Tobacco Documents Online

OCTOBER 22, 1993 [10] Science Advisory Board Given New Role According to a press report, the EPA's Science Advisory Board (SAB) will be charged with examining future societal and business trends that may have an environmental impact and require EPA action during the next century. An announcement about the "fu- tures" project is expected to be made at the SAB's October 27, 1993, annual meeting. The project is apparently a response to Congressional and public criticism that the EPA lacks a long-term strategic plan. An October 8, 1993, draft plan for the project reportedly indicates that eachi of the SAB's 10 committees will be required'to conduct short-term five year projections and longer 20-year projections. Each committee will also be instructed'to choose a limited number of future developments for in-depth evaluation of their, environmentallconsequences and to draw implications for future EPA responsibilities. Issues that may be addressed include (i) the role of nuclear power and renewable fuels in the long-termm energy mix; (ii) the impact of future technologies on, travel and work patterns; (iii) the impact of urbaniza- tion on pollution; and (iv) the existence of more effective approaches to managing environmental problems. See Ifusde EPA, October 15, 1993. ASH RAE [11J SSPC 62 to Meet in Philadelphia Prior to IAQ '93 Meeting A special working,meeting of SSPC 62, the commit- tee responsible for revising ASHRAE Ventilation Standard 62-1989, is scheduled to begin on November 5, 1993, in Philadelphia. The three-day meeting is scheduled to conclude just prior to the commencement of ASHRAE's annual conference, Indoor Air Quality '93, which will be held November 7-10, also M Philadelphia. Standard 62-1989 suggests ventilation rates to ensure adequate indoor air quality. The voluntary standard assumes the presence of smokers, and the ventilation rates are recommended to deal with ETS and other substances in the indoor air. SSPC 62 was formed in 1992 to review and revise the standard. A draft revision was circulated in January 1993; committee members currently are debating suggested changes to that draft. 5 For more information about the Indoor Air Quality '93 meeting, see issue 49 of this Report,,Jlune 11, 1993. STATE AND LOCAL GOVERNMEN?I'S [12] Florida Publishes Changes to Clean Indoor Act Rules The Florida Depanment of Health and Rehabilitative Services (HRS)1has published a notice of change to the rules it has been considering to implement the Florida Clean Indoor Act. The Act is addressed solely to indoor smoking, and the proposed rules essentially designate the procedures to be followed byenforce- ment personnel and the types of citaeions and fines that can be assessed for violations of the Act. The changes, published! on October 1, 1993, were made in response to comments made during a public hearing in August 1993. The latest version of the proposed'rules omits any reference to public announce- ments made in transportation terminals about the state's smoking policy, a matter over which HRS has no enforcement authority or jurisdiction under the statute. The changes also redesignate a: type of violation~ under the statute involving smoking in private offices where smoking is permitted and the office doors are left open. According to an HRS spokesperson, the proposed rules have been challenged and their adoption is on~hol& pending the decision of an administratir-e hearing officer. [13] Privacy Legislation •Pennsylvania A bi111 that would prohibit employment discr~imination against persons who use lawfull products has been reconsidered in the House. On October 13, 1993, the bill was read a third time, amended, and passed the House. The bill now is under consideration in the Senate. See H.B. 956, 176th Gen. Assembly, Reg. Sess. (1993-94); ThrAssociated P'ress;,October 14, 1993. •Ohio On October 6, 1'993~ a bill was introduced that would _ include the use of tobacco products outside employ- ment within the unlawful discriminary employment practices of the Ohio Civil Rights Law. Sce H.B. 517, 120th Gen. Assembly, Reg. Sess. (1993-94). 202470 25 ~ 1

6 •Illinois On October 13, 1'993, a bill was introduced'that would amend'the Right to Privacy in the Workplace Act by prohibiting,employment discrimination based on lawful activities away from work. SeeS.B. 1126, 88th Gen. Assembly, Reg. Sess. (1993-94). [14]I Other ETS-Rclated State and Local Legislation •Local Governments in Arizona Tempe. City Counciltnan Frank Plencner has proposed amordinance that would ban smoking in restaurants, the workplace, Tempe Diablo Stadium, city buildings and city vehicles. His proposal, along with one made earlier that would' ban cigarette vending machines, will be forwarded to the City Council. At least four of the seven council members must agree to place the propos- als on an agenda for a regular council' meeting. See The Arizona Republic/The Phoenix Gazette, October 11, 1993. •California H.B. 291 was signed' by