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SHOOK, HARDY& BACON REPORT ON RECENT ETS AND IAQ DEVELOPMENTS - August 2'7, 1993 N ~ SHB C11

REPORT ON RECENT ETS AND IAQ DEVELOPMENTS - IN THIS ISSUE - IN! THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS On August 6, 1993, the last day Congress was in session prior to its summer recess, four bills were intro- duced that relate to ETS and IAQ issues: • H.R' 2919Indoor Air Qualiry Act of 1993, p. I. • H.R' 2985 Safe Cabin Air Quality Act of 1993, p. I. • H.R' 2910 Risk Communication Act of 1993, p. 3. • HR' 2937 Occupational Safety and Health Reform Act of 1993, p. 4. The 103d Congress is expected to reconvene on September 9. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS • Defendants respond to the complaint in Dunn, p. 7.. • Plaintiff files opening appeal brief in MnKinney, p. 8; ETS/IAQ LITIGATION NOT INVOLVING CiGARETTE MANUFACTURERS • Lung cancer workers' compensation claim iss decided in Hawaii, p. 8. • Justice Department declines to review Emery ADA claim for access to nightclub; Emery files new complaint seeking access to state government offices, p. 9. • Latest activities in Howell class action against the carpet industry, p. 11. ISSUE 54 LEGAL ISSUES AND DEVELOPMENTS • "Environmental Tobacco Smoke, Implica- tions for the Work Place," p. 12. •"U.S; Laws that Protect Tobacco Users from Employment Discrimination," p. 12. OTHER DEVELOPMENTS/MEDIA COVERAGE r University of Texas constructs smoking shelters, p. 13. • Maryland launches cancer awareness cam~ paign, p: 14. SCIENTI'FIC/TECI-iNICAL ITEMS • Two upcoming meetings, p. 14. • "The Nicotine Content of Common Vegetables," p. 14. • "Indoor Air Quality: Exploring Policy Options to Reduce Human Exposures," p. 164 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS • Legislative activity in~Australia„Canada,. Finland, Singapore and the United King- dom„ p. 17. ETS LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS • Burswood trial in Australia ends; decision expected in mid-September,, p. 18. OTHER DEVELOPMENTS/MEDIA COVERAGE • Woodward says Australia ASH should be dissolved, p. 18: • Nordic Cancer Union hosts conference on. ETS and children, p. 19., • Thailand monks implement smoking bans, p. 19.

- TABLE OF CONTENTS - Issue 54 August 27, 1993 IN THE UNITED STATES REGULATORYAND LEGISLATIVE MATTERS 1U3D CONGRESS [1] Kennedy Introduces New IAQ Billiin House;Sena-te IAQ Bill Attracts Support from Carpet Institute .................................................................................................... .......... 1 [2] Legislation Introduced on Aircrafi IAQ ................................................................................... 1 [3] Appropriations Bill with PRO-FEDS Amendment Approved' by Senate .................................. 2 [4] Justice Ginsburg Gives Opinion About Smoking and Health .................................................. 2 U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) [5] ETS Risk Assessment Litigation: Briefing Schedule Established for Motion to Dismiss ........... 2 [G] Bill to Enhance EPA Credibility Introduced; House Subcommittee Holds Hearings on EPA Risk Assessment Policies .............................................................................. 3 [7] Audit Points to Lack of Focus and Insufficient Funding .......................................................... 3 [8] Editorial by Rep. Durbin Appears in Tobacco Control .............................................................. 3 [9] "Statisticians,Occupy Front Lines In Battle Over Passive Smoking," Jl Bishop, Wall StrcetJourna4 'July 28, 1993 ............................................................................ 4 U.S: OCCUPATIONAL SAFETY AND HEALTH AGENCY(OSHA)~ [10] House Republicans Introduce OSHA Reform Legislation ....................................................... 4 [11] Task Force Ready to Forward Reporron Rcform Legislation ..................................................5 [12] Unions Seek TB Workplace Standard ..................................................................................... 5 [131 Court Holds Hearing in Case Againso Maryland OSHA ......................................................... 9 STATE. AND LoCAL GoVERNMENTs [14] Florida Mall Seeks Hearing on Smoking Ban ..........................................................................,6 [151 ETS-Relatcd~ Sute and Local Legislative Activities .............................................................•..-•.6 ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [16] Dunn: Defendants Respond to Complaint .............................................................................. 7 [17] McKinnay:,PlaintiffFilts Opening Appeal Bricf ....................................................................... 8 [18] Voth: Wrinof'Mandamus Filed ................................................................................................,8 ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS WORICPLACE:'. WORKERS' COMPENSATION[1911 Imamura v. City d County ofHonolulu, Case No. 29208149 (Hawaii Department of Labor and Industrial Relations, Disability Compensation Division) (decided March 12, 1993) ..............._......................................................................._............ .. 8 AMERIC.ANS.VVITH DISABILITIES ACT (ADA). [20] Emery v. Caravan ofDrramt(U:S. Department of Justice) (filed April 12, 1993) ................ 9 RESIDENTIAL.EXPOSURE - ADUI.Ts [21] Billing v. TaylorManagrtncnt, Inc. (Circuit Court, Chesapeake County„ Virginia) (decided August 3, 1993) .................................................................................................... .... 9 MENTAL HEALTH1 FACILITY: RIGHT TO SMOKE [22] Warren v. DcpartmantofMental'Health(Middlesex Superior Court, Connecticut) (filed July21, 11993) ..............................................................................•--•---............. ....._..._....9 WoRIQ'IACE: WRONGFUL TERMINATION [23] Ellir v. Gelton's Markets, 1993 U.S. App. LEXIS 20195 (U! S, Court of Appeals, Ninth Circuit)' (decided July 29, 1993) ................................................................................. 10 WORIQ'U+CE: MuLTIPLE CHEMICAL SENsITNITY[24] .Shelson v.' Shalala; 1993 U.S. Dist. LEXIS 1Q448 (U.S. Districo Court, Northern District. Illinois„Eastern Division) (decided July 27, 1993) ................................... 10 WoRKPUCE: COLIEGTIVEBARGAINING~ [25] YHA Inc. v. Narionallabor Relationt Board 1993 U.S. App. LE)QS 20396 (U.S. Courn of Appealt, Sixth Circuit) (decided August 1' 1, 1993) ........................................ 10 [26] United Paptrurorkrri Int7 [9nion-lacal286 v. H,S. Crocker Co., Inc., 1993 UiS. Dist. LEXIS 11432 (U.S. District Court. Eastern District, Pennsylvania): (decided August 13, 1993) .................................................................................................... 11

Contents Continued, Issue 54 PRISONER CASES [27] Hunt v. Reynoldr, 1993 U.S. App. I_EXIS 20701 (U.S. Court ofAppeals, Sixth Circuit) (decided August 13, 1993) .................................................................................................... 11 [28] Smith v. Scott, 1993 U.S. App. LEXIS 20796 (U.S. Court of Appcals, Sixth Circuit), (decided August 16, 1993) .................................................................................................... 1 I IAQ:'. CARPET EM:ISSIONS~ [29], Howell v. Shaw Industries, Inc, 93-CV-2068 (U.S. DistricrCourt, Eastern District, Pennsylvania) (filed April 19, 1993) ...................................................................................... 11 LEGAL ISSUES AND DEVELOPMENTS .................... 1 [301'. Tobacco Products Liability Project (TPLP) Announces Conference .................. [31iJ'i "'No Smoking Please.' A Proposal for Recognition of Non-Smokcrs' Rights Through Tort Law," Cindy Pressman (Student Author)+ 10 NYL.S Journal ofHuman Rights595 (1993), ...................................................................................... 12 [32] "EnvironmentaliTobaccoSmoke: Implications for the Work Place ° A. Maskin, A. Connolly, and E. Noonan, Product Liability InternationaL. July 1993 ............................... 12 [33] "FederaliService Labor and Employment Law," ABA Federal Service Labor and Employment Law Committee, 8 Labor Law 495 (Summer 1992) .................................. 12 [34] I "U.S.,Laws that Protect Tobacco Users ftom Employment Discrimination," J. Malouff, J. Slade, C. Nielsen, N: Schutte, E. Lawson, Tobacco Contro4 Summer 1993 ...... 12 [35]1 Asbestos Symposium Calculates Risks ..........................................._...................................... 12 OTHER DEVELOPMENTS University'of Texas Provides Outdoor Smoking Facilities ..................................................... 13 Texas Poll Said to Support Restaurant Smoking Ban ............................................................. 13 Insurers Cut Rates for Employers with Nonsmoking Policies ................................................ 13 Berkeley Businessman Proposes "Smoke-easy"'to Counter Restaurant Smoking Bans ........... 13 "Going Smoke-Frce: More Malls Joining in Bans on Tobacco„" Tfie New York Times, August 2, 1993 .................................................................................... 13 [411 Media Campaign Targets ETS .............................................................................................. 14 SCIENTIFIC/TECI-INICAL ITEMS UPCOMING MEETINGS [42] "Indoor Air Quality in Asia," Beijing IntcrnationaliConfcrcncc Centre, Beijing, China, October 18-20: 1994 ....................................................................................,14 [43] "Analyzing Risks: Science, Assessment an&Management," Harvard School of Public H,calth, September 28 - October 1, 1993 ................................................................... 14 OTHER HEALTH ISSUES [44] "Univariate Genetic Analysis of Oxygen Transport Regulation in Children: The Medical College of Virginia Twin Study„" W.B. Moskowi¢, M. Ivlostelltr, J.K. Hewitt, L.JL Eaves, W.E. Nance, and R.M. Schicken„Pediatru Research 33(6): 645-648. 1993 [See Appendix A] ................................................................................ 14 ETS EXPOSURE AND MONITORING [45] "The Nicotine ContcntofCommon Vegetables," E.F. Domino, E. Hbrnbach, and T. Demana, The Lancet 329(6): 437, 1993 [See Appendix A] ......................................... 14 [46] "Maternal Smoking Induced Cotininc Levels and Genotoxicity in Second Trimester Amniotic Fluid," J. Lahdeticq K. Engstrom, K. Husgafircl~Pursiaincn, L. Nylund, H. Vainio„and'M. Sorsa, Mutation Research 300: 37-43, 1993 [See Appendix A] ................. 15 [47] "Effects of Itttcrchamber Mixing, Ventilation and Filtration on Lung Dose from Environmental Tobacco Smoke Particles," S. Miller-Leiden, A. Wadhera„ and W.W. NazarofT , Aroceedings oflrtdoorAir'93 6: 509 -514, 1993 [See Appendix A] ......... 15

Contents Continued, Issue 54 INDOOR AIR QUALITY [48]' "Assessment of Ambient Volatile Hiydrocarbons from Tobacco Smoke and from Vehide Emissions," G. Barrefors and G. Petersson, Journal ofChromatography 643: 71-76, 1993 [See Appendix A] ...................................................................................... 15 [49] 1 "'Mucosallrritation and Thermal Comfort Among Occupants of an OfFiee Building;" H.I. Hall, B.P. L.eaderer, W.S. Cain, and A.T. Fidler,,Environtnrnt Intmtationa119: 253-259, 1993 [See Appendix A] .......................................................................................... 15 [50] "Effects of Restrictive Smoking Policies on Indoor Air Quality and Sick Building Syndrome: A Study of 27 Air-Conditioned Offices," A. Hedgc„W:A. Erickson, and G. Rubin, Proceedings oflndoorAir 93 1: 517-522„ 1993 [See Appendix A] I .................. 15 [51] Letters to the Editor Regarding,"The Effect of Varying Lcvels of Outd'oor-Air Supply on the Symptoms of Sick Building Syndrome," R. Menzies, R.,Tamblyn, J.-P. Fannt, J. Hanley, F. Nunes„and R. Tamblyn, - 1Vtw EngfandJournal ofMrdiciret 328: 821-827. 1993 .......................................................... 15 [52] "Indoor Air Quality: Exploring Policy Options to Reduce Human Exposures," K. Teichman, Proceedings oflndoorAir 93 3: 3-19, 1993 [See Appendix A] .......................•-• 16 SMOIQNG POLICIES AND RELATED ISSUES [53] "The Effects of a Hospital Smoking Ban on Employee Smoking Behaviour and Participation in Different Types of Smoking Cessation Programmes," H.RL Waranch, W.K. Wohlgcmuth„D.A. Hantula, R. Goraycb, and FA. Stillman, Tob'acco Controt 2: 120-126, 1993 [See Appendix A] ............................................................. 16 IN EUROI'E & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS AuszRAl.rA ........................... [54] Senate PresidenoAskedAbout Smoking,in Parliament House .................... 17 CANADA (55] Ottawa Council Committee Recommends Study of Smoking in Outdoor FaciGtiu .............. 17 FINLAND [56] Parliament to Consider Government Proposal Restricting Smoking...................................... 17 SINGAPORE ............................................ 1 [57] Government Imposes New Restrictions on Smoking ................. UNITED KINGDOM~ [58]1 Department of Health Institutes Warning Regulations ......................................................... 17 ETS LITIGATION'INVOLVING CIGARETTE MANUFACTURERS [59] TIA v. Stephen Woodward{Supreme Court, Equity Division, New South Wales) (filed April 15, 1993), .................................................................................................... ........ 18 ETS LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS AusTRw1..IA [60] Departmcnt of Occupational Health and Safety v. Burtwood Resort (Management) Ltd. (Magistrate's Court, Perth) (filed' Dccembcr 1992): ............................................................... 18' OTHER DEVELOPMENTS AusTwalA [61] [62] [63] JAPAN [641 NoxwAv Action on Smoking and Health May bc Dissolved ................................................................ 18 New Edition of Smokefrce Dining Guide Released ............................................................... 18 Quit Week Launchedlin Launceston ..................................................................................... 19. Osaka Airpoa to Restrict Smoking ........................................................................................ 19 [65] Nordic Cancer Union to Conduct Conference on ETS and Children ................................... 19 lV THAILAND ~ [66] Monks Initiate Antismoking Campaigns ............................................................................... 19 ~ MEDIA COVERAGE JAPAN [67] "Law Stifles Antismoking Moves," Jiji Press Ticker Service, August 6, 1993 ........................... 19 ~ APPENDIJC A .................................................................................................... ............................... Anide Summaries ~ ~

