Tuesday, January 31, 2006

IN MY VIEW: Suggesting that Smoking is Offensive is Not the Direction This Program Should Go

In listing its reasons for encouraging cities and towns to ban smoking on streets and sidewalks, Action on Smoking and Health (ASH) stated:

"Activities and images which might be inappropriate for young children and/or which might lead them into bad habits are often prohibited in public places, even if they pose no health risk and might even be appropriate in areas visited voluntarily only by adults. For example, virtually all municipalities have long prohibited consumption of alcoholic beverages in public places like parks and beaches. ... Similarly, prohibiting smoking in outdoor places frequented by the public --– like parks, playgrounds, beaches, etc. --– shields young children from seeing smoking as a common adult behavior to be emulated, even if some may observe smoking by the parents and other adults in private homes. Other examples where activities are prohibited in public places because of their possible impact on children include sexually suggestive movements (permitted on dance floors but prohibited in parks and on sidewalks), gambling (permitted in casinos and tracks but not in public places), displays of pictorial nudity (permitted in art galleries but not on sidewalks), etc."

I have already criticized this argument for banning smoking on streets and sidewalks by noting that it suggests that what we are really doing is trying to make smokers social outcasts who are not even worthy of being observed publicly, that they are no better than, and just as offensive as anyone who is publicly naked or intoxicated. I also noted that this argument leads to a slippery slope as well. What should we ban next? People eating french fries on the street corner?

Here, I focus on my perception that ASH is suggesting that public smoking is offensive and that children need to be protected from seeing this behavior because it is offensive and an affront to public morals.

The Rest of the Story

It is my perception that ASH is suggesting that public smoking is offensive and that children need to be shielded from it because it is an affront to public morals.

Why do I say this? Because the argument that we need to protect children from seeing behaviors that might be unhealthy to them in public places just doesn't hold.

Do we prohibit children from seeing movies in which people are drinking or smoking? Do we prohibit people from eating fatty foods in public? Do we prohibit parents from serving french fries and tater tots to their children's friends? How about Hostess Twinkies (one of my favorites as a kid)? Do we prohibit adults from drinking alcohol in restaurants, where children are present, and where children are obviously going to see the behavior and probably emulate it?

We don't. The reason why some behaviors are regulated in public is not that we are afraid children might emulate them, but because we view these behaviors as being publicly offensive and an affront to the public morals. This is ostensibly the reason why many communities do not allow alcohol use, nudity, sex or sexually suggestive movements, or scanty clothing in public places.

It's simple - these things are viewed as an affront to public morals, and as publicly offensive.

So what I think ASH is really suggesting is that smoking should be added to the list of highly offensive behaviors that represent an affront to public morals when conducted in certain public places.

As a physician and public health practitioner, I have to soundly reject this notion. I did ever view the lawful, unhealthy behaviors of my patients as offensive or as a moral affront. I am not particularly attracted by the idea of a person who gets no exercise, sits around watching television all day, and eats nothing but fast food; but neither do I find that offensive.

Smokers are our public constituents and (for physicians and other health care providers) our patients, and our responsibility is to have compassion for these individuals and do what we can to help them. We also need to be cognizant of the fact that smoking is an addictive behavior and that the overwhelming majority of smokers begin smoking as youths. Who are we to blame them and attack them as being offensive when it is we ourselves who argue that they are "victims" of the tobacco industry's marketing and the addictive manipulation of tobacco products, and that they were kids when they chose to start smoking?

This is a road that we don't want to go down. We just don't do this type of thing in public health.

Monday, January 30, 2006

ASH's Reasons for Banning Smoking on Streets and Sidewalks Leave a Lot to Be Desired

I have already criticized Action on Smoking and Health (ASH) for using a completely inaccurate scientific claim (that 30 minutes of exposure to secondhand smoke can cause a heart attack in an otherwise healthy nonsmoker) to back up its support for banning smoking on streets and sidewalks.

Here, I address several of the other reasons ASH provides for such policies.

1. "Even aside from health hazards, being forced to breathe tobacco smoke is annoying and irritating to most people... It should be noted that many activities are banned in public places simply because they are annoying or irritating, even if they do not pose a health hazard."

2. "Cigarette butts discarded by smokers constitute the overwhelming majority of litter on beaches, as well as in many other public places like parks, playgrounds, and sidewalks."

3. "Cigarettes are a major source of burns to youngsters, including to their faces, when smokers hold their cigarettes at their sides and young children inadvertently come too close."

4. "Discarded cigarette butts may also be harmful to birds and other wildlife which nibble on or even swallow them, especially on a beach or park, but also even on a public sidewalk."

5. "Activities and images which might be inappropriate for young children and/or which might lead them into bad habits are often prohibited in public places, even if they pose no health risk and might even be appropriate in areas visited voluntarily only by adults."

The Rest of the Story

You've got to be kidding.

To even mention these reasons as potential justifications for an all-out ban on smoking on all streets and sidewalks does an injustice to the entire smoke-free movement. I find this to really be an embarrassment.

I haven't spent 21 years dedicating much of my career to the really serious issue of workers who are exposed 40+ hours a week to high levels of secondhand smoke and at increased risk of severe disease and death to have our movement come down to this: irritation and annoyance, cigarette butts, and possible damage to some birds nibbling on the butts!

Annoyances and irritations can be dealt with by just avoiding the smoke. Look - I'm annoyed and irritated severely by strong perfume. So I avoid it. It's not all that difficult. And if it does happen and I get a whiff or two, I am briefly annoyed but that's it. We don't need to ban wearing perfume because people may be annoyed.

The cigarette butt argument, as I have mentioned, is a losing one. If we really want to do something about cigarette butts polluting the outdoors, then banning smoking indoors is the last thing we would want to do. This argument, if taken seriously, threatens to jeopardize the whole effort to promote smoke-free workplaces. Luckily, I don't think it will be taken seriously.

And the argument that we should ban outdoor smoking because kids might see it is very troublesome to me. It suggests that what we are really doing is trying to make smokers social outcasts who are not even worthy of being observed publicly. They are no better than, and just as offensive as anyone who is publicly naked or intoxicated. This argument really leads to a slippery slope as well. What should we ban next? People eating french fries on the street corner?

Despite all of this, I have to say that the "birds nibbling on cigarette butts on the sidewalk" argument has to take the cake.

What's so troubling to me is that these arguments, I feel, make a farce of the whole smoke-free air movement. If this is what we're really all about, then count me out. I think there are a lot stronger justifications for smoke-free air than these reasons which ASH gives. And by offering these arguments, I'm afraid that ASH is diluting and undermining what would really be the only appropriate justification: if smoking on streets and sidewalks was enough of a public health hazard that it required government intervention and a legislated solution.

California Report Concludes Secondhand Smoke Causes Breast Cancer in Pre-Menopausal Women; Major Implications for Waitresses and Female Bartenders

The California Air Resources Board has declared secondhand smoke to be a toxic air pollutant, based on a comprehensive review of the scientific evidence linking secondhand smoke to disease prepared by the Office of Environmental Health Hazard Assessment (OEHHA) of the California Environmental Protection Agency (Cal-EPA).

The review concluded, for the first time, that secondhand smoke is a cause of breast cancer among pre-menopausal women. According to the report: "Overall, the weight of evidence (including toxicology of tobacco smoke constituents, epidemiological studies, and breast biology) is consistent with a causal association between ETS exposure and breast cancer in younger, primarily premenopausal women."

The Rest of the Story

In my opinion, OEHHA provides a thorough, comprehensive, and thoughtful review of the evidence linking secondhand smoke to breast cancer and a compelling conclusion that there is a causal relationship between secondhand smoke exposure and breast cancer among pre-menopausal women (but not post-menopausal women).

This may seem surprising to many, and in fact, I myself was skeptical of the findings when originally reported and challenged by groups such as the American Cancer Society. Although I try to be quite careful in drawing causal conclusions and despite the fact that I was skeptical myself about this particular conclusion, I have to state that I am quite convinced by the evidence at this point and I feel that a causal conclusion is warranted.

There were 2 major reasons why the findings of the Cal-EPA report were questioned. First, there was inconsistency in the link between secondhand smoke and breast cancer in epidemiologic studies. Second, people asked how it could be plausible for secondhand smoke to cause breast cancer if active smoking did not cause breast cancer. And two major bodies - the U.S. Surgeon General (2004) and the International Agency for Research on Cancer (IARC) had concluded that active smoking is not a cause of breast cancer.

It turns out that there appears to be a convincing explanation for both of these phenomena, and I think the OEHHA report makes a compelling argument for why these concerns can now be dismissed.

