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SHOOK, HARDY& BACON REPORT ON RECENT ETS AND IAQ DEVELOPMENTS November 19, 1993 N ~ tv A ~ J ?L . SHB c~

REPORT ON RECENT ETS AND IAQ DEVELOPMENTS - IN THIS ISSUE - IN THE UNITED STATES REGULATORY AND LEGISLATIVE ISSUES • Traficant bill to ban smoking in federal buildings passes the House, p. 1. • Hearings on risk assessment are held in House subcommittee, p. 1. • Joseph Dear is confirmed as new Assistant Secretary of Labor in charge of OSHA, p. 2. • Cal OSHA prepares policy directive for IAQ inspections, p. 3. Special Report beginning on page 5 focuses on regulatory and legislative activity in California, Florida, Maryland'and Washington states. ETS LITIGATION AGAINST CIGARE'ITE MAL'UFACTURERS. • Case filed in Louisiana with ETS allegation, p. 8. • Senior company executive depositions continue in Broin, p. 8. ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS • Two actions are filed under the ADA, p. 9. • Court temporarily removes asthmatic child from custody of smoking parent, p. 9.. LEGAL ISSUES AND DEVELOPMENTS • "Going for Smoke: AG aims to Ban Lighting up at Some Fast-Food Eateries," p. 11. • Daynard publishes another article on ETS and litigation in Trial magazine, p. 11. ISSUE 60 OTHER DEVELOPMENTS/MEDIA COVERAGE • A Hardee's fast-food'restaurant rescind's its smoking ban, p. 11. SCIENTIFIC/TECHNICAL ITEMS • Additional details on the National Environ- mental Tobacco Smoke Conference, p. 12. • Three new studies relating to ETS and childhood respiratory conditions, p. 14. • "A Tobacco-Specific Lung Carcinogen in the Urine of Men Exposed to Cigarette Smoke," p. 15. • "Preliminary Assessment of Designated Smoking Areas for Nonsmoker Exposure to Environmental Tobacco Smoke," p. 15. IN EUROPE & AROUND THE WORLD REGULATORY'AND LEGISLATIVE MATTERS • EC Council addresses smoking in its Safety and! Health Directive, p. 16. • France: one year after public smoking law enacted, p: 16. LEGAL ISSUES AND DEVELOPMENTS • Who Bentfirt from WHO? p. 17. OTHER DEVELOPMENTS/MEDIA COVERAGE • 1994 Winter Olympics in Norway are declared smoke free, p. 17. • United Nations bans smoking in all its facilities, p. 18. •"Canadian Navy Butts Out," p. 18.

- TABLE OF CONTENTS - Issue 60 November 19, 1993 INTHE UNI TED STATES REGULATORY AND LEGISLATIVE MATTERS 103D CONGRESS [I] TraficanrBill'on Smoking in Federal Buildings,Passes House ................................................. 11 [2] I-lousrSubcommittee Holds Hearings on Risk Assessment Assumptions ................................. 11 [3]. EPA Cabinet Status Legislation Introduced in House .............................................................. 2 U.S. OCCUPATIONAL SAFETY AND HEALTH.ADMINISTRATION (C7SHA)! [4] [51 [G] [7] Joseph Dear Confirmed as Assistant Secretary of'Labor in Charge of OSHA, ........................... 2 OSHA Drops Participation in lntcragency Committees on Smoking and Risk Assessment ..... 3 California OSHA Prepares Policy Directive for IAQInspections ............................................ 3 Occupational Health Groups Call For Federal Regulation of Workplace Smoking ................. 3 U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) ~ [8] I Browner Names New Chair of Science Advisory Board ........................................................... 3 [9]1 £TS Risk'Asscssmcnt Litigation: EPA Files Response to Pl~inriffs' Motiomfor Leave to File Sur-reply Brief and Joins Request for Oral Argument on Motion to Dismiss .......................... 3 [l0] CarperIndustry Launches Information Program ................................................................••••.4 ASHRAE [I11] Committee Makes Progress on Ventilation Standerd............................................................... 4 WHITE HOUSE [I12] Clinton Cigarette Tax Hike Proposal Provokes Varied Reaction ............................................. 4 U.S. GENERAL SERVICES ADMINISTRATION (GSA)• [13] Notice Given of Potential Change to Smoking Policy ............................................................. 5 STATE AND T.OCAL GOVERNMENTS ['14] Special Focus on ETS Activitics: California, Florida, Maryland'and'Washington ............ ... 5 [15] State Attorneys General Seek Fast-Food Restaurant Smoking Ban ........................................... 6 .......................................................................................... , [16] Privacy Legislation ......................... [17] Other ETS-Related State and Local Legislation ....................................................................... 7' ETS:RELATED LITIGATION AGAINST CI!GARETTE MANUFACTURERS [18] Arabic Thi'rd Smoking and Health Case with BriefETS Allegation Filed in Louisiana .......... 8 [19] Broin: More Depositions of Senior Executives Noticed; Defendants to$egin Depositions of Plaintiffs .................................................................................................... .......................... 8 [20] Butler: ArgumenrSchedultd on Defendants' Motion for Summary Judgment ....................... 8 [211 Dunn: Argument to be Held on Defendants' Various Motions .............................................. 9 ETS/IAQLITIGATION'NOT INVOLVING CIGARETTE MANUFACTURERS AMER.ICANS WITH DISABILITIES ACT (ADA). [22]1 Petnson v. Burger King(U!S. District Court, Utah) (filed Nbvcmber 3. 1993)~ ........................ 9 [23]1 Antismoking Activists Seek Airport Smoking Ban .....................................................•...•..•.•....9 CHILD CUSTODY [24]1 Thomar v. HarrirTlo. 86-4043-CA (Circuit Court, Duval County, Florida) (temporary custody awarded November 4, 1993) ...................................................................................... 9 CHALIENGESTO SMOKING POIJCIFS [25] St, Picrre, et aL v. Solnitq 1993 Conn. Super. LEXIS 28114 (Superior Court. Hartford-New Britain judicial District, Connecticut) (decided October 2ii, 1993): ...................................... 10 [2G] Nursing Home Sues State Over Smoking Policy Order ......................................................... 10 WORKPLACE: COLLECTIVE BARGAINING. [27] Government Unions File Unfair Labor Practices Claim ........................................................ 10 WORKFLACE:SICK BUILDING CvNDROME [281 Shato v. Sacramrnto Capitol Plarn, et al., No. BC074G25 (Superior Cour2„Los Angeles County„California)', (filed February 11, 1993) ....................................................................... 10

Contents Continued, Issue 60 LEGAL ISSUES AND DEVELOPMENTS [29) [30] "Going for Smoke: AG aims to Ban Lighting up at Some Fast-Food Eateries," C. Lacicst, The Dallas Morning Ntws, November 12, 1993 ..................................................................... 1 1 "Smoking Out the Enemy: New Devclopments in Tobacco Litigation," R.A. Daynard, TriaZ November 1993 .................................................................................................... ...... 11 OTHER DEVELOPMENTS [31] Fast-Food RestauranrAbandons Smoke-Frcc Experiment ..................................................... 11l [32] METLIFE Joins ALA Crusade ..............................................................................................,11, [33) Denver Healch and Hospitals Takes First Step to Smoke-Free Campus ................................. 12 SCIENTIFIC/TECHNICAL ITEMS UPCOMING SCIENTIFIC MEETINGS [34] The National Environmental Tobacco Smoke Confcrcnce: "Public Battles, Private Choices," IAQPu67t'cations, Inc., Washington, D.C., December 16-17, 1993 ,....................... 12 [35] Annual Mceting„Society for Risk Analysis, Savannah, Georgia„Decembcr 5-8, 1!993 ........... 13 [36] Liability, Compliance„Insuranceand lndoorAir, Quality, Mid'Atlantic Environmental! Hygiene Resource Center, Philadelphia, Pcnnsylvania„Dcccmber 9, 11993 ............................ 13 [37] One Day Overview of Indoor Air Quality, MidAtldtntic EnvironmentallHygicne Resource Ccnter, Philadelphia, Pennsylvania, December 10, 1993 ....................................................... 13 [38) 9th World Conference on Tobacco and Healih, Paris, France, October 10-14', 1994 ............ 13 LUNG CANCER [39] "Risk Factors for Lung Cancer in Non.-Smokers in Xuanwei County of Cltiina," Q: Lan, W. Chen, Hl Chen, and X.-Z. He, Biomrdical'and Environmrnta! ScirncrJ 6: 1 12-1Q 8, 1993 [See Appendix A], .................................................................................................... ..... 13 RESPIRATORY DISEASES AND CONDITIONS - ADULTS [40]1 "Passive Cigarette Smokc, Coal Hcating, and Respiratory Symptoms of Nonsmoking Women in China,." C.A. Pope and X. Xu, EnvironmrntaL Health Perspectives 101('4): 314! 3'115, 1993 [See Appendix A] .......................................................................................... 14: (41) "The Prevalence of Inherited and Environmental Factors in Patients with Bronchial Asthma," S. Srccnan„R. Lyons, S. Pathamakanthan, C.K. Powcrs and C.M. Burke, Chest 104(2s Supp).)t 61S. 1993 [Sec Appendix A] ........................................................................ 14, RESPIRATORY DISEASES AND CONDITIONS - CHILDREN [42) "The Associations Between Childhood Asthma and Atopy, and Parental Asthma, Hay Ftverand Smoking," M.A. Jenkins, J.L. Hopper, L.B. Flandcr, J,B. Carlin, and G.G. Gilts, Paediatric and I'erinatal EpidemioloU 7: 67-76, 1993 [See Appendix A) ............................... 14 [43] "Effects ofAcure Passive Smoking on Exercisc-]nduced:Bronchoconstriction in Asthmatic Child'rcn," H. Magnusscn, B. Lehnigk, M. Oldigs, and R. Jorres, JournalofApplird I?iiysiology75(2): 553-558, 1993 [See Appendix A] ............................................................... 14 [44] "Effects of Air Pollution on the Respiratory Tract of Children," R. Schmitzbcrger„ K. Rhombcrg, R. Pucheggcr, D. Schmitzbcrgcr-Natzmcr, G. Kemmler, and B. Panosch, Pediatric Pulmonology 15: 68-74, 1993 [See Appendix A) ..................................................... 14 OTHER HEALTH ISSUES [45] Letters to the Editor Regarding "Relationship of Sudden Infanr Death Syndrome to Matcrnal Smoking During and'After Pregnancy," K.C. Schoendorf and J.L. Kiely, I'tdiatrics 90(6)t 905-908, 1993 ........................................................................................... 14 ETS EXPOSURE AND MONITORING [46] "A Tobacco-Specific Lung Carcinogen in the Urine of Men Exposed to Cigarette Smokc," S.S. Hecht, S.G. Carmella, S.E. M,urphy, S. Akerkar, K.D. Brunncmann,,and D. Hoffmann, Ntw England Journal ofMrdicinz 329(21): 1543-1546, 1993 [See Appendix A] ................... 15 [47) "Preliminary Assessment of Designated~ Smoking Areas for Nonsmoker Exposure to. Environmental Tobacco Smoke," E.N. Light and R. Gay, presented at Indoor Air Quality '93 Operating and Maintaining Buildings for Hcalth. Comfort and Productivity, ASHRAE, Philadelphia, Pennsylvania, November 7-10, 1993 [See Appendix A) .................. 15 [48) "Mainstream and Sidestream Cigarcttc Smoke-Ihduccd DNA Adducts in C7B1 and DBA Mice," C.G. Gairola, H. Wu, R.C. Gupta, and J.N. Diana, Environmental Health Parspectives99: 253-255, 1993 [See Appendix A] ................................................................. 15

Contents Continued, Issue 60 SMOKING POLICIES AND RELATED ISSUES [49] "Smoking Control in Restaunnts: The Effectiveness of Self Rcgulation in Australia," M.J. Schofiold, R. Considine, C.A. Boyle, and R. Sanson-Fisher, American Journal ofPublic Health 83(9): 1284-1288, 1993 [See Appendix A] ............................................................... 15 STATISTICS AND RISK ASSESSMENT [50] "Data Torturing,"').L. Mills,Nrw EnglandJournal of Mcdicinr 329(16): 1 196-1199; 1993 [See Appendix A] ............................ ..................................._......................................._ 16 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS COUNCIL. OF EUROPEAN' COMMUNITIES. (EC). [51] EC Council Proposes Addressing Smoking in Safety and Health Directivc ........................... 16 FRANCE ............................... 1 [52] One Year Anniversary of Franee Antismoking Legislation ...................... SWEDEN [53] Swedish Campaign Discourages Smoking at Work ...... ...................................................... ..•- 16 LEGAL ISSUES AND DEVELOPMENTS WORLD I''IEALTH: ORGANITATION(WHO) . 154] Who Bcntfits fr~om lY/HO?, R.D. Tollison & R.E. Wagner, Research Report 18 (Social Affairs Unit, 1993) ............. .................................................................................. 17 OTHER DEVELOPMENTS ASIn [55] NORWAY "Fired-Up Officials Won't Find'Smoke-Fillcd Rooms At APEC," Thr Scattlc Timrs, November 6, 1993 .................................................................................................... ............ 17 [56]! Lillchammcr Organiiers Sign "Smoke$ee Games" Deal ........................................•.•••.•.••••.••• 17 SINGAPORE[57]' Employee Complaints of Sick Building Syndrome May Be a Result of Stress or Other Personal Factors .................................................................................................... ................ 17 UNITED NATIONS. ' [58] United Nations Resolves To Go Tobacco-Free .........................................••.•..••..•••••••-.••-••••••• 118 MEDIA COVERAGE CANADA - [591 "Canadian Navy Butts Out," Tobacco Conrrol2(3): 191„1993 ............................................. 18' UNITED KINGDOM [60] "Millions Lost If Smoking Ban is Introduced;" Morning Advrrrisrr, November 8, 1993 ........ 18 APPENDIX A .................................................................................................... ...._......................... Article Summaries APPENDIX B .................................................................................................... ............. Upcoming Scientific Meetings APPENDIX C .................................................................................................... .................. Attorneys General Report

NOVEMBER 19, 1993 1 REPC~RT ON RECENT ETS AND IAQ DEVELOPMENTS IN THE LJNITi ED STATES REGULATORY AND LEGISLATIVE. MATTERS 103D CONGRESS antismoking legislation to appropriations bills failcd, when the billk were submitted to House and Senate conferees (H'.R. 2403; H.R. 2518). See Associated Press, November 15, 1993; Daily Report for Executrves, November 16, 1993; The Washington Times, Novem- ber 16, 1993. [1] Traficant Bill on Smoking in Federal Buildings Passes House On November 15, 1993, the House passed the bill' introduced by Representative James Traficant (D-Oliio)' that would restrict smoking in all Federal buildings to designated areas with separate ventilation (H.1L 881). The measure would affect some 12,000!buildings, although it would exempt from its coverage military installations, living quarters, and health care facilities under the jurisdiction of the Secretary of Veterans Afl•airs The billiwill'now be considered by the Senate,, where it is reportedly expected to face opposition. During debate on the measure, Traficant stated that the release of the EPA Risk Assessment on ETS led him to introduce the billl Representative Richard Durbin (D-Ill.) also cited the ETS risk assessment during his supporting remarks. Durbin stated'that 34 percent of businesses responding to a survey in 1991 indicated that their facilities were smoke free. Repre- sentative Tim Valentine (D-N.C.) spoke in opposition to the measure, daiming that it is unfair to workers and citizens who smoke. Valentine recently announced he will not run for reelection in 1994, ending his 12 years in Congress. An issue of contention during the debate was how the measure would be enforced. Traficant agreed that the language of the bill provides sufficient flexibility for each branch of government to devise its own enforce- ment options as appropriate. Although no companion measure to H.R 881 has been introduced in the Senate, Traficant is reportedly expected to lobby for Senate members to intruduce such legislation or attach similar language to an appropriations bill. The attempts previously made by Senator Frank Lautenberg (D-N.J.) to attach his [2) House Subcommittee Holds Hearings on Risk Assessment Assumptions A House Energy and Commerce subcommittee reportedly heard testimony on Nbvember 17, 1993, regarding whether the EPA's use of assumptions in its ri'sk assessments creates distortions of risk. The sub- committee has jurisdiction over three environmental laws: the Comprehensive Environmental! Response, Compensation, and Liability Act (CERCLA); the Toxic Substances Control Act (TSCA); and the Resource Conservation and Recovery Act (RCRA). Those testifying at the hearing included representa- tives of state and federal governments, researchers, a chemical manufacturer and an environmental group. A summary of hearing testimony and comments follows. See Daily Report~for Fxccutives, November 18, 1993. • Subcommittee Chair Al Swift (D-Wash.): Swift criticized the EPA for being reluctant to compare or rank environmental hazards in spite of its Science Advisory Board's (SAB) completion of such a task in 1990 with its report "Reducing Risk: Setting Priori- ties and Strategies for Environmental Protection." • Former SAB Relative Risk Committee co-chair Raymond Loehr: Stating that it is difficult to compare risks, Loehr testified that risk assessment was created to evaluate risks in specific circum- stances and not to support comparisons. • EPA assistant adrninistrator for prevention, pesti- cides and toxic substances Dr. Lynn Goldman: The EPA compares risks every day, Goldman said, but factors other than science, such as the public's expectations and congressional mandates, influence agency decisions.

