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SHOOK, HARDY& BACON REPORT ON RECENT ETS AND IAQ DEVELOPMENTS December 3, 199'3~ SHB

REPORT ON RECENT 5TS AND lAQ DEVELOPMENTS - IN THIS ISSUE- IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS • Representative Lautenberg introduces another ETS bill, p. 1. • Representative Waxman introduces labelling legislation that would' includ'e an ETS warning, p. 1. • Newly confirmed assistant OSHA director discusses the agency, p. 2. ETS-RELATED LITIGA'TIONAGAINST CIGARETTE MANUFA'CTURERS • Report on deposition activities involving plaintiffs and senior company executives in Broin, p. 5. • Argument still scheduled on defendants' motion for summary judgment in~ Butler, p. 5: ETS/1:AQ Litigation Not Involving Cigarette Manufacturers • New York Court of Appeal5 grants review of ETS workers' compensation case, p. 5. • Maryland prisoner told he may pursue Eighth Amendment claim for ETS exposure, P: 6- OTHER DEVELOI?MENTS/MEDIA COVERAGE • A grant is awarded in New York to aid antismoking efforts, p. 7. • Hotel survey indicates lAQ is important to business travelers, p. 7. •"The Outcasts of the '90s: Smokers in the Workplace," p. 8.. SCIENTIFIC/TECHNICAL ITEMS ISSUE 61 Page 8: JNCI publishes new study that strongly links dietary factors to lung cancer risk, "Saturated Fat Intake and Lung Cancer Risk Among Nonsmoking Women in Missouri." An editorial on~the study also appears in the journal. •"Effects of Man•Made Mineral Fibers in Settled Dust on~Sick Building Syndrome in Air-Conditioned Off ces," p, 11. IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS • ETS legislation is introduced in Canada, p. 11. • Czech physicians draw up charter on ETS exposure to children, p. 12. • Physicians in Germany call on Bundestag to pass antismoking law, p: 12. ETS-RELATED LITIGATION INVOLVING CIGARETTE MANUFACTURERS • Decision in TIA' v. Woodward p. 13'. ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS, • Report on Blackwood workplace exposure case in Australia, p. 13. OTHER' DEVELOPMENTSIMEDIA COVERAGE • Nonsmoking guide to restaurants is pub- lished in France, p. 13. • Researchers in the United Kingd'om are looking for "sick buildings," p. 14. • "Board on the Carper,"' p. 14. • "Travel: Smokers Run Out of Flight Time," p. 14.

- TABLE OF CONTENTS - Issue 61 December 3, 1993 IN, THE UNITED STATI FS REGULATORY AND LEGISLATIVE MATTERS 103D CONGRESS [I] Lautenbcrg Proposes Adding ETS Regulatory Authority to Toxic Substances Control Act ...... l [2] ETS Health Warning Proposed for Cigarette Pack Labding .......................................••••••-••-.•• 1 [31 Traficanr Bill Placed on Senate Legislative Calendar ...............................................•••••••..--•••.•• 1 [4]' EPA Cabinet Status Bill Cleared for Debate ...........................................••-••••-•---•••••••-.•••••-.•.--. 1 U.S. OCCUPATIONAL SAFETYAND. HEALTH ADMINISTRATION (OSHAY [5]1 Reich Introduces Dear to OSHA Employees ar"Town Hall" Meeting.................................... CENTERSFOR. DISEASE CONTROL ANDPREVENTION. (CDC) [I61'Hospital Survey Shows Inadequate Ventilation to ControliSpread'of TB ................................ 2 . U.S... ENVIRONMENTAL PROTECTION.AGENCY(EPA) [7] Committee Meets to Discuss EPA Indoor Air Research Program ............................................ 2 [8] ETS Reference Made During,EPA Press Conference ............................. ........................... ...•••• 3 [9] EPA Develops 1AQ Monitoring Equipment for Large Buildings, ............................................. 3 NIOSH (10) NIOSH Publishes RFI Seeking IAQ Research on Workplace Chemicals Transported into Homes ........................................................................................ 3, STATE AND. LOCAL. GOVERNMENTS [11i]1 Florida PTA to Seek School IiAQEvaluation Bi11I ........................................................--•••••••---3'. [12]1 Privacy Legislation ............................ ....................................................................................... ' [1311 ETS-Rclated State and Loca1 Legislation ................................................................................. 