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SHOOK, I-IARDY&BACoN REPORT ON RECENIT'ETS AND IAQ DEVELOPMENTS August 6, 1993 tV ... ~ N A ~ ~ ~ SHB ~

REPORT ON RECENT ETS AND IAQ DEVELOPMENTS - IN THIS ISSUE - ;AF IN THE UNITED STATES REGULATORY AND LEGISLhTIVE IVIATTERS • Congressional activity on PRO-FEDS, Traficant and IAQAct of 1993 bills, p. 1. • Capitol Architect willldesignate house smoking site, p. 2. • ASH files another petition for emergency OSHA standard on ETS, p. 3. • Los Angeles smoking ban in restaurants takes effect after petition drive dismissed; drive organizers sue, p. 4. ETS-RELATED LITIGATION!AGAINST CIGARETTE IVIANUFACTURERS. • Latest activity in Butler and' Dunn, p. 5 ETS/IAQ LITIGATIONI NOT INVOLVING CIGARETTE MANUFACTURERS. • Frank Voth loses bid to sue prison officials, p. 6: • Two child custody decisions, Montufar and Shumaker, p. 6. LEGAL ISSUES AND DEVELOPMENTS. "The Call for State Legislation on Environ- mental Tobacco Smoke in State Prisons," p. 8~. • "Dangerous Products and Injured Bystand- ers," p. 8. SCIENTIFIC/TECHNICAL ITEMS LUNG CANCER' • "Exposure to Environmental Tobacco Smoke and Female Lung Cancer in Guaugzhou, China," p: 9.. ISSUE 53 • "Involuntary Smoking in the Restaurant Workplace," p. 10. INDOOR AIR QUALITY •"Big Air Quality Complainers - Are Their Off ce Environments Different from Workers with No Complaints?"' p. 11. IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS • Australian Health and Police ministers approve new cigarette package warning on ETS, p: 11. • Canadian government gives final'approval on cigarette package warning on ETS,, p. 12.. • Dutch parliament refuses to enforce smok- ing,ban, p. 12. ETS/IAQ Litigation~ Not Involving Cigarette Manufacturers. • Burswood trial begins in Perth,,Australia,. p. 12. OTHER' DEVELOPMENTS/MEDIA COVERAGE OTHER DEVELOPMENTS/MEDIA COVERAGE • Hong Kong Council on Smoking and Health launches new antismoking cam- ~ ~ ~ • Smokers' rights group plans march on Washington, p. 8. • Popeyes chicken franchisee bans smoking, paign, p. 113. • United Kingdom pub rescinds smoking ban,, p. 13. ~ ~ p. 8. t1: • CNN broadcast discusses discrimination for ofI the-job activities, p..9. ~ ~

- TABLE OF CONTENTS - Issue 53 August 6, 1993 Q IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS 103D CONGRESS [1] SenateAttachcs PRO-FEDS Bill'toAppropriations Bill ...........................................................1 [2] Traficant Bill Faces Challenges ....... ......................................................................................... ........................,1 [3] IAQAcoof 1993 is Approved in Senate Committee ................................................................I [4] House Subcommittee Holds Hearing,Held on Airplane lAQ ..................................................2 [5] Risk Assessment is Subject of Congressional Hearing ................... ............................................ 2 [6] Architect to Designate Smoking Area in Rayburn Building .....................................................2 U.S. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA)', [7] ASH Files New Petition For Emergency Temporary Standard on ETS .................................... 3 [8] ASH v. OSHA:,ASH! Responds to OSHA's Motion to Govern Further Proceedings ................3 [9] House Holds Hearing on OSHA Reform Legislation ..............................................................3 U.S: ENVIRONMENTAL PROTECTION AGENCY (EPA) [10] Occupational Physicians Endorse EPA Pamphlet on ETS ........................................................4 U.S. ARMED FORCES ~ [11] Navy Considers Smoking Bans ................................................................................................4 STATEAND LOCAL GOVERNMENTS [12] ETS-Relatcd State and: Local'L.egislation ..................................................................................4 ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [13] Butler.• Discovery Continues .................................................................................................... ,5 [14] Dunn: Defendants' Responses to the Complaint Due .............................................................. 