Washington Smoking Ban Legislation, Part I

Initiative To The People 901

Because the principle of wholeness differs radically from our ordinary categories, it challenges us to rethink who we are from the ground up. We're called to rethink not only our nature but, even more, the dynamics of our existence, namely, that we're not separate beings, however much we appear to be. . . . So, too, our personal ways of being emerge from our relatedness to the systems within and around us. . . . We're beings of connectedness, engaged with all sorts of systems that operate in and around us. . . . Claiming our connected nature starts with recognizing our connectedness: observing how we participate in family systems, educational systems, economic systems, work systems, religious systems, media systems, political systems . . . We're both products of all these different systems and changers of them. Failing to notice this two-way dynamic, some critics interpret holistic perspectives through one-way, top-down, dominator categories, as if the whole were a monolithic entity imposing itself on its parts against their will or well-being. It's a short step from this conceptual image to a political version in which people like Hitler, Stalin, or Moa Tse-tung step in for the one system and run things as if they were it­as if they could know what's best for humanity or society . . .Exploiting one part for the benefit of another cannot, therefore, be a strategy in systems without weakening and ultimately destroying the whole. . . . In the short term, dominator methods can seem successful, but in the long term they fail. They're ignorant of how things got to be the way they are because of the workings of systems . . . System imbalances must be righted, or system ills go uncorrected. Imbalances make problems multiply, until systems fail, and we with them. Another reason dominator methods don't work is that they don't value what each part means to the whole­that the whole couldn't be what it is without each of its aspects. What we call parts are the whole in expression, which means they're not dispensable." {Underline, italic added.)

 

"The Mystic Heart of Justice,"  Chrysalis Books
Denise Breton and Stephen Lehman, Pages 99 - 103

 

Current Washington Smoking Legislation And Initiative

 

We begin 2005 facing a new rolling-wave of one-way, top-down, dominator proposals for a statewide smoking ban from tobacco control advocates. And, based on recent reports that a bowling alley was rented by our state health department to film an anti-tobacco advertisement, it appears that this new tsunami of special-interest smoking ban legislation will be accompanied by television advertising, too, as last year's wave was in 2004. As of this writing there are several new statewide legislative bills concerning smoking, as well as a new initiative, before the people and their elected representatives. What is unique and refreshing about this year's proposed legislation is that there are also bills before our legislators that offer a clear choice, approaches that can address important worker protection, public health, and children issues without imposing the debilitating side-effects that accompany customary anti-tobacco mandates. A one-page summary of the philosophy behind those new approaches is set forth in "Amending Washington's Clean Indoor Air Act 2005," as prepared by the hospitality trade HELP Strategic Alliance.

 

Statewide smoking ban Initiative to the People 901.  This is particularly important to we the people because it is the purest expression of out-of-state special-interest one-way, top-down, dominator category mandates. Beyond imposing a new prohibition against hospitality venues permitting their customers to smoke that initiative also seeks to dramatically expand the prosecutorial powers of local health departments, a fact not disclosed in its descriptive language. I-901 is addressed in this text and the legislative bills will be discussed in my commentary to be published the week February 14, 2005. The seven legislative bills are (clicking on the bill number will take you to it on leg.wa.gov Web site):

 

SB 5592 Prohibiting smoking in public places.

HB 1714 Prohibiting smoking in public places.

SB 5114 Prohibiting smoking within thirty-five feet of a public place.

HB 1670 Revising regulation of indoor smoking for the purpose of protecting minors and public health.

HB 1109 Modifying designated smoking area requirements.

HB 1253 Modifying designated smoking area requirements.

HB 1559 Modifying designated smoking area requirements.

 

A Few Introductory Remarks

 

I begin this discussion of I-901 with an article published today by the Tacoma News Tribune, "After Smoke Out, Air Clears In New York,"  by Jim Rutenberg and Lilly Koppel with the New York Times. That news report says in part:

"NEW YORK - Back in 2002, when the City Council was weighing Mayor Michael Bloomberg's proposal to eliminate smoking from all indoor public places, few opponents were more fiercely outspoken than James McBratney, president of the Staten Island Restaurant and Tavern Association. He frequently ripped Bloomberg as a billionaire dictator with a prohibitionist streak that would undo small businesses like his bar and his restaurant. Visions of customers streaming to the legally smoke-filled pubs of New Jersey kept McBratney awake at night. Asked last week what he thought of the now 2-year-old ban, McBratney sounded changed. "I have to admit," he said sheepishly, "I've seen no falloff in business in either establishment." He went on to describe what he once considered unimaginable: Customers actually seem to like it, and so does he. . . . There are still those cursing the ban as an affront to their civil liberties. Some bar and restaurant owners say that it has undoubtedly caused a falloff in business. City officials say they doubt that contention, pointing to data from the first year of the ban showing that restaurant and bar tax receipts were up 8.7 percent over the previous year's. They said they were still waiting for more detailed and updated data from the state." (Underline added.)

 

According to the New York Times restaurant associations love the smoking ban in New York. Customers love it. City Officials love it. Even "hard core" persons who smoke like it! And, as an added bonus, restaurant and bar revenues are up as well! As New York goes, so does the rest of the USA, anti-tobacco vociferously proclaims! Reading the article through it becomes transparently clear that The Times' news room has become an outpost of its editorial department. Maybe they're short of space at The Times, having hired even more reporters and columnists to chronicle the War on Tobacco, a rerun of "The Apprentice" to see who gets to cover the War on Obesity, too.

 

So what's the rub? Now everybody just shuffle into line with the New York Times' and Tacoma News Tribune's editorial positions, to support smoking bans nationwide. Why, if you don't you're probably unpatriotic, too - we'll have to see about that! Who has the audacity - the unmittigated gall, no less -- to object to a statewide hospitality smoking ban when even past opponents of New York's ban are sheepishly eating their own words? Doc Koop and Pierce County's Kevin Phelps/Frederico Cruz-Uribe dynamic duo were right all along! Full steam ahead to Washington falling in behind the lead of New York City and the Robert Wood Johnson Foundation! Who would dare do less?

 

"Well, yes," some admit, "there are New York legislators who are seeking to change that statewide ban because of its heavy-handed effects on hospitality revenues throughout the state of New York, other than upscale Manhattan dining spots." "But that's not really important" they say, "those businesses just aren't, you know, part of the mainstream."

