On the passive smoke fraud

Author: John Dunn, MD
Article Published: 05/11/2008

Original date of this article: September 23, 2002 - Two events this summer have invigorated the war to outlaw smokers— The Surgeon General released a 700 plus page report June 27, 2006 The Health Consequences of Involuntary Exposure to Tobacco Smoke that says the debate is over, second hand smoke (ETS) kills thousands.

Then August 17, 2006 Federal Judge Gladys Kessler ruled that second hand smoke was just terrible and the Tobacco Industry must pay some more (United States v. Phillip Morris in the Washington D.C. District Court), admit their perfidy, and advertise the gist of her opinion and approapriate public education on the health hazards of ETS on the web constantly and in newspapers according to her schedule and approval of content.  

 William Osteen 1998

Local politicians and the public might be in a rush to do the right thing, but they might be well advised to take another look, since both these events come less than ten years after the whole second hand smoke crusade by the government was thrown out of court by Federal Judge William Osteen (Flue Cured Tobacco v. United States Environmental Protection Agency Middle District of North Carolina Memorandum Opinion July 17, 1998). Later the 4th Circuit dismissed the case because the EPA presented a technicality, but Judge Osteen’s comments, analysis and condemnation of the misconduct of the anti tobacco researchers stands as a stark reminder of the problem of misconduct by federal agencies and their bought and paid for researchers when they’re working on a religious issue. You may not have heard there is a new national church, the High Church of Holy Smoke Haters, if you spent the last ten years on a boat or in a cave without electricity. 

 What both the surgeons general’s report and the Kessler decision ignore is that Judge Osteen said that the government failed to present reliable evidence on any bad effect from second hand smoke, and there was no reason to continue the suit or to allow the government to continue their campaign against second hand smoke because of government misconduct and a presentation of weak and unreliable research.  The Judge ordered the Environmental  Protection Agency, the original federal anti tobacco agency, to cease publishing their bad science. That bad science reappeared in only slightly modified form in the Surgeon General’s report and the Department of Justice pleading against Big Tobacco in front of Judge Kessler. 

Osteen’s decision in 1998 was devastating to the anti tobacco crusaders inside and outside of government, but apparently the government and the crusaders just ignored it and kept up the chant.  In his opinion delivered after full briefings and submissions of expert evidence, Judge Osteen pointed out that the conduct of the Environmental Protection Agency and their manipulation of science for their argument wasin violation of basic scientific rules. 

To offer a few choice bits from the Osteen memorandum Opinion from 1998:
  • When congress requires specific procedures, agencies may not ignore them or fashion substitutes.
  • It is circular for the EPA to now argue the epidemiology studies support the agency’s a priori theory.
  • The court is faced with the ugly possibility that EPA adopted a methodology for each chapter (a book on second hand smoke by EPA), without explanation, based on the outcome sought in that chapter.
  • EPA should live within its own categorization framework for carcinogens and risk, or clearly explain why they chose not to do so.
  • If the EPA’s a priori hypothesis fails, EPA has no justification for manipulating the Agency’s standard scientific methodology to get the result it desires.
  • (Quoting the 4 Th Circuit)  If agency action is to withstand judicial review, the agency’s actual reasoning must prove reasonable, not the post hoc rationalization devised during litigations (sic).
  • EPA’s study selection is disturbing.  . . . EPA “cherry picked” its data.
  • The EPA excluded nearly half of the available studies . . . and conflicts with EPA’s Risk Assessment guidelines.
  • EPA adopted statistical testing methods rejected by epidemiologists,
  • Using its normal methodology and its selected studies, EPA did not show a statistically significant association between ETS (second hand smoke) and lung Cancer.  (more on what that means herein under)
Judge Osteen killed the second hand smoke campaign in 1998, at least the science and agency policy making part of it, but did we hear about that from the anti smoking slavish press and the High Church of the Holy Smoke Haters crowd?  No, they all just armied on in their arrogant way, no apologies for cheating or cooking the data or ignoring the scientific rules of epidemiology and toxicology.  Judge Osteen was ignored and this past week Judge Gladys Kessler demonstrated that she apparently likes junk science and political correctness and didn’t read Judge Osteen’s opinion.  She was impressed by the government case that was thrown out of court eight years ago. Judge Kessler is moving on to other things, but maybe she’ll get a chance on remand to reconsider reading more and learning the science that Judge Osteen had well in hand.  Judge Kessler appears to have chosen to poll the audience and read the papers rather than read the rules of evidence and the Federal Judicial Center’s rules on admissibility and reliability of scientific evidence found the in the 2nd Edition of the Reference Manual on Scientific Evidence, which is in every federal judge’s library.  There will be a reckoning, provided the defendants have preserved their scientific arguments.  I eagerly await an opportunity to see the D.C. Circuit Court’s analysis of the judge’s reasoning and evidence rulings. 

