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j+abFEB 04"93 17?29,, SHOOK HARDY & BACON TAr.,I{=NG BGZNTS N ~. 0852 ?:4 s/9 Smoking and Restaurants: A Guide for Policv4Makers Michael Siegel ovaxvjew This report, sporisared in part by aa number u.f ant:-i-sznckirig groups and local gaverrYment agericies in Cali.€ornYa, centaing a series of unsupportable claims based on uzz.reZiable assumptions. Michael aiegel estimates numbers of deaths purportad3.y assrsciated with ETS exposure for di.sza.ses that even the U.S. Surgeon Genera3l and the Brivironxnentax protection Agency have not associated with ETS in any environmerE.t. Further, he demoTzstrates alack of understanding of the indoor air env9.roninent inn restaura.nts, ignarir-,q the signif:.cant indoor air impact of cooking and cooking appliances. Throughout the report, but especially in the suggestiQrv that exposuze to El'S increases the risk of disease 1 for restaurant workers, Siegel refles an a chain 02 assumpti.ans that do not convincing3.y support h3.s ooriclusions by any reasonable stretah of scientifiC logic. The claim that ETS causes chronic disease in restaurant workers is not convlnci.ngzy supported by the scientific litera.ture. Siegel's attempt to interpret the sc3erzce to supportt h3.s position is unprofessional and distracts from serious debate of significant 3.ssues. ISst2es chapter 1. Heal _-Effects af Invaluntarv Saaking Clailn: EPA has classified ET$ as a Class A carcinogen. Exposure to ETS is associated wit_h. 3740 lung cancer deaths per year in the tJ. S. EPA has prepared a risk assessment of ETS, based almost, exc.lusively on data relating to reported ZT3 exposure in the home. Risks estimated from studies on spousall smoking are then. applied to the populatir.n at large. EPA.'s Science Advisory Board, in reviewing a similax, though lower, xaottaYity esti,mate from EPA, ezaphazi2ed thatt any such estimAte reflects a considerable range of uncertainty. These uricerta3.nties are totally ignored in the Siegel report. Claim: Exposure to ETS is associated with :.2, C1oo deaths per year in the T3. S. from cancers other than lung cancer. ti

=~b,FE!3 04~?93 17:S'©' IF.OGi{ uARDY & pACG1I Q85 2 Even reviews critical of ETS do not support Siegel'S vieu1, For exampZe, The Nati onai Rcsearch Cauncil report on E?'S (1986), cited ty Siegel, states that "[t]here is no con.sistent evidence at this ti.e of any increased risk of ET6 eXposure for cancers other than the lung.'1 The U.8 .. Surgeon General r s report that same year on ETS reached a similar conclusion. The latest draft of the BpA ET5 risk assessment states, u...there were a few studies In the literature linking ETS e~xposuxa to c~ncer~ of othar sitas; at this time, tz-hat databaee appears inadequate for any cone3usion.0 claim: ETS exposuze is aSsociatad w3.th $7,000 deaths per year in the U.S. from heart disease. Thi.s number originated with anti-smoking activist Stwitan GlantX. it is not sup porte.d by the critical rc.parts lssiaed by the Surgeon Ga2zeral and the Nata.onal Research Council in 1536, where both concluded that the d.ata 'on ETS and heart disea.se are insufficient to reach a concl,,aaxon on causality. Additionally, an EPA staff membe.r responsible for review of a draft dopument which repeated G1~kzt2's c:~a~.z~ acknowledged that it cr~t~ld be ~a figiaant of G2antz ts i.maginat3.on. " ; Claim: ETS exposure is the third leading disease. causa Of }araven.table This claim is based on the estimates of mortality produced by Siegel by including diseases that even the S~,z.rgeon ! General, the NAS and the EPA have not clafmed to be associatedd wit~h ET5 axpcsurO. Claixa: Th,;- cancer mortality from ETS alo#e is higher than the total cancer mortality from a liOt of 16 envirorlment risks comlbined. i Again, there is no convincing scientific ~asis for the Cancor mrsrtality estimate obtalned for ETS expQSure 'in the Siegel report. Moxeovcz, this cZaim does not square with t~e comments of Morton Li.ppma.rin, the cha.irnan of ithe EPA Science Adv iso±^y Board LI'rPS review panel, who has said that the risk of cancer 'ssociated with ETS is ~:proba.b7.y much less" than the risk of dr3~r~ng in traffic across Wash3.r~gton, D. C. Chapter 2. ETS Exposure in RYstaurants 1 cJ.aim: The mosrt extensi-Ve review of the literature was provided by Ster].ing. ., 2

