 22, 1992)~ [5] OSHA Clarifies Permissible Exposure Limits for Ind'oor Air Toxins in Wake of Court Decision. Overturning 1989 Standard OSHA has apparently decided'that it may enforce some of the new permissible exposure limits (PELs) which were overturned by a court of appeals in AFL- CIO v: OSHA (U! S. Court of Appeals, Eleventh Circuit) (decided July 7, 1992). The standards covered some 428 substances. Apparently OSHA will enforce, under the generalldury clause of the Occupational Safety and Healtlt~Act, those standards which have become "industry standards." According to officials with the Chemical Manufacturers Association, OSHA's clarification, which appeared in a notice in the June 30, 1993, Federal Register, provides little guidance to employers about which PELs willlbe enforced. See Occupational Health 6-Safety News; July 9, 1993: [6]I House and Senate Hold Hearings on Reform Legislation Hearings were held on Jktly 14, 1993, before commit- tees of the House and Senate to consider testimony relating to OSHA reform legislation (H.R. 1280; S. 575). According to press reports, most of the testimony in both chambers focused on the controversial measure that would require emplbyers with 11 or more employees to establish labor-management safety and health; committees. Dr~ J. Donald Millar, head of NIOSH',testifying before the Senate Committee on Labor and Human Resources, stated that "a great many chronic illnesses that can be caused by exposures to chemicals and agents at work,, such as asthma or cancers, are rarely recognized as occupational!" He also observed that physicians may not

4 attribute a patient's illness to a workplace exposure that occurred 10 to 20 years in the past. In the House, before which Representative William Ford's bill'i is pending, the hearing was held before the Occupational Health and Safety Subcommittee of the Committee on Education and Labor Standards. An additional hearing was scheduled for J;1ily 21, 1993, before the House subcommittee. See Daily Report fbr Executives, July 15, 1'993; SzatesNews Service, July 14, 1993; Canadu Newsiy/rre, July 13, 1993. STATE AND LOCAL GOVERNMENTS [7] ETS-Related State and Local Legislation •California On July 14, 1993, A.B. 13 reportedly was approved by the Senate Health and Hiiman Services Committee by a 7 to 1 vote. The bill originally would have prohibited smoking in all indoor workpl'aces, but the bill's sponsor~ has agreed to allow smoking in bars, convention centers, large warehouses, card rooms, bingo centers, hotel lobbies and hotel bars not connected to restau- rants. A.B. 13 must now pass two more Senate com- mittees and'then votes in the Senate and AssembNy. A.B. 13's rival, A.B. 996, has been heard in committee,, but no vote was taken to allow the bill's sponsor to~ work on amendtnents. The sponsor hopes to line up votes in preparation for the Legislature's return in August. See The San Francisco Chronicle, The Los Angeles Times, and Sacramento Bee„Julv 115, 1'993. •Connecticut OmJuly 2, 1993, Governor Lowell P. Weicker, Jr. (ACP) signed a: bill that restriccs sanoking to designated areas in any governmenr building or portion of a building,owned or leased by the State. The bill also prohibits smoking in all public elementary and highh schools and in~any place where the public conducts business. SeeH.B: 5275, Regular Session (1993) and Dai~ Labor Report, July 15, 1993. •Local Governments in Maryland Baltimore Councilman C. Vernon Gray has introduced another smoking restriction bill nearly identical to one vetoed by the County Executive on June 18, 1993. The County Executive had! told the council he would have signed the previous bill if a smokers' rights clause and a bar and tavern exemptionwere removed. The ETS/IAQ REPORT, ISSUE 52 new billl retains the bar and tavern exemption; how- ever, it deletes the smokers' rights clause. The County Executive has said that he will veto the new bill as well unless the bar and tavern exemption is deleted. Accord: ing to news reports, there is little inclination among council members to delete the exemption, despite restaurant owners' protests that the bill puts them~at a competitive disadvantage with bars and taverns. Owners of local bowling lanes have requested to be exempted also. The council is scheduled to vote on the bi11 July 22, 1993. See The Baltimore Sun; July 6, 1993. •Nebraska According to a! press report, a general ban on smoking, which went into effect on July 6, 1993, will moot a lawsuit filed byMissoula! County jailiinmates who claimed bias due to a! smoking policy which permitted' guards to smoke but banned smoking among prisoners. The inmates were reportedlyseeking,$33 