4 ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [I4] Bluitt: Motion to Amend Complaint Filed .....................................--..••••--••---.--.••••••••--.•••••••-•.. 5 [15] Broin: Depositions of Senior Executives Continue; Defendants Begin Depositions of P]aintiffi .............................................•....••••••••--•••-••••••••-••• • 5 [16] Butler: Argument Scheduled on Defendants' Motion for Summary )udgmcnt ........................ 5 ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS. WORKPLACE: WORKERS' COMPENSATION [17] fohanncsrn v.,New York City Dept. ofHousing Prrsrrvation and Development (Court of Appeals, New York) (review granted Ocrober 12, 1993) .......................................... 5 WORKPLACE: COLLECTI'VE.BARGAINING [!18] Matter ofNLRB and NLRB ProfissronalAis n and Wa.rhington Local, NLRB Union, 1993 WL 456696 (Federal Service Impasses Panel) (decided November 5, 1993) ...................................................................................................6 PRISONER CASE [19] fohnson v. Laham, etal., 1993 U.S. App. LEXIS 29528 (U.S. Court ofAppeals, Fourth Circuit) (decided October 28; 1993) ........................................................................... 6 LEGAL ISSUES AND DEVELOPMENTS [201 "Smoky Custody Battles," Ellen Goodman;, The Boston Globe, November 21, 1993 ................ 6 OTHER DEVELOPMENTS N [21i]; CaliforniaTradc Union Officials Ask for Free Smoking Cessation Classes .............................. 6 ~ ~ [22] New York Antismoking Coalition Receives Grant ..........................................•-.••...•••••••••••-••••• 7 [23] Polling Research Supports Accommodation in Malls ............................................................... 7 [241 State Disrributes Information About ETS to Smokers ............................................................. 7 [251 IAQ Claimed';to be Critical to Hoteliand Motel Customers .................................................... 7 [26] Cleveland Man Develops "Talking SmokeBusrer" .................................••-••••••••••••••••••-•••-••••-•.• 7 ~ [27] Smoking Ban Causcs Business Backlash .................................................................................. 7 ~Wr WJ.

Contents Continued, Issue 61 MEDIA COVERAGE [28) "The Outcasts of the '90s: Smokers In the Workplacc,° LosAngelns Times;,November 19, 1993.................................................................................... .................... 8 [29] "Noseworthy Progress for a Sick Sense," Chicago Tribunr„November 111, 1993'.........-.••.••..••.. 8 SCIENTIFIC/TECHNICAL ITEMS UPCOMING SCIENTIFIC MEETINGS [30) Indoor Environment '94, IAQ Publications and Other Sponsors, Washington, DiC., March 22-24, 1994 .................................................................................. 8 LUNG CANCER [31) "Saturated Far Intake and'Lung Cancer Risk Among Nonsmoking Womcni imMissouri,."' MLC:R. Alavanja, C.C: Brown, C. Swanson, and R.C. Brownson, fourna!'ofthrNarional Canerr7nrtitr.tt85(23): 1906-1916, 1993 [See Appendix A] ............... 8 [32] Editorial Regarding,"Saturated Fat Intake and Lung Cancer Risk Among,Nonsmoking Women in Missouri,."'Iv[.C.R. Alavanja, C.C. Brown, C. Swanson, and R'.C. Brownson, fournal'ofthr National Citnctr Institute 85(23): 1906-11916, 1993 ........................................... 9 [33) Letters to the Editor Regarding "The Hazards of Passive - and Active - Smoking," P. Boyle, New England fournal ofMeditinz328(28): 1'708-1709; 1993 ................................... 9' OTHER CANCER [34] "Epid'emiologyof lntracraniallIvleningioma," W.T. Longstreth, L.K. Dennis, V.M. McGuire, M.T. Drangsholt, and T.D. Koepsell, Cancnr72(3): 639-648, 1993 [See Appendix A] .................................................................................................... ..... 10. OTHER HEALTH ISSUES [35)i "Exposure to Environmental Tobacco Smoke as a Risk Facton for Recurrent Acute Otitis Media in Children under the Age of Five Years," R'. Stenstrom, P.A.M. Bernard, and H. Bcn-Simhon, lnternationalfournalofPediatric ......................................... 10 Ororhinolaryngology 27: 127-136, 1993 [See Appendix A] ............ ETS EXPOSURE AND MONITORING [36] "Questionnaire Assessments of Recent Exposure to Environmental Tobacco Smoke in Relation to Salivary Cotinine„° R'.J. Dclfino„P: Ernst, M.S. J'aakkola„ S. Solbmon, and M.R. Becklake, European Resprratory fournal'6: 1104-1 108, 1993 [See Appendix A] I .................................................................................................... ..... 10 [37] Letters to the Editor Regarding "The Nicotine Content of Common Vegetables," E.F. Domino, E.,Hornbach, and T. Dcmana, NrwEnglandJournalof Medicine 329(6): 437, 1993 .................................................................................................. 10 [38] "Questionnaire Data as Predictors of Utinary Cotinine Levels Among Nonsmoking Adolescents," F. Forastiere, N. Agabiti, V. Dcll'Orco, R. Pistelli, G.M. Corbo,. G. Brancato, R. Paci6ci; P. Zuccaro, and C.A. Pcrucci; Archives of EnvironmentalHralrh'48(4): 230-234; 1993 [See Appendix A] ............................................. 11 [39] "Environmental Tobacco Smoke: Mulricomponent Analysis and Room-to-Room Distribution in Homes,"'G. Lofroth, Tobacco Control2: 222-225, 1993 [See Appendix A] .................................................................................................... .............. 11, INDOOR AIR QUALITY [40] "Effccts of Man-Made Mineral Fibers in Settled Dust on Sick Building Syndrome in Air-Conditioned Of$ces," A. Hedge„W.A. Erickson, and G. Rubin, Proceedings oflndoorAsr'93 1: 291-296, 1993 [See Appendix A],.......................................... 11' SMOKING POLIiCIES AND RELATED I!SSUES [411 "'Pilbt Study on thc Effects ofa Workplace Smoking Ban oniIndices of Smoking,. Cigarette Craving, Stress and Other Health Behaviours." M. Gomel, B. Oldenburg; J. Lemon. N: Owen„and F. VUcstbrook, Psychology and Health 8; 223-229, 1993 [See Appendix A] ........................................................................... 1 1 [42] "The Effects of Smoking Bans on Extended Care (Jnits at State Psychiatric Hospitals," J.J. Parks and D.D. Devine, HoipitalarudCommurrity Psychiatry 44(9): 885•886, 1993 [See Appendix A] ................................................................................ lil

Contents Continued, Issue 61 IN' EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS CANADA [431 Proposed Smoking Prohibitions Introduced by Health Minister ........................................... 1 1 CZECH. REPUBLIC [44] Charter of Child'ren's,Rights Established ..................................••.•••..-•.••-.•••••••••••.•••.-•••••.. ...•.. 12 G ERMPiNY [45) Bund'esaag Called on to Pass Antismoking Law ........................................................••..•-..-...• 12 MALAYSt + [46) New Smoking Law in Malaysia ............................................................................................. 12 UNITED KINGDOM '' [471 Measures to Scrap I-Iealkh and Safety Laws to be Debared'in Parliament ..............................A2 ETS-RELATED LITIGATION INVOLVING THE CIGARETTE INDUSTRY AUSTRALU+ [48] TIA v. Strphrn Woodward (Supremc Court, Equity Division, New South Walcs)', (decided December 3, 1993) ................................................................................................. 13 ETS/IAQLITIGATIONINOT INVOLVING CIGARETTE MANUFACTURERS AUSTRAI.IA. [49]I Blackwood v. Hornefwrsr (Workers'.'Compensation Court, Western Australia) (filing date unknown) .................................................................................................... ........ 13 OTHER DEVELOPMENTS CANADA [501 Children Allowed to Restrict Parents' Smoking in Southern Ontario Town .......................... 13 FRANCE [51] French Guide Names 735 Smoke-Free Restaurants ............................................. .............. .... 13 [52] First Prosecution for Violating,Public Smoking Law ............................................................. 13 HONG KONG [53) SBS Research is Recommended ............................................................................................. 14 NORWAY [54] New Antismoking Campaign is Announced in Norway ........................•-••••••.••.•--••••••••••---... A4 UNITED KINGDOM ..................................................... li [55] Sick Buildings Sought for Inclusion in Study ..................• MEDIA COVERAGE CANADA. (56) "Boar&on the Carpets" The Ottawa Cirizrn, November 25, 1993 ......................................... 1'4. WoRLDAI~RLfNE NEWS [57] "Travel: Smokers Run Out of Flight Timc," The Daily Tilrgraph. Nbvember 27, 1993 ........ 14' APPENDIX A .................................................................................................... ................................ Article Summarics APPENDIX B .................................................................................................... ...........,Upcoming Scientific Meetings