First, many of the epidemiologic studies that examined the link between secondhand smoke and breast cancer were plagued by the problem of non-differential misclassification of exposure. Because nonsmokers are likely to be exposed to secondhand smoke, studies which compared breast cancer risk in smokers to those in nonsmokers were really comparing breast cancer risk in smokers to risk among passive smokers and non-exposed nonsmokers.

Because the magnitude of the association between smoking and breast cancer observed in many studies is small and is not much greater than that observed between secondhand smoke and breast cancer, this bias was likely to knock out most (if not all) of the effect of smoking on breast cancer risk. And in fact, OEHHA demonstrated that in studies where nonsmokers with passive smoke exposure were specifically excluded, there was a clear finding of an elevated risk of breast cancer among smokers.

In fact, studies of the relationship between smoking and breast cancer which were more accurate in assessing potential secondhand smoke exposure in women yielded a higher estimate of breast cancer risk associated with smoking than those which were not as accurate in being able to exclude passively exposed women. This suggests that exposure misclassification was a major problem in much of the literature. Taking this into account yields a quite consistent finding of an increased breast cancer risk associated with active smoking.

A similar problem occurred with respect to the secondhand smoke studies. Many nonsmokers who stated that they were not exposed to secondhand smoke actually had considerable exposure. The control group here was not truly non-exposed. Thus, the results were biased toward finding no effect, and the risk estimates in much of the epidemiologic studies were underestimated. When exposure misclassification is taken into account, the OEHHA report demonstrates a quite consistent and clear finding of increased breast cancer risk among women exposed to secondhand smoke.

Second, while the 1994 Surgeon General's report considered only 5 studies published since 2000 and the IARC report considered only 4 studies published after 2000, the OEHHA review considered 23 studies published between 2000 and 2005. Thus, the data reviewed by both the Surgeon General and the IARC were similar to that considered in the original (1997) Cal-EPA report, which in fact concluded that evidence was not sufficient to definitively link active smoking or passive smoking with breast cancer. There is, then, no inconsistency between the findings of Cal-EPA and the findings of either the Surgeon General or IARC. And clearly, the most up to date information is what one would want to use to draw any conclusions on this matter.

Third, most of the prior reviews of the evidence on smoking and breast cancer lumped pre-menopausal and post-menopausal breast cancer together. Since these represent somewhat different entities with, possibly, different etiologies, such a procedure probably obscured the observed relationship between pre-menopausal breast cancer and tobacco smoke exposure by mixing these cases with post-menopausal breast cancer, which does not appear to be related at all to smoke exposure.

The absence of a link between active smoking and breast cancer can no longer, in my view, be used to argue that a similar link between passive smoking and breast cancer is not plausible, because there is strong evidence that active smoking is a cause of breast cancer.

And the inconsistency of OEHHA's findings with those of the U.S. Surgeon General and IARC cannot be used to argue against the report's conclusion because there is no inconsistency. The OEHHA report includes a huge amount of literature not reviewed by either the Surgeon General or IARC.

Several other factors play a role in my conclusion that the evidence presented by OEHHA is compelling enough to conclude that secondhand smoke causes pre-menopausal breast cancer.

First, the Cal-EPA did not, in its 1997 report, conclude that secondhand smoke causes breast cancer. That report stated that the evidence was not sufficient to draw such a conclusion. That adds credibility to the Agency's conclusion at this time, because obviously, the Agency has demonstrated that it is going to draw conclusions based on the science.

Second, the problem of confounding is likely to work in the opposite direction (to bias results toward the null hypothesis of no effect of secondhand smoke on breast cancer). This is because unlike many other diseases, including many cancers, breast cancer is a disease that is not particularly associated with lower socioeconomic status or lower social class. Incomplete control for potential confounders in this situation might actually be expected to result in an under-estimate of the true effect, since women exposed to secondhand smoke are more likely to be in a lower socioeconomic status group.

I feel that chance, bias, and confounding are not plausible alternative explanations for the observed increase in breast cancer risk among nonsmokers exposed to secondhand smoke.

Chance cannot explain the findings because the probability of having 13 of 14 studies all find an elevated risk of breast cancer among exposed nonsmokers is miniscule, a clear dose-response effect is present, and studies which more accurately establish exposure status have higher risk estimates.

Bias cannot explain the observed findings because the major bias - non-differential misclassification of exposure - would bias the results toward the null hypothesis of no effect.

And confounding cannot explain the findings because of the consistency of findings, the magnitude of the observed risk, the specificity of the elevated risk to pre-menopausal women, the higher risks observed in studies with better classification of exposure, and the fact that residual confounding for this particular exposure and disease would probably be expected to bias the results toward the null hypothesis of no effect.

There is, in my view, no reasonable alternative explanation for the observed finding of an increased risk of breast cancer among young women exposed to secondhand smoke.

This conclusion has important implications because it means that we now have an identified and preventable cause of breast cancer. Breast cancer organizations must take account of this. There has certainly been a lot of speculation about all kinds of environmental exposures that could possibly be linked to breast cancer, but now we have one identified cause that is easily preventable.

It also means that waitresses and female bartenders, due to their high levels of secondhand smoke exposure, are at increased risk of breast cancer, in addition to lung cancer and heart disease. This makes it even more important to protect these women from secondhand smoke exposure. I'm not arguing here that without the breast cancer evidence, there was not sufficient evidence to provide protection for bar and restaurant workers. I simply feel that this adds additional support for the need to provide this protection to all workers, but especially those who are most heavily exposed: those who work in bars and restaurants, and, I would add, casinos.

Action on Smoking and Health Promoting Street and Sidewalk Smoking Bans and Completely Misrepresenting the Science

In a press release issued Saturday, Action on Smoking and Health (ASH) became the first anti-smoking organization to officially promote the adoption of laws broadly banning smoking outdoors, including on streets and sidewalks. ASH backed up its support for these smoking bans by offering to assist local governments in defending the legality of these laws.

According to the press release: "The formal designation of secondhand tobacco smoke as a 'toxic air contaminant' opens the door to many additional restrictions on smoking, both in cars where children are present and even on public sidewalks... One city has already asked its staff to submit a report on the legality and feasibility of prohibiting smoking on city streets and sidewalks -- the legality of which has already been upheld in a law suit in which ASH's Executive Director ... participated. The designation follows on the heels of findings that even small amounts of tobacco smoke outdoors can be dangerous. ... ASH also says it will help to defend the legality of bans on smoking on streets, sidewalks, and in other public places as it did successfully in the past."

To support its recommendation that smoking be banned on streets and sidewalks, ASH presented scientific data on the health hazards associated with brief exposure to secondhand smoke, stating that: "Even for people without such respiratory conditions, breathing drifting tobacco smoke for even brief periods can be deadly. For example, the Centers for Disease Controls [CDC] has warned that breathing drifting tobacco smoke for as little as 30 minutes (less than the time one might be exposed outdoors on a beach, sitting on a park bench, listening to a concert in a park, etc.) can raise a nonsmoker'’s risk of suffering a fatal heart attack to that of a smoker. The danger is even greater for those who are already at an elevated risk for coronary problems: e.g., men over 40 and postmenopausal women, anyone who is obese, has diabetes, a personal or family history of heart or circulatory conditions, gets insufficient exercise, has high blood pressure, cholesterol, etc."

ASH also stated that: "A 2004 study by the Centers for Disease Control and Prevention found that as little as 30 minutes of exposure to drifting secondhand smoke can have a serious or even lethal health impact by rapidly increasing the tendency of blood to clot."

Finally, ASH stated: "In cases where drifting tobacco smoke was present and a nonsmoker suffered a heart attack, asthmatic attack, or other similar problems, the municipality which owns and operates the beach, park, playground, etc. could be liable since it was on notice of the known health dangers but failed to take the 'reasonable' step of banning smoking as taken by many other outdoor areas."

The Rest of the Story

I am quite serious when I suggest that this action by ASH, if unchecked by the rest of the tobacco control community (and especially if supported by other anti-smoking groups), is going to cause the whole smoke-free movement to implode, resulting not only in no bans on smoking on sidewalks and streets, but in a severe dent in what I see as legitimate efforts to regulate smoking indoors, in workplaces.

There is, in my opinion, simply no justification for invoking the state's police powers to regulate smoking on streets and sidewalks, places where people are free to move about and where, in most situations, people can simply avoid substantial exposure to secondhand smoke. And I am aware of no scientific evidence that secondhand smoke exposure on streets and sidewalks is a significant public health problem.

And I think the public is going to view smoke-free advocates as complete fanatics because of this type of action that ASH is taking.

