Opposition To Smoking Bans Heats Up IV

By Norman E. Kjono, February 22, 2007

Ban Opposition Escalates

Murray Street Darts Patrons Defy Colorado Smoking Ban

The smoke-in at many Colorado bars continues. I spoke with the owner of Murray Street Darts in Colorado Springs today, Bruce Hicks. He informs me that the protest is building. They are up to 12 participating bars now, including 1 in Denver and 1 in Golden, Colorado. Readers can track the status of this ongoing protest at www.stopthebans.com. Mr. Hicks said something to me that I feel is well worth sharing:


"Bar owners are in this for the long haul. Every other way to oppose the bans has been exhausted. We're backed into a corner, we have no other choice."


Think about that. Taxpaying hospitality businesses in Colorado are threatened with having to close their doors because they chose to allow patrons to lawfully consume a legal tobacco product while they enjoy a drink. The apparent message seems to be that nonsmoker's choice of a "Smoke Free" environment everywhere in the state wherever they choose to go is vastly more important than Mr. Hick's and other bar owners right to stay in business.


The difference between Mr. Hicks and patrons, of course, is that he does not have a choice about where to take his business. He has invested his capital and his long hours in building a trade at Murray Street Darts. His cash flow provides salaries for employees, contributions to workman's compensation and unemployment funds, and business taxes to the state. In contrast, those who demand unfettered rights to mandate how Mr. Hick's business should be operated, on the off-chance that someday one of them may deign to enter the door, have not invested a dime of capital or a minute of work in Murray Street Darts. They contribute nothing to workman's compensation or unemployment funds for employees of that establishment. They also have no responsibility for the business taxes that Mr. Hicks pays to the state. Yet tobacco control would have one believe that those who contribute nothing have a right to demand everything, while those who do everything to create a viable business have no right to say how it should be run. It's a tragic inversion of the social contract.


Allen Campbell, Senior Vice President of the Coalition for Equal Rights in Colorado also provided some worthwhile information. He provided the following report about the first day of the smoke-in yesterday by E-Mail: 

It went well. A pod of cops came but they never got out of their cars. They talked among each other and, I suppose , that they did not want to take over the headache they would get from writing 45 or 50 tickets so, the got back in their cars and went away. 10 bars signed up for the protest and our bar went smoking tonight with them. We plan on getting some 130 bars, pubs and taverns to sign on to this in the next week. I'll tell you Norm, this was a grassroots thing organized by owners who are flat sick and tired of the disregard the legislators give to our situation. Damn the tickets full smoke ahead. . . . 40 VFW's have already went smoking and I believe if this gets good spreading around, the legislature is in for a very rough ride."   

As of this writing no citations have been issued to patrons or bars, despite reports of visits by police officers to several locations.  

For audio access to the two hour Chick Baker show on February 20, 2007 where I discussed these issues with the host go to Opposition to Smoking Bans Heats Up III. That commentary also provides links to the first two reports in this series.  

We will be following this story further and keep readers advised. There will also be reports about what's occurring in other states.  

More States Reject Total Bans

From the Hutchison News in Kansas, February 22, 2007, "Statewide Smoking Ban Nixed This Year," by Harris News Service:

"A statewide ban on smoking in most public places won't be moving through the Legislature this year. Senate Majority Leader Derek Schmidt, R-Independence, said Friday that he wouldn't hold a vote on Senate Bill 37, which passed out of the Senate Judiciary Committee Feb. 1 on a 6-4 vote. 'I have consulted with interested parties on different sides of the debate surrounding this bill and have concluded that there is little likelihood that floor debate on this measure this year will contribute to the enactment of good public policy,' Schmidt wrote in a letter explaining his decision. No similar measure is traveling through the House either."


From TwinCities.com, February 19, 2007, "Smoke 'em if you got 'em, Senate committee cays, as bars with ventilation systems get break," by Rachel E. Stassen-Berger:

"Smokers, light your cigarettes. A Senate committee today changed the statewide smoking ban to allow smoking in bars, if the bar has a ventilation system. The ventilation requirement would be phased in, depending on how much alcohol the bar sells as a percentage of all sales. By June 2009, bars earning up to 40 percent of sales from alcohol must have a system in place. . . . The measure would also forbid local governments from enacting any smoking bans that go further than the state law. That would mean that if the ban were enacted as the Senate Committee on Business, Industry and Jobs left it today, St. Paul, Minneapolis and other local governments would have to allow smoking in bars with ventilation systems. Currently, St. Paul bans smoking in bars but the rest of Ramsey County allows smoking in establishments with more than 50 percent of their sales from alcohol. The measure would ban smoking in restaurants."


