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THURLOW: Kingman Column: Smoke alarm  

In a Nutshell: Judge Osteen's July 17, 1998 Ruling 

On July 17, 1998, Judge William L. Osteen of the United States District Court for the Middle District of North Carolina vacated the EPA's classification of secondhand smoke as a Known Human (Group A) Carcinogen, because he found that the EPA had wrongly excluded the tobacco industry from the risk assessment process, "cherry-picked" existing data, and engaged in de facto regulation of tobacco products.1

Judge Osteen did not invalidate the EPA's extensive findings regarding secondhand smoke and respiratory disorders other than lung cancer. The EPA's findings, thus, remain intact regarding secondhand smoke and its effects on 1) acute respiratory illnesses in children; 2) acute and chronic middle ear diseases; 3) cough, phlegm and wheezing; 4) asthma; 5) Sudden Infant Death Syndrome (SIDS); 6) lung function in children; and 7) respiratory symptoms and lung function in adults.2 The EPA's formal assessment of the increased risk for respiratory illnesses in children from secondhand smoke (contained in chapter eight of the EPA's report) also remains untouched.3

Tobacco control advocates need to keep in mind that Judge Osteen vacated the EPA's classification of secondhand smoke as a Known Human (Group A) Carcinogen for reasons that are now the subject of heated debate and will, in all likelihood, form the basis for the EPA's appeal of Osteen's decision.

Administrative Law Criticisms of Judge Osteen's Ruling

Many experts in administrative law, the body of law which governs the judicial review of decisions made by agencies in the administrative branch of government, assert that, under normal principles of administrative law, 1) Judge Osteen should not have allowed the tobacco companies to pursue the Flue-Cured case in the first place; and 2) Judge Osteen did not have the right to review the EPA's 1992 report.

In his most shocking departure from normal principles of administrative law, Judge Osteen chose to review the basic science - the epidemiology, statistical analysis and scientific judgment - behind the EPA's report, and substituted his "scientific" opinion for that of the EPA, its Science Advisory Board, the IAQC, the U.S. Department of Health and Human Services, the National Cancer Institute, the Surgeon General, and many major health organizations.4 As Tim Filler of Prospect Associates put it,

This is simply not the purview of the federal courts. Under normal principles of administrative law, Judge Osteen should not be reviewing the science behind the EPA report. His decision asks us to accept his interpretation of scientific evidence over the conclusions of the experts convened by EPA. Not surprisingly, Judge Osteen's conclusions on the science seem to have been informed solely by the tobacco companies' briefs.

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Big 1st rivals speak on smoking ban, FDA's tobacco role 

State Sen. Jim Barnett succeeded this spring in pushing a bill to ban smoking in most public places, but that legislation has isolated the Emporia physician in the 1st Congressional District Republican primary.

Here's what Barnett's Republican rivals think of the law:

* Sue Boldra, Hays: "I have never been a smoker, but personal freedom is high on my priority list," she said. Also, she did not agree with the state telling restaurants and bars they had to be smoke-free, while exempting state-owned casinos from the ban.

* Marck Cobb, Galva: "I think it should be left to the private business owner to determine the policy." Cobb is a non-smoker who thinks "government should be limited in controlling our lives."

* State Sen. Tim Huelskamp, Fowler: "Decisions on smoking are best left to businesses and their customers, and government shouldn't dictate those decisions." Huelskamp voted against the bill.

* Tracey Mann, Salina: "In most cases, I'm for local control," . . .

Just like the U.S. Environmental Protection Agency, said Huelskamp, the FDA "is another out-of-control bureaucracy."

Congress has the authority and responsibility to make certain these "un-elected bureaucrats" are accountable to the people, Huelskamp said.

"Rob believes that the FDA has no place to regulate smoking," said Billy Valentine, campaign manager for Wasinger for Congress, and Wasinger would introduce legislation to "curb the power of unelected, paper-pushing bureaucrats such as those at the FDA and EPA."

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• EPA Promotes Asthma Awareness Month  

Today is World Asthma Day and the U.S. Environmental Protection Agency (EPA) is kicking off its efforts to help promote May as Asthma Awareness Month. EPA is offering communities free outreach materials and event planning kits to encourage them to hold health fairs, free asthma screenings, school-based programs and other activities to raise awareness of the importance of proper asthma care. Asthma is a serious, potentially life-threatening respiratory disease that affects the quality of life for 23 million Americans, including 7 million children. One of EPA Administrator Lisa P. Jackson's priorities is improving air quality, which has a substantial impact on people who suffer from asthma.

