Rest of the Story Author's Rapid Response Letter Published in Response to Malpractice Article

The rapid response letter to the editor which I submitted to Tobacco Control in response to the article suggesting that malpractice lawsuits against physicians be filed if they fail to follow the Public Health Service smoking cessation guidelines was published today.

The letter, entitled "Legal Reasoning in Malpractice Article is Not Sound," stated the following:

"I find the argument provided in the paper to be non-compelling because it fails to provide any reasonable argument for how the 3rd showing in a medical malpractice case - that there is a causal relationship between the breach of duty and the incurred injury - could possibly be met in a smoking malpractice case. This would require proving to the jury that the physician's failure to warn the patient to quit smoking was the cause of the injury sustained by the patient.

This would imply that 3 things would have to be shown: (1) that the patient would have quit smoking if only the physician had advised them to quit and followed the PHS guidelines; and (2) that the reason the patient did not quit smoking was that the physician failed to advise them to quit and failed to follow the PHS guidelines; and (3) that if the patient had quit smoking, he would not have developed the injury.

These seem to be unreasonable, if not impossible, points to prove. How can we possibly know that a patient would have successfully quit smoking if only the physician had followed the guidelines? Unfortunately, the overwhelming scientific evidence cited in the paper supports a conclusion that the patient would most likely not have quit smoking, even if the physician had followed the guidelines. The data demonstrate that the cessation success rate, even with physician treatment, is dismal. The success rate does not even come close to approaching 50%; thus, it is more likely than not that even with physician advice to quit smoking, the patient would not have been successful in quitting smoking.

The success rates reported in the PHS guideline itself are generally below 20%. This means that it is much more likely than not (in fact 4 times out of 5) that a patient who goes through the suggested intervention will fail to quit smoking. I view this as an intractable problem in the use of the PHS CPG in medical malpractice lawsuits for failure to properly treat tobacco dependence. Until such time as there is a truly effective treatment for smoking cessation (one that works most of the time), there really can be no basis for establishing a causal relationship between the breach of duty and the incurred injury.

Finally, it is important to note that one would not only have to show that the plaintiff would have quit smoking had only the physician advised them to quit; one would also have to show that had the person quit smoking, they would not have developed the injury. However, we know that many former smokers still develop smoking-related injuries. It is not clear that one could show that the plaintiff wouldn't have developed the disease even if they had successfully quit smoking, especially for a disease such as lung cancer where risk decreases slowly following smoking cessation."

I will continue to alert readers as subsequent rapid responses to this troublesome, though important, article are published.

Tobacco Control Research and Education Center Suggests Malpractice Lawsuits as a Way to Get Physicians to Prescribe Pharmaceuticals to Smokers

In an article in this month's issue of Tobacco Control, two tobacco control researchers from the University of California, San Francisco's Center for Tobacco Control Research and Education suggest malpractice lawsuits against physicians as an appropriate approach to get doctors to follow smoking cessation guidelines put out by the U.S. Public Health Service. Those guidelines call for pharmaceutical treatment of all smokers who are willing to quit, except in cases where there are medical contraindications to pharmaceutical use. Patients who state that they are not interested in quitting must be given a motivational intervention.

(See: Torrijos RM, Glantz SA. The US Public Health Service "treating tobacco use and dependence clinical practice guidelines" as a legal standard of care. Tobacco Control 2006;15:447-451).

According to the article: "a court could have sufficient basis to find that the failure to adequately treat the main cause of preventable disease and death in the US qualifies as a violation of the legal duty that doctors and hospitals owe to patients habituated to tobacco use and dependence. ... The PHS Treating Tobacco Use and Dependence CPG forms a strong basis for a legal duty, whether it is used as a tool to support expert witness testimony in traditional litigation or as a judicially noticed presumptive standard of care under a litigation reform model. Given the PHS guideline'’s straightforward recommendations, the broad agreement regarding the efficacy of its treatments, its cost effectiveness and the recognised ability of smoking cessation to prevent serious disease, a doctor or hospital might be hard pressed to defend against a failure to properly treat tobacco use dependence."

The guidelines that are suggested to represent a legal standard of care call for the use of pharmaceuticals on all patients who are willing to try quitting smoking: "Numerous effective pharmacotherapies for smoking cessation now exist. Except in the presence of contraindications, these should be used with all patients attempting to quit smoking."

For patients unwilling to try quitting or simply uninterested in quitting, the guidelines require physicians to implement a motivational intervention to try to persuade the patient to quit smoking. The motivational intervention must be repeated every time the patient visits the clinic, regardless of whether they indicate a desire to quit smoking at that time.

For patients who have quit smoking, even if years earlier, the guidelines require physicians to engage in relapse prevention interventions even if the patients "no longer consider themselves actively engaged in the quitting process."

The Rest of the Story

The first part of the rest of the story is that the chair of the panel which developed the guideline is a pharmaceutical collaborator, consultant, and grant recipient. Dr. Michael Fiore, the panel chair, collaborated with Glaxo Wellcome and received research funding from Glaxo at the time the CPG was released in 2000.

In addition, as of 2001, Dr. Fiore had "served as a consultant for, given lectures sponsored by, or ... conducted research sponsored by Ciba-Geigy, SmithKline Beecham, Lederle Laboratories, McNeil Consumer Products, Elan Pharmaceutical, Pharmacia, and Glaxo Wellcome."

In other words, the head of the panel that produced this clinical practice guideline had an extensive financial interest in the pharmaceutical industry and had in fact a financial relationship with most, if not all, of the pharmaceutical companies that manufacture drugs whose use is recommended in the guideline.