AUGUST 27„ 1993 1 REPORT ON RECENT ETS AND IAQ DEVELOPMENTS IN! THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS 103D CONGRESS [1]I Kennedy Introduces New IAQBiII in House; Senate IAQ Bill Attracts Support from Carpet Institute On August 6, 1993, Representative Joseph Kennedy II' (ID-Mass.) introduced'a new indoor air quality bill (H.R. 2919) i which supersedes the bill' Kennedy introduced in April 1993. The latest proposal would require the EPA to promulgate guidelines for identifying and eliminating constituents of indoor air that are hazardous. Compliance wit;h, the guidelines would be voluntary. The EPA would also be required to disseminate public health advisories about "indoor air pollutants." There is no reference to specific "pollutant°° sources. Rather, the bill defines "indoor air hazards" as "a level of indoor air polllttants, or a condition that may result in a level of indoor air pollutants, that may be reason- ably anticipated to adverseNy affect human health." Such conditions may include inadequate ventilation, intake of contaminated' ambient air, microbial con- tamination, and' indoor chemical sources. An "indoor air pollutant" is defined as "any substance or biological organism which is emitted or otherwise enters air other than ambient air."' In a departure from IAQ legislation previously intro- duced by Representative Kennedy, the measure does not authorize the appropriation of any specific sum to carry out its mandate_ The bill Kennedy introduced in April called for $47 million in spending over five years to fund indoor air research and other projects. According to a press report, Kennedy also deleted provisions included in the previous bill that would have mandated action by agencies other than EPA. These provisions apparently were deleted to make sure the new bill would fall under the sole jurisdiction of the House Energy and Commerce Committee. The previous bill had been mired in a total of three com- mittees, none of which had'' held a hearing on the measure. For a discussion of the previously introduced Indoor Air Act of 1993 (H.R 1930), see issue 47 of this Report, May 14, 1993. Meanwhile, the Carpet and Rug Institute (CRI) reportedly has announced its full support of the Indoor Air Quality Act of 1993 pending in the Senate (S. 656). The president of CRI stated, "The Act requires that sound, peer-reviewed science be used to identify specific indoor air contaminants. Congress recognizes, as we do, that we can help consumers understand indoor air quality and how proper ventilation improves the indoor environment." The bill, which was introduced'~by Senator George Mitchell (D-Me.); was approved by the Senate Envi- ronment and Public Works Committee on July 30. See issue 53 of this Report, August 6, 1993. Essentially a research bill, the measure would require the EPA to establish a national research program to study indoor air quality and its effects on human health, and to create a plan to reduce human exposure to those constituents of indoor air that pose a health hazard. The CRI president acknowledged that carpeting can constitute "to a very small degree" an ind'oor air pollution source. He observed'~ that the carpet industry is working aggressively to reduce carpet emissions through expanded libeling and testing programs. See PR Newswire, August 16, 1993; BNA Washingzbn Inslder, August 13, 1993. > Update on carpet emiisions IAwsuit. Rem 29: [2] Legislation Introduced on Aircraft IAQ ~ ~ On August 6, 1993, Representative Jerrold Nadler (D-N.Y.): introduced the Safe Cabin Air Quality Act of 94 1993 (H.R 2985) on behalf of himself and Oregon ~ Representative Peter DeFazio (D): The bill would ~ ~ require the administrator of the FederalAviation ~ Administration to issue regulations mandating (i) ~ ~

2 ventilation providing 20 cfm of fresh air per person in commercial aircraft cabins, (ii) a change of air filters when necessary, (iii) maintenance of a minimum standard of humidity, and (iv) the monitoring of ozone levels. The bill would also require the establishment of a toll free telephone number for reporting air travel related illnesses, and a quarterly report to Congress of the number and types of calls received. In introducing the measure, N'adler observed, "Now that the flying public no longer needs to be concerned about suffering the effects of secondhand smoke on short domestic flights, the airlines are creating a new problem for their passengers by restricting the amount of fresh air inl the cabins of many new aircraft." The congressman referred to complaints by flight atten. dants and passengers about dizziness, dry eyes and contraction of contagious diseases. Nadler's bill has beenl referred to the Committee on Public Works and Transportation. According,to a press report, the Centers for Disease Control and Prevention are investigating the possible transmission of tuberculosis aboard airplanes in four. cases. In addition, the union that represents flight attendants is reportedly pushing a proposal'! that would! require OSHA to set airline cabin air quality standards. See Chicago Tribune, August 8, 1993.. [3] Appropriations Bill with PRO-FEDS Amend- ment Approved by Senate On August 3, 1993, the Senate approved the appro- priations billl (H.R. 2403) which had added Senator Frank Lautenberg's (D-N.J.) PRO-FEDS legislation by amendment. The measure was sent to a conference committee and conferees were appointed by voice vote. The matter will be considered whenl Congress recon- venes in September 1993. The PRO-FEDS legislation would restrict smoking in alll federal buildings to separately ventilated areas. Although no similar provisions are contained in the House version of the appropriations bill, the House has gone further than the Senate in restricting smoking in its own chambers and offices. Senate supporters of a government-wide ban are said to be cautiously optimis- tic that the House will go along with the amendment. See The Washington Post, August 4, 1993. ETS/IAQ REPORT, ISSUE 54 [4] Justice Ginsburg Gives Opinion About Smoking and Health According to a press report, U.S. Supreme Court Justice Ruth Bader Ginsburg was asked during her confirmation hearing before the Senate Judiciary Committee whether the Constitution requires the government to subsidize pro-smoking,campaigns to the same extent as anti-smoking campaigns. Ginsburg responded, "This is a question of safety and health, and I think the government can fund anti-smoking cam- paigns and it is not required to equally fund people who want to put their health and the health of others at risk." See Associated Press, July 23, 1993. U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) [5] ETS Risk Assessment Litigatiore Briefing Sched- ule Established for Motion to Dismiss September 20, 1993, is the current deadline for plaintiffs to respondl to the EPA's motion to dismiss, according to a briefing schedule agreed to by the parties and ordered by the court. EPA's reply brief is due on October 20. For so long as the motion to dismiss is pending and the parties' only activity in the case is the briefing of the motion, the time for EPA to reply to plaintiffs' pending Requests for Admission is stayed. EPA'smotion to dismiss, filed inlJiuly, contends that the court has no jurisdiction over the subject matter of this action.and that plaintiEfs failed to state a claiml upon which relief can be grante& See issue 52 of this Report, July 23, 1993. Plaintiffs seek a declaration that the EPA Risk Assessment on ETS is null and void. Plaintiffs charge EPA with exceeding its statutory authority in conduct- ing the risk assessment, using faulty science and improper scientific conclusions in classifying ETS as a Group A carcinogen, failing to follbw its own risk assessment guidelines and violating due process. The six plaintiffs consist of three organizations related to tobacco growers, two cigarette manufacturers, and one cigarette vending machine operator. Flue-cured Tobacco Cooperative StabiAzation Corporation, et alt v EPA, No. 6:93CV370 (U:S: District Court, Middle District, North Carolina) (filed June 22, 1993). N

AUGUST 27, 1993 [6] Bill to Enhance EPA Credibility Introduced; House Subcommittee Holds Hearings on EPA Risk Assessment Policies On August 6, 1993, Representative Carlos Moorhead (R-Cal. )1 inuoduced a measure that would require the EPA Administrator to apply a series of principles designed to assure that risk assessments are "scientifically objective and inclusive of all relevant data." The "Risk Communi- cation Act of 1993"' (H.R 2910) would apply to all risk assessments prepared under the auspices of the EPA. The "principles" to be applied require the Adminis- trator: (ii) to explicitly distinguish scientific findings from other considerations affecting the design and'& choice of regulatory strategies; (ii) to consider both positive and negative laboratory or epidemiologic data and to discuss possible reconciliation of conflicting information; and (iii) to provide an explanation where the risk assessment process involves the selection of any significant assumptions, inferences or models and to identify any policy or value judgments. The measure also provides principles for the charac- terization of risk in any risk assessment document, including a statement of the reasonable range of scientific uncertainty associated with any estimation of risk. Within two years after the date of enactment, the EPA Administrator would be required to review and revise any risk assessment already made by EPA when new information becomes available which would significantly alter prior results. The bill has been referred to the House Committees on Energy and' Commerce, and Science, Space and Technology. In other activities relating to risk assessment, a hearing was recently held before a House subcommit- tee. Witnesses reportedly suggested that EPA risk assessment policies be revised. Surveys of scientists and the media apparently revealed that the science of risk does not necessarily correlate with public perception of risk For example, scientists consider tobacco, diet, excessive exposure to sunlight, ETS and workplace chemicals to be the most potent carcinogens. The media, however, in communicating information about cancer to the public, has apparently focused upon manmade chemicals, food additives, pollution, radia- tion, pesticides and hormone treatments. According to one subcommittee witness, the failure of the media to convey expert assessments of risk to the 3 public can have broad policy implications. Althoug6 the EPA reportedly considers indoor air pollution to be among the top four environmental risks to health, the issue ranks near, the bottom of budgetary priorities. Former general counsel' to the EPA Donald Elliott stated'during the hearing that the policy agenda will not be reordered until risk communication is im- proved. He recommended that risk assessment be presented as a range, rather than as a fixed figure. Other recommendations made to the subcommittee included a proposal that an executive office develop broad policy considerations, that regulatory agencies develop the details of policy implementation and that a coordinating committee of environmental andd risk- regulated regulatory agencies be formed. See Indoor Pollution News, August 6, 1993. [7] Audit Points to Lackk of Focus and Insufficient Funding An article appearing in Government Executive dis- cusses shortcomings of the EPA that it says will not be solved by elevating it to Cabinet level status. According to an audit of the agency by a Washington-based environmental think tank, the EPA is in crisis because it has been called upon to administer too many complex laws and lacks adequate funding. Critics of the agency also observe that EPA programs have tended to develop independently, resulting in a fragmented approach to environmental issues and problems. Discussing the difficulties EPA has in keeping up with science, the article notes that its researcL and development budget has not grown adequately over the years. "EPA's scientific deficiencies also undermine its credibility," the article states, "prompting many accused polluters to sue. More than 600 lawsuits are pending against the agency." See GovernmentFxecutrve; July 11993. [8] Editorial by Rep. Durbin Appears in Tobacco Control This editorial, written by Representative Richard Durbin (D-Ill.)„excoriates the tobacco industry for what Durbin refers to as diversionary tactics, misinfor- mation campaigns and false claims regarding,stnoking and health issues. The editorial leads off with a refer- ence to the EPA Risk Assessment on ETS, which

4 Durbin says was applauded by the scientific and health communities "because its conclusions were fully supported' by the evidence." Also discussed in the editorial'iare Durbin's campaign to ban smoking on domestic air flights, the purporte& "special projects"'research conducted by the Council for Tobacco Research, Judge Sarokin's opinion~ in Haines v. Liggett Group, and a report by Bero and Glantz which appears in the same issue of Tobacco Control and which contend's that the tobacco industry has cited few peer-reviewed studies in attempting to refute the findings of the ETS risk assessment. The Bero and Glantz report is summarized in issue 53 of this R'eports August 6, 1993. Durbin is particuiarly concerned with tobacco industry daims that total indoor air quality issues must be addressed in the debate over ETS, and he states that~ the industry has argued "falsely, that a smoking,ban would be ineffective in improving air quality [on airplanesJ unless the hazards associated with other air: pollutants were addressed first." Durbin conclrides,,"Ihope the American public will recognise the pattern and put as much faith in the tobacco industry's claims about ETS as it has put in~ the industry's claims about tobacco use." See Tobacco Control, Summer 1993. Durbin is the principal sponsor of the "PRO-KIDS" smoking restriction~ legislation currently pending in the House. (H.R 710) [9] "Statisticians Occupy Front Lines Iln Battle Over Passive Smoking," J. Bishop, Wall Street four- nai, July 28, 1993 This article discusses the lawsuit filed against the EPA by tobacco interests and' analyzes the controversy over the EPA's use of a 90 percent confidence interval in its Risk Assessment on ETS. The author observes that the validity of the ETS risk assessment is of concern to those with the authority to adopt smoking policies on the state, local and even~individual levels. Scientists on both sides of the issue are quoted, and the author characterizes the coming courtroom battle as a "calcu- lator-a-calculator" confrontation where statisticians "will present a series of arcane arguments about how much these unknowns affect the study's reliabiliry."' An EPA consultant, interviewed for the artide, observes that the 95 percent confidence interval was ETSIdAQ REPORT, ISSUE 54 not used in~ the ETS risk assessment precisely because it would have hinted that passive smoking actually reduces the risk of lung cancer. Such a hint would be meaningless and confusing because, according to the consultant, it is inconceivable that breathing in smoke containing "brown cancer-causing substances" could be health. He claims "[t)he confidence interval isn't a substantive issue." The tobacco industry's focus on it "is just to confuse the public." U.S. OCCUPATIONAL SAFETY AND HEALTH AGENCY (OSH.A) [10j House Republicans Introduce OSHA Reform Legislation Citing the need to reduce unnecessary governmental interference in job safety issues, House Republicans .William Goodling (Pa.) and Harris Fawell (Ill.)) introduced their~ version of OSHA reform legislation onAugust 6, 1993. (H.R. 2937) The Republican measure, based largely on~ a proposal outlined: in May 1992 by the late Rep. Paul'i Henry (R- Mich.); would expand federal occupational'safery and health laws to cover Congress and'stateand local governments. It would also establish a single set of legal criteria for~ OSHA to consider in promulgating safety or health standards and would provide a partial exemption from OSHA inspections for those employ- ers who have an on-site compliance officer orhave an exemplary safety record. The bill would establish certain employer defenses to OSHA citations and would focus OSHA attention on the most~ hazardous industries and on those employers where most harm to employee health and safety has occurred. The bill would require OSHA to increase spending on educa- tional, training and technical assistance programs, and would require the establishment of an award program to recognize exemplary programs in occupational safety and health. House Republicans are reportedlyseeking,hearings on the measure that would be separate from hearings on the OSHA reform legislation introduced earl[er this year by House Democrats (H.R. 1280), but a Demo- cratic source has been quoted as saying that separate hearings are unlikely as a hearing on Henry's proposal was conducted during the last Congress. See BNA Daily Labor Report, August 10, 1993.

