Environmental Tobacco Smoke (Ets) In Perspective
Material Risk, Regulatory Standards, And Study Results
Material Risk, Regulatory Standards, and Study Results
By Norman E. Kjono, May 27, 2007
In 2004 the American Society of Heating, Refrigeration and Air-Conditioning Engineers published revised Indoor Air Quality (IAQ) and ventilation standards. The full text of ASHRAE Standard 62.1-2004 may be accessed by clicking on the preceding bold, underline text. Section 6, Procedures, will be the section discussed in this work.
The revised standards dramatically changed ventilation rates to establish minimum acceptable Indoor Air Quality in building environments. According to published reports, the new standard reduced minimum cubic foot per minute required airflows in food and beverage service establishments by fifty to sixty-nine percent. See, for example, Trane Engineer's Newsletter Volume 34-5, "CO2-Based Demand-Controlled Ventilation." Page 3 of that document includes Table 1., which lists minimum ventilation rates under ASHRAE 62.1-2004 compared to previous 62-1989 standards. Smaller reductions in minimum airflows for offices and hotel rooms were also included in the revised standards. A more detailed table of minimum airflows can be found on pages 12 to 14 in Section 6 of ASHRAE Standard 62.1 linked above.
Declines in minimum airflow and reductions in intake of outside air provide significant savings for building owners and managers and many business owners. The economic savings are realized by reducing required ventilation equipment installed in new buildings and diminished energy requirements to treat and circulate outside air for existing buildings. The new standard can facilitate reduced capital costs and provide substantive reductions in energy expenses related to filtration and heating or cooling of intake air, as well as costs associated with circulation of indoor air. Such changes in ventilation standards and rates also materially reduce overall Indoor Air Quality (IAQ).
Since the largest reductions in required minimum airflow under ASHRAE 62.1 are for food and beverage service facilities, both the economic incentives and demand for smoking bans necessarily focus on the hospitality trade. Such demand is prompted by a desire to realize economic benefits, however, and have little to do with either the alleged toxicity of ETS or genuine public health concerns. In fact, reduction of ventilation standards, air flow, and intake of fresh outside air are directly contrary to public health when one considers emerging science regarding carcinogens not related to ETS that are directly tied to lung cancer among nonsmokers.
ASHRAE Standard 62.1 presented a significant problem, however: hospitality trade patron discomfort would be extreme if smoking continued in venues where ventilation airflow was reduced by fifty percent or more. This is confirmed by "Secondhand Smoke Consultant" James Repace, who stated on page 3 of his paper "Can Displacement Ventilation Control Secondhand ETS?" The air in a restaurant discussed in that report showed doubled levels of CO2 and Repace reported that the air "felt stuffy" under the new ASHRAE standard, with smoking prohibited. The obvious solution was to expand smoking bans to include hospitality trade venues, most of which were statutorily exempt from or not included in most state smoking bans. That was accomplished by ASHRAE stating that smoking areas were no longer addressed by the reduced airflow standards (see, for example, Workplace Group, "Review of ANSI/ASHRAE Standard 62.1, Part 3"). The explicit ASHRAE statement concerning smoking areas is found on page 14 of the ASHRAE Standard 62.1 (see link at top of page):
"6.2.9 Ventilation in Smoking Areas. Smoking areas shall have more ventilation and/or air cleaning than comparable non-smoking areas. Specific ventilation rate requirements cannot be determined until cognizant authorities determine the concentration of smoke that achieves an acceptable level of risk. Air from smoking areas shall not be recirculated or transferred to non-smoking areas." (Underline added.)
In short, if building owners want to realize significant economic advantages by reducing ventilation rates as provided by the new ASHRAE Standard 62.1 they must prohibit smoking. Conspicuously absent from the above ASHRAE 6.2.9 statement is any reference to the fact that the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has established Permissible Exposure Limits (PELs) for ETS market constituents such as nicotine and that in February of 2003 OSHA reiterated its position that in normal work environments its PELs are not exceeded (see "Reiteration Of Existing OSHA Policy In Indoor Air Quality," dated February 24, 2003). OSHA has also stated that a dose-response market for ETS as a whole (rather than by individual constituent) could be developed (see page 9 of OSHANOTES.PDF). In fact, many studies show that nicotine concentrations in smoking environments are consistently a mere fraction of the OSHA PEL.