DECEMBER 3, 1993 REPORT ON RECENT ETS AND IAQ DEVELOPMENTS IN THE UNITED STATES REGUL..ATORYAND LEGISLATIVEIvIATTERS 103D CONGRESS [1] Lautenberg Proposes Adding ETS Regulatory Authority to Toxic Substances Control Act On November 18, 1993, Senator Frank Lautenberg (D-N.J.) introduced the Senate's version of the "Smoke-Free Environment Act of 1993" (S. 1680). The bill, which would amend the Toxic Substances Control Act and~ give regulatory authority over ETS in public buildings to the EPA, is similar to the legislation introduced by Representative H'enry Waxman (D-Cal.) on Nbvember 3, 1993 (H'.R. 3434). Details about Waxman's bill appear in~ issue 59 of this Report, November 5, 1993. Lautenberg's measure, like Waxman's, would restrict smoking in all public facilities to areas that are separately ventilated. Where separatelyventilated'areas do not exist, smoking wouldl be prohibited indoors and within the immediate vicinity of the entrance to the facility. Unlike the House bill, Lautenberg's proposal would permit public facilityowners to petition for a waiver from~ compliance. The waiver provision states, "If the [EPA] Administrator determines that the public facility is subject to unusual and extenuating circumstances that prevent the compliance, the Administrator may grant the waiver and instead require that the faciliry protect nonsmokers to the maximum extent practicable." In introducing the measure, Lautenberg relied on the EPA Risk Assessment on ETS. In this regard, he stated,. "an EPA report released on January 7, 1993, undeni- ably confirmed what public health officials have reported for several years, smoking kills those who smoke and those who breathe secondhand smoke.... This EPA report was twice reviewed by an EPA Science Advisory Board and was approved unanimously by the scientists on this panel." Lautenberg also quoted'~ from the ETS brochure released by the EPA in July 1993, and made a reference to the U.S. Supreme Court decision in I-Ielling v. McKinney. [2] ETS Health Warning Proposed for Cigarette Pack Labeling Before the House recessed on November 22, 1993, Representative Henry Waxman (D-Call)iintroduced a bill that would, among other matters, replace the current warnings on cigarette packages with nine bigger labels that would'include the warning "Smoke From These Cigarettes Can Cause Cancer in Non-Smokers." The bill (H.R. 3614), entitled "Promotion of Tobacco Products, Restriction," has four cosponsors and was referred to the House Committee on Energy and Commerce. Surgeon General Joycelyn Elders has reportedly endorsed the legislation. See Reuters, November 23, 1'993. [3] Traficant BiII Placed on Senate Legislative Calendar 1 Following its passage in the House, the "Ban on Smoking in Federal Buildings Act" (H.R 881), introduced by Representative James Traficant (D- Ohio), was read twice in the Senate. The second reading occurred on November 22, 1:993, two days before the Senate recessed for the year. At the time of the second reading, Senator Dirk Kempthorne (R- Idaho) objected to further consideration of the mea- sure, and it was placed on the Senate Legislative Calendar under the rules. Further details about the bill„ which would restrict smoking in all Federal buildings, appear in issue 60 of this Report, November 19, 1993. [4]I EPA Cabinet Status Bill Cleared for Debate 11 14 ~ ~ N Although the EPA cabinet status bill (H.R. 3425) was ~ cleared for limite& debate on the House floor by m resolution of the Committee on Rules, the merits of N~ the measure were not considered before the House ~ recessed on November 22, 1993. Further information about the bill appears in issue 60 of this Report, ~d'" November 19, 1993.