AUGUST 27, 1993 [11] Task Force Ready to Forward Report on Reform Legislation According to a press report, the Labor Department task force which has been studying proposed OSHA reform legislation (H.R. 1280, S. 575) still expects to forward its final report to Labor Secretary Robert Reich in September 1993. The task force was apparently set up following Reich's testimony before the House Education and Labor Committee in April of this year. Task force members are from several government agencies and have formed eight subgroups to review different issues raised' by the proposed legislation. Meetings to gather the opinion of interested organiza- tions were reportedly held during the summer. Some 22 sessions in all were held. According to sources within the Labor Department, it is presently undear whether the final'. report to Reich will contain specific recommenda- tions for the department's position on the legislation or whether it will present a series of flexible options for 5 OSHA reportedly acknowledged receipt of what it characterized as a petition, but has not as yet re- sponded. According to an OSHA spokesperson, a TB guidance memorandum is currently being,worked' on, but it has not been released because the agency still has no administrator. The coalition apparently sent a similar proposal to the CDC and requeste& that both CDC and OSHA immediately issue a joint advisory notice on protectionn from TB. The CDC reportedly adopted guidelines for preventing the transmission of TB in health care settings in 1990. Other groups, such as the American Nurses Associa- tion (ANA), apparently favor a different approach, i.e., extensive worker education as an immediate remedy for employees at risk of contracting TB. According to the ANA, the effectiveness of any guidelines will depend upon early detection of the disease and effective treatment. See OSHA Week, August 16, 1993. addressing the Democratic-sponsored proposals. See Daily [13] Court Holds Hearing in Case Against Maryland Report for Fxerutives; August 18; 1993. OSHA [12] Uhions Seek TB Workplace Standard Five labor unions filed a petition with OSHA on August 25, 1993, to request that the agency develop a tuberculosis standard. The unions are apparently concerned about the 20 percent increase in TB cases since 1985, which they say poses a threat to millions of employees in the workplace, particularly due to the emergence of a drug-resistant strain of TB. The safety of workers in the health care, social service and crimi- nal justice fields are apparently of greatest concern. A survey of the Centers for Disease Control and preven, tion (CDC) purportedly shows that TB has been transmitted to workers in 13 percent of all hospitals. According to a press report, the petition seeks an exposure control plan that includes engineering controls such as improved ventilation, changes in work practices, use of personal protective equipment by workers and medical surveillance such as TB testing. See Associated Press, August 25, 1993. An outline for a proposed standard to protect em- ployees from tuberculosis in the workplace, developed by the union coalition, was previously sent to OSHA on December 21, 1992. The plan apparently indudes much of California's proposed workplace TB standard. At a hearing on pre-trial motions held on August 20, 1993, Circuit Court Judge William McCullough reportedly indicate& from the bench that he was indined to dismiss this action, inwhich employees of three Maryland business establishments seek to force the Maryland Occupational Safety and Health Agency (MOSHA)! to ban smoking in private workplaces. However, the judge did not issue a ruling on the merits of the defendants' motion for summary judgment, saying he would take it under advisement. He di& rule, however, against a request to join thelawsuit that had been filed anonymously by racetrack employees. The judge apparently agreed with the assistant attorney general who argued that racetracks and business offices present "two different cases." See Prince George's Journa4 August 23, 1993. The named plaintiff in the case, Albert Ertel, works for General Electric in Rockville. GE offices are now smoke- free under an order issued by the corporation in January 1993, but Ertel apparently argues that his employer should be fined because it previously exposed workers to a "recognized hazard." The unnamed plaintifis, whose attempts to intervene were denied, reportedly work for Rosecroft Raceway and Laurd Race Course. Spokesper- sons for those establishments had said that they are

6 protecting nonsmokers by designating smoking areas in the dubhouse and would not impose total smoking bans unless ordered by the courn Mary' land's occupational safety and health plan was approved by the U.S. Secretary of Labor in 1973; thus, federal occupational safety and health laws are pre- empted in the state. Evidently, the complaint alleges that MOSHA standards require private employers to provide a workplace that is "free from each recognized hazard that is causing or likely to cause death or serious physical harm to the employee." The complaint also reportedly contends that'°tobacco smoke is a recog- nized hazard to those who do not themselves partake of tobacco," and that 928 nonsmokers die each year in Maryland due to ETS exposure. A state assistant attorney general reportedly said thao MOSHA examined each of the three workplaces and found no evidence of violations of MOSHA policies. MOSHA also apparently determined that there was insufficient evidence of a health hazard to warrant a: citatiom MOSHA is defending the case on the ground that the courts can only order MOSHA to investigate charges but cannot order it to make specific findings.. Ertel v. Maryland Occupational Safety and Health Agency, CAL 93-000-73 (Prince George's County Circuit Court) (filed 1992). See Prince George'sJournaZ August 5, 1993; The Baltimore Sun, August 20, 1993. STATE AND LOCAL GOVERN1vIENTS [14] Florida Mall Seeks Hearing on Smoking Ban The manager of a Palm Beach County mall has reportedly asked for a public hearing on the state's plam to ban smoking in the common areas of indoorshopping malls. Although the 1992 Clean Indoor Air Act does not specifically mention malls among those venues where smoking will be regulated, the Depart- ment of Health and Rehabilitative Services has appar ently interpreted the Act's definition of "public places" to include shopping malls. A hearing willl be held in Tallahassee on August 30, 1993, and if a formal challenge to the Department's regulations follows,, implementation of the regulations will be delayed while the case goes before a state hearing officer. Ste Miami Hcralez;' August 19, 1993. ETS/IAQ REPORT, ISSUE 54 [I15] ETS-Related State and Local Legislative Activities • California On August 19, 1993, A.B. 13 was reported from the Senate Committee on Judiciary with author's amend- ments. The bill was read a second time and amended, then ~ re-referred to committee. As the bill stands now, it has been amended to allow smoking in bars, conven- tion centers, large warehouses, card rooms, bingo centers, hotel lobbies and hotel, bars not connected to restaurants. Meanwhile, a competing bill, A.B. 996, was pulled from consideration by its sponsor, Assemblyman Curtis Tucker, Jr. (D-Ingiewood), because of a lack of votes. Tucker's bill not only would! have invalidated Los Angeles' restaurant smoking ban, but also would have allowed most, business owners to set their own smoking policies. Withdrawal of Tucker's bill could prove to be temporary as provisions of it could resurface in the final hours of the session as an amendment to other legislations or the billl could be revived next year. See The San Diego Union-Tribune, July 24, 1993, and Los Angeles Times, August 19, 1993. 0 Local Governments in California Huntington Beach. According to news reports, on August 3, 1993, the City Council approved an ordi} nance that will prohibit smoking in alllrestaurants by January 1, 1995. The ordinance takes effect September 1, 1993, and will require restaurant owners to set aside 75 percent of their space for nonsmokers until the full ban takes effect. Huntington Beach officials were reportedly concerned about reports of the alleged effects of ETS exposure. Set Orange County Register,. July 17, 1993, and LosAngeles Times, August 4, 1993. Marin County. The County Board of Supervisors passed an ordinance that will go into effect in January 1994 that will prohibit smoking in county buildings and most public places. Bars that are not attached to restaurants are excluded. See The San Francisco Chroniclt, August 18, 1993. Santa Clarita. The City Council is expected to debate a proposed ordinance to prohibit smoking in endosed workplaces as well as restaurants. According to the news report, if the ordinance becomes law, Santa Clarita would become the 49th municipality in California and the third in Los Angeles County to impose such a broad ban. "We

AUGUST 27; 1993 have facts, undispute& reports showing that there is no safe level of secondhand smoke," an organizer of the antismoking drive is quoted as saying. See Los Angeles Times, August 17, 1993. • Local Governments in Colorado Denver. According to news reports, Denver is consider- ing two antismoking bills. Councilwoman Kathy Reynolds introduced a bill to compete with one advanced by Mayor Wellington Webb's ad'rninistra- tion. Both bills were to be introduced to the full City Council on August 2. The Mayor's proposal would ban smoking at all retail stores and outdoor public areas, including Mile High Stadium and Red Rock's Amphitheater. Reynolds' bill also would ban smoking in seating areas at the stadium and the amphitheater, but it would''.not ban smoking,in other outdoor places. Reynolds' bill would not require workplaces to be smoke-free unless 50 percent of employees in a workplace sign a petition requesting, such a change. Opponents to the bill addressed the City Council Committee, voicing their concerns that the ordinance would restrict personal liberties and public entrepreneurship. See Rocky Mountain News and Denver Post, July 22, 1993. • Local Governments in Louisiana Jeffeson Parish. According to a news report, the Jefferson Parish Council may prohibit smoking in all public places, including,restaurants and malls. Smoking is now prohib- ited in parish government offices. Parishes that don't adopt smoking restriction ordinances before September 1, 1993, are preempted from doing so by a state law. See The Times-Picayune, August 11, 1993. • Local Governments in Massachhu:setts. Reading. The town has proposed to the Massachusetts Department of Public Health a program that would discourage and prohibit smoking. The proposal: is an effort to get a share of the $14 million that the depart- ment allotted for a state-wide antismoking campaign to encourage local boards of health to devise ways to reduce smoking. At least 11 other communities are also seeking some of the tax money from the tobacco control program. Larry Collins, a spokesman for the public health department, said about 24 percent of the population now smokes, and the goal is to cut that in half by the year 2000. The Reading program includess ways to eliminate ETS in the workplace and publicc places. See The Boston Globe, August 8, 1993. 7 • Pennsylvania On April 28, 1993, Representative Mike Veon (D- Beaver County) introduced a package of worker health and safety bills that would, among other things, establish minimum indoor air quality and ventilation regulations. See ThcLegalIntelligencer, Apri129, 1993.. • Puerto Rico A law will reportedly go into effect at the end of the year in San Juan that will ban smoking in most restaurants as well as public buildings, schools, eleva- tors, theaters, hospitals, day care centers, funeral homes, public parks and stadiums. See USA Today, August 9, 1993. • Local Governments in Tennessee _ Mtmpliis. According to a news report, City Council members voted 13-0 to drop a proposed'ordinance that~ would have prohibited smoking in restaurants, work- places and.most public buildings. One councilimember who had learned that the city already had a smoking, ordinance stated that, too much time has been spent debating a measure that was not needed. The current law requires designated smoking areas in some restaurants and workplaces. See The Commercial'Appea4 July 28, 1993. ETS-RELATED LITIGATIOl*I! AGAINST CIGARETTE MANUFACTURERS. [16] Dunn: Defendants Respond to Complaint On August 12, 1993, defendants filed a variety of motions in response to the complaint. The cigarette manufacturing defendants, The Tobacco Institute and the Council for Tobacco Research filed a joint motion to dismiss and to transfer venue from the Superior Court of Delaware County, Indiana, to the Superior Court of Hamilton County. The parent company defendants individually filed motions to dismiss based on jurisdictional grounds. Plaintiffs are schcduledto respond to the motions on September 27, and defen- dants are to submit their reply briefs on October 27. The court is scheduled to hear argument on the motions on December 2. Plaintiffs in this case contend that Mildred Wiley was a nonsmoker who died of lung cancer on June 24, 1991, as a result of her exposure to environmental tobacco smoke at her place of employment (a Veteran's Administration hospital) for the last seventeen years of her life. Her husband, Philip Wiley, is also claiming loss of consor- tium. Defendants in the case are each of the six major