2 • Ranking minority subcommittee member Represen- tative Michael Oxley (R-Ohio): Oxley's questions of witnesses were focused on the use of assumptions where chemical testing,data are insufficient to complete a risk assessment. • Program manager of the Office of Technology Assessment Michael Gough: Gough testified that there is no scientific consensus that would direct the EPA to use one risk assessment model as opposed to any other. The agency, however, uses the linearized multistage model as a default. He also stated that there is no scientific consensus that there would be a linear cancer response from a low dose exposure to chemicals. [3] EPA Cabinet Status Legislation Introduced! in House On November 3, 1993, Representative John Conyers, Jr., (D-MI), introduced legislation~ that would redesig- nate the EPA as a cabinet-level department (H.R 3425): The bill, which was drafted and approved by the House Committee on Government Operations, has 42 original cosponsors. The provisions of the bill establish cabinet status for the EPA and address contract management problems at the agency. The bill' does not make any change in exist2ng environmental law or alter any existing environmental policy. The bill, as introduced, does not contain language relating to risk assessments and cost-benefit analysis, although an effort was made in committee to add this language, and such a provision~ is one of the 26 amend- ments that was to be offered when the bill reached'the House floor during the week ending November 19, 1993. The Senate version of the bill, which has already been approved in that body, does contain risk assess- ment provisions (S. 171). In addition, a separate measure that would require the preparation of risk assessments in connection with federal health and safery or environmental regulations was introduced by Representative "Billy" Tauzin (D-La.): on October 27, 1993 (H.R. 3395): Representatives reportedly expected to support the addition of risk analysis language to H.R 3425 arc John Mica (R-Fla.) and Gary Condit (D-Calif.): Representa- tive Henry Waxman (D-Calif.) and others have appar- ently vowed to kill the measure if it contains such a provision. See Inside EPA, November 5, 1993; BNA National Environment Daily, November 15, 1993. ETS/IAQ REPORT, ISSUE 60 U.S. OCCUPATIONAL SAFETY AND HEALTH A,DMINISTRATION (OSHA) [4] Joseph Dear Confirmed as Assistant Secretary of Labor in Charge of OSHA On November 8, 1993, Joseph Dear was confirmed by a voice vote in the Senate to become the new Assistant Secretary of Labor in charge of OSHA. Publicly, Dear has pledged to "revitalize OSHA" and bring a new commitment to the "fundamental mission of saving li ves, preventing serious injuries and protect- iing the health of the American workers." Dear has been serving as a consultant to OSHA since Aprill 1993; his nomination hadbeen pending since September 7. He continues to serve on a committee formed by Labor Secretary Robert Reich to analyze proposed OSHA reform legislation and develop the Clinton administration's position. Before joining the Clinton administration, Dear was former Director of Washington state's Department of Labor and' Ind'ustries. He has also worked for the Washington State Labor CounciL People for Fair Taxes, Occupational Safety and Health State Plan Association and the National Association of Govern- mentat Labor Officials. A press report indicates that mandatory emplbyer-employee safety and health committees and the use of workers' compensation data to target workplaces for safety and health inspections will be top priorities for Dear as OSHA Director. In Washington state, Dear reportedly pioneered the use of workers' compensation data to target safety and healtL inspec- tions. Media sources say OSHA is expected to be more decentralized under Dear and more efficient iln target- ing inspections. Dear has reportedly been praised' in the past by business groups who call1im a"consensus-builder" and say he communicates effectively with business. He has been saido to place emphasis on cooperation~rather than confrontation when dealing with worker safety issues. "Joe Dear's record in Washington (state) was clearly one in which he sought to bring the partners together," says a former colleague who was quoted in an article on Dear. Another colleague, when asked about Dear's record in Washington state saids "Overall, he did a pretty good job. He's able to bring everyone to

) NOVEMBER 19, 1993 the table, get them talking and get: everyone to move forward even when the issues are contentious." See BNA Daily Rrport for Ex•ecutiva, November 10, 1993; Industry Week, August 16, 1993; and Business Insur- ancr, August 2, 1993. [''5] OSHA Drops Participation in Interagency Committees on Smoking and Risk Assessment According to a press report, OSHA will'have 56 fewer interagency committees on which it must serve. Some 40 percent of OSHA's participation~ in interagency committees were reportedly cut by the Department of Labor, including OSHA's participation on a smoking and health committee, chaired by the Department of Health an& Human Services, and four risk assessment panels, i.e., the Federal Liaison Group to the Commit- tee on. Risk Assessment Health Standards, Hazard/Risk Assessment of the Integrated Chlorinated~ Solvent Project, the Interagency Risk Assessment Committee, and the Subcommittee on Risk Assessment. As part of the Clinton; adminisuation's efforts to streamline federal government and improve operations, the Department of Labor overall has apparently elimi- nated its participation in 165 agency panels. OSHA will remain on 91 panels, including the Committee for Indoor Air Quality (CIAQ; which is headed by the EPA. See BNA Daily Labor Report; November 16, 1993. [6] California O'SI IA Prepares Policy Directive for IAQ Inspections According to a press report, the California Division of Occupational Safery and Health~hopes to complete by the end' of the year a policy directive for inspectors to follow during IAQ investigations. Because no such directive currently exists, inspectors apparently take different approaches to such inspections. Key elements of a current draft of the policy reportedly include (i)) guidelines for handling complaints,, including specific questions; (ii)~an investigation protocol on how to interview managers and employees; and'(iii) the agenry's citation policy. See BNA Califorrria - Safety cr Health Report, November 8, 1993, [7] Occupational Health Groups Call For Federal'. Regulation of Workplace Smoking Three occupational health groups have calle& upon U.S. Secretary of Labor Robert Reich to take immedi- 3 ate steps to regulate ETS in the workplace. Citing the EPA Risk Assessment on ETS, the American Industrial Hygiene Association, the American College of Occupa- tional and Environmental Medicine, and the American Association of Occupational Health Nurses have written to Reich, asking that OSHA limit its indoor air rulemaking to ETS. The coalition has also issued a position statement that advocates a smoke-free work environment for all employees. U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA). [8] Browner Names New Chair of Science Advisory Board According to a press report, EPA Administrator Carol Browner has named Genevieve Matanoski to replace Raymond Loehr as chair of the agency's Science Advisory Board (SAB). Matanoski, a professor of epidemiology at the Johns Hopkins University School, ofNygiene and Public Health, has conducted extensive study on the alleged health effects of electromagnetic fields. She previously served as chair of the SAB's radiation advisory committee. Although Matanoski's selection was reponedlysup- ported by other board members, EPA sources apparently indicated that SAB executive committee member Morton Lippmann had been the SAB staffs top choice for the post. As a result of another recent selection~ made by Browner, Lippmann will be replaced as chairman of the SAB's indoor air quality committee by Joan Daisey of the Lawrence Berkeley laboratory's indoor environ- ment program. See Inside EPA, November 5; 1993. [9] ETS Risk Assessment Litigation: EPA Files Response to Plaintiffs' Motion for Leave to File Sur-reply Brief and Joins Request for Oral Argument on Motion to Dismiss The EPA has filed a response to the tobacco industry plaintiffs' motion for leave to file a sur-reply brief in opposition to the motion to dismiss the complaint. The EPA does not object to the granting of the motion for leave "in the interests of a full presentation~ of the views of all parties," but asserts that it is unnecessary as the EPA's reply brief does not raise any new issues. Further details about the EPA's reply brief and the plaintiffs' sur-reply brief appear in issues 58 and 59 of this Report, October 22 and November 5, 1993.

4 The EPA has also joined the plaintiffs' request that the court hold oral argument on EPA's motion to dismiss. The court has not yet ruled on the oral argument request, nor has the court ruled' on either of the pending motions for leave to file amicus briefs. Plaintiffs' complkinti in this case seeks a dedaration that EPA's decision to designate ETS a Group A carcinogen, together with the risk assessment on which the decision is based, is unauthorized, arbitrary and capricious, violates procedures required by law, and' amounts to a denial of due process. Plaintiffs also seek a permanent injunction requiring EPA to withdraw the Group A designation and the underlying risk assess- ment. Flue-Cured Tobacco Cooperative Stabilization Corporation, et al.v. EPA (U.S. District~ Court, Middle District, North Carolina) (filed June 22, 1993). [10]I Carpet I'ndustry Launches Information Program The carpet industry has developed a consumer information labeliwhich will be placed on alll "point-of-purchase carpet samples" manufactured after January 1, 1994, according to the Carpet and Rug Institute, the trade organization representing the interests of carpet manufacturers. The label, in con• junction with a "Carpet Owner's Manual," reportedly discusses proper installation techniques for new carpeting. The information program was developed in response to public concerns about carpet emissions. Providing input into the program were members of Congress, the EPA and'the Consumer Product Safety Commission. The Advancement of Sound Science Coalition (TASSC), a newly formed nonprofit group of scientists and representatives of universities, independent organizations and industry, reportedly lauded the announcement of the Carpet and Rug,Institute. According to Garrey Carruthers, former governor of New Mexico and'cliairman of TASSC, "This is a good example of how science and policy decisions should work. Public policy should be driven by sound science and a valid peer-reviewed process - not by emotions, 'panics' or those that have a predetermined policy objective." See U.S. Newswire, November 15, 1993. ETSIIAQ REPORT, ISSUE 60' AS H RAE [11] Committee Makes Progress on Ventilation Standard The ASHRAE committee that is considering changes to Ventilation Standard' 62-1989 met on November 5-7, 1'993: The chair of the committee hopes to have a final consensus d'raft available for consideration during the ASHRAE winter meeting in January 1995, andia public comment version to be released by ASHRAE in March 1995. Among the proposals approved by the committee is a statement that the standard is not intended to provide accepti- abl'e indoor air quality for especially sensitive or susceptible individuals. Committee disagreement over the definition of acceptable indoor air quality and over methodology in the calculation of ventilation rates continues. WHITE HOUSE [12] Clinton Cigarette Tax Hike Proposal Provokes Varied Reaction According to press reports, President Bill Clinton's proposal to raise taxes on cigarettes and other tobacco products has been sharply criticized by cigarette vendors and those lawmakers who representt tobacco-growing states or who generally oppose any tax proposals. The tax hike, which is expected to: reduce the numbers of smokers, has been viewed by public health officials as beneficial to nonsmokers. See issue 59 of this Report, November 5, 1993; In Canada, where high cigarette taxes reportedly have led to the extensive smuggling of cheaper contraband cigarettes from the United States, govern- ment officials are reportedly considering lowering their taxes to equalize prices on cigarettes and to end the smuggling trade, which is apparently costing millions of dollars in lost tax revenues each year. S« St. Louis Post Dupatcfl, October 30 and November 7, 1993; The Ga.zettr (Montreal), November 4, 1993.

) NOVEMBER 19, 1993 U.S. GENERAL SERVICES ADMINISTRATION (GSA)' [13]' Notice Given of Potential Change to Smoking Policy Federal buildings operator GSA recently included in a notice of "prerule stage" a provision~ indicating that it will revise its current policy on smoking in GSA-controlled'buildings if Congress votes or an executive order is issued'to ban smoking im Federal buildings. The GSA currently permits smoking in designated smoking areas as determined by the occu- pant agency head'. The EPA Risk Assessment on ETS is cited in the notice. STATE AND LOCAL GOVERNMENTS [14] Special Focus on ETS Activities: California, Florida, Maryl'and' and Washington The states of California, Florida, Maryland and Washington have recently proposed certain initiatives that, if adopted, could have an impact upon the public debate over ETS, either by pronouncing that ETS is responsible for signifcantadverse health effects or by subjecting smokers to broad new restrictions. A summary of activities in these states follows. • California. Under the Safe Water and Toxic Enforcement Act of 1986 (Proposition 65), the state has beem requiring warnings to the public about chemicals known to the state to cause cancer or reproductive toxicity. "Tobacco smoke" has been on the "cancer list" since 1988. ETS has not been on the "reproductive toxicity list," and,,prior to this year, had been given a low priority for consideration on this list under the ranking scheme employed by the Proposition 65 Scientific Advisory Panel. A new ranking scheme, known as DELPHI, was adopted at an October 25, 1993, meeting of the Developmental and Reproductive Toxicant Identif- cation Committee (DART). Pursuant to this procedure, ETS has now been listed as a high priority for consideration. The legislature considered a number of antismoking measures during its latest session. A.B. 13, which would ban smoking in most workplaces, restau- rants, malls, hotels, airports and other public places 5 remained in committee when the legislature adjourned on September 10, 1993. See issue 55 of this Report, September 10, 1993. A competing measure, A.B. 996, which would have invalidated localsmoking restrictions and bans and would have permitted most business owners to set their own smoking policies, was withdrawn from consider- ation by its sponsor. See issue 54 of this Report, August 27, 1993. Meanwhile, in a move criticized by antismoking activists, Governor Pete Wilson (R) reportedly appointed Kimberly Belshe as the state's new director of health services. Belshe at one time worked for a public relations firm on behalf of the tobacco industry to defeat the measure that taxess cigarettes to fund antismoking programs (Proposi- tion 99): According to a press report, Belshe, who is not a physician, has served as the key architect of many of the health programs initiated by the Wilson administration. As director~ of health services, Belkhe will be called upon~ to~direct the state's antismoking programs and formulate strate- gies to combat smoking. Stanton Glantz has been quoted as saying, "I am absolutely shocked that the governor would name her: health director. She is absolutely unqualif ed and a completely inappropri' ate choice." See Sacramento Bee and Los Angeles Times, November 10, 1993. • Florida. The Department of Health and R'ehabiliza- tive Services is poised toadopt rules to implement the Florida Clean Ind'oor Air Act. Fla. Stat. ch. 386.201-.211. The proposed rules, Fla. Admin. Codes. I0D-105.008-.012; have been subject to public comment in 1993. They designate the procedures to be followed by enforcement person- neliwho investigate complaints about ETS under the Act. The rules also designate the types of citations and f nes that can be assessed for viola- ~ tions. Fines as high as $500 a day can be imposed ~ for violations such as (i):designating more than ~j one-half of the rooms in a health care facility as ~ smoking; (ii) permitting or designating smoking in CZ a common work area without employee consent; N and (iii) designating smoking in common areas that V141 are expected to be used by the public. Because the ~ proposed rules have been challenged, their final adoption is on hold pending the decision~of an administrative hearing officer.

6 In the Florida Legislature, a bill that would require the Department of Management Services to evalu- ate and develop programs to improve indoor air quality in state buildings was prefiled on November 17, 1993 (H.B. 251). Further information about the measure was not immediately available. • Maryland. Although Secretary of Licensing and Regulation William Fogle, Jr., has withdrawn his abrupt proposal to adopt an emergency temporary standard to ban smoking in virtually every work- place in the state, rulemaking on a similar proposal has been initiated andlwill be subject to comment at public hearings on December 9, 1993, in Crownville, and on December 16{ 1993,, in Frederick. The proposed regulation would simply require that employers ensure that employees, while in the workplace, do not smoke. Public comment is being accepted on the proposal. Fogle was reportedly prompted to undertake his initiative after three maintenance workers were killed when a match used to light a cigar ignited solvent that was being used to strip a gymnasium floor in a Baltimore school. Fogle has also justified the measure on the basis of Maryland's alleged high cancer rate, which he attributes in part to ETS exposure. If an emergency regulation had been adopted, the Legislature's Joint Committee on Administrative, Executive and Legislative Review would have had the power to veto the proposal. This committee cannot, however, veto regulations that und'ergo the usual regulatory process, which~has now been launched. The Senate chair of the joint committee has reportedly indicated that the committee may stillhold a hearing on the proposaland request changes. According to a press report, similar measures introduced in the General Assembly over the past three years have been unsuccessfui.. Public reactionto the regulatory proposal hass apparently been mixed. A spokesperson for Gover- nor ponaM Schaefer (D) said the governor "is not yet ready to embrace this proposal." See Baltimore Morning Sun, October 29, 30 and November 4, 1993; The Washington Times, November 5, 1993. • Washington. The Department of Labor and Iind!ustries has been considering rules on indoor air quality for the past two years. In December 1993, ETSLIAQ REPORT, ISSUE 60 public hearings will be held throughout the state to consider its latest proposal for IAQ occupational health standards. Chapter 296-62 WAC. Under the proposal, which includes comprehensive provisions on ventilation, smoking in the workplace would be restricte& to separately ventilated~ "smoking break rooms." An appendix with information about organizations offering smoking cessation informa- tion and programs is included. The proposed standards, if adopted, will i become effective for employers with Mor more office employ- ees on.September 1, 1994. Employers with less than 20 employees would have to comply by March 1, 1995. The same "phased in" schedule applies to building,owners having controllover ofhice work environments with the same numbers of workers. Public hearings have been scheduled for December 7, 8'and 9, 1993, in six different cities. Written comments are also being accepted. Joseph Dear,,the former secretary of the Department was recently confirmed as assistant secretary of labor in charge of U.S. OSHA. • Priuary Legislation. "Privacy legislation," i.e., statutes that protect workers who smoke off the job or, more generally, use legal' products or engage in legal activities outside the workplace, have been contested'recently in these states, none of whi& has adopted such a proposal. Measures that would have protected! smokers from job discrimination were defeated in 1992 andJor 1993 in all four states. (15] State Attorneys General Seek Fast~Food Rcstau- rant Smoking Ban Relying heavily on the EPA Risk Assessment on ETS, attorneys general from 15 states have prepared a report that calls upon fast-food~ restaurants to voluntarily ban smoking to protect young customers and workers. The report,,entitled "Fast Food, Growing Children and~ Passive Smoke: A Dangerous Menu," was signed by the attorneys general of Arizona, Connecticut, Idaho, Iowa, Massachusetts, Minnesota, Mississippi, New Mexico, New York, Oklahoma, Oregon, Texas, Utah,. Vermont and Wisconsin, along with the Hawaii Office of Consumer Protection. A copy of the report is attached as Appendix C.

