Thursday, December 22, 2005

Final Thoughts Before the Holidays: On Pueblo, Parks, and People

It has been 9 months since I started The Rest of the Story. Tens of thousands of visits and 280 blog posts later, a lot has happened and I have learned quite a bit, not only about the anti-smoking movement, but about many of the people who I think we should be trying to serve. Thinking back over the past months, I think 3 things stand out.

Here they are, prior to my taking a break for the holiday (and I will be back in action on Tuesday, January 3).

The Rest of the Story


I think the biggest surprise to me has to be the reaction to my commentary on the Pueblo study, unpublished research which was highly publicized in press releases and by anti-smoking groups in their advocacy efforts. This was a study which essentially compared two data points - the rate of heart attacks during the 18 months before and after a smoking ban in Pueblo, Colorado, which found that the 2nd data point was 27% lower than the first, and which then was reported as validating "previous scientific evidence that indoor smoke-free laws can dramatically reduce heart attacks" and as confirming that "smoke-free laws reduce heart attacks."

There is simply nobody I have talked to outside of tobacco control circles who sees this study design as yielding any conclusive information about the impact of the Pueblo smoking ban on heart attack rates. And taking a step back and thinking about this again, it is simply hard to believe that anyone could take this observed variation in heart attacks between two short periods and draw a conclusion that the variation was attributable to the smoking ban, especially when the underlying variation over time in heart attack rates in a small city like Pueblo is considerable, and when the study only went back 18 months, a period completely insufficient to establish what the baseline variability in heart attack rates in Pueblo is in the first place.

To be honest, this is precisely the kind of shoddy science that I have criticized the tobacco companies for using in the past to try to convince the public that smoking bans cause drastic reductions in restaurant sales.

That it was essentially expressing my professional scientific opinion about this research (or more accurately, about the exaggerated claims being made to the public based on this unpublished research) that led to censorship of my opinions by the tobacco control community (through being expelled from a tobacco policy list-serve) is still shocking to me.

And I would note that I really was quite conservative in my expression of opinion about the research and the conclusions that were being drawn from it. I made it clear that I was not stating that the research didn't provide a suggestion of a significant effect of smoking bans on heart attacks. I only pointed out that given the short time period of the study and the two data points, it would be almost impossible to determine whether the observed 27% change in heart attack admissions was due to random variation or to the smoking ban (or some other factor), and therefore, that it was far too premature to be drawing definitive causal conclusions.

For this, I was blacklisted from an important tobacco policy discussion group that I have been a frequently contributing member of for nearly the past decade.

This all made a substantial impression on me because it demonstrated to me: (1) that there was a significant element of the tobacco control movement that is not truly interested in the science or in good science and which instead is driven by the pre-ordained agenda; and (2) that there is a tinge of McCarthyism in the tobacco control movement: dissent is met not by discussion of the relevant issues, but by attacking, discrediting, and censoring the messenger.


I think the second most prominent thing that stands out in my mind is the reaction to my commentaries suggesting that perhaps outdoor smoking bans in nonenclosed, wide open outdoor areas (such as parks) where people are free to move about is going too far (because the scientific evidence of substantial harm being caused by this problem does not seem to outweigh the intrusion into liberty that this intervention would represent).

The reaction had a huge impression on me not because there was disagreement with my views - I obviously realized that I was going against the grain of popular opinion in the movement. But the reaction I received was not disagreement. Instead, it was a combination of: (1) being personally attacked; (2) being told that there were far more important things to be doing than discussing the justification behind tobacco control policies; and (3) realizing that by pointing out that the science probably did not support many of these outdoor smoking bans, I had stimulated the introduction of a host of new "explanations" for what we were doing, ranging from social engineering to cleaning up litter to merely getting rid of a nuisance.

It was then that I came to the realization that to a large segment of the movement, the science really doesn't matter. The agenda is sacred, and it simply cannot be challenged. A variety of approaches is available to protect the agenda, including attacking anyone who dissents. In addition, while we always "pretend" that it is the science of the health effects of tobacco smoke that is motivating our actions, it became clear that evidence for those health effects doesn't really seem to be required. There will always, it appears, be a justification for the agenda, when it really comes down to it.

This was truly a wake-up call for me because for at least 20 years, my opinion and expertise as a scientific researcher on the health effects of secondhand smoke and the justification for smoke-free policies seemed to have been well-respected by the tobacco control movement. But when the same scientist, using the same type of scientific evidence and the same reasoning came to a different conclusion about the appropriate policy, all of the sudden I was no longer a credible scientist; instead, I was a "naysayer," I was a civil libertarian manque. I came to realize that much of what I was apparently valued for was not the quality of my science, but the fact that I came up with conclusions that supported the prevailing agenda of the movement.

Many of the same people who had previously praised me and the quality of my work and highly publicized my research and my opinions were now publicly insulting me, telling others to ignore me, and attacking me as being a completely unreliable and incompetent scientist and tobacco control policy analyst.

But remember that the economist John Maynard Keynes once said: "Sir, when the facts change, I change my mind. What do you do?"

I've been in the tobacco control movement for 21 years and I have extensive experience in the field at the national, state, and local levels. I have over 60 peer-reviewed publications in tobacco control and have testified as an expert witness in at least 7 tobacco trials. What has guided me throughout my career is an attempt to bring sound scientific and sound policy analysis to the problem of tobacco use. And I'm not going to stop doing that now.

When the facts change, I change my mind. What does the tobacco control movement do? It's clear: censor the individual so that the movement does not become aware that the facts may have changed. There is no room to challenge the received wisdom and canons of tobacco control.

To borrow a few words and wisdom from a dear colleague of mine, I think there is a need for, and a value to provocation, challenge, and scrutiny of long-held assumptions. This is the motor of progress and renewal. And what is its opposite?


I think what stands out most in my mind, however, thinking back over the past 9 months, is the people who I have met, conversed with, discussed issues with, provided some education to, learned from, and even debated heatedly.

I had been indoctrinated with the idea that anyone who disagreed with the prevailing tobacco control movement views must automatically be a tobacco industry front, not to be trusted, respected, or even acknowledged as a valuable human being with legitimate and potentially important opinions, views, and perspectives.

I think, more than anything, it is the "attempt" to proceed with this indoctrination that led to my "awakening," because it is simply not in my nature to think in this way. When Americans for Nonsmokers' Rights (ANR) suggested to me, back in 1999, that one could not say anything that could remotely be construed as being anything but derogatory about an individual on the other side of the issue from "us" is when I really woke up. In many ways, my resignation from ANR was my official awakening.

One of the most remarkable things that has happened over the past 9 months is the incredible diversity of people who have read this blog. There are few tobacco control blogs to begin with, but I doubt that any have the diversity of readership as seen here. There are a large number of smokers' rights blogs, and while I know a few anti-smoking advocates who frequent these blogs (most often to harass the smokers), there is not a lot of diversity in the readership.

But here, we have a large number of readers who range all over the spectrum on the issues discussed. We have everyone from the most zealous anti-smoking advocates to the most dedicated smokers' rights advocates, from the most prominent organizations that are fighting the tobacco companies to the tobacco companies themselves, from attorneys representing the smokers to those defending the tobacco companies, and a large number of readers who are not really on either side of the issue, but are truly interested in the issues being discussed.

I think that bringing together this breadth and diversity of interests may be the most important contribution of this blog so far, and perhaps the one that stands out most to me as we enter the holiday break.

I also see this occurrence as a unique opportunity to advance the quality of discussion, dialogue, and discourse on tobacco policy issues, and I hope that this will continue in 2006 to serve as a forum to learn more about the issues and more about each other and what motivates and concerns all those who are passionate about these important issues.

If anything has become clear, I hope it is that I am attempting to present a well-reasoned, well-documented, and passionate, yet as unbiased as possible (for a tobacco control practitioner) analysis and commentary on what I see as the most important issues facing the tobacco control movement each day.

With that, I wish all my readers a happy holiday season, and a peaceful and fulfilling New Year.

Wednesday, December 21, 2005

On the Likelihood for Supreme Court Review of the Price Decision

In a press release following the Illinois Supreme Court's decision throwing out the $10.1 billion verdict in the Price "light" cigarettes case, the Tobacco Products Liability Project (TPLP) argued that the "Basis of Decision Leaves Door Open for Appeal to U.S. Supreme Court."