"Asthma is a public health issue, an economic issue, and an environmental issue that touches entire communities," said EPA Assistant Administrator for Air and Radiation Gina McCarthy. "EPA is joining with health care providers to reach communities across the nation to help deliver real solutions to the millions of Americans who battle asthma." . . .

As part of Asthma Awareness Month, EPA recommends these top five top steps people can take to help prevent asthma attacks:

· Take it outside. One of the most common asthma triggers in the home is second hand smoke. Until they can quit, people should smoke outside, not in their home or car.

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May is Asthma Awareness Month 

Asthma is a serious, life-threatening respiratory disease that affects over 20 million Americans. Rates of asthma have risen sharply over the past thirty years, particularly among children ages 5 to 14 (read more Facts about Asthma)

In response to the growing asthma problem, EPA created a national, multifaceted asthma education and outreach program to share information about environmental factors -- found indoors and outdoors -- that trigger asthma. Although there is no cure, asthma can be controlled through medical treatment and management of environmental asthma triggers.

EPA's goal is to reduce exposure to indoor asthma triggers and improve the quality of life for 6.5 million people by 2012.

Join the US EPA in the national effort to raise awareness. . . .

* Distributing asthma materials (flyers, newsletters, etc.) and educating parents on the risks of second-hand smoke;

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ARCHIVE: Setting the Record Straight: Secondhand Smoke is a Preventable Health Risk  

In early 1993, EPA released a report (Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders; EPA/600/6-90/006 F) that evaluated the respiratory health effects from breathing secondhand smoke (also called environmental tobacco smoke (ETS)). In that report, EPA concluded that secondhand smoke causes lung cancer in adult nonsmokers and impairs the respiratory health of children. These findings are very similar to ones made previously by the National Academy of Sciences and the U.S. Surgeon General.

The EPA report classified secondhand smoke as a Group A carcinogen, a designation which means that there is sufficient evidence that the substance causes cancer in humans. The Group A designation has been used by EPA for only 15 other pollutants, including asbestos, radon, and benzene. Only secondhand smoke has actually been shown in studies to cause cancer at typical environmental levels. EPA estimates that approximately 3,000 American nonsmokers die each year from lung cancer caused by secondhand smoke.

Every year, an estimated 150,000 to 300,000 children under 18 months of age get pneumonia or bronchitis from breathing secondhand tobacco smoke. Secondhand smoke is a risk factor for the development of asthma in children and worsens the condition of up to one million asthmatic children.

EPA has clear authority to inform the public about indoor air pollution health risks and what can be done to reduce those risks. EPA has a particular responsibility to do everything possible to warn of risks to the health of children.

A recent high profile advertising and public relations campaign by the tobacco industry may confuse the American public about the risks of secondhand smoke. EPA believes it's time to set the record straight about an indisputable fact: secondhand smoke is a real and preventable health risk.

EPA absolutely stands by its scientific and well documented report.

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Pacific Legal Foundation  

The Pacific Legal Foundation is a Sacramento, California-based legal organization that was established March 5, 1973 [1] to support pro-business causes. In recent years, it has taken a lead in pursuing anti-affirmative action policies.

It is the key right-wing public interest litigation firm in a network of similar organizations funded initially by Scaife Foundations money across the USA to support capitalism and oppose environmental and health activism and government regulation.

The organization has been [2] partially funded by a range of corporations and conservative foundations. . . .

PLF is listed as a "key third party ally" in a September 14, 1999 Philip Morris document.[4]

In 1989, Philip Morris began funding the organization through its Mission Viejo (gated-community land-development company) subsidiary, mainly because the organisation was active in the property rights area and had won cases limiting the States' ability to expropriate or regulate private property. The Mission Viejo subsidiary was interested in fighting a no-growth initiative which had been blocking some of their development projects. At this stage Philip Morris only gave an annual grant of $5,000 each year, just to keep the organisation on side and available, but it may have also funded specific legal projects.