5 ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS PRISON EXPOSURE CASES [15] Jensen v. Gunter, 1992 U.S. Dist. LEXIS 21603 (U.S. District Court, Nebraska): (decided June 11, 1992) .................................................................................................... ......6 RE,SIDENTIAL EXPOSURE - CHILD CUSTODY [16] Montufar v.,Navror(Superior Court, Camden, New Jersey) (decided July 22, 11993) ...............6 [17] Shumaker v. Andrews, 1992 Del. Ch. LEXIS 316 (Family Court, New Castle„Delaware) (decided December 3, 1992) .......................................................................................°........... 6 WORKPLACE: WORKERS'COMPENSATION CLAIM~ [18] Employer: Eisner Levy Pollack etc., 1993 WL 265224 (New York Workers' Compensation Board)' (decidcd'Junc 19, 1993) .......................................................................7 WORKI'LACE:.HANDICAP DISCRIMINATION;. BATTERY,.EMOTIONAL D'ISTRESS [19] Richardson v. Hennly, First Federal Savings and Loan Association v. Richardion,. A93A0680 & A93A0807 (Court of Appeals, Georgia) (decided July 15, 1993) ' .......................7 CIVIL RIGHTSVI~OLATIONS [201 Brown v. Costello, 1993 U.S_ Dist. LEXIS 10104 (U.S. District Court,. Northern District, New York) (decided July 15, 1993) ...........•...----.••••-••--•-------------••••••••-•.•-----7 CRIMINAL BATTERY [21i] I Smoker Charged with Battery after Disagreement with Hotel Clerk ........................................ 8' LEGAL ISSUES AND DEVELOPMENTS [22] 1 [23]1 "The Call for State Legislation on Environmental Tobacco Smoke in State Prisons," L.M. Galbraith-Wilson, 13 Hamline Journal ofPublic Law and Poliry:335 (1992)! ................... 8 "Dangerous Products and Injured Bystanders," R.F. Cochran+ Jr.,,Kentucky Law fournal, 81r 687-725 (1992-93) .................................................................................................... .............. 8 OTHER DEVELOPMENTS [24] Smokers' Rights Group Plans:March on Washingcon ..................... ......................................... [25] Health Service Releases Job Injury Survey ................................................................................8 [26] Fast Food Franchisee Adopts Smoking Ban .............................................................................8 [27] Smoking Bans Extend to Apartment Buildings ...............................................................•••••.•••9 [28] Mall Manager to ImplemennSmoking Bans atAll'Properties ........................................••••-••••••9 [29] A New Indoor Air Diagnostic Too]: Mold-Sniffing Dogs .............................................•.•••••••.•9

Contents Continued, Issue 53 MEDIA COVERAGE [30] "Second-Hand Scienee„"'Editorial, National Review; July 19, 1993 ......................................... 9 [31] CNN Broadcast Explores Discrimination for Ofl=the-Job Activities ........................................9 SCIENTIFIC/TECHNICAI'. ITEMS LUNG CANCER [32] "Exposure to Environmental Tobacco Smoke and Female Lung Cancer in Guangzhoui China," Y:X. Du„Q.,Cha, Y.Z. Chen, and J.M. Wu, Proceedings oflndoorAir'93 1: 511-516::1993' [See Appendix A] .......................................................................................... 9 [33] "Involuntary Smoking in the Restaurant Workplace: A Review of Employee Exposure and HealchEffeets," M. Siegel,Journalofth'eAmericanMedualAssociation - 270(4)t 490-493, 1993 [SeeR:ppendixA] ................................................................................10 RESPIRATORY DISEASES AND COND3TIONS-CHILDREN' [34] "Race and Gender Differences in Respiratorydllness Prevalence and Their Relhtionship to Environmental Exposures in Children 7 to 14 Years oFAgc," D.R. Gold, A. Romitzky, A.II Damokoshj J.H. Ware, F.E. Speizer, B.G. Ferris, and'D.W: Dockery,. American Review ofRespiratoryDisease 148: 10-18, 11993 [See Appendix A] ............................... 10 ETS EXPOSUREAND MONITORING [35] "Hair Analysis as a Marker for Fetal Exposure to Maternal Smoking," J. Klein, D. Chitayat, and G. Koren, New England Journal ofMedicine 328(1): 66-67, 1993. [See Appendix A] .................................................................................................... ................ 