Governor Pete Wilson on October 11, 1993. The measure, which goes into effect January 1, 1994, places into law an executive order issued by Wilson last winter that bans smoking in state-owned and! state-leased buildings. The legislation also expands the Governor's ban to include state- owned cars, state universities„legislative buildings and state appellate courts. The measure prohibits smoking wiihim five feet of entrances to state buildings. See Sacramento Bee, October 13, 1993; United'Press International October 12, 1993; and The San Francisco Chronicle; October 13, 1993. •Local Governments in California Long Bcach. According to la news report, the City Council has decided'to place its antismoking ordinance before voters in the April 12 municipal election. The ordinance, which would prohibit smoking in restau- rants, had been suspended by a petition drive for the referendum. In the meantime, the council has drafted an interim ordinance that would restrict smoking to one-fifth of the total space in restaurants and bars. If the council gives final approval, the restrictions would' take effect in November and remain in effect if voters reject the stricter measure in April. See Los Angeles Times; October 13 and October 14, 1993. Ojar: The City Council is considering,a variety of approaches to strengthen its smoking ordinance, ETS/IAQ FtEPORT, ISSUE 58' including a possible smoking ban on~ciry sidewalks, in Libbey Park and all other public places except bars and tobacco shops. The current law, adopted in 1987, allows smoking in most public places, but requires no- smoking areas in public facilities and businesses. See LosAngeles Times; October, 12, 1993. West Hollywood According to: a news report, restaurant owners have launched a petition, drive to force the City Council to rescind a restaurant smoking ban that took effect October 6. Councilman Paul Koretz, the Council's primary advocate of the ordinance,,was reported to say that "growing evidence" of adverse health effects of ETS on restaurant workers made the ordinance necessary. See Los Angeles Times, October 14, 1993. Westlake Village. The City Council has given prelimi- nary approval to a smoking ban in~ most workplaces and indoor public areas. The measure will ban~smoking indoors except in private homes and clubs, bars, hotel~ and' motel rooms, tobacco stores, and private and designated smoking rooms. Smoking rooms would be requiredito be separately ventilated. See Los Angeles Times, October 15, 1993: •Maryland The Attorney General of Maryland has issued an opinion which states, in part, that localigovernment restrictions on smoking in public places are not preempted by state or federal law. The opinion was issued at the request of a state legislator who wanted too know if Prince George's County Council could' lawfull'y enact antismoking legislationL •Local Governments in Maryland Montgomery County. The County Council introduced' legislation on October 5, 1993, that would prohibit smoking in~counry government workplaces. County Executive Neal' Potter allcgedly requested the legisla- tion based! on the EPA Risk Assessment on ETS. See The Washington Trmes;, October 6, 1993. Talbot County. Opponents of an ordinance banning smoking in all restaurants and most workplaces have submitted 2,254 signatures in an effort to put the issue to referendum next year. The County Councillhad passed the measure August 10, 1993, but when restaurant owners realized the bill had been changed to ban smoking in all dining areas, they opposed the ordinance. See Baltimore Sun,,October 9, 1993. 20247n2s7z

OCTOBER 22, 1993 •Local Governments in Massachusetts Newton. An ordinance has been passed that requires most restaurants either to ban cigarettes or to have separately-ventilated rooms for smokers by July 1994. The ordinance covers taxicabs and buses, theater lobbies and some outdoor public places, such as semi- enclosed bus stop shelters. A news report claims that antismoking forces were assisted by the release of the EPA Risk Assessment on ETS. See The Boston Globe, October 6, 1993. •Local Government in Missouri St. Charles County. On October 12, 1993, County Executive Eugene C. Schwendemann vetoed a bill that would have banned smoking in county government buildings. Schwendemann stated that he vetoed the measure because it was unfair, and he pointe& out that the County already had a policy governing smoking that permits smoking in designated areas. See St. Louis Post-Dispatch, October 12,,1993. •Local Governments in North Carolina Cabarrus County. The County Board of Health~has votedto ban~smoking in all governmenrbuildings, including city buildings in Concord, Kannapolis, Harrisburg and! Iwlt. Pleasant. It will not affect pri- vately-owned public places. The ban was proposed by board member Dr. David Lockhart, who allegedly relied on the EPA Risk Assessment on~ ETS: See Charlotte Observer, October 2, 1993. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [15] Bentz: Pro Se Prisoner Case Filed in Oregon American Tobacco and American Brands were served recently in a case filed in the United States District Court for the District of Oregon. PlaintiffiTravis Bentz, a prisoner in an Oregon jail who filed the case pro se, alleges he has an unspecified irreparable injury an& has incurred a "reasonable fear of contracting one or more of the known fatal effects" from ETS expo- sure. He further alleges that cigarettes are "unreason- ably dangerous to consumers, bystanders, and the general public." He seeks $12 million in actual dam- ages, $500,000 in noneconomic damages and $1 million in punitive damages. Additional defendants in the action are Eagle Tobacco Corp. an&Ultratech 7 Co,-p. Bentz v. Eagle Tobacco Corp., et al. (U.S. District Court, Oregon) (filed September 27, 1993). [16] Bfuitr.Defendants' Responses to the Complaint to be Filed Defendants are stillischeduled to submit their responses to the complaint, on November 1, 1993. Plaintiffs in this action allege Willie Ruth Bluitt was a nonsmoker who died~ of lungcancer caused by workplace exposure to environmental tobacco smoke. Defendants in the action are the six major U.S. cigarette manufactur- ers. Bluitr v. RJ.Rrynolds Tobacco Co., et at (U.S. District Court„ Eastern District, Texas) (filed August 30, 1993)~ [17] Broirx Depositions of Senior Executives Taken Plaintiffs deposedsenior executives of some of the defendants between October 11 and October 15, 1993. William Campbell!, president of Philip Morris Incorpo- rated, was deposed on~October 11; Lawrence Ricciardi, president of RJR Nabisco, Inc. and Michael Rosenbaum, a vice president of Brooke Group Inc., were deposed on October 12; Farrell Delman, president of the Tobacco Merchants Association, and Andrew Tisch, president~ of Lorillard Tobacco Co,, were d'eposed on October 14; and Martin~Orlbwsky, executive vice president of Lorillard Tobacco Co:, was deposed on October 15. The Ricciar&and Delman depositions were limited to: jurisdictional issues. A representative of the Council for Tobacco Research is presently scheduled to be deposed on November 4. At issue in this case are the claims of 28 flight atten- dants allegedly injured by occupational exposure to ETS. In addition, the husband of one of the flight attendants claims loss of consortium. The 28 attendants purport to represent a class of approximately 60,00&other atten- dants. Plaintiffs' class action allegations have beeni dismissed by the trial court; plaintiffs' appeal of that dismissal is pendingin the Florida Court of Appeal. Injuries alleged by the putative class representatives include lung cancer, breast cancer and unspecified' respiratory ailments. Plaintiffs further allege that occupa- tionallexposure to ETS on board aircraft causes at least 22 diseases and a reasonable fear of contracting such diseases. The defendants are purported to be the six major U.S. cigarette manufacturers (plus related'enti-

6 ties); UST, Inc., United States Tobacco Company, Dosal Tobacco Corp.,, the Council for Tobacco Research, The Tobacco Institute and three trade associations. Broin, et al., v. Philip Morris, et aL (Circuit Court, Dade County, Florida) (filed' October 31, 1991'). [18] Butler. Deposition of Plaintiff Ava Dean Butler Postponed The October 20, 1993, deposition of plaintifff'iva Dean Butler and the October 21 deposition of one of the barbers in the shop formerly owned by plaintiff Burl Butler have been postponedL Both were post- poned due to Mr. Butler's recent hospitalization. Plaintiffs contend that Burl Butler, a barber in Laurel, Mississippi, developed lung cancer as a result of his exposure to environmental tobacco smoke. The defendants in this case consist of the six major U.S. cigarette manufacturers and several local retailers. Butler v. R.J: Reynolds Tobacco Company, et al. (Circuit Court, Hinds County; Mississippi) (filed October 21, 1992). [19] Dunn: Reply Briefs in Support of Defendants' Dispositive Motions to be File& Reply briefs in support of defendants' pending motions are currently due on October 27, 1993. The cigarette manufacturing defendants, The Tobacco Institute and'the Council for Tobacco Research have filed a joint motion to transfer venue from the Circuit Court of Delaware County, Indiana, to the Circuit Court of Grant County, Indiana. The holding com- pany defendants - American Btand's,, Loews Corp. and RJR Nabisco Holdings Corp. - have separately filed motions to dismiss for lack of personal jurisdic- tion. The court is presently scheduled to hear argumentt on the motions on December 2. Plaintiffs in this case contend that Mildred Wiley was a nonsmoker who died of lung cancer as a result of workplace exposure to environmental tobacco smoke. Her husband, Philip Wiley, is also asserting a loss of consortium claim. Defendants in the case are each of the six major U.S. cigarette manufacturers, parent companies of three of the manufacturers,,The Tobacco Institute, and the Council for Tobacco Research. Dunn v. RJR Nabisco Holdings Corporation; etal. (Superior ....,,.....,~...