The California Environmental Protection Agency (Cal-EPA) has just released its most recent comprehensive review of the scientific evidence relating secondhand smoke to various diseases. In its final report, it concludes that there is now sufficient scientific evidence to classify secondhand smoke as a cause of breast cancer.
Specifically, the report states that there is conclusive evidence that secondhand smoke causes breast cancer among younger, premenopausal women, although the evidence is inconclusive regarding the potential effect of secondhand smoke on breast cancer in older, post-menopausal women.
In response to the report, the American Cancer Society emphasized that it does not concur with Cal-EPA's conclusion that secondhand smoke has been shown to be a cause of breast cancer.
In a comment on the Cal-EPA's draft report, the American Cancer Society wrote: "At present, we do not believe that the published evidence meets these criteria [causal criteria] for cancers of the breast."
And in an email sent to ACS personnel in response to the final report, the ACS wrote: "The report's conclusion regarding breast cancer's association with ETS [environmental tobacco smoke] is at odds with a report from the International Agency for Research on Cancer (IARC)...which... called the evidence linking secondhand smoke to breast cancer 'inconsistent.' ... At this point there is not broad scientific consensus on this issue."
The Rest of the Story
The real significance of this story is that it demonstrates how ridiculous the Campaign for Tobacco-Free Kids, American Cancer Society, Americans for Nonsmokers' Rights, and other intervenors' legal brief is in the DOJ tobacco case.
In that brief, these intervening groups asked Judge Kessler to impose a remedy in which the tobacco companies must pay $600 million a year for a public education and counter-marketing campaign, which must continue until (among other things) at least 90% of the public is "fully informed of the disease risks and other harms associated with exposure to secondhand smoke."
But this story reveals just how absurd that "benchmark" is in a legal remedy of this magnitude. After all, the story shows that there is not widespread scientific consensus about whether secondhand smoke causes breast cancer. So how does one define "fully informed of the disease risks" associated with secondhand smoke? Does breast cancer count? If one is unsure of the link between secondhand smoke and breast cancer, does one go down as being fully informed, uninformed, or not quite so fully informed?
The other important fact that this story reveals is that clearly, this particular benchmark represents an issue that must be litigated. There is simply no way that the Intervenors can expect to throw something like this into the case at this late point, with no testimony whatsoever related to what constitutes fully informed knowledge of the hazards of secondhand smoke, and expect that the tobacco companies' legal rights to be heard on this important issue have been met.
In other words, I think that the inclusion of this benchmark (and the others as well) clearly does violate the Defendants' due process rights.
I therefore disagree with the Intervenors' contention in their reply brief that "Each of the remedies advanced by the Public Health Intervenors were 'the subject of evidence at trial.'” Clearly, the meaning of what it means to be fully informed of the diseases associated with secondhand smoke was not something that was the subject of evidence at trial and there is simply no way that making this the benchmark for something as intrusive as a $600 million per year remedy can be viewed as not violating the due process rights of the Defendants.
In order for this remedy to not violate the Defendants' due process rights, I think there would have needed to be testimony about what diseases are caused by secondhand smoke and what the meaning of "fully informed" is, as well as how that could be accurately measured.
The rest of the story reveals that a report seemingly unrelated to the DOJ tobacco case actually has major implications for the legality of the Intervenors' proposed remedies. In this case, it strongly suggests that in mucking with the DOJ's remedies, the Intervenors have greatly hurt the case by asking the Court to adopt a remedy in such a way that would violate the due process rights of the Defendants.
I don't think there's even a remote possibility that Judge Kessler would do such a thing, and then face the embarrassment of the appeals court slapping the order back in her face because of the clear violation of due process rights of the tobacco companies.
Perhaps the Intervenors would have served the public interest far better if they had kept themselves out of the case.