Tobacco Documents Online

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