8 U!S: cigarette manufacturers, parent companies of three of the manufacturus, The Tobacco Institute, and the Council for Tobacco Research. Dunn v. RJR Nabirco Holdings Corporatzon, etal (Superior Court, Delaware County, Indiana) (filedi May 28; 1993). [ 17]' McTCinne.y:Plaintiff Files Opening Appeal Brief On August 5, 1993, plaintiff filed his opening brief in support of his appeal to the Nevada Supreme Court. Defendants' brief in opposition is currently due on September 7. In his brief, plaintiff contends the trial court abused its discretion in dismissing the case because it applied the court's time deadlines too strictly. Plaintiff William McKinney, a prisoner in a Nevada jail, contended R.J. Reynolds and Brown & Williamson failed to warn of the health effects of ETS exposure. He alleged he has fairly generallhealth problems caused by his exposure to ETS (emotional pain, severe headaches, itchy and' watery eyes, recurring chest pains). McKinney v. C.M. Products, Inc., etaL (District Court, White Pine County, Nevada) (filed March 3, 1993). McKinney also is the plaintiff in a civil rights case against Nkvada prison officials regarding his exposure to ETS while incarcerated. On June 18, the U.S. Supreme Court remanded the case to the trial court to give McKinney an opportunity to try to prove his case. See issue 50 of this Report, June 25, 1993. [18] Voth: Writ of Mandamus Filed On August 2, 1993, U.S. District Judge Helen Frye denied plaintiff''s motion to disqualify U:S. District Judge Robert Jones. On August 10, plaintiff filed a petition for writ of mandamus with the Ninth Circuit Court of Appeals. The Nint6Circuit has not issued any rulings to date on the mandamus petition. On August 6, Judge Jones granted plaintiffs motion for leave to amend his complaint and denied as moot defendants' motions to dismiss and for entry of judgment. Judge Jones also reopened discovery but subsequently granted RJ. Reynolds' motion for a stay of proceedings until the Ninth Circuit rules on the petition for writ of mandamus. Frank Voth, incarcerated in the Oregon State Peniten- tiary, alleges that exposure to environmental tobacco smoke violates his civil rights. He claims he has "incurred ETS/IAQ REPORT, ISSUE 54 permanent health damage and is at risk of death" as a result of being exposed to environmental tobacco smoke. Defendants in Voth arc Forsyth Tobacco Products, RJ. Reynolds and Brown & Williamson. Voth v. Forsyth Tobacco Producxs, et aL' (United States District Court, Oregon) ~(filed April 27, 1993). ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS WoRxP1ACE: WORKERS' COMPENSATION [19] Iman:ura v: City d' County of H'onolulu, Case No. 29208149 (Hawaii Department of Labor and Industrial Relations, Disability Compensa- tion Division) (decided March 12, 1993) The director of Hawaii's Disability Compensation Division ruled that ETS exposure in the workplace was at least a partial' cause of the claimant's adenocarcinoma of the upper right lung and, accord- ingly, awarded her workers' compensation benefits. The claimant, Sara Imamura, allegedly worked in close proximity to a number of cigarette smokers from 1963 to March 1992. Medical reports introduced in the case indicated that Imamura had no other exposure to ETS, and several doctors retained by claimant opined that the ETS exposure was a significant contributing factor to her development of lung cancer. Dr. Dimitrios Trichopolous submitted a report in the case and stated in part: "If you have never been a smoker, there is a 50/50 chance that your lung cancer is due to your exposure to environmental tobacco smoke generated by your coworkers. .."' Dr. Elizabeth. Fontham also submitted a medical report in which she stated that she and Dr. Pelayo Correa "found a 40- 45% increased risk of lung cancer in nonsmoking women associated with workplace exposures from 16 to 30 years." The claimant asked the Director to take notice of the fact that the defendant's Counsel's office banned smoking based on her protest in April 1992, and that a consultant's study of indoor air quality in the office recommended that smoking be prohibited'. The study also suggested that ETS was partially responsible for "some of the recent illness and discomfort experienced

AUGUST 27, 1993 by various staffmembers.° The claimant testified that two of her nonsmoking coworkers had developed cancer; one apparently died of lung cancer and the other was living with a form of pancreatic cancer which the claimant maintained was directly related to ETS. Because the matter involved a "difference in opinion" within the medical~ community, the Director refused to award attorney's fees and costs to the claimant. The Director also deferred the issue of permanent disability, if any, to a later date. AMERICANS WITH DISABILITIES ACT (ADA) [20] Emery v.. Caravan of Dreams (U.S. Department of Justice) (filed April 12, 1993) According to a press report, the Justice Department has declined to review the claim of a woman with cystic fibrosis who sought to ban smoking in a Fort Worth night: club under the ADA. Diane Emery had' asked the Justice Department to rule whether individu- als suffering with lung disease are disabled under the ADA and had daimed that places open to the public are required to accommodate such disabilities by banning smoking. Emery had intended to rely upon the EPA Risk Assessment on ETS in arguing the merits of her daim. A summary of her daim~ appears in issue 47 of this Report, May 14, 1993. In the meantime, Emery has reportedly filed another discrimination complaint with the Justice Department, this time against state government officials, seeking to ban smoking in the Capitol Building. According to Emery, state officials have until September 22, 1993, to respond to her discrimination~complaint~ before she files a federal complaint. Texas House and Senate administrative off cials who received copies of Emery's complaint reportedly said that they make every effort to accommodate nonsmok- ers. Apparently, smoking has been prohibited in House public hearing rooms upon the request of nonsmokers. According to an official who handles discrimination complaints for the Senate, "nothing in the ADA provides for this type of complaint or discrimination." One state senator reportedly plans to introduce a bill during the next legislative session that would phase in a smoking ban in state buildings and at public hearings. A similar measure evidently made it through the Senate 9 during the last session~ of the legislature but died in a House committee. SuAustinAmerican Statesman and The Da!'!as Morning News; August 15, 1993. RESIDENTIAL EXPOSURE - ADULTS [21]'' Billing v. Tayl'or Management, Inc. (Circuit Court, Chesapeake County, Virginia) (decided August 3, 1993) A couple who filed an ETS lawsuit against their landlord have reportedly lost a second court battle. On August 3, 1993, following a two-day trial, a circuit court judge apparently ruled that the evidence did not support the plaintiffs' claiml that their landlord had violated a clause in their lease requiring "fit: and habitable"'premises by permitting ETS to seep into their~ apartment. Plaintiffs David and Pamela Billing had alleged that tobacco smoke seeping into their unit from a neighbor- ing apartment througL unsealed areas around plumb- ing fixtures aggravated Pamela's asthma and caused David to gag, In July 1992,,a general district judge dismissed the lawsuit and, sua sponte, terminated the lease. See issue 28 of this Report, August 114, 1992. By appealing the case to circuit court, the plaintiffs were able to extend! their lease for a year. According to a lawyer for the landlord, Taylor Management did everything possible to stop the smoke, but the Billings are "irrationaL unreasonable people trying to get something,tliat is irrational and unreasonable.... They were out there promoting a cause." See Associated Press, August 4, 1993. MENTAL HEALTH FACILITY: RIGHT TO SMOKE [22] Warren v. Department oflwlental Health (Middlesex Superior Court, Connecticut) (filed July 21, 1993): A mental hospital patient has reportedly suedthe state over a policy that prohibits smoking in mental health facilities. The policy, which became effective on January 1, 1993, has apparently resulted in mental patients smoking outdoors under the supervision of a guardat regulated intervals during the day. The complaint alleges that smoking is one of the "few luxuries" patients have

10 and that plaintiff William Warren has suffered "decreased socialization with friends and Family" since the new policy was adopted. Warren is seeking an injunction prohibiting the new polic}i: Warren is a 50-year-old manwho was evidently admitted to Connecticut Valley Hospiral' in 1971, and was recently transferred to a maximum security facility which houses those who have been found not guilty of criminal offenses by reason of insanity. See Associated Press, July 22, 1993. WORKPLACE: WRONGFUL TERMINATION [23] Ellsr v. Gelson's Markets, 1993 U.S. App. LFMS 2'0195 (U.S. Court of Appeals, Ninth Circuit) (decided July 29, 1993). The Ninth Circuit Court of Appeals has denied a motion to remand to state court and has dismissed claims for wrongful termination, discrimination and intentional' infliction of emotional distress made by an~ employee who alleged he was fired because of hiss aversion to and complaints about ETS. Employee Roger Ellis failed to ~ return to work upon completion of a medical leave of absence, and such failure was treated as a voluntary termination by his employer. The court found that Ellis'' claim of intentional infliction of emotionalidistress was substantially dependent upon the applicable collective bargaining agreement and hence was preempted by the federal Labor Management Relations Act. The court also determined that a stipulation entered into by the parties dismissing a state court action with prejudice should be given res judicata effect in the federal court. WORKPLACE: MULTIPLE CHEIvIICAL S ENSITDVITY [24E] Shelson v. Shalala,1993 U.S. Dist. LEXIS 10448 (U.S. District Court, Northern District, Illinois, Eastern Division) (decided July 27, 1993) A U.S. District Court judge has determined that sufficient evidence to support a finding of disability was submitted by a chemical engineer who claimed she was disabled for purposes of the Social Security Act due to exposure to massive amounts of chemicals in the workplace. in so ruling, the court reversed a decision of ETS/IAQ REPORT, ISSUE 54 the Secretary of Health and Human Services denying benefits and'remanded the case for further develop- ment of the record regarding the degree of disability. Plaintiff Nancy Shelson had alleged that a chemical explosion that occurred in her place of employment in 1988 caused her to sustain chronic allergic tractions to a wide variety of industrial and consumer products, such as automobile exliausty ETS; phenol, natural gas, diesel' fuel, methanol,,propanol and formaldehyde. Shelson was diagnosed with extreme environmental sensitivity, rhinitis, bronchial asthma, headaches, hives, arthralgia/ myalgia, and' drug and food allergies. A secondmedical opinion obtained for her employer was consistent with this diagnosis. SheLson~underwent chemical' detoxifica- tion treatmentS but alleged that she still remained highly sensitive to external chemical stimulii An administrative law judge determined that Shelson's impairment was significant enough to prevent her &om working as a chemical engineer but was not so severe that~ she was precluded from working in a non,chemical environment. The District Court found no evidence in the record to support a finding that Shelson could work elsewhere and: remanded the case to answer the following questions: (i) ' If she is able to functioni at home, why could she not work in an~ environment that is comparably tolerable?; (ii) If she does have strong allergic symptoms at home, would she be any worse off at work?; and (iii) What specifi- cally is it about the symptoms that make it impossible for plaintiff to do any kind of gainful work~ WORKPLACE: COLLECTIVE BARGAINING [25] XHA, Inc. v. Natiorwllabor Relasions Boarcr; 1993 U.S. App. LE}QS 20396 (U.S. Court of Appeals, Sixth Circuit) (decided August 11, 1993) The Sixth Circuit Court of Appeals has determined that union employees waive& their right to bargain over the implementation ~ of a nonsmoking,policy in the workplace. In so ruling, the court overturned the decision of the National Labor Relations Board which was reported in issue 24 of this Report, June 22, 1992. The appellate court held that the union had notice of the employer's intent to adopt a smoking ban as early as the 1'atter part of December 1989, and did not demand bargaining on the issue until the afternoon of March 30, 1990, or the last business day before the

AUGUST 27, 1993 policy was to take effect. The dissenting opinion of Circuit Judge Ralph Guy, Jr. emphasized the fact that an employee smoking policy is a mandatory subject of bargaining. Judge Guy also stated that the notice given to the union in the months prior to the adoption of the smoking ban was merely an indication that the employer was considering,what kind of policy to adopt and how to implement it; and thus, there was nothing to negotiate until the finalized plan was announced to the union in late March 1990. [26] United I'aperworkers Int'l Union - Local28G v.H S. Crocker Co:, Inc., 1993 U.S. Dist. LEXIS 11432 (U.S. District Court, Eastern District, Pennsylvania) (decided August 13, 1993) A District Court judge has determined that a union, seeking to compel arbitration over the implementation of a workplace smoking ban, did not timely file a suit to compel arbitration after the employer informed the union that it would not submit the issue to arbitratiom PRISONER CASES [27] Hunt v. Reynolds, 1993 U:S. App. LEXIS 20701 (U.S. Court of Appeals, Sixth Circuit) (decided August 13, 1993). The Sixth Circuit Court of Appeals has determined that a prisoner who won aninj unction against officials and employees of the Tennessee Department of Correc- tions enjoining them from~housing him with smokers must be denied monetary damages because he did not sue the officials in their individual capacities. Plaintiff Eanos Earl, Hunt, proceeding pro se, also attempted to argue to the court that the defendants were not comply- ing with the injunction. The court instructed him to file a motion for compliance or sanctions in the district court regarding this issue. [28] Smith v. Scott, 1993 U.S. App. LEXIS 20796 (U.S. Court of Appeals, Sixth Circuit) (decided August 16, 1993) The Sixth Circuit Court of Appeals has ordered a district court to reconsider its dismissal of a class actionn filed by prisoners who alleged violation of their Eighth and Fourteenth Amendment rights by deliberate expo- sure to ETS. The appellate court cites the U.S. Supreme 11 Court decision in HcUing v. McKinney, 125 L. Ed. 2d 22, 61 U.S.L.W: 4648 (1993), and orders the lower court to reconsider its decision in light of that case. The district court had dismissed Smith on the ground that prior law required a prisoner to alleged a serious, immediate health threat from ETS exposure in order to state a civil rights daim, IAQ: CARPET EMISSIONS [29] Howell v. Shaw Industries, Inc., 93-CV-2068 (Ui.S. District Court, Eastern District, Pennsyl- vania) (filed April 19, 1993) A number of motions and orders were entered in this case during the past two months and, as a result, one of the named plaintiffs and one of the defendants are no longer parties to the litigation. An order denying the plaintiffs motion to consolidate similar actions and to coordinate pretrial' proceedings was entered on June 24, 1,993. On June 25, 1993s the plaintiffs filed an amended complaint which the defendants, by stipulation and order, were ordered to answer by July 16, 1993. On July 16, 1993, the defendants filed a motion to dismiss the amended complaint. Plaintiff Diana Friedman filed a notice of voluntary dismissal! as to all of the defendants on July 26, 1993. The defendants' motion to stay discovery pending disposition of motions to transfer and dismiss was denied on July 28, 1993, and the motion to dismiss was deferred until after disposition of the defendants' motions to transfer venue to the Northern District of Georgia. On August 16, 1993, the court entered an order granting a: motion to dismiss defendant World ets, Inc. from the action. The plaintiffs in this case, purporting to represent aa class of more than 100,000 persons, are seeking damages for injuries allegedly caused by carpet emis- sions. Plaintiffs' theories of recovery include breach of warranty, negligence, failure to provide adequate warnings to consumers, false advertising, and violations of state and federal laws. The defendants are the l'argest carpeting manufacturers in the United States and'their trade associations.