Others opine "Well, yes," local pub, bar, and neighborhood tavern trade seem to be down," adding "but we all know that's not important, the big chain restaurants are doing fine!"

 

And, of course, we also hear the chorus about those "hard core" smokers: "Why, who cares about them? They just need to get with the times and be upscale hip like the rest of us!"

 

Droning in the background, nearly as ubiquitous and mind-numbing as pharmaceutical nicotine television advertisements, we hear the steady beat of "Civil Liberties, you say? Hogwash! Your right to smoke ends at the tip of my nose, filthy pariah!" They add "Since the Constitution doesn't explicitly say that you are permitted to smoke the majority rules what liberty you have!" Such intellectual miscreants overlook the fact the Constitution also does not say one can drink water, wear green pants, douse oneself in perfume, drive a car, or eat a cheese burger, either.

 

The Pristine Clean wade in with their shrill cries about dashing to the drycleaners to get rid of the "stench" from tobacco smoke microseconds after a fellow citizen decides to light up in the next county. Others stridently remind us that they're busting their shampoo budget because they need to run home and wash their hair after driving by a casino that allows smoking. Both overlook the fact that everyone in the State of Washington is not required to create an environment they like in a bar or tavern they might choose to go to a few times a year, if at all. And neither acknowledge the reality that current Washington law about smoking works just fine (when county health boards comply with it): Pristine mom and Clean dad can wake up in their "Smoke Free" house, take their children to a "Smoke Free" school on the way to their job at a "Smoke Free" office, go to lunch at a "Smoke Free" restaurant, stop by a "Smoke Free" grocery store or other retail establishment on the way home, then take their children out to a "Smoke Free" McDonald's or other family restaurant before going to a movie together in a "Smoke Free" theatre, to come home and put their kiddies to bed in their "Smoke Free" house, before starting their "Smoke Free" cycle all over again the next day. And they can go to a "Smoke Free" bank or a "Smoke Free" city hall to conduct their personal business as well. Apparently that's not quite enough for the Pristine Clean; such people apparently have a need to mandate that the rest of their world - including places they will never go and people they will never meet -- be coerced to join their "Smoke Free" life experience as well, whether they like it or not.

 

Somewhere in the background a bar and casino manager in Tacoma looks over his income statement. He breathes quiet a sigh of relief as he finds that revenues have finally returned to previous levels, eight months after the smoking ban in Pierce County that carved a hole the size of the grand canyon in his revenue was stayed. He makes a statement to that effect at the next hospitality coalition meeting. And, unnoticed by the elitists pushing the bans, a single mom cocktail waitress wonders if she will experience several months - perhaps permanent -- unemployment or reduced tip income in the coming year, due to the latest unrelenting waves of perennial smoking ban legislation.

 

Oblivious to it all, utterly disconnected from every-day folks' reality, those at "Healthy Indoor Air For All Washington" begin to budget their $83,000 dollars in donations received from the American Cancer Society an the American Lung Association for I-901. The fact that those donations in turn ultimately came from pharmaceutical nicotine distributors and private pharmaceutical grants or annual fees having no more significance to them than mere identification of a donation source in box 1. on a Public Disclosure Commission form.

 

Meanwhile, back at the smoking cessation dude ranch, GlaxoSmithKline extols the virtues of a 36 percent increase in their "Smoke Free" nicotine delivery device product sales since the smoking ban in Ireland was mandated, while the London financial times reports that Glaxo has announced a $5 million advertising campaign to be coordinated with Italy's new smoking ban. Through it all, Pfizer and Pharmacia, "Smoke Free" nicotine delivery device patent holders and licensors, keep their standing as Appellees in the government's federal lawsuit that seeks to extract $280 billion in new costs from tobacco consumers, under the guise and gossamer-thin veil of the government collecting billions from tobacco companies for past misdeeds (which, fortunately, the U.S. court of Appeals just shot down, denying the government authority to seek such damages in the currently ongoing trial.)

In some states opportunists begin to vie for position in land deals that could turn a handsome profit when tribal authorities purchase them to put up smoking-ban-exempt and tax-exempt casinos on "Tribal Trust" lands that are not part of a reservation.

And the boards of many large chain restaurants -- where smoking is not an integral part of the hospitality experience like it is in bars, taverns and casinos -- project how large their increase in business will be when small business taverns that serve food and ma and pa establishments go out of business.

 

The preceding observations are, collectively and at once, at the crux of both I-901 and this year's Washington legislative bills. Smoking ban legislation is far more complex and far reaching in its effects than the simple-minded and repetitive political mantras that tobacco control advocates and mainstream press present. Those who blithely spout their pronouncements about other people's rights - whether as a business owner, property owner, an employee, or consumer - ending at their pointy little heads do so at peril of ignoring the fact that legitimate legal rights - including theirs -- are not a matter of public opinion, nor are they subject to majority vote. Responsible legislators and mature citizens understand that Breton and Lehman, as quoted at top of this page, are correct:

 

"Exploiting one part for the benefit of another cannot, therefore, be a strategy in systems without weakening and ultimately destroying the whole. . . . In the short term, dominator methods can seem successful, but in the long term they fail. They're ignorant of how things got to be the way they are because of the workings of systems . . . System imbalances must be righted, or system ills go uncorrected. Imbalances make problems multiply, until systems fail, and we with them."

 

In the final analysis smoking ban legislation touches us all, whether we work at a hospitality job or choose to smoke. They affect us all because they affect local tax bases, civil liberties, employment, and small businesses. Political mantras do not replace lost revenues to local city budgets when patrons and their revenues migrate from taxpaying nontribal establishments to tax-exempt tribal venues. Pronouncements about rights do not provide a pathway to jobs lost. Jimmied "statistics" about hospitality revenues that ignore the devastating effect of smoking bans on small, independent establishments do not replace the dollars available in local economies to purchase goods and services that are lost when mom and pop go out of business, nor do they replace the goods and services that their former employees can no longer afford. Nor do platitudes about costs of health insurance justify under any circumstances mandating that about 25 percent of our population - persons who smoke off the job - be a permanently unemployable class of citizens. To presume there is merit to that position necessarily assumes that the "Target Group " 25 percent of our working population contributes no economic value to our society whatsoever.

