DEMOCRATIC PRINCIPLES, FREEDOM OF CHOICE

& CONSTITUTIONAL RIGHTS

Vs.

LEGISLATIONS BASED ON MYTHS

REPORT PREPARED BY:

EPITOME CONSULTING & INFORMATION TECHNOLOGY PRIVATE LIMITED

FOR THE VIRGINIA SMOKERS ALLIANCE

TABLE OF CONTENTS

OVERVIEW

Environmental Tobacco Smoke (ETS) also referred to as Passive Smoke or Second Hand Smoke, has become a controversial issue. The Environmental Protection Agency (EPA) have provided many unsubstantiated reports regarding ETS and these reports have formed the basis for many state and local government’s imposing bans and restrictions on smoking across the USA. In August 1997, the Clinton Administration enacted an Executive Order to ban smoking in all Federal Buildings. The administration justified the Executive Order by relying on a 1992 EPA report, Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, which stated that ETS was a ‘Group/Class A’ Carcinogen – the most deadly type – along with Radon gas and other toxic chemicals.

The scientific data available does not support EPA's classification of ETS as a "Group A" carcinogen.   Of the more than 30 epidemiologic studies conducted attempting to link second hand smoke and lung cancer among nonsmokers, the overwhelming majority reports no statistically significant association.  The studies focusing on ETS exposure in the workplace also generally have not reported a statistically significant increased risk. The classification of ETS as a Group A carcinogen required substantial stretching by EPA. To reach that conclusion, the EPA report combined eleven spousal smoking studies from the United States in a so-called "meta-analysis."  Of the eleven studies, however, ten reported no statistically significant increase in cancer among nonsmokers purportedly exposed to ETS.  To ensure that the meta-analysis would produce the desired results, EPA had no choice but to manipulate the numbers.

EPA and the scientific community use a 95% confidence interval as a means of ensuring that study results did not occur by chance, EPA adjusted the confidence interval downward to 90% in its report on ETS. James Enstrom, an epidemiology professor at the University of California, Los Angeles, explained, "That 90% doubles the chance of being wrong." To put it in lay terms, EPA's statistical maneuvering is the equivalent of moving the goal lines at a football game in order to score more touchdowns.  

According to Richard Daynard, Professor of Law, Columbia University, who obtained his degree in 1970 from Harvard University and a PhD. from Massachusetts Institute of Technology, funded primarily with grants from the Robert Woods Johnson Foundation, organized the movement to eradicate smoking has proceeded in three distinct phases. During the first phase, activists attempted to persuade smokers to stop smoking on the ground that smoking was bad for the smoker. Many smokers did stop smoking for that reason, others continued.  During the second phase, activists attempted to make smokers feel guilty about their enjoyment of smoking. Again, however, many individuals continued to smoke.  The third and current phase, according to Daynard, marked a more fundamental strategic shift.  In this phase, the movement began to focus on the "development" of "evidence" about ETS.  If people can be persuaded to believe that tobacco smoke is harmful to nonsmokers, it becomes easier to persuade both private entities and government authorities to restrict or ban smoking.  

There are numerous aspects which are affected either directly or indirectly as a result of EPA’s classification of ETS as a "Group A" carcinogen. These aspects include the issues which infringe on the citizen’s fundamental right to freedom of choice, legal issues, issues which have a bearing on how scientific data is analyzed by vested governmental agencies, nonprofits, socio-economic issues which have a bearing on the economy, jobs, health care, etc.

America continually believes that Democracy is the best form of government and as such negotiates with the rest of the world to follow in their footsteps.  Unfortunately America is imploding and going backwards into isolationism and prohibition.  Special interest groups, in this instance the primary special interest group is Big Pharma, have taken over the government all in the name of “profit and greed.  There power and influence extends globally all in the name of progress, freedom and ‘saving the children’.

America fought against the Taliban which prohibited men from growing long beards, made women wear a burkha, closed down schools other than fundamentalist and religious schools, they closed down theatres. The American government has insisted that all the dictates that Taliban enforced in Afghanistan were against the basic human rights. Then how does making us pay a sin tax for exercising our right to freedom of choice by choosing to smoke a legal product, does not amount to violation of our basic human rights. America is a free society; should its people be forced to follow such a draconian dictate?

Epitome Consulting & Information Technology Private Limited (EPITOME) is a Knowledge Based Outsourcing Company, which has reviewed and evaluated the various authentic reports, research findings, legal positions, socio-economic issues and the position taken by other Developed Countries in this matter. Epitome has compiled the findings of their research in this document.

ENVIRONMENTAL TOBACCO SMOKE (ETS)

Background & Meaning

Most of the studies about ETS demonize smokers and try to prove that ETS poses a grave danger to the society that needs to be eradicated. However, these so called studies have some serious fallacies, which if taken into account, will indicate that the exaggerated claims being made by the authors of these studies are misleading and not conclusive as claimed.

ETS is the combination of two forms of smoke from burning tobacco products:

Sidestream Smoke (SS), or smoke emitted between the puffs of a burning cigarette, pipe, or cigar, and

Mainstream Smoke (MS), or the smoke exhaled by the smoker[1].

The exposure of nonsmokers to ETS is referred to as involuntary smoking, passive smoking, or second hand smoke.

