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SHOOK, HARDY&BACON REPORT ON RECENT ETS AND IAQ DEVELOPMENTS September 10, 1993 SHB

REPORT ON RECENT ETS AND IAQ DEVELOPivIENTS. - IN, THIS ISSUE - IN THE UNITED STATES PIEGI.'LATORI" AtiD LEGISLATIVE MATTERS • Five public health organizations want to file memorandum as amid . curiae in ETS Risk Assessment litigation, p. 1' • ASH sends letters to U.S: airlines seeking to keep children out of smoking,sections onn international' flights, p: 2. • Los Angeles court orders citvy clerk to v.erify petition signatures, restaurant ban may go too voters, p: 3. ETS-REL~TED LITIGATION AGAINST CIGARETTE N<l'ANUFACTI:RERS • Latest activity in Blancliard, Butler, MrKinney, and Voth, p. 4. • Two new cases: Bluirt in Texas, and Ch'ustz in Louisiana, v: 5. ETS/IAQ LITIGATION N'OT IN\'.OL\'INGI CIGARETTE iVlANl.'FACTURERS • Broin plaintiff fles ETS complaint with the Federal Elections Commission, p. 6, • Crump files petition for writ of certiorari in the U.S: Supreme Court, p: 6. • Three collective bargaining cases involving the Army, Navy and''i Marines, p. 7. LEGAL ISSUES AND DEVELOPMENTS • ASH sends letter to 50 largest corporations„ P. 9. • "Passive Smoking Ignices Active Legal' Debate,°p. U0. • Maryland attorney found guilry of assault on smoker, p. 10. OTHER DEVELOPK1ENTSWEDIA COVERAGE • Burger King franchisee bans smoking in 55 restaurants, p. 10. •"Rental Providers Seek to Limit Smoking Through Incentives," p. 111. SCI'ENTI'FICLTECHNICAL ITEMS ISSUE 55 • "Respiratory Symptoms in Young Adults Should Not Be Overlooked°", p: 12. • "Infant Feeding, Wheezing, and Allergy: A Prospective Study," p. 12. • "The Influence of Passive Smoking on~ the Fetus During Pregnancy," p. 12. IN EUROPE & AROUND THE \VORLD REGULATORl`AND LEGISLATIVE MATTERS~ • Activities in Australia, Austria, Canada, Israel, Switzerland, Thailand and the United Kingdom, p.14. ETS-REuTED LiTIGATiON INVOLViNG CIG.-1RETTE MANUFA'CTI: RERS • Report on~two-day TIA v. Woodward trial, p. 15. ETS-lZEL-\TED LITIGATION NOT IIN\'vL\'I\(; C1GARETTE MAtiL'F.ACTURERS • Settlement is reportedly reached in Wright t. Ladbrokes; p. 15. O'TiHIER' DE\"ELOP\4ENTS/''.`lED7A COVERAGE • Pretrial centres in Vancouver, Canada. institute smoking accommodation policy, p. 16. • "Passive Smoking., Have you got breathing, space?," conference to be held in the United Kingdom, p. 17. •"Pliblic Policy More Effective Than Indi- vidual Interventions in Smoking Cessation," p. 17.

- TABLE OF CONTENTS - Issue 55 September 10, 1993 IN Ti HE UNITED STATES REGULATORY AND T.EGISLATIVE MATTERS U.S... ENViRONMEN7IAL PROTECTION AGENCY(EPA)~~ [II] ETS Risk Assessment Litigation: Amici Seek Leave to File Memorandum in Support of EPA .....................................................................................1 103DCOO NGRESS. [21 Passage of Federal Building Smoking Restrictions Unlikely ..................................................... 1 U.S..OCCUFATIONALSAFETYAND HEALTH ADMINISTRATION (iOSHA) [3] ASH to Provide OSHA Complaint Forms .......................................................... .................... 2 WHITEHOUSE. [4] Administration NearingAgreemenoon Smoking Ban on InternationaliFligbrs;, ASH Sends,Letters to U,S.,Airlines and Corporations ..................................................-.....-.... 2 U.S: FEDERAL TRADE COM1tiISSION, (FTC) [5] FTC Approves Air Cleaner Measurement System ................................ ............................. 2 AS I-I RAE [6J Meeoings,Scheduled on Ventilation Stand'ard ...............................................................•....-..... 3 STATE AND LOCAL GOVERNME^7TS [7] Court Orders Los,Angeles Clerk to Verify Signatures ......................... ........ ............................. 3 [8] ETS-Relared State and'Local Legislation ................................................................................. 3 ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [9] BGrnrhard.' Hearing on,Monions,to Transfer Venue and to Strike to be Held on September 13, 1993 ............................................................................... 4 [10] Bluitt: Case Filed'in Tyler, Texas ............................................................................................. 5 [11] Butler. Hearing on Plaintiffs' Motion forProtective OrdecScheduled ro be Held on September, 10, 1993 .......................................................................................... 5 [12] Chustz.-Case Filed'im Louisiana ............................................................................................... 5 (13] 161cKin.rey: Nevada,Supreme Court Dismisses Plaintiff s Appeal .............................................. 5 [14] Voth: Second Amended Complaint Filed .................................................................................6 ETS/3AQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS ELECTION HEADQUARTERS: DISABILITR`~DISCRI[e1INAT1051 [1i5] Young,r. Democratic aational Committee (Federal Elections CommissionT (Filed August 1993) .................................................................................................... ............. 6 GOVERNMENTBL'ILDING EXPOSU.RE [16] Crun:p v. Dppartmenr ofHealth and Human Services, No. 93-265 (U.S. Supreme Court) (petition for review filed May 17, 1993) ........................ ..................... 6 WORKPLACE: COLLECTIVE BARGAINING (17] Department ofthrPVavy,,Naval Computer Telecommunications Station, East.tifachias,, Maine and'Local2G35. American Federation of Governmrnr Employees;. AFL-CIO, 1993 WL 310383 ('~Fed'eral Service Impasses Panel) (d'eeided August 12, 1993) ...... 7 [ 18]' Department of the Army. Army^ Reserve Personnel Center, St. Louis, Missouri and L'ocal90Q, American Federation ofGovernmentEmpl¢yees, AFL-CIO:, 1993 %VL 317674 (Federal Service Impasses Panel) (decided August 1191 1993) .......... -.......... ' [19) United States Marine Corps, lY/ashiagton. D. C. and American Fedrration of GovernmentE-mployees. 1993 W'L 310441 (Federal',Labor Relations Aurhority) (decided Augusr, 10, 1993) .................................................................................................... .. ? WORKPLACE: FAIR. REPRESENTATION [201 John Deere Co.. Local 125: United Auto LS'orkers, 1993 WL 321785 (Office of General Counsel., National Labor Relations Board)~(decidcd July-, 29, 1993) .......... - ........................................... W WORKPLACE: PERSONAL INJURY (21] Roos v. Ally and Gargano„Inc.. 1993 Conn. Super. LEX1S 2142'(Supcrnor Court., Stamford, Connecticut) (decided August 19,,1993)' ............................ .- ............................. 8

Contents Continued, Issue 55 WORKPLACE: UNION'. REPRESENTATION (I22] AI' Green'Industries: 11993 WI. 321:784 (Office of General Counsel, National Labor Relations Board) (d'ecided July 30, 1993) ..............•.......--...-....-.•.•.•.....-....-•..-. 9'' PRISONER'CASE ['23] Gaster v. Campb'ell; 1993 UIS. App. LEXIS 22433 (U.S. Court of Appeals, Fourth Circuii)' (decided~ Septcmber 2, 1993) .......................................................................... 9 WORKPLACE: jAQI'SICK BUILDING SYN~DROME. [24] Elliot v: San Joayuin County Public Facilities Financing Corp., No. _'44i 601 (Superior Courc, San Joaquin County, California) (filed 1991; compl'aint amended June 1993) .............................................................................................. 9. LEGAL ISSUES AND DEVELOPMENTS [25) ASH Send's Letter to 50 Largest Corporations ......................................................................... 9 [2(>] "Passive Smoking Ignites Active Legal Debate,7R. Barton Conlin, Journal ofthe Massaehuserrs ,4cademy of'TrialAt¢orneys;,July 1993 .......................................... 10 (27] Lawyer Found Guilty of Assaulting,Smoker in Restaurant ..................................................... 10 ['8] "Employers' Screening Procedures Under the Americans with Disabiliries Act: What's~Legal?'uG'hat's ]llegal?,~'hat.'s Debatable,"' R.B. Firzpatrick. ALI-ABA'',Course ofStudyi EmploymenrDiscrimination and Civil Rights Actions in Federal and State Courts. June 3, 1993 ................................................. 10 OTHER DEVELOPMENTS [29]I Burger King Franchisee Bans Smoking .................................................................................. 10 (30]1 Smoking Ban for SiafAat Illinois Centers for Disabled .........................-.........-............-.......- 11 (31'J Consumer GFoup Terms Secondhand Tobacco Smoke a "Hidden H'azard" .......................... I I MEDIA COVERAGE [32] "RenrallPioviders Seek to Limit Smoking Through Incentives," Star Tribune, August 211, 1993 ................... .................................................................. .......... .1 l~ SCIENTIFIC/TECHNICAL ITEMS UPCOMING MEETINGS [33] "Vennilationiand Indoor Air Qualitv Worksbop,° Research Triangle Park, Raleigh, North Carolina, September 14'. 16, 1993 .......................... ..................... ....._........... l 1 (34] "The National Environmentall Tohacco Smoke Conference: Public Battles. Private Choices," The Hyatt Regency on Capitol Hill. Was'hinqton D.C., Dtcember, 16-17, 1993 .......................................................................... l l LUNG CANCER [35J Editorial Regarding'"Involuntary Smoking in the RestauranrVC'orkplace: A Review of Employee Exposure and Health Effects." M. Siegel„ JournaL of the Airrerican /4ledical'Association 270(4): 490-493, 1993 ..............-...-.........- 11_l' RESPIRATORY DISEASES AND CONDITIONS -- ADULTS [36]I "Respiratory Svmptoms in Young Adults Should Not Be Overlooked,"' MiS. Jaakkola, J.J.K. Jaakkola, P.,Ernst, and M.R. Becklakc, American Review of Respiratary Disease 147:,359-366, 1993 [See Appendix A) ....................... 1 2 RESPIRATORY'DISEASES AND CONDITIONS -- CHILDREN [37]' "Infann Feeding, Wheezing, and Allergy: A Prospective Study." Mi.L. Burr. OTHER HEALTH ISS E.S. Limh„M.JF Maguire, L. Amarah, B.A. Eldridge, J.C.M. La.zell. and T.G. Merrect, Archives o,fDirease in ChildhoodG8: 724-728, 1993 [See Appendix A] ............ 12 UES (38] "Predictors of Early 5chool!Failure Among Children in the United Srates.° R_5: Byrd, K.J. Roghmann„and'M_ Weiczmam American fournal ofDisevues of Children 1147(4): 459, 1993 [See Appendix A] ................................ ....................................._ 1 '_ ['39] "The Influence of Passive Smoking omthe Fetus During Pregnancy [translation],"' M. Pan, Z. Zhang, C. Wang, X. He. Z. Meng, G. Zhou, and H. Mao. China Obstetrics and Gynecology Magazine 27(6). 1992 [See Appendix A] .............................. 12