By 1991 the PLF had a major budget crisis. It was in deficit to the tune of about $1 million, which was about a quarter of its $4 million annual requirements. Not long after, Roy Marden, the Philip Morris executive in charge of maintaining relations with the right-wing think tanks and advocacy institutes, joined the PLF board. Overnight the funding increased substantially to $10,000, and then $22,000 by 1993. Philip Morris also began to utilize the PLF to undertake hidden media and political activities on its behalf.

For instance, it enlisted the organization (together with think-tanks like the Reason Foundation, Hoover Institute, Heritage Foundation and Claremont Institute) to write op-ed pieces that were planted in newspapers attacking the Environmental Protection Agency (EPA) over its determination that Environmental Tobacco Smoke (ETS) was a carcinogen and its attempt to regulate Indoor Air Quality (IAQ). (See page 4 of this planning document.[5])

At this time Philip Morris was also heavily funded two of PLF's unacknowledged offspring, the National Legal Center for the Public Interest and the Atlantic Legal Foundation. The Washington Legal Foundation was another of a similar kind favoured and funded ($200,000) by Philip Morris, but it was independent of the Scaife-funded, PLF-based network. [6]

The PLF also intervened successful in Keller v. California State Bar, where it established a legal precedent that California lawyers could challenge the use of their dues to the state bar for political purposes. This was an successful attempt to block collective actions by the more liberal Californian lawyers who were involving themselves in such policy areas as class-actions and product liability. . . .

In 1997-1998 the PLF joined forces with the $10 million funded (by Philip Morris) National Smokers Alliance, in a fierce and vindictive legal attack on Professor Stanton Arnold Glantz, a leader of California's main anti-smoking organization, Americans for Nonsmokers Rights[7] and attempted to brand him in the public mind as having something to hide ... a destroyer of legal document (a ruse the tobacco industry used itself on a massive scale). Glantz had received documents from the early tobacco industry whistleblowers, and he had established the first public-access Internet web site revealing how the industry operated.

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EPA Axes Panel Chair at Request of Chemical Industry Lobbyists 

At the request of a chemical industry lobbyist, the Environmental Protection Agency removed the chair of an expert peer review panel charged with setting safe exposure levels for a toxic fire retardant that contaminates human blood and breast milk, according to documents obtained by Environmental Working Group (EWG). After doing the industry’s bidding, EPA then retroactively stripped all of the chair’s comments from the panel’s published report and republished the altered document. . . .

Chemical Industry Used Allies inside the Agency to Bump Panel Chair

The chemical industry’s trade association, the American Chemistry Council (ACC), submitted their demand for Dr. Rice’s removal to Dr. George Gray of EPA’s Office of Research and Development (ACC 2007). Before joining EPA Dr. Gray headed up an organization funded by the ACC called the Harvard Center for Risk Analysis, well-known for their studies and advocacy to dismiss concerns about chemical safety.

ACC acted on behalf of their Brominated Flame Retardant Industry Panel (BFRIP) in making their demands to EPA. Recent media reports reveal that other efforts by the Bromine Industry to keep Deca on the market have included hiring a lobbyist who also represented the tobacco industry and the National Association of State Fire Marshalls in advocating for increased use of chemical fire retardants in place of fire-safe cigarettes and other commonsense methods to reduce fire risk (Shin 2008). . . .

*

Other tactics of the bromine manufacturers to protect the use of their toxic products have recently come under scrutiny. On January 26th, 2008 the Washington Post published an exposé linking tobacco companies' efforts to fight fire-safe cigarettes with the same bromine-producing chemicals who had converging interests, as both benefited from an increased reliance on chemical fire retardants to combat cigarette ignitions. The Washington Post reported that a single lobbyist, Peter Sparber, represented both tobacco and bromine producers, and funneled money to the National Association of State Fire Marshalls, who for more than a decade fought for increased use of chemical fire retardants in place of less toxic methods to control ignition sources like cigarettes (Shin 2008).

EPA has now acceded to demands of the bromine industry to alter documents that will be used to set agency health standards. The result of these actions could compromise public health protections from these ubiquitous and toxic pollutants.

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Fact Sheet: Respiratory Health Effects of Passive Smoking 

Summary

The U.S. Environmental Protection Agency (EPA) has published a major assessment of the respiratory health risks of passive smoking ( Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders EPA/600/6-90/006F). The report concludes that exposure to environmental tobacco smoke (ETS) -- commonly known as secondhand smoke -- is responsible for approximately 3,000 lung cancer deaths each year in nonsmoking adults and impairs the respiratory health of hundreds of thousands of children.