The Rest of the Story

I view the situation differently, or else I view the door as being only ever so slightly ajar.

The reason is that the decision was based entirely on the Illinois Supreme Court's interpretation of an Illinois statute and of the application of the language of that statute in terms of what "authorization" means in regards to existing federal regulation of a consumer product. It was the court's interpretation of the statute that led to the decision that Philip Morris' use of the term "light" cigarettes was authorized by the Federal Trade Commission and therefore met the requirements for an exemption under the state law.

While TPLP argues that the Illinois Supreme Court "interpreted federal agency action in an arguably incorrect manner," the interpretation of the federal agency action was only relevant to the question of whether an exemption in a state statute was met or not. I don't see any compelling reason to believe that the Federal Trade Commission's actions were interpreted incorrectly, nor do I see a compelling reason why the U.S. Supreme Court would be particularly interested in reviewing how the state of Illinois interprets federal actions relevant to an exemption in its own state law.

On the contrary, I think that the actions of the Federal Trade Commission were quite clear. It asserted jurisdiction over the marketing of "light" and "low-tar" cigarettes. It asserted jurisdiction over claims related to the tar and nicotine levels in cigarettes. And it expressly allowed at least one company to use these terms. Moreover, it set out for this company the specific criteria that would have to be met in order for it to use these terms.

I simply don't see how the question of whether a consent agreement entered into by a federal agency represents a valid exception under the Illinois consumer protection statute represents any legal issue that the U.S. Supreme Court can consider, or will have any interest in considering.

My feeling is that this story is over.

Minnesota Judge Strikes Down Tobacco "Health Impact Fee"

A Ramsey County judge yesterday struck down a 75 cent per pack "health impact fee" on cigarettes that was enacted by the Minnesota legislature earlier this year. The fee had been contested in court by Philip Morris and other cigarette companies, which argued that the health impact fee on cigarettes is a violation of Minnesota's tobacco settlement with cigarette companies, in which the state agreed not to make further claims to recover health care costs associated with cigarette use.

According to an article in the Minneapolis-St. Paul Star Tribune: "Ramsey County District Judge Michael Fetsch ruled that the fee of 75 cents per pack violated a settlement between the government and tobacco companies that barred the state from seeking additional money from the firms to pay for health care costs related to smoking. ... The health impact fee approved by the governor and the Legislature is essentially recovering costs from tobacco companies that the state was barred from doing under the settlement agreement, the judge said."

This ruling puts in jeopardy the $400 million in revenue that the state had counted on from this health impact fee in order to support the state budget. The state will apparently appeal the decision directly to the Minnesota Supreme Court. However, it is not clear that the Supreme Court will agree to review the decision since it involves the interpretation of a contract which apparently gave the Ramsey County Court final jurisdiction on contract disputes.

The Rest of the Story

The real story here is that the entire financial stability of the Minnesota government is in jeopardy right now because of the failure of the Governor and legislature to simply call a spade a spade and admit that the "health impact fee" was simply a cigarette tax whose purpose was to balance the state budget on the backs of smokers.

Had the state admitted that, there would have been no grounds for this lawsuit. There 2 primary reasons why the lawsuit was allowable:

First, because the Governor and legislature insisted on calling the revenue generator a "health impact fee" rather than a tax. There is no question that the state has the authority to raise taxes on consumer products, including cigarettes, and that nothing in the Minnesota tobacco settlement precludes the legislature from raising or lowering cigarette taxes per se.

Second, because the Governor and legislature tried to pull the wool over the eyes of the public by insisting that the purpose of the health impact fee was to reimburse the state for tobacco-related health care costs, rather than just admitting that the purpose was to balance the budget, using smokers as a politically convenient mechanism for doing so.

I argued back on July 14 that:

"What the Campaign for Tobacco-Free Kids praises as a victory for taxpayers may be a victory, but it is certainly not a victory for those taxpayers who happen to smoke. It is certainly not a victory for the lowest income citizens in Minnesota who are going to bear the burden of balancing the state budget on their shoulders. It is, however, a major victory for the wealthiest corporations and citizens of Minnesota, who are now protected from having to do their share to make up for the budget shortfall.

What just transpired in Minnesota, in my view, is nothing more than a discriminatory and regressive tax increase for some of the poorest citizens in the state, for the benefit of the wealthiest citizens and corporations. Smokers in Minnesota have been selected out to bear the full burden of financing the state programs that the legislature should be funding through other means. It is on the backs of smokers that the budget has been balanced. And the saddest part of this, for me, is that a leading "so-called" public health group has praised this strategy as a victory for Minnesota taxpayers. I certainly agree that it is indeed a victory -- for the wealthy taxpayers in Minnesota who are now off the hook. It is also a victory for corporate taxpayers.

But it is certainly not a victory for the highly addicted smokers who have now been charged with the responsibility of supporting the state's general services and balancing the budget. It is little more than a political victory for legislators who can now avoid having to lose votes from the most powerful voting block in the state - corporations and the wealthy. It is a victory that comes at the direct expense of the very population that public health practitioners should have the most compassion for - smokers.

This is not a public health measure in any way, shape or form and public health organizations have no business, in my opinion, supporting or praising such a measure. It's simply a fiscal and political maneuver."

It's quite clear, I think, that had the Governor and legislature simply admitted that this was not a public health measure, but a purely fiscal and political maneuver, the state of Minnesota would be $400 million richer right now.

I argued back on September 5 that:

"This story is a little too ironic: the entire problem arises from the Governor's and legislature's attempt to hide the fact that the 75 cent per pack "fee" on cigarettes is simply a tax. If these politicians had simply told it like it is, and admitted that the purpose of the legislation was to raise the cigarette tax in order to balance the budget, then this problem would never have occurred. Instead, they tried to disguise the tax increase as a "health impact fee," and that opened them up to this lawsuit.

The problem is that Minnesota, in the settlement of its lawsuit against the tobacco companies which sought to recover tobacco-related Medicaid health care costs paid by the state, agreed not to make further claims to recover tobacco-related health care costs. But this legislation is intended to "recover for the state health costs related to or caused by tobacco use" and allocates some of the resulting revenues to tobacco-related health care costs.

There is nothing in Minnesota's tobacco settlement which precludes it from raising cigarette taxes and the state can certainly allocate those revenues however it sees fit. And here's the irony. What would have indisputably been a legal action of the state to balance its budget by raising the cigarette tax became a potential violation of the tobacco settlement because politicians, for political reasons, wanted to disguise the fact that this was simply a cigarette tax.
Their lack of forthrightness has come back to haunt them. ...

It's time that politicians and health groups alike start calling things the way they are. The supposed health impact fee is nothing other than a thinly veiled disguise: it is simply a measure to balance the budget in a way that avoids having to make difficult political choices, such as raising taxes on the wealthiest of citizens and corporations in Minnesota. Instead, the governor and legislature have picked an easy target: smokers.

But regardless of how one views the merits of the tax increase, let's call a spade a spade. To try to disguise this as a "health impact fee" is disingenous and represents little more than a political maneuver to make the tax increase seem more palatable, especially from an administration that apparently had pledged no new taxes."

That was, and remains, the "rest of the story."

Tuesday, December 20, 2005

Hypocrisy Continues: American Legacy Foundation Complains About Smoking in Movies Yet Continues Partnership with Time Warner

In a press release yesterday regarding the recently released trends in youth smoking prevalence (which showed a slowing of the rate of decline in youth smoking), the American Legacy Foundation listed three steps for the nation to take to reduce youth smoking. In addition to encouraging states to spend more of their Master Settlement Agreement revenues on tobacco control programs and emphasizing the need to restore funding for the Legacy Foundation's "truth" campaign, the Foundation press release emphasized the importance of smoking in the movies and suggested keeping smoking out of non-R rated movies as a critical intervention:

"3. Recognize the impact of smoking in the movies on American youth. A new study released just last month in the journal Pediatrics showed that more than one-third of US adolescents between 10-14 years of age start smoking do so as a direct result of exposure to smoking in films. Keeping smoking out of G, PG, and PG-13 movies could prevent these youth from becoming daily smokers."

The Rest of the Story

If the American Legacy Foundation is so concerned about the impact of smoking in the movies on the epidemic of youth smoking, then it would certainly want, as a very first step to address this problem, to end any corporate partnerships it might have with corporations that are exposing millions of children to smoking in the movies and therefore causing them to start smoking.