Contents Continued,, Issue 55 ETS EXPOSURE AND MONITORING [40] "Cigarette Smoke Exposure of School Childrene Effect of Passive Smoking and' Vitamin E Supplementation on Blood Antioxidant Stacus," A. Jendryczko, G. Szpyrka, J. Gruszczynski; and M. Kozowicz„/Vnoplasma 40(3)_ 199-203, 1993 [See Appendix A] ................................................................................ 13 [41] "Biological Ivtarkers of Intrauterine Exposure to Cocaine and Cigarette Smoking," G. Koren, J. Klein, R. Forman, K. Graham, and M.-K. ['han, DevnlopmentaL Pharmacology and Therapeutics l8. 228-236, 1992' [See Appendix A] .....................................1 3 [42] "Cadmium and''Lead! Levels in House Dust from Smokers'.'and'Non-Smokers' Homes Related to Nicotine Levels," S, Willers, H.O_ Hein, A. Schutz, P. Suadicanii and1F.,Gvntelberg;, lndoor E'nvironmenr 2: 14-1 8, 1993' [See Appendix A] ............................. 1 3 INDOOR AIR QUALITY [43] "Resolving IAQ Complaints with Ventilation Sysrem Operations and Maintenance (OBLIvt):," J; A. Ventresca and J.S: Shrack, Proceedings of li doar Air '9_3 6: 349-354. 1993 [See Appendix A],.... .................................................................................. 13 SMOKING POLICIES AND RELATED ISSUES [44] "Effects of a City Ordinance Regulating Smoking in Restaurants and'RetaillSrores," J. Sciacca and M. Eckrem, Journal ojCommutriry Health 18(3): 175-182„ 1993 [See Appendix A] ......... ............................................................................... .............._........................ 13 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS A(l'STR4LIA. ('45] Bundaberg,City Councilllncreases Smoking Restrictions ....................................................... 14 [46] Community Group Lauds City Council for Banning Smoking ............................. ................ 14 [47] Designated Smoking Areas Nixed by Ul'marra Health Committee ........................................ 14 AL:5TR114 [48] Tobacco Law Stalledlby Objections of Economics Minister .................................................. 114 CANADA [49) Ottawa Council Votes oniSmoking Regulations .......... ..._......................................... ............ 114 ISRAEL . [50] Tennis Centers Declared "No-Smoking Zones" ........................... ....._ ................................. 14 SWITZERIA~ND ................. 14 [>1] LaborLegislationton ..Procecrion'ofNonsmokers...... __. THAIL4ND ............................ 1 [52) Health Ministry to Enforce Antismoking Laws ........................................................... UNITED, KINGDOM [53] Workers Challenge Smoking Ban .................................................... .................. ....._.......... ... 1 5 ETS-RELATED LITIGATION INVOLVING CIGARETTE MANUFACTURERS AusraAUA [54j', TLA v. Stephrn Woodiuard (Supreme Court, Equit3, Division, New South Wales) (filed April 15, 1993) ...................................................... .......................... ...._......... ............. 15 ETS-RELATED LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS UNITED. ICINGDOM~ 1551 Wright v. Ladbroktr (Industrial Tribunal, Birmingham)' (decided May 27. 11993) .................. 15 OTHER DEVELOPMENTS AUSTRALIA[56] Health Aurhority Produces "Please Don't Smoke NearMe° Kits ...........................................16 [571 Queensland Warchhouse Smoking Ban Relaxed .....................................................................16 [58] Invention May Save Building Owner Litigation Fees ............................................................. . 6 (591 New South Wales Sports Club to Restrict Smoking .............................................................. 16 [60] Tobacco Growers Concerned About Smoking Bans .............................................................. 16

Contents Continued, Issue 55 BOSNIA,AND HERZEGOVINA [61]1 Smoking Bans Not a Prioriry.'in Sarajevo ............................................................................... 16 CA N i4DA [6211 Vancouver Ptctrual Centre Iimposes Smoking Restrictions ........................................•....••..-... 16. NETH'ERLANDS[63] Council'Urgcs Caution in Adopting Railway Smoking Ban .................................................. 17 NEw ZEALAND~ [64] Motel LodgcImposes Smoking Ban and Claims,Occupancy Level Up................................•. 117 UNITED KINGDOM (65] ETS Conference Scheduled imLondoni .................................................................................. 117. MEDIA COVERAGE AG'STRALI.A (66] "Public Polic)i More Effective Than Individual ]nterventions in Smoking Cessation," S., SINGAPORE [I67.] Chapman, Britir/zllfedinalJournal, August 28, 1993 ............................................................. 17 "Primary Texts to Have Don't-Smoke !vtessages,"' TlieStraiu Ti»res„August 23, 1993 .......... 17 APPENDIX A .................................................................................................... ............................. Article Summaries

SEPTEMBER 10, 1993 1 REPORT ON RECENT ETS AND IAQ DEVELOPMENTS REGULATORY AND LEGISLA.TIVE MATTERS U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) (1) ETS Risk Assessment Litigation: Amici Seek Leave to File Memorandum in Support of EPA Several public health organizations have soughr leave to file a memorand'um as amici curiae M support of the EPA's motion to dismiss the lawsuit challenging the validity of the EPA Risk Assessment on ETS. The proposed memorandum essentially urges the court to rule that the complaint is not reviewable under the Administrative Procedure Act (APA). The organiza- tions filing the motion are the American LungAssocia- oion, American Heart Association, American Cancer Society, American Public Health Association and Public Citizen. The interests to be advanced by the organizations are stated as: (i) "an, interest in seeing that the public has access to scientific data about the hazards posed by smoking, ..." and (ii) "an interest in seeing that govern, ment agencies can issue scientific reports on public health~ issues without being subjected to lawsuits seeking to invalid'ate scientific conclusions on health hazards." As a preliminary matter, the memorandum which the arnici propose to file seeks to direct the court's atten- tiom to the parts of the ETS risk assessment dealing with purported health effects of ETS on children, Amici argue that these parts of the risk assessment would not be affected by the plaintiffs' challenge to the cancer studies on which the risk assessment is based. Amici also survey other government reports about ETS and outline the steps taken by the EPA in issuing the risk assessment. Amici argue that the risk assessment was not issued as part of any regulatory proceeding to limit ETS expo- sure and! that the risk assessment does not impose any direct obligations or limitations on any of the plaintiffs. Amici characterize the risk assessment as simply one of many scientific reports issued by government agencies each year on the degree of risk posed by various substances or conditions, and argue that "the APA does not let disgruntled parties use federal courts as a vehicle to attack the issuance of government reports that impose no regulatory obligation," Amici also argue that the risk assessment, which they characterize as a mere report„does not constitute final agency action reviewable by the court. According,to the amici memorandum, the risk assessment "understates the health risks posed by ETS" and "broke no new scientific groundi" (Emphasis in original.) In this regard, amiciargue that it is unlikely the plaintiffs will be able to prove that a favorable rulingby the court would reverse any of the actions taken by government and private entities to ban smoking. The response of the tobacco industry plaintiffs to the EPA's motion to dismiss is due on September 20, 1993. Flue-Cured Tobacco Cooperative Stabilization Corporation, et a!.', v. EPAI No. 6:93CV370 (U.S. District Court, Middle District, North Carolina) (filed June 22, 1993). 11~03D CONGRESS [2]I Passage of Federal Building Smoking Restric- tions Unlikely According to a press report, a number of Congress- men are predicting that Senator Frank Lautenberg's (D-N!.J.) PRO-FEDS legislation, which was added in the Senate to a House appropriations bill (H.R. 2403)„ willl be removed from the bill in conference. The chair of the House Appropriations Committee, William Natcher (D-Ky.), is saidto oppose the smoking restric- tion amendment and to wield considerable influence over what the negotiators will decide in the conference commictee. The amendment would restrict smoking in federal buildings to areas with separate ventilation.

, During debate on the PRO-FEDS measure in the Senate, Senators Wendell Ford (D-Ky.) and Mitch McConnell (R-Ky.) criticized the EPA Risk Assessment on ETS„and McConnell argued that there is "insuff- cient science or logic to justify" adopting legislatiom that would severely restrict smoking in federal!build- ings. Senator Ford argued before the Senate that indoor air quality should not be addressed on a product-by-product basis. According to an aide for Representative James Trafhcant ('D-Ohio), who, has also ~ introduced legi'slation to restrict smoking in federal buildings (HIR. 88'1')Representative Natchersi-.ill likely prevail during confer- ence negotiations. See Star Tribune, Augusr 29; 1993. U.S. OC0:P.-1T10`AL SAFET1' .-1ND HE.-\LTH . AD\I1tiISTR-\TION (OSHA) [3] ASH to Provide OSHA Complaint Forms In the current issue of the Action on Smoking and Healrh(ASH)publication Smokinganrl'Health Rrview,. ASH advises readers that it willi soon have "official OSHA complaint forms" available to its supporters soo they may f le anonymous complaints with the agency about workplace smoking, ASH says complaints filed wi'th OSHA may "hel'p persuad'e OSHA to issue an across-the-board rule banning smoking in the work- place." ASH asserts that in complaints filed with OSHA, as opposed to ones filed under the Arttericans with Disabilities Act, the complaining party is not required to claim a "special sensitivity to tobacco smoke," and t~hae this process "is part of an escalating, ASH offensive to persuade OSHA to protect workers from~ the established'' dangers of ETS." See Smoking and Health Review, July-August 11993. WHITE HOUSE [4] Administration Nearing Agreement on Smoking Ban on International Flights; ASH Sends Letters to U.S. Airlines and Corporations The Clinton ad'ministration reportedly is hoping to conclude within months agreements with Australia, New Zealand and Canada to ban smoking on interna- tional flights involiving these countries. Similar negotia- tions are under way with~other countries, reportedly ETS/IAQ REPORT, ISSUE 55 with~a goal of smoke-free flights worldwide by 1996. See issue 50 of this Report, June 25, 19931 Last fall, a worldlairline no-smoking policy wass negotiated by the International CivillAviation Organi- zation„a branch of the United Nations. However, since that policy does not includ'e enforcement provisions, separate international smoking policy agreements must be negotiated. See USA Today, September 3, 1:993. Meanwhile, Action on Smoking,and! Health (ASH)' says it has sent„by certified mail, letters to U.S. airlines asking that they voluntarily prohibit the seating of children in smoking sections on i'nternational flights. ASH says that if the airlines do not comply, it will petition the U.S. Department of Transportation to adopt such ai rule. The Iprter apparentlyy placed ann emphasis on the contained in clk. EPA Risk Assessment on ETS: See ASH Smoking and Health Review; Jlulv-August 11993. U.S. FEDERAL TP.-\~DE ~ Co~~MIMISSIO~N (~FTC)~ [51 FTC Approves Air Cleaner Measurement System The FTC, after studying the issue for l l vears, has reportedly approved a rating,system that measures the effectiveness of air cleaner removal of ETS according to room size. The "clean-air delivery rating" (C:-1,DR) is a measure of the quantity of clean air produced by an air cleaner unit in a cubic-foot peo-minute calculation. Separaten~umbers are used to evaluate pollem dust and ETS removA but only the ETS removal was report- edly approvedl by. the FTC. The new ratings, which willlappear on seals applied to the air cleaners of participating,manufacturers begin~ ning January 1, 1994, will show the maximum air cleaning effect for ETS in a room of a specified size. The new system~w•as evidently designed to.give con- sumers a!way to evaluate the efficiency of air cleaning units. While some manu.facturers are apparently enthusiastic about the new ratings, others, criricallof the fact that the test procedures were devel'oped by afor-profit corporation, are taking issue with, the standards. See HFD -- Tlie Week'IyHome Firrnrshings 1993. Newspaper„August 9.