million in damages. See USA Today, July 6, 1993. •New York According to a press repon„state lawmakers in New York adjourned for the summer without passing a bill that would have banned smoking in scliools: The matter will carry over, however, and legislators may consider the measure when they return to the capitol m the fal1. See Gannett News Service, July 8, 1993. •1'uerto Rico On July 15, 1993, the House of Representativess reportedly approved a! ban on, smoking in resoaurants, grocery stores, schools, theaters and public transport. The measure, which was approved by a unanimous vote„has also been approved by the Senate and has the support of Governor Pedro R'ossello: A bicameral committee willlevidentNy have to determine what fines to impose for violations of the statute as the House andl Senate versions of the measure difl-ered on this issue. Puerto Rico was once a major tobacco producer, until there was shift from agricultural to industrial develop- ment in the 1950s. SeeA:tsociated Press, July 16, 1993. N N ~ ETS-RELATED, LITIGATION AGAINST CI GARETTE IwIAN UFACTURERS ~ ~ ~ ~ [8] Butlm. Discovery Continues vA On July 19, 1993, plaintiffs took a videotaped deposition of plaintiff Burl Butler to preserve his N r

JIULY 23, 1993 testimony. The deposition was brief, lastingless than thirty minutes. Defendants did not cross-examine Mr. Butler. Defendants have noticed the continuation of the deposition of plaintiff Ava Dean Butler, Burl Butler's wife, for August 3: Plaintiffs contend'that Burl Butler, a barber from Laurel, Mississippi, developed lung cancer as a result of hi's exposure to environmentall tobacco smoke. The defendants in this case consist of the six major U.S. cigarette manufacturers and several local retailers. Butler v: RJ. Reynolds Tobacco Company, et aL (Circuit Court, Hinds County, Mississippi)' (filed October 21, 1992): [9]I lrotlr. Plaintiff Files Motion to Recuse Plaintiff has filed a motion~to recuse UIS. District Judge Robert Jbnes due to the judge's purported'bias against plaintiff. Until the motion to recuse is decided,, all other matters have been stayed. Matters pending before the court include Brown & Williamson's motion to dismiss the complaint based on failure to state a claim and plaintiffs motion for leave to amend his complaint. Frank Voth, who is incarcerated in the Oregon State Penitentiary, alleges that his civil rights have been violated as a result of his exposure to ETS. H'e claims that he has °incurred penmanent health damage and is at risk of death" as a resul't of ETS exposure. Defen- dants in 1/otbare purported to~be Forsyth Tobacco Products, R.J. Reynolds and Brown & Williamson. Voth v. Forsyth Tobacco Products, etal: (U.S. District Court, Oregon) (filed Aprili 2'7, 1993').. ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS WORKPLACE: WORKERS' COMPENSATION [10] Employer:' New York City Department of Health, 1993 WL 257343 (New York Workers' Com- pensation Board) (decided June 22, 1993): The workers' compensation board has upheld the claim of a Health Department employee who allcged that: his respiratory problems were caused by activities and reductions in ventilation related to an office 5 renovation project. The renovation took place during work hours and filled the air with dust an& noxiouss fumes from paint. Following renovation, the claimant's desk was located away from any air vents and between a high speed printer copier and a photo copier. Al- though testing conducted'by the City did not show any indoor air conditions thau would have precipitated acute illness, the board'& found that the claimant had' workplace related' allergic rhinitis, bronchitis and upper respiratory condition. WORKPLACE: CLEAN INDOOR AIR ACT [l l] Smith v. Martin, 1993 U.S.-Dist. LEXIS 8873 (U.S. District Court, Northern District, Illinois, Eastern Division) (decided June 28, 1993). A senior district court judge has denied in part andl granted in part the summary judgment motion filed by^ the defendants in~ this case, in which a: Chicago police detective claims thao his First Amendment right to free speech was violated when he was punished for speaking out about being exposed to ETS in the workplace. For; additional discussion of the case, see issue 34 of this Report, November 6, 1992: The defendants, fellow members of the Chicago Pollce Department, had sought summary judgment on the ground of qualified immunity, arguing that they were immune from suit because it was not clear in June 1991 that the point of Smith's speech wasto deal with matters of public concern„ rather than solely to im- prove his personal working conditions. The court held that the nature of the employee's speech is inadequate to insulate officials from~ a § 1!983 actiom The courti did grant the motion as to former Superiin- tend'ent of Police Leroy Martin and Lieutenant John Klein, finding that each had limited informationi about, Smith's grievance and thus could' not have violated Smith's constitutional rights by responding as they did to the information they had at the time. The court cites the U.S. Supreme Court decision in Hefling v. McKinney, 1993 U.S. LEXIS 4'2D0 (June 18, 1993), to note "parentheticalNy" that the U.S. Supreme Court has upheld a! § 1983 complaint by a prison inmate that his Eighth Amendment rights were violated by involuntary exposure to ETS. 20247OZ-3i~~