Nevertheless, the saddest part of the story is not ASH's promotion of banning smoking on streets and sidewalks. Instead, the saddest part of the story is the completely misleading, inaccurate, and irresponsible public representation of the science which ASH alleges supports the need to ban smoking on streets and sidewalks.

It is simply not the case that breathing drifting tobacco smoke for as little as 30 minutes can raise a nonsmoker'’s risk of suffering a fatal heart attack to that of a smoker, and in my view, it is not the case that CDC made such a claim.

The truth is that an otherwise healthy nonsmoker cannot suffer a heart attack as a result of 30 minutes of exposure to secondhand smoke. A nonsmoker's risk of a heart attack from breathing tobacco smoke for 30 minutes is not the same as that of a smoker. It is actually ZERO.

You are not going to have a heart attack if you don't have coronary artery disease; and 30 minutes of exposure to secondhand smoke is not going to clog your coronary arteries.

I cannot over-emphasize the fact that ASH's claim is completely fallacious. It's not like ASH is distorting the truth here. In my opinion, they are just completely making this up, or at least, misinterpreting the data so badly that it has the appearance of coming out of nowhere. You simply aren't going to get atherosclerosis and clogged coronary arteries in 30 minutes!!!

It is not just inaccurate and misleading to make a public statement like this. It is also, in my opinion, irresponsible. This could scare nonsmokers into thinking that they are going to keel over and drop dead from a heart attack if they walk down a street and breathe in secondhand smoke for 30 minutes.

And I think it is also irresponsible to try to intimidate city officials by suggesting to them that if they don't ban smoking in a beach, park, or playground, they are putting nonsmokers at risk of dropping dead of a heart attack. There is simply no evidence that acute exposure to secondhand smoke can cause a heart attack in a healthy nonsmoker, and it is completely implausible that any such evidence could exist in the first place. You can't develop coronary artery disease in 30 minutes.

What the CDC did say, and what the relevant research does say, is that 30 minutes of exposure to secondhand smoke can cause endothelial dysfunction, as measured by coronary flow velocity reserve (CFVR), in nonsmokers to the same degree as seen in smokers (see Otsuka R, Watanabe H, Hirata K, et al. Acute effects of passive smoking on the coronary circulation in healthy young adults. JAMA 2001; 286:436-441 and Pechacek TF, Babb S. How acute and reversible are the cardiovascular risks of secondhand smoke. BMJ 2004; 328:980-983).

But endothelial dysfunction is a far cry from a heart attack!!!

In fact, what endothelial dysfunction measures is the early process of atherosclerosis. As the authors (Otsuka et al.) concluded: "The present findings suggest that reduction of CFVR after passive smoking may be caused by endothelial dysfunction of the coronary circulation, an early process of atherosclerosis, and that this change may be one reason why passive smoking is a risk factor for cardiac disease morbidity and mortality in nonsmokers."

What this means is that acute exposure to secondhand smoke can result in endothelial dysfunction in nonsmokers that if prolonged and repeated over a long time, could eventually result in atherosclerosis and heart disease.

In other words, this study provides a potential mechanism for the observed increase in heart disease risk among passive smokers. It provides biologic plausibility for a causal relationship between exposure to secondhand smoke and heart disease. But it does not suggest that an otherwise healthy nonsmoker could suffer a heart attack as a result of a 30 minute exposure to secondhand smoke, and it certainly does not mean that a nonsmoker's risk of a heart attack approaches that of a smoker's after 30 minutes of exposure to secondhand smoke.

The only possible acute risk of secondhand smoke exposure in terms of heart attack risk is the slight possibility that in people with existing severe coronary artery disease, the endothelial dysfunction triggered by acute exposure to secondhand smoke might be enough to trigger a coronary event (i.e., a heart attack). There is very little evidence that this is the case, but it is possible, and I wouldn't argue with recommending that nonsmokers with coronary artery disease should try to minimize or eliminate their exposure to secondhand smoke.

It is also worth noting that one piece of evidence ASH relied upon to support its contention that small amounts of acute exposure to secondhand smoke causes heart attacks is what Jacob Sullum aptly called "The Vanishing Miracle of Helena and Pueblo."

The fact that heart attack admissions fluctuated downwards in these two small cities in association with a smoking ban was apparently enough for ASH to conclude not only that the downward fluctuation was due to the smoking ban, but that the observed effect was due to a reduction in secondhand smoke exposure (even though it is completely implausible that the observed reductions could be due to reduced secondhand smoke exposure even if they were due to the smoking ban in the first place and even though there is no evidence that a reduction in secondhand smoke exposure explains the decline [smoking status was not measured in either study]).

The rest of the story is two-fold:

First, the rest of the story is that the anti-smoking movement is now on record as supporting and promoting a wide ban on smoking in non-enclosed outdoor areas where people can move about freely, including on public streets and sidewalks. Unless this is contested by other anti-smoking groups, I believe it is a big step towards making ourselves perceived by the public as a bunch of fanatics.

And I believe it is a big step towards what I fear will be the eventual implosion of the smoke-free movement. After all, public opinion is critical to enable even legitimate legislation, and if we risk losing that, we risk losing everything. That is why I am bringing this to the tobacco control community's attention and speaking out against it.

Second, the rest of the story is that the misuse and misrepresentation of science by anti-smoking groups has risen to a new and unprecedented level. An anti-smoking group has claimed that 30 minutes of secondhand smoke exposure raises a nonsmoker's risk of a heart attack to the level of a smoker. This is not just a stretch of the science, it is completely fallacious and it seems to come out of nowhere.

I'm not claiming that it is an intentional fabrication. Perhaps it is just a very errant interpretation of the scientific evidence. But either way, the bottom line is that it is a public misrepresentation of the scientific evidence that is misleading, inaccurate, and irresponsible.

This is the lowest I have observed the anti-smoking movement sinking in terms of misleading the public, because there is simply no basis whatsoever for the claim that a nonsmoker's risk of a heart attack after 30 minutes of secondhand smoke exposure is the same as that of a smoker's. In fact, after 30 minutes of secondhand smoke exposure, an otherwise healthy nonsmoker's risk of a heart attack is basically ZERO. Now you can see why I don't view this as merely a gross over-estimate (like the Helena and Pueblo claims, where at least there is some plausibility to the idea that a smoking ban could reduce heart attacks to some small degree), but as a "fact" that has the appearance of coming out of nowhere.

It should go without saying that I think ASH needs to publicly retract or correct this communication and apologize for misleading the public so severely.

Friday, January 27, 2006

Supporting Outdoor Smoking Bans Based on Pollution Threat Probably Not a Good Idea

As an article in today's Seattle Post-Intelligencer reports, the problem of pollution from cigarette butts has apparently increased dramatically after the implementation of the state's ban on workplace smoking.

According to the article: "Keeping the streets of Seattle clean has gotten a lot tougher in recent weeks for the men and women in the bright green vests who are charged with sweeping up downtown. Cigarette butts, thousands of white and tan little nubs, are scattered over the sidewalks, clustered at the base of trees and clogging up gutters. Flattened, soaked and foul, spent smokes have become one of the city's major litter problems over the course of little more than a month. 'The cigarette butts are up 100 percent. They're everywhere,' said Bruce Paul, broom in one hand, garbage can in tow with the other. ... Since Initiative 901 went into effect in December, banning cigars and cigarettes from bars, restaurants, hotels and all other public indoor places in the state, smokers have taken their habit outside -- and are leaving their butts behind."

The Rest of the Story

This is one reason why I think using the "cigarette butts are a problem" argument to support widespread outdoor smoking bans is not a very good idea for tobacco control practitioners.

Apparently, it is the workplace smoking ban that is the cause of a substantial increase in pollution from cigarette butts. Obviously, I believe this is a small price to pay for clean air for workers, but by the reasoning of advocates who use the cigarette butt argument to support the need for outdoor smoking bans, one could just as easily conclude that Initiative 901 is causing a major public health problem.

I think this shows exactly why I am so insistent that we be able to adequately and appropriately justify the public health rationale behind our proposed policies. If we don't do it just right, then it might just come back to bite us in the "butt." (sorry - I couldn't resist)

New Jersey Smoking Ban Exemption for Casinos Setting Precedent for Irrational Public Health Policy

I have been criticized by many tobacco control advocates for speaking out against the support of some New Jersey health groups for legislation that banned smoking in all workplaces, except for those which employ the state's 48,000 casino workers. I have suggested that these policies seem inconsistent and somewhat irrational from a public health perspective because if it is true that secondhand smoke is such a severe occupational hazard that the government has to intervene into business to ban smoking in bars and restaurants, then isn't it also a significant enough hazard to warrant eliminating smoking in casinos as well?