If more "protection" from ETS beyond OSHA's current federal regulatory position were desired sensors for the ETS marker as a whole could be employed to automatically adjust airflow volume to bring indoor air to compliance with standards beyond ETS-related OSHA exposure limits. Sensor adjustment for the ETS constituent level that triggered increased ventilation would select the level of worker and patron "safety" in excess of current federal standards desired for the premises. As noted above, similar demand controlled ventilation based on C02 is already employed in ventilation systems. Thus, both current worker safety standards and the ventilation technology required to provide demand controlled ventilation to established standards for ETS are readily available. A laudable benefit of such systems would be that as ventilation automatically adjusted to accommodate smoking the same system would also mitigate other airborne constituents. Since ETS is currently managed to well below federally recognized worker safety exposure limit standards for an eight hour work shift no additional material risk to workers or patrons would be imposed by such systems, the demand oriented systems would present an advancement of Indoor Air Quality policy and technology.
The ASHRAE position that its 62.1 Standard only applies to nonsmoking areas is therefore unwarranted and unnecessarily severe based on both OSHA workplace safety and health standards and currently available technology. In fact, ASHRAE's 62.1 Standard is directly focused on banning smoking for political and economic reasons that are not related to either the alleged toxicity of ETS or reasonable abatement technology. This issue can of great importance to judicial review of smoking ban regulations as currently promoted and passed in many states.
Extending smoking bans to the hospitality trade to accommodate reduced air flows required a major and sustained effort by tobacco control advocates. That effort has historically been supported by building owners and managers to substitute smoking bans for meaningful Indoor Air Quality regulation. For example, the April 1994 news letter of Building Owners and Managers (BOMA), Potomac Currents, presented its position to support indoor smoking bans as a substitute for Indoor Air Quality regulation (see BOMANEWS.PDF). Referring to a smoking ban in place of OSHA's then-proposed Indoor Air Quality regulations BOMA said:
"BOMA's support of this ban is directly related to efforts aimed at preventing indoor air quality regulations - and that is real threat this year."
Having successfully stopped OSHA's comprehensive Indoor air Quality regulations as proposed in 1994, building owners now move to reduce ventilation and Indoor Air Quality to save money, again advocating smoking bans to accommodate current demands. ASHRAE 62.1 Standard, and ASHRAE's unwarranted proscription of smoking therefore become a continuation of conduct to oppose genuine Indoor Air Quality that began more than thirteen years ago. That pattern leave no reasonable doubt that smoking bans are supported and promoted for reasons not related to the bona fide risks of ETS.
Since historical progression of events are inherently involved in long term policy advocacy a brief summary of critical events concerning tobacco control is provide below. That summary begins in 2004, the year ASHRAE announced its new minimum acceptable ventilation standards.
2004 marked the beginning of an aggressive expansion of smoking bans to hospitality trade venues. While advocacy efforts preceded that year's events, it is clear that new smoking bans focused on the hospitality trade by and large began to become effective in 2004.
In the State of Washington, the year began with television advertisements featuring former surgeon general Dr. C. Everett Koop touting the benefits of hospitality trade smoking bans. Dr. Koop's implicit message was that smoking bans were good for business because when smoking was banned nonsmokers who formerly stayed home to avoid noxious fumes and unsafe, deadly toxins would come out in droves. New nonsmoker patrons would allegedly make up for loss patrons who smoke staying away from bars, taverns and restaurants where smoking was banned.
In 2004 purported scientific studies that concluded ventilation could not safely mitigate the extreme risks of Environmental Tobacco Smoke in hospitality establishments were published. Tobacco control proclaimed "There is no safe level of exposure to secondhand smoke." During this year the smoking ban passed by Pierce County, Washington also became effective. Despite the Robert Wood Johnson Foundation "facilitating" nearly $200,000 to defend it, that county ban was overturned by state superior, appeals, and supreme courts. Washington tobacco control launched two initiatives (I-890 and I-332) plus legislative bills to ban smoking in all indoor work places. The initiatives did not garner sufficient signatures to be placed on the November 2004 ballot and smoking ban legislative bills failed.