10 [36] "Determination ofAirbome Cadmium in Environmental Tobacco Smoke by Instrumental! Neutron Activation Analysis with a Compton Suppression System," S. Landsberger, S. Larson, and D. Wu, A'nalyticalChemistry65: 1506-1509; 1993 [See Appendix A] ................. 110[371 "Estimated'Reduction in Exposure to Environmental Tobacco Smoke Through Removing Smoking in the Workplace," A. Raynal„P.S.:Burgc, A. Robertson, M. Jarvis, M. Archibald, and D. Hawkina Proceedings oflndoorAir'93 1: 639-643, 1993 [See Appendix A] .................... 10 INDOOR AIR QUALITY [38] "Effectiveness of Ventilation and Ocher Controls in Reducing Exposure to ETS in Office Buildings," S.B. Hayward, K.-S. Liu„L. Alevantis„K. Shah;,S. Loiselle,F.J. Offermann, Y.-L. Chang; and L. Webber, Proceedings ofYndoorAir'93 5: 509-514 [See Appendix A] ........... 10: [391 '°Legionnaires' Discase: The Infective Dose Paradox," S;J. O'Brien and R.S. BhopaL The Lancet342: 5-6, 1993 [See Appendix A] ..........................................................................• 11 [40] "Big Air Quality Complainers -Are Their~Office Environments Different from Workers with No Complaints?" R.M. Tamblyn, R.I. Menzia, F. Ntines, J. Leduc, J. Paszcor, and R.T. Tamblyn, Proceedings oflndoor Air'93 1: 133-138, ,1993' [See Appendix A] I ...................... 1 it [41i], "Sensitization to Domestic Mites in a Cold Temperate Region,"' M. Wickman, S.L. Nord'vall, G. Pershagen, Jl Korsgaard, andlN. Johansens American Review of Respiratory Disease 148: 58-62, 1993'[See Appendix A] ............................................................. III STATISTICS AND RISKASSESSMENT [42] 1 "Tobacco Industry Response to a Risk Assessment of Environmental Tobacco Smoke," L.A. Bero and S.A. Glantz, Tobacco Control2: 103-1 13, 1993 [See Appendix A] ...................... Ill IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS AUSTRALIA ........... 1 i 1 [43] Ministers Meet and'Approve New Cigarette Package Warnings .................................. [44] Health Minister Wants Phase-in of Smoking,Bans ................................................................ 1l1 CANADA [I45] New Package Warnings to Indude ETS Health Effects Claims ............................................. 12 [46] Critics Say Restaurant Smoking Ban Will Threaten Jobs ....................................................... 12' NET1iER1wNDs [I47] Parliameno Refuses to Enforce Smoking,Bans ........................................................................12 TAIWAI+1 [481 PrisomSmoking,Ban Repealed ...............................................................................................,12

Contents Continued, Issue 53 ETS/L1Q LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS AUSTRAL.IA [49] Departmrnt ofOccupational Health andSafrty v. Burrwood ReJorr (ttifianagement) Ltd. (Magistrate's Court, Perth) (filed December 1992) .................................. 12 [50] Mother Ordered not to Smoke in Front of Children ............................................................. 13 LEGAL ISSUES AND DEVELOPMENTS AUSTRA[SA [51] Asthma Foundation Director Calls for Smoking Prohibitions ................................................ 13' OTHER DEVELOPMENTS CANADA [52j National Arts Centre Bans Smoking ...................................................................................... 13 HONG KONG [53] New Antismoking Campaign Launched ................................................................................13 UNITED KINGDOM [54] Smoking Ban Rescinded Afrer Business Slump ...................................................................... . 13 WORLD AIRLINE NgWS~ [55] Canada .................................................................................................... ..............................13 MEDIA COVERAGE AUSTRALIA . [5G] "When~the Censors Become Dictators," D. Hampson, Sunday Heralr[-Sum August 1, 1993 .............................................................. ........................................................ 14 APPENDIX A .................................................................................................... .................................Article Summaries