: 9 G.FEE 0 4 ' 93 17? ~Q SHOOK HARDY & BAC4zd No, 08S2 ?.6S/g The Sterl.zng paper addressxng ETS exposii.re in r~,estaura,nts is somewhat dated. A 1992 monograph by saientists from Oe.k Ridge National Rosc~rch Laboratories probably is the xndst recent and zoot thorough, review of this literature. As outlined below, this monograph rea,:Rhes quite differen.t conGlusions from the 5iegeZ rapcrt. cYaim.: Compared to typical workplaces, i estaux'arsts have 3.5 times the concentration of carbon mc~nexy d.e. This could b6 correct, because restaurants have more significant sources of carbon monoxide than other workplaces, incl.uciing cooking fumes and traffic exhaust. The higher levels of oarbon monoxide in xestatzrants are very unlikely to be significantly affected by smckYng. As the Oak Ridge monograph states, ". .. a.t has been difficult to d,iscern the effect of CO frdxn ETS...If c1aim: Nicotine concentrations are 5 times higher in restaurants than in urorkplaces. ; iatn fact, the Oak Ridge monograph on ETS chara,cterizes restaurants and offices as "lower exposure venues." Further, at a nicotine concentration of 5.2 ug/m3, the 1,evax Sa.egel; cites, a restaurant employee would require nearly 200 consecutive 'hours of exposure to be exposed to the nicotine equ.i'v'al.ent of a single c.igaratte. C:laim: N02 and NO are 3 times higher in restaurants than in offides. Again, there are many important solxrGes vf' o"des of nitrogen in restaurants, including cooking devises. The O&k Ridge monograph states; „IndoQr air concentratio-" of NO, XQ2 or Nax can be somewhat elevated when compared to the out,door baokgrouna level, but shQw very la.tt].e dependence upo?Y the pres4~nce of ETS." ~laira: ETS 1.s 3 tixnes hYgher in a restary.ra;nt than in a typical workpi a.ce . The scientific literature does not support tfxis a7.azm. Most of the ccristittsents of indoor air xaviewed in Siegel's report may be found primariy y in restaurants bQcausa of sguroos other than smoking. 2'hese sources genexata slightly higher levels of certain compounds in restaurants, but the levels are not likely significantly affected by smoking. - 3

T` n~ -~ 1 !`?.r.**+ ^ {rr~, bT r ~ n p F'p FEB 6©4 Vr7~ 1 r 31_ S1~L~t,JK claim: Restaura.nt exposure is A-2 3 times higher than domestic ETS exposure. There is little st;ppart for this statement in the scientific literature. The Oak Rid5e ja4nog:-aph repc+rts that the mean concentration of nicotine, the only tobaccc-specific indoor air ,::;onstituent addrezaed in the report, in smokers' homes is 10.6 ug/n3 compared Wit.h 6.1 ug/m3 in y e~tauz~ants . CZaim: Restaurant employees irkhale the Benzo(a.)pyx',ene (BaP) equivalent of actively smoking 1.5 to 2 packs per day. The Oak Ri.dgee monograph suggests that ETS m4y at most contribute z:..round 1 ng/m3 of BaP to the indoor air. The study xeportad in the S iegel paper did not separa ~.e E`.CS from the xitaj or sources of EaP such as cooking- It should be r.oted that in homes with wood stoves, BaP levels have been report ed in 6xcess of 300 ng/m3. Fran the data reported in the Oak Ridc e review, a restaurant worker would be erposed at most to the B 3P equ#.tva7.ent of 0. 43 of a cigarette over an eight-hour shift. (Of course, exposure to ETS is dis fert~nt an a number of ways from smoking and but the notion of «cigarette eq~aivalent" is used fql: ~.i..ustratave purpcses. ) C3 aia: Restaurant employees are 4,.-he occezpati.orra3l group most heavily exposed to ETS . There is insufficient sciertific data to support this claim. Moreover, this eraph~esis on tobacco smoke igncsres significant exposures facea by restaurant workers, such au exposure to cooking fuates. c.hapter S: Health Effects tf LTS Esroosv.re in Restaurgn,ts C1aa.m: CaZif4rnia w&i.tresses have the higMeSt mortality of any feiaa].e ocaupationall group. Thee epidetmiolagic data used in this report to support this cla.3.mm are entirely unreliable. Si.egel cites eight studies. Results from six of the eight are uninterpretable, since tha data obtained were not adjusted for reported lung cancar risk factors sucri as age, socits-eGonomic status, previous occupatf,ori -- despite the fact that waitresses may be likely to hav'e' 1ort«*ex income, fewer meds.cal benefzts, worse housing co:nditions and greater exposure t.e indoor pollutants than members of the general public. The relevance o:ff the remaining two studies -- one of which was coriduated more