By the end of 2004 tobacco control had failed to gain sustainable momentum in its smoking ban advocacy. In at least one state tobacco control - and therefore new public policy required to support dramatically reduced ventilation in hospitality venues - stood as rejected by the people in two initiatives, the legislature, and state courts.
In June of 2005 ASHRAE published its "Environmental Tobacco Smoke Position Document." The paper concluded on page 2 that "At present, the only means of effectively eliminating health risk associated with indoor exposure is to ban smoking activity." Two members of the ASHRAE Environmental Tobacco Smoke Position Document Committee that authored the society's opinion paper have deep and long standing ties to tobacco control advocacy funded by the Robert Wood Johnson Foundation, among the top five institutional shareholders of NicoDerm CQ patch manufacturer Johnson & Johnson.
2005 also marked the introduction of statewide smoking ban I-901 in Washington, to which $1.6 million was committed. The majority of funding for that initiative came from Robert Wood Johnson Foundation grantees. Private clubs did not oppose I-901, believing they would be exempt. The Washington Restaurant Association did not oppose I-901. A combination of multi-million dollar support and acquiescence by the state restaurant association, together with a fatally-flawed opposition, assured that the hospitality trade smoking ban passed. Why would the Washington Restaurant Association oppose I-901 when its large franchise chain members stood to reap significant economic benefits achieved through reduced ventilation requirements and diminished Indoor Air Quality minimum standards? An added incentive for restaurant associations to support smoking bans is that the most adverse economic consequences of the bans fall on small, independent bars, taverns and restaurants, thereby presenting an opportunity for large franchise operations to increase market share.
In 2006 the effort to expand smoking bans to the hospitality trade gained momentum. In Colorado the state legislature passed a smoking ban that included bars, taverns and restaurants. Ohio Voters passed I-5, which instituted a similar ban though with more severe penalties and enforcement than Colorado. Other states followed suit.
To support momentum of smoking bans in hospitality venues additional reports, purported to be legitimate earnest scientific inquiry and showing that ventilation could not safely mitigate tobacco smoke, were published. Tobacco control groups such as the Campaign for Tobacco-Free Kids and the American Cancer Society aggressively supported smoking bans through political advocacy, infrastructure to assist initiatives, and cash donations. The research report authors and advocacy groups were unique in one respect: they were supported by significant and sustaining grants from the Robert Wood Johnson Foundation. It is ironic, and to degree frightening, that the researchers' and advocacy groups' efforts were directly aimed at supporting reduced ventilation rates and consequently diminished Indoor air Quality in the name of clean indoor air.
Genuine Public Health Concerns
When combined with ASHRAE's now-reduced ventilation rates and reduced Indoor Air Quality, smoking ban advocacy becomes dangerous to legitimate public health. The health dangers that such self-serving policy imposes are high-lighted by a March 2005 report published in the Journal of the National Cancer Institute. See Science Daily, March 21, 2005, "Study Examines Role of EGFR Gene Mutations In Lung Cancer Development,"
"A new study has found that mutations in either of two genes are involved in the development of lung cancer. One of them is the first known mutation to occur specifically in never smokers, according to a new study in the March 2 issue of the Journal of the National Cancer Institute. . . . These results also "suggest that exposure to carcinogens in environmental tobacco smoke may not be the major pathogenic factor involved in the origin of lung cancers in never smokers but that an as-yet-unidentified carcinogen(s) plays an important role." (Underline, italic added.)
The danger arises form the "as-yet-unidentified carcinogen(s)" that "play and important role" in "the origin of lung cancers in never smokers." Many of the carcinogens that play an important role in the lung cancers among nonsmokers, and which are not directly or indirectly related to tobacco smoke, are clearly identified. Moreover, some of those carcinogens are directly and necessarily tied to the hospitality trade.
The association of cooking with oil and lung cancer among nonsmokers dates to at least the December 1992 EPA report on secondhand smoke, "Respiratory Health Effects of Passive Smoking: Lung Cancer And Other Disorders" (EPA/600/6-90/006F), on which tobacco control advocates have relied for more than a decade. For example, see page 5-54 of that identifies cooking with oils as having a positive association with lung cancer. The EPA report said:
"Cooking with oil was examined by GAO and WUMI, both conducted in China, with positive association for deep drying (OR ranges of 1.5 to 1.9 and 1.2 - 2.1, respectively, both increasing with frequency of cooking with oil). GAO reports positive associations for stir-frying, boiling (which in this population often entails addition of oil to the water), and smokiness during cooking and found that most of these effects seemed specific for users of rapeseed oil." (Underline added.)