SEPTEMBER 10, 1993 ASHRAE [6] Meetings Scheduled on Ventilation Standard ASHRAE has scheduled a series of meetings on the revision of its Ventilation Standard 62-1989 for November 5-7, 1993, in Philadelphia, Pennsylvania. The meetings are open to Standing,Standards Project Committee 62 (SSPC 62) members who are revising the standard and! to "persons directly and materially affected by the appllcable requirements of Standard62-1989, as space allows." Further information on the meetings can be obtained from William Gene Tucker, Chairman of SSPC 62, or ASHRAE Headquarters, Standards Section, (404) 636-8400. STATE AND LOCAL GOVERti'MENTS [7] Court Orders Los Angeles Clerk to Verify Signatures On September 2„ 1993, Superior Court Judge Robert, O'Brien reportedlyy gave the Los Angeles City Clerk until Octcber 4, 1993, to verifiy, all 97,572 signatures collected by opponents of the city's restaurant smoking ban. See issue 53 of this Report, August 6, 1993. Meanwhile, city officials continue to predict that the petition drive will fall short of the 58,275 valid signa- tures required to place the matter on; the ballot. In earlv Augusr, the city clerk had invalid'ated the petition drive, based in part on a.requirement that petitions be circulkte& only by regi'stered city voters. Judge O'Brien ruled t~hat the requirement was uncon- stitutional. Thereafter,, city officials recounted a random sample of signatures and'reported that 55 percent of the signatures were valid„triggering the judge's order to verify alllof the signatures. Meanwhile, the smoking ban remains in effect. Judge O'Brien has said that„if the requisite number of signatures are verified„he has not ruled out the possi- bility of placing the matter on the November ballot. See Los Angeles Times, September, 3, 1993. [81 ETS-Related State and Local Legislation • California The California legislature, set to adjourn on September 10; 1993„has failed to take any further action on A.B. 3 13. The bill reportedly stalled in the state Senate Judiciary Committee. The measure would have banned~ smoking Mall workplaces, restaurants, malls, hotels, airports and other public places. See issue 51 of this Report, July 9, 1993, Appendix B. On August 31i„ 1993', the billldid not come to a vote amid reportedly clear indications that it would be defeated'. The committee reportedly urged Terry Friedman, (D-Encino)4 the bill's sponsor, to returni next year for a vote. The committee chair was reported to say the measure was too broad and needed further amendments. The legislature is seti to begini its next session in January 1994. See Los Angeles Times, Septem- ber li„ 1993 and Sacramento Bee, September 1, 1993. On September 1, 1993, the state Assembly approved A.B. 291 and sent it to Governor Pete Wilson (R) where it now awaits his signature. Introduced by Assemblywoman Jackie Speier (DLBurlingame), the bill prohibits smoking, in all state-owned and state-leased facilities, includino,the Capitol and all legislative o€fices„The measure al'so bars smoking within five feet of all state building entrances and within state-owned'! vehicles, including police cars. See Sacramento Bee, September 1, 1993_ A,B. 615 has been sent to the Governor for his signa- ture. The bill prohibits smoking,on the premises of child day care centers, including,private residences licensed as family day care homes during hours of operation. SeeA.B. 615,,Regular Session (1993'-9-'f)~. On August 23'. 1993, A.C.R. 58 was defeated in the Assemblv. The resolution would have required that smoking be allowed in stairwells and in, designated portions of the cafeteria in the State Capitol', building annex. SeeA.C.R. 58, Regular Session (1993-94).. • Local Governments in California Agoura Hills. According,to a news report, on Augustr 25, 1993, the city council approved an ordinance prohibiting smoking in restaurants. There was no: opposition. See Los Angeles Times, August 27, 1993'. Cal'abasas: The City Council voted 4-1 in favor ofan ordinance prohibiting smoking in stores, restaurants and' other public places. The councill indicated it might ~ seek to include workplaces. Exceptions were made for ,~. bars, bars in restaurants, hotel rooms and'tobacco ~ stores. Antismoking advocates testified, citing "well-publicized reports on the hazards" of ETS. See Los Angeles Times, September 3, ll9931

Long Beach. Referendum petitions reportedlyy were submitted on August 27. 1993, calling for a referen- dum on that citti's ordinance banning smoking in restaurants. Enforcement of the ordinance was sus- pended for verif catiom of signatures. The Long Beach City Council'' approved the ordinance in late July. See issue 53 of this Reporo, August 6, 1993. San Francisco. Supervisor Angela Alioto introduced on August 30, 1993, a resolution to bamsmoking in all San Francisco workplaces. The ban would cover interior work areas except hotel rooms and bingo parlors. Candlestick Park would also prohibit smoking. Public testimony was scheduled to be heard' on September 8. See The San Francisco ~ Chronicle, August.31, 1993. Santa Clarita: The cit}• council will consider a staff-recommendedlantismoking ordinance that would restrict smoking in restaurants and workplaces. See Los A''ngelesTimes, August26,1993.. • Florida SixteeniSmoke & Snuff tobaccoistores, a tobaccoo wholesaler and a cosmetics store owner are filing an administrative challenge to a state regulation prohibit- ing smoking in bus and raill stations, malls, airports, and universities, which is scheduled to go into effect October 1, 1993. The opponents argue that the Department of Health and' Rehabilitative Services' new rul'e illegallv expands the intent of the 1992 Florida Clean Indoor Air Act, which prohibits smoking,in the common areas of public places and workplaces, but d'oesn't mention shopping malls. The Department has reportedlti, said that the effective date of the rule will be postpone& until December 1. See Associated Press; August 27, 1993, andl other press reports. • Local Governments in Louisiana At least two government bodies have reacted to a: smokers' rights law passed by the Legislature by passing local smoking,restriction ordinances before the legisla- cion takes effect. As of September 1, 1993, locall governments cannot pass smoking laws more restrictive than the state law; which states that smoking cannot be banned! entirely in government offices or some other buildings open to nhe public. Jefferson County. On August 25, 1!993; the Jefferson Parish Council voted! to restrict smoking to people's homes and'cars, then suspended the law until January 1, ETSIIAQ REPORT;,ISSU'E 55 1995. The Councillfurther exempted restaurants, bars, nightclubs; tobacco stores, and hotels and motels from~ the law. See The Times-I'ieayune„August 26, 1993: SlidelL The City Council, on August, 24, 1993, passed an ordinance establishing smoking,regulations for all the city's municipal buildings except the police depart- ment. Mayor Sam Caruso reportedly said he will likely continue the ban:on smoking in most buildings, with the possible exception of special events where people rentt buildings from the city. See The TimesrPicayune, August 26; 1993.. • New Yo rk According to a news report, A.B, 4594 was withdrawn pursuant to an agreement between the bill's sponsor,. Michael J. Tully, Jr: and the state building manage- ment organization. They' agreed that further researchh was needed before the bill coul6 become law. As introduced on April 22„ 1993,, the bill would require owners of non-residential buildings with flbor space greater than 25,000 sq. ft. to devise and imple- ment operation and maintenance plans for HVAC systems to assure compliance with A.SHRAE standards. According to the report, Peter L. DiCapua, president of the Building Owners and Managers Association (BOh14) of New York City said that the bill is fauln~ in, "indicating that there was rerroactivin, of the maintenance standards" for all buildings throughout the staoe. Buildlings designed before 1989, the vear the ASHRAE standards -,vere promul'gated, would haveto, comply with those standards, even if they were de- signed appropriately- and safely. A lhuil'din gding might suddenly be "in violation of law" and have to retrof'it to meet the 1989 stand'ard's: See Indoor Pollution Law Report;,August 199'3: [91 ETS-RELATEDLITIGATION AGAINST CIGARETTE ivtAiv`!UFACTURERS Blancfiard Hearing on Motions to Transfer Venue and to Strike to be Held on September 13, 1993 On September 13, 1993, Judge Engelke will convene a hearing on defendants' motions to strike andl to: transfer, venue. In broad terms, the motions contend that the current venue of Galveston County, Texas, is

SEPTEMBER 10; 1993 improper because plaintiffs"causes of action did not accrue there; that the claims asserted on behalf of the various plaintiffs did not arise out of the same transac- tions or occurrences; that plaintiffs did not seek leave of the court before filing,their supplemental and amend'ed petitions, whiclih added new parties to the case; and that the petitions are improper attempts at forum-shopping. Three of the 14 plaintiffs in this case presently, allege injury from exposure to ETS. Raye Blanchard and Tamara Reed, mother andldaughter, both claim damages for unspecified "illness and disease" allegedly resulting from exposure to the ETS from cigarettes smoked by Raye's d'eceased husband; Thomas, and by Raye herself, who claims she smoked °for about ten years." The third ETS plaintiff, Pamela Kastrin Stephens, claims unspecified "lung andl respiratory diseases" allegedly caused by exposure t&the ETS from the cigarettes smoked by her deceased father. The named defendants are purported to be the six major U.S. cigarette manufacturers, The Tobacco Institute, the Council for Tobacco Research, and a number of wholesalers and retailers. Blancbard, etal, v. R:f. Reynolds Tobacco Company, et al (District Court, Galveston County, Texas) (filed July 31, 1992). [10] Bluitt. Case Filed in Tyler, Texas On August 30„ 1993, Alfred Bluitt filed suit individu- ally, as representative of the estate of his late wife, and as next friend of his minor childrzm in the UIS. District Court for the Eastern District of Texas, Tvler Division. Mr. B'luitt alleges that his late wife, Willie Ruth~ B1'uiit, was a nonsmoker who died'.on July 1, 1993, of lung cancer that was purportedly caused by her exposure to "substantial" environmental tobacco smoke ` during her employment with Texas Instruments, Inc., and elsewhere d'uring her short lifetime." Neither the decedent''s age nor the length of time she was employed at Texas Instruments is specified in the complaint. Texas Instruments is not named as a defendant in the action. Defendants named in the complaint are R.J. Reynolds; Brown & Williamson;, Philip Morris; Liggett Group; Liggett & Myers; American Brands; American Tobacco; Loews Corp. and Lorillard. Plaintiffs seek $25,000,000 in actual damages and $500,000,000 in punitive damages. They are repre- 5 sented by two attorneys from the Mesquite, Texas, firm of Ted B. Lyon & Associates, P.C., Ted B. Lyon, Jr., and Bill Zook. Neither have been involved in prior tobacco litigation. Blui'tt v. R.J Reynolds Tobacco Company; et al, (U.S. District Court, Eastern District of Texas, Tyler Division) (filed August 30; 1993). [11] Butlen Hearing on Plaintiffs' Motion for Protective Order Scheduled to be Held on September 10, 1993 As of this writing, Judge Gibbs was scheduled to hear oral argument om September 10, 1993, on plaintiffs" motion~ for protective order~ regarding defendants' deposition nooice for plaintiff Ava! Dean~ Butler. In this ease plaintiffs contend that Burl Butler, a Laurel, N4ississippi~ barber, developed lung cancer as a result of his exposure to environmental tobacco smoke. The defendants in this ease consist of the six major U.S. cigarette manufacturers and several local retailers. Butler v. RJ Reyrrolds Tobacco Compan}; et al.' (Circuit Court, Hinds Counov; 1lississippi) (filed October 21, 1'992). [12] Cliustz: Case Filed in Louisiana R.J. Reynolds and American Tobacco are the onh• defendants namedl in a case filed by attorney George Covert on August 13, 1993, in the U.S. District Court in Louisiana. Plaintiffs are the sun•iving spouse and heirs of Charles Chustz, a smoker who allegedlk• died of Iung cancer on Januarv 24, 1993. Plaintiffs contend that during ohe time period of 1'1942-1991, Mr. Chustz "smoked and %vas exposed to environmental tobacco smoke from cigarettes manufac- tured by defend'ants." Plaintiffs seek unspecified dollar amounts,inactual damages„damages for wrongfulldeath and for loss of consortiums and $75,000 in special damages. Mr. Covert is being assisted in the case by Baton Rouge attorney James Piker. Cbustz v. R:J Reyno111s Tobacco Company; et aL (Ui.S: District Court, Middle District, Louisiana) (filed August 13, 1993)', [13) MrKrnney. Nevada Supreme Court Dismisses PlaintiEfs Appeal, On August 26, 1993, the Nevada Supreme Court dismissed plaintiffs appeal, holding that plaintiffs complaint failed to state a claim for relief under, 42 U.S.C. § 1983 and that plaintiff had no private cause

