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Statement of The Tobacco Znstitute 1875 I Street, N.W. Washington, D.C. 20006 Presented by Robert J. Lewis Senior Vice ?resident For Federal Relations on S. 1440 before the U.S. Senate Subcommittee on~ Civil Service, Post Office and General Services of the Committee on Governmental Affairs October 2, 1985

Statement of The Tobacco Institute on S. 1440 Before the Subcommittee on Civil Service, Post Office and General Services of the U.S. Senate Committee on Governmental Affairs Mr. Chairman, my name is Robert J. Lewis. I am Senior Vice President for Federal Relations at The Tobacco Institute, a trade association of the major United States manufacturers of cigarettes. I appreciate this opportunity to offer The Institute's comments on S. 1440. As you know, Mr. Chairman, we are opposed to this proposal to impose smoking restrictions in all U.S. Government buildings throughout the world. We believe that such regulation is unwise, unnecessary, unfair and, most likely, unenforceable. We believe that most Americans -- and this certainly includes Federal workers -- want less Government regulation, not more. Unless a serious problem has been clearly demonstrated to exist, and unless it is clear that the problem can be resolved only through Government intrusion, we believe that Government should stay its hand and not create one more program 'to strain our already badly unbalanced budget. S. 1440 is simple on its face, but we all know how a few words in a Federal statute can spawn hundreds of pages in the Federal Register, tQ say nothing of the inevitable court decisions, followed by more Government regulations. We have several compelling reasons for our opposition. They can be summarized briefly. Page 1

First, legislation in this area is-simply unnecessary. Federal departments and agencies that wish to restrict smoking have proceeded to do so without seeking specific legislative authority. Furthermore, we detect no evidence of any great demand for legislation which would restrict smoking in the workplace. No substantial'segment of the Federal workforce -- certainly no Federal employee labor organization that we are aware of -- is asking for enactment of legislation like S. 1440. Second, the major premises or "findings" of the bill are not facts but rather assertions that have been rebutted by eminent scientists, economists and legal scholars. Tobacco smoke in the indoor environment has not been shown to be a significant health hazard. It has not been demonstrated t hat smoking results in increased costs to employers. Sim_larly, this legislation is not requiredby court decisions. Third, S. 1440 would burden the Government with unmanageable and unenforceable regulations and the American taxpayer with excessive and unnecessary costs. Finally, the legislation woul6tend to polarize Federal employees, and thus lower morale and productivity. In short, Mr. Chairman, and with all due respect, we believe that S. 1440 is a solution in search of a problem, and a flawed n solution at that. Let me be more specific: In late 1984, the Human Resoum-ces Policy Corporation surveyed 1,100 of the nation's largest and fastest-growingg firms. It looked at workplace smoking policies in the private sector. Here's what it found: Page 2

o About two-thirds of the companies (63.8 per cent) do not have a formal smoking policy, but rather encourage their employees to use common sense and courtesy to solve problems among themselves. o Of these firms, about a third (35 per cent) have considered and rejected smoking policies, most often because they believed such policies would not be accepted by their employees or would cause unnecessary conflict. o Of the firms in the private sector that have restricted smoking, most did so with respect to em-ployees who deal with hazardous substances, sensitive machinery andfood -- or when required to do so by local law or ordiT znce. Results of this survey of company executives challenge the often-touted notion that there is a gre at public demand for restrictive workplace smoking policies. It is difficult to understand the claimed need for S. 1440 in light of the fact that the General Services Administration already has issued regulations restricting smoking in all GSA-controlled buildings and facilities. Most Federal departments and agencies already have regulations restricting workplace smoking -- or have adopted a structure to deal with smoking -- in buildings under their control. In fact, several departments and agencies have stricter smoking restrictions than those required by GSA. We believe, Mr. Chairman, that many of these restrictions already discriminate unfairly against Federal O employees who smoke. In addition, other Federal employees are ~ coveredby collective bargaining agreements that restrict ~ ~ smoking. ~ . ~ Page 3 ~1

Would all these agreements and regulations which are now in place be abrogated by S. 1440:? We do not know the answer to this question -- or the other questions that typically arise when legislation, such as S. 1440, atte-pts to make policy where policy already exists. Mr. Chairman, let me turn to the three "findings" on which the need for this bill is premised. The first charge is that smoking in the workplace is a significant health hazard. During the past two years, this charge has been contradicted by the conclusions of three major scientific conferences, involving over fifty eminent scien tists. The most recent conference was held in 1984 in Vienna, Austria, in cooperation with the World Health Organization andthe International Green Cross. The organizers of that con =erence were Ernst Wynder of the American Health Foundation and H. Valentin of the Bavarian Academy for Occupational and Social Medicine. Here is how they summed up the conclusion of that conference: "Should lawmakers wish to take legislative measures with regard to passive smoking, they will, for the present, not be able to base their efforts on a demonstrated health hazard from passive smoking." _R~e ~ort of a S osium on Passive Smoking From a MFdica Point or-'View, ienna, Austria~Tfo Tate o . $; Ff~-T5-,I984. Other conference or workshops on the subject of environmental tobacco smoke at the National Institutes of Health and at the University of Geneva in 1983 came to conclusions consistent with those made in Vienna. For example, the report of the conference found that -- Page 4