AUGUST 6, 1993 1 REPORT ON RECENT ETS AND IAQ DEVELO!PMENTS IN THE UN!ITED STATES REGULATORY AND LEGISLATIVE: IvfATTERS 103D CONGRESS [1] Senate Attaches PRO-FEDS Bill to Appropria- tions Bill On August 3, 1993, the Senate voted to add Senator Frank Lautenberg's (D-N.J.) "PRO-FEDS" (S. 262)) legislation as an amendment to the Treasury, Post Office andl Generali Government Appropriations Billi (H.R. 2403): The Senate has not yet voted on H.R. 2403 and was not expected to do so prior to adjourn, ing for its recess scheduled to begin August 6. The Congress is expected to reconvene on, September 9. The PRO-FEDS amendment, which is virtually- identical to the original bill, would restrict smoking to separately ventilated areas in, all federal buildings. The only provisions that, differ in the amendment are the addition of an exemption, for VA hospitals and the deletion of a section establishing an Environmental, Tobacco Smoke Advisory Office at EPA. For further details of the "PRO-FEDS" bill, see issue 40 of this Report, February 5; 1993. In 1992, Senator Lautenberg,was able to add! his PRO-KIDS legislation to the Labor-HHS-Education Appropriations billl The amendment was later dropped! during House and Senate negotiations. See issue 32 of this Report, October 9, 1992. [2] Traficant Bill Faces Challenges Several committees have reportedly asked that the bill introdueedi by Representative James Traficant (D- Ohio)~to ban smoking in federal buildings (H.R 881) be referred to them before it reaches the House floor. The measure was approved by the House Public Works Committee on June 17, 1993. See issue 50 of this Report, June 25, 1993. According to press reports,. Traficant recognizes that opponents of the bill are eager to land it in a hostile committee. Committees that have already expressed an interest in considering the bill indude Government Operations and Science, Space and Technology. See Congressional'Qunrterly! Weekly Report, July 17, 1993. Traficant has introduced extensions to the remarks section for the bill in the Congressional Record. Citing the EPA Risk Assessment on ETS in his remarks, he urged Congress to approve H.R 881 this year and' stated that officials from the Department of Labor testified during subcommittee hearings that the Federal Government has paid hundreds of thousands of dollars in workers'compensationdaims to nonsmoking employees who daimed they were disabled due to ETS exposure. See Congressional Record, ' E-1856 (Jluly 26, 1993). [3]I IAQAct of 1993 is Approved in Senate Committee The Indoor Air Quality Act of 1993 (S. 656); intro- duced by Senator George Mitchell (D-Me.) in March, was approved on July 30, 1993, by the Senate Environ- ment and Public Works Committee. The bill has not been assigned to any other committee; presumably, it will now go to the full Senate. For a discussion of the provi- sions of the bill as originally introd'uced, see issue 44 of this. Report, Apri12„ 1993. The bill that was approved contained an amendment introduced by Senators Mitchell, John Chaffee (R-RI.) and Joseph Lieberman (D-Conn.). The amendment would; among other matters, (i) darify the listing of indoor air contaminants and extend the time for listing from 240 days to 18' months after enactment; (ii) allow an additional six months for development of the first set of health advisories; (iii) require that any health ~ advisory be based on scientific information that has undergone peer review; (iv) delete the requirement for a new office of indoor air quality at EPA; and (v) delete the provision for the Council on Indoor Air Quality to report to Congress on the progress of indoor air quality programs. Although the bill does not provide any direct~ author- ity for EPA to regulate indoor air~ quality issues, it does