Bias in Studies against ETS

Some of the flaws in studies relating to ETS pertain to inappropriate methodology, inconsistency, statistically insignificant, biased unscientific selection & use of data and ignoring confounding error. Moreover, a number of these high profile studies have been discredited by authentic review and research. Some of the issues regarding ETS which have been scientifically refuted are summarized below: 

1. The claims of exposure are not authentic. Actual exposure is not measured. The studies on ETS actually measure nothing, but rely on the vague and grossly imprecise recall of queried subjects who attempt to evoke in a few minutes their individual lifetime memories of passive smoking exposure by phone interviews.

2. Errors in individual exposure recollection, most likely large, are unknown, and are unknowable. Subjects who have developed the disease appear to recall the exposure easily than those who have not developed such a disease, even though exposed to secondhand smoke for most of their lifetime. Accuracy of measuring exposure by recall method is highly questionable and such errors are impossible to calculate.

3. Digitized numerical claims of exposure based on imprecise memories are, therefore, incongruous and impermissible. Their numerical representation gives an impression of reliability and precision that is demonstrably false and misleading.

4. A recall bias has been demonstrated to be larger in subjects with lung cancer or cardiovascular disease, who are more likely to amplify their recall of passive smoking exposure as a justification for their disease.

5. A misclassification bias has been demonstrated to be larger in subjects with lung cancer or cardio vascular disease because they are more likely than healthy subjects to classify themselves as nonsmokers. After diagnosis there are more chances that subjects with lung cancer or cardiovascular diseases quit smoking. But when interviewed they (people who quit smoking after being smokers) tend to classify themselves as nonsmokers exposed to ETS. The probability that patients classifying themselves as nonsmokers are more prevalent when compared to healthy subjects. This introduces a bias of misclassification of smokers as nonsmokers – because some of the nonsmokers have actually been smokers at some point in time.

6. A mismatch error of cases and controls is inevitable because the groups compared are not homogeneous and differ in many characteristics other than recall of passive smoking exposure.

7. Confounding errors by definition are likely to be more prevalent among lung cancer and cardiovascular disease cases. Confounders are all other known and unknown potential causes of lung cancer and cardio vascular disease that interfere with the specific attribution of risk to passive smoking.

8. Probable errors of disease diagnosis are seldom addressed by passive smoking studies.

9. Publication errors have been found to favor the publication of studies that claim associations of increased risk.

10. Statistical errors of sampling and statistical significance are grossly inconsistent among passive smoking studies owing to the feeble differentials of exposure recall and the small number of subjects in each study. A majority of studies have not reached statistical significance. In any event, significant or not, the statistical indices of all passive smoking studies are illusory because they are derived from the grossly illusory and misleading numerical renderings of vague individual exposure recalls.

11. Results from different studies have not been consistent and reproducible. For example a recent study of over a million women in England could not find any causal effects of ETS and breast cancer.  A similar study but much smaller study was done in the USA which claimed a causal relationship between ETS and breast cancer[2].

12. Epidemiologic criteria of causal inference (the Hill criteria) are not met by passive smoking studies.

13. Attempts to summarize the results of different studies by meta-analysis statistical techniques are illegitimate. Results are obtained by pooling heterogeneous and selected studies, giving arbitrary preferential weights to certain studies, which, in any case, are handicapped by the sources of error listed above[3].

REPORT OF THE SURGEON GENERAL - RICHARD H. CARMONA - 2006

Overview of Surgeon General’s Report 2006 (SGR):

The Surgeon General’s report of 2006 focused on “The Health Consequences of Involuntary Exposure to Tobacco Smoke”. The topic of involuntary exposure of nonsmokers to second hand smoke was first published in Surgeon General Jesse Steinfields 1972 report, then again in 1986, 2004 and 2006. Second hand smoke is described similar to the mainstream smoke inhaled by the smoker in that it is a complex mixture containing many chemicals, many of which are known carcinogens. The SG’s Report stated that exposure to second hand smoke has claimed to cause excess deaths in the US population from lung cancer & cardiac related illness. His report documents that, exposure to second hand smoke still remains to be an alarming public health hazard. however, it has not been proved scientifically and has caused many scientists to disagree with his conclusions. 

This report probes into the toxicology of second hand smoke, assessment and prevalence of exposure to second hand smoke, reproductive and developmental health effects, respiratory effects of exposure to second hand smoke in children & adults, cancer among adults, heart diseases, stroke and control of second hand smoke exposure 

The SGR has not accurately compiled the data relevant and significant for any decision on ETS. It is apparent that the conclusion of the report was first established and the facts were collected to justify the pre-decided conclusion. 

Scientific & Statistical Fallacies in the Report 

Smoking has been considered as etiology for various diseases such as heart diseases, respiratory diseases, lung cancer, developmental defects, sudden infant death syndrome (SIDS) etc. Carmona’s SGR addresses the effect of involuntary exposure to tobacco smoke and various health consequences. The report has been organized into 10 chapters and deals with toxicology of second hand smoke, assessment of exposure, prevalence, various ill-effects on health and control of exposure. 

Epitome has found that the SGR has relied as its basis, many of the studies which are observational studies. Experimental data considered in the SGR report is less than what is scientifically acceptable.

