Smokers learned to 'just live with it'

WASHINGTON - Smokers on Tuesday shrugged off a federal judge's ruling that a major report linking second-hand smoke to cancer - a report that cleared the air in public places across the country five years ago - was faulty.

Tobacco industry lawyers are determined to use the ruling to combat anti-smoking laws. But after five years of braving bitter cold and sweltering heat to have a cigarette, smokers for the most part have given up their fight to get back indoors.

"I don't think they'll ever let us back in," says smoker Tom May, 41, an engineer found smoking in the searing heat outside of a Washington, D.C., office building Tuesday. "We'll never get that back."

"It's too ingrained in society now," says his co-worker and fellow smoker Chester Dorsey. "Just forget it. The majority won. You become acclimated and adjust to the situation and you just live with it."

The 1993 report by the Environmental Protection Agency changed the face of offices, restaurants and public places in the USA. It turned the tide of public opinion against the "live-and-let-live" proponents. Smokers no longer could claim they were only harming themselves; they were putting everybody around them at risk.

Now U.S. District Judge William Osteen of North Carolina has legally gutted the study. In deciding a lawsuit brought by the tobacco industry against the EPA, he said Friday that the agency reached its conclusion before doing its research, adjusted standard scientific practices to validate its conclusion and excluded the tobacco industry during the process.

"EPA disregarded information and made findings on selective information; did not disseminate significant epidemiologic information; deviated from its 'Risk Assessment Guidelines;' failed to disclose important findings and reasonings; and left significant questions without answers," Osteen ruled. "EPA's conduct left substantial holes in the administrative record."

The EPA stands by its report and says more recent studies continue to show the dangers of second-hand smoke. The Justice Department is considering an appeal.

"You've got to look at the judge," says EPA administrator Carol Browner. "Where the judge came from."

Osteen, a former pipe smoker, was a tobacco lawyer before becoming a judge, though he recently ruled against the industry by saying the Food and Drug Administration could regulate cigarettes as medical delivery devices.

Report 'had a big impact'

The EPA's report said that second-hand smoke killed 3,000 people a year. That finding is largely credited for clearing the air in public buildings of cigarette smoke.

"It had a big impact on public sensibility," says James Repace, who was a senior policy analyst who focused on second-hand smoke at EPA before retiring in February. "When this came out, it was electrifying."

Some say the report, which reviewed dozens of previous health studies, was not so important - just another in a series of findings that second-hand smoke was bad.

But everyone agrees that it was a pivotal event.

"It became the bible of health effects," says Fran Du Melle, deputy managing director of the American Lung Association. "It was one-stop shopping almost, and it gave policy-makers the ammunition they needed to go forward with state and local ordinances."

Gary Auxier, senior vice president of the tobacco industry-funded National Smokers Alliance, says the report has served for the last five years as "the lynch-pin document for the antis," or anti-smoking advocates.

The report wasn't the beginning of the movement to protect non-smokers from second-hand smoke.

Efforts to restrict indoor smoking began years, and even decades, earlier. In 1971, United Air Lines became the first major carrier to institute separate smoking and non-smoking sections.

Two years later, Arizona became the first state to ban smoking in select public places. Dozens of other states soon followed.

In 1988, federal officials banned smoking on airline flights of two hours or less, and two years later they banned smoking on domestic flights of six hours or less.

But such efforts escalated after the report. They progressed from smoking bans on airplanes to restrictions in workplaces, which had broad popular support, then to restaurants and bars where voters are more split.

The number of clean air ordinances in cities and states across the nation jumped from about 30 a year to about 150, says Repace.

Revisiting restrictions

Osteen's ruling itself will not reverse policies or laws, but it may lead to reconsiderations of smoking restrictions.

Tobacco industry lawyers said Tuesday they are looking for ways to use the ruling in legal fights across the nation. Those battles continue to define where people can and cannot light up.

The industry, which spent $40 million this year on an advertising blitz that helped kill Congress' first serious attempt at comprehensive anti-smoking legislation, is vigorously challenging local and state ordinances.

The efforts that could get a boost from the judge's ruling:

California: Auxier's group is lobbying state lawmakers and using media ads, unsuccessfully so far, to overturn its ban on smoking in bars, which took effect in January.

Portland, Maine: Voters will decide in a November referendum whether to overturn the city council's decision to ban smoking in their 200-plus restaurants. Bars would be exempt unless they are part of a restaurant.

Boston: The Massachusetts Restaurant Association is suing to block the city's ban on smoking in most restaurants, scheduled to take effect Sept. 30. The group argues the ban does not apply equally to all restaurants.

Albany, Ga.: Restaurant opposition is being organized against an ordinance, implemented this year, that bans smoking in restaurants without separately ventilated rooms.

Suffolk County, N.Y.: Eight restaurateurs filed a lawsuit against the county's ban on smoking in most restaurant bars, which until June 30 were exempt from a broader ordinance.

"We're going to be very aggressive about getting this into the hands of decision-makers," says Auxier, adding that it will provide "air cover" for lawmakers opposed to indoor smoking bans.

Auxier says the industry doesn't expect "overnight" to overturn indoor smoking bans. "We're not looking for miracles to happen out of this." But he says the industry will target not only bans directed at restaurants and bars but also those at workplaces.

Doubting ruling's strength

Many health advocates doubt that the federal judge's ruling will set back their efforts. They argue that most scientists agree second-hand smoke poses serious health threats and that most people don't want to return to smoke-filled workplaces.

"There's been science before and science since," says Elva Yanez, associate director of the Americans for Nonsmokers' Rights, a national group based in Berkeley, Calif., that tracks local efforts. "We don't think this will change how people feel about the dangers of second-hand smoke."

Even some smokers agree. "Sometimes you have to be considerate," says Eric Lau, 50, a Washington building engineer. "Whether it's a carcinogen or not, it's just considerate to smoke outside."

Using the ruling as a legal weapon "may actually backfire on the industry," Yanez says. She argues the industry has a history of trying to discredit scientists who show tobacco's harm, and this will be seen as just another of those efforts.

Repace agrees. "For 22 years they have criticized my work," he says. "Most of their arguments are bogus."

But because smokers know that their vice may be capable of hurting others, many are not rushing to try to change the existing rules.

"Smoke did bother people and I don't want to infringe on those people," says Michael Hill, 39, a computer consultant standing in the searing heat outside the nation's Postal Service headquarters Tuesday. Hill, sweat beading up on his forehead, had just fired up the second smoke of his lunch break.

Whenever another smoker walked out onto the front sidewalk, where signs prohibit smoking, cold air spilled from the air conditioned building where non-smokers stay cool.

But Hill is annoyed that a government-funded study could be found so faulty.

"It goes to show you that it all depends on who is paying the scientists," he says. "All of these findings should be taken with a grain of salt."

By Robert Davis and Wendy Koch, USA TODAY

• Cover story index

• Go to World news
• Go to News front page
• Go to USA TODAY front page

Front page, News, Sports, Money, Life, Weather, Marketplace

©COPYRIGHT 1998 USA TODAY, a division of Gannett Co. Inc.