2 give the agency the authority to coordinate the develop- ment of a national' strategy for combating sick building syndrome and relatedi health complaints. Representative Joseph P. Kennedy II (D-Mass.) introduced companion House legislation in May 1993 (H.R. 1930). The House bill was referred to three House committees: Energy and Commerce; Science, Space and Technology; and Educa- tion and Labor. As of this writing, no hearings had been sclieduledi on H.R. 1930. See BNA Daily Labor Repom August 2, 1993. [4] I House Subcommittee Holds Hearing Held on Airplane IAQ On July 30; 1993, a House subcommittee conducted a hearing to consider whether reductions in fresh air supplies aboard! commerciallairliners are causing health problems„including,the spread of infectious diseases such as tuberculosis. A Uhited Airlines flight attendant who testified at the hearing said she has become more aware of air quality complaints since the 1990 bamon smoking on most domestic flights. She suggested that air quality complaints prior to the ban were disguised by the smoke. Federal'Aviation Officials and a representative of the Centers for Disease Control and Prevention testified that there is no evidence that air travel puts a person at a higher risk of contracting infectious diseases. According to Representative Tim Valentine ('D N.C.), the subcommittee chair, this investigation wass prompted by a report in The New York Times which said that airlines, to save money, are circulating less fresh air into the cabins of many airplanes. Newer aircraft~ reportedly provide half fresh air and half recirculated air that is freshened every six or sevenn minutes. Aircraft built before the mid-80's providedl cabins with 100 percent fresh air that was circulated every three minutes. Flight attendants and passengers reportedly testified during the hearing that they have suffered such prob- lems as nausea, dizziness, headaches and other ailments from breathing,the d'ry, pressurized, recirculated air in air cabins. Contaminants of concern to federal' investi- gators include high concentrations of ozone, carbon dioxide and microbiological aerosols and viruses. The hearing was before the House Subcommittee on Technology, Environment and Aviation. See The New York Times, July 26, 1993; Newsday, July 30, 1993. ETS/IAQ REPORT, ISSUE 53 [5] Risk Assessment is Subject of Congressional Hearing On July 28, 1993, a subcommittee of the House Science, Space and Technology Committee conducted a hearing on the role of risk assessment in the regula- tory process. Testifying at the hearing were representa- tives of public interest groups, including the Carnegie Commission on Science, Technology and Govern- ment, the Institute for Evaluating Health Risk and the Center for Media and Public Affairs. One of the witnesses referred to the EPA Risk Assessment on ETS and criticized the report for focusing too much on the accuracy of the number of estimated cancer cases. According to this witness, the major public health concern of the report should be the size of the population of infants and children allegedly at risk of respiratory disease. A witness for the Center for Media and Public Affairs noted that his organization recently analyzed scientific opinion vs: media coverage of environmental cancer risks and reported that some 59 percent of scientists believe the media accurately portrays the alleged cancer risk of tobacco and ETS, while 36 percent said that the media understates the purported risks. A witness for the Carnegie Commission discussed its recently released'report entitled "Risk and the Environ- ment: Improving Regulatory Decision Making,° in which the usefulness of risk analysis in setting a regulatory agenda was acknowledged. The report, however, called for the recognition of limitations on risk analysis im a democratic society. E. Donald' Elliott, a former EPA employee who was speaking for the Carnegie Commission„was critical of the current practice of communicating risk estimates as a worst case scenario and recommended that risk ranges be publicized instead to improve the legitimacy of risk assessments. [6] Architect to Designate Smoking Area in Rayburn Building According to a press report, the Architect of the Capitol is expected to designate a test site for smoking in the Rayburn Building, following the ban imposed om the House side of the Capitol by the Speaker in May 1993. See issue 47 of this Report,, May 14, 1993.. The House Building Commission reportedly decided i