-...... > .,.,v._ iu Court, Delaware County, Indiana) (filed May 28, 1993). [20] Schultz Ninth Circuit Affirms Judgment in Favor of Philip Morris On October 5, 1993, the Ninth Circuit Court of Appeals affirmed' a judgment in favor of Philip Morris, the only defendant in the case to have been served. The U.S. District Court for the District of Arizona had granted Philip Morris' motion to dismiss, which was based on Rule 11i of the Federal Rules of Civil Proce- dure. In affirming the judgment, the Ninth Circuit held that plaintiffs "numerous frivolous filings indicate that he initiated this action to harass and cause unnec- essary delay in the proceedings." - The instant action was the first of several' Greg Schultz initiated invoHving claims of unspecified injuries resultingfrom exposure to ETS M prisom Schultz v. Philip Morris, et al. (U.S. Coun of Appeals, Ninth Circuit) (filed August 31„ 1990). . [21] Williams Case Filed' i~n ILouisiana. George Covert represents plaintiffs Cornealius Williams and Cynthia Johnson Williams in a case filed on October 8, 1993, in the District Court, of East Baton Rouge Parish, Louisiana. Defendants named in the complaint, are R.J'. Reynolds, Philip Morris and Johnson's former employer, McCarty Corporation. Plaintiffs allege that Mr. Johnson has laryngeal cancer, that was diagnosed in December 1992. While he allegedlysmoke& unnamed brands of cigarettes manu- factured by R.J. Reynolds (from 1966-1968)'and by Philip Morris (from 1968-1992), plaintiff's al'so allege that Johnson was injured by ETS exposure during an unspecified period of his life. As in, the recent Chutsz case, the ETS allegation in Williams is only made in passing and is not well'developed. (Plaintiffs' claimss against McCarty Corporation are based on Johnson's alleged~ exposure to asbestos fibers while working as a pipefitter.)' Plaintiffs seek $712,000 1in actual damages and unspecified dollar amounts in damages for personal injury, mental anguish and loss of enjoyment of life on behalf of Mr. Johnson. Plaintiff Cynthia Johnson Williams seeks an unspeci6ed! dollar amount in damages for her loss of consortium claim. IX/ilGams v:

OCTOBER 22, 1993 R.J. Reynolds Tobacco Company„ etal. (District Court, East Baton Rouge Parish, Louisiana) (filed October 8; 1993). ETS AND IAQ LITIGATION! NOT INVOLVING CIGARETTE Iv1ANUFACTURERS WORKPLACE: ASSAULT AND BATTERY [22]', Portenier v. Republic Hogg Robinson (Superior Court, Los Angeles County, California) (filed June 6, 1991) A Superior Court Commissioner has reportedly denied defense motions to dismissxhis lawsuit, which was filed by an insurance broker's employee who has alleged liability on the basis of assault and battery due to ETS exposure in the workplace. Trial has been set for April 26, 1994. The Commissioner's ruling rejects the employer's argument that the claim was subject to the exclusivity provision of the state workers' compensation~ act. The emplbyer's attorney has reportedly stated that the decision willl not be appealed. Trial' in the case has been set for April 26, 1994. See Los A'ngeles Daily Journal October 14, 1993: Plaintif'fAndrea Portenier, who began working for. Republic Hogg Robinson~ in January 1987, apparently informed her employer in March 1990, that ETS was causing health problems and that she should not be exposed to ETS in the workplace. The company reportedly offered to accommodate Portenier by (i)~ assigning a nonsmoker to work for her, (ii) relocating her work station,,and (iii)' offering her a position in a nonsmoking building. AMERICANS WITH DISABILITIES ACT (ADA) [23] Peterson v. Utah Department of Health (U.S. Department of Health and Human Services)' (filed July 14, 1993) The U.S. Department of Health and Human~ Services (HHS)' has decided to investigate the complaint of a man who claims that he has a genetic lung disease and is being subjected to discrimination by Utali's policy of permitting passage through smoking sections in places of public accommodation to reach designated non- smoking areas. HHS advised complainant Calvin Petersomby letter dated July 17, 1993, that it had jurisdiction~over the complaint under both~ the Rehabilitation Act of 1973 and the ADA, and that it would initiate an investiga- tion to determine whether the State was required to modify its policy "to accommodate the breathing disabledi» WORKPLACE WORKERS' COMPENSATION [24] AppellantlCross-Respondent v. Respondent/Cross- Appellant, 1993 WL 406384' (Texas Workers' Compensation Commission) (decided October 1, 1993) . A panellof ad'ministrative appeals judges has denied workers' compensation benefits to a woman who claimed that her lung cancer had been caused by workplace exposure to ETS: The woman, now de- ceased, claimed that she had been exposed to ETS for 23 years while working for her employer and'that she had'no other exposure to ETS. A hearing,oflicer had initially denied the claim, and the appeals panel determined there was suflecient evidence in the record to support that determination. According to the panei, there were conflicts in~ the evidence regarding,tlie amount of ETS in the work- place and in the opinions of the expert medical wit- nesses. Because it was for the hearing officer to judge questions of credibility and to resolve evidentiary conflicts, the panel deferred~ to his discretion. The panel referred to the EPA Risk Assessment on ETS, but evidently did not find' it persuasive. 