12 LEGAL ISSUES AND DEVELOPMENTS [30] Tobacco Products Liability Project (TPLP) Announces Conference The eighth annual TPLP conference is scheduledito be held November 19-21, 1993, in Boston, Massachu- setts. This year's conference is titled "Environmental Tobacco Smoke: New. Legal Tactics in the Wake of the EPA Report on~ Passive Smoking and~Health.°° The TPLP was founded by Richard A. Daynard. See Tobacco On Tria4 June 1993. [31] "`No Smoking Please.' A Proposal for Recogni- tion of Non-Smokers' Rights Through Tort Law," Cindy Pressman (Student Author), 10 NXLSJournal of Human Rights 595 (1993) "It is no longer sufficient that forty states and the District of Columbia have enacted some form of legisliation to restrict smoking in public," according to the author of this Note. "[M]bre must be done." The author argues that courts should permit recovery in ETS cases against cigarette manufacturers and that Congress should require manufacturers to place warnings on cigarette packages about the alleged health effects of ETS exposure. The author advances the complaint in Broin as an example for use by future plaintiffs and asserts that plaintiffs should be compen- sated according to the theory of market share liability. [32] "Environmental Tobacco Smoke: Implications for the Work Place," A. Maskin, A. Connolly, and E. Noonan, Product Liability Internationa4 July 1993 In this artide, written by attorneys with the law firm of Well, Gotshal & Manges in New York, employers are advised to implement workplace smoking policies in light of the EPA Risk Assessment on ETS. Accord- ing to the authors, "whether the findings of the EPA report are well-founde& is irrelevant as a practical matter because the significance of the EPA report lies in its impact on public perception." The article predicts that federals state and local regulation of workplace smoking will likely increase following release of the risk assessment. The prudent employer, say the authors, will take the initiative to reduce or eliminate ETS in the workplace before such ETS/1AQ REPORT, ISSUE 54 laws are enacted and before employees start bringing common law or workers' compensation actions for injuries allegedly due to ETS exposure. [33] "Federal Service Labor and Employment Law," ABA Federal Service Labor and Employment Law Committee, 8 Labor Law 495 (Summer 1992) This report of an American Bar Association committee summarizes andorganizes decisions regardingfederal labor relations. One section of the report observes that the Federal Service Impasses Panel (FSIP) frequently deals with issues at impasse involwi:ng workplace smoking, policies. The authors state, "[i]n 1991, the paneltontin- ued to be very concerned over the effects of Znvironmen- tal tobacco smoke in the workplace and stringently adhered to its view that smoking at the worksite be done only where the effects of secondhand smoke are elimi, nated." Cited are two decisions of the FSIP, one involving an IRS office in Seattle and the other invol'ving the Colorado Air National Guard. IRS, Seattle D and Chapter3O, NTEU, 90 FSIP 164 (Mar. 27, 199I); Department of the Air Force, Coloraa'o Air Nat'l Guard and Mile High ChapttrAss n of Civilian Tcchniciam 91 FSIP 197 Qune 12, 1991). [34] "U.S. Laws that Protect Tobacco Users from Employment Discrimination," J. Malouff J. Slade, C: Nielsen, N. Schutte, E. Lawson, Tobacco Contro4 Summer 1993 This article examines the privacy legislation that has been passed in a majority of states protecting those who smoke off the job from~ discrimination by employ- ers. The authors group the statutes according,to the similarity of their provisions and try to explain the reasons for and drawbacks of certain types of provi- sions. They observe that the anti-discrimination statutes passedearly on contain few of the exceptions of later enacted statutes. Accordingto these autliors, such legislation should not be enacted, but for those states choosing to do so, incorporation of a number of exceptions makes sense. They also recommend that data be collected to determine what effect the statutes are having on employer practices. [35] Asbestos Symposium Calculates Risks In a law review artide discussing legal issues related to asbestos, the author reports that a Harvard University

AUGUST 27, 1993 symposium calculated how many per 100,000 Ameri- cans would die from an activity before the age of 65. Among those exposed to ETS, the symposium appar- ently calculated that 200 would die. This calculation placed ETS below auto and airplane accident deaths ( I,600 ! an& 730 respectively), and below the risk of death from coal mining accidents (441), indoor radon exposure (400) and pedestrian/auto accidents (290). See Hofstra Law Review, Summer 1992. OTHER DEVELOPMENTS [36] University of Texas Provides Outdoor Smoking Facilities The University of Texas Medical Branch: in Galveston has reportedly built four three-walled shelters for smokers near its medical' center. The new smoking areas, which cost a reported $26,000, are located so as to be accessible to the universiry's employees, students, patients and visitors. A fifth smoking shelter is nearing completion and a sixth is planned. SeeAssociatedPress,, August 9, 1993. [371 Texas Poll Said to Support Restaurant Smoking Ban A statewide telephone survey of 1006 adults reported that 70 percent of Texans favor a ban on smoking in public restaurants. A spokesman for the American Lung Association of Texas said the survey is an indication that "smoking areas in restaurants don't work°" The Texas Restaurant Association opposes smoking bans, arguing that they would be too burdensome and that restaurateurs would risk losing customers. According to the head of the restaurant association, businesses try "to accommodate our marketplace" and to satisfy Texans on both sides of the issue by dividing restaurants into smoking and nonsmoking sections. The poll was conducted by Texas A&M Universiry's Public Policy Resources Laboratory for Harte-Hanks Communications, Inc. See Dallas Morning Ntu-, August 2, 1993. [38]i Insurers Cut Rates for Employers with Non- smoking Policies According to a press report, several major insurers are reducing group-life premiums for businesses that offer 13 "wellness programs" to their employees. Among insurers reducing such premiums are Metropolitan~ Lie, Prudential, John Hancock, Travelers and Aetna. Wellness programs generally include nonsmoking policies, fitness programs, stress management seminars, nutrition or weight-control classes, or back care. Some small business owners are reportedly rewarding em- ployees who quit smoking with lower health-insurance deductibles. See Business Week August 16, 1993. [39]' Berkeley Businessman Proposes "Smoke-easy" to Counter Restaurant Smoking Bans Since the city of Berkeley, California, banned smok- ing in restaurants in December 1992, business at a once-bustling cafe known as Caffe Meditteraneum has reportedly declined by 30 percent. According to a press report, a businessman and former smoker who owns a book shop across the street from the cafe has collected more than 500 signatures in a campaign to create what he refers to as a"smoke-easy° at the cafe. The idea would be for smokers to have free run at the cafe while nonsmokers would enter at their own risk. Currently, the outdoor tables at the cafe are usually crowded with smokers while the indoor tables remain half used. Althoughy city officials apparently have some sympathy for smokers' plight in the wake of the ban, it is considered unlikely that they will reconsider their recently-enacted ordinance. See The Washington Times, July 10, 1:993. MEDIA COVERAGE [40] "Going Smoke-Free: More Malls Joining in Bans on Tobacco," The New York Times, August 2, 1993 This article reports that dozens of malls around the United States are banning smoking,in their facilities.. The number of smoke-free malls is growing so rapidly that the International Council of Shopping Centers can't count them, according to a council spokesman. "It's like trying to catch pigeons as they are flying out of the park," he is quoted as saying. The author of the article attributes the trend toward smoke-free malls in part to the release of the EPA Risk Assessment on ETS.

14' The article briefly discusses the effect smoking bans have on employees of stores inside malls. A shoe-store employee at a New Jersey mall that has banned smok- ing (Bridgewater Commons) is quoted as saying that he won't be able to get out of the mall to smoke, so he probably willI have to quit smoking. [4 1] Media Campaign Targets ETS The Maryland Department of Health has reportedly launched a $3 million, three-year cancer awareness campaign that is placing advertisements on, radio and television, warning that ETS exposure causes 58,000 deaths in every two-year period. Beginning with a camera shot of the Vietnam Veteran's Memorial in Washington, D.C., the television advertisements compare such statistics with the deaths occurring during the Vietnam. War. State officials are apparently hoping that such public awareness projects will encourage more smoking bans and restrictions in public places and office buildings. See The Washington Post, August 12, 1993. SCIENTIFIC/TECHNICAL ITEMS UPCOMING MEETINGS [42] "Indoor Air Quality in Asia," Beijing Interna- tional' Conference Centre, Beijing, China,, October 18-20, 1994 Indoor Air International, in collaboration with the Chinese Academy of Preventive Medicine, has made the first announcement and call for papers and registra- tion for this international conference. Promotional' materials state that the conference objectives are to identify and prioritize Asian IAQ problems and methods of improvement and treatment. This confer- ence is expected to develop objectives and provide a dear evaluation of problems regarding IAQ in Asia that were discussed at the first international conference on indoor air quality held in Bangkok in 1991. [43] "Analyzing Risks: Science, Assessment and Management," Harvard School of Public Health, September 28 - October 1, 1993 According to promotional materials, this course is sponsored by the Harvard School of Public Health and ETSIIAQ REPORT, ISSUE 54 the Harvard Center for Risk Analysis. The program is "designed to equip professionals with~ three key skills: risk assessment, risk management, and risk communi- cation." Specific topics indude: interpretation of epidemiologic data including meta-analysis; the use of animalldata as predictors of human risk; biologically based pharmacokinetic and dose-response models;; application of distributional methods to risk character- ization; communicating risk estimates in a public context; and policy developments in risk assessment and management. The program materials provide a program agenda. Some of the session leaders incliude Sandra Baird, John Evans and Barry Ryan from the Harvard School of Public Health; 1Vlichael' Dourson from EPA; James Wilson from Monsanto Company; and others. OTHER HEALTH ISSUES [44] "Uhivariate Genetic Analysis of Obygen Transport Regulation in Children: The Medical College of Virginia Twin Study," W.B. Moskowitz, M. Mosteller, J.1C Hewitt, L..J. Eaves, W.E Nance, and R.M. Schicken, Pediatric Research 33(6): 645- 648, 1993 [See Append'nt A] The authors of this study investigated genetic and environmental influences on levels of a substance involved in oxygen transport in the body. In the 165 pairs of adolescent twins studied, the authors report higher levels in boys whose parents smoked, whi& they suggest may be due to decreased oxygen levels that trigger synthesis of the substance. ETS EXPOSURE AND MONITORING [45] "The Nicotine Content of Common Veg- etables," E.F: Domino, E. Hornbach, and T. Demana, The lancet 329(6): 437, 1993 [See Appendix A] This letter to the editor reports on measurements of nicotine in tomatoes, cauliflower, potatoes, green peppers, and black tea: The authors state that their findings confirm previous reports, and suggest that

AUGUST 27, 1993 dietary intake of nicotine may be important in inter- preting the source of nicotine and cotinine levels in body fluids. [46] ! "Maternal Smoking Induced Cotinine Levels and Genotoxicity in Second Trimester Amniotic Fluid," J. Lahdetie, K. Engstrom, K Husgafvel- Pursiainen, L. Nylund, H. Vainio, and M. Sorsa, Mutation Research 300: 37-43, 1993 [See Appendix A] These authors report on measurements of cotinine in amniotic fluid (the fluid surrounding the fetus in the uterus) and the genotoxicityof concentrated fluid in the sister chromatid exchange assay. Although~the paper focused on active smokers, the authors note that the 16 women reporting ETS exposure had cotinine levels that did not differ from those of reportedly nonexposed subjects. [47] "Effects of Interchamber Mixing, Ventilation and Filtration on Lung Dose from Environmental Tobacco Smoke Partides," S. Miller-Leiden, A. Wadhera, and W.W. Nazaroff, P'roceedings of IndoorAir 93 6: 509-514, 1993 [See Appendix A] Using environmental chambers, one with smoking and one without, the authors estimate ETS particle concentrations and dose to the lung of persons in the chambers under various air flow and ventilation conditions. Tlieyconclude that high ventilation "helps reduce exposure," and suggest that a filter in the smoking area can also reduce ETS exposure. INDOOR AIR QUALITY [48] "Assessment of Ambient Volatile Hydrocar- bons from Tobacco Smoke and from Vehicle Emissions," G. Barrefors and G. Petersson, Journal of Chromatography 643: 71-76, 1993 [See Appendix A] In this study, levels of volatile hydrocarbons are com- pared in a smoky room, in sidestream smoke, inside a passenger car, and inside a tunnel. The authors suggest that sidestream smoke is a major contributor of certain hydrocarbons to indoor air, and state that public smoking bans are one means of reducing exposure. 15 [49] "Mucosal Irritation and Thermal Comfort Among Occupants of an Office Building," H.I. Hall, B.P. Leaderer, W.S. Cain, and A.T. Fidler, Environment Internatxona! 19: 253-259, 1993 [See Appendix A] In this study, occupant-reported symptoms, occu- pants' perceptions of the office environment, and temperature and humidity measurements were com- pared, using 3,176 employees. The authors report that symptoms were associated with perceptions of thermal comfort, but not with actual measurements, suggesting that improving occupant comfort could alleviate symptoM reporting. [50] "Effects of Restrictive Smoking Policies on Indoor Air Quality and Sick Building Syndrome: A Study of 27 Air-Conditioned Off'ices," A. Hedge, W.A. Erickson, and G. Rubin, Proceed- ings oflndoorAir `931: 517-522, 1993 [See Appendix A] In this study, buildings with five smoking policies, ranging from smoking prohibited to smoking allowed in offices and workstations, were compared for indoor air quality measurements and reported sick building syndrome (SBS) symptoms among employees. The authors reported only small differences in measure- ments of indoor air quality, except for nicotine and ultraviolet particulate mass. Interestingly, reported SBS symptoms were most prevalent in the smoking- prohibited building. The authors state that "[e]kidence that ETS is a cause of sick building syndrome com- plaints was not found." [51] Letters to the Editor Regarding "The Effecrof Varying Levels of Outdoor-Air Supply on the Symptoms of Sick Building Syndrome," R. Menzies, R. Tamblyn, J.-P. Farant, J. Hanley, F. Nunes, and R. Tamblyn, New EnglandJournal' ofMedicine 328: 821-827, 1993 The New England Journal ofMedicine recently published several letters concerning,this article, which was discussed in issue 44 of this Report, Aprili2, 1993. The authors of the letters were (i) Philip A Edelman and Thomas Hethmon, (ii) Joe F. Boatman, (iii) John F. McCarthy and Jack E. Farnham, (iv) Gary W: Small! (v) Jonathan S. Bromberg, and (vi) Richard Menzies and Robyn Tamblyn, two of the authors of