Chapter 1 is the introductory chapter and discusses the concepts of causation and also summarizes the major conclusions of the report.

Chapter 2 on the toxicology of ETS shows that more than 50 carcinogens have been identified in sidestream ETS. The urinary level of metabolites of carcinogens links the exposure to ETS with an increased risk for lung cancer.

However, causation of lung cancer from ETS evidence is available only from animal studies and the mechanism is based on the data obtained from active smokers. Most of the evidence is from invitro or animal studies that deal with short-term effect. Therefore there is no conclusive evidence.  His study violates Hill’s criteria of mixing several different types of studies into one meta analysis.

Chapter 3 provides perspective on key factors that determine exposures of people to ETS in indoor environments, including building designs & operations, atmospheric markers and biomarkers of exposure to ETS. Presently cotinine, the primary metabolite remains the biomarker of choice for assessing the ETS exposure. Smoking increases indoor particle concentration.

However, exposure is measured in terms of urine cotinine and nicotine levels. Many studies measure exposure to secondhand smoke by measuring cotinine and nicotine levels in urine. Urinary levels of carcinogens (cancer causing molecules) have not been detected consistently. To estimate cancer causing effect of secondhand smoke it would be better to measure the level of cancer causing molecules in urine. Measurement of cancer causing molecules has been estimated only in a few studies which concluded no significant rise among nonsmokers exposure to secondhand smoke. Even in active smokers the elevation in cancer causing molecules has been significant only in a few studies. There are significantly elevated levels in minority of active smokers and very few non smokers.

Chapter 4 summarizes findings that focus on nicotine measurements in air and cotinine measurements in biologic materials. The extent of exposure as indicated by evidence varies across the country. Homes & work places are the predominant locations for exposure to ETS.

The sample size considered is very small ranging from 1 to 20. The sample size calculation should have been based on population size and the prevalence of smoking. For example at least 190 samples with a prevalence of 44% exposure in restaurants, only one study considers 194 samples (Guerin et. al, 1992) to record the prevalence.

Chapter 5 reviews the ill effects of ETS on the process of reproduction, in infants, and on child development, the evidence is inadequate to infer that ETS causes infertility, spontaneous abortions, infant deaths, preterm delivery, congenital malformations, behavioral development, growth retardation, and childhood cancer.

Classification is this chapter has no established criteria. Some authors consider a person who has smoked less than 400 cigarettes in life their life time as a non-smoker and a few authors consider people who have quit smoking 10 years ago as nonsmokers.

The risk estimated varies, e.g. odds ratio that determines the strength of association of secondhand smoke and preterm birth varies from 0.54 to 1.86 after adjusting for various other risk factors for preterm birth. Anything under 2 is considered insignificant.

Chapter 6 reviews the effects of ETS on lungs. The evidence suggests that lower respiratory illness in infants & children is less in ETS exposed children, but that it.causes middle-ear disease, asthma and adverse effects on lung function.

Evidence gathered by the SGR is based on hospital studies. Such case-control studies have a very small sample size. Many studies do not show dose-response relationship which is very important. Adjustment of confounders reduces the risk which means when controlled for other risk factors for the same disease the risk from secondhand smoke is insignificant.

Chapter 7 summarizes the evidence on linking secondhand smoke with cancer of the lung, breast, nasal sinuses & cervix. The pooled evidence indicates 20%-30% increase in the risk of lung cancer but not any other type of cancer. 1.0 represents no risk, a 30% increase is 1.30 anything under 2 is considered statistically insignificant.

The evidence is inadequate to prove that ETS is carcinogenic i.e. can cause cancer, as case control studies show increased risk. 5 out of 8 studies (quoted in SGR page no. 437) conducted in the United States shows reduced or no risk for lung cancer. Other studies show a very marginal increase in risk. Stockwell et. al. (1992) shows high risk for siblings and mother wherein data on control subjects are not reported therefore half the report was missing and unreported.

Chapter 8 on cardiovascular effects documents that there is increased risk of mortality & morbidity among both men & women due to heart disease from exposure to ETS.

Heart disease can be caused by various other factors. When other factors like age, social status, diet, exercise, weight, heredity or a history of previous heart disease controlled. Men showed only a marginal increase in risk. (Page no. 515, SGR). Evidence is inadequate to support an association with stroke.

Chapter 9 examines the respiratory effects in adults.

The study reports no significant increase in risk for adult onset asthma. The scientific evidence is not sufficient to prove that asthma in adulthood is caused by exposure to secondhand smoke. It is also not sufficient to prove that secondhand smoke exposure worsen asthma control.

Chapter 10 summarizing on the control of ETS exposure suggests that only a total ban of indoor smoking is the only way to eliminate exposure.