9 WORKPLACE: IAQ N O[I25j B S£Wl t (S i Co t N h ors uper or ur ., a ura v nves .h District of Columbia) (filed September 14, 1990), ~ ~ Following a three-hour pretrial conference held on ~ October 15, 1993, Superior Court Judge Rufus King >Q II1 said'that trial would begin on October 25, 1993. 1;ol

ii& The case involves employees of the EPA who have sued various parties involved in renovating the EPA's headquarters. Plaintiffs allege health problems due to poor, indoor air quality. According,to the parties' joint pretrial statement, the trial is expected to take five to six weeks and will involve the claims of only five of the original 19 plaintiffs. The plaintiffs have listed more than 175 witnesses, including Representative Joseph Kennedy III (D-Mass.) and! Dr. Rosalyn Anderson,,who conducted the controversial carpet emissions tests that resulted in the neurological impairment or death of test mice. Plaintiffs are expected to show a videotape of mice exposed to the indoor air at the Waterside Mall building. The plaintiffs have made a pretrial demand of $'9,400,000~ The defendants have listed 41 witnesses, including Dr. Philip Witorsch, and have made no offer of settlement. Two of the defendants' expert witnesses, Dr. Herman Staudenmayer and Dr. Edlvard C. Kirby, will testify that there is a psychological explanation for many of the plaintiffs' alleged injuries. During,the pretrial conference, the judge expressed his view that trial would'only take four weeks, and he told the attorneys they needed'to pare their witness lists. IAQ: CARPET EIvIISSIONS [26] Howell v. Shaw Industries, Inc., 93-CV-2068 (U.S. District Court, Eastern District; Pennsyl- vania) (filed April 19, 1993). Granting a defense motion to transfer, the trial court has ruled that this case should be tried in Georgia rather than Pennslyvania. The carpets at issue in the case are manufactured in Georgia, and most of the liability witnesses and documentary evidence are in that state, the court stated: The new venue for the case is the Northern District of Georgia. See BNA Product Liability Daily, October 22, 1993. The plaintiffs in this case, purporting,to represent a class of more than 100,000 persons, are seeking damages for injuries allegedly caused by carpet emis- sions. Plaintiffs' theories of recovery include breacL of warranty, negligence, failure to provide adequate warnings to consumers, false advertising, and violations of state and federal laws. The defendants are the largest ETS/IAQ REPORT;,ISSUE 58 carpeting manufacturers in the United States and their trade associations. CHILD CUSTODY [27) Masone v. Tanner (Superior Court, Sacramento, California) (temporary custody order entered'October 13, 1993) According to numerous press reports, a California! Superior Court judge has temporarily taken custody of an eight-year-old asthmatic child from her mother, who is a smoker, at the request of the child's father. The child is living wizL her paternallgrandmother until the court decides whether to remove the child perma- nently frorn~her mother's home. The mother, Susan Tanner, reportedly claims that she does not smoke in the child's presence, while the father, Steve Masone, reportedly claims that a urine test of the child showed she is being exposed to significant levels of ETS. Evidently, custody has been disputed for a number of years, and the court has ordered psychiatric evaluations of both parents before she makes a permanent custody award. Masone is also reportedly preparing to file for custody oEhis stepson who is living with Tanner. J'ohn Banzhaf is quoted in many of the press reports about the case, and reference is frequently made to the EPA Risk Assessment on ETS by those articles discuss- ing the issue of smoking and child custody. See Sacramento Bee, October 7 and 14, 1993;! The Neur York Times, October 116, 1993; USA Today, October 15, 1993; Time, October 25; 1993: WORKPLACE: CASES INVOLVING Sh90):ERS' RIGHTS [28]I Kurtz v. City ofNorth Mrami, 1993 Fla: App. LEXIS 10307 (Court of Appeal, Third District, Florida) (decided October 12, 1993) The Florida Courr of Appeal has determined that a city regulation~ requiring job applicants to sign an affidavit stating that they have not used tobacco for at least one year prior to application is unconstitutional'. The court's ruling reverses a trial court decision that upheld the City of North Mami's policy of refusing to hire smokers. See issue 31 of the Report, September 25, 1992.