) NOVEMBER 19, 1993 Spokespersons for the fast-food restaurants reportedly stated that it is up to state legislatures, expressing the will1 of the people, to pass laws on such issues. See Associated Press, UPI and Reuters, November 8, 1993; TheDallasMorningNews, November 9, 1993. [16] Privacy Legislation A bill that would prohibit employers from requiring workers to refrain, from, or engage in, any legal behav- ior while off the job was introduced in the Michigan Senate on October, 20, 1993 (S. 904). During 1993, privacy legislation has been enacted' inn two jurisdictions, Montana and the District of Colum- bia, and amended in North Dakota. According to information from The Tobacco Institute, such legisla- tion has beenidefeated this year in 14'states (Alabama, Alaska,Arizona„California, Delaware, Florida, Geor- gia, Hawaii, Idaho, Iowa, Kansas, Nebraska, Virginia and Washington): The defeat in Virginia was by veto. Privacy legislation currently is pending in five states: Illlnois, Massachusetts, Michigan, Ohio and Pennsylvania. Currently, 29 states and the District of Columbia prohibit employment discrimination based on lawful off the-job activities, which activities specifically or necessarily include the use of tobacco products. The 29 states are as follows: Arizona Colorado Connecticut Illinois Indiana Kentucky Louisiana Maine Minnesota Mississippi Missouri Montana Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Oklahoma Oregon Rhode Island South Carolina South Dakota Tennessee Virginia West, Virginia Wisconsin Wyoming Delaware adopted a similar directive by executive order in 1989: [17] Other ETS-Related State and Local Legislation •Local Governments in California Ojai. On November 23, 1993, the City Council is scheduled to vote on a proposed ordinance that would prohibit smoking in a number of outdoor locations, 7 including restaurant dining patios and city parks. According to a newspaper report, the council has indicated it will support the measure. See Los Angeles Times; November 11, 1993. Santa Clara. On November 9, 1993, the City Council directed staffers to draw up a proposed ordinance that would prohibit smoking in virtually all indoor public places, including private businesses, restaurants and bars. The council reportedly is expected to vote on the proposal in early or mid- December. See The San Francisco Chronicle, November 11, 1993. Santa Monica. The City Council has passed an ordi- nance that prohibits smoking in restaurant dining areas but permits it in restaurant bars. An eff'on by two council members to prohibit outdoor smoking om restaurant patios reportedly failed by a vote of 5-2'. See LosAngeles Times, November 4, 1993. Ventura County. On November 16, 1993, the Board of Supervisors unanimously approved a smoking restriction ordinance affecting unincorporated areas of the county. The ordinance prohibits indoor smoking in virtually all public plaees except bars and tobacco shops. According to a newspaper artide, the prohibition against smoking indudes patrons of private parry rooms and actors smoking,on stage. The law will take effect on Valentine's Day, February 14, 1994. See Los Angeles Times, November 17,1993. Westlake Village. By unanimous vote, the City Council has approved an ordinance that reportedly prohibits indoor smoking in almost all places except restaurant bar areas that are separately ventilated, smoking,rooms in hotels, private residences, clubs and some commer- cial establishments. The council's vote came on November 11, 1993. It was reported that "not a single person spoke against the issue at, a public hearing." See Los Angelrs Times, November 12, 1993. •Hawaii The state's Office of Consumer Protection reportedly is asking for public comment on a preliminary report recommending that smoking be prohibited at Fast-food restaurants. See USA Today,, November 9, 1993. Hawaii's director of consumer protection is a ccrsponsor, along with 14' other attorneys general of the report entitled, "Fast Food, Growing Children and Passive Smoke: A Danger- ous Menu." See Appendix C of this Report.

8 •Local! Government in Missouri St. CharLes County. The County Council has overrid- den the County Executive's veto of an ordinance banning smoking in county government buildings. The law takes effect December 6, 1993. Penalties for violating the measure reportedly include up to one yearr in jail and a$1,000 fine. According to a newspaper anicle, crimes with comparable penalties include third-degree assault, theft of cable television service, use or possession of drug paraphernalia and littering. See St: Louis Post Dispatch, November 11, 1993. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [18] Arabie. Third Smoking and Health Case with Brief ETS Allegation Filed in Louisiana On October 5, 1993, George Covert filed a third smoking andhealth case with an allegation made in passing that the plaintiff, Clifton Arabie, was harmed by exposure to environmental tobacco smoke in addition too smoking cigarettes. American, Liggett and RJ. Reynolds are the tobacco defendants in the case, filed in~the District Court of Jefferson Parish, Louisiana. Mr. Covert's three most recent cases, Arabie, Chustz and Cornealius Willia»u, have contained an ETS allegation that was not the focus of the case. Arabie v. R_J.Reynolrl.s Tobacco Co., et al. (District Court, Jefferson Parish, Louisiana)' (filed October 5, 1993). [19] Broin: More Depositions of Senior Executives Noticed; Defendants to Begin Depositions of Plaintiffs On November 5, 1993, plaintiffs served notices for additional depositions of executives of various defen- dants. Dr. James Glenn, President of the Council for Tobacco Research, is to be deposed on November 29. Arthur Stevens, Vice President and General'. Counsel of Lorillard Tobacco Co. (but noticed due to his capacity as a director of CTR), is to be deposed on December 3. Laurence Tisch, co-CEO of Loews Corporation, is to be deposed on December 6„ as is Ellen Merlo, an official of Philip Morris Incorporated's Government Affairs Department. Dr. Harmon McAllister, CTR's Scientific Director, and Dr. David Stone, CTR's. Associate Research Director, are both to be deposed on ETS/IAQ REPORT„ ISSUE 60 December 7. Preston Robert Tisch, co-CEO of Loews Corporation, is to be deposed on December 9. Bennett Lebow of Liggett Group was deposed by plaintiffs on November 5. Plaintiffs are still scheduled to depose four representatives of The Tobacco Institute - Samuel Chikote, Walker Merryman, Brennan Dawson and Thomas Lauria - on November 18-19: Defendants have noticed two of the plaintiffs for deposition on November 30-December 2. Plaintiff Valerie Gibson is to be deposed on November 30 and the morning of December 1; plaintiff Patricia Crittenden is to be deposed on the afternoon of December I and on December 2. Plaintiffs' counselihas informed defendants that plaintiff Gary Hayes will voluntarily dismiss his claim. An order of dismissal has not been entered. 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 60,000 other attenr dants. Plaintiffs' dass action allegations have been dismissed by the trial court; plaintiffs' appeal of that dismissal is pending in the Florida Court of Appeal. Inj uries alleged by the putative class representatives include lung cancer, breast cancer and unspecified respiratory ailments. Plaintiffs further allege that occupa- tional exposure to ETS on boardaircrak 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- ties), UST, Inc., United States Tobacco Company,, Dosal Tobacco Corp., the Council for Tobacco Re- search, The Tobacco Institute, and three trade associa- tions. Broin, etal., v. Philip 11'forris, et al (Circuit Court,. Dade County, Florida) (filed October 31, 1991): [20] Butler. Argument Scheduled' on Defendants' Motion for Summary Judgment The hearing on defendants' motion for partial summary judgment will be held on December 13, 1993. Defendants seek summary judgment on plain- tiffs' failure to warn and concealment claims based on preemption and on plaintiffs' remaining claims (except for design defect) based on state 1aw grounds.

NOVEMBER 19, 1993 Im other activity, defendants deposed several fact witnesses on November 1'6-17. Plaintiffs contend that Burl~Butler, a barber from 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. RJ.Reynolds Tobacco Company, et aL (Circuit Court, Hinds County, Mississippi) (filed October 21, 1992). [21] Dunn: Argument to be Held on Defendants' Various Motions Argument is scheduled for December 2, 1993, on defendants' various motions. Argument will be heard om the motion to transfer venue from the Circuit Court of Delaware County, Indiana, to the Circuit Court of Grant County, Indiana, that was filed jointly by the cigarette manufacturing defendants, The Tobacco Institute and' the Council for Tobacco Research, and on the separate motions to dismiss for lack of personal jurisdiction that were filed' by the holding company defendants, American Brands, Loews Corp. and RJR Nabisco Holdings Corp.. Plaintiffs in this case contend that Mildred Wiley was a nonsmoker who died of lung cancer as a result of work- place exposure to environmental'tobacco smoke. Her husband, Philip Wiley, is also asserting a loss of consor- tium 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, et aL (Superior Court, Delaware County, Indiana) (filtd May 2$;1993). ETSIIAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS AMERICANS WITH DISABILITIES ACT (ADA,). [22] Peterson v. Burger King (U.S. District Court, Utah) (filed November 3, 1993) A 44-year-old' man who allegedly suffers from "lung disease" has apparentNy filed a complaint under the ADA against ten Salt Lake City area restaurants and two bowling alleys, claiming that they have denied him 9 equal access by allowing ETS to drift into nonsmoking areas. Among those named as defendants are Burger King, Blimpie Sandwiches, and the Belgian Waffle and Omelet I'nn, Plaintiff Calvin Peterson is not apparently seeking a complete smoking ban as an accommodation of his alleged disability, but he is requesting smoke-free access and eating areas. Peterson is reportedly being repre- sented by attorney Kate Toomey. The Burger King outlet named in the litigation reportedly banned smoking beginning November 11, 1993, and a spokesperson for Blimpie Sandwiches has indicated that it may ban smoking as well. The Utah legislature rejected a measure during its last session, that would have banned smoking in public buildings that do not have smoking rooms with separate ventilation. According to a state senator, a new proposal to ban smoking will be introducedin 11994. SeeAssociaud Press, November 4, 1993. [23] Antismoking Activists Seek Airport Smoking Ban Vivian Dietemann of St. Louis has reportedNy filed'i a complaint against St. Louis and St. Louis County under the ADA seeking to impose a complete smoking ban at the Lambert Field airport. Dietemann, who was joined in the action by flight attendant Patricia Young of Dallas, who alleges that she has asthma and cannot use Lamben Field because she is sensitive to ETS. According to a press report, the St. Louis County Council this year rejected a proposal to confine smoking at Lambert Field to rooms with separate ventilation. Smoking is, however, apparently restricted to bars and restaurants and nine other designated areas. Young is a named plaintiff in Broin: See St. Louis Post Dispatch, November 9, 1993: CH1LD CUSTODY [24] Thomas v. Harrrs No. 86-4043-CA (Circuit Court, Duval County, Florida) (temporary custody award'ed November 4, 1993) According to press reports, a circuit court judge has temporarily removed a seven-year-old asthmatic child from the custody of his mother allegedly to protect him from ETS exposure. Although the mother, Nora Kirkpatrick (formerly Nora Thomas), reportedly does

10 not smoke, her new husband and his mother do smoke. According to Kirkpatrick's attorney, the child's stepfather and'stepgrandmother do not smoke in the child's presence, and the child's health has been unchanged while living with his mother. The judge who made the award is a former smoker. After enteringthe temporary custody order, the judge was quoted as saying, "Secondhand smoke is killing children and impacting their health, and I think it's time for the courts of this country to help these children." An appeal was filed in the case on Novem- ber 5. See United Press International and Associated Press, November 6, 1993. An appeal was filed in the case on November 5. On November 8, Nora Kirkpatrick moved to disqualify the trial judge, alleging bias and prejudice. According to the motion, no allegation relating to smoking appeared in the motion for temporary custody that was sched- uled for hearing on November 1, yet the court -- with no prior notice to the mother -- limited the testimony during the hearing to the subject of smoking. CHALLENGES TO SMOKING POLICIES [25] St. I'ierre, et aL v. Solnir, 1993 Conn. Super. LMS 2814 (Superior Court, Hartford-New Britain Judicial District, Connecticut) (decided October 21, 1993) A number of patients and residents of a mental health facility filed a complaint against the commissioner of the Connecticut Department of Mental Health seeking to enjoin the enforcement of a new smoking policy which restricts smoking to two fifteen-minute breaks each day in designated outdoor areas. The plaintiffs claimed that the policy was enacted in violation of the state's Administrative Procedure Act. Finding that the plaintiffs had failed to exhaust their administrative remedies by first petitioning the defendant for a declaratory ruling, the court granted~ the defendant's motion to dismiss the case. [26] Nursing Home Sues State Over Smoking Policy Order According to a press report, a nursing home near Rochester, New York, filed suit after the state Health Department ordered the home to designate a room in ETS/IAQ REPORT, ISSUE 60 the facility in which residents can smoke. The 72-bed home, Maplewood Nursing Home, which opened in 1947, always prohibited residents from smoking indoors. Five years ago, the facility reportedly banned smoking completely when staff members were prohib- ited from smoking. A state inspector allegedly informed Maplewood this year that it needed a smoking room. The decision of the Health Department was apparently based upon the state's "nursing home residents' bill1of rights." Ac- cording to an, attorney for the Health Department, residents cannot be prohibited from smoking in what is essentially their home. See Associated Press,, Novem- ber 11, 1993. WORKPLACE: COLLECTIVE BARGAINING [27] Government Unions File Unfair Labor Practices Claim According to a press report, unions representing, Bucks County employees fileda complaint with the Pennsylvania Labor Relations Board after county officials unilaterally instituted a smoking ban in all county facilities on March 1, 1993. The previous smoking policy„which permitted smoking,in desig- nated areas„was apparently negotiated during contract talks in late 11990: According to union officials, the change in policy represents a working condition that is subject to negotiation. See Philadelphia Inquirer, November 11, 1993. WORKPLACE: SICK BUILDING SYNDROME [28] Shaw v. Sacramento Capitol Plazsi, et aL, No. BC074625 (Superior Court, Los Angeles County, California) (filed February 11, 1993) Two state employees have sued the owner and operators of the building in which they work, alleging that they are suffering from respiratory and pulmonary symptoms, permanent allergies, chemical low tolerance levels and emotional distress due to sick building syndrome. According to a press report, the parties to the litigation are negotiating over an agreement to transfer the action to Sacramento County, where the building and witnesses are located. See Indoor Pollution Law Report, October 1993.

) ) NOVEMBER 19, 1993 Plaintiffs Sharon Shaw and Mary Howe Hight initially filed the complaint pro se but are now represented by Los Angeles attorney David Rosen. The complaint contains counts of negligence, strict liability, breach of implied warranties of fitness and merchantability, breach of express warranty, fraud and conspiracy. The plaintiffs' allegations include the following: (i) the defendants permitted the building to be occupied without first leaching out all noxious chemicals and substances; (ii) the air conditioning system was not properly balanced; (iii) the defendants permitted the use of materials and substances in ~ construction that offgas formaldehyde and other noxious substances; (iv) the defendants failed to heed reports of sick building syndrome and failed to take precautions to prevent its occurrence; and (v) the defendants misrepresented the condition~of the building as safe and concealed the adverse effects of the materials and substances permit- ted to offgas into the building, According to the plaintiffs' attorney, possible causes of the plaintiffs' health conditions are problems with the building's HVAC system, which permitted~ con. taminants to be recirculate& in the building, and mildew and spores, which developed after a reroofing project. The plaintiffs are seeking general damages, medical and related'expenses, lost earnings and earning capacity, punitive damages and costs of suit. LEGAL ISSUES AND DEVELOPMENTS [29] "Going for Smoke: AG aims to Ban Lighting up at Some Fast-Food Eateries," C. Laciest, The DalJrrs Morning News, November 12, 1993 This article profiles the efforts undertaken by Texas Attorney Genera!' Dan Morales to ban smoking in fast-food restaurants. Morales has brought legal actions against businesses under the state's deceptive trade practices laws, daiming that such 1'aws are violated when designated nonsmoking areas share a ventilation system with designated'~ smoking areas. A number of restaurant representatives are quoted in the article. Although some believe a smoking ban would have no appreciable impact on business, they say that Morales' request that they impose such bans voluntarily would place individual restaurant owners at 11 a disadvantage. The targets of Morales' initiatives, Luby's Cafeteria and' W}iataburger, reportedly com- plain that the issue has political overtones. The article asserts that some 1,500 of 6,000 McDonald's restaurants nationwide are now smoke free, as are 600 of Burger King's 6,000 restaurants. A spokes- person for Burger Kirtg,is quoted as saying that the company has been "getting letters on both sides of the issue." A Hardee's spokesperson states that a smoking policy probably cannot be imposed on franchisees. [30] "Smoking Out the Enemy: New Developments in Tobacco Litigation," R.A. Daynard, Trial, November 1993 This anicle, by the chair of the Tobacco Products Liability Project, discusses developments in the law regarding ETS litigation, among other matters. Rich- ard Daynard addresses the EPA Risk Assessment on ETS, the U! S. Supreme Court decision in H'elling v. MrKinnry, 113 S. Ct. 2475 (1993), and the complaints that have been filed against fast food restaurants under the Americans with Disabilities Act. OTHER DEVELOPMENTS [31], Fast-Food Restaurant Abandons Smoke-Free Experiment A Hardee's restaurant in Danville, Illinois, which opened on Jluly 8, 1993, has reportedly established aa designated smoking area after experimenting with a smoking ban. According to a Hard'ee's marketing manager, public response was split evenly over the ban. Since rescinding the ban, some customers have report- edly expressed'their appreciation of the policy change by visiting the site more frequently. See Gannett News Service, November 12, 1993. [32] i METLIFE Joins ALA Crusade Citing employers' concerns about rising medical costs, along with a continuing focus on wellnesss initiatives in its managed care operations, Metropolitan Life Insurance Company has reportedly introduced a smoking cessation program for members of its affiliated HMOs through a cooperative arrangement with the American Lung Association (ALA). METLIFE says it is