But Legacy, indeed, is partnering not only with precisely such a corporation, but with the corporation that is responsible for more youth smoking impressions in movies than any other company - Time Warner.

Time Warner, is in fact, listed as the top corporate partner of the American Legacy Foundation.

If Legacy wants to do anything about reducing youth smoking caused by exposure to smoking in movies, then it only makes sense to start with itself. And the first step is to end its corporate partnership with the chief culprit - Time Warner.

In my view, you can't be taken seriously if you complain about smoking in movies out of one side of your mouth, and then out of the other, you forge a corporate partnership that provides tremendous respect, credibility, and prestige as a responsible social corporate citizen to the company that is the chief cause of the problem about which you are complaining.

I think it completely undermines everything you do as an organization, and I think it represents the utmost in hypocrisy.

Perhaps the New Year's Resolution for the American Legacy Foundation should be to end its corporate partnership with a company that is causing thousands of young people to start smoking. Or else, stop publicly complaining about the problem. You can't have it both ways. Decide which it is, and then stick to it.

Monday, December 19, 2005

Crown Laboratories Will No Longer Hire Smokers or Provide Them With Health Insurance

In what seems to be the almost daily announcement of a new employer adopting a discriminatory hiring policy against smokers, Crown Laboratories (Johnson City, Tennessee), a manufacturer of sunscreen, has just announced a new policy by which the company will no longer hire smokers nor provide health insurance for existing employees who smoke.

According to an article in the Kingsport Times-News, Crown Laboratories will immediately institute a policy of not hiring anyone who smokes (or uses smokeless tobacco) and as of January 1 of 2007, will not provide health insurance to any existing smoker (or smokeless tobacco user) who has failed to quit. The policy applies to any use of tobacco products, whether at work, at home, or anywhere else.

The rationale for the policy is apparently two-fold. First, the company is trying to reduce health care costs.

"'The costs associated with health care are just going astronomically through the roof,' he [Jeff Bedard - the company CEO] said. 'We've experienced three years in a row where we've had 30 percent health care increases.' ... 'The cost of insurance is $100 higher per employee, per month, due to having to cover smokers,' Bedard said."

"Bedard is hoping to reduce costs not only by eliminating smokers from the insurance plan, but also by improving the overall health status of the rest of his employees through a companywide wellness program managed by Wilson Pharmacy and Home Health. The program is mandatory for everyone on Crown's insurance policy, and it is designed to motivate employees to adopt good health habits like exercising and eating a balanced diet."

"'This is the way that health care is going to go in the future,' said Jeff Bedard, the company's chief executive officer. 'They're going to penalize people who choose to not take care of their own health.'"

The second rationale for the policy is that Bedard doesn't feel that having an employee who smokes is consistent with producing a product that prevents skin cancer.

"'We're a pharmaceutical company, and we're a health care company. We provide products that keep people from getting skin cancers,' he said. 'It's hard for us as a company to go out and promote to the world that you shouldn't go to tanning beds, and you shouldn't lay out in the sun, and you need to protect your body when I've got people hanging out in the back smoking area lighting up cigarettes. It's a real moral dilemma. So we made the decision that if we're going to be a health care company, we need to be a healthy company and we need to promote wellness.'"

Bedard did address the contention that the policy is intruding into the privacy of employees.

"'There have been a few people who have been concerned about us prying into their personal lives,' Bedard said. '(They think), ‘Is it really your business if I smoke at home, or is it really your business if I smoke, period?' And my answer is, it's not my business unless it costs the company money. As CEO of this company, I've got to be a good steward of its financial health. And when the financial health of this company is impacted by a habit that I don't see as necessary to anyone's life, then yes, I do have that right.'"

The Rest of the Story

Even if the company had a reasonable rationale for deciding not to provide smoking employees with health insurance, there is no valid principle upon which to base the decision not to hire smokers at all. Since the company has already announced that it will not provide health insurance for smoking employees, what further purpose could it serve to eliminate smokers from the pool of applicants who are eligible to work at this company?

The CEO has suggested that having a smoking employee is not consistent with manufacturing sunscreen. But that is a baseless and dangerous suggestion. If the CEO is truly concerned about the consistency of employees' personal behavior with the company's mission, then he should be refusing to hire anyone who does not use adequate amounts of sunscreen when they are outside, and for that matter, he should refuse to hire anyone who doesn't use his company's sunscreen product.

And probably, he should start refusing to hire anyone with fair skin, since that's a huge risk factor for developing skin cancer. And anyone who's ever used a tanning salon should definitely be off the list of potential applicants for the company. In fact, a background check system should be used to investigate whether a potential employee has ever been to a tanning salon, and the application process should be terminated immediately if the investigation turns up positive.

There are 27 tanning salons in and around Johnson City, and I'm sure those salons would be happy to share their records to help Crown Laboratories determine whether any potential employee is truly consistent with the company's mission of preventing skin cancer.

And perhaps Bedard should start monitoring his employees for how much time they spend out in the sun. More than three hours in the sun a day should certainly preclude someone from working at the company, and for existing employees, should result in denying them health insurance coverage.

It is also curious that while Bedard admits that diet and exercise are also critical health concerns and contributors to skyrocketing health care costs, it is only smoking that precludes a potential employee from working at the company or an existing employee from being provided with health insurance. Eating a crappy diet or being a complete couch potato have no implications for employment or health insurance, even though obesity has been shown to result in comparable, if not higher, health care costs than smoking.

I think that this discrimination and this unwarranted intrusion into the privacy of employees has gone too far. And there's only one thing, short of laws that prevent this type of discrimination, that I think could help bring it to an end.

And that is if anti-smoking groups in this country were to stand up and start condemning these policies, and start pointing out that these types of discriminatory and intrusive policies do not represent legitimate public health approaches to the problem of tobacco use.

I think that anti-smoking organizations have a responsibility to speak out, because in at least some ways, it is us (the tobacco control movement) that has contributed to the social climate that is propelling these types of policies forward. And so I think we bear the responsibility of putting an end to it.

So far, I'm not aware of a single U.S. anti-smoking group or advocate other than me speaking out against these types of policies, but I'll be the first to report it if any group or advocate does.

Sunday, December 18, 2005

More Backlash on WHO Smoker Discrimination: Washington Post Carries Op-Ed Condemning Action

In an op-ed piece published Sunday in the Washington Post, my colleague Leonard Glantz, a professor of health law, bioethics and human rights at the Boston University School of Public Health, criticizes the World Health Organization's (WHO) recently-announced policy of hiring only nonsmokers as being discriminatory and unduly intrusive of individual privacy, and as representing a form of bigotry.

"By this action WHO has transformed its war against smoking to a war against smokers," Glantz declares. "With the hanging of the 'No Smokers Need Apply' sign on its door, WHO has joined a long line of bigots who would not hire people of color, members of religious minorities, or disabled or gay people because of who they are or what they lawfully do."

Glantz points out that the new policy looks beyond bona fide job requirements to group membership as its criterion for employment, putting it in the same class as bigoted policies that have refused to hire people of various other categories:

"What WHO's new policy says is that it will not hire any member of a group that constitutes 25 percent of adults in the United States -- no matter how well qualified, dedicated and caring they are -- because of activities away from the workplace that have no impact on their job performance. Under WHO's policy, if Franklin Roosevelt, Winston Churchill, Albert Einstein and Adolf Hitler applied for a job, only Hitler, the sole nonsmoker in the group (and someone who would not allow anyone to smoke near him), would be eligible for consideration."

The piece argues that the same reasoning that led to this policy could just as easily lead to a policy that refuses to hire obese persons. Or to a policy that leads to the hiring of only smokers.

Glantz concludes that this policy "encourages the most coercive form of social control short of outlawing smoking. Other than the very rich, people must work, and WHO's position is that smokers should not be allowed to work," and that to protect against this, laws that prohibit discrimination against potential employees for lawful, off-the-job behavior are required in all states.

The Rest of the Story

When the Boston Globe and the Washington Post both publish pieces highly critical of the lengths to which the anti-smoking movement is going, I think it is high time that anti-smoking groups and advocates take notice.

Beyond the backlash that is occurring and its implications for the credibility of the tobacco control movement, the piece itself deserves undiverted attention because of its compelling argument for why this policy is not only totally inappropriate, but also highly damaging to some basic societal principles.