One effect that this type of action by tobacco control groups has, I think, is to destroy the appropriate framing of the issue of secondhand smoke as being an occupational health hazard from which workers require protection. Once you start supporting legislation that exempts certain groups of employees for political and/or economic reasons, then you are basically eroding the concept that secondhand smoke is a severe enough hazard to warrant the protection of all workers. And if it is not that severe, then why intervene to protect certain groups of workers?

The bottom line is that I think public health groups' support for these irrational exemptions is going to hurt, not help, the effort to protect workers from secondhand smoke because it destroys the consistency of our position on this issue.

The Rest of the Story

An article in yesterday's Rocky Mountain News reports that some lawmakers in Colorado are now insisting on an exemption in the proposed state ban on smoking in workplaces so that smoking can be allowed in the state's casinos.

According to the article: "A lawmaker who represents Cripple Creek and its 19 casinos says he can't support a workplace smoking ban unless gamblers get to light up. Rep. Jim Sullivan, R-Larkspur, said he will try to amend the bill to exempt casinos and racetracks when it is heard in committee Monday. 'The people that are gamblers are smokers,' he said Wednesday. The proposed 'Colorado Clean Indoor Act' bans smoking in virtually all workplaces, including bars, restaurants, bowling alleys and office buildings. House Bill 1175 by Rep. Mike May, R-Parker, currently offers only a few exemptions, including the smoking lounge at Denver International Airport and cigar bars. May said he would consider the casino exemption but will fight excluding racetracks."

There's little question in my mind that seeing what happened in New Jersey did influence what is going on in Colorado. The actions of smoke-free advocates in one state do affect what happens with smoke-free policies nationally.

But I think the impact is due not only to the precedent set by exempting casinos, but even more, to endorsing the idea that an inconsistent public health policy is somehow appropriate.

I think that public health groups should either resolve the inconsistencies in their positions, or at very least, publicly admit that their positions are inconsistent, and they are inconsistent for purely political reasons, not public health reasons.

Thursday, January 26, 2006

Proposed Outdoor Smoking Bans Getting More Extreme

My post on Monday, in which I suggested that broad outdoor smoking bans that ban smoking in wide open areas where people can freely move about are spreading like wildfire turns out to have been a bit of an understatement.

An article published yesterday in the San Diego Union-Tribune online reported that the city of Del Mar (California) is considering an ordinance that would ban smoking on all streets and sidewalks.

According to the article: "City staff is looking into the possibility of prohibiting smoking on city streets and sidewalks. The City Council asked for a staff report on the matter Monday night when it voted unanimously, with no public opposition, to ban smoking at Del Mar's beaches and parks."

This is the first time I am aware of that a locality even considered the possibility of a smoking ban applying to streets and sidewalks.

The Rest of the Story

I definitely don't like the direction the program is going if we are now considering extending smoking bans to streets and sidewalks. Frankly, I'm not sure where it's going to end.

Somebody (some organization) from within the tobacco control movement needs to speak out and make it clear that this is not what tobacco control is all about. We shouldn't be all out to simply ban smoking everywhere a nonsmoker might ever be exposed.

What this should be about is protecting the public from a serious and unavoidable hazard. And when the hazard is neither serious nor unavoidable (such as it is with smoking on most streets and sidewalks), we should not have any part in promoting smoking bans, and in fact, should be speaking out against the idea.

I have no doubt that actions of this kind are only going to harm the legitimate aspects of the campaign to promote smoke-free workplaces for all employees. It is going to be increasingly difficult to convince policy makers that we are anything other than fanatics if these kind of policies start to go through.

That's why I think it behooves anti-smoking groups to speak out against this right now.

Anti-Smoking Advocate Accuses Rest of the Story Author of Being a Traitor

In a public statement (issued on a tobacco control list-serve to which thousands of tobacco control advocates belong), an anti-smoking advocate accused me of being a traitor to the tobacco control movement, and, apparently, of being a tobacco industry front.

His accusation:

"I'm going to go straight to the point. It is my opinion that Michael Siegel is a traitor in our midst, that he is a tobacco stooge."

I take this as a great compliment, since Larry, Moe, and Curly were my favorites as kids. I am critical of the accusation only in its lack of clarity, since it is not clear which of The Three Stooges the advocate is accusing me of being most like.

It's got to be either Moe or Curly, since both came from families in the Jewish community of Brooklyn (my family was actually from the Bronx, but that's closer than Philadelphia, from which Larry hailed). Moe, like me, had two children, while Curly married four times and had a highly-publicized, scandalous divorce, so I'm hoping that Moe was the Stooge that the advocate had in mind.

On the other hand, since the advocate called me a "tobacco" stooge, maybe he has in mind lesser known Stooge Shemp Howard (Samuel Horwitz), who was notorious for smoking a cigar.

The Rest of the Story


This post is not actually about the accusation. Instead, it is about the opinion that I expressed that led to this attack. The opinion that led to it was my suggestion that perhaps it is not such a good idea to be promoting, as a public health intervention, firing smokers from their jobs.

That is what I find hard to believe.

I could certainly understand if I had suggested something "radical," such as challenging the established wisdom that smoking bans can produce a greater reduction in heart attacks than eliminating all smoking entirely, or suggesting that smoking should not be banned everywhere.

But this was a seemingly "benign" and "reasonable" opinion - that perhaps it is not appropriate, from a public health perspective, to encourage employers to fire all their smokers to save health care costs, rather than perhaps instituting worksite health promotion programs, including smoking cessation programs and other services and incentives to help smokers quit.

Not so, I guess. Apparently, this is such a radical opinion that ipso facto, it must mean that I am not even a deranged tobacco control advocate, but actually that I am a full-blown traitor, a mere tobacco front who is posing as a public health practitioner.

I'll be honest. I'm a pretty good actor and I can pull a lot off, but this is one I wouldn't even attempt. Especially not driving a Saturn SL. You would think if I was being paid off by the tobacco companies, the first thing I would do would at least be to upgrade to an SL2 -- or, at very least, an SL1???

Wednesday, January 25, 2006

American Journal of Preventive Medicine Erratum About Disclosed Conflict of Interest to be Published

The American Journal of Preventive Medicine issued the following erratum statement, which will be published in the next issue of the journal. This clarifies the fact that the journal erred by not including the conflict of interest disclosure statement provided by Professor Richard Daynard in the article entitled "Applying lessons from tobacco litigation to obesity lawsuits (Alderman J, Daynard RA. Applying lessons from tobacco litigation to obesity lawsuits. Am J Prev Med 2006; 30:82-88):

Erratum

In the January 2006 (vol 30, number 1) article, Applying Lessons from Tobacco Litigation to Obesity Lawsuits by Jess Alderman, MD, JD, and Richard A. Daynard, JD, PhD, the statement of potential conflict of interest provided to us by Dr. Daynard was inadvertently omitted during the editorial and production process. It should have read as follows:

Dr. Daynard is the unpaid director of the Law and Obesity Project of the Public Health Advocacy Institute (PHAI). It is possible that PHAI will receive more grants if obesity litigation increases. Also, Dr. Daynard has stated that he might become involved with a group of attorneys bringing cases against soda manufacturers to get soda machines removed from schools.

We unreservedly regret this error and accept full responsibility for it.

Kevin Patrick, MD, MS
Editor-in-Chief

Rest of the Story Author Inaccurately Implies Undisclosed Conflict of Interest to Journal

In today's blog post, I offer a criticism of an individual tobacco control advocate: myself.

Monday, I wrote a post which, based on a published statement in a journal article that the authors declared no conflict of interest, criticized the authors for what I felt was a significant potential conflict of interest that was not disclosed (Alderman J, Daynard RA. Applying lessons from tobacco litigation to obesity lawsuits. Am J Prev Med 2006; 30:82-88).

I made the assumption, based on the journal's published statement of no conflict of interest, that no conflict of interest was disclosed by the authors to the journal.

The Rest of the Story

The truth is that the conflict of interest was in fact disclosed to the journal by the authors, but that somehow, the journal erred in placing this disclosure into the article, and in fact, instead what appeared in the final article was a statement that the authors had declared no conflict of interest.

I failed to take the time, or have the decency, to call Professor Daynard directly to confirm the situation before writing the post.

I made a huge mistake, and I feel terrrible about it. I have apologized to Professor Daynard, both directly and publicly (in my correction statement), and I apologize to him here again.

