Proposed Anti Smoking Bylaw Region of Sudbury

A SMOKING GUN

DATE: Sunday, May 9, 1999 - (Ontario)
TO: Concerned Citizens
From: Michael Hennessy, LL.B, M.B.A.

You all have heard about crime stories involving a smoking gun.

The police are at the door of the victim’s house, when they hear a shot ring out. The cops barge in and there lying near dead on the floor is the hapless victim. Standing over the limp body is the suspect, holding a gun. And from the barrel, wafting upward, is the telltale wisp of gun smoke.

The police did not see the suspect pull the trigger. There is no eye witness evidence linking the suspect to commission of the crime. The smoking gun however, is strong, even overwhelming, circumstantial evidence that the suspect did the evil deed.

The phrase “smoking gun” has become a popular euphemism for overwhelming circumstantial evidence of a misdeed.

I’ve seen a “smoking gun”, in connection with the proposed anti smoking bylaw for the Region of Sudbury. The gun was being held by none other than the Task Force promoting the bylaw.

And the victim ? The victim of this misdeed was “Truth”. The “Truth” has been violently assaulted, and lies grievously wounded on our community’s floor.

Allow me to elaborate.

The Task Force had to have a starting point. The starting point was that second hand tobacco smoke (also called passive smoke, or environmental Tobacco Smoke - ETS) was a health hazard to non-smokers.

This claim, or conclusion, was implied to be a Fact, that is by implication supported by science. Surely the Task Force, assisted by the Sudbury District Health Unit, would not make these kinds of claims unless they were supported by good science.

Now the actual claims of the Task Force were set out succinctly on a single page of their basic package. All told, about a half dozen specific health risks are claimed on the Task Force sheet.

As it turns out virtually each and every one of those claims is directly linked to, if not a direct quote from, the most widely publicized study ever done on the effects of ETS. That study was the seminal work of the Environmental Protection Agency in the US, a gargantuan government bureaucracy.

The EPA study was completed in late ‘92 and released in early ‘93, and has been circulated and relied on by anti-smoking interests ever since. Passive smoke was responsible for a number of lung cancer deaths every year in the US, the study concluded. It also was conclusively linked to an array of other health problems.

A few words are in order about why the EPA study carried the influence and wide circulation that it did. It wasn’t technically a study itself, but rather a meta-analysis of dozens of other studies. It was supposed to be independent of bias, whether from Big Tobacco interests or the growing Anti Smoking Lobby. And it was supposed to be conducted according to fairly rigorous, conventionally accepted scientific principles. With these credentials, it was understandable that the study would enjoy high credibility, and broad circulation.

But that study was challenged, and leading the challenge were the Tobacco companies. The EPA was not going to be lightly intimidated. With the significant resources of the US Government, and their high priced lawyers and scientists, the EPA was ready for the challenge.

And what a battle it was in the Federal US Court. The litigation dragged on for over 4 years. And on July 17, last year (‘98) Judge Osteen handed down a 90 page decision on the validity of the EPA study.

He threw it out.

In legal language the Judge ‘vacated’ all of the chapters and appendices that had linked second hand smoke to health risks to non-smokers. ‘Vacated’ means to annul, or cancel, and the practical effect was to prohibit the EPA from circulating their study. Indeed, if you go to the EPA web site, you will see a number of listings showing where the full text of that study is, but they have all been rendered inoperative. It simply isn’t available, as if it didn’t exist.

On the other hand, Judge Osteen’s decision is available, in full, for free, on the web. FORCES Evidence 'The Whopper'. It is nothing short of a scathing indictment of the shoddy and suspect science of the EPA in reaching their conclusions.

In simple terms, the EPA cheated. And they got caught. They were passing off as good scientifically established conclusions, claims that were not supportable by their own, usual standards. Here are some of the things the judge had to say:

» the EPA disregard key information - excluding from its analysis nearly half of available studies

» made findings on selected information

» deviated from its own internal Guidelines

» failed to disclose important findings and reasoning

» left substantial holes in the administrative record

» found evidence to support the accusation that EPA “cherry picked” its data

Indeed, the judge says that when the EPA first crunched the numbers, consistent with its own internal guidelines, the data established there was no statistically significant link between passive smoke and certain health risks. Shame on them.

Given the embarrassment of the judicial findings, it should come as no surprise that the EPA decided in late ‘98 to appeal the Court’s ruling. This ought to tie up the whole thing in the appeal courts for a few more years. The question remains though, where does that leave us.

And the simple answer is, in a state of uncertainty. For the time being though, it is just as clear, that we can not rely on the EPA study as good science. And we certainly cannot allow the key conclusions of that study to be held out as facts, ‘Fast Facts’, or anything purporting to be truth according to conventionally accepted scientific principles.

And that all leaves the Regional Task Force in a bit of a bind. Their fingerprints are all over the smoking gun. And Truth has undoubtedly been the victim.

The very foundations of their recommendations have been shown to be bogus. It strikes me that the Task Force has a couple of obligations incumbent upon itself in light of this revelation. Their first duty, metaphorically speaking, is to drop the gun. Stop firing. They can do this the same way the EPA did, as they were required by law. Specifically they should immediately withdraw from circulation all handouts, overheads, brochures etc., making claims that have as their origins the findings in the discredited EPA study. And, to the extent that they choose to report of the work of the EPA, for some kind of historical perspective, like the EPA they should preface their publications the same way the EPA does now. That is by printing at the top of the document a Disclaimer warning readers that an independent court has considered the claims and invalidated these claims.

Their second duty is to assist the victim. Stop the bleeding and get some first aid. In effect , to make positive efforts to undo the damage and rehabilitate Truth. And this means owning up to the misdeed of promoting as ‘facts’, claims which have been judicially recognized as invalid. It also means reconsidering their recommendations, without reliance on the EPA conclusions. And it also means taking extra special care now in relying on, or publishing any claims about the health risks of passive smoke.

As bad as this smoking gun analogy might appear at first blush for the Task Force, it makes no comment on their intentions, or state of (collective) mind. I, for one, presume honourable intentions. Many of the Task Force, if not all, willingly gave of their time for the benefit of the community. They are, I believe, all well meaning individuals.

But now is the time to demonstrate those good intentions. Put down the gun, and resurrect Truth.