Disease-wise review of scientific evidence supporting ETS as the etiology:

Coronary heart diseases and second hand smoke

Various risk factors that contribute to the development of heart diseases:

Age
Gender
Hypertension
Atherosclerosis
Blood clotting tendency
Hormones
Personality and emotional Stress
Diabetes/ carbohydrate intolerance
Diet: salt
Total calories
Fat
Vitamin intake
Hyperlipidemia
Physical activity
Heredity
Social pressures
Obesity
Smoking

Smoking is only one of the many risk factors for heart disease. The SGR only reviewed the studies showing positive association between heart disease and second hand smoke. The SGR concluded that evidence is sufficient to infer causal relationship between exposure to ETS and increased risk of heart disease morbidity and mortality among both men and women. Specific research studies and reports not included nor considered in SGR:

CPS     I
CPS     II
LEVOIS et al
MONICA conducted by WHO, 2001
Gio Batta Gori, 1995
ARIC study – (Atherosclerosis Risk in Communities)
Enstrom and Kabat Study

The above studies on secondhand smoke exposure and heart disease used the proper methodology to meet the objectives of the study. Statistical methods are used appropriately. Further these studies cover a large population followed over decades if these studies were included in the SGR report it would have lowered the risk factor to be statistically insignificant.

Analysis of scientific aspects:

The SGR included only those studies that showed positive association between heart disease and ETS. The risk for heart disease from ETS is similar to active smoking. This evokes doubt, as ETS is not similar to active smoking. The dynamic nature of ETS shows that it gets diluted and varies with rate of production, confining area and ventilation.

The articles considered for evidence synthesis have a draw back that major risk factors are not controlled. A well known answer that is given to substantiate that position is that- it is impossible to control all the confounders. Most of the studies consider women who are married to smokers might show a high correlation. There is a puzzling paradox in the fact that no decline in the incidence of heart attacks was observed in the ARIC sample, during a period when the prevalence of causal risk factors was reduced. Dose-response relationship is not confirmed. Presently there is evidence that bacterial infections like Helicobacter pylori have been shown to be risk factor for heart disease. It is more common in lower socioeconomic strata.

There is need for revalidation of the results and conclusion by considering the omitted studies that do not show association between ETS and heart diseases.

Stroke and second hand tobacco smoke:

Summary of the context as per SGR:

The evidence is suggestive but not sufficient to infer a causal relationship between exposure to ETS and an increased risk of stroke. The unmanifested (sub clinical) vascular diseases association with ETS has insufficient evidence and also does not infer causal relationship.

The following issues and questions remain un-clarified and un-answered:

1. Out of the only 6 studies that are considered, only one study covers a large sample of subjects.

2. There has been a misclassification of ex-smokers as nonsmokers.

3. Are the results consistent with the known cardiovascular pathology of cigarette smoking?

4. Are the results consistent with biochemistry and physiology of platelets?

5. Have the researchers take into account the demographic, behavioral and socioeconomic literature on smokers and their families?

6. No data is present that is suggestive of ETS as a causative factor for stroke.

The following additional issues and questions remain unexplained and unanswered in the SGR:

Issues & Questions:

1. How can anybody recall the exposure to smoke in childhood?

2. Indirect way of measuring the exposure level: Using the level of cotinine and nicotine in body fluids as a marker for amount of exposure. There can be exposure even from the diet as a major source that has been underestimated in the report.

3. Very few studies on cancer measure the biomarkers for cancer.

4. Exposure measurement in most of the studies is done using questionnaires that are converted to real numbers.

5. How can subjective measurements be converted to real numbers?

6. Even though the questionnaire is the main means of measurement the validity of such measurements is questionable.

7. Sample selection in the studies varies widely. Studies considering hospital population with controls as in neighborhood populations induce bias in selection as the characteristics of study and controls participants greatly differ e.g. case control studies on breast cancer (Page No. 454-458, SGR).

8. Studies with misclassification: A few investigators have included people who had quit smoking a few years back and nonsmokers as smokers exposed to ETS. Obviously there will be greater response among the nonsmokers. E.g. selective recall of exposures by nonsmokers who have developed the disease. (Page No. 513, SGR).

9. Many of the studies do not appropriately controlled for the other risk factors that can cause the same disease.

10. Studies showing higher risk for smoke related diseases consider women as study subjects who show higher response. (Page No. 511, SGR)

11. Interviewers are not blinded for cases or controls. Their recordings may be biased and record higher exposures among the cases.

12. Deceptive selection of studies considered for the synthesis of SGR: The studies which show positive relation between involuntary exposures to tobacco smoke are selected in compilation of the report. The studies even though well conducted controlling for various risk factors, if they shown a negative association or absence of association they are not used during the synthesis of evidence. This questions the authenticity of the report which has been compiled intelligently to bring forth only negative consequences of exposure. Apparent exclusions include, studies like CPS I, CPS II, MONICA Study by WHO, when conducting meta-analysis. These are major studies conducted for a long period of time but show no association and the least risk.

13. Failure to regard the dynamic nature of tobacco smoke: In the toxicology section an attempt has been made to measure the toxic products released from the tobacco smoke and its effects on animals and cells. But these studies measured only short term effects. The diseases claimed to be caused by tobacco smoke are chronic in nature, which require long term exposure to any potential toxins. The toxic products and cancer causing molecules present in subjects exposed to second hand smoke is shown to be different from that of active smokers by R. Nilsson. This shows the presence of other carcinogens not related to ETS to which the subjects could have been exposed to.

14. The smoke released after smoking or from the burning end of the cigarette diffuses and gets diluted to more than 1000 times the original strength.