I think Glantz is right to call WHO to task for arguing that its policy is based on some sort of "principle." Because if there is any principle here, it is that smokers are second-class citizens who are not deserving of the opportunity to have a job, and certainly not a job in the public health field.

It is also the principle that employment discrimination is acceptable and tolerable, as long as the group being discriminated against is politically unpopular enough.

And it is, as well, the principle that intruding into the privacy of the home of an employee is acceptable and actually desired.

Applying this "principle" to other lawful, off-the-job behaviors such as eating fatty foods and not getting enough exercise would, as Glantz argues, lead to policies by which employers would (and should) refuse to hire obese persons. If that is a level of discrimination that seems distasteful, then so is the WHO's discrimination against smokers.

But the most important point which I think this op-ed piece adds to comments that I have previously made is that this policy is not merely inappropriate, unjustified, and distasteful; it is actually a form of bigotry, and it is in many ways comparable to bigotry of other forms that are not distasteful, but just plain degrading and damaging to an entire group of people.

So far, I am not aware of any U.S. anti-smoking group or advocate (other than me) who has publicly spoken out against the WHO's discriminatory policy or any similar policy by employers such as Weyco, Scotts Miracle-Gro, or Montgomery County.

That is, quite simply, a shame.

Friday, December 16, 2005

The Implications of the Price Decision -- POST II: The Debate over FDA Tobacco Legislation

I have argued that a major lesson from the Price decision is that it reminds us of the degree to which the courts take seriously federal efforts to address regulation of consumer products. When the federal government asserts jurisdiction over an aspect of a product's regulation, that action may be interpreted broadly as a specific authorization for corporate behavior regarding the product, and due to the nature of many state consumer protection laws, that authorization may exempt the companies from claims brought under those laws.

In Price, the Court interpreted a consent agreement entered into by the Federal Trade Commission (FTC) as essentially giving specific authorization to all cigarette companies (even those not a part of the agreement) to use the term "low-tar" in their advertising, assuming certain conditions were met.

"We conclude that the specific authorization required to trigger the exemption of section 10b(1) does not require formal rulemaking or official definitions. ... It is sufficient if the authorization proceeds from regulatory activity, including the resolution of an enforcement action by means of a consent order. ... a consent order entered into by the FTC with one member of a regulated industry, which is published pursuant to statute, provides implied authority for other members of the regulated industry to engage in the same conduct. ... The necessary degree of specificity is provided by the language of the consent orders and by the FTC'’s long-standing use, if not formal adoption, of the definition of 'low tar' as meaning 15 milligrams or less of tar per cigarette."

Thus, the simple fact that the FTC had provided a definition of "low-tar" was interpreted as a specific enough authorization of the term "low-tar" so as to satisfy the statutory requirements for an exemption under the Illinois consumer protection law.

This decision has, I think, profound implications for the proposed FDA tobacco legislation currently before Congress.

With FTC, we have a very narrow area of federal activity regarding a narrow area of tobacco product advertising: namely, the tar and nicotine content of cigarettes and implied health claims related thereto.

But with the proposed FDA legislation, we have an incredibly broad area of federal activity regarding an incredibly broad area of tobacco product manufacturing, advertising, marketing, content, ingredients, constituents, safety, labeling, and sale.

Remember that the proposed legislation states: "no State or political subdivision of a State may establish or continue in effect with respect to a tobacco product any requirement which is different from, or in addition to, any requirement under the provisions of this chapter relating to tobacco product standards, premarket approval, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products."

This is clearly a broad scope of tobacco product regulation over which FDA would be asserting jurisdiction.

And if the Price decision teaches us anything, it is that this sweeping assertion of regulatory authority over most aspects of tobacco products would likely be interpreted by the courts as specifically authorizing tobacco company activity within these areas.

It will become difficult, if not impossible, to bring any successful claims in the courts against the tobacco companies if the FDA legislation becomes law.

The bottom line is that the proposed FDA tobacco legislation would essentially provide immunity to the tobacco companies for the damages caused by their products. We would be taking away the legal rights of American citizens to hold the companies accountable for the harmful effects of their products.

And this is not something that I think we should be doing unless the regulating agency were to be given unfettered authority over the regulation of the product.

With the truck-size loopholes in the FDA legislation currently on the table, the FDA's regulation of tobacco products would hardly be unfettered. In fact, it would be highly politicized -- placed largely in the hands of a political body (the Congress) -- rather than in the hands of a regulatory agency, and would be guided largely by politics, rather than by science.

In fact, there is serious question right now as to whether even unfettered authority of the FDA over tobacco products would result in a regulatory process that is driven by science, rather than by politics.

I have previously commented that: "the proposed legislation would indeed grant the tobacco companies immunity from liability based on many of the major causes of action that have been brought to bear against the companies so far, and many which might be brought to bear in the future." This conclusion is based, in part, on the fact that the courts have established that the type of preemption of state and local regulation found in the proposed FDA legislation applies not only to legislation (i.e., laws passed by the state) but that it is broad enough to also preempt litigation (i.e., common law claims brought by citizens against the companies).

For example, in Mitchell v. Collagen, the 7th Circuit Court of Appeals ruled that an almost identical clause in the FDCA did preclude common law causes of action: "Our first task is to determine whether the phrase 'any requirement' encompasses state common law causes of action. Collagen submits that the Supreme Court's decision in Cipollone v. Liggett Group, Inc., 505 U.S. 504 , 112 S. Ct. 2608 (1992), makes clear that Congress' preemption of state 'requirements' encompasses common law causes of action. ... A majority of the Justices agreed that the phrase 'no requirement or prohibition' sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common law rules." ... Cipollone suggests that 21 U.S.C. sec. 360k(a)'s preemption of state 'requirements different from, or in addition to,' those of the MDA is broad enough to include state common law causes of action."

There is also little question, I believe, that the proposed FDA legislation would provide tobacco companies with immunity in the area in which they most desire it: the production, marketing, and sale of potentially reduced-exposure products (PREPs). The only thing really holding the major companies back from marketing such products, which could have a devastating effect on the public's health if consumers are misled to believe that these products would be safer but in fact they are not, is the threat of liability claims.

By regulating the introduction and marketing of PREPS, including the conditions regarding the cigarette companies' ability to make various types of health claims, the proposed FDA legislation would preempt any claims against the industry related to PREPS, and would therefore effectively provide immunity for them, allowing them to proceed with the widespread introduction of PREPS into the market, both nationally and internationally.

In fact, it is the absence of FDA regulation that is in fact holding up what could be the most devastating expansion of the cigarette market ever, and the first significant expansion of the market in more than 30 years.

The most important lesson from the Price decision, then, is that incomplete federal regulation of tobacco products is a disaster for both the public's health and for the opportunity for citizens to pursue justice in this country for damages caused by the nation's deadliest product. Unless federal regulation of tobacco products were to be unfettered, and to be protected from political interference (which the current FDA legislation most certainly does not provide), it is not a good thing, but a bad thing, and post-Price, the idea should be quashed immediately.

To protect the legal rights of American citizens to pursue justice against the tobacco companies, to ensure that tobacco companies are not provided with special protections that immunize them for the damages caused by their deadly products, and to protect the public's health and ensure that state and local efforts and common law claims can continue, the proposed FDA legislation should be quashed immediately by public health and tobacco control groups and advocates.

Otherwise, we will one day be saying that the Federal Cigarette Labeling and Advertising Act of 1970 was second to the FDA Tobacco Legislation as the most devastating and damaging federal tobacco legislation ever enacted.

The Implications of the Price Decision - POST I: The Complicity of the Federal Government

The Illinois Supreme Court decision in the Price case highlights, I think, the degree to which the federal government bears some responsibility in the deception of smokers about the safety of using low-tar and light cigarettes. Because it reveals the extent to which the Federal Trade Commission, which has assumed jurisdiction over the tar and nicotine content of cigarettes and the advertising of cigarettes with regard to this content, has failed in its regulatory efforts.

The fault, we found out yesterday, is not just in the hands of the cigarette companies. It is also in the hands of the federal government, for assuming jurisdiction over, but failing miserably to address the advertising of tar and nicotine levels to smokers.

The Price decision is reminding us, I think, that it is simply not enough to blame everything on the cigarette companies. It is a poignant reminder that the federal government has had a role to play in the tobacco epidemic in this country.

