Tobacco Documents Online

r , SEP,i26 '90 15:0'E FROM CONGRESSMAN BLILEY PFiGE. 00S F;k: 409L, *MW rpavl b. 1"'i & CbMMENTS OF THt WASHINGTpN LEGAL FOUNDATION cortcernirig the ENVIRaNMEl+tTAL PROTEGTTUN AGENCY IS DRAFT "GtJII,3E TO WORKPLACE SMOKING POLICIES" I. INTRODUCTION The Washington Lega1 Foundation (Wi,F) iS subznitting thsss commsnts to e.xpress its deep reservations regardinq numerous aspects of thp- EPAts june 25, 1~90 draft report entitled: "Environmental mobacco Smoke: A Ouide to Workplace Sm¢king Po1,icies," (The draft report hereinafter is referred to as; the rsPo3icX Guide, E+) ~rents surroundi.ng preparatiQn and release of th~? Pa3l,oy Guide giva tvery indication that EPA had, arrived at its' concluslons long before work on the Policy Guide had begun. The record suggests an unsesm3y desire on the part of EPA to r4sh to judgment on the very impOxtant issues raised by the polioy Guide, Tha PaliCy Guide badly distorts the state of the law with respl~!ot to workplace smoking. moreover, oven. triough EPA iacks legislative * authority to regulate workplace smoking, the Policy Guide appears to be a thinly veiled attempt to exerciza such requlatnry authority. zn light of the serious def#.ciencieS in the Policy Guide, WzV recommends that, at a minitnxam, further work on the Po1icy Ouide be plaoed on hold untii after EFA' s Risk Assessment on environmental tobacco smako ("ETS'1) has undergone review by the EPA Scientifio Advisory board (:'SAB"), IT. TXTERESTS OF THE WASI3INGTQ.N LEGAL FOUNDATION The Washington Leg43 Foundation is a non-profit public

, ,. SEP ,26 ' 90 1 6: 1 0 FROM CONGRESSMAN BL I LE'Y PAGE.004 2 intOreat 1aW and po]...ioy aantex based in Washington, b. C, with Innr+a than 125,000 nembars nationwide. While WLF engagca in litigation and the administrative process in a variety ot areaa, WLF devotes a substaritial amount of its rssources to promoting thee free orctexpxise system and the poli,ticin1 and economic freedom of individualg and btzsinegses. Accordingly, WLF is wary of government eftorts -- such as EpA' s Policy (~uide -- that rignifiCantly .intrUde upon those fraedoras. WLE believes that government agenoies, before undertaking actiOns that significantly affeot the manner in whioh individua3.s may carry out their business a-ffai„rs, at a minimum shou3d ensure that they act only after carefully weiqhing all relevant data. WLr believes that EPAs s actions in praparing and rsleaainq ifiZ Vo1icy Gez.ide db not meet that standard. .111, pREatSDGMENT QF 3'HE YS6UE5 . Numerous epidemiologica3 studies have been undertaken in the past Awpp-decadeA rejarding the health effects of ETS (generally defined as a combination of the ;'sideatream" smoke fron the btarning end of a cigarette, pipe, or oigar, and exhaled mainstream smoke ~ Qs ,d i 3 L-k.Gt 4GryQ c~. C w't , cd }1 ~' +~, ad c~',e.t. 1+~+~ d ~t 7ys+b5Pt~.t~. from aamc~~;erl. These studies have ~,rri#red at wi.de3y oonflioting ~ ac,nclusicn8 regaxding the health efrect,s of EMl 0 N Congress was sufficiently concerned about the possible effeats M 0-~ -t~r~ C~ ~!~ ft}; r::~=-~~a ir smpurit ies in ~i indoor environment that in (: O O - - ~W 1 WLF does not possess sufficient scientific expertize to O $valuata the , relativo merits of t~ie various epidemiological studies. WLF does note, however, that 19 of 24 studies of whioh it is aware found no betweer. yms and lung cancgr. c54w.'kS4iGaj14t ~tcy n1 Rc. ~ku.'b