What is perhaps most troublesome about this story is that I have been quite outspoken in my criticism of a number of anti-smoking organizations for making undocumented accusations of wrongdoing by individuals and groups. In my case, I thought that there was "documentation," but that "documentation" turned out to be an erroneous statement on the part of the journal. This shows why it is even more important to have documentation before issuing accusations of wrongdoing by individuals or groups. Even when you have "documentation," there is always a chance that there was some sort of mistake. So when you don't have documentation at all, it is really precarious and inappropriate to make accusations of wrongdoing.

When you dish out criticism, you have to live by the same standards to which you hold others. And for what I hope is the first and last time, I failed to live up to the standards of conduct that I feel I should have.

You learn from your mistakes, and I've certainly learned from this one.

I have always had great respect for Professor Daynard and his individual integrity and I was frankly shocked when I saw the absence of a disclosure in his article. I should have suspected that there was some explanation for the absence of the disclosure. His conduct has now been vindicated and his integrity is indeed, exactly what I had always thought.

I, on the other hand, acted rashly and inappropriately. Sometimes you need to pause for a while and get your own house in order. That's what I'm doing now.

The rest of the story is that I made a huge mistake. I admit it, apologize for it, and I hope what I learned from this experience can help make this blog more accurate and thoughtful than I hope it already (with a major exception) is.

Tuesday, January 24, 2006

CORRECTION: Conflict of Interest Was Disclosed to Journal in Tobacco/Obesity Litigation Article

In response to my January 23 (yesterday's) post entitled "Potential Conflict of Interest Not Disclosed in Journal Article Promoting Obesity Lawsuits," Professor Daynard has informed me that he did in fact disclose to the American Journal of Preventive Medicine that he did have a potential conflict of interest with regard to his article entitled "Applying Lessons from Tobacco Litigation to Obesity Lawsuits" (Alderman J, Daynard RA. Applying lessons from tobacco litigation to obesity lawsuits. Am J Prev Med 2006; 30:82-88).

Specifically, Professor Daynard informs me that he did disclose the conflict of interest with regards to obesity litigation, noting in his faxed conflict of interest form to the Journal that: "I may become involved with a group of attorneys bringing cases against soda manufacturers to get soda machines removed from schools" and also noting his relationship with the Public Health Advocacy Institute.

While I have first, corrected this in the original post, and later, removed that post entirely for simplicity, I wanted to issue this separate correction and also apologize to Dr. Daynard for incorrectly implying that he had failed to notify the journal of this potential conflict of interest.

The implication that the author denied having any conflict of interest at all was incorrect, and I apologize for incorrectly implying that was the case here. The journal erred in not printing the disclosed conflict of interest. I apologize to Dr. Daynard for not having the decency to call him to confirm that he did not disclose the conflict before writing the post.

IN MY VIEW: Crisis of Credibility Imminent for Tobacco Control Movement

If there is one thing that has become clear to me this week after seeing Action on Smoking and Health's efforts to promote the firing of smokers by employers to save health care costs, it is that a crisis of credibility is imminent for the tobacco control movement.

This episode has highlighted, I think, just how fanatical some anti-smoking groups are and just how silent the rest of the tobacco control organizations are in the face of that fanaticism.

When the public catches wind of the fact that anti-smoking groups are supporting the firing of smokers, I think they are going to get the idea that "these people are just crazy" and they are going to lose respect for all anti-smoking organizations, even those which are promoting reasonable and important interventions to improve the public's health.

I think people tend to underestimate the value of the reputation, image, and credibility of a social movement because when things are going well, there seems no reason to think about these aspects of the movement.

The problem, however, is that things can change almost overnight. And when they do, it may be impossible to ever reclaim the favorable image.

In Robert Greene and Joost Elffers "The 48 Laws of Power," law #5 is "So Much Depends on Reputation -- Guard It With Your Life."

Greene and Elffers argue that "reputation is the cornerstone of power." It "inevitably precedes you, and if it inspires respect, a lot of your work is done for you before you arrive on the scene, or utter a single word." It gives you "a degree of control over how the world judges you -- a powerful position to be in." "Reputation has a power like magic: with one stroke of its wand, it can double your strength." Therefore, "reputation is a treasure to be carefully collected and hoarded."

However, "one false slip, one awkward or sudden change in your appearance, can prove disastrous." And once holes have been opened in your reputation, your enemies can "stand aside" and "let public opinion hang" you.

I think the anti-smoking movement now stands at the verge of a crisis of credibililty. Our reputation is on the line. I simply don't think we can tolerate having prominent anti-smoking organizations going around and publicly promoting policies to fire smokers and not lose our reputation as a movement of good-will and of reason.

It only takes one major slip, as Greene and Elffers suggest, before we are viewed as fanatics, and our reputation may be permanently tarnished. And I think this could qualify as being that major slip.

IN MY VIEW: There's No Room for Hate in the Anti-Smoking Movement

Yesterday, I criticized Action on Smoking and Health (ASH) for its public declaration in support of policies by which employers fire all their smoking employees in order to save health care costs. Here, I will consider a more basic question:

Why is it that an anti-smoking group should even be interested in the issue of the health care costs borne by employers in the first place?

The mission of anti-smoking organizations, I would think, is to try to decrease the morbidity and mortality caused by smoking. I don't see their mission as trying to find ways for employers to save money on their health care bills. Of what interest is it, then, for a group like ASH to issue a press release encouraging employers to fire smokers as a possible solution to their financial woes?

The only legitimate interest that I can see would be if this action is viewed by ASH as an appropriate public health intervention -- not a financial, economic, or actuarial intervention, but a public health intervention.

And the only way that firing smokers could possibly be viewed as a public health intervention would be if the purpose of the intervention was to reduce smoking rates. After all, that is arguably the only potential health benefit of firing smokers.

So what this basically comes down to is an anti-smoking organization promoting firing smokers as an intervention to improve the public's health. By forcing smokers out of jobs and making it much more difficult for smokers to obtain jobs, these anti-smoking groups apparently believe they will convince many smokers to quit smoking and therefore to benefit from these discriminatory and invasive policies.

The Rest of the Story

As a public health practitioner, all I can say about this type of public health intervention is that I find it hateful.

Yes - it is full of hatred.

And I don't think hatred should have any place in our tobacco control movement.

There is not another health behavior in the world that I can think of for which we as public health practitioners intervene by firing people who engage in a legal, off-the-job, harmful activity because they will benefit from the incentivization to alter their behavior.

Would we ever see ASH, or any other public health group, stating that firing fat people is "an appropriate and very effective way to stop burdening the great majority of employees who wisely chose to control their weight with the enormous unnecessary costs of obesity on the part of their fellow employees?"

Would we ever see ASH, or any other public health group, stating that firing people who consume excessive amounts of fat is "an appropriate and very effective way to stop burdening the great majority of employees who wisely chose to control their fat intake with the enormous unnecessary costs of atherosclerotic disease on the part of their fellow employees?"

Would we ever see ASH, or any other public health group, stating that firing diabetics who do not adequately control their blood sugar fat people is "an appropriate and very effective way to stop burdening the great majority of employees who wisely chose to control their blood sugar with the enormous unnecessary costs of uncontrolled diabetes on the part of their fellow employees?"

And would we even ever see ASH, or any other public health group, stating that firing people who engage in unsafe sex is "an appropriate and very effective way to stop burdening the great majority of employees who wisely chose to engage in safe sex with the enormous unnecessary costs of AIDS on the part of their fellow employees?"

We don't and we won't, because in public health, we simply don't view this type of intervention as being an appropriate one.

Unless, of course, you are an anti-smoking organization talking about smoking. I can tell you that in my years in medicine and public health practice, I have never heard a single group or practitioner even consider the potential intervention of firing people as a method of changing their health behavior. The only time I have heard of such a proposed intervention is with regard to smokers, and the only practitioners who I have heard support such an intervention are anti-smoking groups and advocates.

And to be truly honest, the reason why I think this intervention even comes to mind among anti-smoking groups is that there is a lot of hatred for smokers here in tobacco control. I simply don't see any other explanation for this peculiar phenomenon of public health practitioners supporting a policy for which there is no other precedent in public health and which blatantly flies against everything that we stand for in public health.

It would take a lot to overcome the overwhelming accumulated experience and wisdom of public health practice to actually promote or support such policies, and the only thing I can think of that would enable groups to overcome this huge barrier would be some rather serious hatred of smokers and a feeling that they need to punished for their "unwise" personal choices.