Representatives John Mica (R-Fla.)~and Newt Gingrich (R-Ga.)iboth objected to the limitations on debate. Gingrich recommended that the leadership pull' the bill and return in January 1994 with a debate rule to which all the members could agree. He supported his request bynoting,that (i) the bill will cost taxpayers $1.2 billion, (ii), the ranking member of the Commit• tee on Government Operations who worked on the bill was not present due to incapacity, and (iii) the debate rule effectively eliminated from the bill amendments on "unfunded mandates" and risk assessment. Mica also objected to the absence of a risk assessment provision in the measure. U.S. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA) Reich Introduces Dear to OSHA Employees at "Town Hall" Meeting Labor Secretary Robert Reich introduced Assistant Labor Secretary in charge of OSHA, Joseph Dear, to OSHA staff on November 19, 1993, during a"town. hall" meeting. Both men addressed the 200 OSHA staff members who attended the meeting. According to a press report, Reich observed that the Clinton admin- istration is committed'to "strict and responsible" enforcement of job safety laws, and he lauded OSHA for "leading the way" in efforts to streamline operations under Vice President Al Gore's reinventing govern- me1it program. Dear's remarks apparently focused upon his three- point program, which includes more effective targeting of enforcement effons, a streamlined standard-setting process, and education and training: Neither Dear nor Rei& indicated what position the Clinton administra- tion would be taking on measures to reform the Occupational Safety and Health Act. Dear is report- edly committed to OSHA reform, and he stated' that in~ the near future a memo on the issue will be sent to the president, after which Reich will announce the administration's position. Dear also stated that OSHA was placing regulations to combat the workplace spread of tuberculosis on a "fast-track approach." Alchough he did not explain what this meant, he did say he will set a deadline and challenge staff to expeditiously come up with proposal. He reportedly cautioned, however, that OSHA's efforts r,.3ank.4 rr.i•Uni, i33ur- 0 1 in this regard will be dependent on the Centers for Disease Control and Prevention finalizing new guide- lines to prevent TB transmission among health care workers. See BNA Daily Rrport for Executives, Novem ber 23, 1993. CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC) [6] Hospital Survey Shows Inadequate Ventilation to Control Spread of TB According to a recent survey, almost one-third of hospitals polled reportedly do not have adequate ventilation in rooms for patients with infectious tuberculosis. This, according,to CDC and the Ameri- can Hospital Associationwho reportedly conducted a survey of over 1,000 hospitals concerning the incidence of tuberculosis (TB) and practices related to preventing the spread of the disease. The survey, which will apparently be released' in early 1994, showed that nearly 30 percent of the 758 responding facilities reported having no rooms meeting the CDC ventila- tion criteria for the isolation of patients with TB. The CDC recommends that TB isolation and treatment rooms have at least six air changes per hour, direct outside exhaust, and negative pressure ventilation. The number of TB isolation rooms meeting this standard per hospital ranged from zero to more than 60, with the median being six. See Occupational Safety d Health Reporter, November 24, 1993. U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) ( [f7] Committee Meets to Discuss EPA Indoor Air Research Program The indoor air quality committee of the EPA Science Advisory Board (SAB)'met in Washington, D.C., on December 2-3,1993. The agenda for the meeting was to indude further discussion of the SAB's Environmental Futures Project and consideration of revisions to the ~ committee's draft working paper on EPA's Indoor Air ~ Rcsearch Program. See FiArral Regirter, November 22, 1993. In 1990-91 and again in 1992, this committee reviewed the drafts of the EPA Risk Assessment on ETS. At the time of the reviews, the committee was 1: ` ~ ~