 

And the New York Times article quoted above begs - ignores - a central question: "If restaurant and bar trade truly went up 8.7 percent, and that increase was enjoyed by small business as well, despite a smoking ban, how much did it fail to increase because of a smoking ban?" Have we as a people begun to measure our future merely by how little we have lost, how much economic or employment pain we can endure?

 

It is with those preliminary thoughts in mind that we now begin to discuss Washington's Initiative to the People 901.

 

Initiative To The People 901, Prohibiting Smoking In Public Places

 

I-901 is "AN ACT relating to the prohibition of smoking in public places." This initiative is sponsored by Christopher Covert-Bowlds 2075 Barkley Blvd, #105 Bellingham , WA 98226 Phone: 360-220-6609Fax: 360-650-1354 cjcovert@hinet.org (see Ballot Measure information  on Washington Secretary of State Web site.) Public Disclosure Commission (PDC) documents disclosure that Tacoma City Council Member Kevin Phelps  is the Campaign Manager media contact for this initiative. Mr. Phelps can be reached at P.O. Box 2613 Seattle, Washington (253) 272-2041 kphelps@cityoftacoma.org. Mr. Phelps was also the Media Contact for last year's statewide smoking ban Initiative 890 and served as Chair of the Tacoma-Pierce County Board of Health when it enacted the smoking ban in Pierce County December 2003.

The full text of I-901 is available in .PDF format on the Secretary of State's Web site location by clicking in the preceding bold letters. This ballot measure's descriptive language reads as follows:

 

"Ballot TitleInitiative Measure No. 901 concerns amending the Clean Indoor Air Act by expanding smoking prohibitions. This measure would prohibit smoking in buildings and vehicles open to the public and places of employment, including areas within 25 feet of doorways and ventilation openings unless a lesser distance is approved.

 

Ballot Measure Summary

 

This measure would prohibit smoking in public places and in places of employment. Current laws allowing designation of certain smoking areas would be repealed, including current provisions allowing designation of an entire restaurant, bar, tavern, bowling alley, skating rink, or tobacco shop as a smoking area. The prohibition would include areas within 25 feet of entrances, exits, opening windows and ventilation intakes, unless shorter distances are approved by the director of the local health department."

In April 2004 Thurston County Superior Court judge Tabor ruled that an initiative for substantially similar - virtually identical -- statewide smoking ban I-890 must include disclosure of that fact that the initiative would not effect tribal establishments. The descriptive language for that ballot measure was amended to incorporate such language. I-890 failed to gather the required signatures. The descriptive language for I-901, filed a scant six months after I-890 failed to qualify for the ballot, does not contain a disclosure that tribal bars, taverns, casinos and restaurants would be exempt. I address the importance of the tribal issue in this section, as well as in the next part of this series that discusses Senate Bill 5592. As of this writing a lawsuit to challenge the descriptive wording of I-901 has been reported. That story, if true, will be updated as more information is available. Finally, the descriptive language of I-901 makes no mention of the fact that its new language expressly gives local health department attorneys equal authority with city and county attorneys to bring enforcement actions. That is a clear and unmistakable expansion of prosecutorial discretion for health departments that must be addressed. Perhaps that will become an issue is a legal challenge to the descriptive language of I-901 as well.

 

A Few Points About Environmental Tobacco Smoke

The language in I-901 adds a new Section 1. to Chapter 70.160. The additional language reads as follows:

"INTENT AND FINDINGS: The people of the State of Washington recognize that exposure to second-hand smoke is known to cause cancer in humans. Second-hand smoke is a known cause of other diseases including pneumonia, asthma, bronchitis, and heart disease. Citizens are often exposed to second-hand smoke in the workplace, and are likely to develop chronic, potentially fatal diseases as a result of such exposure. In order to protect the health and welfare of all citizens, including workers in their places of employment, it is necessary to prohibit smoking in public places and workplaces."

The preceding language in I-901 is false as stated and contains material omissions of fact. Notable among the glaring omissions is the simple fact that I-901 will not and cannot prohibit "protect the health and welfare of all citizens," even if the wildly exaggerated claims about Environmental Tobacco Smoke (ETS) in I-901 were true. Indeed, as discussed below in this section, the likely outcome of passing I-901 would be the opposite of the initiative's stated intent: more hospitality workers exposed to more ETS in smoking-ban-exempt tribal venues that are also subject to less stringent worker safety regulations. I-901 therefore fails even the most basic "first blush test," in that it will not and cannot accomplish the intended purposes as written.

 The INTENT AND FINDINGS language in I-901 about ETS are not supported by consistent scientific standards. Environmental Tobacco Smoke (ETS) was first listed as a human carcinogen in the National Institute of Environmental Health Sciences (NIEHS) "Ninth Report on Carcinogens" in 2000. The current Eleventh Edition of that report lists ETS as a known human carcinogen. Readers can access text for ETS in that report by clicking on "Environmental Tobacco Smoke" in the list of carcinogens. Paragraph 2 of that text reads in part:

 

"Evidence for increased cancer risk from environmental tobacco smoke stems from examining nonsmoking spouses living with individuals who smoke cigarettes, exposures in occupational settings, and exposures to parent's smoking during childhood (IARC 1986, EPA 1992, CEPA 1997.) . . . A meta analysis found an overall increase of risk of 20% for exposure to environmental tobacco smoke from a spouse who smokes."

 

There are eight very important points to make about the preceding language from NIEHS:

 

a.) The studies cited are the studies that OSHA referred to as outdated and that it specifically rejected concerning ETS exposures in its decision to withdraw its proposed Indoor Air Quality regulations December 2001 with the support of tobacco control groups. Why would OSHA withdraw proposed regulations in 2001 to prohibit a substance like ETS that had just been declared to be a "Known human carcinogen" by NIEH in 2000? OSHA explained in detail its decision to withdraw its proposed regulations to the U.S. Court of Appeals in August 2001. Among its reasons were that the studies it relied on (including those cited above) were outdated, current ETS exposures were not as represented in those and other studies, and its previous reliance on that data was "simply wrong." Risk is commensurate with the dose absorbed. The primary material question is not the alleged toxicity of a substance but the degree to which one is exposed. And, as is explained below, inconsistent risk factors were both calculated and applied to reach the conclusion about the carcinogenic nature of ETS.