15. Paradoxy in risk estimation: The risk estimated for development of a disease from exposure to ETS is more than or similar to the risk from active smoking.

Alleged association between ETS and various diseases: how true is the evidence in the report in reality?

1. Heart diseases: The association is weaker than what is quoted in many of the studies.

2. Stroke: The evidence is insufficient. Only six studies associating ETS and stroke are present in whole scientific literature.

3. Unmanifested vascular diseases: Only short term effects on cells are studied. Why ignore the recuperating power of the cells? The long term effects are not quoted in the report.

4. Lung cancer:  Many studies have no association contrary to what is reported by Surgeon General. This is shown by many investigators but their literature is not included in the SGR report. E.g.: Enstrom and Kabat, WHO multi-center study, ORNL study of 16 cities, and OSHA’s studies on ETS in smoky bars and restaurants.

5. Developmental defects mainly due to ETS are inconclusive.

6. Sudden Infant Death Syndrome (SIDS):  The major risk factor as per American Academy of Pediatrics is sleeping posture. There has been drastic reduction in the incidence of SIDS after the sleeping posture recommendation was passed.

7. Breast cancer: Studies are insufficient to shown direct positive association.

8. Acute respiratory diseases: Some studies show an association but to lesser extent than what is quoted.

Advantages of exposure to smoke as per scientifically proven studies:

1. Lesser prevalence of Parkinsonism among smokers.
2. Lesser incidence of Hypersensitivity and asthma among children of smokers.
3. Lesser risk of breast cancer.

References used in the Scientific & Statistical analysis

www.plosmedicine.org : Essay
1. John P. A. Ioannidis. Why Most Published Research Findings Are False. PLoS Medicine 2005; 2(8):e124:0696-701
2. James E Enstrom. Defending legitimate epidemiologic research: combating Lysenko

Pseudoscience. Epidemiologic Perspectives & Innovations 2007, 4:11 

3. James E Enstrom, Geoffrey C Kabat. Environmental tobacco smoke and tobacco related mortality in a prospective study of Californians, 1960-98. BMJ 2003; VOLUME 326.

4. GIO BATTA GORI. Dimensional errors of metaphorical measurements. Can they be resolved? International journal of Epidemiology.2006 

5. Men and Heart disease fact sheet. CDC 2008.

 6. The Changing Concept of Sudden Infant Death Syndrome: Diagnostic

Coding Shifts, Controversies Regarding the Sleeping Environment, and

New Variables to Consider in Reducing Risk further reducing SIDS risk. Pediatrics 2005; 116:1245–1255.

 7. IARC Technical Report No.33. Questionnaire on occasional smoking and environmental tobacco smoking.

 8. David J. Cohen, Michel Doucet, Donald E. Cutlip, Kalon K.L. Ho, Jeffrey J. Popma and Richard E. Kuntz. Intervention: Another Smoker’s Paradox?

Impact of Smoking on Clinical and Angiographic Restenosis After Percutaneous Coronary. Circulation 2001; 104; 773-778.

www.pubmed.com

Impact of the Surgeon General’s Report 2006 (SGR)

The SG Report has been used as a basis for many debates, discussions in public forums and legislative actions by local and state government. The immediate impact of this report was that in a number of states, smoking was banned immediately from public buildings bars, pubs & restaurants. The states which already had a ban went further and banned smoking outdoors. Smoking has been banned in parks and recreational areas, 25 feet from a doorway, cars, public housing, etc. in certain states in the U.S. which can be termed nothing but, a knee-jerk reaction that would benefit nobody but the big Pharmaceutical companies and their friends in the political circles.

Pharmaceutical companies are continuing to lobby for smoking bans and are funding organizations & groups to conduct tailored studies so that they could demonize smoking and these companies could in turn come out with ‘wonder drugs’ to cure smoking ‘the disease’ and its harmful effects. This report is a huge success for these companies and a severe jolt to the rights of citizens in general and to the rights of smokers, tobacco farmers, workers in tobacco industry, owners and workers of restaurants/pubs/bars, in particular.

Everybody has been harping about the harmful effects of smoking & ETS and the rights of nonsmokers but nobody seems to be bothered about the rights of the people who are enjoying a perfectly legal product! Nor the smoking/tobacco industry or the people related to the hospitality industry, nobody seems to be bothered about the grave losses that these industries have been suffering and will continue to suffer in near future. No thought or compassion for those who have lost their livelihood due to these bans. Free enterprise, freedom of choice, has been lost and justified under the slogan of “save the children”.

Draconian laws have been passed all due to one controversial report, a report that is marred with flaws and cannot be relied upon as being authentic. A report which became controversial when the Surgeon General claimed to the press & public that ‘"even brief exposure to secondhand smoke has immediate adverse effects" by increasing the odds of developing heart disease and lung cancer’[4], a statement, not supported and denied by the scientists who reviewed & cleared the report.

LEGAL ISSUES AS REGARDS THE BAN ON SMOKING

Federal Constitution

Violation of Fundamental First Amendment Rights

Bans on smoking violate the fundamental rights to freedom of association, freedom of assembly, free speech and freedom to travel.