J' SEP L ' So 16: 10 FROM CONGRES3P9RN BL I LE'Y PaGE. b05 3 1986 it dirQGted BpA "to establish a research program to gatrier inftirmation on all aspects of indonr air quality»'' saa. 403 (a) (3„) of the Superfund Amsndments and ReauthQrization Act of 1966e Pub. L. 99-499, Thus wag born EPA's lndoor Air Div.ision (th$ ''IADT;). A1.though 1AD was directed to lOok at all aspacts of indoor air Platv+!~ palluti,an (a term that4 enccainpasges far more than ET~;) , to d4te it has ~oCUSed ito research efforts almost e=,Iusively on ETS. 2 zAD is canducting an zcssessment of the heal.t.h effects of ETS and released a araft repart, entitled "Health EffeOts. 01 Passivs Smokings Assessment of Lung Cancer in Adul ws and Respiratory Disorders in Ch3],dren,'+ on June 25, 1990, ((This draft report ,is htroinafter reexred to as the I'Risk Assessment. 11) Tho Risk Aszessmerzt conoluded that approximately 2800 lung canoer daaths per year among nonsmokers in the United States are attributable to ETS. Tht Risk A89essmant Can only be depuribed as being 3n a very preYiminaary form, since it has not yet been submitted for SAS peer raviow; Ona would suppoas that before recommending action by the nation's employers in dealircg. with ETS, zAD would have awaitedd receipt o.f some soiantificall.y defensible findings regarding the ~ ~ 2 WLP understands that EPA has first-haftd knowledge ot indoor ~ O tsir, pollutioh problems totally unrelated to ETS. A December 12, 1989 article in the Washington Post 3.ndioats.d that numerous 4 emplqyoes at EPA*& Southwegt Washington office complex suffer from ~ "sick buiJ.ding syndrorne'i brought on by air contaminants in the building -- mostly chemicais reZeased by carpets and orfioe furniture and bacteria found grwwing in air conditioning systems. See. The WashingtQn post, 'rFor EPA, t{Iar on goi1ution Strikes Hone, n December 12, 3~89.

6EP26 '6© 16:11 FROM CONGRESSMAN BLILEY 4 PRCE. 006 health ei'fects of ETS. However, not only did 1AD not await odmpletion of its kisk Assessiaent bofore gufdslines, it did not even await the "t rt of A$stssmant, Rather, 1AD bogan to contract for ox's&ting policy work on its Risk and asscsmble its FoLicy Quide even before embarkir;gg on its Risx Asses$ment pro~out, Ry proceed;ng in this highly unorchodox mannar, iAD has le,ft .itssszf iwide Opan to Oharg$s that it h.as prajudgsd issues relating to the hVaSth affqcts of rTD and how Omployers should deal with suoh effects. dne is laft with tha unmiatakeab3e impressi.on that TAD is led by anti-smok,ing crus'ade'rs who cannot be expected to ovaZuate fairly t.hs costs Of their poZioy xGcOmmendations to the businesr,, commuriity, That imprsssion is only strengthened by IADlg chdice of personnel for Preparation. of the' Policy Guide. WLF understands that aames Ropace, we11 known as an apti-smok.irsg advocat.e, was , rosponsible for BPA's dooision to go ahead with preparation of the PoIiCy Guide. 1AD then engaged Robert Rosner, head of the SMOking poli.oy Institute_pf Seattla, Washington, to draft the Policy Guide. The 5ms~king Po1iCy Institute is in the busizza&a of formulating warkp3aoe smoking restxiotion polioies, it derives substaritiai inoome each year from omployers for whom it formulates such policies. It can come as no surprise, therefore, that Mr. Rosner would prepare a draft re:~port that r~commends drastic restrictiions on workplace smokingr were smployers to abide by those reoomendations, the Smok3.ng ?olicy Institute could expect to garner a substantia3, number of new clients. N O N ~ ~ Cfl 4 O N

s SEP 26 '90 16: 1 1 FROM rONGRESSMRN BLILEY PRGE. 007- ~ Morsover, ZAD apiaears to have formulated the Policy rjuide's ma3zir racommendzstion -- that employsxs e~ther ban workplac0 smokirig altogsther or establish separately vantf.iated, segregated smokin (~©r' ,EI'S rtsic a.raaa -- iong bsfore the Policy Guida/~was prepared, That racommende;tion was included in M's tTS fart sheet issuesi in the summer Of 1989. The EPA has a well-deserved reputation fox basing its policy decisions on scientifically varified evidenoe. xhat reputation undoubtadly will be marrsd if, despite strong evidenos that 2AD pre~udged the f,esues raissd by the Policy Guide, the Policy Guide is adoptad.in its present form. XV. R=H TO OTJDGMENT IAp has compoundad its appar+erct prajudgment of icsauea raised by the Pts3icy Guide with 4n Unstem3.y haste to got the Policy Guida » out the door. The Risk Aasessment.wa.s not released for ccamment 3,n draft form until aune 23, 1990, and members have not even been chosen yet for the SAO that will review the accuracy of the Risk Assossment' s medioal conclusions. ftriethel$ss, the Policy Guide - - which ralies heavily on the Risk Asses=ent fa medical IV conclusions ~ -- was also released in draft form on June 2a, 1990. N Given the Policy Guid,e 's heavy re3.3at%ce on the conclusions of the ~ Risk Assassrnsnt, oommon uensa dictates that the Policy Guide should O ~ ~ The first four chapters of the Policy Guide are derived ~ mlmost exclusively from the findings 0f the Ris3: AssessZent. subsequent chapters explicitly base their policy recorimendatf.ons On the Risk Asssss=en.t f indings .