G of action under the Nevada Constitution against the d'efendants. The order was issued before the defendants submitted their brief in opposition to plaintiffs brief. Plaintiff William McKinney, who is incarcerated in a Nevada jail, contended R.J. Reynolds andl Brown & Williamson failedl to warm of the health effects of ETS exposure. He alleged he has fai'rly general health problems caused by his exposure to ETS, (emotional paim severe headaches, itchy and watery eyes, recurring chest pains), 11-1cftiinney v: C.1lI. Products, Inc., eral. (~District Court, White Pine County, Nevada)' (filed ti4archJ, 1993). tiicKinney also is the plaintiff in a civil! rights case against Nevada prison officials regarding his exposure to ETS while incarcerated. On June 18, the U.S. Supreme Court remanded the case toi the triallcourt to give McKinney an opportunirv to tn, to prove his case. See issue 50 of this Report, June 25,, 1993. [ 14] i%tlr. Second Amended' Complaint Filed On Auguso 1i0„ 1993, plaintiff filed an amended complaint, purporting,to add products liability claims to his previously-filed civil rights action. Plaiittiffs original'complaint was filed against Forsvth Tobacco. Prodkrcts, R.J. Reynolds andl Browni & Williamson. The amended complaint names two: addioionall rette manufacturers, Philip Morris and Plmerican, as defendants. Plaintiff seeks 5 12 million in actual damages, S500,000 in nonreconornic d'amages, and 530 million in punitive damages in the amended complaint. Plaintiff also seeks an injunction to bani the sale of cigarettes in OregonL Frank Voth, who: is incarcerated in the Oregon State Penitentiiary„alleges that his civil rights have been violated as a result of his exposure to ETS. He claims that he has "incurred permanent health d'amage and is at risk of death" as a result of ETS exposure. Defen, danos in~ Voth are Forsyth Tobacco Products, R.J.. Reynolds, Brown &Williamsom Philip Morris and American. uoth v. Forsytli Tobacco Products, et aL (U.S. District Court, Oregon) (filed April 27, 1993). ETS/IAQ REPORT, ISSUE 55 ETSLIAQ LDTIGATION NOT INVOLVING CIGARETTE MANUFACTURERS ELECTION HE-\DQUARTERS:' DISABIiLIT1` DISCRliI`tINATION [i15] Young v. Democratic National Committee (Federal Elections Commission) (filed August 1993). Airline flight attendant Patricia Young, who is one of the named plaintiffs in the Broin litigaaion, has report- edlyfiled a! complaint with the Federal Elections Commission (FEC) alleging thatshe was denied'1 her right to volunteer for President Clinton's presidentiall campaign because lbcal campaign officials refused to prohibit smoking in, the Dallas campaign headquarters. Claiming that she is handicapped under federal law due tolher hypersensitivit}~~ to ETS, Young is asking the FEC to deny federal campaign funds to the Demo- craoic National Committee and the Clinton campaign °unless thev aoree not to discriminate against the handicapped in future elections." Young,apparently did not file the complaint earl~ierasshe did not want to jeopardize Clinton's prospects in ohe election„but she claims that she began complainin~ to Democratic campaign officials in September 1'~99'', when she asked that smokers, be required to go outside. Officials with the Democratic parn• reporredlh, do not recallspeaking, with Young abour the issue. SeeAssocr- atedP'ress, August 25„ 1993. G(_)`TRNM,LtiT BUILD[`'C~ E\[PoSL-RE [ 16] Crump v. Department of Healtl> and Human Services, No. 93-265 (U.S. Supreme Court) (petition for review filed May 17, 1993) PlainniffThomasA. Crump has filed prose, a petition for writ of certiorari in the U.S. Supreme Court to challenge lower court decisions dismissing his actionito ban, smoking in state andl local government buildings. Crump's claims allegedly arose out of an incident occurring in ohe H'enrico County Courts Buil'ding„Virginia, in November 1991„when he observed someone smoking in a posted nonsmoking area. He allegedly asserted his righo 0o redress violations of"natural and civil'rights"'under the Preamble and the Firso, Ninth and Fourteenth Amendments to, the U.S: Constitution, and!he claimed that his rights had

SEPTE!s-IBER! 10, 19933 been violated by the defendants' failure to protect him fromi ETS. In his complaint, Crump ('i) sought to ban smoking in the county courts building and! in allistate buildings; (ii): requested that the court close all cigarette manufac- turing plants in Virginia and the Ui.S.; and (iii) re- quested''that the court provide a smoke-free environ- ment for all people. Defendants in the case are the Department of Health and Human! Services, EPA, OSHA, FDA, U.S. Congress, the President of the U.S., the Virginia GenerallAssembly, and the Governor, of Virginia. The district court, in a memorandum opinion, determined that the federalldefendanos were immune from suit and that the complaint stated no cause of action against them; inasmuch as the alleged violation of a state smoking law does not constitute a violation of federal law and cannot be redressed by the federal government. The court observed that it could not enjoin lawful activity and thus determined that it could not enjoin the manufacture and sale of cigarettes. Crump was advised to address his concerns "through political means, such, as by educating and.enlightening, the voting public and their elected representatives." In a separate opinion„the district court also dismissed the state defendants on, the basis of sovereign immu- nity. The U.S. Court of Appeals for the Fourth Circuit affirmed. Crump v. U.S. Dept: of Healih and Human Services, 1993 U.S, App.,LEXIS 3002 (4th Cir. 1993). WOR1:PL\CE: COllLECTIVE BARGAINING [17] Department of the Navy; Naval Computer Telecommunications Station, East Machias, Maine and Local 2635, American Federation of GovernmentEmployees,,AFL-CIO, 1993 WL. 310383 (Federall Service Impasses Panel). (decided August 12, 1993), A federal arbitration panel has agreed with ani employer"s proposal that smoking be restricted indoors at a remote facility on the Atlantic coast of Maine. Pursuant to this proposal, smoking will be permitted onNy in family housing units, bachelor enlisted quarters and! a recreation area. The employer had cited the EPA Risk Assessment on, ETS to support its position. The panel stated, in this regard', "we favor prohibiting 7 indoor smoking, given the overwhelFning body of scientific evidence cited by the Employer conclusively establishing the health hazards associated with the passive inhalation of second-hand smoke." The employer will; however, be required'to provide outdoor smoking areas that provide a measure of protection from the elements. [18] Department of the Army; Army Reserve Personnel Center, St. Louis, Missouri and'LocaI900, American Federation of Government Employees, AFL-CIO, 1993 WL 317674 ' (Federal Service Impasses Panel) (decided August 19, 1993). A federal arbitration panel has agreed with an em- ployer that smoking will be banned ini three of its buildings following the completion of construction and renovation activities. The union and employer had reached'a negotiating impasse over the smoking policy, with the union proposing that limited areas in the buildings remain designated smoking areas or, in, the alternative, that the employer be required to, build an outdoor structure to protect smokers from the ele- ments. The union also requested that smoking breaks in addition to regular breaks be permitted. Stating that "the health hazards associated with the passive inhalation of second'-hand smoke" have been conclusively established bvy an, "overwhelming bodti- of scientific evidence," the panelldesi~nated several indoor smoking areas until completioni of conscructiorn and determined that the outdoor accommodations al'ready offered by the employer were sufficient to protect smokers once the buildings had been declared smoke free. These accommodat~ions consist of an overhang at the entrance to the building and:a tent-like structure with plastic walls which, could be rolled up or down according to weather conditions.,The panel refusedltoi order additionall smoking breal:s. [19] United States Marine Corps, Washington, D.G. and American Federation of Government Em- ployees, 1993 WL310441 (Federal Labor Relations Authority)' (decided August 10, 1993) A federal labor relations panel has remand'ed this case to an administrative law judge to determine whether a union, in its collective bargaining agreement, wai4-ed its right to conduct mid-term negotiations over a work- place smoking policy. The panel had previously found

that the Marine Corps hadlcommitted an unfair labor practice by implementing changes to its workplace smoking policy without bargaining with appropriate union representatives over the proposal andwhile impasse proceedings were pending. The pan4 finding that the case law upon which it had relied in finding an unfair labor practice was noo longer good law, stated, "we will no longer apply the `clear and unmistakable waiver''analysis that previously had been utilized to address such issues: Instead, we will determine the meaning of the parties' agreement in order to resolve the alleged unfair labor practice." WoRI:PL-%CE: F.mR RE['RESEtiT.-1TIO;ti [201 Jobn Deere Co., Local'125, UnitedAuto Workers, 1993 WL 321785 (Office of Generall Counsel,, National Labor Relations Board)' (decid'ed July 29, 1993): Generali Counsel of the N'ational, Labor Relations Boar& (NLRB) has advised a union that it did'i not violate its duty of fair representation in refusing to file a grievance oni behalf of employees who sought a ,~vorkplace smoking ban after allegedly experiencing difficulty breathing in spite of restrictions that had been placed on smoking in the warehouse in which they worked. The union and employer had bargained for the restrictions which prohibited smoking w.here employees work near eachi other. In February 1993„one employee set, grievanceproceed, ings in motion, alleging that the existing smoking policy was not being enforced and that this was adversely affecting,his asthmatic condition. The union, gave approval to the proposed grievance. A fellow employee decided'to change the nature of the grievance to a request for a totaU smoking ban after becoming aware of the EPA Risk.Assessment on ETS, and the union subsequently withdrew the grievance. Ivlembers of the union safety committee attempted to file several''other grievances on behalf of those with respiratory problems, and they notified the employer that several employees were disabled due to hypersensitivity to ETS: The union continued to withdraw the grievances filed by the employees„stating that the existing smoking policy was a! reasonable accommodation~ under the Rehabilita- tion Act and the Americans with Disabilities Act (ADA). ETS/IAQ REPORT, ISSUE 55 In the meantime, the union and employer negotiated a complete workplace smoking ban to become effective in 1994. In separate discussions with the employer, the employees who claimed they were di'sabled contended that a"'reasonable accommodatiod" analysis was inappli- cable because there was no business necessity for permit- ting smoking in the workplace. The employees filed a Rehabilitation Act complaint against the employer and filed charges against the union alleging failure to fairly represent employees and against the employer alleging unlawful acquiescence in the union conduct. The NLRB'General Counselldetermined that the union adhered to the negotiated smoking policv and did not discriminate against the employees who were seeking a workplace smoking ban. In this regard, General Counsel. states„"Thenegotiated policti~is not discriminaroryon itsface, and does not clearly violate the ADA." The General Counsel also determined that the employer did not unlawfully acquiesce in the union's failure to represent disabled employees without di'scrimination. WORKPLACE: PERSONAL ItilUfZl' [21 ] Roos v. Ally and Gargano„ Inc., 1993 ConnL Super. LEXIS 2142 (Superior Court, Stamford, Connecticut) (decided August 19, 1993) A Connecticut Superior Court judge has granted an~ employen's motion for summarv jud'gment in a case involving claims for personal injun and loss of income filedby a former employee w,ho alleged thar she was an asthmatic ,vho~,~vas made ill an6for~ced to resign due to. ETS exposure in the workplace. I'n so ruling, the court held'that an alleged violation of a svorkplace smoking statute does not constitute an exception to the exclusiv- ity provision of the ViJorkers''Compensation Act where the complaining employee is seeking,compensation for work related injjuries. The plaintiff in this case, Patricia S. Roos, attempted to avoid the application of the exclusivii-y provision bv relying upon an intentional misconduct exception, but the court foundl that she had not alleged intentional misconduct in her complaint. The court also noted than the state''s workplace smoking law contains a remedial provision for employees who believe a violation of the statute has occurred.Such employees are authorized to file a written complaint with the labor commissioner who may hold hearings if necessary.

SEPTEMBER 10, 1993 WORKPLACE: UNION REPRESENTATION [22] AP Green Industries, 1993 WL 321784 (Office of General Counsel, National Labor Relations Board) (decided July 30, 1993) In deciding that an employer did not bypass the union and unlawfully deal'directly with its employees during "communications ltrncheons," General Counsel for the National Labor Relations Board acknowledged that a workplace smoking policy is a term and condition of employment. The employer in this case conducted regular luncheon meetings with employees who were permitted to make suggestions and ask questions regard- ing the company. Individual employees occasionally discussed subjects such as the workplace smoking policy, but the employer would'state, when such matters arose, that the issue was contractual and would have to be discussed with the union. General'Counsel determined that this response indicated that theemplbyer was not undermining the union's rcpresentational status. PRISONER CASE [23] Gaater v. Campbell' 1993 U.S. App. LEXIS 22433 (U.S. Court of Appeals, Fourth Circuit) (decided September 2, 1993) Citing Htlling v. McKinney, 61 U.S.L.W. 4648 (U.S. 1993), the Fourth~ Circuit Coun of Appeals has determined chat a prisoner should be given~ the oppor- cunit}' to licigate his pro se claim of cruel and unusual punishment due to ETS exposure. "Although it remains to be seen whether Gaster will be able to meet the subjective and objective elements of McKnnry,"' the appellate court states, "his complaint states a cognizable Eighth Amendment claim," WORKPLACE: IAQ/SICK BUILDING SYNDROME [24]I Elliot v. San Joaquin County Public Facilities Financing Corp., No. 244 601 (Superior Court, San Joaquin County, California) (filed 1991; complaint amended June 1993) According to a press report, a trial court hearing was sched'uled for September 7, 1993, to consider a defendant's demurrer to the amended complaint filed 99 by employees of the San Joaquin District Attorney's Office. The employees allege injuries caused by poor workplace IAQ. Defendants in the lawsuit include the building owner, manufacturers and suppliers of products used in remodeling, a pest control firm and unknown Doe defendants. The employees allege that they are suffering from respiratory ailments, permanent allergies, "chemical low tolerance levels" and emotional distress. Liabilitv is asserted on the basis of negligence, strict llability,, implied warranties of fitness and merchancabiliry, express warranty, fraud'and negligent misrepresenta- tion. The claim of negligence is reportedly based, among other matters, upon defendants' failure to properly evaluate, test and investigate for toxic sub- stances; provision of inadequate ventilation during remodeling; utilization of materials chat were capable of off-gassing formaldehyde and other noxious sub- stances; and failure to warn. According to liaison counsel for the defendants, a case management order was entered in the case, requiring the plaintiffs to identify the chemicals or components alleged to have caused their injuries. When those substances are identified, the defendants will have the opportunity to respondland~produce information pursuant to the order. Discovery as to all issues exc causation has apparently been~ stayed. See Indoor ~ Pollution Law Report, August 1993. /n a Jl:m LEGAL ISSUES AND DEVELOP.%IE'.tiTS [25] ASH Sends Letter to 50 Largest Corporations Action on Smoking and Health (ASH) claims to have sent certified! letters to America's 50 largest corpora- tions, warning them chat continuing to permit smok- ing in their workplaces can be "harmful to corporate health" and reportedly results in lawsuics. ASH refers to the brochure discributed by the EPA in July 1993 as "official U.S. Agency guidelines for regulating work- place smoking." The letter rold the companies char while there are no penalties For not following the "guidelines," the courts are likely to look at them as authoritative when consid: ering claims for workers' compensation, unemplby- ment compensation, disability benefits, handicap 'rl