In the meantime the debate on second hand smoke is not over.  In fact it is getting real interesting and there is good chance Judge Kessler and the Surgeon General will have to admit they were pushed by people overplaying their hand.  The best and most robust and reliable research on second hand smoke in the past 10 years  (e.g. Boffetta et al.   WHO Study of second hand smoke effects. In the Journal of the National Cancer Institute, Oct 7, 1998, and Enstrom and Kabat--ETS and mortality. British Medical Journal May 17, 2003) were ignored by the Surgeon General and Judge Kessler because they showed no significant second hand smoke effect.  That didn’t fit the intention of Kessler and the high church to declare a public second hand smoke crisis.  The studies of the last ten years and before, including the studies done by the priests of the High Church, repeatedly and uniformly show that the second hand smoke population studies do not show a health risk from second hand smoke.  The 10, 20 and 30 percent effects some studies show are not reliable and are ignored by honest scientists.  The EPA did a meta-analysis of ETS studies that it agreed with and could only come up with a relative risk of 1.17, which is not acceptable from observational studies, under the guidance for admissibility rules on science in US federal courts. 

The precautionary principle (accept no risk) is a tool of the ignorant.  It is not an adult or mature and prudent scientific or legal basis for public policy making in a free society.  It depends too much on the anxieties of the few and ignores the rights of the many.   For example, there are risks involved in not accepting risks.  The second hand smoke population health effect studies fail repeated and always to show the reliable effect, but the crusaders from the High Church tell the public and politicians that second hand smoke causes a ten, twenty, or thirty percent increase in deaths and bad health effects, but fail to tell the truth that they are cheating on the analysis and their studies are below acceptable proof of any effect at all.  No responsible epidemiologist would use anything less than 100 per cent effect in discussing toxic effects from population studies.  They are not allowed by the rules to pick these 20 or 30 percent effects and claim to the public they mean something or they should lose their appointments and their credibility.  Some epidemiologists insist that the effect in these studies must be 200 percent or relative risk of 3.  None of the credible second smoke studies show effects above 30 percent.  Smoking a pack of cigarettes a day increases risk of cancer deaths, compared to non-smokers risk of 1% lifetime risk, to a 10% lifetime risk, one thousand percent.  The continuous all day exposure to second hand smoke is the equivalent of less than one cigarette smoked.

Population studies are numbers games and the people from the Church of Smoke Haters are lying to the Judges when they can, and even to the Surgeon General.  The Surgeon General is clearly not a competent epidemiologist, but just the guy who signs the checks and the reports.  His background was a public health committed Surgeon. A legitimate epidemiologist claiming the things that are claimed by the government on second hand smoke would be laughed down at any respectable and honest university, and lose his credibility.  But the strange thing is university faculties and public health researchers allow cheating on tobacco and some other politically charged subjects.  If the subject was some other health effect less politically charged these studies would have been in the shredder instead of shown to anxious political leaders trying to avoid the noisy activists.  The researchers that support the anti tobacco movement, even with junk science, are honored by the public health community as heroes—even if they cheat on the numbers and even if they promote unjustified public panic. 

The British House of Lords, just this year, refused to recommend action on second hand smoke after debate and consultation with British experts in epidemiology like Sir Richard Peto, who said the population studies showed no evidence of measurable bad health effects from second hand smoke.  Imagine that, given the nanny-state that is Britain. Is the United States ready to forget the grand experiment of alcohol prohibition?  Are the British more concerned about personal freedoms than Americans? 

I work as an emergency physician and I know how people die.  They don’t die from second hand smoke.  This is a campaign built on goofy deceitful data manipulation by desktop anti-smoking commandos of the public health and legal community.  None of the second hand smoke haters can show me one death, not one death from second hand smoke.  People die all the time from lots of things, but not from exposure to the equivalent of a cigarette a day.  My goodness, I worked as a farm boy in dusty barns, without suffering.  The anti smoking scientists are still trying to find a way to condemn any smoke any time anywhere, but their scientific studies fail them.  It doesn’t shut them up though, because they want prohibition and want to stop the smokers.  Second hand smoke is their only weapon. 

The second hand smoke population studies are a secret joke in the epidemiology and public health field, because there is a devoted and fanatic group that knows they are playing with people’s cancer and health fears.  The fanatics of the church of the stubbed cigarette know that smoking prohibition can only be accomplished by the second hand smoke panic but the data and research for their crusade are weak and unreliable.   They also know that the media make panicmongering an art form. So the fanatics exaggerate, have the suburban housewives and mothers as well as nervous politicians in a panic to protect the kids, the handsome and earnest physician on TV reads the claims that cigarette smoke is killing thousands of American kids in the streets, more deaths in America than you can imagine.  It’s a wonder we haven’t had violence, but that is so far. 