Fs~ j~~,'93„1:?~J1. SHOOK HARDY F~ Bt;CC~N ?~o, 0852 P.97/9 than 15 years ago -- is questYonahle. The conclusions based on Lhess stiad,jes are speculative, not scientific. Claim: The morbidity and mortality of restaurant workers ~ffrcmm heart disease attribxxtaLle to restaurant ETS ax,aosuxa is likely to be even more significant than lung cancer. There are no convincing scientific data to st~pport such a claiYa. Tkcere are rlo relevant data associating ETS exposure in restaurants with heart dzsease. Chapter 6: poss.z.ble_ Reau~atorv. _IMrdach._e_A C"Ilaim. Most stud.ies agree that fin tratiorl and ventilation of tobacco smoke are both ineffactirre methods of protecting . the nonsmoke.r. In fact, the standard set by the Amerioan Society of Fieatir,.g, Refrigerating and Air-Condition-ng Engineers (73SHRAE) , which includes consideration of resta=arits, provides recomurierided rates that are designed to acccamrnodate smoking. Sieg'el, uses data from Repace, puY lished in the early 1.980 's, to support this claim. many scien.tis':s are critical Qf Repaca's work ag hr%.ir,.g unrepreseritative and havinq employed inappropriate ~'iethads. Cla.i=: starZing aand Mueller reported that thce reduction in the level of contatnznati.on in a nonsmoking area Qf a cafeteria was only 5o percent compared to t'.ie smoking area. In tact, this study summarized its findings by stating that "[t]he results indicate that the provision of a designated, but not separately ventilated smoking area, can effectively s7,17Ainate or dra.matzcal3g reduce Zost coiupanents of envirorunerftal tobacco smake ,'r Moreover, other stu3iez incdicate that simple separation effectively reduces honsmoke7C eXposure to ETS. Chapter 4 - Smoki n B estaurants: ~ e~~r~~itsati he -Thi.s chapter a:;~Serts that "[i}t is clear that re4taurant employers are required, urider co=on law, to provide a sm4ke-tree environment for empl4yeesr„ and that f'urcder Federal and state law, they must protect employees who. are especially sensitive to smo%e by providing a smoke-free work envirorm$nt. " The chapter thus tries to create the impression that the case w aza regarding iz+ juxy 5

i FEB .64 ~'93 S HOOR HARDY & B:.CMI N 0. 108 51 P.9G/Y claims associatP_c3 with ETS exgosure in the workplace is well- sistt].ed. Such an i7a.pression is, hoWever, 2n.i,sleading. Most striking, perhaps, is the manner in which the chapter portrays the sigzii ficanoe of the ca.se w aw t+7 which it refers. Two aut of a number of possible examples, involving the verX first two cases dzscussc:d in the chapter, will suff.i.oe to illustrate this point. The chapter claims that the case of im v. N'gwZersev }3ell Teletshone, 145 22.,T. Super. $16, 368 A.;3d 408 super. Ct. Ch. Div. 1976), is one contributing to the "accapted" notion that non-smoking workers have a right te a smoke -Pree workplace. The chapter fails to mention, however that New aearsey De12, the employer in Sh1mp, made no effc~rt to defend itself aga~.nst the enployee's suxt. It filed no answer or affidavits in opposition to the plaintiff Shimp'^s request for an injunct.ion. So the plaira.t.igt essentially won t..ne case by ric:fault, with no test of the facts at issues. The precedentia3l value ar the case, zscGordiri.g3y, is marginal. In fact, the s~~e judge dismissed an identical complaint filed later by Shimp's attorney on behalf of another New hTcar$ey Fse11 esnplc+yee. 1n the second case, New Jersey Bell dofendedd its position. 7+iitChel]l v rlew Jcrse.y Bell Telephone Ctn., No. C- 4259--76 (N.J. Super. Ct. CYt. Div. ). Everz though S im has little precedert.tial value, there ax'e two factors of importance not ;uentios'ted by Siec;el that are worth noting in any discussion of the Shima case. ;Fi:st, the court, i_n its order granting pla.int4ff's injunction, reaogrized the a.nter8sts of both smokers and non-snokars. Second, no oth-car oas•.es have been found where sima.lar relief has been granted to a plaintiff based on the sata,e type of claim since 1976. 111ike second t+ase referred to in siegelt s disctzssion, gnith v. Weste_ nRleatrir_ oampan~r, 643 S. W. 2d 10 (Mo. App. 1982), is narrowly limited by the procedural aontesctt ot the decision. The plaintiff appeaY9d to the state intermediate appellate court follooling the dismissa.z of his comp].ai.nt by the trial court. F4r purposes of the legal issues on appeal, the appellate court was required to ass'cYne that the plaintiff's factual allegations about ETS urere true. Thus the court's opinion signified absolutely nothing about the ultiZate -zer.it:s of the complaint. For the plaintiff to prevail at trial, he would ~iave to prove by a prepondc:rance of the evidence the truth of each of his factual allegations. And in subsequent prcrceedings in this case, the trial court decided that smoke in the pla.inti.ff's workpl ace was not harznfu]l to the health of employees and that there was no organic basis for the plaintiff's alleged reactions to ETS. Properly ur,d.erstaod, therefore, Smith v. Westerri Electr is consistent - 6 --

tL-1 04 ~ y:~ 1~33 TI, with casas such as Ga_don V. j!_a,ven Sy,gtems & Res~arch, 2nc. , 462 A.2d 10 (D.C. App. 1983), in which the pla3.ntiff lost. The current 1.Aga1 l3ndscape is that courts havee beeri reluctant to intervene in disputes regarding smok:Lng in the workplace and, with a few nntiable excepti o.ns, have rinf~i.se.d to find a righ.t to work in a Smake-fr,~,e envircrrnrient. In determixiing the extent to wha.chh smoking in the workplace May_ be restricted, ceurts generay ly have recagni2ed the need to consider the interests and rights of both smaking and nan: moking emplayees. ~ ~ ~- ~ ® ~ a.~ 7 s~ ~