AUGUST 6,1993 to analyze the demand for smoking sections by estab- lishing the Rayburn test site before spending money to construct separately-ventilated smoking sections in other House buildings. A reporter has evidently been told that staffers, since the ban took effect, have discovered numerous hiding places throughout the buildings where they can~smoke undetected. See Roll Calr; July 19, 1993. U.S. OCCUPATIONAL SAFETY AND HEALTH ADIvIINISTRATION (OSHA) . [7] ASH Files New Petition For Emergency Tempo- rary Standard on ETS On July 12, 1993, ASH filed a petition with OSHA demanding that the agency issue an emergency tempo- rary standard prohibiting smoking in all indoor workplaces. ASH points out in its petition that it last petitioned for an emergency temporary standard on ETS in 1987, and alleges that there is considerably more evidence now, including the EPA Risk Assess- menr on ETS, that ETS poses a "serious risk of cancer, heart disease, various respiratory illnesses and! other grave dangers to employees." ASH purports to link ETS exposure to lung cancer, cervicalI cancer, tumors of the brain, nasal sinus, breast, endocrine glands, and hematopoietic tissues, leukemia; lymphoma, and heart disease. The petition alleges that ETS causes 53,000 deaths eachiyear, making it the third major cause of all U.S. deaths. ASH acknowl- edges that many state and local governments andl private employers have banned smoking in the work- place, but argues "this piecemeal haphazard approach is totally unsatisfactory."' The petition also contains allegations that ventilation will not remove ETS from the workplace and that a total workplace smoking ban will be cost effective in the long run given purported savings from "health care cost containment, fire loss prevention, reduced legal costs and' even decreases inJanitorial costs." Attach- ments to the petition include the EPA report on ETS, a statement to ASH by then-candidate Bill Clintons ASH petitions to OSHA dated February 26, 1992, March 10, 1992, and July 31, 1992, and statements by former Secretary of Labor Lynn Martin and former EPA Administrator William Reilly. 3 [8]' ASH v. OSHA: ASH Responds to OSHA's Motion to Govern Further Proceedings On July 29, 1993, ASH filed a response in opposition to OSHA's request that the court continue to hold the case in abeyance. Characterizing OSHA's assertions that the Secretary of Labor has not determined whether or how to regulate ETS'in the workplace as "an insult to this Court," ASH demands that the court intervene to force OSHA to commence rulemaking on ETS. ASH observes that OSHA's request is actually a request for an indefinite stay and states in this regard that OSHAA has failed to discuss the factors set forth in General Rule 7(h) of the D.C. Circuit Court. ASH continues to cite the EPA risk assessment on ETS to support~ its claims about health risks to workers, and updates its allegations with references to the recent Congressional testimony of Administrator Carol Browner in defense of the EPA risk assessment, the Supreme Court decision in Helling v. McKinnry, 61 U.S.L.W. 4648 (U.S. 6/18/93), and a study appearing in the Journall of the American Medical Association regarding,the risk of lung cancer for waiters and bartenders exposed to ETS. ASH v: Department of f Labor, No. 92-1661 (U.S. Court of Appeals, D.C.. Circuit) (filed~ December 22, 1992.) > JAMA Study, item 33. [9] House Holds Hearing on OSHA Reform Legislation On July 29, 1993, the H'ouse Committee on Educa- tion and Labor: held a hearing on H.R. 1280, the Comprehensive Occupational Safety an& Health ReformAct. Those testifying included Thomas Donahue, secretary-treasure.r of the AFL-CIO, who reportedly told lawmakers that Congress should protect worker healtL and safety witL the same level of com- mitment that it devotes to preservation~of the environ- ment. Donahue urged the committee to approve the labor-backed OSHA reform legislation. Representatives of major employer associations, such as the National Association of Manufacturers (NAM), the Associated Builders and Contractors and the American Iron and Steel Institute, reportedly maintained their opposition ~ to the legislation as drafted, claiming it is too prescriptive to apply to diverse workplaces.