So when I see ASH taking the initiative to issue a press release and to go to the extent of obviously trying to influence major media coverage of the topic of employers who fire smokers, I do not for one minute buy the argument that ASH is simply pointing out that firing smokers would indeed result in a health care savings. No - what ASH is clearly doing is encouraging these policies, and as a public health group, they are going to great lengths to do this since saving money for companies is not part of their legitimate primary interests as an organization.

No - there is no room for hate in the tobacco control movement. And I'm not going to sit silently and watch it dictate our actions so long as I'm a part of this movement.

Monday, January 23, 2006

Another Broad Outdoor Smoking Ban in the Works

The mayor of Calabasas (California) is apparently promoting a broad outdoor smoking ban. According to the local CBS affiliate: "The mayor of Calabasas is leading an effort to ban smoking outdoors in public places or where people might object. The city approved the framework of the ordinance, but its details have yet to be worked out."

The Rest of the Story

I have already commented extensively (post #1; post #2; post #3; post #4; post #5; post #6; post #7; post #8; post #9; post #10; post #11; post #12; post #13) on broad outdoor smoking bans, expressing my opposition to such policies when they include open, nonenclosed places where people are able to move freely about.

My only point here is to illustrate that these outdoor bans truly are spreading like wildfire. Ultimately, I think this is going to hurt legitimate efforts to protect workers from secondhand smoke because it is only a matter of time before the public and policy makers start to question the justification for these policies. And once it is clear that anti-smoking groups are promoting some policies that are not based on sound scientific evidence of unavoidable harm, then there is little to stop policy makers from assuming that all the policies we are promoting are in this category.

Action on Smoking and Health Encourages Firing of All Smokers

According to a press release issued by Action on Smoking and Health (ASH), a Washington, D.C.-based anti-smoking organization: "firing smokers is an appropriate and very effective way to stop burdening the great majority of employees who wisely chose not to smoke with the enormous unnecessary costs of smoking by their fellow employees."

The press release followed the airing of a CBS story about the growing trend of employers who fire smokers or refuse to employ them in the first place.

The Rest of the Story

As far as I'm concerned, this is about as low as the anti-smoking movement has ever gotten.

Just when I thought that we had bottomed out (with the combination of the Helena/Pueblo nonsensical claims, the massive deception of the public about the New Jersey smoking law, and the refusal of U.S. anti-smoking groups to speak out against the World Health Organization's intrusive and discriminatory policy of refusing to hire smokers), we have gone lower than I've ever observed before.

Now, a prominent anti-smoking group has actually called for employers to fire all their smokers, calling it an appropriate and effective action to save money.

Now it's official. The anti-smoking movement is, indeed, trying to make smokers second-class citizens by depriving them of the right to seek and maintain gainful employment in order to make a living and support themselves and their families.

I hasten to add that in general, smokers are already less financially well-off, and that by sentencing them to unemployment, we would only be furthering their disadvantage, creating a huge class divide between smokers and nonsmokers, and causing a huge amount of suffering for smokers and their families, including their children I would add.

Is ASH serious? Should smokers in the United States of America in 2006 not be allowed to hold jobs? Should children of smokers go hungry because their parents are fired from their jobs and unable to find new ones because no employer will hire them? Should our society have two distinct classes, one of which can work and the other of which cannot work, simply because of the addictive power of a product which most people who use it start using it as kids?

It's quite clear that ASH is serious, and I think that represents an extremely sad state of affairs for the tobacco control movement in this country. And again, it represents quite a contrast from our counterparts elsewhere, such as the organization of the same name (ASH) in Great Britain, which has condemned these types of employment policies.

While I am a strong supporter of tobacco control policies and have dedicated my career to promoting them, I don't think class warfare should be one of them. And frankly, that's exactly what this is. By promoting these policies on a national basis, ASH is promoting the creation of two separate classes of U.S. citizens. And if you're unfortunate enough to have made the decision to smoke, then you no longer have the opportunity to be employed and to generate an income to support yourself and your family.

While ASH argues that the reason behind its support of these policies is an economic one, I highly doubt that's the true reason. The inconsistencies in ASH's position are simply too great. For example, the ASH press release argues "that Scotts is taking other steps to try to reduce its employees' enormous health care costs. These include an on-site clinic with a doctor for the workers, a drive-through pharmacy, a new gym etc. -- all of which cost millions of dollars a year. Interestingly, the only health-promoting and cost-saving program which does not cost the company any money is firing smokers."

ASH is apparently trying to make the point that Scotts is not simply picking on smokers, but is implementing a broad range of policies that regulate off-the-job behavior that affects health, such as physical activity.

But ASH is completely missing the point, which is that if you are a couch potato and you do nothing more at home than sit at your computer and read self-congratulatory press releases issued by ASH (which this week could have occupied most of your free time), you are not fired.

Appropriately, what Scotts is doing about the problem of obesity and lack of physical activity, which costs millions of dollars due to increased health care costs, is to encourage employees to become more physically active and to lose weight, and Scotts is making it easier for their employees to do this by providing them with facilities on site.

An appropriate public health policy for worksite health promotion regarding smoking would provide smoking employees with smoking cessation programs, not fire them.

And of course, the worst inconsistency of the crusade against smokers that ASH is promoting is the failure of this crusade to also recommend firing employees based on other off-the-job lawful activities that greatly increase health care spending for companies.

If ASH were sincere in its efforts to reduce health care costs, it would certainly want to also crusade against fat people. There is no question that obesity causes enormous health care costs that are largely borne by thin people. Why should I, as a relatively thin person, be subsidizing the health care costs of obese people? We could save enormous money by simply firing them all.

And the same goes for people who do not get enough exercise, people who eat a high-fat diet, people who use tanning salons, and diabetics who do not properly control their blood sugars. Shouldn't all these people be joining the smokers on the unemployment line?

I honestly think something else is motivating this crusade against smokers, and because of it, I propose a name change for Action on Smoking and Health.

A more accurate name would, I think, be Action against Smokers based on Hate.

New Article Encourages Obesity Lawsuits Without Documenting Any Legal Wrongdoing by Fast Food Companies

An article published in the current (January 2006) issue of the American Journal of Preventive Medicine, written by two attorneys at the Northeastern University School of Law, discusses the use of litigation as a public health strategy and draws upon the lessons learned from tobacco litigation to inform a discussion of the potential public health benefits of obesity-related litigation against the food industry (see: Alderman J, Daynard RA. Applying lessons from tobacco litigation to obesity lawsuits. Am J Prev Med 2006; 30:82-88).

The article concludes that "state lawsuits under consumer protection acts may be a distinct type of litigation that permits cases to focus on deceptive advertisements while avoiding complicated causation issues. Such lawsuits have the potential to be a useful tool to fight obesity... It is likely that litigation will be necessary to address the obesity problem as it was to address the dangers of tobacco. The best approach is to focus on public health lawsuits under consumer protection statutes... ."

Specifically, the article encourages lawsuits against the food industry based on the claim that they violate state consumer protection statutes by using deceptive marketing practices. According to the article: "Lawsuits based on consumer protection acts are much more likely to be effective. ... Marketing that makes non-nutritious food appealing to children could fall under the consumer protection statutes. State attorneys general could bring suits under consumer protection acts seeking injunctions against food companies and refunds to consumers for deceptive marketing practices."

The article implies that food companies have engaged in possibly fraudulent activity similar to the tobacco companies: "The [tobacco] documents revealed a blatant disregard for public health, such as an agreement among tobacco companies to conceal information about the health effects of cigarettes, and helped to turn public opinion against the industry. The food industry may be concerned that litigation could reveal similar documents or industry practices that would tarnish its public image."

The Rest of the Story

This article seemingly accuses the food companies of fraudulent or other unscrupulous activities similar to the tobacco industry without documenting a single unlawful activity in which these companies are engaging. Likewise, the article encourages lawsuits against the food industry without documenting any grounds for legal action.

It hardly seems meaningful to suggest that state consumer protection laws provide a basis for lawsuits against food companies without documenting just what it is that the companies are doing that violates these consumer protection laws.

One could just as easily, it seems, write an article suggesting that we should be pursuing lawsuits against auto manufacturers, hoping that secret documents are uncovered which reveal unscrupulous activity, but it seems unhelpful to me to be making such a suggestion without providing any documentation of any legally redressable wrongdoing.

In fact, the article documents only one thing that any food company has ever done that could be construed as violating consumer protection statutes: Kentucky Fried Chicken once aired an ad (which has subsequently been withdrawn) that apparently "featured fried chicken as a health food useful for people on a diet." But there is no documentation of any other misleading or deceptive advertising or any other behavior that would violate consumer protection statutes.