10 discrimination and other le,-al actions. Also enclosed with the letters was al summary of the EPA Risk Assessment on ETS. According to ASH, it hopes the mailing "will helbpersuade many of these trend-setting businesses too move from systems of separate sections to complete smoking bans." See ASH Smoking and Health Review,. July-August 1993. [26] "Passive Smoking Ignites Active Legal Debate,"' R. Barton Conlin, JournaCof the Massachusetts Academy of Trial Attorneys, July 1993 Author Roxanne Barton Conlin, former presid'ent of ATLA, begins this article by obsen-ino that the EPA Risk Assessment on ETS °ignited a series of reports predicting increase& litigation." She argues that lastiyers should not be responsible for protecting workers from exposure to ETS by bringing, lawsuits that will get the attention of their employers. Barton Conlini notes, however, that the leaal system mav be "our most effective regulator" and reports that, litigation, has prompted recalls of or irnprovements to many unsafe products. The article concludes, "For employers and regulators to default on health and safetv, leav.irto only lassvers too stand with the passive smoking~~ictim~s and their familiesagainstthe powerfulltobacco: industry, would be an outrageous abrogation of - , responsibilitv tihat musti not be allowed." [27] Lawyer Found Guilty of Assaulting Smoker M Restaurant Maryland attorney Abraham Korotki was reportedly convicted of criminal assault following an attack upon a smoker in~ a restaurant on Ma`-; 15, 11993. Korotki struck the woman on~ the head when she refused to put out a cigarette at his request and told her tolquit smoking,while his son tied her belt loop to a chair with kite string: Korotki apparently testified during trial in Dundalk District Court that the incident was merely a friendly prank. The judge, before pronouncing the guilty verdict, reportedly accused Korotkilof "indefensible, crass and' offensive" behavior, and he asked, "What gives you the right to invade someone's space without their permis- sion?" Korotki was given one year of probation before ETS/IAQ, REPORT, ISSUE 55 judgment andlwas fined $250. The fine was suspended and Korotki was ord'ered to perform 50 hours of community service.. The woman who was assaulted, Debra Jane Lowenstein, has reportedly filed a $7 million civil action against Korotki and his son. Ilt is unknown whether the Attorney Grievance Commission~ of the Maryland Bar Association will take actioni against Korotki; his license to practice law was suspend'edi for 18 months in 1990 for fee gouging. SeeAssoc:ated' Press„Augusr 26, 11993. [2$]I "Employers' Screening Procedures Under the Americans with Disabilities Act: What's Legal? What's Illegal? What's Debatable," R.B. Fitzpatrick, ALI-ABA Course of Study;, Employ- ment Discrimination and Civil Rights Actions in Federal and'State Courts, June 3, 1993 The author of this article, an attornev with Fitzpatrick & Versteoen in Washington, D.C., discusses issues arising,under the Americans with Disabilities Act (;-%DA); including whether the Act prohibits discriminacion against smokers. According to the author, the provision in the ADA which states that it d'oes not preclude an employer from restricting or prohibiting workplace smoking has been interpreted by one commentator as imply.ing that tobacco addic- tion is a disabiliny under the Act. In, this regardl, the author observes that state laws prohibiting discrimi'na- tion in emploxment against smokers should be consulted by an emplo~~~er beforeimplementing restrictions on smoking in the workplace. OTHER D~~EV'E11.O~P:A1ENTS [29] Burger King Franchisee Bans Smoking Jan Companies (Janco)„which holds franchises on 55 Burger Kings in New Engll;ndl, has reportedly banned smoking in all its restaurants effective on~ September 1, 1993. Citing,the EPA Risk Assessment on ETS in support~ of the decision, the marketing director was quoted to say, "As the report indicated'4 children are especially vulnerable to ETS so we decided to ... eliminate ETS from all our restaur rants." The company had already^removed cigarette

SEPTEMBER 10;, 1993 vending machines from its Burger~ Kings and banned smoking in the restaurants' kitchens. The Jlan franchise operates in Vermont, Massachusetts and Connecticut. The 700 U.S. restaurants company-owned:by Burger King Corp provide desig- nated smoking areas. See TheAssociated'Prels, August 31,, 1993, and PR 1J'ewswire, August 30, 1'993: [30] Smoking Ban for Staff at Illinois Centers for Disabled As of October 1, 1993, the approximately 2,700 employees of Illinois' three state centers for the develbp- mentally disabled will'be prohibited from smoking. The ban will not apply to the 1,450 resid'ents of the centers. The centers are operated by the U.S. Department of Health and'SociallServices: According to a spokesperson,, residents are exempted from the ban because cigarettes are incorporated into training programs as rewards to encourage desirable behavior in some residents who: smoke. See Tlie Chicago Tribune, August 31, 1993. [31] Consumer Group Terms Secondhand Tobacco Smoke a "Hidden Hazard" On September 1, 1993, the Coalition for Consumer Health and Safety,reportedly released apamphletiwhich includes environmental tobacco smoke as one of 10 alleged hidden hazards. No attempt was made to rank each~ item. In ad'dition to ETS, other alleged'' hazards cited bv the group include alcoholl and babywalkers. The coalition is made up of national consumer, healEh and insurer groups involvedl in public education and influencing federal policy. The public is invited to:wriie for a free copy of the pamphlet. See The Associated Press, September 2, 1993. MEDIA COVERAGE [32] "Rental Providers Seek to Limit Smoking Through Incentives," Star Tribune, August 21, 1993 Warner Properties, which reportedPy has given monthly rental discounts to nonsmokers since 1978, claims cost and time savings when the units occupied by nonsmok- ers are prepared for the next tenant. According to the Minnesota Multi Housing Association, "[s]uch cost reductions have prompted a growing number ofTwin~ Cities property owners and managers to limit smoking in their buildings through similar incentives." Nevertheless,. Warner reports that when nonsmoking tenants were asked, they said they were not interested in, eliminating smoking from their buildings, preferring instead! to alloww their guests the choice of whether to smoke. SCIENTIFIC/TECHNICAL ITEMS U~PCO~dvPING MEETINGS [331 "Ventilation and Indoor Air Quality Work- shop," Research Triangle Park, Raleigh, North Carolina, September 14-1i6, 1993 This upcoming workshop~is coordinated by the U.S. EPA's Air andEnergy Engineering Research Laboratory and theUniiversityof Illinois' Bioenvironmenral Engi- neering,Research Laboratory. According,to a letter sent to workshop participants, the purpose of the workshop: is to: "1)'define the state of the art in ventilation technology and its irnpact on IAQ, 2) assess emerging trends in ventilation systems„and13) identify and prioritize related resear&needs."'The 1'etter also states that conference participants °[clollectivel}- ... will write the consensus report during the meeting that will guide the research, policy and educational activities for the Environmental Protection Agency and cooperating agencies, institutions and industry." Among the more than 70 persons listed as partici- pants is John Girman of EPA's Indoor Air Divisiom 11 [34] "The National Environmental Tobacco Smoke Conference: Public Battles, Private Choices," The Hyatt Regeneyy on Capitol Hill~ Washing- ton, D.C., December 16-17, 1993 According,to promotional materials, this conference plans to bring together professionals from law„govern- ment, occupational safety and health, building man- ~ ~ agement, agement, and publii interests who are spearheading the ~. "national response" to ETS, Representatives will ~ discuss "the legislative, policy, and legal issues critical ~ to:the appropriate management of environmental ~ tobacco smoke." The conference is sponsored by IAQ ~ Publications, Inc., publishers of lndoor A'ir Review, a

12 monthh' . publication and host of several annual conferences on indoor envitonmentall issues. LUNG CANCER [35] Editorial Regarding "Involuntary Smoking in the Restaurant Workplace: A Review of Em- ployee Exposure and Health Effects," M. Siegel, Journal of the American Medical Association 270(4): 490-493, 1993 An editorial comment bv William S, Simmons, Direc- tor, Smoking and Health, R.J. Reynolds Tobacco Company, addressing rhe recenth'-published Siegel article, was published in the Washingron TirnesAugust 26, 1993. In his publication, Siegel had proposed that ETSS exposures were higher in restaurants and bars than in other workplaces, and attributed some of the elevated lung cancer risk reporr~d for food service workers to ETS exposures, calling for a ban on,smoking. In his commentary•, entitled, "Smoking Doesn't Pose a Threat to Restaurant Workers," Simmons states that SiegelPs conclusion "is unsupported by the studies he cites," noting that the authors of those studies sug, gested that the teportedlv elevated lung cancer, ri'sks for food sen•ice workers could' be related to such factors as stress, diet, alcohol consumption, active smokino, air~ polllution„ radon, asbestos, and other factors. ~ Simmons also suggests that Siegel's conclusions °vio- lated the limits of' the studies referenced bySiegell He writes: "Dr. Siegel misused and misrepresented their data to draw concl'usions that far exceeded the conclhsions that were reached, or were considered reachable, by those scientists." RESPIRATORYDISEASES AND CONDITIONS -- ADULTS [36] "Respiratory Symptoms i~n Young Adults Should Not Be Overlooked," M.S. Jaakkola, J.J.K. Jaakkola, P. Ernst, and M.R. Becklake, American Review ofRespiratory Disease 147: 359-366, 1993 [See Appendix A] This study investigates the relation between develbp- rnent of respiratory symptoms and the rate of change ETS/IAQ REPORT, ISSUE 55 of ventilatory lung function in young adullts. The authors conclude that the development of symptoms "seems to indicate the evolution of ventilfatory impairmenr."'They. report no effect of ETS exposure on the reported relation- ship: RESPIILATORY DISEASES AND CONDITIONS -- CHILDREN [37] "Infant Feeding, Wheezing, and'Allergy: A Pro- spective Study," M.L. Burr, E.S. Limb, M.J. Maguire, L. Amarahs B.A. Eldridge, J.C.M. Layzell, and' T.G. Merrett, Archives of Disease in Clirldliood 68': 724-728, 1993 [See Appendix A] A cohort of approximately 450 children was follo~.ved in this Welsh study of possible risk factors for childhood w-heeze. The authors report thao "passive smoking" .vas statistirally, signiEcandy associated wirh wheeze in~ the first year of Iife,, but not: at age seven; the relationship was reported for non-atopic children only,. Reported risk factors for ~xheeze included having unemployed parents. and having never been breast fed. OTHER HIG-~LTH ISSL;ES [38] "Predictors of Early School Failure Among Chil- dren in the United States,"' R.S. Byrd, K.JI. Roghmann, and M. Weitzman, Amerrcan Jeurnal' of Diseases of Children 147(4): 459, 1993 [See Appendix A] In this abstract, the authors report that, of children repeating kiitdergarten~or first grade,,behavior problems, male gender, poverty, low birth, weight, low- maternal education, household smoking, residence with~one or no biological parenr, and recurrent otitis media were each statistically significantlv associiated! with an increasedl riskk of school Failure. [39] "The Influence of Passive Smoking on rhe Fetus, During Pregnancy [translation]," M. Pan, Z. Zhang, C. Wang, X. He, Z. Meng, G. Zhou, and H. Mao, China Obstetrics and Gynecology Maga- zine 27(6)', 1992 [See Appendix A]'i The authors of this study report that pregnant women exposed to ETS had increased risks of having small for