"[a] review of the data from the studies which have been carried out or are in progress which address the effects of [environmental tobacco smoke]~ on the respiratory system suggest that the effect varies from negligible to quite sma11." Re ort of Worksho, on Res irato ects of nvo untary Smoke Exposure, Na- t onal-Tnstitutes o'ealt , Washington, D.C., ap - , .- The report of the University of Geneva conference, which focused on environmental tobacco smoke and lung cancer, concluded that '`[a]n overall evaluation based upon available scientific data leads to the conclusion that an increased risk [of lung cancer] for nonsmokers from ETS exposure has not been established." ETS -- Report from a Workshop on Effects and ~osure evelsnivers ty o`f~eneva, witzerland, ~~arc ~ 15-T`/ , I-g83. A second, and equally faulty, p_emise of S. 1440 is that employees who smoke cost more to employers, including the Federal government, than nonsmoking employees. That proposed finding presumably is based on the work of William Weis,_a Seattle University accounting professor who has spearheaded the campaign to ban smoking and smokers from the workplace. But as Professor Weis himself acknowledged in the May 1981 issue of Personnel Administrator, "skeptics might argue that these numbers are as soft as the underside of a porcupine, and that may be true." Marvin Rristein, an American Health Foundation economist who has appeared before this Committee to urge workplace smoking restrictions, conceded in the March 1983 issue of Preventive Medicine that "we lack meaningful 'case-controlled' company comparisons of experience with smoking employees vs. nonsmoking. Page 5

employees vs. ex-smokers and the impact on -company costs." To achieve a scientific basis for such cost claims, Mr. Kristein admitted, "would'require studies and data we do not now -- and most likely will never -- possess." A statement that we would like to submit for the record by Professor Lewis Solmon, an economist currently serving as dean of UCLA's Graduate School of Education and president of the Human Resources Policy Corporation, focuses on the issue of whether employers incur costs by permittin g smoking in the workplace. As Professor Solmon points out, the claim that workplace smoking results in higher medical costs is based in part on studies that smokers have a higher accident rate than nonsmokers. Professor Solmon goes on to note, however, that since smokers.are found disporportionately among blue-coll ar workers, they are more likely than nonsmokers to be engaged in strenuous physical activity -- and therefore are more likely to be exposed to physical harm through accidents. Moreover, a recent study of almost 2000 union ..representatives and managers in business, industry and Government contradicts the claim that smokers are less productive and V therefore are more costly to their employers than nonsmokers. Two-thirds of the survey respondents stated that employee smoking ..has either a positive effect or no effect on worker productivity. The survey was conducted by Response Analysis Corporation of Princeton, New Jersey. Another study, released in 1984 by University of Minnesota researchers, reported similar results, finding that people who smoke tendto be more productive Page 6

than those who do not. We would like to submit copies of the Response Analysis Corporation and University of Minnesota studies for the record. As to the third "finding" of S. 1440~ which asserts that the bill is required by recent court decisions, the courts consistently have struck down arguments that workplace smoking interferes with the constitutional rights of nonsmokers. In cases in which employees have tried to use the common law to impose smoking restrictions, the courts also generally have sided with the employer, as occurred most recently in the 1985 decision in Paul Smith v. Western Elec. Co., 643 S.W. 2d 10: (Mo. App. 1982), Smith v. AT&T, Cause No. 446,121 (Mo. Cir. . Ct., April Indeed, withithe exception of a few cases involving handicapped persons, the courts generally have held that 23, employers -- including the federal government -- have no legal obligation to accommodate the demands of individual employees to ban or restrict workplace smoking. Again, Mr. Chairman, I ask your permission to submit for the record a legal memorandum preparedby our legal counsel, -Covington & Burling. It analyzes the pertinent court decisions dealing with workplace smoking. Mr. Chairman, let me turn to the requirements of S. 1440. This bill woulddirect the Administrator of the General Services Administration to implement regulations designating smoking and nonsmoking.areas "in any building under the jurisdiction and control of a: department or agency cf the United States." But some serious questions arise about how this will be accomplished. Page 7

• How is this new federal smoking law to' balance the various needs in departments as different as Defense and Health and Human Services? Are the considerations for restrictions the same in our embassies abroad as in our V.A. hospitals? Is the GSA Administrator going to dictate where foreign dignitaries may or may not smoke when visiting the State Department or the White House? What makes the GSA Administrator the_right person, if there is any "right" person, to resolve countervailing needs in such widely varying work environments? If it is intended that this authority be delegated, what is the needifor legislation? Mr. Chairman, why not let each department and agency continue to handle the issue on its own without creating a new antismoking bureaucracy? Although S. 1440 does not specifically authorize appropriations, the question of cost to the Government is ''important. For example, one seemingly innocent provision of S. 1440 wouldrequire the conspicuous display of signs in each . portion of each building where smoking is allowed or prohibited. .T.hese signs, according to the bill are to be at least "18 inches 'wide and 6 inches Ijigh, with lettering at least 1.25 inches N ~ high." These fourteen words could portend the beginning of a ~ bureaucrat's dream and a taxpayer's nightmare. Consider the ~ Defense Department alone, with hundreds of thousands of buildings '~ ~ Page 8

in the United States, not counting those overseas. It is not difficult to imagine all of those buildings, starting with the Pentagon itself, requiring millions of signs at costs that can only be imagined. Mr. Chairman, if the American people have delivered a message to their government in the past two presidential elections it is that Americans are disenchanted with the high cost. and intrusiveness of government programs. They want big government off their back, out of their pocketbook, and away fr= their.personal behavior. _ In that context, S. 1440 is a step in the wrong direction. However well-intended~, it stands for overspending and overregulation, at a time when the public wants less of each. We urge you and this subcommittee to consider whether the personal relationships between workers who smoke and their fellow workers who do not should be regulated by Government fiat or by the rules of common sense, common courtesy, good.will and mutual respect. That is all we ask., Thank you for your time and your consideration. Page 9