OCTOBER 22, 1993 PlaintiffArlene Kurtz had applied for a position as clerk-typist; she was informed'she would not be hired after she told an interviewer she could not sign the required affidavit. Kurtz sued the ciry for violation of her rights of privacy, equal protection and due process. The appellate court held that Kurtz had' an overriding privacy interest under the Florida Constitution ~ in not disdosing information about personal matters of a lawful nature which bore no relation to the job for which she had applied. "Although the City may, and indeed perhaps should, provide a smoke-free working environ- ment, we conclude that the City's interests are not sufficient to reach the private lawful'conduct of potential' employees," the court said. Kurtz was represented by lawyers employed by the AmericanCivili Liberties Union, North Miami's ciry manager has reportedly stated! that the City will likely appeal the decision to the Florida Supreme Court. See Daily Labor Report, October 18, 1993. HOSPITAL: PATIENTS" RIGHT TO SMOKE [29] Arbogast v. Peterson, 1993 Ohio App. LEXIS 4883 (Court of Appeals, Ninth Disuict, Summit County, Ohio) ~ (decided October 6, 1993) An Ohio appellate court has upheld a ban on smoking by patients at a psychiatric hospital. Patients of the facility challenged the policy on the grounds that it had not been properly implemented and that it violated their equal protection rights. The court held that the policy was a matter within the "executive charge" of the institution's managing officer and thus was not subject to regular promulgation procedures. The court also found that the purpose of promoting health and safety at the hospital was legitimate and that a ban on patient smoking was a reasonable means of implementing that purpose. PRISONr PRISONERS' RIGHT TO SMOKE [30] Prison Inmates v. Polk County (District Court, Polk County, Iowa) (filed September 1993) According to a press report, some 32 iinmates in Polk County, Iowa, have filed a lawsuit, against the county to overturn a smoking ban instituted in the trailers in 11 which they are housed. In support of the lawsuit, the inmates have apparently filed statements in which they claim that the ban is causing them to be "uptight" and that "fights break out over nothing at all." According to prison officials, the ban was imple- mented in response to recent court rulings regarding ETS, and a ban on smoking in the main jail is also being planned. The county has filed a motion to dismiss the case, arguing that smoking is not an activity protected by state or federal law. See Associated Press,. October 3, 1993. [31] Reyno!'ds, Jr. v. Bucks, 1993 U.S. Dist. LEXIS 14058 (U.S. District Court, Eastern District,. Pennsylvania) (decided October 1, 1993) A district court judge has ruled that prison inmates do not have a constitutional right to smoke. The four prisoners who filed the lawsuit allegedlthat the ban on smoking recently implemented at the Berks Counry Prison in Pennsylvania, is a form of punishment depriving them of their right to due process under the Fifth and Fourteenth Amendments and their Eighth Amendment right to be free of cruel and unusual punishment. The court cites the 1990 Draft EPA Risk Assessment on ETS to support its holding that there are legitimate governmental interests to justify the smoking ban. The court also states, "Given the known health risks associated with smoking, and the fact that more and more office buildings, stores, restaurants, and public accommodations prohibit smoking; it cannot be said that a smoking ban conflicts with society's standards of decency. Although the lack of nicotine may be painful for some prisoners, the pain is neither unnecessary nor wanton." CASES FILED BY' NONSMOKING PRISONERS [32] Wilson v. Hambrick, 1993 U.S. App. LEXIS 25454 (U.S. Court of Appeals, Sixth Circuit) (decided September 30, 1993). The Sixth Circuit Court of Appeals has permitted a woman ~ incarcerated at a fed'eral' prison in Lexington, Kentucky, to pursue her claim that her Eight Amend- ment rights are being violated by her exposure to ETS.

12 Plaintiff Angela Wilson had alleged in her pro se complaint that the smoking policy at the prison was nor being enforced and that she was being housed in a smoke-filled environment with inadequate ventilation. She alleged that ETS caused her to suffer hypertension, sore throat, eye and skin irritation, headaches, cough- ing and other breathing difficulties. She further alleged that she had been allergic to ETS since childhood and that the prison warden refused her request to move her away from smokers. Citing HeIling v. McKinney, 113 S. Ct. 2475 (6/18/ 93), the appeals court determined that the U.S, Supreme Court's decision in that case is broad enough to apply to an assertion that a prison smoking policy is not being enforced and ETS "hovers" in the complainant's living area. Accordingly, the court reversed, in part, the lower court's ruling that the complaint was frivolous. The court of appeals dis- missed'every defendant from the action other than the prison warden, saying that if the facts alleged againso the warden were true, Wilson~ could support her argument that the warden was deliberately indifferent to Wilson's reactions to ETS. [33]'' Brown v. Thornburgh, 1993 U.S. App. LEXIS 26732 (U.S. Court of Appeals, Sixth Circuit): (decided' October 12, 1993). The Sixth Circuit Court of Appeals has determined that a pro se federal prisoner may pursue her claim~that she has a medical'need for a smoke-free environment and'that she is being exposed to high~levels of ETS in violation of the Eighth~Amendrnent. Ptisoner Shirley Lynn Brown, like Angela Wilson (see previous item) ~ is incarcerated at a Federal prison in Lexington, Ken- tucky. The court simply cites Helling v. McKinney, 113 S. Ct. 2475 (1993), to support its holding. The case has been remanded for further consideration. SICK BUILDING SYNDRO?vIE. [34] Klacke v. The Au'D' Limited Partnership, 1993 Ohio App. LEX1S 4913 (Court of Appeals, First District, Hamilton County, Ohio) (decided' September 22, 1993) An Ohio