 

b.) The 20 percent increased risk referred to is stated in the 1993 EPA report on secondhand smoke (a risk factor of 1.19 at 90 percent confidence level), which Judge Osteen eviscerated in his July 17, 1998 90-page-plus Memorandum opinion. And that 20 percent increased risk - in comparison to risk factors of 3.0 and greater under normal standards - was only achieved by substituting a 90 percent confidence level in place of customary 95 percent confidence. A later review of 58 studies by International Agency for Cancer Research found an average risk factor of 1.21, which tends for more to prove the absence of bona fide risk than to support that conclusion. For IARC's study to establish any bona fide risk it would need to establish minimum risk factors in excess of at least 2.0.

 

c.) But isn't any risk of any kind whatsoever unwarranted and unacceptable? If we can ban any risk why not do so? The answers to those questions is found in what NIEHS added to the list of "Known human carcinogens" this year. NIEHS additions to its 11th edition of list of human carcinogens include hepatitis and other viruses, compounds in grilled meats and eggs, and Neutrons (X-ray radiation). If any risk whatsoever is unacceptable then DO NOT ever have another dental X-ray, NEVER eat another grilled cheese burger or steak, and DO NOT go out in public where you could be near any person who may carry hepatitis viruses. In short, stay at home, live in a plastic bubble, and live on strict soy bean diet. Better yet, follow the example of tobacco control advocates and mandate that all of your fellow citizens must live that way so you can roam around free as a bird wherever you may want to go. Boy, howdy, that mandate will create a robust and growing economy to sustain your job and goods and services that are provided for you.

The food related additions to NIEHS list are important to the smoking ban subject and food services. About grilled foods NIEH says:

 

"MeIQ, MeIQx, and PhIP are heterocyclic amine compounds formed when meats and eggs are cooked or grilled at high temperatures. These compounds are also found in cigarette smoke. They are listed in the report as 'reasonably anticipated to be human carcinogens' because oral studies in animals showed they caused cancer in multiple organs including the forestomach, colon, liver, oral cavity, mammary gland, skin, and cecum. Several human studies suggest there is an increased risk for breast and colorectal cancers related to consumption of broiled or fried foods that may contain these or other similar compounds." (Underline added.)

 

Airborne carcinogenic Nitrosamines are also produced when grilling meats. This particularly on point with the subject of ETS and the hospitality industry because tobacco control advocates claim that hospitality workers have a double risk of cancers which they attribute exclusively to ETS. Kitchens and grilling locations are often close to patron sitting areas. What is the safe distance for airborne carcinogens produced by grilling meats? Are patrons unwittingly objecting to smoking sections in separate parts of a restaurant, only to sit at a counter or table next to a grill?

What cancers attributed to ETS in hospitality businesses were in fact caused by other sources? Has NIEHS now published a confounding factor, where cancers attributed to ETS may in fact be caused by other sources? Are we next to hear that Wendys, McDonalds, and Jack In The Box are to be sued into oblivion over these new cancer risks from grilled meats, despite their "Smoke Free" status?

 

d.) Please see Pierce Law's 1990 paper about electromagnetic emission fields (EMF) "Coping with the Risk of Cancer in
Children Living Near Power Lines,"
  by Eileen N. Abt, who received an M.S. (Environmental Health) from the Harvard School of Public Health. That paper discloses three studies about cancer in children living near power transmission lines that found risk factors of 2.0 to 3.0 (versus 1.20 for ETS.) The conclusion of the Committee on Interagency Radiation Research and Policy Coordination (CIRRPC) was "Epidemiologic findings of an association between electric and magnetic fields and childhood leukemia or other childhood or adult cancers, are inconsistent and inconclusive."

 

e.) Risk factors of 2.0 to 3.0 concerning child leukemia and power lines are "inconsistent and inconclusive" as the basis for regulation, yet EPA and tobacco control advocates have launched a nationwide jihad against Environmental Tobacco Smoke as a "known human carcinogen" based on risk factors of 1.20. What agenda is pushing such conflicting scientific standards?

 

f.) Please see EMF Services article, "Fields Associated With Electric Power Systems,"  which says in part:

"To date several studies have examined the association between childhood cancer and power lines. The outcomes of these studies are complex and subject to varied interpretation, but at least eight have reported positive results. As the methodologic shortcomings of earlier studies have been overcome by better study designs, the trend of positive results has continued. Many of these studies have shown relative risks of around 1.5 to 2.0, indicating a doubling of the incidence of illness in the exposed population. A widely reported Swedish study, released in late 1992, revealed for the first time some indication of a dose-response gradient, with the number of cases increasing in the presumed higher exposure categories. Large meta-analyses that pool the results of several studies have been performed and the positive association still holds, even when individual studies with positive results are removed from the calculations. It is this consistent pattern of association in the childhood cancer studies that has continued to drive the research into EMF bioeffects." (Underline added.)

 

g.) And NIEHS is directly involved in that EMF issue, according to the Web site Kid's Health for Parents,  which says in part about this subject:

"Some parents have concerns that electromagnetic fields (EMFs) produced by power lines are mutagenic (cause changes in cells' hereditary DNA) and increase their children's risk for cancer. This is because preliminary studies in the early 1990s appeared to link clusters of childhood cancer to neighborhood location of power lines, and these studies were heavily featured in media reports. Although the Environmental Protection Agency (EPA) initially declared power line EMFs to be possible carcinogens (cancer-causing agents) in 1990, the agency later concluded that there was not enough evidence to support this declaration.. . . In its list of recommendations regarding EMFs, the council noted that "no scientifically documented health risk has been associated with usually occurring levels of electromagnetic fields," . . . the National Institute of Environmental Health Sciences concluded that the evidence for a risk of cancer and other human disease from the electric and magnetic fields (EMF) around power lines is 'weak.'"

 

h.) Finally, about EMF emissions, Columbia University's Health Q&A Internet Service, "Go Ask Alice,"  says in part:

"Some epidemiological studies have shown an increased probability of childhood leukemia and brain tumors in residential areas from exposure to strong EM fields, such as those created by high voltage power lines (the ones on big steel towers). In occupational settings, a similar correlation has been identified between breast cancer and leukemia and EM fields. But the risk factor of two is low, especially in comparison to a risk factor of 20 for the correlation between smoking and lung cancer. You would be hard pressed to find someone who believes that 60 Hz fields (typically what you would live near) actually cause or initiate a cancer, although it's possible for EM fields to promote or co-promote a pre-existing cancer." (Underline added.)