SEPTEMBER 1Oi 1993 gescational age babies, of premature labor, and of neonatal asphyxia. They also state that carbon monox- ide from the burning of coal poses a risk of adverse neonatal outcomes. ETS EXPOSURE AND MONITORING [40] "Cigarette Smoke Exposure of School Children: Effect of Passive Smoking and Vitamin E. Supplementation on Blood Antioxidant Status," A. Jendryczko, G. Szpyrka, J. Gruszczynski, and M. Kozowicz, lVeoplasma 40(3): 199-203, 1993 [See Appendix A] The authors of this paper claim chat cigarette smoke contains large numbers of free radicals, chemical species believed to induce lipid peroxidation, a process which darnages cell membranes. Both free radicals and some byproducts of lipid peroxidation have been hypothesized'to have a role in carcinogenesis. The authors use markers of oxid'ative stress to determine the extent of lipid peroxidation, reporting significantly elev.ated levels in children of smoking parents com, pared to children of nonsmoking parents. [411 "Biological Markers of Intrauterine Exposure to Cocaine and Cigarette Smoking," G. Koren, J. Klein, R. Forman, K. Graham, and M.-K. Phany Developmental Pharmacology and' Therapeutics 18' 228-236,,1992 [See Appendix A] This article focuses on the analysis of feoalihair for traces of cocaine and nicotine associated with the mocher's intake of those substances. The authors report, however, that in a small sample of babies of nonsrnoking women who: reported ETS exposure, hair cotinine levels were higher than in babies of women who~reported no ETS exposure. See issue 53 of this R'eport, August 6, 1993, for a recent letter t&the editor by this research group. [42]I "Cadmium and Lead Levels in House Dust from Smokers' and' Non-Smokers' Homes Related to Nicotine Levels," S. Willers, H.O. Hein, A. Schutz, P. Suadicatti, and F: Gyntelberg, Indoor Environment 2: 14-18, 1993 [See Appendix A] The authors of this study have reported elsewhere that children~of smokers have higher blood lead levels 13 than do children of nonsmokers. In this paper, they investigate whether smoking is associated with the levels of lead and cadmium in house dust; they report no such relationship. Ilrl DOOR AIiR QUALITY' [43] "Resolving IAQ Complaints witL Ventilation System Operations and Maintenance (O&M)," J.A. Ventresca and J.S. Shrack,, Proceedings of Indoor Air '93 6: 349-3 54, 1993 [See Appendix A] These authors report that IAQcomplaints can be resolved by properly operating and maintaining the ventilation system. Specifically, they list the following O&M problems that need to be considered: negative building pressure, outsid'e air d'amper closing, inoper- able chillers in the winter, improper tracking of fans„ return air damper malfunction, and HVAC control problems. SMOKING POLICIES AND REL-%TED~ ISSUES [44] °Effects of a City Ordinance Regulating Smok- ing in Restaurants and Retail Stores," J. Sciacca and M. Eckrem, Journal ofCommunityHealtli 18(3)t 175-ll82, 1993 [See Appendix A]', The authors of this study reporton, a survey of businesses in, Flagstaff, Arizona, following the imple- mentation~ of an ordinance vvhich prohibicedi smoking in retail businesses and allowed restaurants to choose to permit smoking, ban srnoking, or permit smoking in designated areas. According,ro the survey, 82' percent of restaurants opted to allow smoking in at least some areas. Only three of 61 businesses reported a detrimen- tal effect on businessfollowing implementation of'.the policy: 20247024S'7

]=+ IN EUROPE & AROUND~ THE WORLD REGLTLATORY AND LEGISLMVE MATTERS AuSTRALIA [4>]I Bundaberg City Council Increases Smoking Restrictions The Bundaberg City Council has reportedlN• added mobile shed's to the list of buildings in the city in which~ smoking will be banned. The decision to ban smoking in these locations was apparenth~ prompted by complaints by workmen and a fear of litigation by nonsmokers for injuries allegedly caused by ETS exposure. See ~Vews-Mai4 August 25, 1993: [46] Community Group Lauds City Council for Banning Smoking According,to a press report, the community consulta- tive committee on tobacco, alcohol and other drugs has presented the Wagga City Council with a!certificate in recognition of CounciUs decision to ban smoking in its public building. See DDail}^AdL~ertiser, August 25, 1993. [47] Designated Smoking Areas Nixed by Ulmarra Health Committee Ulmarrai Council9ors reportedly suggested that a speciall smoking zone be designated in Ulmarra Coun- cil offices. A council health and safety committee apparently turned down the proposallout of concern the empl'byees would File lawsuits over ETS exposure. See Daily Examiner, August~ 23, 1993. AUSTRTA [48] Tobacco Law Stalled' by Objections of Econom- ics Minister According to a press report, the economics minister has expressed' his opposition to the draft tobacco law which provides, among other matters, for the compul- sory establishment of nonsmoking sections in restau- rants. The draft was reportedly dropped from the agenda of a recent session~of the Mini'sterrat following a: meeting between the economics minister and health minister. See Die Tabak Zeitung;,August 27, 1993. ETS/IAQ REPORT, ISSUE 55: CANADA [49] Ottawa Council Votes on Smoking Regulations As yet unspecified~ smoking restrictions reportedly will be imposed in Ottawais outdoor stadiums beginning,in 1994. However, on September 1, 1993, the Ottawa Council voted that the public should be consulted before deciding on specific measures, which could range from a complete smoking ban to a requirement for areas of smoke-free seating. See issue 54 of this Report, August 27, 1993. Also on September 1, Ottawa's bylaw on smoking in; public was amended to: require bowling alleys, bingo halls and billiard halls to provide half of their space ass smoke-free, although bingo halls are being,given until January 1, 1'996, to reach the 50 percent mark. The bvlaw was also=ended to include any indoor area with public access, regardless of whether paymeno is required to enter. The new smoking provisions report,- edhy will take effect at the next council meeting, set for September 15. The Council defeated a proposal that would have gradually required that bingo halls become smoke free by the year 2000. See The Ottawa Citizen. September 2, 1993: IS IZ~fiL [50] Tennis Centers Declared "No-Smoking Zones" Ihan acdonapproved by the Health Ministry, the 1 1 Israel Tennis Centers,suere declared smoke free on; September 2, 1993. The ministry cited the require- ments of physical exertion as the reason for the smok- ing bans. In other public facilities, such as cinemas, theaters, health clinics, hospitals and schools, smoking is currently restricted to limited areas. The Health Ministry has nor been successful', in getting an amend- ment to ban workplace smoking through the Knesset labor and'social affairs committee. See TheJerusalem Post, September 2', 1993: SWITZERLNPVD [51]I Labor Legislation for "Protection" of Nbnsmokers According to a press report, an amendment to curreno labor legislation will take effect on October 1, 1993'. The amend'ment includes a provision for better

SEPTEMBER 10. 1993 "protection"'of nonsmokers on the job, and applies to the trades, the service sector as well as to industry. It stipulates that health protection and'job safety must be considered at the planning phase of new facilities. See Neue Z rcher Zeitttng, August 20, 1993. THAILAND: [52] Health Ministry to Enforce Antismoking Laws According to a press report, Thailand's public health~ ministry will be deploying some 450 "smoke busters" to enforce the nation's tough antismoking laws. People %vho smoke in public places will be fined up to 200& Baht. See Courier Mail,' September 6, 1i993: UNITED KINGDOhS. [53] Workers Challenge Smoking Ban According to a press report„six workers at the Newcastle town hall have challengedl a smoking ban imposed M the building,by council. They apparently cl'aim that the ban is adding to workplace stress. See Newcastle Journal August 27, 1993. ETS-RELATED LITIGATION IN%'OL%rING CIGARETTE MANUFACTURERS AUS-fiRALIA [54] TL4 v. Stephen Woodward (Supreme Court, Equity Division, New South Wales) (filed April 15, 1993) Trial in this action~was held before Justice Bryson on September 6 and 7, 1993. The only witness to testify in the case was Stephen Woodward. On cross-examination, Woodward admitted that he had! not read the EPA Risk Assessment on~ ETS or the full opinion in~AFCO'when he made allegedly misleading statements to the press. In addition, Woodward admitted'i that he was a professional advocate and'was actively seeking to reduce the sale of cigarettes in Australia. Attempts to introduce evidence regarding allegedly misleading and! deceptive statements by TIA concerning the AFCO judgment were rejected by the 15 court as was ani attempt to introduce evidence regard- ing why Woodward believed the EPA had linked ETS with heart disease. Woodward's attorney was unable to complete his summation before the close of court. The judge gave both parties the opportunity to submit written summa- tions and; responses before he reaches a decision in the case, but he did not indicate when, he expected to rule on the matter. TIA's claims against anti-tobacco activist Stephen Woodward include allegations that Woodward misrep- resented the judgment of the full' federal court in AFCO u TM, and' made misleading statements when he said that the EPA Risk Assessment on ETS con- cludedlthat ETS exposure causes heart disease. The action, is based upon the New South Wales Fair Trad'e Aco and requires than the court Find whether the representations were made in "trade or, commerce" under that Act. ETS-RELATED LITIGATION NOT INVOLVING CIGARETTE MAN U FACTURERS. UNITED KINGDOM [55] Wright v. Ladbrokes (Industrial Tribunal, Birmingham) (decided May 27, 1993) According,to a press report, Patricia Wright, who was dismissed' from her job in a bettinq office for d'ef}ing a smoking ban, has been awarded compensation in an out-of-court settlementi with Ladbrokes, her employer. An industrial tribunal, which decided the case in Mav 1993', had determined that Wright"s dismissal wass procedurally unfair„but that the employer had the right to impose a smoking ban among,its employees. A summary of the tribunal's decision appears ini issue 49 of this Report, June 11, 11993. The case had been, relisted for a hearing on the appropriate remedy. Although the settlement is confidential, it is reportedly believe&that Wright received aboutGBP'500. See Daily Tel'egraph, September 7; 1993.