6 LEGAL ISSUES AND DEVELOPMENTS [12] "Ban Smoking in Fast-Food Restaurant, Texas Official Says," B. Scharrer, Gannett News Service, July 9, 1993 This article discusses the measures that Texas Attor- ney General Dan~ Morales has been taking to ban smoking in all fast food restaurants in the state. According to the author, the EPA Risk Assessment on ETS prompted Morales to investigate smoking policies at fast food chains and consumer complaints about such policies. In May 1'993, Morales apparently issued civil investi- gative demands, which are sirnilar to subpoenas, to 15 major fast food chains. Whataburger was the only chain refusing,to cooperate. For information about a lawsuit Morales filed against Whataburger to force the company to answer the questions posed in the de- mands, see issue 47 of this Report, May 14, 1993. El Paso Restaurant Association president Gary Hoff reportedly opposes the attorney general's campaign and'' stated that some 60 percent of the revenue for El Pasoo restaurants comes from smokers, especially in combina- tion restaurant-bars. The article concludes by reporting that Morales will meer with representatives of the fast food ind4isrry im late July or early August 1993 to negotiate a plan. A spokesperson for Morales indicated that Morales expects the industry to cooperate. [13]I "Wheelchairs at Third Base; Americans With Disabilities Act of 1990,"' LH. Rockwell, Jr., National Review, June 7, 1993 This article discusses the Americans with Disabilities Act (ADA) and observes that the National Council on Disability has recommended that the governmeno should serve those with "emerging disabilities,"' including those claiming to be adversely affected by exposure to ETS. The author of the article is critical of the ADA and believes that business will be hampered by the litigation the Act will spawn and the grox-th in government that is required to implementandlpolice it. ETS/1AQ RE.'(-7 R,T„ ISSUE 52 OTHER DEVELOPMENTS [14] Union Ratifies Agreement that Requires Smoke- free Workplace Paperworkers Locals 47 and 65 have reportedly ratified! a three-year agreement with Proctor & Gamble Paper Products in Green Bay, Wisconsin, that will require a smoke-free workplace by January 1!, 1994. The agreement also apparently permits the testing of currenr emplbyees for drug or alcohol use. See Daily, Labor Report, July 9, 1993. [15], Workplace Smoking Policies Subject of Glantz Study - According to a press report, anti-smoking,activiso Stanton Glantz has published the results of a survey about the effects of workplace smoking bans on tobacco consumption. Some 24',000'adulcs were surveyed by telephone between July 1990 and February 1991. Glantz claims that of those surveyediwho worked in businesses with nonsmoking policies, onl'y 14 percent were regular smokers off the job and they used, on average, 45 fewer packs of cigarettes annually than smokers whose emplbyers have not adoptedl smoking bans. According to Glant¢, the smoking rate among,those employed in businesses without such rules is 21 percent. He has calculated that a uniform~ ban on smoking would cut cigarette consumption by 41 percent. Glantz's report has been published in the journal Archives of Internal Medicine. See The San Francisco Chronicle, July 116, 1993. [16] Risk Assessment Provides Impetus for School Smoking Ban The Board of Trustees of the Santa Ana Unified School District has reportedly approved a bamon smoking on all property belonging to the district. An, employee committee apparently recommended the ban in light of the EPA Risk Assessment, on ETS. Approved' by a 3-2 vote, the new smoking policy provides for a ban in all district, buildings with dosed ventilation systems beginning,September 1, 1993, and a ban on all district property and for all I events sponsored by the district on January 1, 1994. Trustees opposing the ban reportedly did so because they believed the prohibition restricts people's freedom. See Los Angelts Times, July 16, 1993.