Dare we say or hope that there are politicians who understand important issues from a perspective other than that of NicoDerm CQ manufacturer Johnson & Johnson, one of the company's largest institutional shareholders-the Robert Wood Johnson Foundation-and the distributor of Nicorette patch, NicoDerm CQ patch and Commit lozenge distributor GlaxoSmithKline?


As reported above, that appears to be increasingly the case. Tobacco control advocates-financed in large part by the above-names pharmaceutical special interests-have long proclaimed that Environmental Tobacco Smoke (ETS) kills, the only "appropriate" response to is a total ban, and that ventilation systems do not safely mitigate its alleged dangers. That is, of course, the position of advocates who have enjoyed benefits the $446 million tobacco control grant largess of the RWJ foundation. Fortunately, sane minds prevail in Kansas and Minnesota.

Ventilation works to mitigate ETS. I do not make that statement lightly or without considerable background on the subject. HeatingPipingAirconditioning magazine published a feature article about an Indoor Air Quality (IAQ) in a Washington workplace in its May 1996 edition (see HPAC.PDF). Designated nonsmoking areas in that workplace provided Indoor Air Quality superior to outside air and ETS constituents were reduced to at or below levels of detection in common areas. Even smoking areas enjoyed the benefits of dramatically reduced ETS constituents, while also experiencing the benefits of reducing indoor air contaminants not related to tobacco smoke. I understand that study. I was directly involved in the design of that IAQ system, the study was conducted on my company's business premises, and I authorized payments for both the system and independent testing of its performance. 

The remarkable thing about ventilation is that is does mitigate ETS, to the point of not being the deadly health hazard stridently proclaimed by advocates not yet weaned from Mother Johnson's grant teat. In fact OSHA made that point in 2003 when it reiterated its position on ETS. OSHA's position, as stated in its February 24, 2003 "Reiteration Of Existing OSHA Policy In Indoor Air Quality," is that it will not apply a general duty clause to "protect workers" by banning smoking because it has concluded that exposure to ETS constituents does not exceed its Permissible Exposure Limits (PELs) in normal work environments:

"Although OSHA has no regulation that addresses tobacco smoke as a whole, 29 CFR 1910.1000 Air contaminants, limits employee exposure to several of the main chemical components found in tobacco smoke. In normal situations, exposures would not exceed these permissible exposure limits (PELs), and, as a matter of prosecutorial discretion, OSHA will not apply the General Duty Clause to ETS."


OSHA's position was directly supported by a study of 17 Australian hospitality venues. That study, published in the October 2003 edition of the journal Tobacco Control, was titled "Designated 'No Smoking' Areas Provide From Partial To No Protection From Environmental Tobacco Smoke".  The study data prove the opposite of what its title says: the data show sufficiently low exposure to ETS constituents that no "protection" is required:

"Results: By comparison with levels in general use areas, nicotine and particulate matter levels were significantly less in the "no smoking" areas, but were still readily detectable at higher than ambient levels. For nicotine, mean (SD) levels were 100.5 (45.3) µg/m3 in the areas where smoking occurred and 41.3 (16.1) µg/m3 in the "no smoking" areas. Corresponding PM10 levels were 460 (196) µg/m3 and 210 (210) µg/m3, while outdoor levels were 61 (23) µg/m3."

The OSHA Permissible Exposure Limit (PEL) for nicotine - a constituent unique to tobacco smoke - is 500 micrograms per cubic meter. In the above-referenced study nicotine levels in smoking areas were measured at 1/5th of that PEL (100.50 versus PEL of 500) and in designated nonsmoking areas at 1/12th of OSHA's PEL (41.3 versus PEL of 500).

Both Kansas and Minnesota positions are therefore strongly supported by on-site workplace studies, including a study dedicated to the hospitality trade, OSHA, and studies of workplace IAQ systems such as that conducted at my company. Bars and taverns that add supplemental air systems are in fact providing IAQ superior to that which ventilation systems installed according to building code produce. I believe those establishments should advertise that fact. Kudos to elected representatives who understand issues well enough to not accept as gospel hyper-puffed Social Marketing claims about ETS that serve out-of-state special interest's mercantile agenda, while putting home-grown, local hospitality trade establishments out of business.  