DECEMBER 3, 1993 chaired by Dr. Morton Lippmann. At the decision of EPA Administrator Carol Browner, Lippmann recently was replaced as chair by Joan Daisey of the Lawrence Berkeley laboratory's indoor environment program. The draft working paper on EPA's an Indoor~ Air Research Program was reportedly prepared and released by EPA's Office of Research and Development (ORD). The program is apparently a five-year plan that is designed to refine the agency's environmental research programs, integrate research activities, set priorities for funding and describe the research program to EPA's program office. ORD's plan reportedly includes 1AQ studies of large buildings, the development of building investigation protocols and the evaluation of strategies for source management, ventilation and air cleaning to determine the most cost-effective options for achieving healthful indoor air. According to a press repon, the research on source management and air cleaning may affect future versions of ASH'RAE Ventilation Standard 62-1989, which could be amended with consideration being given to these issues. See Indoor Air Review, November 1993. [8]I ETS Reference Made During EPA Press Conference On November 22, 1993, the EPA conducted a press conference at which Administrator Carol Browner introduced the Assistant Administrators for the EPA's offices. Mary Nichols, Assistant Administrator of the Office of Air and' Radlation, discussed ETS to the extent that the ageney had learned' through its "ed'uca- tional information~campaigns on environmental tobacco smoke ... of ways in which the agency can work with the private sector and with affected commu- nities to make major improvements in the amount of risk that people are being exposed to." Immediately following these remarks was a statement by Nichols that "[t]he goal here, I think, is to provide strong standards and good, well-crafted regulationss that will provide maximum flexibility for those who want to innovate, and we're looking forward to working with them." See Federal News Seruice, Novem- ber 22, 1993. [9] EPA Devel'ops 1AQ Monitoring Equipment for La.rge Buildings The EPA is developing equipment that will' be capable of monitoring IAQ within single zones of large buildings. The equipment, developed in conjunction 3 with the agency's Florida Radon Research Program, will apparently be capable of gathering data on tem, perature, pressure, relative humidity, radon, and other unspecified IAQ factors. Information will reportedly be stored as 30-minute averages for up to 20 days and can~ be retrieved by d'ownloading on a portable computer or over telephone lines. According to a press report, each unit willi be the size of a suitcase. See IndoorAir Review, November 1993. NIOSH [10] NIOSH Publishes RF1 Seekiing IAQ Research on Workplace Chemicals Transported into Homes On November 15, 1993, NIOSH published' a request for existing information regarding the contamination, of workers' homes by hazardous chemicals and sub- stances transported into homes from the workplace on, equipment, clothing or the worker's person. Among the items of information sought is "indoor air quality research, that pertains to the fate of chemicals trans- ported from a workplace into the home environment." STATE AND LOcal. GbVERNMENTS [ 11 ] Florida PTA to Seek School IAQ Eval'uation Bill Representatives of the Florida Parents and Teachers Association reportedly agreed during their annual' convention in St. Petersburg to seek legislation thart would require school buildings to undergo 1AQ evaluations and to adopt measures to improve poor IAQ. The recommendation was apparently part of aa larger platform focusing on children's health. See St. Petersburg Times, November 21, 1993. Several Florida elementary and second'ary schools have reported 1AQ problems due to molds, fungi and other things in the past year. [12]1 Privacy Legislation •Wash.ington According to a press report, groups such as the Ameri- can Civil Liberties Union, and the National Abortion Rights Action League have united in the State of Washington to lobby for the passage of privacy legisla- tion; that would prohibit employers from discriminat-