The article specifically recommends that the Attorneys General bring suits under consumer protection acts seeking injunctions against food companies for deceptive marketing practices. But the article does not document any ads or class of ads that are deceptive.

The article states that "marketing that makes non-nutritious food appealing to children could fall under the consumer protection statutes." But I'm not aware of any law that makes it illegal for companies to make their products appealing. That's what marketing is all about. What would be potentially in violation of consumer protection statutes would be if the companies made non-nutritious food appear nutritious to children. But the article makes no such documented claim.

Now I'm not in any way arguing here that the food companies have not been misleading or deceptive in their advertising or that they have not violated consumer protection statutes. I simply don't know. But what I am arguing is that if the article is going to suggest such lawsuits, it should probably first document what the deceptive or misleading advertising is.

I'm not saying there is no corporate wrongdoing by the food industry, but it seems not particularly helpful to suggest that there may be wrongdoing without providing the documentation.

Friday, January 20, 2006

George Will Had it Right on Master Settlement Agreement: Attorneys General are the Ones Out of Touch with Reality

In a New Year's day op-ed column entitled "The State's Tobacco Addiction," George Will argues that the Master Settlement Agreement (MSA) between 46 state Attorneys General and the major tobacco companies in 1998 was little other than a financial windfall for trial lawyers (who netted "$13 billion in fees" and a political windfall for the Attorneys General, who enabled "their states to finance this and that with billions paid by smokers, who are disproportionately low-income people."

Will also argues that the major effect of the MSA was to make the states dependent on tobacco revenues to fund a variety of essential government programs and that it thereby created a financial incentive for the states not to take any action that would decrease cigarette consumption (and therefore incoming revenues to the state).

"The states' ability to continue treating the tobacco industry as a 'budgetary Alaska' -- the last frontier for exploitation -- depends on brisk sales of cigarettes far into the future. So all 50 states, which in 2004 reaped $12.3 billion in cigarette taxes, have an incentive to carefully calibrate these taxes so as to maximize revenue. They want high taxes, but not high enough to cause large numbers of smokers to quit the habit that is so lucrative to states."

In response to Will's column, Attorney General Tom Miller of Iowa and Attorney General Lawrence Wasden of Idaho, who is on the Board of Directors of the American Legacy Foundation (recipient of much of the MSA funding) published a letter in which they countered Will by stating that: "The tobacco Master Settlement Agreement (MSA), which arose from the settlement of litigation that state attorneys general brought against the major tobacco companies, is primarily a public health agreement that contains the strongest restrictions on tobacco advertising and promotion ever implemented in this country."

They also accused Will of repeating "the canard that the states have an interest in maintaining cigarette smoking because MSA payments and state excise taxes exceed the costs of treating tobacco-related disease."

The Rest of the Story

I've been around tobacco control for a long time (and a lot longer than either of the Attorney Generals who provided their wisdom here) and I can tell you that on this particular issue, George Will is precisely correct, and it is in fact the Attorneys General who are completely off base.

First of all, the MSA is by no means primarily a public health agreement. In fact, it is, as Will suggests, primarily an economic and political agreement that provided the tobacco companies with resolution of potentially damaging and ongoing litigation as well as with the benefit of a financial partnership with the states. And it provided the Attorneys General with a huge political windfall. They could claim that they had stood up to Big Tobacco, when in fact, they had forged a compact with the major companies by which they became financially dependent upon cigarette revenues to build bridges and highways, treat sick patients, and balance budgets. And of course they could tout the huge amounts of money that they had brought back to their states.

But there has been, in my opinion, no lasting public health benefits from the MSA. The only potential benefit -- a major national anti-smoking media campaign -- was doomed to failure by the MSA itself, since the Attorneys General themselves agreed to a provision that ended funding for this program if the non-participating manufacturers gained more than 1% of the market, which has occurred.

On the contrary, I view the MSA as the worst public health blunder of my lifetime.

The advertising restrictions in the MSA, which Miller and Wasden boast about, are ridden with loopholes and have done almost nothing to reduce youth exposure to cigarette marketing. In fact, according to the Federal Trade Commission, cigarette marketing expenditures are now at an all-time high!

And worst of all, by making the states financially dependent on tobacco revenues, the tobacco companies have brilliantly created a situation in which the states have a vested interest in preserving cigarette consumption. This is the worst possible public health outcome that could ever have occurred.

Second of all, the "canard," as Miller and Wasden call it, that the states have an interest in maintaining cigarette smoking, is actually quite true, and this fact has been borne out time and time again, including by the very actions of Miller and Wasden themselves!!!

The rest of the story is that Miller and Wasden in 2003 (along with other attorneys general) intervened in an Illinois tobacco court case, submitting an amicus brief to a trial court judge urging him to reduce the $12 billion appeal bond he had ordered Philip Morris to pay, as specified by Illinois law, after the company was found guilty in a class-action lawsuit.

In intervening to protect the financial well-being of Philip Morris, Miller and Wasden wrote: "Defendant Philip Morris has informed the States that the $12 billion appeal bond required in this Court'’s March 21, 2003 Judgment may prevent it from making the $2.6 billion payment to the States that the MSA requires it to make on April 15, 2003. The States submit this brief to advise the Court that many State programs, including vital public health programs, depend on MSA payments for their support and to urge this Court, after a full assessment of Defendant'’s financial condition, to exercise its discretion to set an appeal bond that does not interfere with the States'’ vital interests. ... The States have a strong interest in preserving the value of the settlements they fought for and won, and the results in this lawsuit should not prejudice those settlements."

In other words, Miller and Wasden were arguing that because the legal remedy awarded to plaintiffs in Illinois - under the judicial system and laws of Illinois and under the United States Constitution - affected financial payments to their states, the judge should alter the application of Illinois law to protect their state's financial interests, and that concern should override the pursuit of justice by these citizens under the laws of Illinois.

So much for the interest in reducing tobacco use outweighing the financial interests of the states in protecting the financial conditions of the cigarette companies!

The insincerity of Miller and Wasden is overflowing in their letter. How can they seriously attempt to convince us that fighting the tobacco companies and protecting the public's health is their primary concern when they went to bat for Philip Morris, intervening and interfering in the pursuit of justice by a class of citizens in another state, all in an effort to protect the financial welfare of the nation's leading tobacco company (so that their own states' financial status would not be affected)?

That Attorney General Wasden is on the Board of the American Legacy Foundation is a shame, because it is difficult to see how someone who has gone to such lengths to protect the financial interests of Philip Morris belongs on the Board of such an organization. I think that pretty much dooms you from the start.

Politicians should simply not be directing such a public health organization. The conflict of interest is simply too large to bear. Unfortunately, the Attorneys General have written this conflict of interest into the law, because they included in the MSA a provision that they (the National Association of Attorneys General) would select 2 of the members of the Board of Directors of the American Legacy Foundation. Talk about a recipe for failure. The last thing we need is politicians running the show in public health.

The rest of the story is that Attorneys General Wasden and Miller are talking out of both sides of their mouth. While they try to convince the public that they have fighting Big Tobacco and protecting the public's health as their primary interest, they fail to disclose that at the same time, they intervened to protect the financial well-being of the nation's largest tobacco companies, that they signed a deal that ensured that any possible effects of an anti-tobacco media campaign would be short-lived, and that they agreed to include in their settlement provisions that watered down the advertising restrictions enough so that they would have no meaningful effect, resulting in never-before seen tobacco industry marketing expenditures and unencumbered tobacco industry marketing to youths.

I don't find myself agreeing with George Will very often, but I think he is right on the mark on this one. And the Attorneys General have shown that they have no concept of what tobacco control is all about.

New York Smokers' Class Action Lawsuit Seeks Payment for Lung Cancer Screening via CT Scans

A class-action lawsuit was filed yesterday in a New York federal district court on behalf of all 50+ year-old smokers in New York State who smoked at least one pack per day of Marlboro cigarettes for at least 20 years. The lawsuit is unusual in that it doesn't seek damages for harms done to the smokers, but instead asks Philip Morris (maker of Marlboro) to pay for a screening program intended to provide early detection of lung cancer among this group of smokers.

Specifically, the lawsuit apparently asks the Court to require Philip Morris to pay for annual, low-dose spiral CT scans of all of the smokers in this class. Further tests (such as biopsies) needed to confirm the diagnosis of lung cancer, as well as surgery, if needed, would presumably be covered by the smokers' traditional insurance programs, although it is not clear to me whether insurance companies would pay for follow-up tests required due to a tobacco industry-funded screening program.

The lawsuit apparently contends that this screening program will benefit the class members, estimated in the tens of thousands, by providing early diagnosis of lung cancer at a stage that is more treatable.