appellate court has determined that plain- tiffs who have alleged that their injuries were caused by the building in which they worked and conducted ETS/IAQ REPORT, ISSUE 58 business may pursue their complaints as a class action. According to the court, "the claims of the representa- tive parties are typical of the claims of the class." The plaintiffs are apparently alleging that noxious fumes, bacteria, fungi, dust and other irritants in the defendant's building caused their problems. LEGAL ISSUES AND DEVELOPMENTS [!35] California Bar Considers Resolution on Work- place Smoking According,to a: press report, the California State Bar's Conference of Delegates was scheduled to consider whether to adopt a: resolution favoring the prohibition of workplace smoking. The resolution, introduced by the National Lawyers Guild, was reportedly one of 1700 resolutions slated for consideration during the October 8, 1993, meeting of the policy-making body for members of the state's voluntary bar groups. See The Recordrr,,October, 7, 1993. [36] "`Sick' Buildings Rarely Are, but Perceive& Problems Must be Solved," J. Wojcik, Business Insurance, September 13, 1993 This article advises building owners and employers too take the "sick building" complaints ofbuild2ng occu- pants seriously to avoid litigation. Among the items discussed are "sick building syndrome," pending Congressional IAQ legislation and a number of the cases raising claims based on IAQ problerns: The author also addresses potential sources of poor IAQ including ETS. Several experts consulted by the author dispute allegations of injury caused by "sick buildings„" and suggest that the problem may be one more of psychology than of chemistry. [37] "Exposure to Tobacco Smoke is More Than Offensive, It is Cruel and Unusual Punish- ment," J.S. Kinsler, Valparaiso University Law Review, 1993 This article, written before the U.S. Supreme Court decided Helling v: McKinney, examines the issue of ETS exposure in prisons and'conclud'es that such a condition of confinement violates the Eighth Amend- ment proscription against cruel and unusual punish-

OCTOBER 22, 1993 ment. The author makes numerous references to the EPA Risk Assessment on ETS, and claims "any debate concerning ETS's dangers ended with the issuance of the 1993 EPA Report." OTHER DEVELOPMENTS [38]I Massachusetts Launches Tobacco Control Program Using the revenue from a 25-cent sales tax on ciga- rettes, the State of Massachusetts has launched a $91 million program that seeks to reduce tobacco use in the state by 50 percent by 1999. The program, known as the Massachusetts Tobacco Control Program (MTCP), includes a$14I million multimedia advertising cam- paign targeted primarily at young people. Some of the ads attempt to increase awareness of the alleged health effects of ETS exposure. One of the program's three priinary objectives is to give local communities "the funds and tools necessary to enact their own anti-tobacco ordinances," according to a press release. The other primary objectives are (1i) to increase awareness about the alleged health effects of tobacco use and (2) to provide services that will help smokers quit smoking and give them access to tobacco information. The 25-cent sales tax was approved in a statewide referendum in November 11992. See PR Newswire, October 14, 1993. [39] ASH Offers Long Distance Service to Raise Funds A brochure recently produced by ASH offers a long distance phone service tliatASH is using as a means of raising furtds. Stating "[y]ou can help ASH take more legal action to protect non-smokers' rights by simply switching your long distance carrier," ASH indicates that a percentage of each long distance telephone billlwill benefit the activities of ASH. The service, knownias the "Affiniry Fund," daims to offer overallI savings over most programs offered by AT&T, MCI and Sprint. [40] Toyota Test Markets Air Cleaner Toyota is reportedly test marketing an air purif er for, its 1992-1993 Camry sedans. The air purifier purport- edly reduces the amount of airborne pollen, tobacco smoke, dust and microscopic particles inside the car. 13 Thc a:v purifier operates independently of the heater and air conditioner and' is controlled by a two-speed switch on the console. The device reportedly removes, filters and returns interior air through color-keyed vents mounted on the rear window shelf between the rear speakers. See Chicago Tribune, October 17, 1993. [41 ] Freedom Air Fails to Attract Sufficient Numbers of Fliers According to a press report, the airline service launched for smokers has failed to attract enough passengers to become viable. After three Chicago to Los Angeles flights, owner Ted Hall reportedly can- celled the Freedom Air service, saying he could not afford regular flights and the costs of advertising needed to get off the ground. Hall had reportedly hoped to get some support from the tobacco industry. See International Herald Tribune, October 11, 1993'. SCIENTIFIC/TECHNICAL ITEMS UPCOMING SCIENTIFIC MEETINGS [42] IAQ'94: Engineering Indoor Environments, St. Louis, Missouri, October 30-Nbvember 2, 1994 An announcement and~ callI for papers have been issued by the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE)lfor this IAQ symposium on engineering indoor environments. According to the announcement4 the symposiumlwill "provid'e builders, designers, building owners and building managers with the latest scientific and practicall information on indoor environmental issues," and will. "encourage recommendations on procedures for design- ing, operating and maintaining buildings to ensure acceptable indoor environmental quality." The confer- ence will include panel discussions on specific topics of current interest and original scientific presentations. [43] Eleventh ORNL Life Sciences Symposium, Indoor Air and Human Health Revisited (Bringing Selected' Advances in Medical Science to the Indoor Air Quality Community), Knox- ville, Tennessee, March 28-31, 1994 Oak Ridge National Laboratory will host this sympo- sium sponsored by the U.S. Department of Energy, EPA,.