 

We have claims about ETS that have been rejected by both our federal courts and OSHA after extensive review and very close scrutiny, and which produce risk factors that are fractions of what is not considered high enough to regulate other alleged cancer sources, yet tobacco control continues to assert such claims as if they were Gospel of Risk. Where are the legitimate disclosures that should be made regarding such statements? Is it time for NIEHS to revisit its conclusions about ETS? Might we expect that EPA's risk factor for ETS of 1.19 at a 90 percent confidence level is considerably less than one-half as compelling as 2.0 to 3.0 risk factors for which NIEHS concluded "the evidence for a risk of cancer and other human disease from the electric and magnetic fields (EMF) around power lines is 'weak.'"

 

The point of discussions about EMF emissions and carcinogenic compounds in some foods above is not to promote new concerns about health. The material point in this discussion about National Institute of Environmental Health Sciences (NIEHS) and Environmental Tobacco Smoke is that on the one hand NIEHS classifies a substance with a risk factor of 1.19 at a 90 percent confidence level (ETS) in the 1992 EPA report on secondhand smoke as a "known human carcinogen," yet it has also concluded that EMF emissions with risk factors of 1.5 to 3.0 at 95 percent confidence demonstrate a weak association for risk of cancer and human disease. And confounding factors regarding viruses, as well as grilled foods in hospitality business environments, are not disclosed or apparently considered. At what point does the "science" get stretched so fat that is snaps?

The INTENT AND FINDINGS language of I-901 are also directly contradicted by conclusions of the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA). I discuss OSHA conclusions in more detail in the forthcoming section about HB 1559. In its August 2001 response filed with the U.S. Court of Appeals for the Circuit of Washington D.C. (see OSHANOTES.PDF) OSHA filed that response to address a petition by Action on Smoking and Health (ASH) to force OSHA to promulgate a nationwide prohibition on smoking in the workplace. ASH's petition failed and OSHA withdrew its proposed Indoor Air Quality regulations December 2001, with the support of tobacco control groups that included the American Cancer Society and the American Lung Association that are now providing financial support for I-901. OSHA's conclusions as presented to our federal appeals court were reached after extensive public hearings and additional workshops dedicated to ETS, one segment of which focused on the hospitality industry. In its response OSHA said to the appeals court:

 

1.) Page 15: "Critically, there is no longer any basis to assume, as the proposed rule does, that all workers in all workplaces face an elevated risk equivalent to that found in homes during the 1980s." (Underline, italic added.)

 

2.) Page 17: "Here, as we have explained above, the proposed rule appears to be based upon outdated information and methodology and its risk estimates are not supported by the weight of evidence now available." (Underline, italic added.)

 

3.) Page 17: "OSHA does not believe that over 74 million workers are exposed to ETS at work at levels equivalent to those faced by a nonsmoking spouse of a smoker at home." (Underline added.)

 

4.) Page 18: "Nor does OSHA believe that issuance of an ETS rule would prevent between 2,234 and 13,723 excess deaths annually, or anything like that." (Underline, italic added.)

 

5.) Page 18: "This potential hazard is not, as ASH's Petition suggests, so egregious as to demand instant action, especially to the exclusion of all other safety and health matters before the agency." (Underline, italic added.)

 

The INTENT AND FINDINGS language of I-901 are also directly contradicted by the conclusions reached by our federal district courts. July 17, 1998 U.S. district Court Judge William L. Osteen ordered that Section 1 to 6 and appendices of the December 1992 EPA report on secondhand smoke be vacated (see page 1 of EPAPOST.PDF  for a copy of that order and page 2 for EPA conclusions that it effected.) Judge Osteen's order was accompanied by a 90 page-plus Memorandum Opinion that presented a scathing review of fatally-flawed statistical methodologies employed by EPA to reach its conclusions about secondhand smoke. Judge Osteen's conclusions included a statement that EPA statistical methodologies were "an ugly possibility with which this court is faced." The U.S. Court of Appeals for the 4th Circuit confirmed that important issues remained regarding the EPA report and its methodologies when it overturned Judge Osteen's July 1998 order December 11, 2002, based on procedural grounds that our federal courts did not have authority to review the EPA report on secondhand smoke. The full text of the 4th Circuit's makes it painfully obvious that, notwithstanding its ruling on procedural grounds, important issues regarding the December 1992 EPA report on secondhand smoke still remained (see, for example, pages 15 and 16 of the courts ruling.) The fact that neither Philip Morris nor any other tobacco company chose to carry the appeal to the U.S. Supreme Court changes neither Judge Osteen's district court conclusions about fatal flaws in the EPA report on secondhand smoke nor the important issues regarding that report the 4th circuit expressed its concern about. Simply put, the 1992 EPA report on secondhand smoke does not support I-901's stated beliefs about secondhand smoke.

 

The INTENT AND FINDINGS language of I-901 are also directly contradicted by the content of many studies relied on and quoted by tobacco control advocates. For example, consider the OTSUKA study that is often used to support the claim that only 30 minutes of exposure to Environmental Tobacco Smoke can cause adverse cardiac reactions. In July 2004 I filed a Public Document Request with the Snohomish Health District requesting all studies relied on by the district to support the district's publicly advertised statement that "There Is No Safe Level Of Exposure To Secondhand Tobacco Smoke." The Otsuka study was provided as part of the health district's response to my request. I subsequently filed a complaint alleging improper use of public funds to support Initiative 890, dated August 15, 2004, with the Washington Public Disclosure Commission. That complaint, now No. 05-096, is presently before the commission and its investigators. The full text of that complaint, including its 38 pages of exhibits, will be published by Forces.org at a later date. A few facts about the Otsuka report are relevant to I-901's Intent and Findings language:

 

1.) The Otsuka study did not measure Environmental Tobacco Smoke, it measured only Carbon Monoxide (see page 1, left half, of Otsuka abstract) published by the Journal of the American Medical Association, Vol 286;286:436-441). Can the same symptoms be induced by standing beside the exhaust of a city of a city bus?

 

2.) The Ostuka study was subject to peer review criticism precisely because it did not measure ETS (see page 1, right half, of Otsuka abstract.)