A March 2005 study indicates how fatally-flawed and fundamentally dangerous tobacco control's exclusive fixation on ETS can be. In 2005, Science Daily reported about a lung cancer in nonsmokers study published in the Journal of the National Cancer Institute. From Science Daily, March 21, 2005, "Study Examines Role of EGFR Gene Mutations In Lung Cancer Development," about a study published by the Journal of the National Cancer Institute  (NCI):

"A new study has found that mutations in either of two genes are involved in the development of lung cancer. One of them is the first known mutation to occur specifically in never smokers, according to a new study in the March 2 issue of the Journal of the National Cancer Institute.. . . These findings "support the hypothesis that at least two distinct molecular pathways are involved in the pathogenesis of lung adenocarcinomas, one involving EGFR TK domain mutations and the other involving KRAS gene mutations," the authors write. These results also "suggest that exposure to carcinogens in environmental tobacco smoke may not be the major pathogenic factor involved in the origin of lung cancers in never smokers but that an as-yet-unidentified carcinogen(s) plays an important role." (Underline, italic added.)  


Smoking bans do not equal clean indoor air. A more compelling case for that truth could not be made the than above study published in the Journal of the National Cancer Institute. Simply banning smoking as a be and end all cure for ails everyone about everything according to tobacco control dogma does absolutely nothing to reduce or mitigate the other "as-yet-unidentified carcinogen(s)" that play an important role in lung cancer among nonsmokers. The alleged health benefits of smoking bans are yet another example of tobacco control's now-predictable "Bait and Switch Tactics." Smoking bans don't deliver the health benefits proclaimed while causing permanent economic hard to hospitality venues when the switch to a mercantile nicotine market share agenda is made. Perhaps it is time for elected public officials to carefully examine tobacco control's actual results versus its hyper-puffed claims about public health.


It should also be noted that the March 2005 report in Science Daily adds further discrediting to the December 1992 EPA report on secondhand smoke. The EPA study relied on large part on source information about spouses (women) who lived with persons who smoked. The full text of the above article shows that the genetic mutations associated with lung cancer in nonsmokers occur most frequently in women. And, as underlined at the end of the excerpt, it now appears that tobacco smoke IS NOT the primary pathogenic factor in nonsmokers' lung cancer that  tobacco control advocates claim its is. Those facts hit the 1992 EPA report with an additional discrediting triple-whammy:


1. A huge confounding factor-genetic mutations-is raised that was not considered in the !992 EPA report. How many cancers that tobacco control automatically attributed to tobacco smoke are now traced mutations of genes but were incorrectly associated with ETS? That issue is of compelling importance in light of the extraordinarily low risk 1.19 risk factor that EPA determined at a 90 percent level of confidence.


2. How many lung cancers among nonsmokers that were caused by "as-yet-unidentified carcinogen(s)" not related to tobacco smoke have been falsely attributed to ETS by anti-tobacco activists? So when is anti-tobacco going to do something about genuine Indoor Air Quality to support its alleged Clean Indoor Air mandates?


3. With females being the most common demographic group to experience genetic mutations what level of misleading farce does the 1992 EPA report become, considering that the primary demographic group in the studies relied upon were female spouses of men who smoked?


It is simply amazing that even with the deck stacked by cherry picking data, employing unsound statistical methods, and now it turns out enjoying the advantage go huge confounding factors as cited above, that Junk Science report about Environmental Tobacco Smoke still came in with a risk factor of only 1.19. Readers should consider that for carcinogens other than tobacco smoke the credible epidemiological standard is a risk factor of 2.0 to 3.0 before any causal relationship is inferred by researchers. Which put the true bona fide material risk of ETS at somewhere around zero.


I'm beginning to think I terms of fraud. Have hospitality owners beef fraudulently deprived of patron revenues by fraudulent claims about ETS? Have persons who smoke been fraudulently characterized as those who kill co-workers and members of their family-indeed, their children-with ETS? Have parents been denied parental rights because of fraudulent claims about the hazards of ETS? 

Tobacco control's response to information such as that presented above is to cue the Pristine Clean, who whine on demand, "Eeeeewwwwww . . . my hair stinks when I go to a bar!" Well, stupid, if you don't like the place why go there?  

The solution to bad hair nights for the Pristine Clean is simple: invest your own capital in a "Smoke Free" bar and take the business risks that Mr. Hicks and his hospitality trade colleagues assume very day.  While you're deciding what to do, leave Mr. Hicks and his fellow hospitality business owners in Colorado alone

Norman E. Kjono

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