4 According to a former OSHA official who testified on behalf of NAM, the deficiencies in the reform legislation indude (i) provisions for standard setting which set time frames, mandate certain standards and allow OSHA to regulate chemical risks to a higher degree of worker protection; (ii) hazard abatement provisions whicL require immediate abatement of the most serious hazards; and (iii) criminalisanctions which subject CEOs and front-line supervisors to penalties absent any intent to injure. The July 29 hearing was the fourth of six that the committee plans to hold. See BNA Daily Labor Report, July 30, 1993. U.S. ENVIRONMENTAL PROTECTION AGENCY (ET?A) ~ [10] Occupational Physicians Endorse EPA Pamphlet on ETS The American College of Occupational and Environ- mental'Medicine (ACOEM), an organization of some 6,500 occupational and environmental' physicians, has reportedly endorsed the EPA's latest publication, What You Can D'o About Secondhand Smoke. ACOEM has apparently been~ urging federal agencies to regulate smoking im the workplace since the EPA released its Risk Assessment on ETS in January 1993. Specifically, ACOEM has reportedly asked OSHA to regulate ETS separately from other indoor air issues. See PR Newswire, July 23, 1993. U.S. ARMED FORCES. [I11] Navy Considers Smoking Bans The Navy's Surgeon General reportedly stated that creating a smoke-free Navy will take more than just ordering sailors to quit smoking. Speaking at a July 29, 1993, news conference, Vice Admiral Donald Hagen indicated that commanders have the authority to impose smoking bans on their ships. He acknowledged that total bans could create a black market for tobacco and may violate individual rights. Studies apparently indicate that some 42 percent of sailors smoke when the troops are at sea. According to Hagen, sm,oking, bans coupled with cessation programs and nicotine patches might reduce the number of smokers in the Navy. See The Arizona Republic, Jul{y 30, 1993. ETS/IAQ REPORT, ISSUE 53 STATE AND LOCAL GOVERNMENTS [12] ETS-Related State and Local Legislation •Los Angeles, California Opponents of a Los Angeles ordinance banning smoking im restaurants gathered enough signatures to force a citywide referendum and prevent the measure from taking effect as scheduled on July 26, 1993, but election officials later dismissed the petition drive after reviewing the validity of a random sample of signa- tures, and the measure took effect August 2. The next day, a coalition of restaurants and smokers reportedly sued the City Clerk, charging she improperly invali- dated the petitions. The ban,,which applies to some 7,000 ~ restaurants, was adopted June 23 by the City Council and signed by then-Mayor Tom~ Bradley. It exempts bars, nightclubs and outside dining areas only. Proponents of the measure support it by citing the EPA Risk Assessment on ETS and other reports. Opponents of the ordinance say it will cause tourists and local patrons to dine in nearby cities with more lenient smoking laws. About 96,000 signatures opposing the ban - almost twice the number needed to force a referendum - were presented to the city on July 24. The petitions were dismissed on August 2; and the ban took effect immediately. Election officials reported that they randomly sampled 4',878'signatures. Of that total, the number of valid signatures was placed at 2,082. A total of 2,624 valid signatures was needed to require a review of all signatures. But an attorney for the Hospitality Coalition, a group of restaurants and hotels, claims that nearly 1,200 signatures were wrongly invalidated, according,to aa newswire report. "We never dreamed the clerk would do something like this," the attorney was quoted as saying. "Our position is that people cannot have their signatures summarily dismissed because of errorss committed by the guy carrying the clipboard."' The battle over the ordinance has attracted national attention. This summary is based on reports from the LosAngelxs Times, National Public Radio, United Press Internationa4 The Associated Press, The Washington Post, CNNand CBS.' The reports are dated between July 21 and August 3, 1993.