Observations concerning the association between cooking with oil and lung cancers in nonsmokers were confirmed by a study published May 1, 2006 in the journal Cancer Research (66, 4961-4967). See "Dose-Response Relationship between Cooking Fumes Exposures and Lung Cancer among Chinese Nonsmoking Women:"
The high incidence of lung cancer among Chinese females, despite a low smoking prevalence, remains poorly explained. Cooking fume exposure during frying could be an important risk factor. . . . Multiple unconditional logistic regression was used to estimate the odds ratios (OR) for different levels of exposure after adjusting for various potential confounding factors. . . . The ORs of lung cancer across increasing levels of cooking dish-years were 1, 1.17, 1.92, 2.26, and 6.15. After adjusting for age and other potential confounding factors, the increasing trend of ORs with increasing exposure categories became clearer, being 1, 1.31, 4.12, 4.68, and 34. The OR of lung cancer was highest for deep-frying (2.56 per 10 dish-years) followed by that of frying (1.47), and stir-frying had the lowest OR (1.12) among the three methods. Cumulative exposure to cooking by means of any form of frying could increase the risk of lung cancer in Hong Kong nonsmoking women. Practical means to reduce exposures to cooking fumes should be given top priority in future research. " (Underline, italic added.)
It is noteworthy that the OR risk factor for lung cancer among nonsmokers allegedly caused by exposure to Environmental Tobacco Smoke published by EPA in 1992 was 1.19 at a 90 percent Confidence Level. In contrast, the above ORs for lung cancer due to fumes caused by cooking with oils increase to 6.15 and 34.0 over time, presumably at a 95 percent Confidence Level. ASHRAE 62.1 Standard permits the greatest decreases in ventilation airflow and reductions for intake of fresh outside air (reportedly ranging from fifty to sixty-nine percent) in the food and beverage service category. In addition, ASHRAE has stated that the only way to eliminate the risks of exposure to ETS is to prohibit smoking activity.
It therefore becomes evident that ASHRAE standards effectively prohibit a lawful activity, smoking tobacco products, that has a risk factor so low it is subject to chance (1.19 at 90 percent CL) but permits continued exposures to substances with OR's so high over time (6.15 to 34.0 at 95 percent CL) that the causal association with lung cancer is virtually conclusive. Is selective prohibition based on political and mercantile agendas being imposed in defiance of established federal regulatory authority that supports genuine public health measures? The issue raised is not whether persons who lawfully consume legal tobacco products have a constitutionally protected right to do so; the important issue raised is that activities for which causal associations with lung cancer among nonsmokers is virtually nonexistent are prohibited, while cooking activities that present apparently certain causal associations continue to be permitted. The final question that the above information presents is compelling: how can such conflicting and contradictory standards possibly support a legitimate state interest?
In addition, a 2005 study found positive associations of lung cancer with fuels used for cooking. See "Lung Cancer and Indoor Pollution from Heating and Cooking with Solid Fuels:"
"Exposure to fuel from cooking and heating has not been studied in Europe, where lung cancer rates are high and many residents have had a long tradition of burning coal and unprocessed biomass. Study subjects included 2,861 cases and 3,118 controls recruited during 1998-2002 . . . The odds ratio of lung cancer associated with solid fuel use was 1.22 (95% confidence interval (CI): 1.04, 1.44) for cooking or heating, 1.37 (95% CI: 0.90, 2.09) for solid fuel only for cooking, and 1.24 (95% CI: 1.05, 1.47) for solid fuels used for both cooking and heating. Risk increased relative to the percentage of time that solid fuel was used for cooking (ptrend < 0.0001), while no risk increase was detected for solid fuel used for heating. The odds ratio of lung cancer in whole-life users of solid cooking fuel was 1.80 (95% CI: 1.35, 2.40). Switching to nonsolid fuels resulted in a decrease in risk. The odds ratio for the longest duration of time since switching was 0.76 (95% CI: 0.63, 0.92). The data suggest a modest increased risk of lung cancer related to solid-fuel use for cooking rather than heating." (Underline added.)