4 ing against workers who engage in lawful activities outside the workplace. The coalition has not yet been successful. Although~the legislature passed such a measure in 1992, Governor Booth Gardner (D) vetoed it. Gardner reportedly explained his decision by stating that the bill, which he dubbed smokers rights legisla- tion, "would have done little to promote healthier lifestyles." A similar measure never made it out of committee in 1993 due to a political controversy unrelated to the bill Some employers in Washington, apparently do not hire smokers, among them, Schweitzer Engineering Labora- tories, Alaska Airlines and the Ada County Sheriff's Department. According to a press report, Schweitzer claims it is saving money on its health insurance benefits by hiring only nonsmokers, but the savings are achieved due to claim rates. See Lewiston Morning Tribune, November 21, 1993. [13] ETS-Related State and Local Legislation •Local! Governments in California San Fernando. Contrary to a trend' arnong California cities of prohibiting restaurant smoking, the San Fernando City Council is considering a voluntary resolution that would allow restaurants to keep their smoking sections as long as the restaurants permit smoking,in less than~ half of the establishment and display signs informing customers. "We came up with a solution that protects both sides," a councilman was quoted as saying. "I think that it's a step to empower the public to make that choice itself, If a restaurant sees its business go down because of the smoking, it will change. It's better for people to vote with their dollar than to have a bureaucracy decide it." See LosAngelcs Times, November 18, 1993. San Juan Capistrano. On November 16, 1993, the City Council voted unanimously to consider an ordinance that would prohibit indoor smoking in restaurants. Before becoming law, the proposal requires a second reading and vote, which may occur in December. See LosAngeles Times, November 18, 1993. Shasta. Four restaurant owners reportedly have been charged with violating a four-month-old'smoking restriction ordinance because "they were seen providing their customers with ashtrays." City officials contend that such behavior violates a section of the ordinance requiring business owners to make a reasonable effort ETS/IAQ REPORT, ISSUE 61 to keep their customers from lighting up. See Sacra- mento Bee, November 25, 1993. •Local Government in Georgia The Richmond County Board of Health reportedly has proposed that indoor smoking be prohibited in restaurants throughout the county. A three-member committee was assigned to draft a proposed ordi- nance. See The Atlanta Journal and Constitution, November 20, 1993. •Local' Government in Massachusetts Brook'line Smoking will be prohibited in restaurants (including private function rooms), bars, taxis, workplaces and "all hotel rooms" under a law passed at a Brookline town meeting on November 16, 1993. The prohibitions are scheduled to be phased in over the next two years: During the meeting, some supporters of the measure relied on the EPA Risk Assessment on ETS. According to one newspaper, the law represents "the broadest smoking ban in the state." See The Boston Globe, November 18, 1993. •Nlcw Jersey On November 22; 1993, a bill was introduced in the New Jersey Senate that would limit smoking in the state's shopping malls to smoking lounges that are either "enclosed by walls" or separately ventilated (S. 2194). For malls without smoking lounges, the measure would result in a smoking ban. Mall manag- ers would have discretion to permit smoking in designated' areas of restaurants, food courts and tobacco businesses. A statement attached to the billl cites the EPA Risk Assessment on ETS and notes that, since the risk assessment was released, "shopping malls in New Jersey and around the country have been banning smoking om their premises." •Il,ocal Government in Ohio Cincinnati. The Health Department reportedly is considering a recommendation to tlie city that ir prohibit smoking in workplaces, restaurants, bars and bowling alleys. A propose&health regulation may be submitted in February 1994. A newspaper article suggests that the health department began working on tougher smoking regulations as a result of the EPA Risk Assessment on ETS. See The Plain Dealer, November 22, 1993.. N ....