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• SANTA FE’S GOT “GREEN POWER” 

RAI's Santa Fe Natural Tobacco Company subsidiary (Santa Fe) continues to be recognized as the tobacco industry's leader in promoting environmental sustainability.

Earlier this year, the U.S. Environmental Protection Agency named the company a "Green Power Partner" in recognition of Santa Fe's use of 100 percent wind-generated electricity for all of its offices and manufacturing facilities. The company's wind power purchases annually eliminate some 2,264 tons of carbon dioxide, 2.39 tons of sulfur dioxide and 3.33 tons of nitrogen oxide by fossil fuel utility plants.

In addition to contracting for 100 percent wind-generated power, Santa Fe is moving its entire fleet of vehicles for its sales team to hybrid powered automobiles to save energy and promote a cleaner environment.

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Retired Judge Osteen has died 

Retired federal Judge William Osteen Sr. died Sunday.

For nearly 16 years, Osteen served as a U.S. District Court Judge for the Middle District of North Carolina, which is based in Greensboro.

Osteen's family declined to provide any further details about his death on Sunday evening.

Osteen was born in 1930 in Greensboro, according to the federal judiciary Web site. He served in the U.S. Army Reserve before graduating from Guilford College in 1953.

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ARCHIVE: ZION: Judge Smokes Out Tobacco Lie 

And now we have the truth about the anti-smoke fascists. Last week, a federal judge wiped out the entire basis of all this business about the danger of secondhand smoke, a lie that has transformed our culture, from saloons to our homes.

In a devastating 94-page opinion, Judge William Osteen put the cat to the Environmental Protection Agency. These ideological hustlers are responsible for all the madness we've experienced since 1993, when, without a scintilla of evidence, they declared that secondhand smoke causes cancer.

This "finding" created civil war in America. . . .

The EPA was at the ready, helped by Hillary Clinton, whose first edict as First Lady was a no-smoking rule in the White House.

The EPA announced that 3,000 people died every year from secondhand smoke. More people by far die from milk, not to mention bird droppings in national forests.

But the yuppie audience was ready to buy, and the market went through the roof.

In New York, Peter Vallone and Rudy Giuliani banned smoking everywhere but in bars. . . .

In March, the World Health Organization was caught with the lie. It is the SS of the Nicotine Nazis. The WHO ran a multi-million-dollar study dedicated to proving that passive smoke causes cancer. It came up empty.

The media censored that story. If you didn't read it in my column, you don't know it. And now the media do virtually the same with Judge Osteen's opinion.

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Tobacco Row  

Is there any connection between $60,000 worth of tobacco ads in the December issue of Brill's Content and a six-page article in the same issue that bashes the media for overstating the link between secondhand smoke and lung cancer?

Absolutely not, says Steve Brill, editor of Brill's Content, who claims the infusion of tobacco money and his publication of a protobacco article are "a total coincidence." . . .

The $60,000 December bonus came in the form of four pages from Philip Morris (two pages for Marlboro cigarettes and two pages describing Philip Morris's charitable activities), plus two more from R.J. Reynolds. The ads were placed in September, when a full-page color ad cost $10,000. At the time, Brill says, "There is no way [the advertisers] would have known that story was appearing."

Brill has not had an easy time attracting advertisers, in part because of his commitment to hard-hitting stories, and tobacco ads in particular have been sparse. The December issue not only represents a doubling of tobacco ads, it introduces the first Marlboro ad--suggesting increased interest from Philip Morris. . . .

Varchaver denies treating Sullum or Schwartz unfairly, given the volume of coverage he was assessing. He admits he downplayed Sullum, in part, because taking money from the tobacco industry detracts from one's credibility. If that's so, then it puts Brill in the same tank with Sullum--except that Brill got paid 12 times as much.

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PROJECT BRASS  

OBJECTIVES

o IN THE FACE OF NEW REPORT, PM HAS STATED TWO CORPORATE OBJECTIVES:

1. "FORESTALL FURTHER PUBLIC SMOKING RESTRICTIONS/BANS."

2. "CREATE A DECIDED CHANGE IN PUBLIC OPINION. DEVELOP AN ATMOSPHERE MORE CONDUCIVE TO SMOKERS WITH THE GENERAL PUBLIC AND FOR SMOKERS THEMSELVES."