16 the original study. The letters appear in the New EngGtnd Journal ofMedicine 329(7): 503-504. Edelman and Hethmon state that the Menzies, et al., paper "lacks sufficient information to permit any condu- sions to be drawn." In particular, they note that the buildings studied were not "sick," and ha&outdoor air supplies above the ASI-i'RAE'recommended minimum. Thus, they state that the study's conclusions "cannot be applied to buildings whose outdoor-air supplies are below" the ASHRAE standard of 20 cfm~per person. Edeiman and Hethmon also comment that the paper did not adequately describe the ventilation systems, sample collection and analysis, or smoking policies. Boatmanal'so addresses the high ventilation rates used by Menzies, et al., in testing their hypothesis. He, too, points out that these rates are well above the current recommended minimum, and also states that no symptoms would be expected at such higLventilation rates. Boatman~ states that the study's conclusions are "trivial,°' but are being used to suggest that ventilation is not related to building occupants' symptoms, a position he characterizes as a "mistaken impression." McCarthy and Farnham suggest that the composition of the study population an& their participation rate suggest that selection bias could have been operating in the study. In his letter, Small notes that the illness rate, proportion of symptoms in women, and several of the symptoms, are consistent with a psychogenic group illness, and that the reported decrease in symptomss could be related to the study subjects' knowing that an experimental intervention was under way. He stresses that psychological and social factors need to be consid- ered in investigations of sick building syndrome. Bromberg's letter suggests that ethical questions are raised by the study design, and that no mentionwas made of informed consent by study participants. In~ their reply, Menzies and Tamblyn state that the study was approved by an ethics committee. They also state that their technique, based on a comparison within~ subjects, minimizes selection bias. They respond to Boatman's letter by saying that "it is misleading to characterize [the] results or conclusions as trivial, because the substantial prevalence of symptoms among workers was not altered although the amount of outdoor air was d'oubled.°" Menzies and Tamblyn also write that they agree that the study's cond'usions ETS7IAQ REPORT, ISSUE 54 cannot be applied to ventilation of less than 20 cfrn/ person. They state that all of the buildings studied had no-smoking policies. Finally, Menzies and Tamblyn "disagree strongly" with the suggestion tliatt psychogenic illness couU account for their reported results, citing their data indicating that symptoms were associated with environmental conditions. [52] "Indoor Air (Zuality: Exploring Policy Options to Reduce Human Exposures," K. Teichman, Procredings of Indoor Air `93 3: 3-19, 1993 [See Appendix A] Kevin Teichman, of the EPA's Office of Research and Development, reviews indoor air policy issues in this presentation. He enumerates a number of factors involved in policy making,, and calls for dialogue between researchers and policymakers on the issue. With regard to ETS, Teichman mentions both the EPA Risk Assessment and ongoing OSHA activities. He lists options for an IAQ policy that range from continuing to allow smoking in buildings to banning smoking. Teichman also addresses ASHRAE Standard 62-1989, and notes that some designers stress only the provision of adequate quantities of ventilation air, without considering the quality of that air. He states that this can lead to a misperception that inadequate ventilation is a cause of most IAQ problems. SMOKING POLICIES AND RELATED ISSUES [53] "The Effects of a Hospital Smoking Ban on Empl'oyee Smoking Behaviour and Participation in Different Types of Smoking Cessation Programmes," H.R. W arancb, W.K. Wohlgemuth, D.A. Hantula, R. Gorayeb, and F:A. Stillman, Tobacco Control2: 120-126, 1993 [SeeAppendiz A] The authors of this study report that, following the institution of a smoking ban at Johns Hopkins Hospi- tal, 13.1 percent (262) of smoking employees partici- pated in smoking cessation programs, of whom 8.4 percent (22) were not smoking one year later. The authors suggest that smoking bans may help some smokers to quit smoking.

AUGUST 27, 1993 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS AUSTRALIA [54] Senate President Asked About Smoking in Parliament House In a Senate Notice Paper dated August 19, 1993, Senator Bell has indicated'his intent to ask the Presi- dent of the Senate this question: "Since the landmark Morling judgement [sic] and the Scholem case, what steps have been taken to ensure that Parliament H'ouse provides an entirely smoke-free environment for its employees and its visitors?" The "Morling judgment" is a reference to the decision in TL4 v. AFCO wherein Justice Morling determined that an assertion about ETS in a TIA advertisement was deceptive. Ultimately, the Full Federal Court in Sydney partiallyoverturned' Justice Morling's decision. In Scholem; a New South Wales Department of Health employee received an award': for injuries allegedly caused by ETS exposure in the workplace. CANADA [55] Ottawa Council Committee Recommends Study of Smoking in Outdoor Facilities According to a press report, an Ottawa Council Committee has recommended that council staff study the issue of smoking in outdoor facilities during the next three months. The public will apparently be consulted regarding the matter prior to a September 1, 1993, vote by the fiill council on changes to Ottawa's smoking bylaws. During a hearing before the committee, complaints about smoking in baseball and football stadiums were made, and an associate medical officer for the region's health department reportedly said'' that allowing smoking in outdoor stadiums is "unacceptable" because "up to 25 percent of the population has a health condition that is immediatel'yaggravated by cigarette smoke." Business proprietors of other pres- ently exempt venues argued that they should be 17 permitted to designate up to half their space for smoking. See The Ottawa Citizen, August 12, 1993. Callers to a "Citizen's Touchline" reportedly favor the proposal. Of 43 callers, 19 were in favor of a total ban, 33 supported limitations on smoking, and 14 wanted designated smoking,areas. Only nine of the callers reportedly approved maintaining the status quo permitting smoking anywhere in outdoor stadiums. See The Ottawa Citizen, August 19, 1993. FINLAND [56] Parliament to Consider Government Proposal Restricting Smoking The government has forwarded a proposal to Parlia- ment that would restrict smoking in workplaces to "protect" nonsmokers from ETS exposure. The measure would also reportedly regulate cigarette advertising and ban the sale of snuff A spokesperson at the Ministry of Social Affairs and Health reportedly said that nobody should be exposed involuntarily to ETS under the proposal. See Reuters, August 20, 1993: SINGAPORE [57] Government Imposes New Restrictions on Smoking On August 1, 1993, the Singapore government reportedly issued a decree announcing that soldiers caught smoking in public while in uniform would be fined. Violators will apparently see $31 less in their paychecks, while repeat offenders will be fined~ $62. In addition; smoking breaks have beem abolished for troops and smoking on military bases is reportedly restricted to a few designated areas. See The New York Times, August 2, 1993. UNITED KINGDOM [!58] Department of Health Institutes Warning ~' Regulations ..r N The Department of Health has adopted regulations *Qh which will require ETS warnings, among others, on ~, tobacco products other than cigarettes. The warnings, ~ which must cover 1.5 pernent of the total surface of the +A product packet, will be rorated and ane the same as those ~

18 required on packages of cigarettes. The warnings will go into effect for products produced after January 1, 1994, or produced before that date and delivered~ for sale before Janua,ry 1, 1995.. On packets of rolling tobacco the warning, "Protect children: don't make them breathe your smoke," will appear. And on packets of cigars, cigarillos, pipe tobacco and other smoking tobacco the warning, "Smoking damages the health-of those aroundyou," will be re- quired; The new regulations are reportedly intended to implement an EC directive which provides for health warnings on tobacco products other than cigarettes. See UK Government Press R&ases, July 30, 1993. ETS LITIGATION INVOLVING CIGARETTE MANUFACTURERS [591 TIA v. Stephen Woodward (Supreme Court, Equity Division, New South Wales) (filed April 15, 1993) , On August 26, 1993, the Court denied Stephen Woodward's crossclaim against TIA. The crossclaim alleged that a TIA spokesperson made misleading statements in a brochure about workplace smoking and in an article appearing in the Sydney Morning Herald. Trial is scheduled to begin on September 7, 1993. The action is based upon the New South Wales Fair Trading Act and seeks a declaration and restraining order regarding Woodward's misleading and deceptive statements, a corrective advertisement and costs. ETS LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS AUSTRALIA [60] Departnsent of Orcupational Healtfi and'Safety v. Bursurood Resort (Management) Ltd (Magistrate's Court, Perth) (filed December 1992) Trial before a magistrate concluded' on August 12, 1993, in this criminal prosecution of casino owners for failing to take effective measures to control levels of ETS ETS/IAQ REPORT, ISSUE 54 at their facility. The magistrate announced that he would deliver the jud'gment~ of the court on September 17, 1993. The witnesses for the defense induded~ a respiratory physician, Bryan Gandevia, who testified on cross- examination that he had not~ read'the EPA Risk Assess- ment on ETS and did not intend to do so because he regards it as devoid of all credibility. Other witnesses explained how the lung functions, refuting the prosecution's assertions that exposure to ETS causes permanent injury, and testified in what respects the air monitoring,conducted in~the casino by the Departrnent of Occupational Health and Safetywas deficient. A view of the casino itself preceded dosing arguments in the case. During the prosecution's argument, the magistrate commented that the Kaufmann Study did not achieve statistical significance, that there is no empirical evidence showing that respiratory disease is caused byETS„and'that the prosecution's witnesses cannot equate cough/'mucus with disease. OTHER DEVELOPMENTS AUSTRALIA [61] Action on Smoking and Health May be Dis- solved Stephen Woodward has reportedly recommended to the Australia Action on Smoking and Health (ASH) board'that the organization be dissolved this year. The recommendation is apparently based on the view that ASH's goals have largely been achieved. ASH"s lobby- ing,and educational campaigns could be continued by the Heart Foundation and state cancer councils, which are ASH shareholders. See Sydney Morning Heralat;' August 10, 1993. [62]I New Edition of Smokefree Dining Guide Released The lions Drug Education Network has reportedly released a new edition of a guide to smoke-free dining. In conjunction with its release, a spokesperson announced that the number of restaurant facilities in Southern Tasmania offering smoke-free dining has doubled in the past year. See Hobart Mertury, August 20, 1993.

AUGUST 27, 1993 [,63] Quit Week Launched in Launceston The Mayor of Launceston reportedly launched "Quit Week" on August 16, 1993. Activities apparently ind'uded~a focus on workplace smoking. In conjunc- tion with the event, Batman Fawkner Inn management reportedly agreed to test the public acceptance of the town's first nonsmoking bar. See Launceston F~raminer, August 17, 1993. JAPAN [64] Osaka Airport to Restrict Smoking According to Kansai International Airport officials, smoking will be restricted in the passenger terminal building when it opens in Osaka in the summer of 1994. Smokers will apparently be permitted to smoke in 10 to 20 percent of the seats and'space in the terminal building. Smokers are reportedly permitted to smoke in about 30 percent~ of terminal areas at: the Narita and Haneda airports. See Kyodo News Service, July 21, 1993. NbRwAY [65] Nordic Cancer Union to Conduct Conference on ETS and Children On October 11-12, 1993, the Nordic Cancer Uhion (NCU) will host a conference on ETS and children in Oslo. The conference is being arranged by the Norwegian Cancer Association and will be held ar Tekniska Mu- seum. Speakers $om the Norwegian government and from the international medical and'scientific communi- ties will' be featured. NCU will be conducting the conference as its part of the "Europe against Cancer" week in October, which is focusing this year on ETS. TF iA1LAND [66] Monks Iniuate Antismoking Campaigns Buddhist monks in Thailand villages are reportedly implementing measures, including smoking bans, to reduce the number of smokers in their communities. A temple abbott in the southern province of Trat appar- ently imposed bans on smoking in religious areas an& during Buddhist festivals. See British Medical,Journa4 July 31, 1993. 19 MEDIA COVERAGE JAPAN [67] "Law Stifles Antismoking Moves," fiji Press Ticker Service, August 6, 1993 According to a presswire report, antismoking groups consider Japan's tobacco laws to be aimed at collecting tax money. As a result, Japan is among the "most lenient countries on smoking," according to the article. Although "no smoking" signs are commonly seen on public transportation, the report says that "smoking restrictions are less often foun& in offices and public facilities." Only 20 percent of 1,700 major Japanese firms reportedly ban smoking in the workplace or have nonsmoking areas. The report also notes the opinions of Dr. Takeshi Hirayama, who reponedly said'that "most Japanese pay little heed to tobacco-related problems, including the risk of second-hand smoke to others. Even physicians are inattentive to passive smoking and the antitobacco movement."'