As an emergency physician, I am a toxicologist by training and necessity, I know that the anti smoking physicians are campaigning to eliminate cigarette smoking, and couldn’t be bothered by a  lack of good science on second hand smoke. Toxicology is about dose, and second hand smoke in its worst case is less than a cigarette a day.  Smoking a cigarette a day is not a cancer or any other health risk, thanks to the fact that the dose is insignificant and bodies are not that fragile.  The studies on health effects of ETS all show effects in small ranges below level of proof. 

The Medical Profession has been recruited and they are willing to tell a few white lies because they hate smoking.  (Soon  these well-intentioned nannies will be after fat people and people who eat the wrong foods—whoops, forgot, that’s already happening).  The population studies and the scientific truth on second hand smoke don’t support the handsome well -intentioned pediatrician reading from the anti smoking script some pseudo scientific claim of thousands of deaths from ETS, but he just knows he is lying for a good cause if he knows epidemiology.    The Surgeon General  and Judge Kessler were also just being led by public health scientists on ETS and they are not well informed about the weak science and lack of proof of deaths or disease from ETS. 

Given the trial court judiciary’s inclination to read the papers and test the wind on issues that the left has taken to high dudgeon, the Circuit Court may be the best place to kill this second hand smoke junk science.  The Supreme Court or politicians will not be inclined to go contrary to the public advocacy noise, even if the science shows no effect.  The left wing of the Supreme Court and the politicians have swallowed the precautionary principle so at the circuit court is the best chance to kill second hand smoke junk science one more time.  The Supreme Court can just refuse to reverse the remand, an easier avenue.  Otherwise prohibition and increasing intrusive interference with smoker’s rights to be left alone will be fabricated. 

Some of the fanatics would probably consider prohibition and think that smoking should be a felony—that’s why we call them fanatics.  But they need to be considered as the environmentalist true believers, and stopped from asserting control. 

This writer hopes that when the Circuit Court looks at Judge Kessler’s opinion they will have on their desk a very important set of scientific rules of evidence and reliability described in The Federal Judicial Center’s Reference Manual on Scientific Evidence (2nd Edition) distributed to all Federal Judges (West Group 2000).  If one reads the chapter on Epidemiology by Green, Freedman, and Gordis, internationally respected epidemiologists, in the business of studying health effects in populations, the misconduct of the government and the mistakes of Judge Kessler and the Surgeon General will be revealed. 

The authors assert in the chapter, for the benefit of the federal judge and lawyer audience, that reliable proof of causes in population studies demands that the effect be 200 per cent or more than the disease or effect in the unexposed population.  The minimum effect, but not really reliable is 100 percent.  That means that Judge Kessler and her favorite witness in the trial, Dr. Jonathan Samet, who now holds Dr. Gordis’ old chair at Johns Hopkins decided to put one over on the public and claim that 20 or 30 percent effect is important.  He knows that is a lie.  There is no way to make his deceit nice or an honest mistake.  Dr. Samet wouldn’t use 20 percent or 30 percent in any other non political population health effects studies, but he has carved out an exception for ETS, air pollution, obesity, radon where pseudo science substitutes. 

Public officials should back off of moving in panic mode and trust their instincts to be skeptical of noisy federal agencies, their bought and paid for “researchers” and the mouthpieces for activist groups like Stanton Glantz of San Francisco, who heads a tobacco campaign from an academic seat in a university, probably in violation of his ethical duties as a member of a University Faculty. 

There is another game going on here—cheat on the data analysis and proclaim a toxic effect, then move quickly to the best part, telling people how to live.  Public Health Scientists have become the equivalent of schoolteachers and counselors—looking to make a wave and change society instead of sticking to the effort to find the truth. These noisy “scientists” also act like journalists, trying to shape public policy and opinion.  Pubic Health officials are a new and dangerous group of agitators and propaganda makers, taking advantage of their positions to push their political views.    This new generation of public health researchers are convinced they are critical to the survival of the human race, and they will cheat on the science to move their agenda. 

Public Health Officials and researchers should be kept away from serious work and decision making, since they have abandoned even the pretense of following scientific rules and properly advising the public on health risks.

A good investment would be a manual of scientific evidence for all local, federal and state agency researchers and a close look at the Osteen opinion.  Why did the federal government spend tens of millions of dollars on a lawsuit this past year that retried a case the government lost 8 years ago?  Why is everyone hailing the Surgeon General and the Opinion of Judge Kessler, both based on junk science?  

John Dale Dunn MD JD 


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