The enactment of Laws prohibited citizens from enjoying the pleasures and benefits of privately owned places that are open to the public, particularly those places where they previously engaged in either social or business discourse while enjoying the right to smoke. This has substantially impinged public rights to freedom of assembly, freedom of association, and free speech, and further abridged their customary privileges as equal citizens to partake of the public life.

Laws banning smoking constitute an unconstitutional, unwarranted and discriminatory rollback of long-cherished rights and privileges, the very symbols of American democratic principles.

Violation of Equal Protection Clause of the Fourteenth Amendment

a)      Equal protection clause

Laws banning smoking expressly and unequivocally provides unequal and adverse treatment under the law of smokers, as compared to nonsmokers, which significantly impinge the former’s exercise of their fundamental First and Fourteenth Amendment rights to free speech, freedom of assembly, freedom of association and freedom to travel.

b)      Privileges or Immunities clause

Bans on smoking improperly abridge the privileges and immunities of citizens of the United States in violation of the Privileges or Immunities Clause of the Fourteenth Amendment to the United States.

The Fourteenth Amendment privileges sought to protect the customary rights to enter into contracts and to acquire and maintain property free of government interference. Thus, bans on smoking abridge the rights of citizens to enter into contracts with owners of private property which is open to the public who of their own volition wish to permit smoking. Such contracts have been made - either explicitly or implicitly - and have long been in effect; and, except for the intrusions of the state and municipal laws, would have remained in effect to the benefit of all willing parties to the contract. Ban’s on smoking improperly impinge on the rights of citizens to enter into contracts, to freely assemble and freely associate, and abridge their rights and the rights of others to travel in violation of the Privileges or Immunities Clause of the Fourteenth Amendment to the United States Constitution. (The argument is taken from the court case “NYC C.L.A.S.H. vs. New York City, 315 F. Supp. 2d 461”)

State of Virginia Constitution

Article I - Bill of Rights

Section 1. Equality and rights of men.

That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Section 3. Government instituted for common benefit.

That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

Section 11. Due process of law; obligation of contracts; taking of private property; prohibited discrimination; jury trial in civil cases.

That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts, nor any law whereby private property shall be taken or damaged for public uses, without just compensation, the term "public uses" to be defined by the General Assembly; and that the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin shall not be abridged, except that the mere separation of the sexes shall not be considered discrimination. That in controversies respecting property, and in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred. The General Assembly may limit the number of jurors for civil cases in courts of record to not less than five.

A look at the Federal and the State Constitution makes it very clear that this ban on smoking clearly infringes on property rights.

Whereas outdoor air is a common property, the building owner in essence, owns the air inside a building.  That means the building owner, who is in a position to control the amount of smoking that is permitted in the building, has an incentive to permit the right amount of smoking, that is, the amount that maximizes the welfare of individuals within the building. By imposing smoking ban in restaurants and bars the rights of a restaurateur are infringed as he is not able to cater the guests as per their preferences who come to enjoy the freedoms which are under the control of the restaurant owner. A restaurant owner owns the air inside the restaurant and has every right to control the same according to his wishes. By imposing the smoking bans a restaurant owner looses the rights over the air inside besides being penalized with financial implications.

Because customers select establishments based on the benefits and costs, they will avoid establishments with smoking policies they do not like.  Owners of public places thus bear the full costs and benefits of their decisions regarding smoking or no smoking in their establishments.

Court rulings

A lot of commotion has been raised against smoking and its ill effects and how & why it should be banned completely from all public places. A number of cases have been filed in the past on this issue and many are pending in different courts all over US. A few of the recent judgments have been discussed below so as to arrive at a rationale as to why a blanket ban on smoking at all public places is not feasible.

PHILIP WILEY CASE:

COURT OF APPEALS OF INDIANA, FIRST DISTRICT 1994

642 N.E. 2d 538; 1994 Ind. App. Lexis 1600

Parties:  Brown & Williamson Tobacco Corp., R.J. Reynolds Tobacco Co., Philip Morris Inc., The American Tobacco Co., Lorillard Tobacco Co., and the Liggett Group Inc. Also named in the suit are the Tobacco Institute and the Council for Tobacco Research v. Philip Wiley

Summary: Mrs. Wiley, 56, died a month after she was diagnosed with lung cancer. Her husband says she inhaled smoke constantly during her 17 years as a nurse in the psychiatric ward of the Veteran's Administration hospital. Philip Wiley was seeking at least $13.3 million in compensatory damages from six tobacco companies and two industry groups for the 1991 death of his wife, Mildred.

The jury of six nonsmokers said that cigarettes were not a defective product and that their makers were not negligent for failing to tell people that secondhand cigarette smoke was dangerous.

PANKOS DINER CASE:

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICGT OF NEW YORK 2003

321 F. Supp. 2d 520; 2003 US Dist. Lexis 25821

Parties: Pankos Diner Corp., K & S Caterers., Sean & Sean, Inc., Stardust Diners, Inc., Garden City Hotel, Inc., JKG’s Inc., v. Nassau County Legislature, Judith Jacobs, David M. Ackman

Summary: The 2002 Smoking Law Section 2 provides that the intent of the legislature was to strike a balance between the health needs of all non-smoking individuals, the rights of smokers and the imposition of regulatory burden on business. This act provided for the complete ban on smoking in all enclosed facilities within a place of employment except where the place derived at least 90% of its revenue from tobacco retail sales. The act sought to ban smoking in all public areas The plaintiffs alleged that the prohibition of smoking in public places violated the intention behind the statute because they expended substantial sums on the purchase and installation of ventilation and filtration systems and the construction of smoking rooms in reliance on and in order to comply with the 1998 Smoking Law wherein the Nassau County Local Law prohibited smoking in various public places, including restaurants, bars, taverns and hotels. The plaintiffs sought a preliminary injunction to this effect.