16 OTHER DEVELOPMENTS AUSTR-11.IA [56] Health Authority Produces "Please Don't Smoke Near Me" Kits The Central Regional Health Authority, Health wise and Drug & Alcohol Services have reportedly used a $3,000 state grant to produce antismoking kits dubbed "Please Don't Smoke Near Me."'It is apparently~~ being claimed that smokers are responsible for the deaths of 1,500 nonsmoking Australians each year and that death by ETS exposure is the third leading,preventable cause of death after active smoking and drug,abuse, causing 10' tirnes as many deaths from heart disease as from lung cancer. See!Llorning Bulletin, September 1, 1993: [57] Queensland Watchhouse Smoking Ban Relaxed The police have reportedly d'ecided to relax a smoking ban in Queensl'and watchhouses. Watchhouse keepers will noww apparently be permittedl t&use their discre- tion in deciding whether long-term detainees whoo become aggressive due to lack of cigarettes may smoke. A Cairns cell'.visitor group has reportedly called for more concessions in the wake of the police decision: on smoking. SeeCairrtsPosz, August 26, 1993. [58] Invention May Save Building Owner Litigation Fees Inventor Terry Faulkner is reportedly claiming that his latest invention, a "Passive Smoking Downllght," could save hotelland'restaurant owners thousands of dollars in litigation fees. The deviceapparentlye extracts smoke from rooms. See Tweed Daily News, August 28', 1993. [591 New South Wales Sports Club to Restricr Smoking The Dunoon Sports Club in N'ew South Wales has reportedly imposed restrictions on smoking„making it, what is believed to be, the first sports club in the region to do so. Smoking will apparently be permitted only in outdoor areas. According to the club president, concerns about litigation prompted the decision to restrict smoking. See Northern Star,, August 28, 1993.. ETS/IAQ REPORT, ISSUE 55 [60]' Tobacco Growers Concerned About Smoking Bans According to a press report, Queensland tobacco growers are pessimistic about the future due to the increasing number of bans on smoking imposed in public places and'workplaces. The growers are also apparently concerned about the high taxes government is placing on the sale of cigarettes. See Australaan Financial'Review, August 31, 1993. BOSNdA AND HERZEGOVINA [61] Smoking Bans Not a Priority in Sa.rajevo In war-torn Bosnia, it has reportedly been said that enforcement of a~ restaurant smokimo ban would evoke aiviolent response. In spite of the collapse of almost all industry in the countrv, a factory in Sarajevo is still producing cigarettes which are apparently being sold at exorbitant prices to people who say they are onlti, able to tolerate the living conditions associated with~ the 1'7-month siege by smoking. See Tl>e Kansas City Star, September 5, 11993. . CANADA [62) Vancouver Pretrial Centre Imposes Smoking Restrictions On September 1, 1993, the Vancouver Pretrial Centre, which houses prisoners a~vaitingtriall initiated a policy which only allbws smoking in designated areas. Piisoners had previously been allowed to smoke any-where irn the jail', including their cells. Under the new policy, prisoners may onlyy smoke in an outdoor exercise area and on outdoor patios adjacent to the cells. In an efforti to encourage smokino cessation, prisoners are being,offered free transdermal nicotine patches and additional vegetables, fruits and other supplements to their diets. The jail'stopped selling tobacco in late August. Prison staff are prohibited from smoking in work areas, but can smoke in designated areas or outside. The Vancouver Pretrial Centre is the first provincial jail to institute such smoking restrictions. According to a corrections spokesperson4 the government will probably make a decision within three weeks on, whether to impose a complete smoking ban in all

SEPTEMB'ER 10; 119)3 provincial jails. See The GrancouverSun;,September 11, 2 and 3, 1993. NETHERLANDS [63] Council Urges Caution in Adopting Railway Smoking Ban The personnel councI&I of the Netherland's Railways has reportedly requested that railway management adopt a trial smoking ban before a general ban is implemented aboard local "stopping"'trains in the summer of 11994. According to a press report, railway personnel are concerned that the bani wilt result in passenger aggression on the part of those who oppose the ban. See HetAlgerneen Dagblad August 20, 1993. N'E\t' ZE_~LAND [64] Motel Lodge Imposes Smoking Ban and Claims Occupancy Level Up The .4~A Motel Lodge has reportedly become the first motel in New Zealand to impose a complete ban on smoking, Unnamed sources are claiming that the hotell occupancy rate has increased byy some 15 percent following,implementation, of the smoking banL See 14'ew ZeaGand HeraU August 21, 1993. UItiITE.:D~ KINGDOM [65] ETS Conference Scheduled in London The Europe Against Cancer Programme and the Cancer Education Co-Ordinating Group are report- edly sponsoring a conference entitled "Passive Smok- ing. Have you got breathing space?" which will be held in London on October 111, 1993. Delegates will apparently be offered the opportunity to explore the issues surrounding ETS issues and to participate in the "Breathing Space Campaign."'This campaign„to be launched in the Uhited' Kingdom on September 11, 1993, will reportedly provide the public with informa- tion about lobbying for smoke-free public places. See Europe Against Cancer Programme, 1993. 17 MEDIA COVERAGE AUSTRALIA [66] "Public Policy More Effective Than Individ'ual'~ Interventions in Smoking Cessation," S. Chapman, British Medical Journat; August 28, 1993 According,to this article by Australian antismoking activist Simon Chapmans measures such as workplace smoking bans will be more effective in controlling individ'ual decisions about smoking than a doctor's advice to~an individual smoker. The article, which involves a discussion of the physician's role M smoking cessation, suggests that lobbying for smoking bans would be more productive in this regard'because a! person's culkural, political and economic environment has more of an impact upon issues of choice than~ smoking control programs oriented to the ind'ivid'ual. SINGA~PO'RE~ [67] "Primary Texts to Have Don't-Smoke Mes- sages," The Straits Times, August 23, 1993 Responding to publicity concerning a youth smoking survey by the Singapore Armed Forces iV'Iedical. Services and the National University of Singapore; the Health N'Iinistrv announced intensified efforts to discourage smoking initiation among prirnan schooll students. The new program .vill include anti-smoking messages in healkh textbooks. Current anti-smoking measures include requiring,all schools to be smokefree and prohibiting staff from smoking in the presence of their students. This article also notes that there has been recent legi'slation banning,teenagers und'er 18 from buying cigarettes and smoking in public. Earlier this year, the Health Ministrv conducted a:seminarfor primaryschool',principals on the legislation.

SEPTEMBER 10; 11993 APPENDIX A The numbers assigned to the following article summaries correspond with, the numbers assigned to the synopses of the arti'cles in the text of this Report. RESPIR-1TORl' DISEASES AND CONDITIONS - ADULTS [36] "Respiratory Symptoms in Young Adults Should Not Be Overiooked," M.S. Jaakkola, J.J.K. Jaakkola„ P. Ernst, and M.R. Becklake, American Review ofRespiratory Disease 147: 359-366, 1993 "The purpose of this study was to examine the relation between development of respiratory symptoms andithe rate of change in ventilatory lung,function in young adulis during a study period of 8'yr. The study population consisted of 391 subjects who were 15 to 401yr of age at initial examination, when, they under- went spirometry and an interviewer administered... questionnaire on respiratory health, and who were reexamined 8 yr later." "The main objective of the present studywas to examine the relation between development of respira- tory symptoms during the study period andl the rate of change in ventilatorylung function in young adults. A second objective was to assess whether the relation, between symptoms and evolution,of lung function is modified by other factors, including gend'er, atopy, smoking, and exposure to environmental tobacco smoke (ETS) during childhood" "Exposure to ETS was classified according to the answer (yes or no) to the question, Did any member of your family living at home smoke cigarettes while you were growing up?l' "The proportion of subjects who were exposed to ETS at home during the period of growth was as large as 76% among men and 80% among,women." "Of 276 subjects who did not have wheezing with colds or apart from cold's at baseline, about one-fourtL (28%) developed this symptom during the study periodl One-fifth~ (18%)' of subject without dyspnea initially developed dyspnea during the study: Only 2% of 383 subjects without doctor-diagnosed asthma at A-1 the time of the initial examination reported that asthma was present at the 8 yr examination. Of 356 subjects without cough initially, 8% developed this symptom, and 10% of 353 developed phlegm produc- tion. At baseline 370 subjects did not have chronic bronchitis...and 6% of these had it at the 8 yr examina- tion. Initially 220 subjects were without respiratory symptoms, and 40% of these developed one or more of the respiratory symptoms during the study period."' "The appearance of any respiratory symptom or combination of symptoms during the study period showed a signiflcant relationship with [rate of change in] FEN'i of -11.1 mllyr compared with subjects remaining asymptomatic." "In generali the associations between the onset of symptoms and [rate of change in] FEV, were larger in never smokers and exsmokers compared with~smokers:" "The appearance of symptoms and asthma! had, as a rule,,a greater impact on~ [rate of change in]I FEV, in never smokers than in smokers." "Gender and exposure to ETS during the period''of gro~~7~: :id not modify significantly any of the associa- tions betweeni incident respiratory symptoms and [ rate of change in] FEV,." "The results of the present studv underscore the impor- tance of respiratory symptoms in young,adulthood, since the development of wheezing and dyspnea seems to indicate the evolution of ventilatory impairment. Acquir- ing doctor-diagnosed asthma seems to be associated wioh~ a very strong negative impact on ventilatorv function, but the relationship between appearance of hyperresponsiveness-related symptoms and deterioration of ventilatory.- function is not essentially different m subjects without asthma. This association seems to,be stronger in never smokers than in smokers, indirating that personal tobacco smoking is not the only reason for N evolution of respiratory symptoms and ventilatory ~ impairment in young adultr. From, the public health and~ clinicallpoint of view;,this means that when respiratory ~ symptoms appear, in young adults, attention should be ~, paid to potential environmental hazards in addition to j~ personal smoking,"' ~ N

A-2 ' RESPIRATOR1' DISEASES AND CONDITIONS - CHILDREN [37] "Infant Feeding, Wheezing, and Allergy: A Prospective Study," M.L. Burr, E.S. Limb, M.J. Maguire, L. Amarah, B.A. Eldridge, J.C.M. Layzell, and T.G. Merrett, Archives of Disease in Childhood'68: 724-728, 1993 "The determinants of wheezing and allergy were investi~ gated! in 453 children with a family history of allergic disease. A randomised controlledltrial examined the effects of withholding cows' milk protein during the first three months of life and'replacing cows' milk wit6 soya milk. The children were followedl up to the age of 7 years." "The withholding of cows' milk protein di& not produce any d'ecrease in the frequency of wheeze, asthma. eczema, or allergic rhinitis.1"In the present study, no associations were found berween early exposure to mite antigen or~ cars and the development of atopy, wheezing, or a positive skin test at the age of l years." "Ernpl'oyment status had! a major effect~on non-atopic wheeze; the important factor was whether the parents were emplbyed or not, rather than their social' class. The `unemployed"group contained a high proportion of one parent families, and presumablv the child°s susceptibilirv to.wheeze was a reflection4 fundamental social factors." "Passive smoking is a recoanised cause of respiratory symptoms in early childhood. In this study it was a major ind'ependent risk factor for wheeze during the child"s6rst year of life; by the age of 7years the effect was no longer statistically significant when allowance was made for certain other variables, although it was still quite large. The relationship between wheeze and passive smoking was confined to the non-atopic chil- dken- that is, maternal and other passive smoking did not appear to increase the risk of atopy nor of symp- toms in the atopics." "During the first year of life, wheezing occurred twice as frequently in those who were never breast fed as im those who had' received! any breast milk, and this relationship could' not. be accounted for by other factors such as social'class, maternal smoking, or overcrowding."' "Thus, these findings imply a red'uction in wheezing due to infection rather than in wheezing due to allergy." ETS/IAQ REPORT, ISSUE 55 "It is...not wholly implausible to postulate that breast feeding in infancy protects children against respiratory infections for several years." OTHER HEALTH ISSUES [!38] "Predictors of EarNy School Failure Among Children in the United States," R.S. Byrd, KJ. Roghmann, and M. Weitzman, American Journal ofDiseases of Cliildren 1i47(4): 459, 1'993 "We report the results of a study conducted to inv.estigate health.and social factors that are associated with earlyschooGfailure in a nat~ionallvrepresentativ.esample of children ini the United Staoes."' "Nationally, 7Wof children repeated kindergarten or first gnade.... [I]ncreased rates of behavior problems on a! standardi¢ed behavior ratingscale ranked as the leading predictor of school failure (OR=2.0, 95% CI=1.6 to 2.5). Other factors shown to be independendy associated were: poverrn~(O'~R~=1i.6„CI=1.2to 2.©)', male gender (OR'=1.6~. CI=l.3'to 1.9), low birth w,eight (OR=1.6, CI=1.1 to 2'.l)„lowmaternal'leducation (OR=14, CI=1.2 to 1.8)~ household smoking,(OR=1.4, Cl=1.1 to 1.7), children's resid'ence with one or no biologic parent (OR'=1'..4,. CI=1.2to~ 1.7), and recurrent otitismedia (OR=l.2; CI=1.© to; 1.5). Race and various chronic diseases, while sionificanr inibivariare analy.sis, w,ere not independentll, associated with early school failure in a model which controls for povem,, maternal education, and! family structure:" "Thus, four common child health, problems - low birth, w-eight, behavior problems, recurrent otitis media, and passive exposure to household'smoke - are among the major predictors of early school failure in our nation's children. These findings have significant implications for pediatric and public health preventive, screening, and therapeutic interventions." [39] "The Influence of Passive Smoking on the Fetus During Pregnancy [Itranslation]," M. Pan, Z. Zhang, C: Wang, X. He, Z. Meng, G. Zhou, and'H. Mao, China Obstetrics and Gynecology Magazine 27(6), 1992 "A study was made of 188 pregnant women subject to passive smoking to determine the hazard to the fetus;"