SEP 26 '90 16:12 FROM CONGRE55MRN BLILEY PRGE.B0S 5 not have been releagsd -. even in draft form --- until after the Ftfsk..Assessment had been subjected to peer review. cpnt.I"4F v'f- Q -p -tY1 -c- Moxeovar, IAn re36ased t,hanRiek Assessmenfi and Poiiay Guide to the press well in advance of their off~ciaI ?une 25, 1990 release for public comrnent. That actiran indicates iAD's dasire.for Wid0-spread public awarens$x and acceptance of the cQnolusions of the two documents, despits 1AI?' 9 diso3aimer that the dvoumettts are avJv.:ra -no+ -z~,b c in "draft" foryw zADf s news Ysak appears to have had the desired effsctt antiMamoking organizations have been claim.ing, and tha ntWs rcedia have betn repQrtitzg, that the draft conclusions af the T13n.. two doCu1Cia3'ita are as't.t3.blIsti$d faL:tE3a ~5ir»1 f~Y ~~,atrns h^•.~bf4~ *~1~1~1"`3~'"dnrx~ . ds+Cl ti~a 1 t i ~ ~ st+3 .~_- 1s9u4nce of the Polioy Guide in final form is partiouZarly pretature when one considers that 1AD has chatacterized the Po3ioy Guide a.s a simpZi.f3.ed version of a third ETs-related project being undertako.n by 1AD; a COmpenOiutiz df ZT8 techn.ical literature. V i6,a.r., mha oompendium hasA _ '; it is still in ASWA,ciraft for.m and Co r,,e ~ t. Following its ~ re3sass, the ~~~m will also be sub~ect to SAS peer review. It -is difficult to cQmprehend how zAU believas that it can release the Policy Guide in final fcrm when the dooument upon which the Foiiay Guide is based is so far from compistion.Or &M- #.-+ntTV4.. , , cr-L 3 The rushed nature of the polioy Guide's release is apparent from the many azucial issues natt addxe$sed by the Policy Guide. For example, the Po2 icy Guide recommends that employers either ban workp3mce smoking altogether or establish separately vanti2atad,

SEP 26 °9r 16: 1,9 FROt1 C4NGRESS11Ak•1 BLILEY PAGE.©09 Footnote Insert, paqe 6: */ It is also worth noting that the draft compendium includes a chapter by Mr. Repace himself. In addition, a compendium chapter on heart disease and ETS was written by Stanton Glantz, the founder of Americans for non-Smokers' Rights. Dr. Glantz's extensive antismoking activities have been widely reported in the press. Further, the public docket of conunents .fi3.ed on the Policy Guide contains a submission by Dr. Glantz in which he indicates that his heart disease chapter -- which was funded by EPA and has not been reviewed by the SAB -- has been accepted for publication by the medical journal Cireulation.

SEP 26 '96 16:13 FROM CONGRESSMAN BLILEY PAGE.910 7 segraqated smoking areas. Yet, nQwhere in the Policy Guide does ZAD' disCua'othe ecOnomic pz'&cticality of the establishment of sepsrata ventilation systems within axi.nting bui3.dinqs. From its 3,imited research in the area, WLF urlderstands that the sstablishment of aeperute ventilation systems is not an economiCally viable option for most ampZoyers. The net effect flf the Policy Guide, therefore, is a reCoznnmendation that employers ban all workplaoe smoking. Yet, the Policy Guide dQes not address the eaa»oxio oonsequorioes of such a ban, othor than to state conciuzor3.ty that a rian . on workplace srokinc~ * is the {f i&ast expensivsit vptiono Policy Guide et 22. Given that an outright ban on workplace smoking is diAmetricalZy opposed to the approaCh currOntly taksn by most empioyera, 4one wou3.d expect the Policy Guide to contain some sort of analysis of the economic ccrnsequences af an outright ban. One could raaso.n$bly expeet, for example, that a smoker will feel quite put out. by a directive from 'hie emp3oyer that he can no longer smoke anywhere in the workpZece. Accordxngly, an employer impos3ng a smoking ban can reasonably expect as a result of tht ban to lose 4 Currently, mc+st ampioyero attempt to satis,fy the desires of all membors of their workforces by attempting, to the extent posesible, to accc+ramodate both the desire of smokers to smoke and the des#.re of many ricnemokers to be separated from smokers. As the Policy Gu3.da recognizes, that is the policy generally followed by the federal government in its role as employer. Pdlicy Guide at 27.