12 introducing the program panially in recognizion of the "importance" of The Great American Smoke Out, "cspecially as it occurs during Child Safety and Protec- tion Month." According to the ALA, in its pamphlet titled Facts About Second-Hand Smoke, "numerous studies involv- ing children ages five to nine showed impaired lung function~ in those who had' smoking parents as com- pared to those whose parents were nonsmokers." See Businesswire, November 10, 1993. [33] Denver Health and' Hospitals Takes First Step to Smoke-Free Campus In an initial effort to make its campus smoke-free, Denver H'ealth and Hospitals willJ restrict smoking to a new building on its main campus. The building,will be located centrally on the campus, and! visitors, patientss and department employees who wish to smoke will be directed to the building. DHH has not yet set a date for installation of the building. Denver public health director, Frank Judson, M.D. reported that the building will be temporary and is the first step toward the ultimate goal of having a smoke-free campus. See Modern Healthcare, October 25, 1993. SCIENTIFICJTECHNICAL ITEMS UPCOMING SCIENTIFIC MEETINGS [34] The National Environmental Tobacco Smoke Conference: "Public Battles, Private Choices," IAQ Publications, Inc., Washington, D.C., December 16-17, 1993 Billed as "the year's premiere national'gathering,"'this conference is scheduled to include speakers from law, government, occupational safety and health, building management, and public interest groups who are "spearheading the national response" to ETS, accord- ing to conference organizers, IAQ Publications, Inc., publishers of IndoorAir Review. The first scheduled session at the conference is "EPA/ OSHA/CDC: Overview and'' Analysis of ETS Pro- grams, Policy, and Activities." Referring to EPA's recent Risk Assessment on ETS, the description of this session states that "senior agency officials" will discuss ETS/iAQ REPORT, ISSUE 60 "what lies in store for the public in the areas of regula- tion, enforcement and research." Individuals sched- uled to speak include Bob Axelrad; Director of EPA's Indoor Air Division, and Michael Eriksen, Director of the CDC's Office on Smoking and Health. An OSHA participant, if any, was not identified in the conference announcement. Three sessions will be devoted to overviews of state and federal ETS legislation. The descriptions of the sessionss on House and Senate activities imply that some action will be fornccoming, e.g., "some observers say it's only a matter of time before the federal government punctuates the smoking debate by mandating restrictions onn smoking in public places." Peter Grannis, a New York State Assemblyman, is listed as a speaker. A session on public interest and private sector initia- tives is introduced in the program by the sentence: "Public awareness of the alleged health1azards of ETS has never been~higher." The description also alludes to ASH's petition for an emergency temporary standard from OSHA. John Banzhaf, Executive Director of ASH, Scott Ballin, Vice President of the American Heart Association, Fran DuMelle, Deputy Managing Director of the American Lung Association, and Ed Sweda, an attorney for the Group Against Smoke Pollution (GASP), are listed as speakers, presumably for this session: Two~sessions are devoted to "ETS Management and Liability" in the workplace and in the restaurant and hospitality industries. The program alleges that work- place smoking "has become the management hot potato of the 1990s," and that for restaurants and hotels to take no action "opens the way for legal nightmares."' Smoking policy options, and "how to avoid costly and! debilitating lawsuits" are scheduled to be discussed. Speakers listed who could potentially contribute to these discussions indude Bill Borwegen, Director of Occupational Health and Safety for the Service Employees International Union, James Dinegar, Vice President of Government and Industry Affairs of the Building Owners and Managers Associa- tion and Bob Harrington„ Director of Technical Services for the National Restaurant Association. Several scheduled speakers have legal backgrounds: Laurence Kirsch, of the Washington, D.C., firm Cadwalader, Wickersham & Ta&; Susan Rosmarin, of the New York firm Thelen, Marin, Johnson & Bridgcs;

) NOVEMBER 19, 1993 and Victor Schwartz, of Crowell & Moring in Wash- ington, D.C. ETS litigation is the focus of two confer- ence sessions, one on "precedents and'prediaions," and the other on plaintiff and defense theories. The program suggests that ETS litigation willn turn from a "slow but steady stream" into a"torrential' flow," creating "massive litigation problems" for the tobacco industry. Strategies for "pursuing)egal action" on, ETS issues, for preventing or defending ETS lawsuits, and using legal means for "preventing ETS problems" may also be discussed. [35] Annual Meeting, Society for Risk Analysis, Savannah, Georgiia, December 5-8, 1993 At its 1993 Annual Meeting, the Society for Risk Analysis is scheduled to address topics in the areas of risk assessment, risk communication, regulatory policy, risk characterization, exposure assessment, and dose-response issues. Some of the specific areas to be covered during the meeting's sessions include risk perception as a basis for communication, the use of biological markers in dose-response assessment, EMF risk communication and management, the "worth" of science in regulatory decisions, consumer product risk assessment, and risk characterization of air pollutants. [36] Liability, Compliance, Insurance and Indoor Air Quality, MidAtlant'ic Environmental Hygiene Resource Center, Philadelphia, Pennsylvania, December 9, 1993 According to an announcement for this course, there is a "potentially broad scope of liability for problems with indoor air quality." Course topics include workers' compensation claims, codes and standards, IAQ insurance, current IAQ bills in Congress, scien- tific evidence and' IAQ litigation, the ADA, and multiple chemical sensitivities. [37]' One Day Overview of Indoor Air Quality, MidAtlantic Environmental Hygiene Resource Center, Philadelphia, Pennsylvania, December 10, 1993 This introductory course is designed for "people who are new to indoor air qualiry," such as human resources personnel, occupational safety and health officers, and 13 risk managers, according to the course announcement. Topics to be covered range from defining "good" IAQ to health effects, productivity, sources of contaminants, HVAC system impact, IAQ investigations, andd remediation strategies. The outline for the course also includes "Implications of recent findings on environ- mental ('second hand') tobacco smoke." [38] 9th World Conference on Tobacco and Health, Paris, France, October 10-14, 1994 This conference, which focuses on smoking cessation and bans, is scheduled to include a round tablp discus- sion on ETS, organized by Rodolfo Saracci, Topics for discussion include the purported'health effects of ETS exposure, European legislation to "protect" nonsmok- ers, and economic implications of controlling smoking in public places. LUNG CANCER [39] "Risk Factors for Lung Cancer in Non-Smokers in Xuanwei County of China," Q. -Lan, W: Chen, H. Chen, and X.-Z. He, Biomedical and Environmental Sciences 6: 112-118, 1993 [ISee Appendix A] This paper reports on a relatively small case-control study of nonsmoking women from a region that has the highest annual lung cancer death rates in China. Previous work in this localiry has investigated the use of "smoky" coal for heating and cooking as a risk factor for lung cancer. In this study,, the authors assess "passive smoking," although specific information about the definition of exposure is lacking, The authors report an adjusted odd's ratio of 1.15 (95 percent CI 0.43-21.82), which is not statistically significant. The authors also report that smoky coal use was associated' with an increased risk of lung cancer, and suggest that the use of rapeseed oil, personal history of chronic bronchitis, family history of lung cancer, short men- strual cycle, and late menopause "may also contribute to the risk of lung cancer." This study brings the number of epidemiologic studies on ETS exposure and lung cancer to approximately 35.

14 RESPIRATORY DISEASES AND CONDITIONS - ADULTS [40] "Passive Cigarette Smoke, Coal Heating, and Respiratory Symptoms of Nonsmoking Women in China," CA. Pope and X Xu, Environmental Nealrh Perspectives 101(4)c 314-315, 1993 [See Appendix A] Anhui Province in China is the site of this study of a cohort of never smoking women. The authors report that respiratory symptom prevalence was increased for women living in homes with both coal heating and resident smokers. While they claim to show a "pro- nounced and statistically significant" effect for ETS and coal heating together, the authors state that the association for ETS alone was "'relativelyweak." [41] "The Prevalence of Inherited and Environmen- tal Factors in Patients with Bronchial Asthma," S. Srcenan, R. Lyons, S. Pathamakanthan, C:K. Power, and'. C.M. Burke, Ches1104(2, Suppl.): 61 S, 1993 [See Appendix A] In this abstract, presented at a meeting of the Ameri- can College of Chest Physicians in October 1993,, the authors report that, in a group of subjects from~ Dublins Ireland, parental smoking during childhood was statistically significantly associated with "ever having wheeze."' Sibling history of asthma was report- edly statistically significantly associated with risk of asthma, and a personal history of allergy was reportedly associated with wheeze. RESPIRATORY DISEASES AND CONDITIONS - CHILDREN [42] "The Associations Between Childhood Asthma and' Atopy, and Parental Asthma, Hay Fever and Smoking," M.A.. Jenkins, J.L Hopper, L.B. Flander, J.B. Carlin, and G.G. Gil'es, Paediatric and Perinatal Epidemiology 7: 67-76, 1993 [See Appendix A] The authors of this study examine data collected 25 years ago on potential risk factors for asthma among Tasmanian children. They report that a history of hay fever, eczema, hives, or certain allergies was associated with a higher prevalence of asthma. The authors also ETS/1AQ REPORT, ISSUE 60 report a statistically signif cant association between maternal smoking and childhood asthma. [43]I "Effects of Acute Passive Smoking on Exercise-Induced Bronchoconstriction in Asthmatic Children," H. Magnussen, B. Lehnigk, M. Oldigs, and R. Jorres, journal of Applied Physiology75(2): 553-558, 1993 [See Appendix A] Thirteen asthmatic children were experimentally exposed to ETS in an exposure chamber in this study conducted by German researchers, The authors report that ETS exposure was related to a decrement in lung function, particularly in "smoke-sensitive" children. However, the decrement was reportedly not greater following exercise. [44] "Effects of Air Pollution on the Respiratory Tract of Children," R. Schmitzberger, K Rhomberg, R. Puchegger, D. Schmitzberger-Ihlatzmer, G. Kemmler, and B. Panosch, Pediatric Pulmonology 15: 68-74,, 1993 [See Appendix A] These Austrian. researchers report that decrements in~ lung, function ~ were associated with living in areas with elevated! levels of airborne pollutants. In addition, the authors examined parental smoking, and report an increased risk of childhood asthma and pulmonary function deficits. They note, however, that "[i) n more polluted areas, there was no additional effect of passive smoking." OTHER HEALTH ISSUES [45] Letters to the Editor Regarding "Relationship of Sudden Infant Death Syndrome to Maternal Smoking During and Aftcr Pregnancy," K.C. Schoendorf and J.L. Kiely, Pediatrics 90(6): 905-908, 1993 Pediatrics recently published three letters concerning the Schoendorf and Kiely study, which was discussed in issuc 37 of this Report. The original study claimed to present data showing that smoking during preg- nancy and infant ETS exposure were associated with an increased risk of SIDS. The authors of the letters were Marc Bulterys and Peter N. Lee. A reply by the authors

) NOVEMBER 19, 1993 of the original study was also published'. The letters appear at Pediatrics 92(3): 505-506, 1993. Bulterys' brief letter comments that the Schoendorf and Kiely study "stronglysupports" the "notion" that maternal smoking is the "single most important prevent- able risk factor" for SIDS, and suggests that "passive tobacco smoking" after birth~ may also show an associa- tion. He goes on to propose that a "critical period" for maternal smoking might be the early weeks of preg- nancy, noting,tliat women who quit often do so only after learning that they are pregnant. Lee writes that Schoendorf and Kiely's "commendable" attempt to separate smoking during and after pregnancy in their analysis contains "certain problems." For example, he suggests that maternal smoking habits could have changed' following,tlie stress of an infant's death. Lee comments that the study did not include a statistical analysis that would examine the possibility of aminde- pendent association with smoking during pregnancy after adjustment for smoking after pregnancy. Lee also suggests that uncontrolled confounders could' affect the reported association, noting that Schoendorf and Kiely only considered marital status, maternal age, and maternal education in their analyses. In their reply, Schoend'orf and Kiely comment that a single study cannot conclusively demonstrate causality, and'state that other studies confirming their reported results are necessary. They indicate that they do not have sufficient data to investigate Bulterys' hypothesis, and defend their choice of potential confounders for indb- siom Schoendorf and Kiely; while stating that further studies with more detailed smoking information are needed, state that "the increased risk of SIDS in the passive exposure group is large enough to warrant concern and consideration." ETS EXPOSURE AND MONITORIN!G. [46] "A Tobacco-Specific Lung Carcinogen in the Urine of Men Exposed to Cigarette Smoke," S.S. Hecht, S.G. Carmdla, S.E. Murphy, S. Akerkar, K.D. Brunnemann, and' D.. Hoffmann, New England Journal of Medicine 329(21); 1543-1546, 1993 [See Appendix A] NNK, a substance reported to experimentally induce lung adenocarcinomas in animals, is reportedly foun& in 15 tobacco smoke. In thi's study, urine samples from nonsmokers experimentally exposed to high concentra cions of sidestream smoke were examined for the presence of NNK and its metabolites. The authors claim that the presence of these substances in their study participants supports the EPA's claim that ETS expo- sure is causally associated with nonsmoker lung cancer. [47] "Preliminary Assessment of Designated Smok- ing Areas for Nonsmoker Exposure to Environ- mental Tobacco Smoke," E.N. Light and R. Gay, presented at Indoor Air Quality'93: Operating and' Maintaining Buildings for Healths Comfort and Productivity, ASHRAE, Philadelphia, Pennsylvania, November 7=10, 1993 ['See Appendix A] The authors of this studyrepon that, in~two build- ings with a:variety of areas designated~for smoking, separately exhausted smoking lounges were "effectively isolated from nonsmokers." Moreover, they report that indicators of ETS were below the limits ofdetec- tion~in areas receiving recirculated~ air from smoking areas and distant from active smoking. [48] "IVlainstream and Sidestream Cigarette Smoke-Induced DNA Adducts in C7B1 and DBA Mice," C.G. Gairola, H. Wu, R.C. Gupta, and J.N. Diana, Environmental Health Perspec- tives 99: 253-255, 1993 [See Appendix A] Based on exposure studies using two strains of mice, the authors of this study condude that mainstream and sidestream cigarette smoke exposure did not induce new DNA lesions, but enhanced existing DNA adducts. SMOKING POLICIES AND RELATED ISSUES [49] "Smoking Control in Restaurants: The Efffective- ness of Self-Regulation in Australia," M.J. Schofield, R. Considine, C.A. Boyle, and R Sanson-Fisher, American Journal of I'ublic Health 83(9): 1284-1288, 1993 [See Appendix A] The authors of this study claim that the restaurant industry's policy of allowing member restaurateurs to make their own decisions concerning smoking policies is not effective and does not satisfy customers' wishes.

16 STATISTICS AND RISK ASSESSMENT [50] "Data Torturing," J.L Mills, Naw England' Journal of Medicine 329( I 6): 1196-1199, 1993 [See Appencliat A] In this commentary, the author describes "data torturing," which he describes as either finding a statistically significant association in the course of multiple comparisons and then generating a hypothesis to explain it, or manipulating data to fit a desired hypothesis, often via selective reporting. IN EUROPE & AROUND THE WORLD REGULATORY' AND LEGISLATIVE MATTERS COUNCIL OF EUROPEAN COMMUNITIES (EC) [51] EC Council Proposes Addressing Smoking in Safety and Health Directive On October 30, 1993, the EC Council published an amended safety and health directive proposal which, among,other matters, includes a provision that would require smoking to be banned in workplaces that are on board means of transport if separate, enclosed areas for smokers and' nonsmokers were not available. Specifically, the proposed amendment states: "Appro- priate measures must be taken for the protection of workers who are non-smokers against discomfort and health risks caused by tobacco smoke through the provision of separate enclosed areas for smokers and non-smokers. Where this provision is not possible or available smoking must be prohibitedL" This language is intende& to be appended to a section on ventilation in enclosed workplaces on means of transport. The proposed directive also contains a provision stating, "In rest rooms and rest areas appropriate measures must be introduced for the protection of non-smokers against discomfort caused by tobacco smoke." A proposed'amendment relating to smoking in living quarters on means of transport would add a reference to "health risks" and would require "the provision of separate endosed areas for smokers and non-smokers." ETS/IAQ REPORT, ISSUE 60 FRANCE [52] One Year Anniversary of France Antismoking Legislation After one year, France's legislation to limit smoking in public places reportedly has "yielded uncertain results." One visible change is that tobacco con- sumption has declined 2.8 percent since January, apparently in partial response to a steady increase in cigarette prices in France. The legislation, which took efl"ect on November 1, 1992, banned smoking,in train stations, Metro corridors, banks and~ schools„and it required cafes, restaurants and employers to designate areas for nonsmokers. Smokers who choose to disobey the law are fined; however, the ministries of labor, health, justice and the interior are unable to provide any statistics on either the number of violations or, the number of prosecutions. A survey by the Centre for Tobacco Documentation and1nformation suggests that 71 percent of French citizens feel that smokers and nonsmokers should settle disputes among them- selves. This is consistent with the attitude of some French who believe that many smokers in France are not lighting up in public places out of common courtesy to nonsmokers rather than a respect of the law itself. See Agence France Presse and Associated Press, October 31, 1993. SWEDEN [53] Swedish Campaign Discourages Smoking at Work Several Swedish institutions, including the Cancer Fund, reportedly plan to introduce a nationwide campaign with the motto "no smoking at work."' The campaign''s goal i's to encourage employers to take measures that will reduce the exposure of nonsmokers to ETS in the workplace, according to a news report. The campaign reportedly is based on the proposed new Swedish tobacco law and the European Community's programme against cancer. See Arbetank.ydd, October 113, 1993. C