And interestingly, the federal government's complicity in this epidemic stems not so much from its failure to assert jurisdiction over tobacco products, but from its having asserted jurisdiction over aspects of tobacco in a weak and ineffective way, but in a way that ended up preempting meaningful state and local regulation as well as providing a large measure of immunity to the tobacco companies.

We would be far better off, I believe, if the government had simply stayed out of the regulation of tobacco completely.

Arguably, the 1970 Federal Cigarette Labeling and Advertising Act (FCLAA) was one of the worst public health disasters of our time (perhaps closely rivaled by the 1998 Master Settlement Agreement). That law did almost nothing to protect the public's health, as the warning labels on cigarettes and cigarette ads are clearly ineffective and smokers hardly pay attention to them at all. Moreover, while the ban on tobacco advertising on television and radio was probably a good thing, what the FCLAA did was eliminate the Fairness Doctrine's product of required anti-smoking advertising on television, which has been documented to reduce cigarette smoking significantly.

Most importantly, FCLAA has provided the tobacco companies with a large degree of immunity from legal claims by smokers that are in any way related to the companies' failure to adequately warn consumers of the dangers of their products. You simply cannot argue in a court of law that the cigarette companies should be held liable for failure to adequately warn their consumers of the dangers of their products after 1969 without being stopped in your tracks by an objection on the grounds of preemption by FCLAA.

And yesterday, we found out that even federal actions that do not represent outright preemption of local regulation may have a preemptive effect because they may be construed by the courts as implying federal approval of cigarette company conduct.

In essence, the word "regulate" means to "permit," albeit to permit with certain restrictions. But the fact of that permission is critical. When the FTC in 1971 entered into a consent decree with American Brands over the conditions under which the company could use the term "low-tar" in its advertising, it was, in fact, making a decision to "permit" the use of the term "low-tar" in advertising. And that decision was construed by the court yesterday as providing specific authorization to the tobacco companies to use the term "low-tar." For the justices writing the majority decision in the case, that was the deciding factor, and that was as far as the consideration of the legal issues in the case needed to go.

Four of the six justices participating in the decision indicated that through its actions over the years, the FTC did in fact provide specific authorization for cigarette companies to use terms like "low-tar." Thus, it was the fact that FTC had been given jurisdiction over this aspect of tobacco product advertising that derailed this case.

Yet the FTC's actions in this area have arguably done nothing to protect the public's health, as there is little if any evidence that knowledge of the tar and nicotine content of cigarettes has led to any improvement in the public's health. If anything, it has simply helped contribute to a national scam in which smokers have been misled into thinking that they were getting some health benefit from a product that offered nothing of the sort.

I'm not arguing here that the cigarette companies don't bear the burden of responsibility for their actions; I'm simply pointing out that to me, one of the major lessons of the Price decision is to remind us that the federal government has had a role to play in the tobacco problem, and for the most part, that role has not been a positive one.

There is no question in my mind that the public's health as well as the potential for justice for harmed smokers would be in a far better position today had the federal government not asserted jurisdiction over cigarette labeling and advertising in the first place.

And this lesson has a critical implication for the current debate over FDA regulation of tobacco products. That implication will be discussed in my next post.

Thursday, December 15, 2005

Illinois Supreme Court Overturns $12 Billion Award Against Philip Morris

In a decision announced moments ago, the Illinois Supreme Court has overturned a $10.1 billion punitive damages award against Philip Morris in a class action lawsuit based on the claim that the company violated state consumer protection laws by fraudulently portraying "light" cigarettes as being a safer alternative to regular cigarettes. An additional $2 billion had been awarded in attorneys' fees.

The Court, in overturning the decision, forced the lower court (in Madison County) to dismiss the case against Philip Morris.

While the specific legal reasoning for the Court's decision is not yet available, an article in the Wall Street Jounral online suggests that the Court ruled that Philip Morris did not, in fact, defraud consumers by marketing Marlboro Lights and that the Federal Trade Commission, through two consent orders, specifically allowed companies to characterize their products as "light" or "low tar."

The Rest of the Story

There is no question that this is a major victory for Philip Morris and its parent Altria, not only because it saves the company $10.1 billion, but also because it helps put a damper on a host of other "lights" lawsuits that rely on a similar legal argument, and because it may well help deter a host of similar lawsuits from being filed in the future. It is certainly going to be more difficult, if not impossible, to convince attorneys to file additional "lights" lawsuits in the face of this state Supreme Court decision, since the prospect of success is significantly dimmer.

Since, as I have argued, there is little merit behind the Department of Justice's request for monetary remedies in the government's lawsuit against the tobacco companies, the only substantial legal threat that remains for Altria to deal with before it can proceed with its planned breakup, in my opinion, is the Engle case (the Florida class action lawsuit on behalf of smokers which resulted in a $145 billion punitive damages verdict, overturned by the Appeals Court, but awaiting final disposition by the Florida Supreme Court). A decision in that case could be released any Thursday, although some recent filings in that case suggest that perhaps a decision may not come out until next year.

Although I have been unable to obtain a copy of the Court decision, it is possible that one of the consent orders to which the Court is referring is American Tobacco Co., FTC Docket No. C-3547 (Jan. 3, 1994), a consent order settling allegations that advertisements misrepresented the relative amount of tar that smokers of Carlton cigarettes would take in. Since that consent order presumably related to the potential deception of smokers into thinking that Carlton "light" or "low-tar" cigarettes would be safer to consumers, the issuance of that order, in the opinion of the Illinois Supreme Court, may have met the criteria for an exemption in the Illinois consumer protection statutes, which exempts conduct that is "specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this state or the U.S."

UPDATE (Thursday, December 15; 11:50 am): The text of the Illinois Supreme Court's decision has now been released. It turns out that the Court relied upon the entire history of the FTC's regulation of the tar and nicotine levels in cigarettes and of claims made by cigarette companies about these levels. As part of this history, there were two consent orders in which the FTC specifically permitted certain "low-tar" and "light" claims and set out conditions under which these claims could be made.

One of these was indeed American Tobacco Co., FTC Docket No. C-3547 in 1994. According to the Court: "The agreed order provided, further, that 'presentation of the tar and/or nicotine ratings of any of respondent’s brands of cigarettes and the tar and/or nicotine ratings of any other brand (with or without an express or implied representation that respondent’s brand is ‘low,’ ‘lower,’ or ‘lowest’ in tar and/or nicotine) shall not be deemed' to violate the ban on numerical comparisons. American Tobacco, 119 F.T.C. at 11."

Another relevant consent order was issued in 1971 and involved a complaint against American Brands for implying in its advertising that certain cigarettes were low-tar: "The dispute between the FTC and American Brands was resolved in 1971, with the entry of a consent order that required American Brands to cease and desist from: Stating in advertising that any cigarette manufactured by it, or the smoke therefrom is low or lower in ‘tar’ by use of the words ‘low,’ ‘lower,’ or ‘reduced’ or like qualifying terms, unless the statement is accompanied by a clear and conspicuous disclosure of: 1. The ‘tar’ and nicotine content in milligrams of the smoke produced by the advertised cigarette; and 2. If the ‘tar’ content of the advertised brand is compared to that of another brand or brands of cigarette, (a) the ‘tar’ and nicotine content in milligrams of the smoke produced by that brand or those brands of cigarette, and (b) the ‘tar’ and nicotine content in milligrams of the lowest yield domestic cigarette.” American Brands, 79 F.T.C. at 225."

The basis of the Court's decision, then, is that the legal claim against Philip Morris does not hold because of the exemption in the state's consumer protection statute which exempts actions "specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States."

The Court ruled that "It is undisputed that the FTC acts under federal statutory authority to administer federal laws regarding the labeling and advertising of cigarettes" and that "If the FTC has specifically authorized the use of the terms “lights” and “lowered tar and nicotine” by PMUSA in its labeling and advertising, PMUSA may not be held liable under the Consumer Fraud Act, even if the terms might be deemed false, deceptive, or misleading."

The Court concluded that: "the FTC could, and did, specifically authorize all United States tobacco companies to utilize the words “low,” “lower,” “reduced” or like qualifying terms, such as “light,” so long as the descriptive terms are accompanied by a clear and conspicuous disclosure of the “tar” and nicotine content in milligrams of the smoke produced by the advertised cigarette." For this reason, it ruled that the plaintiff's claim was barred under Illinois state consumer protection law.