SEP` 26 190 1 E: i'3 FROM CONGRE55PlAN BL I LEY PHGE.0 11 8 at leagt 0oma valuab3,e empi.oyaes.s .2AD should &ddte5s that issu$ bsforQ issuing a poiioy guide that, in effe!ct., recammends a ban on all workplace $moking. 14 r1 In s', relOase raf the pa3icy Guide in final form anytime soon wauld be extremely premature. At thO very 2east, SAD ought to susp,and further work on the Po4dy Guids until after the Rf sk AsssszmanV;~~ und*rgone sA9 reviaw. V. DIST4RIIoN aP' EXIST.ING LAW Chaptet 6 of the Polic;y c#uide includ.us a discus$3on of existing rtreg.u.iatary cot#tro2s" for dsaling With ETS &Vp"N"e in the workplace, including a discussion of ~udici.ai decisions dealing with that issu9. wLF f irtds this portion of the Policy Gu3de highly objectionable. chaptOr 6 appears to be desi.qned to acaomp-lish two oblactiv0s: (1) to s0eca employers; into imposing workplace smoking bans, in order to avoid lawsuits by nonemQking employeesi and (2) to enoourage suits by nonsmoking Qrnplcytes agaitat their employers. That gt-cQnd objeotive is partioularly out of place in a federal ,agency'r policy zaanual. Any doCip#.on to forco Qmployers to impose workplace smoking bans ought to come from those bodies ampowered to maka such decisians. Gongress and tha Occupational Safety and Health Administration (OSRA). In the absenCa of such a directive 5 qilren that many smokers lack the desire to quit smoking, it is untealistic to addreag the issue of what to do with smokers fol3.owing a workplace smoking ban by proposing (as dtos the Policy Guido) that smokors bp aftered counseling to help them quit saao3Cirig.

SEP' 26 '90 1S: 14 FROM CONGRESSIr1RPJ BLILEY PAGE.II12 9 from one of thoee two bodies, IA13 ought txat to be soZioiting .litigantu to perfvrm an end run around OSHA and Congreas by asking the courts to Iogislata in this area. our courts are alr+9ady overcrowded enough and our socisty is already euPfiaiently over- litigiau$ without 2AD encouraging mdditional lawsuits. M6xeQvsr, the Policy Guide's disousr~ion of existing legal preCSdent is'badly c3istbrted, The Policy Guide misrepresehts tha holding tsy virtually every case decieion cited in Chapter 6, Acoo.rdingly, WLF recommends that Cliapter 6 be omittad entirely from tha firsal version af the Po3.~cy Gu3.de, chapter 6 begins by ausarting that all citizens have a right under the common law to a'lsa£e and healthy envirbnmentt s+ po3.iay Guide at 26, That assertion i.s a complsts misstatemsnt of the rule; the oommon law merely entitles citizens to an ertvfronment that is ttreasorsa:bly safe. 1' ,~e fgtq. ,Smith v. Westrrn g;eotric ~ S~g. ,643 S.W. 2d 10, 13. (Mo. App. 1982). The distinction between a"s8feu and at "reasonably 'safell environment is cruc3.a1; the former implies that an individual has an absolute right to insis't that others xetrairt from +axposing the individual to any potentially dangerous substances, while the latter recognizur that in order to permit eoci,+ety to function, all individuals have to make some gcooSttmodat3.ons to the needs and desires of others. Despite the Polivy Gu.idefs repeated suggestioh that courts are liksly to be receptive to lawsuits brought by employees demanding smoke-free working environments, the Pnlicy Gtzida cites only ran$ cQurt decision in which auctz 4 lawsuit ?~$sed on c0mmon law grounds