NOVEMBER 19, 1993 LEGAL ISSUES AND DEVELOPMENTS WORLD HEALTH ORGANIZATION (WHO) [54] I Who Benefits frorn R77IO? R.D. Tollison & R.E. Wagner, Research Report 18 (Social Affairs Unit, 1993) The authors of this publication criticize WHO for spending more money on such matters as antismoking campaigns, seat belts and issues like "psycho-social health" than on combatting serious Third World! diseases like malaria and cholera. The publication is replete with WHO budgetary data,,which the authors suggest, show that WHO is unnecessarily concerned with personal choice issues that are of significance only to First World nations. With regard~ to ETS, the authors observe,, "Even issues surrounding environmental tobacco smoke do not involve external costs, and rather are matters of property rights. In a world of private property and free associationi people are not forced to inhale other people's smoke. Rather they choose to expose them- selves to that smoke because of other advantages they secure from the particular relationship at issue." OTHER DEVELOPMENTS AS1A [55] "Fired-Up-Officials Won't Find Smoke-Filled Rooms At APEC," The Seattle Times, November 6, 1993 This article notes that Asian visitors to the Asia-Pacific Economic Cooperation forum to be held in Seattlt, Washington may encounter smoking restricted' in the U.S. The visitors will also be able to witness the annual Great American Smokeout on November 18th and the "publiciry blitz" of Project ASSIST, a smoking cessation program sponsored by the American Cancer Society and the NationalI Cancer Institute. Some reportedly worry that the Asians may find smoking restrictions "inhospitable." Because of this, smoking will be allowed at the APEC events held at the Westin Hotel, and smoking areas are also available in 17 the hotel's three eateries. However, 80 percent of the Westin's individual rooms are smoke free and will supposedly stay that way. Smoking will also be allowed at the convention center's 102,000 square-foot interna- tional'l press center, although it may be restricted to a 17,000 squ.are-foot smoking lounge. NORWY [56]! Lillehammer Organizers Sign "Smokefree Games" Deal Organizers of the 1994 Winter Olympics have signed a "Smokefree Games"'agreemenrwizh the World Health Organiz.ation (WHO), stating that their restrictions on smoking will be stricter than similar efforts at the 1''992 Games in Barcelona and Albertville, and the 1988 Calgary Olympics. Each ticket for the 1994 Games wilt carry a message against smoking, and loudspeakers will broadcast antismoking messages. No tobacco will'~be sold at the sports arenas, and smoking will be banned at all indoor events. In addition, organiz- ers are also making 80,000'lapel pins for children that are inscribed "Smokefree Olympics." Organizers are also urging the national rail firm to make all'train rides from Oslo to Lillehammer, a two-hour ride, nonsmok- ing: See Reuters, November 8,,1993, SItV~GAPORE~ [57] Employee Complaints of Sick Building Syn- drome May Be a Result of Stress or Other Personal Factors An Environment Ministry paper presented at a recent conference suggests that personal factors, such as work stress, were more likely the problem than a "sick building°" in six air-conditioned office buildings. While the buildings had not received any complaints prior to the study, 17 percent of the employees complained of dry throat, lethargy and stuffy noses on the question• naires administered during the study. Dr. Goh Kee Tai, who presented the study at a Singapore ASHRAE conference, suggested that if the complaints are less than 20 percent, the building is considered "healthy." Dr. Goh said the ministry i- moving to the second phase of the study, in which~40 to 50 commercial buildings will be studied over a two-year period. Goh

18 stated that the results of the studywill be used to develop guidelines on IAQ for office buildings. See The Straits Times, November 3, 1993. UNITED NATIONS [58] United Nations Resolves To Go Tobacco-Free At a recent meeting of the World Health Assembly in the UN Palais des Nations in Geneva, numerous countries co-sponsored a resolution to ban the sale and use of tobacco products in buildings owned, operated, or controll'ed'~ by the UN system. While no country apparently spoke out against the resolution~ at the meeting, several tobacco producers reportedly urged the WHO to step up its efforts to work with the Foo& and Agricultural Organization on crop substitution. United States, Australia, Canada, China, Finland,. France, Hungary, Iceland, Ireland, New Zealand, Norway, and the United Kingdom were among the countries cosponsoring the resolution. Implementation of the ban is scheduled for May of 1995. See Tobacco Control2: 248-50, 1993. MEDIA COVERAGE CANADA [59] "Canadian Navy Butts Out," Tobacco Control 2(3): 191, 1993 A new Canadian policy objective will, restrict smoking, to designated outdoor areas of ships, according to this article. As discussed, a single interior designated smoking area may be allowed if it meets the following requirements: (i)' it does not violate the policy restric- tions; (ii) it is separately ventilated; and (iii) it is not used' by nonsmokers. Effective September 1, 1993, the sale of tobacco products was reported to be eliminated in all shore facilities under the jurisdiction of the Navy, as well as on ships in port. The article notes that the sale of all tobacco products will be eliminated as of January 1, 1994. A survey of smoking policies among the world's naval forces conducted by Physicians for a Smoke-Free Canada has indicated that none of the countries ETS/dAQ REPORT, ISSUE 60 surveyed had comprehensive tobacco-free policies such as the Canadian Navy, according to the anicle. UNITED KINGDOM [60] "Millions Lost If Smoking Ban is Inuoduced," Morning Advertiser, November 8, 1993 This article announces that the MorningAdvertisrsis joining forces with the Freedom Organisation for the Right to Enjoy Smoking Tobacco (FOREST) to find out what British publicans think about the smoking debate and how any fo= of restriction could affect their trade. A FOREST spokesperson suggests that pub owners that forcing them to prohibit smoking would damage their businesses. Presently, it is the decision of each individual publican whether smoking is allowed in his or her own pub. The article states that the government appears to be "in no rush" to introduce antismoking,legislation but that lawmakers "could issue directives long before the turn of the century."

NOVEMBER 19„ 1993 APPENDIX A The numbers assigned to the following article summaries correspond with~ the numbers assigned to the synopses of the anicles in the text of this Report. LUNG CANCER [I39] "Risk Factors for Lung Cancer in Non-Smokers in Xuanwei County of China," Q. Lan, W.. Chen, H. Chen, and X.-Z. He, Biomedical and Environmental Sciences 6: 112-118, 1993 "The population-based case-control study presented here is to evaluate the influence of factors on the occurrence of lung cancer in non-smoking women in Xuanwei County and' to supplement the etiologic factors of lung cancer in Xuanwei County." "The study population was confined to female farmers, in order to control the effect of occupational and smoking factors." "The crude and adjusted ORs for having or not ever used' smoky-coal from 'Laibin' smoky coal mine and average amount of use of smoky coal from 'Laibin' smoky coal mine per year with 95% confidence intervall are shown. Significant association of these two factors with, lung cancer are [sic] observed. A signifi, cant dose-response relationship of lung cancer with the average amount of smoky coal used per, year, was also observed." "Besides animal oil, rapeseed oil was the oil oken used by Xuanwei resid'ents.... [A]Othough no significant association with lung cancer was observed for ORa [adjusted] of often use of rapeseed oil, it, showed a higher odds ratio. ORa is 4.58 (95% Cl 0.56-37.08). No statistically significant association with lung cancer for passive smoking was found [iAdjusted OR 1.15, 95% CI 0.43-21.82]_" "Odds ratios for personal history of chronic bronchi, tis was [sic] found to be significantly associated with lung cancer. Although there was no significant associa- tion with lung cancer, the ORa for family history of lung cancer was high." "Our study showed that the use of smoky coal from 'Laibin' smoky-coal mine greatly increased the risk of d''evelopment, of lung cancer, especially the lifetime use A-I of smoky coali from 'Iaibin' smoky-coal mine (ORa = 9.89, 95~'o CI = 3.95-24.75)'. The risk of lung cancer also increased with the increasing of the average amount of using smoky coal per year. Exposure to smoky coal' from'Laibin' smoky-coalimine before age 20 also showed a high risk of lung cancer (ORa = 5.10, 95% CI 0.97-26.81):° "It seems unlikely that the menstrual pattern of Xuanwei women contributes greatly to their high, lung cancer risk, but the internal consistency of trends suggested that future studies of lung cancer in China and elsewhere shouldexamine endocrine hypotheses in more details." "In summary, this population-based case-control study of lung cancer in rural I area, Xuanwei County suggests that the use of smoky coal I from 'Laibin' smoky-coal mine, which causes severe indoor air pollution, may be related to:the lung cancer in Xuanwei females. Other factors, suchias the use of rapeseed oil, personal history of chronic bronchitis„familyhistory of lung cancer, short menstrual cycle and late menopause, may also contribute to the risk of lung cancer." "At present, a cohort study to confirm the relation, ship between the indoor air pollution from 'smoky' coal burning and lung cancer in Xuanwei County is being conducted by the present investigators." IZESPIRATOFt1' DISEASES AND CONDITIONS - ADULTS [40] "Passive Cigarette Smoke, Coal Heating, and Respiratory Symptoms of Nonsmoking Women in China," C.A. Pope and X. Xu, Environmental Health Perspectives 101(4)r 314-315, 1993 "In the present study, we used data from a sample of never-smoking women in China to evaluate the combined effects of in-home air pollution from passive cigarette smoke and coal heating on reported~ preva- lence of respiratory symptoms." "To assure a relatively young; nonsmoking, educated cohort, we used a subset of 973 of these women for this analysis. This subset included only women who 1) were 20-40 years of age, 2) had never smoked„and 3)

A-2 had at least a middle or high school education. Thirty-five percent of the women lived in homes that were heated with coal stoves. All of the women worked in one of three textile mills in Anhui, China." "Five respiratory symptoms were defined based on yes/ no responses to the symptoms questions in the ques- tionnaire. 'Chest illness' was defined4s chest illness with increased cough or phlegm during the last 3 years; 'cough' was defined as usually coughing in the morning or usually coughing during the day or night; 'phlegm' was defined as usually bringing up any phlegm from the chest first thing in the morning or during day or night; 'shortness of breath' (SOB) was defined as shortness of breath when walking with a person the same age at their own pace on level ground; and 'wheeze' was defined as wheezing or whistling from~ the chesr." "The prevalence of chest illness, cough, phlegm, and SOB were generally higher for women living,in homes with both coal heating and'smokers. Effects of passive smoking were more pronounced in homes with coal heating than im homes without coal heating. The prevalence of chest illness, cough, phlegm, and SOB were approximately 2.4, 2.1, 2.8, and 2.2 times higher, respectively, for women in homes with both coal heating and more than one smoker than for women in homes without coal heating and with no smokers. Although the prevalence of wheeze was not positively associated with passive cigarette smoke, it was positively associated with coal heating." "[I]n this study, when ~ evaluated separately from coal heating,,the association between passive cigarette smoking and respiratory symptoms was relatively weak. However, the combined effect of both passive cigarette smoke and coal~heating was pronounced and statisti- cally significant." "Im this study, the likelihood that observed associa- tions between respiratory symptoms and passive cigarette smoke and coal heating were due to unknown or uncontrolled confounding factors is red'uced because a relatively homogeneous cohort of women were studied....Signifieant differences in prevalence of respiratory symptoms were observed between women who worked in administrative areas at the textile mill versus those who worked in manufacturing, suggesting differences in occupationali exposures. Nevenhel'ess, the association with in-home passive cigarette smoke and coal heating did not diminish after controlling for age, ETS/IAQ REPORT, ISSUE 60 mill, and type ofd'uties at the milll (administrative or manufacturing)." "A major implication of this study is that health effects of passive cigarette smoke need~ to be evaluated within the context of combined exposures to multiple sources of indoor air pollution. Effects of passive cigarette smoke and effects of coal heating were larger when the other indoor pollution source was present. In homes with no other major indoor air pollution source, health effects of passive cigarette smoke on adults may be relatively small. However, in many parts of the world where most homes are heated by unvented combustion, combined respiratory health effects may be substantial." [41] "The Prevalence of Inherited' and Environmen- tal Factors in Patients with Bronchial Asthma," S. Sreenan, R. Lyons, S. Pathamakanthan, C:K. Power, and C.M. Burke, Chest 104(2, Suppl.): 61 S, I993 "We studied the association between hereditary and environmental factors and asthma. A total of 750' subjects from North County Dublin.were randomly selected and~ surveyed by a trained interviewer and a respiratory questionnaire comprising over 76 questions was completed." "[A]nalysis showed a signif cant association between sibling,history of asthma and the symptoms of'wheeze ever' and physician~diagnosed asthma." "Exposure to parental cigarette smoking during childhood was signif'acantly associated with ever having wheeze (odds ratio 2.55, Confidence Interval 2.23-6.75).° "Wheeze in the last year was alko associated with ever having smoked and with~current passive smoking," "Persistent wheezers were also more likely to have had a history of allergy to pollen, house dust, animal furss and'~ feathers. Wheeze in the last year was also associ- ated with living in damp housing_" "A variety of environmental factors such as the use of coal fires paraffin heaters and gas cookers as well as the presence of carpets in houses were not associated with physician diagnosed asthma (PDA)."

NOVEMBER 19, 1993 RESPIRATORY' DISEASES AND CONDITIONS - CHILDREN [42] "The Associations Between Childhood Asthma and Atopy, and Parental Asthma, Hay Fever and' Smoking," M.A. Jenkins, J.L. Hopper, L.B. Flander, J.B. Carl'in, and G.G. Giles, Paediatric and'Perinaral Epidemiology 7: 67-76, 1'993' "Reported here is a descriptive multivariable analysis of the 1968 Tasmanian Asthma Survey of 7-year-old children born in 1961. The aim of this analysis was to examine the degree to which a history of asthma in a 7-year-old child can be associated statistically with atopic conditions of the child',,and with parental asthma, hay fever and smoking. The size of the study (over 8500 children and their families) enables associa- tions to be estimated with precision, and as nearly all eligible children in the population were surveyed (99%)s estimates of associations are not subject to selection bias." "Multivariable analysis of the 1968 Tasmanian Asthma Survey has found that the prevalence of asthma was higher in children who had a history of hay fever, eczema, or hives, or who had an allergy to foods or medicines. These atopic conditions were found'to be independent risk factors, in that an ~ increased risk of asthma was associated with each factor even though the increased risks associated with all other factors had been taken into consideration~by the statistical model. The strengths of these atopic risk factors for asthma were independent of the sex of the child. Moreover, they were not substantially weakened' by induding information about the asthma status of the parents, which was strongly associated witL the asthma status of the child." "The crude OR between asthma in the mother and in the father was 1.7 (99% CI 1.30-2.21). This suggests that there may be non•genetic risk factors for asthma common to the parents, such as household asthma triggers including pets or dust mites. However this association may also be due to assortative mating or reporting bias due to selective recall of asthma history." "Parental smoking was weakly associated with a child's asthma, reached statistical significance only when it was the mother who was the smoker and even then was not a strong predictor (OR 1.26). Other A-3 studies have also found that maternal smoking, and not paternal smoking, was associated with the child's respiratory health: This may be due to children spend- ing more time with their mother than with their father." "These findings are consistent, not only with childhood' asthma being strongly associated with atopy, but also with the existence of strong unmeasured! determinants common to family members, the effects of which are not mediated via atopy. The magnitude of the observed familial'associations indicate that these unmeasured determinants are strong determinants of asthma risk." [43] "Effects of Acute Passive Smoking on Exercise-Induced Bronchoconstriction in Asth- matic Children," H. Magnussen„B. Lehnigk, M. Oldigs, and R. Jorres, Journal ofApplred 1'hysrol- ogy75(2): 553-558, 1993 "[Wje wondered ~ whether ETS would induce an acute airway response if inhaled d'uring increased ventilationn brought about by exercise. Many children~with bron- chial'iasthma develop exercise-induced airway obstruc- tion, even when breathing non-polluted air. We there- fore compared, on an~individual basis, the airway response to exercise during inhalation of ambient air and air polluted by ETS. In addition, we determined the airway response after our subjects breathed cold and clean air to estimate the maximum increase in response induced by ambient conditions." "We investigated'' 13 children (8 boys, 5 girls) with bronchial asthma, ranging in age from 8'to 13 yr." "From our previous study, we knew the type and severiry of symptoms induced by ETS exposure. The subjects always complained of eye irritation, which was so severe that some were reluctant to participate. Therefore, in the present study, children wore goggles N, ' during all! exposures, and we concentrated on~assessment ~= N of the reproducibility of those symptoms indicating irritation of the upper and lower respiratory tract (nose and throat irritation, cough, chest tightness):" "Our study demonstrates that, in children with. ~ ~ .^ ~ ~ bronchial asthma, short-term exposure to ETS may (,T.` induce a fall in FEVI but does not modulate ~: exercise-induced bronchoconstriction compared with ambient air."

A-4 "In this investigation, we were unable to find signifi- cant differences between1ung function data measured before and after exposure or changes in the airway responsiveness to inhaled histamine that was assessed after exposure. In the present study, lung function was measured during exposure at rest, and we found a significant drop in FEV, as early as 5 min after starting exposure. FEV, did not change further between 5 and 54 min of exposure at rest. Analysis of the individual response revealed that the mean fall in FEV, during ETS compared with ambient air exposure was mainly based on three smoke-sensitive children who showed a more-than-average fall' in FEV,." "In our study, exposure at rest was follbwed by exercise under the same experimental conditions. It is of interest that the fall in FEVI that was observed during exposure to ETS at rest disappeared immedi'~ ately after exercise,, demonstrating the transient charac- ter of lung function impairment." "There was no correlation between the response to ETS at rest and during exercise.... These findings demonstrate the individualvariabiliry of the acute effects of passive smoking that cannot be predicted from history." "We were unable to substantiate an adverse effect of passive smoking during exercise conditions on exercise-induced bronchoconstriction compared with exercise with ambient air." "In summary, our study shows that, during ETS exposure, FEVI can decrease in smoke-sensitive children with asthma. However, the fall in FEV, is not intensified when ventilation rate is increased by exercise, and FEV, does not differ between ETS and ambient air exposure after cessation of exposure....Discomfon and irritation of the airways reported during acute passive smoking seem not to be linked with acute asthmatic airway obstruction. It is evident that the results of our study, which was restricted to acute effects of single short-term passive smoking, cannot be extrapolated to predict any effects of chronic passive smoking.. For such repeated or long-term exposures, adverse effects have been demon- strated by many authors with respect to symptoms, lung function, and airway responsiveness in children with and without airway disease. Thus, every effort should be made to protect children from the hazardous effects of cigarette smoke." ETS/IAQ REPORT, ISSUE 60 [44] "Effects of Air Pollution on the Respiratory Tract of Children," R. Schmitaberger, K Rhomberg, R. Puchegger, D. Schmitzberger-Natzmer, G. ICemmlcr, and B. Panosch, Fediatric 1'ulmonology 15: 68-74, 1993 "This study in Austria was designed' to determine the effects of air pollution on the respiratory tract of school children in three well-defined environments. Possible confounders such as environmental tobacco smoking (ETS) and~ socioeconomic status (SES), which may affect the association, were taken into account.... We tried to test the hypothesis of an association of lung disease and chronic air pollution, mainly by measuring the lung function." - "Mean values of pulmonary function tests in the three study zones are presented. All parameters were better in~ the least polluted Zone 2." "Prevalence of asthma was increased in the more polluted zones; in the zone of elevated ozone it was highest."' "Passive smoking,was assumed to be one of the important indoor air pollution factors. A significant correlation between passive smoke exposure and respiratory morbidity and decreased lung,function was noted in the case of maternal l smoking. Multiple logistic regression also confirmed the increased risk of asthma with a prevalence ratio of 2.07 if the child's mother was a smoker."' "Our data demonstrate a clear relationship between the impairment of air flow rate at mid- to low lling volumes and residence M areas with elevated levels of airborne pollutants (SO2, NiO2, 03).° "the effects of exposure to parental smoking on children are particularNy important. High frequency of respiratory infections and reduced pulmonary function related to ETS have been reported.....Our results showing reduced FEFso and FEF75, which might indicate damage of small airways, are consistent with the data reported.... Our findings of an increased risk of childhood asthma related to maternal smoking also correspon& to other repons.... We did not find that the daily number of cigarettes consumed by the parents had an inFluence on lung,function or symptoms in the children under investigation. In more polluted areas there was no additional effect of passive smoking.... In our study a positive association existed between higher