    Senate Vote on Proposed New Jersey Smoking Ban Today; Bars, but Not Anti-Smoking Group, Demanding Smokefree Air for All Workers

    In an ironic twist, organizations representing bars, restaurants, bowling alleys, and veterans' clubs in New Jersey are demanding that state lawmakers provide smoke-free workplaces for all workers in the state, while a major anti-smoking organization is supporting a measure that denies casino workers protection from secondhand smoke that would be afforded to virtually all other workers in the state.

    The New Jersey state Senate is poised to vote today on a bill that would ban smoking in all bars and restaurants, but would exempt the state's casinos. This exemption is unacceptable to organizations representing bars and restaurants in the state, but apparently, it is acceptable to a major anti-smoking organization:

    "This casino exemption has triggered impassioned opposition from organizations that represent restaurants, bars, bowling alleys and military-veterans' clubs, which held a news conference Wednesday. They argue for one of two things: Scotch the ban or expand it to cover all work places, including casino floors. Eateries have long said they will accept a smoke-free law so long as it covers the casinos, which objected, saying a ban would put them at a competitive disadvantage in relation to other states."

    However, "George DiFerdinando, a former state health commissioner and chairman of the anti-smoking group New Jersey Breathes, said his group supports the bill."

    The Rest of the Story

    I find it to be a sad state of affairs in the tobacco control movement when bars and restaurants in New Jersey are calling for the equal application of the law to protect all workers in the state, but a coalition of anti-smoking groups is supporting a bill that excludes a major class of workers from protection. And this class of workers happens to be the one that is probably most heavily exposed to secondhand smoke, and most in need of protection.

    I testified in the lawsuit brought on behalf of New Jersey casino workers against the tobacco companies, so I am familiar with the data on the exposure of casino workers to secondhand smoke, as well as with the health effects that these workers are suffering because of their high exposure. And being aware of the suffering that these workers are experiencing, it is almost unconscionable to me that anti-smoking groups in New Jersey are willing to agree to a purely politically-motivated compromise that will force these workers to continue to suffer.

    It is a shame that we have a situation where it is business owners that are actually calling for protection of casino workers, just as workers in bars, restaurants, bowling alleys, and other establishments in New Jersey would be protected from this legislation, but that anti-smoking groups are unwilling to summon up the integrity to demand that all workers be protected.

    Casino workers describe their conditions as working in a "coal mine." The smoke takes an inexcusable toll on workers with asthma, in particular.

    And we're not just talking about a small group of workers here. There are 48,000 casino workers in New Jersey.

    I think it's time for public health groups to stand up and have some consistency and integrity in their public positions. If secondhand smoke is such a large health hazard, then all workers deserve protection. It is truly time for a level playing field for all workers. And I think public health practitioners should be demanding such a level playing field, not accepting political compromises that exempt large numbers of workers.

    In this case, I think the proposed policy violates the principle of "first, to do no harm" because I think the proposal will make conditions even worse for casino workers, who are going to almost certainly face increased secondhand smoke exposure as smokers from local bars which no longer will be able to allow smoking spend more time in the casinos when they wish to smoke.

    It is a disservice to the state's 48,000 casino workers for anti-smoking groups to support the unlevel playing field that the New Jersey bill would create. The idea that this is a step in the right direction does not hold when one is sentencing 48,000 workers to unacceptable levels of exposure to carcinogens for purely political reasons. At some point, I think anti-smoking groups have to be able to stand up for principle - and the principle that all workers deserve a safe working environment is one that should not be compromised for political reasons.

    Ultimately, I think it hurts the credibility of anti-smoking groups to sacrifice the consistency of their position. The message it sends is that it is acceptable for some workers not to be protected. And that message, no matter what the political strategy might be, is one that is ultimately going to hurt the overall cause of protecting all workers, not help it.

    Wednesday, December 14, 2005

    Stretching the Science to Promote Policy: Are We Perhaps Going Too Far?

    In reviewing the fact sheets put out by SmokeFreeOhio to support campaigns to promote smoke-free workplaces (including bars and restaurants) in Ohio, I came across a number of examples where I think the science of secondhand smoke was presented in an inaccurate, unsubstantiated, or undocumented way - in other words, in which the science was, in myopinion, being stretched to try to support smoke-free laws.

    This post outlines these examples and considers the issue of whether this type of stretching of the science is appropriate and justified in order to promote smoke-free laws.

    Here are the prime examples:

    1. "Five minutes of exposure [to secondhand smoke] stiffens the aorta as much as smoking a cigarette, making the heart work harder to pump blood. Only 30 minutes of secondhand smoke exposure can cause narrowing of blood vessels, restricting the flow of blood and contributing to hardening of the arteries. In that same 30 minutes, changes to your blood boost your risk of building up fat deposits that could lead to heart attacks and strokes. After 120 minutes of exposure, your heart rate variability is reduced, increasing the chance of an irregular heart beat that can itself be fatal or trigger a heart attack."

    2. "After twenty minutes of exposure to secondhand smoke, a nonsmoker'’s blood platelets become as sticky as a smoker'’s, reducing the ability of the heart to pump and putting a nonsmoker at an elevated risk of heart attack."

    3. "Very small amounts of exposure can trigger a fatal heart attack."

    4. "Secondhand smoke can cause the debilitating disease pulmonary emphysema, causing severe damage to the walls of the air sacs, with the lungs eventually losing their capacity to expand and contract."

    5. "Secondhand smoke exposure increases the risk of stroke. The more secondhand smoke an individual is exposed to, the greater the risk of stroke."

    6. "Working in a smoker-friendly office" for 8 hours is "comparable to smoking" 6 cigarettes.

    7. "A study of emergency room patients in Helena, Montana, found that their 100% Clean Indoor Air Law reduced the city'’s rate of heart attacks by 40%."

    8. "Adolescents exposed to secondhand smoke are more likely to have metabolic syndrome--—a group of conditions such as high blood pressure, high cholesterol and high blood sugar, increasing the risk of heart disease, stroke and diabetes."

    9. "Bartenders are up to 6 times more likely to die from lung cancer than people who work in smoke-free businesses."

    The Rest of the Story

    1. Five minutes of exposure: I think it is quite misleading to suggest that just 5 minutes of exposure to secondhand smoke causes any clinically meaningful "stiffening" of the aorta. It is misleading, as well, to suggest that 30 minutes of secondhand smoke exposure can cause any clinically meaningful narrowing of blood vessels, and that it could boost your risk of having a heart attack or stroke. And it is equally misleading, I think, to suggest that 2 hours of exposure to secondhand smoke represents any meaningful risk of triggering a fatal cardiac arrhythmia or heart attack, under all but the most extreme of circumstances.

    The thing that the public needs to understand about acute exposure is that it causes cardiovascular changes that, if repeated over a long period of time, can lead to heart disease. But the idea that a 5 minute, 30 minute, or 2 hour exposure to secondhand smoke increases one's risk of heart disease substantially is, I think, misleading.

    The scientific evidence linking secondhand smoke to heart disease relates to the effects of chronic exposure. There is no evidence I am aware of (and I have reviewed the studies cited in the SmokeFreeOhio fact sheets) that acute exposure to secondhand smoke causes any meaningful increase in the risk of heart attack, arrhythmia or death (again, in all but the most extreme circumstances). To suggest otherwise is, I think, scientifically disingenuous, but more importantly, I think it may cause unnecessary anxiety among those who are exposed to secondhand smoke.

    This fact sheet is basically telling people (who are not epidemiologists or physicians so they have limited ability to critically evaluate the claims) that if they are exposed to secondhand smoke for a short period of time, they may suffer stiffening of the aorta, hardening of the arteries, cardiac arrhythmias, and sudden and fatal heart attacks. This is simply not true. And there is no reason for people to have such a concern about a short-term exposure. Chronic exposure is, in my opinion, a legitimate concern, but to suggest that you may drop dead because of an acute exposure to secondhand smoke is, I think, ridiculous and irresponsible.

    2. Twenty minutes of exposure: While there may be some increased risk to persons with existing severe heart disease who are exposed acutely to secondhand smoke, I do not think it is reasonable to suggest that 20 minutes of exposure to secondhand smoke generally increases a nonsmoker's risk of having a heart attack. I don't think that the bulk of the population needs to worry about walking into an environment where smoking is taking place and suffering a heart attack 20 minutes later. But this is precisely what this fact sheet seems to me to be suggesting.