 

3.) Moreover, peer review of the Otsuka study stated "In terms of public policy, it would be useful to know how typical these exposures and results are." Readers should note that the State of Washington has never conducted any credible study of actual ETS exposures in this state. Indeed, the state has refused to conduct such or participate ETS exposure studies as far back as 1994 regarding a Redmond, Washington business and as recently as June 2003 in Pierce County (see June 24, 2003 E-Mail correspondence between "Secondhand Smoke Consultant" James Repace and Tacoma-Pierce County Department of Health staff member John Britt). The boxed text in that E-Mail states that the Washington Department of Health refused to fund a cotinine study to support the smoking ban in Pierce County. Cotinine is a metabolite of nicotine often used to estimate ETS exposure levels. Application of the Otsuka study to Washington public law is therefore without foundation as to actual exposures in Washington work places.

 

4.) But the story about the Otsuka study goes even deeper when considering the actual data published (see page 438 of the JAMA publication) for the full text of Otsuka.) In 1994 a comprehensive study of ETS in work environments was conducted at a cost of $8,000 to my company. The results of that study were published in the May 1996 issue of Heating/Piping/Air Conditioning (see HPAC.PDF).  The Washington Department of Labor and Industries refused to comment on our data or review or system. The results for Carbon Monoxide in our company's study show an eight hour time-weighted average Carbon Monoxide exposure of 1.7 parts per million with a range of 0.9 to 2.0 with smoking permitted at work stations. (see data table on third page of HAPC.PDF, which is page 78 of the publication.) The corresponding outdoor Carbon Monoxide concentrations measured at the same time were a mean of 2.8 with a range of 1.9 to 3.5. The data for our company were also consistent with Carbon Monoxide exposures measured in six other Washington office buildings at the time. Otsuka, data however, show that the 30 study participants were taken from a nonsmoking area with a mere 0.40 parts per million Carbon Monoxide and immediately placed in a smoking room with 6.02 parts per million concentration of Carbon Monoxide (an immediate increase of 15 times the previous exposure. The material points about that data are:

 

a.) The Carbon Monoxide concentrations reported ion the Otsuka study are at wild variance with typical work place exposures as actually measured in Washington work sites. This brings special emphasis to the peer review comments about the Otsuka study published by JAMA "In terms of public policy, it would be useful to know how typical these exposures and results are."

b.) The extreme range of Carbon Monoxide levels in Ostuka for nonsmoking and smoking areas are not only atypical of actual exposures but they could also be severe enough to induce the symptoms reported based exclusively on changes in CO exposures and independent of any consideration of ETS.

 

c.) Our test data showed no increased material risk due to Carbon Monoxide exposures because indoor time weighted averages for each work day measured were less than outside air, with smoking permitted at work stations. Would the proponents of I-890 hold all employers accountable for alleged risk to workers when indoor worksite air is superior to outdoor air?

The INTENT AND FINDINGS language of I-901 are directly contradicted by the conclusions of credible and well-credentialed scientists. For example, see the recent study results published by Roger Jenkins, Ph.D., the recently-retired leader of the Environmental Chemistry and Mass Spectrometry Group in the Chenical Sciences Division at Oak Ridge National Laboratories. A January 28, 2005 article that discussed Dr. Jenkins' conclusions was published by OAKRIDGER.COM under the title "The 'Truth' About Tobacco Smoke."  That article says in part:

 

"Just how harmful is environmental tobacco smoke? Not as harmful as the Environmental Protection Agency or those anti-secondhand smoke commercials would have one believe, according to Roger A. Jenkins, Ph.D., consultant to the Oak Ridge National Laboratory's Chemical Sciences division. Jenkins presented 'Human Exposure to Environmental Tobacco Smoke: Is What You See What You Get?' at ORNL this week. 'Some people wish I didn't have the findings I have,' Jenkins said. 'Others say, 'Gee, if this is true, why does the EPA continue to talk about this?' [The research] steps on people's toes, and that's exactly what I want it to do.'" (Underline added.)

 

And the INTENT AND FINDINGS language of I-901 are directly contradicted by the internal conflicts of alleged "studies" conducted by tobacco control advocates. See, for example, the recent statements by tobacco control advocate James Repace, as published by The Associated Press and published in Chief Engineer Magazine's January 2005 edition, under the title "Smoky Bars Versus City Streets:

 

Which is more harmful to your health - a smoky bar or a city street filled with diesel truck fumes? Well, you might want to skip your next happy hour. "Smoky bars and casinos have up to 50 times more cancer-causing particles in the air than highways and city streets clogged with diesel trucks at rush hour, according to a study that also shows indoor air pollution virtually disappears once smoking is banned. . . "This paper will help localities pass smoking bans,' predicted the author, James Repace, a biophysicist who works as a secondhand-smoke consultant after spending 30 years as a federal researcher. 'It shows how beneficial smoking bans are for hospitality workers and patrons.' (Underline added.)

 

Mr. Repace was paid $7,836.50 (see invoice) to testify before the Tacoma-Pierce County Board of Health on December 3, 2003, when it enacted the now-overturned smoking ban in Pierce County. Mr. Repace is a beneficiary of a $300,000 grant from the Robert Wood Johnson Foundation,  which also funded Repace's study quoted by the Associated Press. The purpose of the $300,000 grant was "Analysis of the effects of secondhand smoke in the hospitality industry." Chief Engineer Magazine published a rebuttal of Mr. Repace's conclusions in its February 2005 edition under the title "Smoky Story Lights A Fire."  About Mr. Repace's conclusions, that rebuttal said in part:

 

Such statements promote false health risks for hospitality venues and are often used to promote interests of the foundation's pharmaceutical constituency, including 'Smoke Free' nicotine distributors. Credible facts about alleged dangers of Environmental Tobacco Smoke (ETS) are found somewhere between what constituents are measured and vested interests in doing so. Repace measured respirable particulates, which are not the only constituents of ETS, nor is ETS the only source of such particulates. Mr. Repace's study contains information directly contradicted by other onsite air quality measurements. A study of our company's offices in a Washington suburban office park regarding ETS measured indoor Total Respirable Suspended Particulates (RSP) at a mean of 27.0 micrograms per cubic meter, with smoking permitted at work stations, and an outdoor RSP mean of 22.8 micrograms per cubic meter, an outdoor to indoor RSP ratio of 0.8444. Were we to apply similar ratios to Repace's findings that indoor particulates of 231 micrograms were "15 times the 15-microgram Environmental Protection agency limit for outdoor air" we would necessarily conclude that Delaware outdoor air was 195 micrograms or 13 times the EPA limit and nearly 9 times that recorded in our measurements. What accounts for the significant disparity in the RWJ foundation's study indoor-outdoor RSP ratios compared to those measured by others? Why are study data not reported for outdoor areas adjacent to the bar or casino where indoor RSP was measured? (Underline added.)