AUGUST 27, 1993 APPENDIX A The numbers assigned to the fol'lowing,article summaries correspond with the numbers assigned to the synopses of the articles in the text of this Report. OTHER HEALTH ISSUFS [44] I"Univariate Genetic Analysis of Oxygen Trans- port Regulation in Children: The Medical College of Virginia Twin Study," W.B. Moskowitz, M. Mostelkr, j.K. Hewitt, L.j. Eaves, W.E. Nance, and R.M. Schieken, Pediat- ric Research 33(6): 645-648, 1993 "Systemic oxygen transport is accomplished using many integrated, self-regulated organ systems. Essential components of this system include pultnonary gas exchange, blood flow, Hb [hemoglobin] concentra- tions, and Hb affinity for oxygen. Organic phosphates within the red~cell decrease the oxygen affinityof Hb. The most important quantitatively is DPG [2,3- diphosphoglycerate]," "Considerable variation in DPG levels, Hb levels, and oxygen affinity occurs in the normallpopula- tion.... Measurement of red:cell DPG levels has been used as a'functional biopsy''of the adequacy of tissue oxygenation. °' "The purpose of the present study was to quantitate the relative contributions in children in both sexes of genetic and environmental effects (including passive cigarette smoking) to the variance of oxygen transport regulation. Specifically, we asked: 1) whether there were differences in the control of DPG levels between early pubertal' boys and girls, and 2) if so, whether these differences were influenced by exposure to passive cigarette smoke. We hypothesized that sex differences in oxygen transport regulation exist at an early age and that males demonstrate a greater susceptibility to environmental influences.° "Non-passive-smoking boys and girls had similar DPG levels. Overall, passive-smoking children: demon- strated higher DPG levels than non-passive-smoking children. However, when analyzed by sex, the noted difference in passive-smoking children was accounted for by a significant elevation of DPG levels only in the boys.... [T]here was an effect of the parents' smoking A-i status and a suggestion of an interaction effect between parents' smoking and sex of the child." "We found that early pubertal boys differ from girls in their regulation~ of DPG. Without cigarette-smoke exposure, boys and girls have similar DPG levels. Chronic cigarette-smoke exposure elevatu DPG levels in boys but not girls." "Our finding of similar DPG levels in early pubertal boys and girls who are not exposed to cigarette smoke suggests that gene actions, which determine the activity of various erythroryte glycolytic enzymes, may change during puberty." "A hypoxia-driven mechanism triggeang DPG synthesiss is likelyin passive-smoking individuals. Although the boys an&girls in the present study had similar amounts of passive cigarette-smoke exposure, the discrepant DPG responses suggest sex-specific patterns of reactivity of the systemic oxygen transport system. Boys demonstrated a greater reactivity to this environmental stressor. This may have occurred because environmental factors predomi- nated over genetic factors in the adjustment of DPG levels in ~ boys." ETS EXPOSURE AND I1!IONITORING [45] "The Nicotine Content of Common Veg- etables," E.F. Domino, E. Hornbach, and T. Demana, The Lancet 329(6): 437, 1993 "The presence of nicotine and its metabolite cotinine in the body fluids of nonsmokers is usually taken as evidence of exposure to environmental l tobacco smoke." "There is considerable evidence that nicotine is present in certain human foods, especially plants from the family Solanaceae (such as potatoes, tomatoes, and eggplant)'. Castro and Monji, Sheen, and Davis et al: have reported on the nicotine content of foods and drinks. We have beeniable to confirm some of their findings in our laboratory....The vegetables analyzed were tomatoes,, potatoes, cauliflower, and green peppers." "Cotininc could not be detected in any of the samples. Measurable amounts of nicotine were found in some of the vegetables. Green peppers, black tea, and Ann Arbor city water had no detectable nicotine." "If we assume that nicotine is completely absorbed from the lungs, it would take 179 minutes, or about 3 2024'7(12459

A-2 hours, of breathing in an environment with minimal smoke to absorb 1 ug of nicotine. [We show] the amount of each vegetable by wet weight one would have to eat to obtain an amount of nicotine comparable to that of a passive smoker. Of course, the route of absorption is quite different in eating as compared'with inhaling. Furthermore, if the vegetables are thoroughly cooked, the nicotine will diffuse into the cooking water and less will be ingested. It appears that the dietary intake of nicotine in nonsmokers may be of practical! importance in the interpretation of the role of passive smoke inhalation when one is determining nicotine and cotinine levels in body fluids." [46] "Maternal Smoking Induced Cotinine Levels and Genotoxicity in Second Trimester Amniotic Fluid," J. Lahdetie, K. Engstrom, K Husgafvel- Pursiainen, L Nylund, H. Vainio, and M. Sorsa, Mutation Researc6 300: 37-43, 1993 "Cotinine concentrations in~amniotic fluid samples from 22 smoking and 37 non-smoking pregnant women and induction of sister.chromatid exchanges (SCE) in Chinese hamster ovary (CHO) cells by samples from 15 smokers and 115 non-smokers were studied as indicators of exposure to potential genotoxic activity during pregnancy:...The mean cotinine con- centration of smokers was 85 ng/ml whereas non- smokers had a concentration of 0.3 ng/mL According to interview data 16 persons announced some passive exposure to tobacco smoke at home or at work; however this group did not differ from~ unexposed non.smokers in their amniotic fluid cotinine concentration." "SCE inducing activity was tested with and without metabolic activation. The mean SCE frequency in CHO cells induced in.the presence of exogenous metabolic activation by concentrated amniotic fluid of heavy smokers (?10 cigarettes/day) was significantly higher than among non-smokers with metabolic activation." "The aim of this study was to analyze if components of cigarette smoke are transferred from the maternal circulation to the amniotic fluid and if the exposure can be shown by analyzing genotoxicity of amniotic fluid taken in the second trimester of pregnancy." "Amniotic fluid has a rapid turnover, is swallowed by the fetus from early pregnancy and contains fetal urine. Thus it may, in theory, serve as an indicator of fetal exposure to environmental agents which are excreted via ETS/IAQ REPORT, ISSUE 54, the urinary tract. This is supported by the present results and some earlier reports, in which biochemiccalI measurements of amniotic fluid of smoking mothers demonstrate the transplacental passage of cigarette smoke constituents." "The present results show a dose dependent increase of cotinine concentration with smoking.... Inour study, passive smokers did not differ from non-smokers, in contrast to the results of Andresen ct al. who observed much higher levels of cotinine from two women exposed at home to cigarette smoke. In the present study, the passive smokers were only mildly exposed at home or at work. The variations between individual measured concentration of cotinine and reported number of cigarettes smoked may be due to time interval between smoking and amniocentesis or discrepancies between reported and true cigarette consumption." "A correlation between cotinine concentration and SCE induction was observed showing that both indicate exposure to cigarette smoke. Measurement of cotinine concentration~is useful!in verifyingthe smoking status since, due to anti-smoking attitudes, there is reason to suspect denying or underreporning of smoking, as was observed in one case in this study." "A possible association.between maternal smoking during pregnancy and childhood cancers or congenital malformations has not been unequivocally shown.... Srnoking during pregnancy is very common despite its known harmful effects on the fetus. The present study, together with earlier reports, increases the concern of possible genotoxic exposure of the fetus by maternal! smoking." [47] "Effects of Interchamber Mixing, Ventil'ation and Filtration on Lung Dose from Environmen- tal Tobacco Smoke Particles," S. Miller-Leiden, A. Wadhera, and' W:W. Nazaroff, Proceedings of Indoor Air `93' 6: 509-514, 1993 "This research~explores the effects of interchamber mixing, ventilation and filtration on the environmental tobacco smoke (ETS) particle dose delivered to a nonsmoker's lungs in indoor environments. A building is represented' by two coupled 30 m3 chambers, each well-mixed. A smoker occupies one chamber and a nonsmoker may be present in either chamber. The evolution of ETS particle size distributions are simu- lated using an aerosol dynamics model. A lung deposi-

AUGUST 27;1993 tion model is used to determine the totallmass of ETS partides deposited in the lungs.°'' "Maintaining low ETS particle concentration in the vicinity of exposed individuals may reduce health risk. This paper examines the effect of different indoor exposure conditions on the ETS particle dose to the lungs of an, exposed individual. This paper investigates the impact of altering ventilation and interchamber flows on ETS exposure by capturing key features of a multichamber environment in the simplest manner possible." "During exposure hours 1 through 8, the lung dose to a male in the smoking chamber is 21 times higher under low-flow conditions as compared with high-flow conditions, and 13 times higher for a male in the nonsmoking chamber." "Operating an air filter in either the smoking or nonsmoking chamber reduces daily lung dose. When the filter is placed in the nonsmoking chamber, lung, dose for a male in the nonsmoking chamber is reduced by 70% under low-flow conditions and 40% under high-flow conditions. Corresponding numbers for a male in the smoking chamber are 15% and 10%, respectively. However, when the filter is located in the smoking chamber, particle dose to the lungs is reduced by 70% under low-flow conditions and 40% under high-flow conditions for a male occupying either chamber. These results indicate that the greatest reduction in lung dose is obtained under the exposure conditions explored in this paper when the filter is placed in the smoking,chamber." "This research shows that the ETS particle concentra- tion and hence the lung dose delivered to the individu- als in a two chamber environment is a strong function of the flow conditions existing in such a micro- environment. The system in its current form assumes that the two chambers are welt-mixed although air in a room is not always uniformly mixe& This issue of incomplete mixing in a single room is still being explored." "The research in this area suggests that the interchamber flow has a significant effect on the lung dose delivered to a nonsmoker in the nonsmoking chamber. High ventilation helps reduce exposure in the smoking and nonsmoking chambers. Also, if a filter is available, it should be placed in the smoking chamber A-3 as it reduces the lung dose by the largest amount in~ the smoking and nonsmoking chambers." INDOOR AIR QUALITY [i48] "Assessment of Ambient Volatile Hydrocarbons from Tobacco Smoke and from Vehide Emis- sions," G. Barrefors and G. Petersson, Journal of Cbromarography 643: 71-76, 1993 "Quantitative proportions of C2 C$ alkenes, alkadienes, alkynes, alkanes and arenes were deter- mined for indoor smoky air and for air inside a private car. Samples were taken on adsorbent cartridges and analysed by gas chromatography on an~aluminum oxide column." "A critical purpose of the study is to assess quantita- tive proportions for a wide range of the potentially hazardous CZ C8 hydrocarbons characterizing air polluted by the two different sources." "Smoky ambient air is compare& with sidestream smoke from a cigarette, with air inside a car during, urban driving, and with vehicle-polluted air in a road tunnel. ° "The percentage proportions of alkenes, alkadienes and' alkynes are remarkably similar for the cafe and for the sidestream smoke. The proportion of the carcino- genic 1,3-butadiene is notably higher than in vehicle emissions. Isoprene is the majpr component, in sharp contrast to vehicle-polluted air. The extensive release of isoprene is likely to be linked to the high content of linear isoprene polymers in tobacco:...The alkenes from tobacco and from vehicle emissions are the same, but their quantitative proportions are higher in tobacco smoke. Cigarette smoke contains ethene and'propene in similar high amounts, whereas vehicles emit consid- erably more ethene than propene as combustion products." "The proportions of alkylbenzenes and of C4 C8 ~ alkanes are much higher in vehicle-polluted air than in ~ cigarette smoke. These hydrocarbons are prominent ~ components of petrol and are emitted mainly as ~ unburnt exhaust liydrocarbons....[TJhe results for ~ sidestream cigarette smoke demonstrate that not only ~ benzene but also significant amounts of inethylbenzene ~ (toluene) and Ce alkylbenzenes arc formed' as combus- ~ tion products from tobacco."

A-4 "With regard to rooms polluted by cigarette smoking, it is conduded that alkadienes, alkenes and several other volatile hydrocarbons originate predominantly from.tobacco smoke." "[E]xposure levels for selected hazardous hydrocar- bons are compared. The recorded concentrations are of the same order of magnitude in the smoky room as in the private car during urban-.driving: The alkene levels tend to be highesrfor cigarette smoke and' the arene levels tend to be highest for traffic pollution. The cafe is regarded as being smokier than average cafes, but less smoky than many pubs." "It is evident that: the concentrations of volatile hydrocarbons and other airpoll'utants are considerably higher in vehicles and in smoky rooms than in most other urban environments. The daily exposure time exceeds 1 h for many people. Children are often~ exposed in vehicles and in public and private smoky rooms. It is concluded that exposure in smoky rooms and in vehicles should be primary targets of efforts to decrease health hazards due to urban volatile hydrocar- bons. In Sweden, prohibition of smoking in hospitals and various public indoor environments are examples of means of reducing exposure." [49] "Mucosal Irritation and Thermal Comfort Among Occupants of an Office Building," H.I. Hall, B.P. Leaderer, W.S. Cain, and A.T. Fidler, Environment Internationa119: 253-259, 1993 "To determine whether thermal conditions were related to symptom reporting, an indoor air and work environment study was conducted in the Madison Building of the Library of Congress. Previous walk- through investigations had not revealed any obvious conditions that might have affected symptoms." "Information was collected on workstation character- istics, symptom occurrence over the pasr year, percep- tions of air quality, demographic variables, and social dynamics." "The five symptom groups were eye symptoms (dry, itching,,tearing; and burning,eyes), nose symptoms (stuffy nose, sinus congestion, and runny nose),, throat symptoms (sore throat, hoarseness, an& dry throat), respiratory symptoms (sneezing and cough), and combined symptoms (any of the mucosal symptoms except burning eyes)." ETS/IA,QREPORT, ISSUE 54' "Air movement, temperature, humidiry, and stuffi- ness were evaluated by respondents in both phases of the study." "Forty-one percent of the building population reported at least one mucosal symptom to occur 'often' or 'always' during the past year." "Occupants rated their thermal comfort, i.e. air movement, temperature, humidity, and stuffiness ... Almost two-thirds of the occupants reported feeling `too much airmovement" or too cold', 'sometimes', `often'; or'always'; during the past year. Eighty-four percent perceived the air as 'too stuffy', the tempera- ture as `too hot', the air as 'too dry', or the air move- ment as 'too little'.:°° "All mucosal symptom clusters were significantly associatedwith the comfort indicators.... Occupants perceiving indoor conditions as hot/stuffy reported eye, nose, throat, and the combined symptom duster two to three times more frequently." "This study was unique in that it selected high and low symptom prevalence areas, identified from an initial census survey, for environmental sampling. This design should have maximized the potential to observe health-exposure relationships and the variabiliry in environmental conditions." "The results do not confirm the suggested positive relationship between symptoms and temperature and the negative relationship bet!ween~ symptoms and humidity:" "The mean temperature and relative humidity were within the standards recommended by the American Society of Heating, Refrigeration~ [sic] and Air-condi- tioning Engineers. Nevertheless, occupants reported a high~ frequency of hot and stuffy conditions.... The associations between symptoms and self-reported thermal comfort suggest that improving occupant comfort, for example through individual control of thermal parameters, may alleviate symptom reporting." [501 "Effects of Restrictive Smoking Policies on I'ndoor Air Quality and Sick Building Syn- drome: A Study of 27 Air-Conditioned Of-fices," A. Hedge, WA Erickson, and G. Rubin, Proceedings of Indoor Asr V3 1: 517-522, 1993 "Five smoking,policies were investigated: smoking prohibited (SP); smoking restricted to rooms with local' C