    3. Fatal heart attack: The suggestion that in general, very small exposures to secondhand smoke can trigger a fatal heart attack is, I think, blatantly misleading. I am not aware of any evidence that this is true, and even among people with existing heart disease, while there is some suggestion that there can be some coronary compromise with acute exposure (and therefore patients are advised to avoid any exposure), I still am not aware that the risk of a fatal heart attack from "very small exposures" is substantial. But clearly, it is wrong to suggest that in general, very small exposures can trigger a fatal heart attack. And I think this is an irresponsible claim, because I don't think people who have very small exposure to secondhand smoke should be concerned that they may suddenly drop dead of a heart attack.

    4. Debilitating disease pulmonary emphysema: The scientific evidence simply does not support a conclusion that secondhand smoke exposure causes emphysema. This claim is in direct conflict with the conclusions of the California EPA report on secondhand smoke, which concluded that: "ETS exposure may play a role in the genesis of chronic respiratory symptoms and produce small, but measurable, decrements in pulmonary function." In other words, while secondhand smoke exposure may produce some chronic respiratory symptoms, at most it results in a mild decrement in pulmonary function; it most certainly does not cause the debilitating disease pulmonary emphysema, and people exposed to secondhand smoke should not be worried that they are going to come down with emphysema and debilitating lung disease, as this fact sheet suggests.

    5. Risk of stroke: The claim that secondhand smoke causes stroke is, I think, premature. And so does the California EPA, which concluded that: "Further investigation is warranted to clearly elucidate the role of ETS exposure in stroke."

    6. Comparable to smoking 6 cigarettes: The problem here is that the comparison to the amount of active smoking that is equivalent to passive smoking in a particular setting is specific to a certain smoke constituent. In other words, the cigarette equivalents of passive smoking are different for nicotine, benzene, NDMA, benzo(a)pyrene, etc. If you don't specify what constituent you are talking about, then the comparison is essentially meaningless. The fact sheet does not mention what specific constituent it is talking about; thus, the statistic presented has little meaning.

    7. Helena: I have already beaten this issue to death. I won't say anything further here, except that I think it is premature to claim that smoking bans will result in a 40% decline in heart attacks.

    8. Metabolic syndrome: I have already pointed out why I think that this one particular study cited in the fact sheet does not, in fact, provide any meaningful evidence that secondhand smoke exposure causes metabolic syndrome. I think it is far too premature to suggest such a conclusion.

    9. Six times more likely to die: I don't think the claim that bartenders are up to 6 times more likely to die from lung cancer is substantiated. This is an area I know a lot about, since it is an area in which I have conducted a fair amount of research. My own published estimate was that bar and restaurant workers are 1.5 to 2 times more likely to die from lung cancer due to their secondhand smoke exposure. The California Occupational Mortality Study revealed that bartenders have 2.4 times the risk of lung cancer compared to all other occupations, but the risk dropped to 1.5 after controlling for active smoking. I think a reasonable estimate would be that bartenders are 1.5 times, or at most, 2 times more likely to die from lung cancer. Six times more likely? I don't believe that's a reasonable estimate.


    First, to understand where I'm coming from, I support smoke-free bar and restaurant laws and I have generated much of the science that supports these policies. Much of my research has been devoted to the health effects of secondhand smoke exposure, especially for bar and restaurant workers, and I have actively worked to support smoke-free bar and restaurant laws in a number of towns, cities, and states. I have worked closely with a large number of smoke-free coalitions to produce fact sheets on this issue in support of such laws. So I support the overall goals of SmokeFreeOhio.

    Nevertheless, my conclusion that there are so many inaccuracies and misleading representations of the science in the fact sheets put out by SmokeFreeOhio in support of their smoke-free campaigns is concerning to me.

    My impression is that these fact sheets are stretching the science in order to try to provide added support for smoke-free laws. And while I support such laws, I don't condone the inaccurate representation of science in order to promote these laws.

    I think stretching the science is wrong for two major reasons.

    First, I believe that scientific accuracy and integrity are values in and of themselves.

    Second, I believe that if we start to stretch the science too far, and the public catches wind of it, we are going to risk losing our credibility. Because the public cannot discern what we are stretching and what we are reporting accurately. If the public begins to realize that we are stretching the science in some areas, what is to prevent them from thinking we are stretching it in areas where we are really reporting quite accurately?

    In other words, while advocates may think that stretching the science serves to enhance their mission of promoting smoke-free workplaces, in the long run, I think it may impair our ability to get these laws passed, because it is going to hurt our credibility. And our credibility may be our most prized possession. There aren't many more important strengths that I can think of for a public health organization or movement.

    Honestly - I'm really not trying to nitpick here and overly critique these fact sheets. I realize that they are written by advocates, and not necessarily by scientists. Nevertheless, there does come a point where I think it begins to do a disservice to the public to convey so many misleading ideas, especially ones which may cause undue anxiety among people who, for whatever reason, are exposed acutely to secondhand smoke.

    And my impression is (and it's just my impression - I can't prove or document this) that this tactic of stretching the science is something that is relatively new. I simply don't remember this kind of "scientific stretching" when I was involved more actively with promoting smoke-free laws in the 1990s. I do remember spending hours with many advocacy groups going over their fact sheets with a fine tooth comb to make sure that we weren't making any claims that could not be substantiated.

    My impression is that something has changed - and the movement now supports an environment in which stretching the science seems acceptable and advocacy groups no longer take the kind of care that they did in the past to ensure the accuracy and substantiation of their public claims.

    So to answer my own question: YES - I do think that perhaps we are going too far in stretching the science. And it's for no good reason. It doesn't matter whether breathing secondhand smoke for a few minutes is going to cause people to keel over and die from a heart attack. In my mind, you don't have to make such a claim to provide support for protecting workers from a health hazard.

    YES - when we start suggesting to the public that very small exposures to secondhand smoke are going to cause them to drop dead of heart attacks, that secondhand smoke is going to cause the debilitating lung disease emphysema, and that a half hour of exposure to secondhand smoke is going to contribute to hardening of the arteries, then I think we are going too far in stretching the science to support our agenda.

    Tuesday, December 13, 2005

    On the Stigmatization of Smokers by the Tobacco Control Movement

    An online pre-publication article just released in the American Journal of Public Health asks tobacco control and public health practitioners to reconsider the use of stigmatization of smokers as a strategy to reduce tobacco use (see: Bayer R, Stuber J. Tobacco control, stigma and public health: Rethinking the relations).

    The article notes that strategies used to combat tobacco use have, in some cases intentionally, stigmatized smokers in an effort to try to reduce smoking rates. For example: "The advocacy group Americans for Non-Smokers' Rights noted that tobacco control advocates had stumbled onto the best strategy for reducing tobacco consumption, 'encouraging society to view tobacco use as an undesirable and antisocial behavior.'"

    Another example provided by Bayer and Stuber is the discriminatory and intrusive employment policies that have been discussed in recent days in The Rest of the Story: "Firms boldly announce that they will not employ and may even fire smokers because of the additional cost of their medical care, or because smoking does not project the 'image' they wish to present to the public."

    For perhaps the first time in a major public health journal, these authors are questioning, on an ethical as well as utilitarian basis, whether the stigmatization of smokers is justified in public health. They note that efforts to reduce smoking by stigmatizing smokers "run counter to a revisionist orthodoxy that had emerged during the last years of the 20th century that asserts that stigmatization of those who are already vulnerable provides the context within which disease spreads, exacerbating morbidity and mortality by erecting barriers between caregivers, and those who are sick, and by imposing obstacles on those who would intervene to contain the spread of illness. In this view, it is the responsibility of public health officials to counteract stigmatization if they are to fulfill the mission to protect the communal health."

    The authors note that the tendency of the tobacco control movement to "ignore without comment the overarching concerns raised in prior years about the relation between stigmatization and effective public health interventions. ... the moral question of how to balance the overall public health benefit that may be achieved by stigmatization against the suffering experienced by those who are tainted by 'spoiled identities' is virtually never addressed."

    The authors suggest that the answer to this balancing question may lie with a careful analysis of "the nature and extent of stigma-associated burdens and on how the antitobacco movement deploys stigmatization as an instrument of social control. For example, policies and cultural standards that result in isolation and severe embarrassment are different from those that cause discomfort. Those that provoke a sense of social disease are not the same as those that mortify. Acts that seek to limit the contexts in which smoking is permitted are different from those that restrict the right to work, to access health or life insurance, or to reside in communities of one's choice."