 

As noted in Chief Engineer Magazine's introduction to that rebuttal, this author wrote that copy published by the magazine. The above observations about the INTENT AND FINDINGS portion of I-901 barely scratch the surface of credible comment regarding the false nature of statements about ETS included in the initiative. They are sufficient, individually and collectively, however, to demonstrate that such statements are not supported by the National Institute of Environmental Health's conclusions about know carcinogens, the statements are made in apparent defiance of extensive research and investigation by OSHA, the statements are refuted by conclusions of our federal courts, the data in some studies relied on by tobacco control advocates is severely flawed, credible independent researchers strongly differ with such statements, and the conclusions published by some tobacco control advocates are readily rebutted by applying actual on site test measurements of ETS constituents in Washington work sites.

 

Are we to believe that proponents of I-901 are ignorant of the above contradictory information about Environmental Tobacco Smoke? Or, in the alternative, is it true that proponents of I-901 merely chose to ignore - exclude - the vast wealth of credible science and information that directly refutes their wildly extreme claims about Environmental Tobacco Smoke? Either possibility is completely unacceptable, considering that I-901 would establish as state law the wildly exaggerated claims in that initiative's INTENT AND FINDINGS language.

 

For those with an interest in more in-depth information about the science of Environmental Tobacco Smoke I recommend acquiring a copy of the E-Book "The ABC's of ETS"  published by Forces.org.

 

Protecting ALL Workers?

Mr. Bowlds, I-901's sponsor, wrote a Letter to the Editor of the Tacoma News Tribune in support of I-901, "All Workers Deserve Smoke Free Environment,"  that was published in February 1, 2005. In light of the fact that tribal casinos and other hospitality venues are exempt from I-901 that ballot measure will not provide a smoke free environment for all Washington workers. A letter to the Editor of The Tribune by John Kaye, "Only Tribal Casinos Will Benefit From Smoking Ban,"  presents a more realistic view of a statewide smoking ban such as I-901, considering the short-lived but painful hospitality business experience during 2004 with the smoking ban in Pierce County. The Tacoma News Tribune published an editorial "Next Stop November For Smoking Ban Initiative"  supporting I-901 on January 31, 2005. Referring to I-890 that failed last year, The Tribune said:

 

"Opponents tried to confuse the issue with a decoy initiative, but I-890 ultimately ran out of steam because its backers just didn't have enough money to finance a successful signature drive. They're back now. The revived measure, Initiative 901, would also require that all employers under the state's jurisdiction provide smoke-free environments for their workers. A campaign kickoff rally will be held in Tacoma at 7 p.m. Feb. 10 at the Landmark Convention Center. " (Underline added.)

The key words in the Tribune's editorial are: "all employers under the state's jurisdiction." That excludes all tribal hospitality venues. To gain an appreciation of the impact of tribal venues please see WATRIBES.PDF for the locations of 29 federally recognized tribes and the casinos each is allowed to operate. The construction of tribal casinos is not limited to tribal lands, tribes may purchase new land and convert it to "tribal trust land" to establish casino locations in more favorable population centers. This creates a serious and important "Border Area" issue: strategic tribal locations establish magnet zones where patrons who choose to smoke can readily go to tax-exempt and smoking-ban exempt tribal hospitality venues, thereby diminishing the customer base and revenues to nontribal hospitality venues in the surrounding areas. Along with that migration of customers from nontribal to tribal hospitality venues come the transfer of a significant portion of the local tax base from taxpaying to tax-exempt

 

Undisclosed Vested Interests

The initiative appears to be promoted by the American Lung Association of Washington, which sent mass mailings dated January 2, 2005 to solicit petition signatures, volunteers and donations to support an unnamed initiative to prohibit smoking in public places (see PDF copy of the ALA letter, donation solicitation page, and return envelope.) The ALA documents state that checks should be made payable to "Healthy Indoor Air For All Washington." The initiative enjoys strong special-interest financial support from private advocacy groups that are directly connected to "Smoke Free" pharmaceutical nicotine distributor's vested interests, having raised $83,000 as of current reports filed with the Public Disclosure Commission. According to PDC filings to date that $83,000 in funding consists of a November 22, 2004 contribution in the amount of $25,000 from the American Cancer Society,  , an additional $50,000 donation from the American Cancer Society in December 14, 2004,  and an $8,000 contribution by the American Lung Association of Washington on November 1, 2004. This level of funding from private advocacy groups raises serious questions of public lobbying for laws by 501 c-3 tax exempt entities.

 

There is a current and historical connection between both the American Cancer Society and the American Lung Association with pharmaceutical interests and "Smoke Free" nicotine distributors. For example both organizations are current and historic recipients of seven-figure grants from the Robert Wood Johnson Foundation of Princeton, New Jersey, the largest single shareholder of Johnson & Johnson. For example, current or immediately recent grants to the American Cancer Society include $399,574 (13 months, awarded on 12/23/2003, starting 01/01/2004 ending 01/31/2005) ID# 048091  for "Developing a sustainability plan for the Center for Tobacco Cessation" and $749,996 (2 years, awarded on 02/15/2002, starting 02/15/2002 ending 02/14/2004) ID# 040101  for "Developing a virtual center to provide information on guidelines for tobacco dependence treatment." Current or immediately recent RWJ foundation grants to the American Lung Association include $138,900 (1 year, awarded on 11/24/2004, starting 12/01/2004 ending 11/30/2005) ID# 052404  for purposes of "Public awareness campaign to increase the number of smoke-free communities in Illinois," $987,932 (30 months, awarded on 05/14/2002, starting 06/01/2002 ending 11/30/2004) ID# 045147  for purposes of "SmokeLess States: National Tobacco Policy Initiative" and $205,419 (8 months, awarded on 03/29/2004, starting 04/01/2004 ending 11/30/2004) ID# 050428  for purposes of "SmokeLess States: National Tobacco Policy Initiative - Special Opportunities grant - Washington." I corresponded with Kevin Knox at www.cancer.org about grant No. 050428 in April of 2004 (see KNOX0407.PDF.)  Mr. Knox confirmed to me that the grant would be applied to develop a network in native communities regarding tobacco use, including tribes in Washington.