NOVEMBER 19, 1993 SES and more frequent reports of respiratory symp- toms and diseases." "In conclusion, we have found a significant associa- tion between the exposure to air pollution and decre- ments in lung function in a large cross-sectional study. Self-reported prevalence of asthma was associated with air pollutiom Although reports ofothcr respiratory symptoms and respiratory diseases failed to show this pattern, the evidence that chronic exposure to airborne pollutants may result in decrements of lung function deserves serious consideration in the context of pre- venting airway diseases in adults." ETS ExposuRE AND I>rlolalTOwNG [46]I "A Tobacco-Specific Lung Carcinogen in the Urine of Men Exposed to Cigarette Smoke," S.S. Hecht, S.G. Carmclla, S.E. Murphy, S. Akerkar, K.D. Brunnemann, and D. Hoffmann, New England Journal of Medicine 329(21): 1543-1546, 1993 [Appendix A] "In this paper, we describe the presence of metabo- lites of a tobacco-specific lung carcinogen, 4-(methyl-nitrosamino),1-(3-pyridyl)'-1-butanone (NNK), in the urine of nonsmokers exposedito sidestream cigarette smoke. Sidestream~cigarette smoke is the smoke that originates from the smoldering end of a cigarette between puffs; it is the principal compo- nent of environmental tobacco smoke." "In all men~ for whom data were available, excretion of the metabolites increased after exposure to sidcstream smoke." "In this study, we demonstrated the uptake and metabolism of NNK by nonsmokers exposed to sidestream cigarette smoke. The metabolites identified in urine were NNAL and its glucuronide. NNAL, like NNK, is a potent pulmonary carcinogen in rats and mice, inducing a high incidence of adenocarcinoma of the lung. Our demonstration that nonsmokers take up NNK thus provides support for the conclusion of the EPA that environmental tobacco smoke causes lung cancer in humans. It is notable that NNK and' NNAL A-5 induce primarily pulmonary adenocarcinomas, as occurs in nonsmokers exposed to environmental tobacco smoke." "The ratio of NNAL and NNAL glucuronide to cotinine in urine was similar in passive smokers (1:4600) and active smokers (1:3900). The concentra- tions of nicotine and NNK in the sidestream smoke of a Kentucky 2R1 cigarette are about twice those in mainstream~ smoke." "The exposure to sidestream smoke in this study was comparable to that which might be encountered in a heavily smoke-polluted bar, given the nicotine concen- trations in our exposure room and those reported previously in bars (up to 119 ug per cubic meter). Most indoor environments would have lower concen- trations of nicotine and NNK than those in our exposure room, and the concentrations of NNAL and its glucuronide in the urine of people in those environ- ments would probably be lower than the concentra- tions reported here. Our results nevertheless establish the principle that NNK is taken up and metabolized by nonsmokers who are exposed to sidestream cigarette smoke, and they therefore provide evidence supporting the link between exposure to environmental tobacco smoke and'the risk of lung cancer." [47] "Preliminary Assessment of Designated Smoking Areas for Nonsmoker Exposure to Environmental Tobacco Smoke," E.N. 1'rgh[ and R. Gay, presented at Indoor Air Qualiry'93: Operating and Maintaining Buildings for Health, Comfort and Productivity, ASHRAE, Philadelphia, Pennsylvania, November 7-10, 1993 "The authors were requested to perform a general assessment of ETS exposure by an organization that owned and fully occupied one office building (building A)' and leased approximately half of another (building B). The survey was initiated to help the occupants answer the following questions:" "Are smoking areas ad'equately contained?" "What measures would improve the control of smoking areas?"' "What are the priorities for reducing exposure of nonsmokers?"

A-6 "With mixing in the hallways and common return air shafts, recirculated air should be considered common throughout the building [A]." "Return air would be considered common~ to eachh individual floor only with minimal mixing between floors [in building B]." "Smoking was prohibited in the two buildings except where designated as follows:" "Both buildings - private offices of non-union employees where union staff do not have to enter as part of their regular duties." "Building A - one set of restrooms per floor on floors one through six, a smoking lounge on the seventh floor, and a portion of the cafeteria." "Building B - one smoking lounge (second floor). Smoking was also permitted in other tenants' space (located on separate floors) " "For each category of smoking area, representative sites were studied to identify potential pathways for ETS migration into nonsmoking areas and factors that would tend to create a worse-case exposure scenario. Next, smoking patterns and nonsmoking occupancy patterns were noted. The goal of the monitoring strategy was to qualitatively reflect both~ peak exposures (ETSlevel in locations immediately adjacent to active smoking) and background exposure (average condi~ tions in areas notr directly impacted by ETS)," "ETS markers inelud'ed'two observations (ETS odor and visible haze)' and three measurements (CO,, nicotine, and' particle counts)." "Carbon monoxide (CO) measured in both buildings was always less than the detection limit of 2' parts per million (ppm). No visible haze was observed in non- smoking areas during the survey." "In most cases, particle count results were not distinguishable from background." "Both buildings potentially received recirculated ETS (following dilution and filtration) in all zones. In the areas monitored that were not immediately adjacent to smoking, no nicotine or ETS odor was detected. These limited findings suggest that the majority of areas frequented' by nonsmokers within buildings A and B were reasonably well separated from designated smoking sites." ETS/LtiQ REPORT, ISSUE 60 "Each building had one lounge constructed specifically for smoking and exhausted to the outside.... Adjacent sites monitored indicated no detectable nicotine and no detectable ETS odor." "Smoking is allowed in a small room connected by an open doorway to the main cafeteria dining area. The smoking room is not exhausted to the outside and was generally positive to the adjoining area. Monitoring over one lunch period' in the nonsmoking area detected the highest level of nicotine during the survey along with consistent ETS odor." "Within the sensitivity of the tests and observations performedy exposure was not documented from the recirculation of air even though many smoking areas were not exhausted to the outside. This suggests that there was little, if any, hazard under the conditions evaluated in areas potentially receiving,recirculated ETSS but not immediately adjacent to smoking." "Positive pressurization of smoking rooms leading to intermittent nonsmoker exposure in immediately adjoining areas was the most common problem ob- served. Nonsmokers in common areas where smoking was allowed were assumed~ to be exposed to ETS. Generalizations about the effectiveness of smoking areas cannot be made from this limited survey. The failure to detect ETS indicators in~ recirculated air may have been a function of (1) the good ventilation rate in both buildings, (2) the dispersed smoking pattern, or (3) the sensitivity of the markers used. Under less favorable conditions, exposure from recirculated air may have been more significant." [48] "Mainstream and Sidestream Cigarette Smoke-Induced DNA Adducts in C7BI and DBA Mice," C.G. Gairola, H. Wu, R.C. Gupta, and J.N. Diana, Environmental'Health Perrpec- tives 99: 253-255, 1993 "The present study was conducted to compare the ability of mainstream and sidestream cigarette smoke to induce DNA adducts in the lung tissue of mice after chronic exposure." "DNA adduct analyses showed~ that both types of cigarette smoke enhanced preexisting DNA adducts in mice lungs. The total DNA adduct levels in MS and SS groups of both mouse strains were several-fold higher G: than their respective room and sham-treated controls.

NOVEMBER 19, 1993 While the adduct levels in SS groups of both strains were generally lower than the MS groups, the differ- ences were not statistically significant.... [I)t could be demonstrated'that the adduct spots present in smoke-exposed mice lungs were also present in the control animals. These observations suggested that cigarette smoke exposures simply increased the magni- tude of already existing adducts without inducing newer DNA lesions." "The observations described above suggest that both sidestream and mainstream cigarette smoke are capable of enhancing preexisting DNA adducts in mice lungs. Therefore, the presence of enhance& DNA adducts in~ tissues may be used as a biornarker for either type of cigarette smoke exposure.'°' SMOKING POLICIES AND: R;ELATED ISSUES [49]' "Smoking Conuol in Restaurants: The Effec- tiveness of Self-Regulation in Australia," M.J. Schofield, R. Considine, CA. Boyle, and R. Sanson-Fisher, American Journal of I'ublic Health 83(9):' 1284-1288, 1993 "Restaurants represent one public area where non~ smokers are unwillingly exposed to environmental tobacco smoke, despite growing,interest in encouraging, restaurants to provide smoke-free areas." "Despite strong arguments against smoking in restaurants, the means of creating smoke-free areas has been controversial.... [T]he restaurant industry has actively opposed legislative action through lobbying groups such as Restaurants for a Sensible Voluntary Policy." "This study had' four aims:" "1. To examine restaurateurs' provision of smoke-free areas, their perception of their customers' desire for smokefree areas, and customers' actual prefer- ence for such areas." "2. To determine characteristics of restaurants an& owners that predicted no-smoking policies." "3. To determine whether customer preference for no-smoking areas in restaurants differed' by smoking status, sex, and age of customers." A-7 "4. To examine restaurateurs' perception of barriers to the provision of smoke-free areas and their attitudes toward a legislative approach." "The sample for the restaurateurs' survey consisted of 460'restaurants from two industrial nonmetropolitan cities in New South Wales„Australia." "The self-regulation option, favored strongly by the restaurant industry; was examined to determine whether nonsmoking policies have been implemented in accord with zhe restaurateurs' perceived' need' for such policies. The f ndings highlighted a large discrepancy between owner-perceived need and actual implementation: only one third of owners who thought they should provide smoke-free areas actually provided such areas. It seems clear that self-regulation has not worked, as judged by the restaurant industry's own criterion of provision according to owners' perception ~ of need." "Restaurateurs greatly underestimated the proportion of customers who wanted smoke-free areas. Only 23.6% of all I restaurants (26.1 %of customer-surveyed' restaurants) provided either separate areas or a totall smoking ban, whereas nearly 90% of surveyed custorn, ers thought they should." "How can such a discrepancy occur? One reason must lie in the failure of the public to make its prefer- ence for smoke-free areas known.... A sccond'reason for the discrepant views may lie in the failure of restaura- teurs to actively seek customer preferences." "Two factors were found to predict the provision of smoke-free areas in restaurants. First, owners perceiving a higher level of customer demand were more likely to provide areas to meet that demand....Second, owners who believed~ that restaurants 'should' provide such areas were more likely to provide separate areas." "Smokers were likely to want the freedom to smoke anywhere and were less likely than nonsmokers to support separate areas or total smoking bans.... The data presented suggest that restaurants have more to gain than to lose from the introduction of a smoking ban." "A major perceived barrier to the provision of smoke-free areas was lack of space to provide effectively separate areas. However, given that nearly 50% of customers favored a total smoking ban in restaurants and' only 15% said that a total ban would cause them: to go to their favorite restaurant less frequently, it would'seem

A-8 that a total ban is a more viablt option for small restau- rants than has previously been thought. Furthermore, a total smoking,ban is the only effective strategy for protecting nonsmoking customers and staff from environmental tobacco smoke in small restaurants." "One method of encouraging restaurants to provide smoke-free areas is to increase the level of active demand by customers." "A legislative approach would address some of the important barriers to provision of smoke-free areas, such as the fear of loss of business." "The growing threat of court actions by employees exposed to passive smoking provides a further incentive for restaurateurs to consider a total smoking ban." "The argument against regulated provision of smoke-free areas in restaurants has been based'on emotional appeals rather than on accurate data about: the needs and' preferences of customers." STATISTICS AND R1SK ASSESSMENT [50] "Data Torturing," J.L. Mills, New England Journal ofMedicine329(16): 1196-1199, 1993 "'If you torture your data long,enough„ they will tell you whatever you want to hear' has become a popular observation in our office. In plain English, this means that study data,,if manipulated in enough different ways, can be made to prove whatever the investigator wants to prove. Uhfonunately, this is generally true. Because every investigator wants to present results in the most exciting way, we all look for the most dra- matic, positive findings in our data. When this process goes beyond reasonable interpretation of the facts, it becomes data torturing, The unfortunate result of torturing data is the dissemination of incorrect infor- mation to the research community and to patients." "To understand how opportunistic data torturing works, it is necessary to understand the assumptions that underlie significance testing. In simple terms,, significance tests are used to determine whether observed differences between groups, such as medically and surgically treated patients, are greater than one ETS/IAQ REPORT, ISSUE 60 would expect to occur by chance....For fairly arbitrary reasons, we usually say that a result is not due to chance if the P value is less than 0.05.... Mhere is a 95 percent probability that we will correctly conclude that there is no difference when no difference is present. But when many independent tests are performed, that 95 percent probability of a correct condusion drops drastically. For example, by simple probability calcula- tions Statistics and Risk Assessment it can be shown that for two tests the probability that the 'significant' differences found by the investigators will reflect true differences is 90 percent (0.95 x 0.95). For 20 tests, it is only 36 percent. Thus, the data torturer can find signif cant results when none exist simply by making multiple comparisons." "It must be a great comfort to practitioners of this technique to know that I of every 20 independent comparisons they make will yield a`significant' result (P<0.05) if - and this is critical - they ignore the need to adjµst for multiple comparisons. When this type of data torturing is done well, it may be impossible for readers to tell that the positive association did not spring from an a priori hypothesis." "Procrustean data torturing, or manipulating,the data so that they prove the desired hypothesis, requires selective reporting. It can take several forms. First, exposure may be redefined in a way that strengthens the association.... Second', study subjects whose experiences do not support the hypothesis may be dropped....Third, disease outcomes may be lumped together, split, or dropped altogether to produce the desired results....Finally„normal ranges for laboratory results may be altered (although this must be done with care when common tests are reponed). Of course, all'' these methods of selective reporting require the suppression of contradictory data."' "Procrustean data torturing is more difficult to carry out than opportunistic data torturing, but its results are often more believable if one starts with a popular hypothesis. It is also more destructive, because it may produce results that are seen as definitive proof of the hypothesis, whereas opportunistic data torturing is often viewed as only hypothesis generation." "Data torturing can rardy be proved'. There are, how- ever, dues that should arouse the reader's suspicion."

NOVEMBER 19, 1993 "In the case of opportunistic data tonuring (the search for chance associations), the reader must ask, Is this a chance finding with an a posteriori hypothesis concocted to give it credibility, or is this an honest hypothesis-generating study? ... Hypothesis-generating, studies (sometimes referred to somewhat contemptu- ously as 'fishing expeditions') should be identified'i as such. To warrant further exploration, findings from such studies should be biologically plausible. If the fishing expedition catches a boot, the fishermen should throw it back, not claim that they were fishing for boots." "Similkrly, an honest' exploratory study should indicate how many comparisons were made. Although there is disagreement about how (or even whether) to adjust for multiple comparisons, most experts agree that large numbers of comparisons will produce apparently statistically significant findings that are actually due to chance." "I' will just say a few words about the misuse of P values and confidence intervals. P values give the reader a sense of how likely an observations is to be due to chance, but they can be abused by investigators who make multiple comparisons without adjusting the standard for significance. Conf dence intervals offer more information. Technieally, a 95 percent confi- dence interval tells the reader that if the same study were done 100 times, with subjects from the same population pool; 95 of the 100 confidence intervals would contain the true relative risk. Confidence intervals are thus valuable indicators of the precision of an estimate and the likely values of a measure within the population;.a 95 percent confidence interval of 3.2 to 6.5 for a relative risk clearly defines an increased risk. A 95 percent confidence interval extending from 0.9 to 6.5 suggests a positive effect, but it is still within the realm of chance findings because the P value is greater than 0.05. Certainly, a confidence interval extending from 0.2 to 11.6 is merely an imprecise estimate. Yet such a confidence interval is sometimes used' as evidence for high relative risk because the lower limit of an imprecise estimate can only approach zero, whereas the upper limit can increase without bounds." A-9

NOVEMBER 19, 1993 B-Y APPENDIX B UPCOMING SCIENTIFIC MEETINGS • December 5-8, 1993 Annual''I Meeting, Society for Risk Analysis, Savan- nah, Georgia [IiniThis Issue] • December 9, 1993 Liability, Compliance, Insurance and Indoor Air Quality, MidAtlantic Environmental Hygiene Resource Center, Philadelphia, Pennsylvania [In This Issue] I • December 10, 1993 One Day Overview of Indoor Air Quality, MidAtlantic Environmental Hygiene Resource Center, Philadelphia„ Pennsylvania [In This Issue) • December 15s 1993 Ind'oor Air Quality: An Overview for People Who Need to Know,,AII'iHM„SanAntonio, Texas [I'ssue 57, Item 35] Same program to be held March 4, 1994, Orlando, Florida; April 13, 1994, Minneapolis, Minnesota; May 5, 1994,,Chicago, Illinois; June 17, 11994, Oklahoma City, Oklahoma; July 14, 1!994, Anchorage„Alaska • December 16-17, 1993 The National Environmental Tobacco Smoke Conference: Public Battles, Private Choices, IAQ Publications, Washington, D.C. [I'ssue 55, Item,34] • March 28-31, 1994 Eleventh ORNL Life Sciences Symposium, Indoor Air and Human Health Revisited (Bringing Sc- lected Advances in, Medical Science to the Indoor Air Quality Community),, Knoxville, Tennessee [Ilssue 58, Item 43] • May 5-7, 1994 Second Annual IAQ Conference and Exposition, NCIAQ, Tampa, Florida [Issue 49, Item 35J • May 22, 1994 Indoor Air Quality Symposium, American Indus- trial Hygiene Conference and Exposition, Anaheim, California [Issue 57, Item 34] • October 10-14, 1994 9r1i World'Conference on Tobacco and Health, Paris, France [In This Issue] • October 18-20, 1994 Indoor Air Quality in Asia, Beijing, China [Issue 54, Item 421 • October 30-November 2, 1994 IAQ'94't Engineering Indoor Environments, ASHRAE and other sponsors, St. Louis, Missouri [Issue 58, Item 42]