The court held on the grounds of possible irreparable harm that may be caused to the plaintiff, and for establishing clear and substantial likelihood of success on the merits, the court granted the preliminary injunction.

FLUE CURED TOBBACCO CORP et al CASE:

FLUE CURED TOBBACCO CORP et al;

Vs

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY et al; 1998

4 F. Supp. 2d 435; 1998 US Dist. LEXIS 10986

Parties: Flue Cured Tobacco Corp et al; United States Environmental Protection Agency et al;

Summary:  In 1986, Congress passed the Radon Gas and Indoor Air Quality Research Act (hereinafter ‘The Radon Act’). The Administrator of the Environmental Protection Agency (hereinafter ‘EPA’) was to implement a research program on indoor air quality and to assess appropriate federal government actions to reduce the health risk associated with indoor air quality programs. The mandate of the Congress prohibited the Administration from carrying out any regulatory programs. The EPA report studies the health effects of Environment Tobacco Smoke (hereinafter ‘ETS’) and the increased risk of lung cancer in healthy non smokers.

The plaintiff’s allegation include that the Defendants ‘cherry-picked’ data to arrive at a desired conclusion, and in the process ignored other significant statistical data. Additionally, there was a substantial regulatory impact that has had a direct impact on the business of the plaintiff.

The Court held that the Agency action was definitive as the report and classification had a regulatory effect, albeit an indirect one due to the U.S. Postmaster's order of a nationwide ban on smoking in postal facilities and the introduction in Congress of legislation that would prohibit smoking in all buildings owned or leased by federal agencies. The court also took judicial notice of the fact that the General Services Administration ("GSA") prohibited the use of tobacco products in its Interagency Fleet Management System motor vehicles. Also, Gallins Vending Company had been asked to remove its cigarette machines from various premises.

The Court while deciding the matter considered EPA's complete disregard of statutory procedure and the potential waste of significant executive branch resources dealing with health and safety. The court finds persuasive the rationale underlying the District of Columbia's remedy in Marshal. The Court held that in addition to enforcing Congress' directive; the remedy should ameliorate the harm caused, or being caused, by EPA's procedural violation.

Thus, deciding the case in plaintiff’s favor, the Court held EPA's conduct transgressed the general meaning of the Radon Research Act's operative language. Further, to the extent EPA's conduct in this matter entailed interstitial construction of the Act, the court affords no deference to EPA. Congress did not delegate rule making or regulatory authority to EPA under the Act. EPA's conduct of the ETS Risk Assessment frustrated the clear Congressional policy underlying the Radon Research Act.

SURGEON GENERAL’S REPORT AND SOCIO-ECONOMIC ISSUES

Shaping Attitudes toward Smoking

Many legal scholars have the opinion that the Law indirectly controls the conduct of the citizens by shaping social norms and individual preferences. According to these scholars, imposing bans affect behavior, thus changing the existing social norms. The smoking ban is one of their favorite success stories. Those who favor bans on tobacco assume that the bans will lead to the welfare of the society, even though they cannot substantiate this conclusion either by science or by economic analysis. However, there is a bigger question - whether a ban on tobacco, a legal product, will enhance the social welfare or damage the very social fiber of this country and others?

Therefore, it is not clear whether sweeping smoking bans that are highly intrusive actually reduce the incidence of smoking in the long run.

People generally tend to get attracted towards things which are labeled as harmful or dangerous and the consumption or usage of which is prohibited by either society or by law.  Professor Lawrence Lessig, ‘Fellow’ with Academy of Arts and Science, and The World Academy of Art and Science; San Francisco, CA and Monthly Columnist with Wired Magazine explains, if a commodity is prohibited, then the individual, knowing all the relevant facts, may actually consume more of a commodity as a rebellious act.  Therefore, sweeping smoking bans may actually increase the incidence of smoking.

Increase in Crime Rate

A bouncer at a Manhattan, NY nightclub was stabbed to death after he tried to enforce New York's tough new anti-smoking law. Police said the bouncer was stabbed on April 13, 2003 in the ‘Guernica’ club on the Lower East Side after asking one of two brothers in the club to put out a cigarette. After an argument with the men, the bouncer tried to eject them and was stabbed in the stomach and 6-foot-6 Dana "Shazam" Blake, 32, died of his injuries[5].

Police in Newfoundland and Labrador say smugglers are increasingly turning to an old standby: tobacco. Police have confiscated more than 3,000 bags and 400 cartons of tobacco over the last year. More than 600 bags have been seized in the St. John's neighborhood of Kilbride this week alone. RCMP has 71 investigations underway at the moment, said Sgt. Pete McKay, who said the sale of cheap, illegal tobacco is not a victimless crime. "Our concern is when people are purchasing this they don't realize they're supporting organized crime, they're affecting the revenue base for the government and not to mention the potential hazard of using an untested product," McKay said.