As to historical ties between the American Lung Association and the American Cancer Society with pharmaceutical nicotine distributors please see, for example, a 1996 list of $35 million in grants  to tobacco control advocacy groups that includes $500,000 to the American Cancer Society and $1.1 million to the American Lung Association, in addition to $649,967 to Washington DOC. The American Cancer Society was the nationwide managed of the George H.W. Bush administration's 1991 to 1998 Project ASSIST, Washington DOC was a paid contractor under that program, and the American Lung Association aggressively promoted smoking bans as well as increased taxes on cigarettes during that program. And during that time Johnson & Johnson was distributing Nicotrol "Smoke Free" nicotine delivery device products (see Value Line report  dated March 1998.) In addition, the American Cancer Society has received an annual grant for the past several years from GlaxoSmithKline for use of the cosiety's seal in promoting its Nicorette gum, NicoDerm CQ, and Commit lozenge "Smoke Free" nicotine delivery device products (pick up a box for one of those products at a grocery store or pharmacy to confirm that fact.) Nicotrol products are currently distributed by Pfizer, through its Pharmacia subsidiary.

 

The direct linkage between aggressively promoting smoking bans as a mercantile strategy to increase sales of pharmaceutical products is not open to credible or even tongue-in-cheek question. Sunday January 9, 2005, by the London Financial Times, "Drug Giants To Cash In On Italian Smoking Ban,"  by Andrew Jack. That article was reported by Forces.org. The Times says:

 

A €5m Italian marketing campaign for anti-smoking products is being launched by GlaxoSmithKline this week as pharmaceutical groups gear up to cash in where their rivals in the tobacco sector are losing out. GSK's drive to boost sales of its NiQuitin nicotine replacement gums and patches is timed to coincide with a new local law restricting smoking in the workplace and comes as Italy prepares on Monday to enforce its ban on smoking in bars, restaurants and cafés. Its rival, Pfizer, is also aiming to boost demand for its products in Europe. The fresh focus on the smoking strongholds of southern Europe follows a 36 per cent increase in sales of GSK's products in Ireland since that country introduced a ban on smoking in public places at the end of March. . . . GSK dominates the UK market for nicotine replacement therapies, with sales of £160m (€229m) a year. The company claims that the chances of successfully quitting smoking are about 5 per cent with no assistance, and double to about 10 per cent with the aid of its products." (Underline added.)

 

That direct linkage between tobacco control advocacy groups and increased sales of "Smoke Free" pharmaceutical nicotine delivery device products is further corroborated by a June 2003 published plan to employ government powers for the purpose of replacing cigarettes with nicotine inhalers. The RWJ foundation awarded about $3 million in current and recently expired grants to Washington University in Saint Louis while Dr. Walton Sumner II, MD published a paper "Estimating the Health Consequences Of Replacing Cigarettes With Nicotine Inhalers" under the university's auspices. Dr. Sumner's paper, which explicitly states that smoking bans "reduce opportunities to smoke," and thereby give pharmaceutical nicotine replacement therapy products a competitive edge, was published in the journal Tobacco Control June 2003 at www.tobaccocontrol.org . Tobacco Control journal is also supported by grants from the RWJ foundation. Dr. Sumner explicitly advocates the use of fast acting and highly addictive nicotine inhalers to replace cigarettes. Dr. Sumner also states in his research paper that increased taxes on cigarettes will give pharmaceutical nicotine products a competitive price advantage. Hence, tobacco control advocate's declared strategy to use government influence to increase taxes on cigarettes, and to reduce opportunities to smoke, to give their pharmaceutical nicotine sponsors' products a competitive edge.

 

Adverse Side Effects of Smoking Bans

It is of deep concern that many studies, and even pharmaceutical company statements state that there is only about a 10 percent chance that those products will work for purposes prescribed while other studies, such as works published by Stanford University, clearly establish the products have their won unique health risks. I wrote about the health risk side effects of Nicotine Replacement Therapy in my January 29, 2003 article, "Cancer Risk? Nicotine Replacement Therapy May Do Smokers More Harm than Good," published by the Los Angeles Daily Journal. That work included findings by Dr. John Cooke, Director of Vascular Medicine at Stanford University School of Medicine, that nonsmoked nicotine in pharmaceutical gums and patches stimulates the growth of blood vessels, which in turn can increase the growth of tumors. And a January 2, 2003 broadcast by CBS Evening News reported the National Cancer Institute's conclusion that nicotine is far from benign. Dr. Phillip Dennis was quoted in that report, saying "The take-home point is that nicotine is clearly not harmless." Thos previous reports now assume added significance in light of recent news reports about COX-2 inhibitor and other medications side effects can be an increased risk of heart disease. Would we the people of the State of Washington be passing a law with I-901 that cannot accomplish what it claims to protect all workers health, while advancing the aggressive distribution of pharmaceutical nicotine products that can produce more heart disease and other unexpected adverse side effects?

 

The side effects of smoking bans in general and I-901 in particular extend beyond medical concerns, however. As already noted, in our state a predictable, certain, and known side effect of smoking bans is to cause a migration of hospitality revenue, jobs, and local tax bases from tax paying nontribal hospitality venues to tax-exempt and smoking-ban-exempt tribal establishments. Do we add economic injury to medical insult with I-901, merely to accommodate an out-of-state special-interest mercantile agenda? At what point do the prescribed smoking ban cures for an Environmental Tobacco Smoke problem that does not exist as represented by tobacco control advocates impose so many adverse side effects that the Washington small business whole patient dies in any event?

 

If one is looking for a one way, top-down, dominator model for public policy I-901 is clearly the way to go. We appear to be confronted with an initiative that cannot and will not accomplish what it claims, confers a virtual monopoly to accommodate patrons who smoke to tribal venues, directly advances and supports hidden pharmaceutical nicotine distributor vested interests, is promoted I defiance of well established and credible conclusions about the true risks of Environmental Tobacco Smoke, and will impose a predictable and certain lose of revenue and jobs in the nontribal hospitality small sector with a commensurate loss of tax revenues to local tax districts.

 

Those solicited to sign petitions for I-901 should ask a simple question: "How much loss to residents of the State of Washington is an out-of state pharmaceutical agenda truly worth?"

 

Then, good folks, call it as you see it and sign or vote accordingly.

 

Norman E. Kjono


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