. . .

O FIRST, SEGMENT POTENTIAL AUDIENCES BY:

- BELIEFS

- PROFESSIONAL RESPONSIBILITIES

- POSSIBLE CALLS TO ACTION . . .

AUDIENCE

BUSINESS OWNERS OF PUBLIC PLACES

- RESTAURANTS, HOTELS, ENTERTAINMENT VENUES

- THEIR ASSOCIATIONS (NRA, ETC.)

DEMOGRAPHICS/PSYCHOGRAPHICS

o "ENTREPRENEURIAL"

O DISLIKE GOVERNMENT INTERFERENCE, REGULATION

BELIEFS/ATTITUDES

O BASED ON THE EPA REPORT, ETS SEEMS BAD

O THIS SMOKING ISSUE IS A BIG HASSLE AND FRANKLY, I'M NOT SURE WHAT TO DO ABOUT IT

O MY BUSINESS DEPENDS ON SATISFYING THE CUSTOMER AND I DON'T WANT TO LOSE ANY POTENTIAL CUSTOMERS.

O I CAN'T AFFORD TO HAVE GOVERNMENT IMPOSE ANY MORE REGULATIONS ON MY BUSINESS

DESIRED BELIEFS/ATTITUDES

O I DIDN'T REALIZE THAT ETS SMOKE IS SUCH A SMALL PART OF THE AIR QUALITY ISSUE

O I WANT TO WORK OUT THE ISSUE ON MY OWN TERMS CONSIDERING WHAT IS BEST FOR MY CUSTOMERS AND BUSINESS

O THE "ACCOMMODATION" PROGRAM SEEMS TO BE A SENSIBLE SOLUTION TO THE SMOKING ISSUES

DESIRED ACTION

O CREATE AND IMPLEMENT POLICIES WHICH "ACCOMMODATE" BOTH SMOKERS/NON-SMOKERS IN THE WORKPLACE

- "COURTESY" POS

O ASSOCIATIONS JOIN COALITION

O WRITE A LETTER VOICING THEIR CONCERNS/OPINIONS . . .

AUDIENCE

SCIENTIFIC COMMUNITY, ACADEMIC/RESEARCH M.D.'s . . .

DESIRED BELIEFS/ATTITUDES

O THE EPA HAS MISUSED SCIENCE TO FORCE A CONCLUSION

O THIS "BAD SCIENCE" SHOULD BE REFUTED TO PROTECT ACCEPTED METHODS AND REPUTATION OF COMMUNITY

O WE SHOULD REALLY ADDRESS THE BIGGER ISSUE OF AIR QUALITY AND DO SOMETHING ABOUT THAT

DESIRED ACTION

O REBUT THE EPA SCIENTIFIC EVIDENCE, METHODS AND CONCLUSIONS IN THE SCIENTIFIC COMMUNITY

o FRAME THE ISSUE AS A BIGGER ONE THAN JUST ETS

- PROVIDE A CREDIBLE SENSE OF PERSPECTIVE AND PRIORITIES

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• Obama expected to bolster FDA oversight of imports  

The Food and Drug Administration, bedeviled by a salmonella outbreak and tainted medicine from China, is likely to monitor imports and fresh produce more closely under an Obama administration.

With President Bush no longer a roadblock, health officials also can expect new powers to control tobacco, from cigarettes to the recently introduced smokeless products called snus.

President-elect Obama, a former smoker struggling to avoid relapse, is a sponsor of legislation giving the FDA authority to control, but not ban, tobacco and nicotine. . . .

Obama is being urged to move quickly to appoint an FDA commissioner. Already more than a half-dozen names are in circulation: outside critics such as Cleveland Clinic cardiologist Dr. Steven Nissen; insiders such as Susan Wood, a former director of the FDA's women's health office; and public health advocates such as Dr. Joshua Sharfstein, Baltimore's health chief. . . .

Under the tobacco proposal, the agency would be able to order changes in tobacco products to make them less toxic and addictive, but could not ban tobacco or nicotine. The bill passed the House and Senate with bipartisan support, but a veto threat from Bush kept it from getting out of Congress.

Aides to Sen. Edward M. Kennedy, D-Mass., co-author of the tobacco bill, say there is strong interest in getting the legislation passed soon after the new Congress convenes in January. Obama is a co-sponsor.

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