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Secondhand Smoke Finding Struck Down
By John Schwartz
Washington Post Staff Writer
Sunday, July 19, 1998; Page A1
A federal judge has ruled that the Environmental Protection Agency
wrongly declared secondhand tobacco smoke a
dangerous carcinogen in a landmark 1993
report, a decision that could imperil hundreds of local and regional
ordinances banning indoor smoking.
The controversial 1993 report concluded environmental tobacco smoke
is a Class A carcinogen, as hazardous as
radon and responsible for some 3,000 lung
cancer deaths each year. It was strongly attacked as "junk science"
by the tobacco industry, which sued in
federal court to force the study to be
After five years of court pleadings and deliberation, U.S. District
Court Judge Thomas Osteen, of the Middle
District of North Carolina, finally ruled
late Friday that the EPA report was biased and did not follow the
proper legal or scientific procedures for
reaching its findings.
EPA Administrator Carol M. Browner, said in a telephone interview
last night the opinion is "disturbing"
because "it's so widely accepted that secondhand
smoke causes very real problems for kids and adults.
Protecting people from the health hazards of
secondhand smoke should be a national imperative."
Browner said the administration would almost certainly appeal the
Michael York, an attorney for cigarette giant Philip Morris Cos.,
called Osteen's decision "a very important
ruling" that could force the EPA to reverse
its stand on secondhand smoke. "Now it will be up to the agency to
reexamine all of the relevant studies and make the honest
determination that the statistical
correlations are extremely weak - - certainly below that
necessary to justify their classification of [environmental
tobacco smoke] as a Class A human
The effects of secondhand smoke have long been controversial. While
all credible scientific authorities say that
cigarette smoking causes cancer, secondhand
smoke involves such a low concentration of carcinogens that a
strong cancer connection is hard to establish.
A number of studies have found secondhand smoke to raise the risk of
cancer about 20 percent - an increase many
epidemiologists say is too low to constitute
convincing proof. Other epidemiologists, however, argue that the
exposure to environmental tobacco smoke is so widespread that
even small increases translate into large
numbers of sick people.
Reports continue to emerge with findings that both support and
undercut the EPA thesis. A 1998 report by
California's environmental protection agency
found that secondhand smoke is a potent carcinogen.
In more recent months, controversy has erupted over a new study by
the International Agency for Research on
Cancer, which found no statistically
significant risk to secondhand smoke. That research has been hailed
by the tobacco industry, which accuses the
study's sponsors, the World Health
Organization, of trying to suppress the findings. WHO accused the
companies of having "completely
misrepresented" the findings and has said the study
will be released after the customary review process.
In his 93-page opinion, Osteen said the EPA had wrongly used
provisions of the 1986 Radon Gas and Indoor
Air Quality Research Act in determining that
secondhand smoke is hazardous. That act required a broad-based panel
to be convened for such findings, including
representatives of affected industries, but
the agency excluded industry voices, the judge ruled.
"EPA publicly committed to a conclusion before research had begun;
excluded industry by violating the Act's
procedural requirements; adjusted established
procedure and scientific norms to validate the Agency's public
conclusion, and aggressively utilized the Act's authority to
disseminate findings to establish a de facto
regulatory scheme intended to restrict
Plaintiffs' products and to influence public opinion," Osteen wrote.
An EPA official who asked not to be named said the agency's process
included peer review and provided the
"functional equivalent" of the requirements of
the Radon act; the official also said that the judge did not
have standing to rule on the EPA report
because it was not a formal rule-making or final
agency action. Both of those issues were argued before the
judge, and would be part of any appeal, the
The blow to the EPA report could give new energy to opponents of
indoor smoking bans, since "the release of
the original risk assessment gave an enormous
boost to efforts to restrict smoking at the state and local
levels," said Matthew L. Myers, a spokesman for the National
Center for Tobacco-Free Kids.
In addition, a number of lawsuits filed against tobacco companies
over claims of injury from secondhand smoke
still lie in the balance. The most famous of
those cases, a class-action suit brought by airline flight
attendants, was settled recently for $300 million. But under
the terms of the settlement, individual
flight attendants still have to sue the industry
and prove that secondhand smoke harmed them - which could be
more difficult without the support of the
He said, however, that the ruling of one judge in North Carolina
could not blunt the national trend -
especially given that so many reports have found
secondhand smoke dangerous. "While the move to restrict
smoking indoors could be temporarily set back
by this decision," Myers said, "it won't be
Suddenly, there is an opportunity for science, reason and truth
to prevail in New York against the forces
that will never be satisfied until government
becomes the last ash tray against smoking in public and private
On Feb. 23, the City Council's Health Committee will conduct what it
calls an "analysis of New York City's
This era began in 1995, when Council Speaker Peter Vallone and Mayor
Giuliani banned smoking in all but bar areas of restaurants.
When they did this, they were following the lead of the federal
Environmental Protection Agency, which in 1993 decreed that
secondhand smoke killed 3,000 people a year
in America. I went after Peter and Rudy pretty
good - and then some - because it was clear to me that the
EPA was nothing but a bunch of ideological
hustlers out to destroy smoking without a
scintilla of proof that passive smoke caused cancer or heart disease
Looking back on it, maybe I was too rough on them. Not because I was
wrong, only that it was too much to expect
politicians to go against the most
extraordinary attack of political correctness since Prohibition.
The attack began before the EPA report. This whole madness started
the day Hillary Rodham Clinton entered the
White House and decreed that smoking was out.
The Republicans who demanded the impeachment of President Clinton
for using the White House for yakahoola never
asked why Hillary had the right to consider
it her house as a nonsmoking area.
All that was then. But as they say, this is now. And now, the
the chance to consider the evidence that's surfaced since it bought
the story that passive smoking kills.
And all the evidence proves that secondary smoke is a sick joke,
there's nothing to it.
The EPA study, upon which everything was based, was destroyed two
years ago by Federal Judge William Osteen, a
jurist whose record showed him to be an enemy
of the tobacco lobby. But on this, Osteen held that the EPA was
guilty of deliberate fraud, that it fixed its
numbers to achieve a result it had determined
and announced in advance.
Around the same time, the World Health Organization, the bastion of
the anti-smoking movement, released a report
in Vienna, based on a study that covered 21
countries over 10 years, costing millions of dollars. The result:
No link found between secondary smoke and cancer or heart
disease or anything.
This report was censored by the American media, except for the Daily
News, which published my column, and The Wall
Street Journal. Otherwise, nothing. A series
of similar scientific studies has followed, all to the effect that
passive smoke has no more impact than two cigarettes a week
would have on a smoker.
But the City Council did not have this evidence in 1995, nor did
Giuliani. And, of course, neither did Hillary
Clinton, who had to believe her own
Environmental Protection Agency, particularly after she banned
smoking in the White House.
Now that all of them know the facts, I would like to believe that
New York will roll back its rules and allow
smokers freedom everywhere, including Yankee
and Shea stadiums and the race tracks. Plus city rooms in
But of course, I'll settle for the status quo, on the hope that
reason will survive passion, even against
Damon Runyon's truth that life is 6-5 against.
Original Publication Date: 02/15/2000