AUGUST 27; 1993 electrostatic and sorbent air filtration units (RF); smoking restricted to areas with no local air treatment (RNT); smoking restricted to rooms ventilated by a separate exhaust ventilation system (RSV); smoking restricted to enclosed~ offices and open plan cubicle workstations (RWS)." "Concurrent with the indoor climate survey, a self- report questionnaire was administered to approxi- mately 30 workers in the immediate vicinity of each office air quality sample site in each building. Percep- tions of ambient conditions, occupational factors, work-related health, sick building syndrome symp- toms, personal details and smoking history were collected:" "No differences among the policies where smoking was allowed were found for self-reports of either the number of cigarettes smoked daily...or the total' number of person hours spent in smoking areas in the spatially restricted' policies....Although concentrations of pollutants generally were low there were significant differences among smoking policies, and there were differences in the nonsmoking and smoking areas of the spatially restricted policies." "Smoking policy affected LPVPM,,and concentrations were much lower in the SP policy than in the other smoking policies.... For the spatially restricted smoking policies LNPM levels were higher in smoking areas than in nonsmoking areas, although the difference varied among the smoking policies and was greatest for the RF policy." "Nicotine concentrations were significantly different among the spatially restrictive smoking policies, whether the RSV policy was included or excluded: the RF smoking policy had'the highest concentration of nicotine. Nicotine concentrations were higher in smoking areas than in nonsmoking areas for both the RF and RNT smoking policies. In the smoking areas fcr the RF smoking policy nicotine levels was [sic] more than fourfold those for the RNT' smoking policy, whereas in nonsmoking areas nicotine levels were very low for both smoking policies." "Except for the RNT smoking policy where formal- dehyde averaged 0.05 ppm, concentrations generally were at or below 0.02 ppm. Smoking policy did not affect formaldehyde....Formaldehyde levels were slightly higher in smoking areas than nonsmoking areas A-5 in the spatially restricted'smoking policies but there were no differences among the sites for the SP and RWS policies." "CO levels were very low and they were not affected by smoking policy." "The effects of prohibiting smoking versus allowing smoking were tested by comparing the SP and RWSS smoking policies (in SP buildings there was no smok- ing and in RWS buildings smoking could occur at any desk). No significant differences between the SP and RWS smoking policies were found in levels of CO, C02, metered RSP, formaldehyde, illumination, temperature or RH, but UVPM levels were higher for the RWS smoking policy:" "The adjusted average number of SBS symptoms per worker in each building, termed the building sickness score (BSS), was calculated. There was only a marginal effect of smoking policy on BSS, and the BSS was slightly higher for the SP policy than~ for other policies....There were no signifieant associations between passive exposure to ETS at work, at home, at .ather locations, or total passive smoking exposure and the number of SBS symptoms pere worker.... Results showed that reports of stuffy, congested nose...and' hoarseness...were associated with increasing concentra- tions of nicotine. No other SBS symptoms were significantly associated with nicotine levels." "Although there were consistent differences in indoor air quality among the 5 smoking policies which were relate& to ETS the size of these differences was small....LNPM was lower for the SP policy than for other smoking policies, but UVPM did not correlate with the BSS.. I'nterestingly; the highest concentrations of pollutants from ETS (nicotine and UVPIvY) were found in the smoking areas served' by local air filters (electrostatic filters): These devices may have acted as pollutant sinks or may have been poorly maintained or malfunctioning:" "ETs exposure for nonsmokers working,in RWSS buildings was associated with complaints of stuffy, congested nose and hoarseness. ETS exposure of nonsmokers in offices in buildings where smoking occurred was estimated by assuming that a fully burned cigarette releases 820 ug of nicotine into the air that the normal breathing volume of the office worker is 0.516 m3 hr' and that the worker works an 8 hour day

A-6 for 250 days per year. From the nicotine levels shown...a nonsmoking office worker who works in the open office may be exposed to the nicotine content of about 3 cigarettes per year for the RWS smoking policy, and if the worker does not spend time in a designated' smoking area, about 5 cigarettes per year for the RNT smoking policy, about 9 cigarettes per year for the RSV smoking policy, and about 26 cigarettes per year for the RF smoking policy. Whether the estimated exposures in terms of equivalent cigarettes smoked' per year are of significance from a health perspective is beyond the scope of this paper." "There was a marginally significant effect of smoking policy on the BSS, but this was the opposite to that expected: the BSS was slightl+y higher for the SP policy than for other restrictive smoking policies. This result does not mean that prohibiting smoking causes the sick building syndrome, but it suggests that pollutants other than ETS affect sick building syndrome.... The results show that for the among of smoking activity which we observed various spatially restrictive smoking policies can be implemented without jeopardizing indoor air quality for nonsmokers in open offices. Also, they show that the differences in ind'oor air quality which were found do not account for the variations in SBS among the offices studied." [52] "IndoorAi'r QuaTity: Eaploring,Poliry Options to Reduce Human Exposures," K. Teichman, Proceedings oflndoorAir `93'3: 3-19, 1993 "Deciding between the different policy approaches available for reducing human exposures to indoor pollutants is an exceptionally complex task. These options can range from waiting until more definitive information is available to enacting regulatory stan- dards, with many variations in between. This paper presents some of the factors policymakers must con, sider in establishing indoor air quality policies, and the role researchers can play in ensuring indoor air policies are based on the best available science." "The carcinogenic effects of some indoor air pollut- ants (e.g., asbestos, environmental tobacco smoke, formaldehyde, radon) are relatively well characterized, and pollutant-specific policy responses have been (or are currently being) ~ developed to reduce the risks posed by these pollutants. Tn contrast, the noncancer effects (e.g.,, neurologic, pulmonary, reproductive, develop- ETSlIAQ REPORT, ISSUE 54 mental, immune system) associated with many air pollutants at the levels typically encountered ind'oors, both individually and in combination, are not well understood, and non-pollutant-specific policy ap- proaches (e.g., ventilation) are frequently proposed as an initial step toward addressing these risks." 'Quantifying the relative potential health risks associated with indoor air pollution is, therefore, a critical! component in the development of indoor air quality (IAQ) policies, and represents the most impor- tant contribution researchers bring to the polirymaking process." "To address the indoor air quality issue, policymakers have a continuum of policy approaches, ranging from waiting until more research is completed to different regulatory approaches, induding setting regulatory limits on source emissions and indoor levels." "The key for polfcymakers is to determine whi& portions of the indoor air quality problem ... they intend to address using the most effective, and defen- sible, policy approach(es):...This involves addressing the most significant indoor risks with policies that: demonstrate an understanding of the science, are cost effective, and, if appropriate, can be enforced." "In practice, IAQ policymakers infrequently have all of the research results needed to clearly identify a particular policy option. Rather, researchers provide policymakers with the best available scientific informa- tions identifying scientific uncertainties, and policymakers make decisions based upon this and other pertinent information (e.g., economics, anticipated public and private sector reactions)." "The important point is that there must be a dynamic interchange between researchers and policymakers, i.e., between risk assessors and risk managers." "[T]liere are important considerations for establishing both research priorities and policy choices. These indude distinctions between: voluntary and involun- tary risks; occupational and public health policies; and indoor air and indoor environments." "Indoor environments present many examples of both voluntary and involuntary exposures to pollutants. For example, office workers working in buildings with inoperable windows and traditional hating, ventilating and' air conditioning (HVAC): systems are involuntarily (

AUGUST 27, 1993 exposed to the quantity and quality of air distributed'.... The nature of an indoor risk, in addition to its magnitude, should influence the selection of the IAQ policy option used to address that risk." "A second important distinction is the difference between occupational and public healtL risk policies. Occupational standards address pollutant: exposures:..to a healthy adult workforce exposed eight hours a day, 40 hours a week. In contrast, public health risk policies...address exposures to the general popula- tions including sensitive subgroups, exposed over a much longer duration. Which policy approach, if either, will provide the starting point for policies devoted to reducing pollutant exposures in~ public access (i.e., non-industrial~ non-residential) settings?" "Lastly, although some continue to search for a single cause for occupant-reported complaints in~ buildings,, most researchers and:policymakers today appreciate that the causes of indoor air problems in buildings are multifactorial, i.e., combinations of indoor pollutant exposures, inadequate ventilation, and other 'compli- cating factors'....The resolution of occupant-reported' complaints in buildings requires consideration of all of these factors and the interactions among them.... To truly achieve this definition of health requires the provision of healthfiil indoor environments, and not just acceptable indoor air~ quality: To truly achieve 'healthy buildings,' this must be accomplished throughout the life of a building, from design though [sic] demolition, addressing both indoor and outdoor environmental concerns in~ the most-energy-eflicient manner." "EPA published an assessment of the respiratory health risks associated with ETS. This report con- cluded that ETS is responsible for approximately 3000 lung cancer cases each year in non-smoking adults and impairs the respiratory health of hundreds of thousands of children." "The issue of ETS is not a new one to IAQ polirymakers. Many individual policymakers have chosen to ban smoking in their houses, workplaces, automobiles, and other settings. However, at this time (February, 1993) no single U.S. Federal poliry exists for workplace exposures. In recognition of the 'growing body of evidence that exposure to secondhand tobacco smoke is hazardous to the health of nonsmokers,' the U1S. Secretary of Labor directed OSHA to 'commence A-7 rulemaking that addresses the hazards of occupational exposure to secondhand smoke.'" "What IAQ policy approach will OSHA take? Which approach will EPA take in its role ofdissemi- nating information on indoor air quality, which is likely to precede OSHA's culemakeing? Possible responses include, but are not limited to: continuing to allow smoking in the workplace; restricting smoking to designated areas, either with~or without special ventilation controls; and banning smoking in build- ings. "[T]here will likely continue to be controversy surrounding the most effective IAQ policy option to address the radon issue in~ the short-trrm." "[T]he dimensions of the indoor air quality issue associated with problemm buildings are not clearly defined. While greatest attention has focussed'' on noncancer effects in non-residential, non-industrial'' settings, there is little consensus on the sources, pollutants, important exposures, and the populations of concern," "Studies are needed' to assess the IAQ (and energy)) performance of buildings, with special emphasis being given. to identifying those factors that exert the greatest influence on occupant health symptoms." "One approach to achieving acceptable indoor air quality is to ensure adequate ventilation is providedL This is the approach taken in the American Society of Heating, Refrigerating, and Air-Conditioning Engi- neers (ASHRAE) Standard 62-1989." "Frequently forgotten is the fact that by specifying the quality of ventilation air to be provided, in addition to quantity, the ASHRAE Standard 62 ventilation rate procedure also addresses indoor pollutant levels, albeit in an [sic] limited' manner." "Although~ it is an indirect approach: to achieving indoor air quality, most designers use the ASHRAE Standard~ 62 ventilation rate procedure. However, by not addressing the quality of the air used for ventila- tion, they misapply the standard, focussing only on providing adequate quantities of ventilation air. This can lead to the misperception that inadequate (quanti- ties ofj ventilation is the cause of most IAQ problems. Inadequate ventilation is not a course of indoor contamination, but rather allows the pollutant levels

A-8 from existing sources to increase. Buildings are de- signed for people, and people are an indoor pollutant source. Therefore, HVAC systems must provide adequate ventilation air to handle human bioeffluents. However, increased ventilation requirements (and the attendant increase in energy) beyond this minimum needed to provide occupant health and comfort must be balanced ~ against the removal of the offending pollutant source responsible for the increase." SMOKING POLICIES AND RELATED ISSUES [53) "The Effects of a Hospital Smoking Ban on Employee Smoking Behaviour and Participation in Different Types of Smoking Cessation Programmes," H.R. Waranch, W.K Wohlgemuth, DA. Hantulla, R. Gorayeb, and F.A. Stillman, Tobacco Control2: 120-126, 1993 "Objective - To evaluate the effects of a smoking, ban at Johns Hopkins Hospital on employee smoking behaviour and participation in a variety of stop- smoking programmes." "The results presented here showe& that about 13% of the estimated 2000 smokers working in the hospital at the time a smoking ban was announced took advantage of free stop-smoking programmes with the majority select- ing self/minimal-help strategies. Smokers who sought smoking cessation assistance prior to implementation of the ban reported smoking more cigarettes per day than the average employee who smoked. ° "[T]he multicomponent group was the most expen- sive and the one-hour dinics the least. The three self/ minimal-help programmes all required about the same amount of staff time, which involved very little time per participant but a significant amount of staff time overall. The two programmes with the highest successs rate were the multicomponent group and the one-hourr dinics. The three self/minimal-help programmes together had the largest number of participants but very few succeeded in stopping smoking." "These results indicate that different types of smokers may choose different strategies for smoking cessation and suggests that making a variety of smoking cessation strategies available to employees when implementing a more restrictive smoking policy may meet the needs of ETS/IAQ REPORT„ISSUE 54 more employees and result in increased employee participation." "The results presented here also showed'that the self-reported prevalence of smoking among employees decreased by 5.5 percentage points. Additionally, the total number of cigarettes smoked' per day and at work decreased significantly for all reponed~occupational categories." "Overall, the smoking cessation programmes offered here -had only modest success in helping employees to stop smoking. The one-year quit: rate for alli programmes combined was 8.4%, with a quit~ rate of 12.5% for the Multicomponent Group. Actual smok- ing cessation rates may have been greater ihan reported since anyone not contacted was counted as a smoker and only those reporting continuous 12-month abstinence, verified by CO measurement were counted h as successes. "In conclusion,,these results are in agreement with other studies in demonstrating that workplace smokingg restrictions provide a means by which many smokers will reduce their daily cigarette consumption.... Smoking restrictions may also have indirect effects on attitudes and norms about the acceptability of smoking. Policies restricting smoking reinforce non-smoking as the norm as well!as increase social support for smoking cessation."' C

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