Some of the tobacco seized recently has had insects in it, and some samples were moldy, McKay said. A bag of contraband tobacco sells for about $40, and is enough to make enough cigarettes to fill a carton, which would retail for between $85 and $100. The fine for possessing a bag of contraband tobacco is more than $300. Gambo resident Thomas Herber was fined $15,000 in January for contraband. McKay said most of the tobacco originates from Ontario and Quebec[6].

Effects of  Smoking Bans on Employment & Revenue

Taxation is one of the major source of income a government generates and the funds provided by taxation have been used by states and their functional equivalents throughout history to carry out many functions, which includes the enforcement of law and public order, protection of property, economic infrastructure (roads, legal tender, enforcement of contracts, etc.), public works, social engineering, and the operation of government itself. The government also uses taxes to fund welfare and public services, which can include education systems, health care systems, and pensions for the elderly, unemployment benefits, and public transportation.

The tobacco industry and sales of tobacco products make a significant contribution to the income of the governments through excise tax, state tax and the Master Tobacco Settlement. The advocates of smoking bans claim that banning smoking in the work place, enclosed public places including pubs and restaurants would not have any negative effect on trade and employment. However, studies and reports by major economists and economic institutions have proved that the ban on smoking does indeed have a negative impact on the employment and revenue from the hospitality industry especially from bars, restaurants and casinos. A study conducted by Dr. Jane Granville of the Congressional Research Services while referring to the data on federal tax revenues from Alcohol and Tobacco Tax and Trade Bureau, Cumulative Summary, Fourth Quarter FY2006, states that tobacco tax receipts in the United States include $7.8 billion in federal tax, $13.6 billion in state and local taxes, and $7.5 billion payments from the Master Tobacco Settlement. Further as a percentage of sales revenue, the federal, state and local, and tobacco settlement payments are respectively 8.8%, 15.5%, and 8.5%, for a total of 32.5%.

New York

A study prepared for the New York Nightlife Association and Empire State Restaurants and Tavern Association in the year 2004[7] shows that, a result of statewide smoking ban in the year 2003, the bar and taverns industry suffered following losses as a direct result:

• 2000 jobs (10.7% of actual employment)
• $28.5 million in wages and salary payments
• $37 million in gross state product

 In addition the study showed indirect losses to other businesses which supply and provide services to the New York’s bar and tavern industry: 

• 650 jobs
• $21.5 million in labor earnings
• $34.5 million in gross state product

Using data from the New York State, Department of Labor, the average wage per employed worker in 2003 was approximately $14,175 per year. Combining the job loss with the average annual worker compensation estimate, lost wage and salary payments amounted to $28.5 million in 2003. These 2,000 workers would have added nearly $37 million to constant-dollar Gross State Product (output) in New York State. 

In addition to the direct economic impacts, there are indirect and induced changes to the local economic landscape. A system of regional input/output multipliers was used to assess these total changes. These effects are:  

1)      the change in output for a given industry needed to meet the initial dollar change in spending by final users (customer purchases at bars/taverns);

2)      changes in the output of all industries to meet the direct requirements of a given industry;

3)      changes in the output of all industries to meet the changes in production in (2) above; and

4)      the regional production required to meet changes in demand by final users created by higher local income generated by the first three effects.

In December of 2003, eight months after New York City’s smoking ban went into effect; International Communications Research (ICR) released an impact study claiming that:

• One-third of New York City bars, hotels and nightclubs have reduced staffing by an average of 16 percent since the ban took effect, and three-fourths of them cited the ban as the cause.
• Three-fourths of all affected bars and restaurants have experienced a decline in patronage averaging 30 percent, and almost 80 percent of businesses claim to have been negatively affected by the bans.
• Bars and nightclubs that do not offer food reported a reduction in alcohol sales approaching 20 percent.

Columbia, Missouri

In January 2007, a smoke-free ordinance, banning smoking in all bars, restaurants and workplaces took effect in the Columbia, Missouri. The Federal Reserve Bank of St. Louis prepared a paper analyzing the data for sales tax collections at eating and drinking establishments for the period January 2001 through December 2007[8]. The findings suggest that the smoking ban has been associated with statistically significant losses in sales tax revenues at Columbia’s bars and restaurants. Point-estimates indicate an average decline of approximately 3½ to 4 percent. The examination of data reveals differences among categories of business. Those that serve only food show no statistically significant effects of the smoking ban. Those that serve food and alcohol, or alcohol only, show significant losses with point estimates in the range of 6½ to 11 percent (with the larger losses associated with bars).

Data from the city of Columbia show a distinct decline in the growth rate of sales tax receipts at bars and restaurants. The total for 2007 was only 0.6% above 2006. Over the previous four years, revenues had risen at an average rate of 7.4 percent. In 2006 the year preceding the implementation of the smoking ban revenues were 8.1 percent higher than the previous year. (See Figure 1)

The dramatic slowdown in sales tax revenues from dining establishments after the smoking ban was implemented is consistent with the anecdotal reports of revenue losses at Columbia bars and restaurants.