AUGUST 6, 1993 In its coverage of the ordinance, the Los Angeles Times reported! that of the 56 cities and'counties across the nation that have banned smoking in restaurants, 49: of them are in California: •ather Local Governments in California San Francisco Supervisor Angela Alioto has made a proposal! to ban smoking in all workplaces, including restaurants, and at Candlestick Park. There has not been any published report of council!activity on the proposal~ since it was announced on July 19, 1993. See The San Francisco Chronicle, July 20, 1993. Meanwhile, a number of communities near Los Angeles have joined that~ city in banning smoking in restaurants and other public places. Long Beach The Long Beach City Council gave final approval'on July 28, 1993, to an ordinance banning smoking in restaurants and requiring that two-thirds of the seating in~ bars and outdoor eating areas be reserved for nonsmokers. It also makes cafeterias, bowling alleys, bingo parlors, hair salons, hotel lobbies and other public places smoke free. See LosAngeles Times, July 29; 1993. Pasadena. On July 27, by a vote of 4-2, the Pasadena City Council approved an ordinance banning smoking in restaurants. The law could go into effect as early as mid-September. Bars attached to restaurants will have a year to phase in the ban. The two councilmenwho voted against the measure have accused their colleagues of violating,the state's open-meetings law in approving the ordinance, but apparently no~formal'.challenge has been made. Press reports indicated that the release of the EPA Risk Assessment on ETS aid'ed~the passage of the law. See Los Angeles Times, July 28 and 29, 1993. Thousand Oaks and Calabasas. The Thousand Oaks City Councilihas directed''staff to draft a law that would prohibit smoking in~the workplace and other public places, and the Calabasas City Council has told its staff to prepare an ordinance banning smoking inside restaurants. The directives reportedly have been prompted by no- smoking ordinances in neighboring communities. See Los Angeles Times, July 29 and 30, 11993. •Florida The Department of Health, and Rehabilitative Servicess has reportedly proposed regulations under Florida's Clean Indoor Air Act of 1985 that would restrict smoking in shopping malls to those areas of restaurants 5 that have been designated for smoking and' have been licensed by the state. Department officials are soliciting input from those who may be opposed to such restric- tions. Comments will be received until the end of August 1993, and will be addtessed in~ public hearings scheduled by the state. See United Press Internationar;. July 29; 1993. •Local Governments in Hawaii On July 26, 1993, Honolulu Mayor Frank Fasi vetoed a bill that reportedly "would have prohibited smoking in almost all public areas in privately-ownedd commer- cial and residentiall buildings." Fasi said the measure was too restrictive and couldn't be enforced. According to one report, the City Council can vote to override the mayor's veto when it next meets, on August 11. See The Associated'Press, July 27, 1993. •Local Governments in Texas A group called Smoke-Free Dallas is preparing to present a draft ordinance to the city's Environmental Health Advisory Commission that would require restaurants, malls, hotels and workplaces to either ban! smoking or restrict~ it to separately ventilated smoking lounges. The group says it plans to present its proposal in the fall. See Dallas Morning News, July 28, 1993. ETS-RELATED LITIGATION AGAIriISTCI'GARETTE MANUFACTURERS [13] Butler. Discovery Continues On Jkily 30, 1993, plaintiffs filed a motion for protec- tive order to prevent defendants from deposing plain- tiffAva Dean~ Butler. Defendants deposed four broth, ers of plaintiff Burl Butler in late July and early August: Dan~ Buder, Pete Butler, Bill Butler, and Oscar Butler.. Plaintiffi contend that Burl Butler, a Laurel, Mississippi, barber, developed lung cancer as a result of his exposure to: environmental tobacco smoke. His wife, Ava Dean Butler, claims loss of consortium. 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, Missis- sippi) (filed October 21, 1992). [14] Dunn: Defendants' Responses to the Complaint Due Defendants are scheduled to respond to plaintiff's' complaint on Thursday, August 12, 1993.