14 and the Hazardous Waste Remedial Actions Program. According to promotional materials, the symposium will focus on "health effects ranging from normal sensory response to poor indoor air qualiry to effects that seriously degrade the quality of life or are life threatening." Sessions will deal with sensory, allergy/respiratory (including bioaerosols), neurotoxicity and cancer issues. LUNG CANCER [44] "Occupational Risk Factors for Lung Cancer Among Nonsmoking Women: A Case-Control Study in Missouri (United States)s" R.C. Brownson, M.C.R. Alavanja, an&J.C. Chang, Cancer Causes and Control4: 449-454, 1993 [See Appendix A] Although this paper does not present risk estimates for spousal smoking,and lung cancer, it is of interest because it is based upon the same studypopuladon as the 1992 Brownson, et ali, paper on spousal smoking. See issue 35 of this Report, Nbvember 20, 1992. The current paper presents statistically significantly elevated lung cancer risk estimates for several indices of occupational exposure. Occupationall exposures were not consideredl as potential confounding factors in the Brownson, et al., spousall smoking report. [451 "Towards Truth, Through Falsification," A. Flew, Indoor Environment 2: 125-128; 1993 [See Appendix A] In this editoriali the author uses the conclusions of government, agencies about spousal smoking and! lung cancer to illustrate his position that some public policies may be based upon material that is "not, truly scientific." He calls for continued scientific criticism in order to detect andreject "substitutes" for scientific "truth." [46]I Letters to the Editor Regarding Trichopoulos, D., Mollo, F., Tomatis, L., Agapitos, E., Delsedime, L., Zavitsanos, X.., Kalandidi, A., Katsouyanni, K., Riboli, E., and Saraccii, R., "Active and Passive Smoking and Pathological Indicators of Lung Cancer Risk in an Autopsy Study," Journal of the American Medical Associa- tion 268: 1697-1701, 1992 The Journal of the American Medical Association recently published six letters concerning a paper by l=.1 J/11qCZ K'J:.l'OK1 „1JSUt. 58 Trichopoulos, et al., which reported on data from an autopsy study conducted in Greece. The authors claimed that their data on cellular changes in the lungs of women reportedly exposed to ETS supported a "link" between~ ETS exposure and hing cancer. See issue 32 of this Report, October 9, 1992. Letters in response to Trichopoulos, et ali, by Nathan~Mantel4 Christopher R.E. Coggins and Thomas J. Steichen, David J. Doolittle, Kathryn Goldin, and Peter Lee were published, as was a response by Dimitrios Trichopoulos and his coauthors. The letters appear at Journal'of the American Medical Association 270(1i4). 1689-1691, 1993. Mantel's letter comments on the apparent contrast between the claims of Trichopoulos, et al., regarding lung cancer risk, based on data from, 30 women, and the risk estimates derived from larger epidemiologic studies of spousallsmoking. Mantel notes than with small'~ numbers of cases, "RR values can be highly erratic."' He comments on the "inconsistency" of the results reported by Trichopoulos, et al., for instance, that the reported risk estimate for nonsmokers ex- ceeded the risk estimates for former and current smokers. Coggins and Steichen, of the R.JI Reynolds Tobacco Co., state that the work of Trichopoulos, et al., "contains a number of major flaws, collectively render- ing the information presented as scientifically question- able." They comment on the imprecise nature of the data (which was acknowledged in the original''1 paper)4 the small'sample size, the possibility of uncontrolled confounding, the nature of the tissue changes invesri~ gated, the possibility of problems associated, with, the use of surrogate respondents, and the study's apparenti omission of possible effects of air pollution (for whichi Athens is known) in the interpretation of the data. Another R.J. Reynolds scientist, David J. Doolittle, reports that his company has conducted a number of experiments using cultured cells and laboratory animals to study possible effects of ETS, and has "initiated a series of planned human studies on this topic:" Doolittle notes that the Trichopoulos, et al., study's conclusion was based on only 30 persons, in~contrast to press reports' suggestions that hundreds of people had been studied. He also suggests that Trichopoulos, et al., failed to present their data in a fashion amenable to independent analysis by other scientists.