SEPTEMBER 10. 1993 "The srudy took into account age, occupation, passive smoking (Smoking,by husband, family member living in same home, or co-worker working,in same office),, type of cooking fuel used in home, home and kitchen situations, time per day spent cooking in the kitchen, and'blood pressure during pregnancy." "[A] test was mad'e using the rates of three indicators of influence on the fetus - SGA (birthweight lower than the tenth percentile of the standard! birthweight for the same number of weeks); premature labor, and''i neonatal asphyxia (one-minute Apgar score <_ 7)'." "It was observed: than the rates of SGA, premature labor, and neonarallasphyxia were significantlyhigher in the passively smoking group than in the control group." "The above results showed that the rates of SGA, premature labor, and neonatal asphyxia are related to the two factors of husband smoking and hypertension. Jusr as is active smoking, passive smoking is a hazard too the fetus." "The results of data analysis by this group showed that the risk of SGA for passively smoking pregnant women; (husband smoking) was1.6timesthar~ forpregnano. women whose husbands did not smoke." "This srudy showed that the risk of neonatal asphyxia for passively smoking mothers was 3.25 times higher than that for women whose husbands did not smoke. Thus the perinatall mortality for children of passiively smoking women was also higher." "Thi's study used the mother's blood COH'b and the umbilical venous COHb as indicators to determine the seriousness of contact with the noxious gas carbon monoxide in passive smokers and! burners ofcoal." "Thus, the hazard to both mother and fetus of pregnant women burning coal and passively smoking is und'eniable....In severe cases, there is a deficiency in the oxygen supply to the tissues and organs, which causes a series of responses that are extremely damaging to both the mother and the fetus, but particularly to the fetus. There can be increased rates of SGA, prema- ture labor, and neonatal! asphyxia."' A-3 ETS EtposuPE AND MOwITOR-ING [40] "Cigarette Smoke Exposure of School Children: Effect of Passive Smoking and Vitamin E Supplementation on Blood Antioxidant Status," A. Jendryczko, G. Szpyrka, J. Gruszczynski, and M. Kozowicz, Neoplasma 40(3): 199-203, 1993 "Cigarette smoke contains vast amounas of free radicals, whichi can directly and indirectly initiate and propagate the process of lipid peroxid'ation. Thus, smokers encounter a sustained free-radical load, which facilitate the development of cancer. The risk of cancer would be further exacerbated by an inadequate dietary intake ofantioxidants such as vitamin E."' "The aim of this study was to assess whether indices of free-radical-mediated peroxidation are increased in child'ren of smoking parents as compared with children of non-smokers and whether children of smoking, parents benefit from supplementation with the lipid- soluble free-radical scavenger, vitamin E. The effects of passive smoking on blood'antioxidanrs and antioxi- dano-related enzymes were also assessed." "Passive smoking causes changes in certain indices of antioxidant status. The enhanced suscepoibility of eryzhrocytes of children of smoking parents to lipid peroxid'ation may reflect the lower activities [of certain enzyrnes].°°[T]he susceptibilitv of erv.throcvtes to peroxidize in vitro was markedly decreased in supplemented children ofsmoking parents." "Despite the relative increase in plasma vitarnin E with age, conji-igated dienes w•ere also elevatedl suggest- ing that peroxidation of endogenous fatrv acids is more marked in older children. Similar changes in plasma lipid peroxides have been implicated in causing the initial lesion in lhng and larynx, which may predispose development of cancer." "Evidence is clearly mounting that tobacco smoke inhaled passively by nonsmoking children is potentiallv, carcinogenic." "The evidence we report lends further support to the observation that passive smoking may increase the risk of subsequent cancer~, and it suggests that it mav be particulkrly important to protect the children from this environmental hazard."

A-4 [41] "Biological Markers of Intrauterine Exposure to Cocaine and Cigarette Smoking," G. Koren„J. Klein, R. Forman, K. Graham,, and M.-K. Phan, Developmental Pharmacology and Therapeuties 18: 228-236, 1992 "We describe hair tests for assessment of fetal expo- sure to cocaine andlcigarette smoking.... ln order to utilize hair measurernents of cocaine as a biologicall marker of systemic exposure„we conducted! both animal' and human investigations on the dose response characteristics of this phenomenon.... To date, no biological markers have been identified that can predict the extent of fetal exposure to the adverse effects of toxic constituents of cigarette smoke.°' "Smoking and nonsmoking mothers were identified in two nurseries in Toronto. Detailed history of smoking, habits was recorded....Hair samples were obtained by cutting 5-7 hair shafts near~ the skull using fine scissors." "There were l l pairs of nonsmoking mothers. Their mean hair concentrations of nicotine and'cotinine were significantly lower than in smoking mothers. Similarl~, neonatal hair concentrations of nicotine and cotinine were significantly lower in babies of nonsmokers when compared to infants of smokers."' °Of the 1 1 pairs of nonsmokers, 4' mothers were passively exposed to cigarette smoking in the house- holdl during pregnancy. Their concentrations of nicotine were not different from~ those not exposed. Converselv, cotinine concentrations in passive smoking mothers were significantdy higher than in those not exposed to any smoke. Similar trend's were observed in the babies of passive smokers having more cot.inine than ini nonexposed ones, with no differences in nicotine concentrations." "During the last years there has been: increasing awareness oEthe serious health risks inflicted'.bu passi've exposure to cigarette smoke. Our data! suggest that, ind'eed, women and their unborn babies are accumulat- ing nicotine and cotinine even when they avoid smoking. Although our sample size is too small to draww definite conclusions, of the four babies of nonsmoking womeni exposed to 'passive smoking% three had d'etectable levels of cotinine in their hair." "In summary, we believe that the hair test is likely to develop into a critical', tooli for assessing,the degree and time of fetal exposure to xenobiotics." ETS/IAQ REPORT. ISSUE 55 . [42] "Cadmiumi and Lead Levels in House Dust from Smokers' and Non-Smokers' Homes Related to Nicotine Levels," S. Willerns, H.O. Hein, A. Schutz, P. Suadicani,,and F. Gyntelberg, Indoor Environment2: 14-18, 1993 "An additional source of metals may be tobacco, as it contains leadland cad'mium. Accordingly, smokers have slightly higher mean B-Pb [blood levels of lead] and much (about 6-fold)~ higher bloodlcadmium levels (B'- Cd) as compared to non-smokers. Further, we found higher B-Pb M child'ren~of smoking parents, as com, pared with the children of non-smokers. This finding has been confirmed in other studies. N© sitnilar effect of environmental tobacco smoke (ETS) exposure on B- Cd has been shown. One possible explanation for the effect of ETS on B-Pb in children could be that the level of lead is increased in homes of smokers, because of the lead' in dust originating from tobacco smoke and/or ash." "To investigate «~hether there i's an association~ between smoking in the household and the amount of lead and cadmium in house dust, samples of flbor dust were analysed frorn the homes of smokers and non- smokers." "There was no significant influence of smoking habits on the metallcontent of house dust." "The present study showed that house dust in certain homes mav contain high concentrations of lead and! cadmium. Neither the smoking habits nor the socio- economic status of the residents were foundto be of importance for the metal levels in house dust." "[I]n the present study, there w-ere no:differences ini the metal content of house dust beta-een smokers' andl non-smokers' homes. Thus;, there should be no variation in exposure to dust-born metals originating from tobacco betweeni smokers' and nonsmokers' homes. Alternatively, since ETS, in some studies, has been associated with the develbpment of airway disease, the association between parental smoking and B-Pb may be due to a smoke-induced damage of the airway mucosa of the children, whichs in turn4 could have lead [sic]I to an increased retention of metals in the lung."

SEPTEMBER 10. 1993 I~NDOOR~ AIR QUALI!TY [431 "Resolving IAQ Complaints with Ventilation System Operations and Maintenance (O&M)," J.A. Ventresca andj.S. Shrack, Proceedings of Indoor Air 936: 349-354, 1993 "In a.case study high-rise office building, the indoor air quality (IAQ and energy impacts of minimum~ (Vmin) and maximum (Vmax) ventilation were measured. At Vmin and Vmax, the perceived indoor air quality and IAQ M terms of physicall and chemical' parameters was measured. These results have been reported. This paper focuses upon a significant practi~- cal observation of this research: that IAQcomplaints can be resolved with proper ventilation system opera- tion and maintenance (O&M). Six common ventila- t~ion system O&M problems are identified and their solutions, discussed. "Some causes of inadequate ventilation, such as a lack of outside air intakes, have been well documented. However, for most commercial office buildings in the U.&A., the ventilation system is a sub-system of the air conditioning system. Modern air-conditioning,systems are often extremely complex„ utilizing combinations of pneumatic controls, electric controls, electronic sensors, and computerized facilities management andl energy management systems. Therefore„v.entilation system O&M problems may be difficult to identify, and difficult to remedy." "The perceived IAQwas assessedl...by questioning the occupants. Since this was not a`sick-building', we were amazed by the vigorous complaints.... The complaints were of headache, fatigue, burning eyes;; and that there was stuffiness, inadequate ventilation,, lack of air movement, and d'ryness." "The extensive IAQ measurements revealed outside air was abouo 35 Lls (71 CFM) per person, as esti- mated from afternoon C02 measurements, and both the indoor and ambient air pollutant levels were very low. The IAQ complaints were resolved through a comprehensive operations and maintenance (O&M) assessment, and subsequent ventilation system O&M improvements." "To solve complex LAQ problems with multiple causes, it is necessary to determine a priority order of solution activities. Proper ventilation system econo- A-5 mizer and temperature controls operation and mainte- nance should be a first priority, since it always results in immediate improvement„and is generally cost effective. Even if it does not completely solve an IAQ problem, it will improve the situation, and help for assessing further IAQ mitigation techniques." SMOKING POLICIES AN RELATED, ISSUE& [44], "Effects of a City Ordinance Regulating Smok- ing in Restaurants an& Retail-Stores„" J. Sciacca; M. Eckrem, Journal:of Community Healt{i 18(3); 175-182, 1993 "In July of 1989„the City of Flagstaff enacted an ordinance which prohibited smoking in public areas of retail stores and required restaurants to post signs reflecting one of the three following policies: (a) no smoking permitted in any area„(b) smoking permitted only in,designated areas, or (c) smoking permitted in all areas. The purpose of this study, was to assess the effects of this ordinance on restaurants and on retail stores where the public shops for good's approximately one year after enactment. We conducted a two-part study to obtain an objective, non-biased assessment of the effects of the current Flagstaff smoking ordinance on, local'' businesses." "Given the choice of which; smoking policy to adopt, only 18 percent of all the city's restaurants prohibited smoking." "Iti is interesting to note that given a choice„8? percent of the restaurants chose to allow smoking in at least some public areas. If former Surgeon General Koop is correct that 'simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate, exposure of nonsmokers to.envi- ronmental tobacco smoke,"then an ordinance which requires business managers to post but allows them to choose their, smoking policies is not likely to prevent exposure of non-smokers to second-hand smoke."' "The vast majoriry of respondents, includi'ng those from restaurants which banned smoking in alll areas, believed that the smoking ordinance had, no effect on their business. Only three respondents felt that the ordinance had a: negative effect, on their business.

A-6 ETS/(AQ REPORT, ISSUE 55 When asked to explain that effect, only one respondence (1.6% of the sample), suggested a lbss of business as a result of the ordinance. This lbss of business was further explained as being only temporary." "The finding that retail stores' average gross sales increased'i dramatically, along with reports that the overall economy posted a decline in many communi- ties close to Flagstaff (communities which did not have smoking ordinances) yet business and tourism in Flagstaff 'boomed' after the smoking ordinance went into effect,, provides further support for the belief that', prohibiting smoking i'n, these stores did not have an adverse effect on business." "In summary, the accumulating evidence associating passive smoki'ng with health risks indicates a need for stronger efforts to protect non-smokers from exposure to tobacco smoke. A highly promising way of reducing an individual's exposure to second~hand smoke is through the enactment of ordinances which restrict smoking in public areas."' "The study makes the following points: 1) businesses report adopting smokirng policies when requieed'to do so by l'aw, 2) restaurants will not necessarily prohibit smoking, if an ordinance does not require it, 3'), businesss representatives do not perceive a loss of business after enactment of a no-smoking ordinance, and 4) gross sales d'ata support business representatives perceptions that an ordinance which prohibits smoking in stores does not cause a loss of business."

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