The highly significant import of conclusions in the above three studies is amplified by the fact that the risk factors (OR Odds Ratio) of those studies are all higher - and in some cases vastly greater - than the 1.19 OR for lung cancer among nonsmokers allegedly attributable to ETS published the 1992 EPA report on secondhand smoke. Considering that the Confidence Level for lung cancers allegedly caused by ETS in the 1992 EPA report was 90 percent (versus the customary 95 percent), the importance of the above conclusions about cooking with oils and use of solid fuels such as wood is further emphasized.
As intake of fresh outside air and ventilation rates are reduced the above-identified carcinogens associated with lung cancers in nonsmokers predictably stabilize and concentrate to higher levels compared to previous levels with higher ventilation. The health effects on hospitality works becomes more pronounced over time due to the observations that ORs increase with longer chronic exposures. In the May 2006 study published by Cancer Research, ORs associated with cooking with oils increased to 6.15 and 34.0 in time-sensitive analysis.
The above study data are materially important when one considers the observations published by tobacco control advocates concerning lung cancer in hospitality trade workers. Americans for Nonsmokers' Rights, a Robert Wood Johnson Foundation 44 million-plus grantee, published "Secondhand Smoke: Worker Health," which says about hospitality workers and lung cancer:
"Food service workers have a 50% greater risk of dying from lung cancer than the general population, in part, because of secondhand smoke exposure in the workplace."
The Campaign for Tobacco-Free Kids, an $84 million Robert Wood Johnson Foundation grantee, published a July 14, 2005 document that strongly attacks ETS ventilation and abatement approaches. That report, "Ventilation Technology Does Not Protect People From Secondhand Smoke," says in part:
"At present, the only means of effectively eliminating health risks associated with indoor exposure is to ban smoking activity." - American Society of Heating, Refrigeration and Air-Conditioning Engineers (June 2005)
As this quote from a June 2005 report by the American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRE), the national and international standard setting body for indoor air quality, clearly states, there are no means short of prohibiting smoking in indoor air environments that protect everyone from the harms associated with exposure to secondhand smoke." (Underline added.)
We observe tobacco control smoking ban advocacy directly supporting a reduction in ventilation rates and Indoor Air Quality in the name of clean indoor air. This is the apparent solution to address health concerns about an employment population that tobacco control says "have a 50% greater risk of dying from lung cancer." The fact that the revised ASHRAE standards that tobacco control aggressively supports can increase the risks for lung cancers from airborne carcinogens not related to tobacco smoke adds a degree of urgency to replacing smoking bans with responsible Indoor Air Quality regulation.
A Matter of Compelling Public Interest
The question of whether current ventilation under ASHRAE 62.1 Standards that reduce ventilation rates and diminish overall Indoor Air Quality can protect hospitality workers and patrons from any airborne carcinogen associated with lung cancer in nonsmokers rises to a matter of compelling public importance. If ETS with an OR of 1.19 at a 90 percent Level of Confidence for lifetime exposures in a EPA 1992 study is so lethal that ventilation exhaust in a restaurant kitchen cannot protect hospitality workers from tobacco smoke then the same ventilation hood surely cannot provide reasonable protection from cooking oil carcinogens with extended exposure ORs as high a 6.15 or 34.0 at 95 percent confidence that are confirmed in a 2006 Cancer Research study. Whether hospitality trade members should fear or embrace tobacco control advocacy and new ASHRAE 62.1 Standards, as Americans for Nonsmokers' rights framed the question, could become a literal question of life or death for hundreds of thousands of hospitality trade workers.
In light of the three studies (one of which is heavily relied upon by tobacco control advocates) and additional information presented above, consider the health prospects for hospitality workers in an environment were ventilation intake of fresh outside air is dramatically reduced. Then consider economic incentives for building owners to reduce Indoor Air Quality crafted by a professional standards society. That information strongly implies that the longer a worker earns their living in the hospitality trade the greater the risk of lung cancer from cooking with oils and use of solid fuels such as wood or BBQ briquettes.