DECEMBER 3, 1993 ETS-RELATEDLITDGATIONAGAINSTCIGARETTE 1v1ANUFACTURERS [14] Bluitt. Motion to Amend Complaint Filed' On November 17, 1993, in response to ('i) defendants motion to dismiss for failure to plead fraud with particu- larity and (ii) defendants' motion~for a more definite statement, plaintiffs filed a motion for leave to amend their complaint in an unspecified manner. The court has not ruled on defendants' or plaintiffi' motions. Plaintiffs in~this action allege Willie Ruth Bluitt was a nonsmoker who diedof lung cancer as a result of her exposure to environmental tobacco smoke. Defendants in the action are the six major Ui.S& cigarette manufacturers. Bluitt v. RJ Reynolds Tobacco Co., et al.' (U.S. District Court, Eastern District„Texas) (filed August 30, 1993)! [15] Broirn Depositions of Senior Executives Continue; Defendants Begin Depositions of Plaintiffs Plaintiffs deposed four representatives of The Tobacco Institute - Samuel Chilcote, Walker Merryman; Brennan Dawson and Thomas Lauria - on November 18-19, 1993. Plaintiffs also deposed Dr. James Glenn, President of the Council''for Tobacco Research,,on November 29. Additional l depositions of senior executives have been noticed for December and January. Preston Robert Tisch, co-CEO of Loews Corpora- tion, was to be deposed' on December 9, but a motion to quash the notice to d'epose him was granted on November 24. Defendants began deposing the plaintiffs on Decem- ber 1 with the deposition of Patricia Crittenden; her deposition continued on December 2. Plaintiff Valerie Gibson was to have been deposed on November 30 and December 1, but the deposition was postponed. On November 23, plaintiffs filed a motion to add R.J. Reynolds Tobacco Co: and R.J. Reynolds Tobacco International as defendants in the action. A hearing on the motion, and on the motion to dismiss filed by the Reynolds entities named in the complaints in the case, is scheduled for December 117. 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 flight attendant claims loss of consortium. The 2$ attendants purport 5 to represent a class of approximately 60,000 other attendants. Plaintiffs' class action allegations have been dismissed by the trialicourt-, plaintiffs' appeal of that dismissal is pending in the Florida Court of Appeal. Injuries alleged by the putative class representatives include lung cancer, breast cancer and unspecified respiratory ailments. Plaintiffs further allege that occupational exposure to ETS on board aircraft causes at least 22 diseases and a reasonable fear of contracting, such diseases. The defendants are purported to be the six major U.S. cigarette manufacturers (plus related entities), UST, Inc., United States Tobacco Company, Dosal Tobacco Corp., the Council for Tobacco Research, The Tobacco Institute, and three trade associations. Broin, et al., v. Philip Morris, etaZ (Circuit Court, Dade County, Florida) (filed October 31, 199'1)'. [I16] Butler: Argument Scheduled on Defendants' Motion for Summary judgment A hearing,on defendants' motion for partial summary judgment is still scheduled for December 13, 1993. Defendants seek summary judgment on all of plaintiffs' claims except design defect. Plaintiffs contend that Burl Butler, a barber from Iaurel! Mississippis 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 Rrynolds Tobacco Company, et aL' (Circuit Court, Hinds County, Mississippi) ~ (filed October 21, 1992). ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS WORKPLACE: WORKERS' COMPENSATION [I17] ,J'ohannesen v. New York City Dept. ofHousing Preservation and Development (Court of Ap- peals, New York) (revicw granted October 12, 1993) The Court of Appeals has reportedly agreed to review the decision of the Workers' Compensation Board to award benefits to a claimant who alleged that work- place exposure to ETS caused disabling asthma. The