~UE 60 ArPENDIX C auollS AttO¢'ney Ge.mal Grant WOods iaaaii Office of Conaumer Protcctien Philip Doi, Executive Directcr Idzho Attorney General Larry EchoHswk )Attoraey Gewral. 8canu J. Campbell 3daaaachBSeEts Attorney General Scott Harshbarm :12innesou Attorney General Hubert H. Humphrey III titissisaz* Attorney General Mi7ce Moore New hiesico Attorney Ceaeral Tom (Tdsll New Yoa3c Attorney General Rcbert Abrams Uklahnma Attorney Generni Sua:n B. Loving Oregon Attorney General '1'heodoie R Kulongoski Tezas Attorney General Dun Moralea )~h Attorney General l.Jan Gmhnm 4crsrwnt Attorney fienersi Jeffrey L. Ameacoy Wisconein Altocaoy General

Fast Food, Growing Children and Passive Smoke: A Dangerous Menu Findings and Preliminary Recommendations for Implementing Smoke Free Policies in Fast Food Restaurants Novenber 8,1993 Arizona Attorney G eneral G rant Woods Hawaii Office of Consumer Protection, Philip Doi, Executive Director Idaho Aftorney G eneral Larry EchoHawk Iowa Attorney G eneral Bonnie J. C ampbell M assachusetts Attorney General S cott Harshbarger M innesota Attorney G eneral Hubert H. Humphrey III M ississippi Attorney G enera 1 M ike M oore New M exico Attorney G eneral Tom Udall New YorkAttorneyGeneral Robert Abrams 0klahoma Attorney G eneral Susan B. Loving Oregon Attorney G eneral Theodore R.: Kulongosla Texas Attorney General Dan M orales Utah Attorney G eneral Jan G raham Vermont Attorney G eneral Jeffrey L Amestoy Wisonsin Attorney G eneral Ja mes E. D oyle

These preiiazinary recommendations were created by the Tobacco Working Group of the National Association of Attorneys General for release on November 8, 1993. This copy was distributed by the Minnesota Attorney General's Office. This ~ handbook is available in other formats, such as large print and audio cassette. The Minnesota Attorney General's Office is an equal opporturtity employer who values diversity.

In Niay, 1993, a group of suftn sutia Attomeys Genend formed a w+vridng group to study tobacco-related iswGs. wd a focus on passive smoke and childrta.' These states were cawemed because of studiesdocvauating severe aciverse hmft effect: .: am exposure to passive smoke, including a report from the U.S. Environrnensal Protection Agency on Environmental Tobacco Smoke, issued in January, 1993, which concInded that passive smoke is carcistogemc.= According to d7e EPA report, non-smoloers who idale passive smoke face increased risks of lung cancer, respiratory tzact infections, asthrna anacks and coughing. Children are partiexslatriy at risk. - Every day, millions of Arnerican children spend time in fast food resrauuants eatingy playing in specially designed play areas, and working behind the counurs, $ecsusc smoking is permitred in almost all of these n;staurant=, thzse children are exposed to passive smoke, a Class A carcinogen, for which no safe levels of exposure have been establistrod. Concerned with the dangers posed by this exposure to passive smoke, the working group of states met with the leaders of the fast food industry in July, 1993, to discuss the issue of passive smoke in their restaurants. Based on tftie infarYnation gaths::r,d during these discussions, the working group developed a series of recommcndations to the fast food industry to facili'tate the development of smoke free restaurant envirorzmcnts. ' The participants in this group are lisned on the cover page. Of the sixteen st~s ~g, ~ are nrpresenoai by the Attorney General of the respective stnw, One, Hawau, is =presentod by its 4fficz of Consumer Prot~ti,on, an agency which is not a part of the stare Attorney General's officx, but is statutorily suthoiized to undertake convAricr protection functions, including iegal repreaentntion of the state. For the sake of simplicity, we wiI! at times refer to the entire group as the "Attorneys Genc,ral", 'the staoes', or "the working grouP-6 = Passi:ve smoke is a combination of smoke from the burnzng end of a cigarette, cigar or pipe and the smoke exhaled from the lungs of smokrers, -1- 2024'?'026 "It

This report suasmsrizcs the findings of the worlaag group and' xts out its preliminary secomcneridations. Section I outlines the dangcn ttw cxposure to passivc smoke poses to the general public, and oa children in particalar, and describos the posidca of the Envirorunomal Protcctivn Agcncy and the Surgeon General on this issuo. Section II describes the current smoidag policies of fast food restaura= and explains why so msny children aro affected by these policies. Section ITI dcscsIes the efforss of the Atiosntys General worlang group and summnus the group's initial findings. Section IV sets out the staus' preairninary recmune,ndations to the ud~try. This report is being distributed to fast food companics, the mr,dical caumnututy, consumcr groups and other interested parties for coavnent. The ssazcs will then hold fo2low-up mectings to get feadback on tinse prtlurlirtary recommendations. The smes will issue a final report at the conclusion of ft pmccss. -2w

I nM DAM` RI EASSNE SMaU The public is well aware of the health hazards associated with smoking. Approxsmately 434,000 Americans die every year from smoking relatzd c=aes.' This amounta to cnore than one in every six United States deaths. The danger is s o wtll docua,anted that tobacco products must eazry a federa3ly mandatied health vvaraing.' Although the dangers inherent in smoking have been rccagniud for deeades, exposure to the tobaeco smoke of others has been generally trwai as a mere annoyanx. The rights of smokers to engage in the lawful activity of smoking have historically been weighed equally against the iigkts of nonsmokers to a smoke free dstvironment. However, a report issued in January, 1993, by the United States Environmental Protection Agency ("EPA"), together witb increasing ncmbers of sGientific studies and data, have significantly altered shat balance.s Exposure to the tobacco smoke of others has now been shown to pose roal and serious health hazards to =smoleers. finvlroruncnml tobacco smoke (ETS), also mlltd secondhand or paasive smoke, is a coanbinali.on of smoke given off by the bunning end of a cigarette, pipe or cigar and the srno3oe exhaled from the lungs of smokers. The process of breathing secondhand smoke has become commonly known as involuntary or, passive smoking. Environmental tobacco smoke contains over 4,000 su-bstances, more than 40 of which are known carcinogens and many of which are strong imtants.6 Indced, the chcmical compositroa ' Ceatcr for Disease Coacrol data, 1991 ' 15 USC 11333 ' 1993 EPA Report, Respiratory Health Effccts of Passive Smoking: Lung Cancer and odscr Disorders, (" 1993 EPA Report") ` 1993 EPA Report, p. 3-21 through 3-26. -3- 20247026'?'~ ~

and ttie qualitative toxzc and carcinogemc effew of ETS and fsrsthand tobacco very similar. Posrti of the S«rrPnr~ GenerW La.nd thc A K'ationai public health agencies have been very concerned about ft negative beaiih effects from exposure to passive smoke for some time. In 1979, the Surgeon General repm-eed that ETS can be a significant source of indoor air pollution due to the concensraiiom of carbon monoxide.' In 1982, the Surgeon General indicated that passive smoking vwas a 'poasible serious public health problem." In 1984, the Surgeon General reported tlzaz the pulmonary functions of people chronically exposed to secondhand smoke were significantly weakcr tlian thme of individuals who had litsie or no exposure. ' In 1986, the Surgeon General conciuded that ETS causes nonsmokcrs to develop lung caneet.'o The same report concluded ftt acute and chronic respiratory diseases are lirilced to passive smoke exposure. The report called for nuasures to protect the public health, including remedial action to protetx the nonsmoker from eavironmental tobacco smoke. After an extensive imestigation into the health risks associated with exposurc to environmental tobacco smoke, ft EPA published a report in 3anuary 1993, der3aring tbat ETS be classified as a known lnucnan, or Group A, carcinogen. The ' Group A' caassi{cation is reserved for those few compounds or mixtuzts, such as radon, asbestos, ' U.S. Depaamcnt of Health, Eduration and Welfare, Smoking and Health, A Report of the Surgeon General, chapter 11, at 32 (1979). ' U.S. Department of Health and Human Services, The Health Consequen~s of Smoking: Cancer, A Report of the Surgeon General at 9(1982). ' U.S. Deparvnent of Health and Human Services, The Health Consequenaes (of9S~moking: Chronic Obsttuctive Lung Disrase, A Report of the Surgeon General at 405 " U.S. Department of Health and Human Services, The Health Consequences of InvoluntarX Smoking, A Rcport of the Surgeon Gertiarai at 10 (1q8b). -4-

and. ben=, which are highly toxic subssas:ees knovm to cause canxr in humans. The EPA estirmtcs that secoodhand smoke is respoctsible for approximately 45,000 deaths armualy in nonsmokers in the United Staoes, of which 3,000 ara from lung canaer." Nonsmoking adults who ane exposed to secondhand smo3ce experience mcreases in coughing, phlegm production, chest discormfozt and reduced lung function. In addition, exposure to ETS has been linked to heart di9ea ng SYrrater Danger To Qtldcen Although all nonsmolocrs are at risk, young chijdren are pazucu3arly sonsitive to the advcrse effects of secondhand smoke. 'The EPA escimat,es that pas.sive srnoloe is responsible for 150,000 to 300,000 lvwor respiratory tract infections in clzildrea under 18 months of age annually, resulting in 7,500 to 15,000 hospitalizations each year. uChildren wcpased to secondhand smoke are also more likely to have reduced lung function and sympmms of respiratory irritadon such as coughs, excess phlegm, and whxzing. Passive scn,oking by children can also lead to a build up of fluid in the middle ear, a condition for which children are often hospitalized for surgery. Asthrnadc chUren are especial1y at risk. The EPA estimates that exposure to scamkiEiand smoke increases the number of episodes and the severity of symptams in fr+om 200,000 to one million asthmanic ch`sk3rcn. Sa,cntisb now contend that exposure to, passive smoke iueif is a significant risk factor in causing tlioususds of non-asthma& child= to develop astfuna each yeat.'• " 1993 EPA Report, p. 2-5 u Glsnrt. Stanton A., Ph.D., Passive Smoking mid Heart Disease: Epidemiology, Plrysiology and Biochemistry, CirculAdOn Vol. 83, No. 1, Janiary 1991, p. 1-12. " 1993 EPA Rcpcm, p. 1-4 " 1993 EPA lteport, Ch. 8 -S- 2(lZ4'•~`OZfiT5i

The EPA has stated that suffzcient sciezuific evidence exists to wazraru ' to protect all nonsmokers from involuntary exposure to secondhand smoke. Becausc young childrea aro especially at sisic from expostut to =ndhand smoke, there is a partiailst need to focus on climinadng srnoking, and tfie resulsant seeond}wad smoke, from pla.cxs frequented by children. This reporc concxrsts sawia'ng w fast food resmum= becmw au7lions of children in our statcs spend time eating, playing and woricing in ttscse zzstauraats every day. IL FAST Foan RESTAURArI'Is Oan -,in 1___-_tiants Child= frequent fast food restaurants in hugc nunnbers. This is not surprising because the industry makes cxtraord'u~ary efforts to autcact tbeir business. Many fasi food ressau:anra provide special p>ay areas for children, cornplete with jungk gyms and sliding boards. These play areas ;ttract people with small chIldtrn and Mcouragc them to ssay in the restauram for longer periods of time than it would take simply to eat. In addition, fast food menus routinely include brightly packagad 'kids' meals' with foods and toys that appeal to chiidrea. Many fast food restaurants have spec.ial rooms dcsignrd to hold child';ren's bizdiday parrties. Fast food restaurants also engage in special promodaw, targeted to cbildrm, offering everything from basketball caids to miniature d'uzosaurs, in order to lure in farniliea with c' iren. And thGSe efforts have paid off. By industry estimtes, as many as 2:5 % of fast food Mstaurant customers arc under the age of 18, with 10 % under the age of ten. Efforts are nwwde not only to appeal to children, but also to utract farnilra9 with ia.fants and toddlers, many of whom an too young to eat c5e food. Recognizing that eating out with babics or restless young childrtu can be difficult, fast food restiuarnnts increasingly provide boosor.r srats and speciaily designed 'utfanc high chai'rs so that even very young babies M -6•

reac~ia carnforcably seairod whi}e theu' parents and older siblings eat. Not surprisin81y, paorats bave responded favorably to tttese efforts, and regularly bring infants and toddlers to ftst food resmirents- F.:r,rraitn of TeenM E'n+flIqYe!!_9 By irdusVy estinam, as many as 40% of the mployecs of fast food restaumnts are under the age of 3 8. The health risks posed by the exposure of tt=e young teenwrs to passive smoke in the workplace is also of concesn to the states. A recent article in the Journal of the American Medical Association (JAMA) raviewod studies of indoor air quality, compuing restauinnts. residGncxs atid off ces. This review demonstrated Ow levels of secandhaad smoke in rtatauruus are much higher than in most other wor* places or in the average home (1.6 to 2tinnes higher than in most offiCes and 1.5 timcs higha than in haces with at least one smoker.) The author advised that: Public health efforts to regulate smoiang in bars and restaurants can no longer focus only on protecting the patroa. Food aervict woriccra mast be afforded the svnc public health protection as odier woricers. To protect these wori= from the huards of ETS, smoldng should be prohibzted in bars and rrstauraAts.u Moreover, in 1991, the National Institute for OccupationaI Safety and Hcalth (NIf)SM reported that E'I'S is a potential occapatiaMl carcinogan and called for the elimi~ of tobacco smoke from the woricpLaae: Woriaers should nac be involuntarily exposed to tobacco smoke. To pitvent worjoer exposune to any hazardous subatgnct, employers shotrld first eliminate hazardous workplace emissions at theu soa=: If u Siegal, M. Involuntary Smoking in the Restaurant Workplace: A Review of Employee gaposure and Health F.ffects, JAMA, July 28, 1993, p. 493. •Z- 2024'7(126'77

elimination is not possible, emissions should be removed from the pathway between the source and the warker.'' Although woridag teenagers ua close to aduitttood, they an not yet adults. They lack the pojitical power, maturity or experieaoe to efbec4 the chatiges neassary to protect tt= health in tbe wcuicglxee, and ttierefore dependd on adults to do so. Moreavcs, because many yvung rtenagas do not have the requisite knowledge of the dangzrs of secondhand smoke or a concern for ttheir own health and mortality, they are in specia3 need of protection where passive smoke is concerned. The fast food industry, as an industty that utilizes iarge numbers of young teenagers as worloas, has a special responsibility to shield 1h= from the haaards of passive smoke in the workplace. l Sicf Pglicies in Fe`et FZId Ugaifrar.sts The overwhelming majority of fast food restaurants permit smoidng on the premises. None of the major f~st food restaurant chains prohibits sma3dng aliogcttu.r. Although many have desi.gnated srnoYing areas, none has separate ven.nlatioat sysoc:ns for smoking and nonsmoking secrions. Sunply separating smoioers from nonsmokzrs within t5e same area will not protect nonamoloera irom exposure to recirculated srooicc or smoke drifting into noasmoking areas. Only by prohibiting smoking or by limiting smoking to separately ventiZated rooms can nonsmokers be effectively protected frocrt exposure to ETS in indoor environmenta." Because fast food restaurants mark,et to and heavily atzntcc the most vulnerable segment of the population •- c}tiildren, infants and toddlers - and because tr,ecsagers make " Environmental Tobacco Smoke in the Workplace: Lung Cancer and ottser Hralth, Effects. National Inatitute for Occupational Safety and Health; 1991. Publicwtion DHHS (NIOSH) 91-108, p.12. " EPA Brochure, 'Protecting Your FJeaith, What You Can Do To Reduce The liralth Risks Of Passive Smoking', July, 1993. -$.

up a large pottioa of the fast food workfom, the scatas have focused on the unoking polices of fast food =Mrants. III. ' Concerned by the mounting evidence of thw seriau health ris3cs posed by paasive smolce, espeGially as they relate to ymg children, fifteen saste Attostaeys Get=-g fom'cd a woridng group in May, 1993 to study the problem of the public's exposure to passive smoiae in fast food restaurants. The goal of this worjdng group is to worh cooperatively wiffi the fast food industry, ttu medical community and consumer groups to ensure that the rislm of passive smoke are adequately discloseci to nonsmoYing eustomers and, ultimately, to encourage the irnplCmcnratiop of smoke free policies that will elimimate those risks. Ific states began their investigation by contacting several large national fast food companies. These companies'' annual sates collectively exceed $40 billion. T`he stazcs requested documentary information regarding customer demographics, corporate stiucsure, smoking policies, data on wbat efforts the companies had made to convert their restzurants tp! smoke free environments (inciuding customer sarveys), and whether the compsnies anticipated legal prfobl,ems if they irrmposed a smoke free standard on their fzanchise operatosa. The states followed up 6ezr document request with separate nxetiags with eight companics during w}urh we explored their views on smoke free r+cstaurants, their experience to date in iaplement:ng smokz free policies, and dheir plans to expand tfiese efforts in the fisture. jBitill F-ind- T'he smes have completed their initial investigation. Although thc tustoaner base, food specialties and corporate stiucaue vary among fast food compsrnics, the stases were able to reach some general conclusions about the industry. 2024702679

All of the compinics we met with are cunwitly M==nining txir smoking policies. Some companies believe that pasaive smoke in their restauranQs is a public heaith issue that demands their immediate attention. Others claim that they are not convinced that this is a public health issue at all. consequently, their approaches to the iaaue vary. Some anics have conducted surveys and studies to determine their custorners' views on the e mp c dangers posed by exposure to tobacco ssnoloe and how they would respond to a smoke free policy., Some of these surveys aYZ fairiy sophisticated and scientific in approach. Ottsers are more anecdotal. Some companids are also test marketing smoke free policies in sevesal locations to evaluate actual customer response. Others plan to begin smoke free ttsts in the near future. By company estimates, approximately 10% of fast food tzstaurants in mcat chains are currently smoke free. In most cases, the decision to operatc smoke free was local and was driven by marketplace facoors. Some operatc smoke free becmse local law requires it. Other stores went smoke free as part of a company sponsored test marlctt to evulu,ate the impact of a smoke free policy on sales. In at least one iastancx, a compaay's survey predicted a potential loss in business that was not reaiized once the smoking ban was put into effect. Although a significant percentage of smoking custorners indicated that they would not continue to fitqur.nt the restaurant if it adopted a smoke free policy, there was no corresponding loss in sales once the smoking ban was put into eff~,~ct. For many fast food customers, sroo3dng policies are ununpor=L Only about 25 96 of the customers in fast food restaurants smoke. Since the average tirnc spent in a fast food sestaurant is rclatively short, many srnokers can wait untii fty leave to smoke. Moreover, by industry estimates, 20 to 50% of fast food business is drive through and take aut. For those customers, a smoking policy is irrelevant to their choice of restsussm. A no smoking policy is unlikely to deter drive through and take out customers who smo3oe.