    The Rest of the Story

    In many ways, this concerns expressed by the authors of this article are the kind of concerns that I have developed over the past few years and are precisely the type of concerns that led to the development of this blog.

    For at least some of us working in tobacco control and public health, the balance between changing social norms regarding smoking to discourage tobacco use and stigmatizing smokers and causing undue interference with the dignity of their lives has swung during recent months and years, to the point that we now question whether the net impact of current policies being pursued may actually be to increase the burden that we are imposing on a socially vulnerable population, and ultimately, having a negative impact on the public's health.

    For raising these concerns, I have been banished from a tobacco control network, but it is good to see that the major public health journal is still a forum in which concerned practitioners can express their opinions and attempt to stimulate a much-needed discussion among public health, and hopefully, tobacco control practitioners.

    And this blog will remain a highly visible venue which will continue to bring this issue to the attention of the tobacco control community.

    I have opined that the tobacco control movement has crossed the line from interventions to change social norms to support nonsmoking and therefore decrease cigarette use to policies that directly stigmatize smokers, interfere unduly with their lives, and violate core public health principles. The actions of organizations such as Americans for Nonsmokers' Rights to attack and vilify individual smokers and smokers' groups, to attempt to malign the character of individuals with any affiliation with a tobacco company, and to create an environment in which the individual smoking advocate, rather than the tobacco industry itself, is the enemy, are perfect examples of this.

    So are policies that use smokers as a source of tax revenue to balance state budgets, that make smoking a condition of employment, and that ban smoking widely in open, non-enclosed outdoors places.

    I am concerned because of the lack of response I have received from the tobacco control community. If it seemed that any substantial fraction of that community was truly concerned and interested in discussing this issue, I would feel reassured. However, the lack of interest in discussion that might, in some way, interfere with the professed agenda of the movement scares me.

    And it suggests that without intervention, the balance is not going to swing back to the side of appropriately protecting the public's health.

    Specific ads from recent anti-smoking media campaigns and statements by tobacco control leaders illustrate this, as pointed out by Audrey Silk in her letter to Judge Gladys Kessler (who is hearing the Department of Justice's lawsuit against the tobacco companies) on behalf of N.Y.C. CLASH.

    For example, one ad from the California and Massachusetts Departments of Health, was apparently described as follows: "One of the television ads ...features a cartoon character, a smoker, who laments with Woody-Allen-like angst that he can't quit. '‘Ah, ’he says, ‘it's no use. I'm scum. I've always been scum.'’"

    The text of another ad apparently stated: "A gas chamber is a chamber filled with poisonous gas. If you're with someone who's smoking, you're in one right now."

    The deputy director for prevention services in California was quoted as stating: "Our idea is to make California a hostile environment for smoking."

    And a former Surgeon General was quoted as stating: "If somebody had told me that smoking would become an anathema and smokers would become pariahs, I would have said it would take two generations to accomplish that. It's happened in 25 years, so I guess we did it in a single generation."

    When smokers are called "scum," when being with a smoker is called being in a "gas chamber," when public health practitioners want to create a "hostile" environment for smokers, and when the goal of the movement is to make smokers "pariahs," then I think you have to stop and think that maybe something is wrong. Maybe things have gone astray.

    The rest of the story is that things have gone badly astray in the tobacco control movement. By bringing this issue to public attention, Bayer and Stuber have done a great service, I believe. And The Rest of the Story will continue to bring the deviation of the tobacco control movement from the public health path to public attention, despite efforts from within the tobacco control movement to stop me from telling the story that needs to be told.

    Monday, December 12, 2005

    Anti-Smoking Interventions May Have Set the Stage for Discriminatory Employment Policies

    In a post this weekend, I suggested that we as tobacco control practitioners have an obligation to speak out against employment policies that discriminate against smokers because although tobacco control groups are not necessarily supporting these policies, the social climate that we have fostered which tends to stigmatize smokers may be contributing to the advancement of these policies:

    "Although tobacco control groups are not necessarily promoting these policies, I think it is encumbent upon us, as tobacco control professionals, to speak out unequivocally against these policies. It is, I think, the social climate of stigmatization of smokers that anti-smoking groups have helped to create that is contributing, at least in part, to the enactment of these policies, and therefore I think we have an obligation to condemn them in no uncertain terms."

    However, I may have been too generous in suggesting that the advancement of these discriminatory policies is merely an unintended consequence of anti-smoking campaigns. In contrast, these policies are specifically considered as a strategy for reducing smoking in documents produced by tobacco control organizations.

    For example, the National Cancer Institute's (NCI) ASSIST manual (Strategies to Control Tobacco Use In the United States: A Blueprint for Public Health Action in the 1990's) specifically suggests preferential hiring of nonsmokers as a viable policy option to decrease cigarette consumption:

    "Economic incentives serve to reduce consumption of tobacco products by increasing, either directly or indirectly, the costs of using these products. In this section, three economic incentive policies are examined: (1) higher excise taxes on cigarettes, (2) preferential hiring and promotion of nonsmokers, and (3) insurance premium differentials for smokers and nonsmokers." ...

    "A range of worksite policies and programs may potentially influence smoking behaviors. Rigotti (1989) outlines a continuum of worksite smoking policies that includes (1) no explicit policy, (2) environmental alterations, (3) designated smoking and nonsmoking areas, (4) total smoking bans, and (5) preferential or exclusive hiring of nonsmokers. This section considers only the fifth and most restrictive category." ...

    "The reasons for preferential hiring and promotion of nonsmokers appear somewhat different and more situation-specific than those given for on-site restrictions. Protection of the health and rights of nonsmokers in the workplace is a key component of worksite restrictions (Rigotti, 1989). However, the extension of policies to personal behaviors away from the worksite may be motivated more by economic considerations (Walsh and McDougall, 1988). Employers defend the practice of preferentially hiring nonsmokers because smokers incur higher costs to both the business and society (Action on Smoking and Health, 1989)." ...

    "Clearly, one potentially important contribution that such policies make is the message they convey about the changing social acceptability of smoking. Formal policies against hiring smokers are still relatively uncommon but may be highly visible and attract considerable media attention. The more direct impact of such policies is expected to occur through the economic incentive to quit smoking provided by the policy. If employment is contingent on quitting smoking, some potential applicants might be motivated to quit smoking rather than settle for some other job." ...

    "The legal right of employers to preferentially or exclusively hire nonsmokers is generally recognized. Federal and state statutes prohibit discrimination on the basis of race, religion, national origin, and, in most circumstances, age and sex. In some situations, it is also unlawful to discriminate on the basis of sexual orientation, political affiliation, marital status, citizenship, and physical or mental handicap (Myers, 1990). Aside from these attributes, employers in most situations have the right to make hiring decisions on whatever basis they choose, including smoking status." ...

    "Many other elements have been introduced into the debate over the fairness of economic incentives. Among these are ethical concerns about paternalism, victim blaming, and fair distribution of costs. The current racial and socioeconomic disparities between smokers and nonsmokers has elicited charges the economic incentive policies are racist and elitist. ... Potential consequences include a lack of employment opportunities and affordable insurance for those who are unwilling or unable to stop smoking." ...

    "Despite the numerous arguments raised in opposition to economic incentive policies, there is broad support for these approaches."

    The Rest of the Story

    First of all, it is important to point out that what the NCI is doing here is reviewing potential strategies to reduce tobacco use, and not necessarily endorsing any particular strategy. However, my reading of this chapter is that the NCI is essentially including preferential hiring of nonsmokers as a viable strategy for reducing tobacco use. Even though the chapter points out some limitations of this approach, it concludes that despite the arguments in opposition, there is broad support for these approaches. The conclusion seems to suggest to me that NCI is intimating that this policy remains a viable alternative strategy for tobacco control practitioners.

    This changes the impression that I may have left in my earlier post. It suggests that discriminatory hiring practices are not just an unintended consequence of anti-smoking campaigns, but that these policies have been considered as a legitimate and viable aspect of the overall tobacco control movement's strategy for reducing smoking.

    As such, I think it is even more encumbent upon us as tobacco control groups and individual advocates to speak out unequivocally against these policies. It looks like we are at least partially responsible for getting smokers into the mess they are now in - I think we have at least some responsibility for helping get them out of this mess.

    We certainly owe it to the smokers who are our primary clients, patients, and target population who we serve.