Substitution of Federal Worker Safety Standards
The above-referenced Campaign for Tobacco-Free Kids' statement, ". . . the only means of effectively eliminating health risks associate with indoor exposure is to ban smoking activity" (underline added) raises an important additional issue: the substitution of a private "Zero Tolerance" de minimis risk standard for federally recognized material risk, as expressed through Permissible Exposure Limits (PELs) published by OSHA. None of the ETS constituents measured in tobacco control studies approach, let alone exceed, established OSHA PELS. ASHRAE is not a federally recognized worker safety agency, nor do its views represent federally recognized worker safety regulations.
OSHA has spoken to the issue of ETS following a seven and one-half year review of the subject that included extensive public hearings, dedicated workshops following public hearings and record review, as well as response briefs to the U.S. Court of Appeals for the Washington D.C. Circuit (see OSHANOTES.PDF). On page 18 of its response to U.S. Court of appeals OSHA said about ETS:
"This potential hazard is not, as ASH's Petition suggests, so egregious as to demand instant action, . . ."
In 2001 OSHA withdrew its proposed Indoor Air Quality regulations, which included a nationwide prohibition on smoking in the workplace with the support of tobacco control groups including the American Cancer Society and the Campaign for Tobacco-Free Kids (see "OSHA Withdraws Indoor Air Proposal With Support Of Anti-Smoking Groups"). OSHA reiterated its position concerning ETS in a February 24, 2003 notice, "Reiteration Of Existing OSHA Policy In Indoor Air Quality," which said in part:
"Although OSHA has no regulation that addresses tobacco smoke as a whole, 29 CFR 1910.1000 Air contaminants, limits employee exposure to several of the main chemical components found in tobacco smoke. In normal situations, exposures would not exceed these permissible exposure limits (PELs), and, as a matter of prosecutorial discretion, OSHA will not apply the General Duty Clause to ETS." (Underline added.)
Having failed to successfully make their case before the preeminent authority for workplace health and safety, tobacco control ignored federal workplace health and safety standards and set about imposing its mercantile smoking ban mandates. ASHRAE 62.1 Standard is a part of that effort to mandate by private opinion what cannot be achieved through federal regulation. The preceding Campaign for Tobacco-Free Kids' statement to eliminate health risks associated with indoor exposure to ETS, together with ASHRAE's "Environmental Tobacco Smoke Position Document" from which it is derives, present two deeply troubling issues:
1. The substitution of a private, political de minimis risk standard for established federal worker safety material risk standards.
2. The substitution of private Non Governmental Organization (NGO) private opinion for OSHA federal regulatory worker safety policy.
Those two substitutions are important to both due process and equal protection of the laws issues as applied to smoking bans.
As 2007 progresses tobacco control representations to the effect that droves of nonsmokers who had previously stayed home to avoid noxious fumes from tobacco will flock to now-smoke-free restaurants and bars is proven to be false. The observable pattern is that most hospitality and gaming venues experience a decline in revenues, with the economic hardship most acutely focused on small, independent neighborhood establishments. For example, a Colorado bar and tavern association, the Coalition for Equal Rights (CER) reports revenue declines among its membership in the twenty-five to forty percent range, with the number of bars that have closed rapidly approaching one hundred. We also find ourselves facing an increasingly important public health problem: as the application of ASHRAE 62.1 reduced ventilation rate standards, as supported by tobacco control advocacy, expands so does the apparent risk to hospitality worker's health due to diminished Indoor Air Quality notwithstanding the presence of smoking bans. 2007 therefore becomes the first benchmark year whereby meaningful analysis of the adverse impact of smoking ban advocacy on both private small business and hospitality worker health can be undertaken.
Such circumstances also ripen smoking bans for earnest judicial review. That review must be undertaken in terms of tobacco control's previous statements and representations in light of observed current reality, the deeply-important issue of private special-interests circumventing federal worker safety standards and regulatory policy, and the prospect of increased lung cancer risks to hospitality workers in light of reduced ventilation and diminished Indoor Air Quality in their workplaces.
The above information presents an important new perspective concerning tobacco control advocacy and smoking bans. Hospitality patrons should consider their personal safety and well-being when entering a establishment that aggressively advertises itself as "Smoke Free." The restaurant may well be "Smoke Free," but is it "Safe"? ASHRAE's reduced ventilation standards and emerging science about other airborne carcinogens not related to ETS raise a potential question: "Is it ASHRAE Standard 62.1 Free"?
Norman E. Kjono