Regudlcss of a corporation's view on snoking, many companies told us that they couW not cantrot the smoking policies of most restwrants in their chain. Only 10 to 35 % of fast food operations are corporatcely owncd and operaoed. The reaiainder are independentiy operased by fmmchisees. The extent to which corpozations may legally require existing franchises, operating under existing fianchise Agreements, to alter dieir current smoking policy is unclear." The companies expressed concern about mandating aa no smokiag policy beranse of tfx posaibility of legal challenges from their fruicirisess and because they believe that such action would damsgE t#:e m3ationsiup between them.. Sonutimss neither the corporation nor the fianchise operator -cAntrols the smoking policy. Many of the companies in this industry aro experiencing growth in 'food courts' where the dining area is stsared with a number of other rest$urants and businesses. Usually found in shopping malls, the food court restaurants, as lessees of counter space, have no separately allocated seating sections. For food court facilities, any smoking policy covers the entire facitity uniformly and is controlled by the 1t.ssor/owner, not the bst food coatp~ny ftt leascs counter space." Most fast food resuurants, whether corporate or fianchise operated, caurcady provide segregated smoking and nonsmoking scaongs and post: noaoes designating smoking and nonsmoking areas. We azn not aware of any compani,es providing separate segregatod vcntilation systicros for smokers and nonsnokrss. According to industry, this is not an economically feasible aloernaz;vc. " The states did not review the companies' fxanchise apeements and take no position on whether or not companies can mandate that their franchisees operate smoke free. " Tbere is somee evidence that malls are moving in the direction of adopting smoke freepo li~cics. S=, Going Smoke-Free: More Malls Joining In Bans on Tobacco; New Yorlc T"'nncs, 8!?193 pg. 1. 20247026N1

None of the major fast food ch2ina requires its facilitics to operaoa smoke free unless required to do so by local law. None provides wArnings to consumers About the possible dangers of passive smoke or tlw there are no separate ventilation systcros. Tronicaliy, for heaizh and safety reasons, most of the majof fgst food corporatioaa do not allow smolcing in their co:porate hcadquartess. However, the conpanues" caaarns for the health and safety of their employees at corporate headquarters have not led to a smoke frx environment for their resmzrant workGrs or customers. Spoke Free Po Mes Some fast food resmurm chains are playing a leadership role in creating smoke free eating enviroruncnts. One small naaonal chain went smoke free m all of its 205 company-operated locations in 1993. This particular company estimates ttsaE 70% of its customGrs are children. When the EPA reported ttiat tobacco smoke posed a serious healtb hazard to children, the company i'm:n~ty implemented a smoke $x policy. No surveys or test markets were conducted fi.ist. The company is now actively promoting a smoke free policy in its 100 additional franchisc•opezatcd soores. By cornpany estimtes, approximately 60% -70% of these locations have now also gone smoke frae. Anntlur larger national chaia, which operates mostly thivugh franchise operations, is taicing steps to insure ttiai all of its rastaurants will eventuatly operatte smoke frx. Although the company has only a few corporate-owned locations (and these aII have a no smoking policy)~, it is actively promoting a smoke free policy in all h-anchise locations. Firtier this year the company sent out bulletins to all of its francfiiae operators urging them to go smoke fite. The convany advocates a no smoking policy becauae of the dangers posed by passive smoke and because of tbe potential for lawasits if fiaachisees contirme to 42-

peanit una3dng on the prtmises.'0 The company has told us that it expects ttus strong pol;cy sta=ent to be very mflueada1 in petauading its frandzix operatora to adopt gnwdoc froc pdi=. Tbc company pjans to conanue its effotts with fiwohisc opesators who are ~t ta such a policy clarige. 5kMEW OhImations Having reviewed tiu dasa suppYind by the uulustry, the woticing group hxs made ft followkg goc=W observatEons. • Most fast food companies would ulbmauly like to go amolc~ free. • Many rmnpznies would prefer to wait nntii Iegislarive smoking bans arr in place before mandating a amoke free policy for thtir C21-SECIrMn • Tbe companies wou3d not oppose legislation to ban smo3cing in tzs=z$nts. (Some indicated a willingness to ~ such ytgisiaiion.) • Theeompaaies are=cernoddw they may lose busintss if they implemeat a smoke free policy before tiieir competitcrc do. • Tbe e.oPuiies want to operaoe on a le.wal playing field with respect to smoldng Policies. '° In April, 1993, ttnrx moth= of children with ngtiuna filod a cyass action lawsuit, in Faleral I7istrict Court in Connectiwt against McDonalds, Burger King and Weady'a alleging that,, by peaai=g smoldng, the,9e nstauraata were denying these dn7dren aaaeas to the preinims in violation of their civd rights under the Fedr,raI Anu~ricans with Disabilities AcL 2024702CS3

. PREU1iIlNAYtY RECOMNDIAA'TIONS FOR C SMOKE FREE EMJs IYUIT EWD statts recoRUnend thas all fast food rdstausants undersabe ft foiltrwing mcastiures: 1. Il4iPT.NF1VT A CORPORATE SMOKE F"RU POL,ICY a. Tiapksztieat A Smoke Frae Policy In All Corporate Locadooa Immediately Comrnencaztr: The states' first recommasdation is that akt fast food c=parria jmmoaWy convcrtt thCir coxpo:ate owcmd restauranz to smoloe free tacilit;cs. At least two fzst food re,staucaut Etsaias have alreedy done ttus and are also stmngly encouraging tiwir fran~ opcrators to convert. These companios arc promoting smoke free goliraos both froatt a public health perspccdwe ("it's thesight thmg to do'), and from a legal Perspecrivo Qfcaachrsces who caazvert to smoke free resmurants avoid worlaer's compensation c1airns, the poS5RWtty of litigation from AiStOti1G?s and Ctl1pjoyCQS with respiratory &ubfld=, and ft risk of having to awunt or defend a legal challengt if the corporation imus a directive to go smoke 5ru). Withalt mandating a smoke fitc policy, thcse companies agg=sivcty cnconsage their fianchisccs to go smoke frx. A amnke free policy in a!I corpoiatz owned facilifits, coupled with strong mcssages about the benefits of going smoke freo, can pmvide the direction and iucenrive necessary to encourage franctsssaes to convert vobsatttrily. b. ?mpicment A Smoke Free Policy In A Mimimum Of 10% Of All Corporately Owned Fast Food Restaurants Initially And Expand Ihe Policy By An Additional 20% In Each Quarter Tbatxfirs• Cnmrnentanc: Although the statcs believe that an immediate, across-the-board caav=sion to a smoloe hu policy in a11 corporately operated facilities is ft best approach, a phase•in plan would be the next best altornafve. Many companies indicated a rt}ucffiaa to go ' ' ' ~ smoloe free because of concerns ttiat sales may drop. Z sevcs that tbeae be working ErouP beI ~ concerns are unfouadod. Surveys of people who frequent fast food restaurants indica te tbat ~ A -14-

a lap majoriay of fast food customers recognize the risks posed by the ezposurc to passive snwioc. Although a small peraansage of smoking customers indicased tlsat they would no longec pattroniu a fast food Ytstauramt if it went smoke frm, actual. test marlaet t+Gwlts show little, if any, l:osa in btisineess once the policy is impleenanood. Because the general Fuolic qG1Ws relatively itittle tlftle at faSt food 1t4=t=ts, the burden on smokers to Teftaln from slllok]a$ for a short pehod is unlikely to outweigh the atttacaoti of ~'dat food. '1'hc star-s ttconunend a phase-in plan under wDtich a smoke free policy would be initially in a minimum of 10% of the cceporate operated locations. Many companies akcady operate at th:s level. The policy shoutd then be expanded by an additionaI 20% in each quarter thereafter until all corporaw ownod locations wrt smoko free. By making this change gradually, companies will be able to firai convert restaurana in areaa where the change will be more readily accepted. The positive experieruxs of IIhtse first k=vtinns can thea be used to fasilisate later convessions. Under a phase-in plus, all corporatety owned fast food restauianta should be gmokt f¢oe within 15 months. 2. IlMPLE+KF.NT A SMOKE F'REE POLICY JNALL NEWLX OPENED CORPORATE OWNED xESTAURANTs C=M=zM Some =Tnies fear that the implesn~aw~tion of a no smoking policy in tbar corporatc restautants would affect their revenues by ali,enating dyeu longtiiae customers wbo smobe. Howvva, newly opcncd nsaw=ts do = have any longtime cuswm= who sm . W'ithout an owner's tradition of allowing smolang or an old customr's ezpocattion of being aUowed to smoke, the im~Ie implerncntation of a no smoking policy in a newly opened restaurant will not drive away old customers. 3. REQUIIZE ASMOSE FREE FOLICY AS FART OF ALL XEW kItAN~ AGRFEbU:N.7CS C=mca= None of the companies we contacted requires its hanchisc operat= to operate smoke free, and none of dicir various franchise agreaaents specifically address+es amo3dng. 20247n26H5

Fast food companies are wary of creating an atmosphere C013ducive to litigation if tituy suddenly cnandate that their franchism go smoke fiee. However, tfiere is no danger of litigation if companics simply revise their fianchise agreements to requue all fltire franchisees to operate smoke free in locations where they can controi the smoking policy.u These new contracts, by specif cally addressing the smoking issue, would then provide impctus for moving the entire restaurant chain toward a smoke free environment. 4. ENCOURAG"E ALL F'RANCHiSE OPERATORS TO A SMOKE FREE POLICY NMEI}IATF.LY commeararv: 'Y'he states recommend that fast food companies actively encotuage all of tfieir franchise operators to adopt a smoke free policy. Some companies have already begun this process. One company sent a bulletin to aII franchisees advising tfiem of the danger passive smoke poses to their customers and employees and alerting them to their potential liability if they permit smoking on the premises. Another company developed and distributed pramotional material s for fianchise operators (including signs, posters, and tabZe displays) announcing and explaining a new no smoking policy in a positive way. Corporations can facilitate a move to smoke free franchisc operations by discussing the issue of passive smoke at local, regional and national fianchisce meetings, and by focusing on the positive expcriences the company has had in its smoke frx locations. Companies can follow up by tnaeting individually with reluctant franchise operators to discuss the importance of a smoke frx policy. ~' This section is not intended to require franchise oPerators in food courts, malls or other locations where they cannot control the smoking policy to provide separate varidl'ation systems for ttuir xating areas. -16-

S. REMOVE CGARETTE VENDING MACHINFS FROM ALL FAST FOOD RES'TAURANTS To further discourage smoking on the premises, cigareue vending machines should be removed frvm the areas in and around fast food restaurants. Ttua actim will not only reduce the likr.lihood that adults will smoke in the rastpsram it also will cut off j, significsint source of ciga.rectes for underage smokers, who are often able to circumvzni stanc laws bauaing sales of cigancttes to children uttder 18 by purchasing them from vending machines. 6. SITFPORT LEGI,SLATION TO BAN SMOKING W RESTALJRANIS - Cg=0t2gv; T he fast food industry has expressed zfie view that the passive smoke issue could best, and most faaly, be resolved by Iegislalion. The working group believes that such legislation would move ahead much more swiftly with restaurant indussry support. Fast food comganies should actively support Iegialation to ban smojang in restuutAnts. 7. POST THE FOLLAwIIV'G WARNING IN ALL CORFORATE AND FRANCHISE OPERATED RESTAURANTS TBAT ARE NOT SMOKE F1tEE H&ENW: Smoiang is ptrmitzcd in this restansrant. This incstasea a nonscnoicer's risk of reapratorY tract in~ s, broachitis, asttuttia attaclcs and lung cancer. Children are especially at risk. Crrauncn : Until smoke free policies are implemented in fast food mswrants, or sepazaw ventilation systems are insralled to protect cnstorrtitrs from passive smoke, the public needs to be adviaed of ttw danger. Only with fuIl disclosure can custvmr;rs (and the pautttta of the millions of children who eat, play and worY in fast food restaursnts) atalce fully infonmed decisions about how much time they want to spend in fast food rGmuants tat permit smoking. The presencx of a Class A carciaogen, for which no safe Icvels of exposure have been established, warrants such disclosure. -17- 2024702CS7

CaNCZ.rMoN 'I'hcse preiimiriary recommendarions were developed aftcr mcetings with reprcaeatatives of the industry.. Their puxposa is to provide a framcworic in wtt':ch tbe fast food industry can talice prompt acsion to protezt nonsmoking customers, panicutariy children, $bm the dangers of exposure to secondhand smoice. By cofflin:uing a dialogue with industry, and expanding the discu-ssiaa to inc3ude ttte medical commuti'tty, c.ottP, grougs and other inicresrod pardes, these recornmeadaLions can be rtfined to bester sntt the needs of ft public and industry. Toward that end, wa invite all intesesaed partics to subrna commcats on our preiiminnry recoaimendasioos witftin the next 60 days. Follow-up mcetings will be amtingod. At the conclusion of this process, the stues will make any appropriate revisions to our preiirnuia:y reconunendarions and `zuuo a finai report. Sod Comrte.nts to: Andrea C. Levine, AAGNtw York Attorney Geaersf's Office Burcau of Consunm Frauds 120 Broadway, 3rd Fl. New York, NY 10271 N C ~ ~ ~ ~ ~ -18- ~ ~

IDASO IOWA 1VSASSACHUSETT5 TOBACCO WORKING GROUP CONTAC'T LIST SYDNEY DAYIS Attorney Generai's Offi= 1275 wcst washington Phoenix. AZ 85007 (602) S42-3702 Fax (602) 542-4377 STEVE PARK Attorney General's O€f cx 110 Shesmsn Strnet Hartford, CT 06105 (203) 566-5374 Fu (203) 523-5536 Pffi'I,IP DOI Office of Consusncr Prvtection 828 Fort Street Mall Suite 600 B Honoluln, HI 96813 (808) 586-2636 Fax (808) 586-2640 BRETT DEI.ANGE Aftorney General's Office Statehouse, Room 119 Boise, ID 83720-1000 (208) 334-2424 (4114) Fax (208) 334-2830 STEVE ST. Q.AIR Attorney Gencra2's Office 1223 East Court Avemve, 2nd Fl. Des Moines, IA 50319 (515) 281-5926 Fax (515):281-6771 ERNEST SARASON Atto:ney Gencsal's Office One Ashbunon Plaae Boston, MA 0210&-1698 (617) 'T'17-Z200 Fax (619) 727-5765

TOBACCO wORKING GROUP Cf}IKI'ACT LIST MIIZNESOTA DOUG BLANKE Attorney General's Offict NCLTo.ver, Suitu, 1400 445 Minnesota Street Ss. Paul, MN 55101 (612) 296-2306, Fu (612) 296-9663 MISSISSIPPI TREY BOBINGER Attorney General's afr= 450 liigh Street P.O. 220 Jackson, MS 39205 (601) 359-3680 Fax (601) 359-3441 NEW MES1C0 JACK HIATT Atboaney General's Office Bataan Memorial Bldg. Post Office Dr 1508 Santa Fe, NM 87504-1508 (S05) 827-6060 Fax (505) 827-6985 NEW YORK ANDREA LEYIlNE At2oiney General's Office 120 Broadway, 3rd Floor New Yosit, NY 10271 (212) 416-8294. Fax (212) 41 6-6003 OKLAHOMA JANE vvBEELER Attorney General's 0fh= 4545 N. Lincoln Blvd. ~ Suite. 260 O1dahoma City, OK 73105 (405) 521-4274 O PV Fax (405) 528-1867 ~ ~1? ~ ~. Cr

OREGON TEXAS LTTAH VERMONT WISCONSIN TOBACCO WORKING GROUP CONTACT LLST ROBERT ROTS Attorney Gesural's Office Ficiancial Fraud Unit 1162 Court Street - N.E Salem, OR 97310 (503) 378-4732 Fax (503) 373-7067 JOE CREWS Attorney Genzral's Office 300 N) Vest 15th Street P.O. Box 12548 Austin, TX 78711-2548 (512) 475-4645 Fax (512) 473-8301 JO BRANDT AttomcyGenera2's Office State Capitol, R:n. 111 Salt La1oe City, U"I' 05602 (801) 538-1851 Fax (801) 538-1744 JUL1E BRII.L Attorney Genaral's Office Pavilion Office Bldg. 109 State Street Montpe3icr, VT 05602 (802) 828-3171 Fax (802) 828-2154 BARBARA Attorney Gerterat'c Office 123 W. Washington Avenue Room 157 Ma.d-ison, WI 53707-7856 (608) 266-3187 Fax (608) 267-2778

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