The Rest of the Story

There's just one problem with this lawsuit: as of yet, there is simply not an early detection program that has been shown to both reduce lung cancer mortality and to be sufficiently specific (i.e., to have a low enough rate of false positives) so as to present benefits that outweigh the costs of the screening program in terms of the false positive diagnosis rate and the need to intervene with intensive and invasive procedures on a huge proportion of patients who do not in fact have disease.

For this reason, no major medical organization has recommended low-dose CT screening as an effective tool for the early detection of lung cancer on a population basis.

The problem is that low-dose spiral CT scans, in the current form available in most hospitals, has an extremely low positive predictive value. In other words, the proportion of patients with a nodule detected on CT scan who actually have lung cancer is extremely low. The overwhelming majority of patients with an abnormal CT scan do not, in fact, have lung cancer.

But the presence of an abnormal CT scan requires intensive and possibly, invasive follow-up tests, including the possibility of a lung biopsy, in order to rule out lung cancer. Plus, the finding of a nodule on a CT scan is going to certainly create a huge amount of anxiety for these smokers, and for many of them, they will have to live with this anxiety because the recommendation will be to simply have them come back in 6 months or a year for another CT to see if the nodule has grown.

If I were a smoker, I don't think I would want to be told that I have a nodule in my lung that could be lung cancer, but that the doctors aren't going to do anything about it except wait for a year to see if it grows. I would be absolutely freaking out.

And the reality is that the majority of smokers screened by such a program would be in exactly this situation.

Medical screening is a wonderful thing and it can save lives, but if done indiscriminately, or in situations where a sufficiently specific test is not available (especially if combined with the low prevalence of the disease being detected), it can result in a lot of harm. And the balance of harm to good can actually lie on the harm side.

In the case of low-dose spiral CT scans for early detection of lung cancer, the balance right now, in my opinion at least, lies on the side of more harm than good. And this is why no medical organization has recommended this procedure as an effective screening test for lung cancer.

I am not suggesting that low-dose CT scans will not ever become an effective screening test, or that there will not at some point (possibly very soon) be evidence that the procedure does reduce mortality. I am just stating that right now, there is not sufficient evidence that the procedure will indeed save lives, and there is certainly not evidence that the benefits of instituting this screening procedure on a large population of tens of thousands of smokers would result in more good than harm.

I think it's going to be difficult to convince a jury otherwise.

Lung Cancer Alliance Report Card on Lung Cancer Gives Many Failing Grades

A report card on lung cancer issued yesterday by the Lung Cancer Alliance gave failing grades for failure to make progress in eradicating the disease in several areas including:
  • number of deaths (163,510 in 2005);
  • five-year survival rate (only 15%);
  • proportion of late-stage diagnoses (70%);
  • overall federal commitment; and
  • number of newly-addicted youth smokers (2000 a day).
According to the press release: "“Lung cancer is the most lethal of all major cancers. This Report Card on Lung Cancer will put public health leaders and the American public on notice that it is time to change this. The Report Card on Lung Cancer will evaluate progress utilizing key benchmarks annually in the battle to eradicate this disease.

'Lung cancer is the leading cause of cancer death in men and women,' said Paul A. Bunn, Jr., MD, Professor of Medicine and Director of the University of the Colorado Cancer Center (UCCC); former President of the American Society of Clinical Oncology (ASCO); Member, Board of Directors, The Lung Cancer Alliance. 'We have made insufficient progress in this dreaded disease in part due to a lack of resources. Hopefully, it will encourage our public health leaders to come together to develop an overall plan with a sense of urgency to increase lung cancer'’s survivorship.'"”

The Rest of the Story

While I have been critical in the past of a number of actions the Lung Cancer Alliance has taken (mainly related to what I felt was an attempt to downplay the significance of smoking in addressing the lung cancer epidemic), I have nothing but praise for the Alliance's Report Card on Lung Cancer.

I think the Report Card presents a focused, yet balanced view of the dismal efforts we have made to try to both prevent and better treat this devastating disease.

And I want to highlight the fact that the Lung Cancer Alliance has specifically included a focus on prevention of smoking, providing evidence that it really is concerned about smoking as an important aspect of the lung cancer problem.

The Lung Cancer Alliance is to be congratulated for providing this poignant reminder that we can sit idly back while more than 160,000 Americans die each year from a disease that could largely be prevented, and where not prevented, should be able to be either diagnosed earlier or treated more effectively.

Thursday, January 19, 2006

Steven Milloy's Critique of Helena and Pueblo Studies is Largely on the Mark

In an October 2003 column and a November 2005 commentary, Steven Milloy, founder and publisher of junkscience.com and adjunct scholar at the Cato Institute, attempts to debunk the scientific claim from the Helena and Pueblo studies that smoking bans resulted in a dramatic, immediate reduction of heart attack admissions by 40% and 27%, respectively.

About the Helena study, Milloy accepts that fewer heart attacks occurred during the six-month period that the smoking ban was in effect, but he argues that there is no basis upon which to attribute that decline to the smoking ban. He points out, for example, that a very similar decline in heart attacks occurred in 1998. He suggests that there is no credible explanation for "why the 1998 dip in heart attack rates was just an anomaly but the 2002 dip was definitely due to the smoking ban."

The 2002 decline in heart attacks, Milloy argues, appears to be simply part of a cyclical pattern. And there is not enough of a historical context (the study did not go back far enough in time), he argues, to determine that the observed decline was anything other than a reflection of the random variation in this statistic over time.

Milloy also criticizes the study for failing to study any of the pre-ban and post-ban patients (no information is available, for example, on the smoking status and reported secondhand smoke exposure of these patients). This, he argues, further weakens the credibility of drawing a causal conclusion from the study.

A similar criticism of the Pueblo study was offered by an associate professor of political science at the University of Colorado who teaches statistics and commented that: "I'd like to see data from the last 10 years. They just studied this for a year and a half, and the conclusions could be coincidental or caused by other factors."

The Rest of the Story

I have to admit that I find Milloy's comments on Helena and Pueblo to be largely on the mark. In fact, anyone who is familiar with my own commentaries of these studies will note a striking similarity between the main arguments that I have made and precisely what Milloy is arguing above.

While I don't similarly question the link between secondhand smoke and heart disease, on the particular question of whether the Helena and Pueblo studies provide solid evidence that smoking bans dramatically reduce heart attacks, I agree with Milloy, and for the precise reasoning that he provides in his own criticism of these studies.

If one looks at historical trends in heart attack rates in these relatively small localities like Helena and Pueblo, one will note that there are often large changes from year to year in heart attacks, and some of these changes are of a similar magnitude as the changes associated with the implementation of their smoking bans.

But there is simply no credible evidence that I am aware of that demonstrates that the observed changes are anything more than simply random variation in the underlying data. At very least, there is nothing to demonstrate that the magnitude of any effect on heart attack rates is 40% or even 27%, even if a small effect of these smoking bans on heart attacks did occur. In fact, as I have argued, it is not plausible or even mathematically possible that these declines were due to the smoking ban.

And I agree with the University of Colorado professor that one really needs to look at data further back in time, such as from the past 10 years, to adequately understand what the baseline level of variation in these data is, and that is essential before when could conclude that the observed changes in these particular years is attributable to the smoking ban rather than to random variation.

I also should add that Milloy makes one other point that is worthy of highlighting. He discusses the fact that the Helena results were widely disseminated to the media and the public before the study was ever published or available for public scrutiny and he criticizes this "science-by-press conference" approach to releasing results by anti-smoking advocates "because they know their immediate audience likely will not be able to ask probing questions -- a tough thing to do when only sketchy details are hurriedly presented to people with no familiarity of the research conducted."

I completely agree. I would add that the release and dissemination of the Pueblo study followed the same pattern (science by press release - there is no actual study available for the public to review and so there is no way that anyone can scrutinizes the study methodology and results adequately). And I would add that it is not just the immediate audience that will not be able to ask probing questions, but the remote audience (the thousands of people who read news articles about the study) as well.

This is inappropriate, because it seems contrary to the integrity of science to present and widely disseminate research findings without making the details of the research available for public scrutiny. There are limited exceptions to this, I think, such as studies with dramatic clinical relevance for which a delay in sharing the results could affect the medical treatment of patients. But for the most part, if you're not willing or able to share your research, you probably shouldn't be releasing the results of that research via press release.

For many reasons, I am seriously concerned about the implications of this story for the credibility of the tobacco control movement. The public's interest and that of the movement itself, will certainly not be best served if the integrity of our science degrades into the realm of "junk science."