Moreover, 11 of the 18 panel members who developed the guideline acknowledged financial relationships with one or more pharmaceutical companies (see page 173 and 174 of the guideline). Three out of the five project consultants had financial relationships with Big Pharma. To make matters even worse, one of the peer reviewers of the report was the head of Psychiatry Clinical Development at Glaxo Wellcome (see page 159).

Thus, the guideline is anything but an independent review of the evidence and an objective assessment of the most effective approaches to smoking cessation in the population. It is a strategy that was put together largely by individuals with a vested financial interest in promoting pharmacotherapeutic treatment (and not cold-turkey treatment) of smoking cessation.

Essentially, what it comes down to is that this article is promoting a very specific form of treatment for smokers -- pharmaceutical treatment -- and suggesting using the force of malpractice lawsuits to coerce physicians into following this pharmaceutical-influenced and pharmaceutical-based guideline rather than any other of a multitude of approaches that could be taken to encourage and assist smoking cessation among one's patients.

Personally, I have found in my experience that pharmaceutical treatment for smoking cessation is ineffective. The most success I have had or seen is lifestyle change, with or without a spiritual element. In fact, I would go so far as to note that in my experience, the use of pharmaceuticals tends to obscure for the patient the most important and pressing issues they will have to deal with in sustaining cessation and becoming free of the addictive power of smoking. In the long run, I believe this makes it more difficult for patients to achieve a long-term success.

By the argument presented in this article, I should be charged with malpractice for adhering to an approach which I believe (and can document, for my own patients) worked far better than the use of drugs.

Before actually dealing with the issue of malpractice itself, I need to dispense with another troubling aspect of this article. One of the things that the article suggests (in addition to the prescription of pharmaceutical treatment for cessation under the threat of malpractice lawsuits) is the disrespect for the expressed desires of one's patient, even if those desires are expressed uniformly, definitively, and consistently. And again, this disrespect for patient autonomy is required at the threat of a massive lawsuit.

If a patient makes it clear to the physician that he or she is fully aware of the risks of smoking but has made an informed decision that he doesn't wish to quit, must the physician not respect that decision and continue to badger the patient with a prescribed motivational intervention at every visit? Even if the patient is definitive and consistent in her expressed desires and decision?

And is a malpractice lawsuit the appropriate strategy to deal with this issue, even if it were legally justified (and we'll get to that in a minute). Smoking is the only behavior for which I have ever heard it suggested that physicians should be charged with malpractice if they fail to put their patient through a specific prescribed set of interventions that include drugs and badgering the patient consistently even after a clear and consistent expression of a lack of desire to alter the behavior.

There are a fair number of my patients who liked to eat eggs for breakfast, and while cutting eggs out of the diet is a tried and true way to reduce cholesterol, I never heard it suggested that I should face a malpractice lawsuit if I didn't put my patient through a de-eggification intervention.

And if I did an intervention and the patient told me that they loved eggs and despite knowing the risks, wanted to continue eating them, it never would have occurred to anyone that I might face a malpractice lawsuit if I didn't repeatedly institute a motivational intervention at every patient visit, repeatedly going over the cholesterol-enhancing effects of fried eggs, Egg McMuffins, and eggs benedict.

This leads us to the practical problem of requiring physicians to intervene on a preventive basis for a host of individual behaviors in order to avoid a malpractice lawsuit. What if I fail to prescribe an exercise program for my overweight patient? Does that mean I'll have to face him in the courtroom if he has a heart attack due, in part, to persistent obesity that I failed to solve for him?

But most importantly, what kind of mishegas is this?

Is this really the way we want to practice tobacco control and public health? Do we really want to encourage hundreds of lawsuits against physicians and hospitals for what is intrinsically a personal behavior choice that these patients have made? Do we want to clog our courtrooms with these frivolous lawsuits and tie up the court system even further for no good reason? Do we want to start out down the slippery slope that could logically lead to malpractice suits against physicians for failing to solve a host of other health-related behavioral problems of their patients?

And we haven't even gotten to the legal foundations of the article yet.

The Legal Basis for Failure to Follow PHS Cessation Guidelines as Medical Malpractice

The article points out that there are four essential showings in a medical malpractice case: "As in all negligence torts, a plaintiff claiming medical malpractice must show: (1) a legal duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) a causal relationship between the breach of duty and the incurred injury; and (4) damages."

I find the argument provided in the paper to be non-compelling. The primary reason for this is that the paper fails to provide any reasonable argument for how the 3rd showing in a medical malpractice case - that there is a causal relationship between the breach of duty and the incurred injury - could possibly be met in a smoking malpractice case. This would require proving to the jury that the physician's failure to warn the patient to quit smoking was the cause of the injury sustained by the patient.

This would imply that 2 things would have to be shown: (1) that the patient would have quit smoking if only the physician had advised them to quit and followed the PHS guidelines; and (2) that the reason the patient did not quit smoking was that the physician failed to advise them to quit and failed to follow the PHS guidelines.

This seems an unreasonable, if not impossible, point to prove. How can we possibly know that a patient would have successfully quit smoking if only the physician had followed the guidelines? Unfortunately, the overwhelming scientific evidence cited in the paper supports a conclusion that the patient would most likely NOT have quit smoking, even if the physician had followed the guidelines. The data demonstrate that the cessation success rate, even with physician treatment, is dismal. The success rate does not even come close to approaching 50%; thus, it is more likely than not that even with physician advice to quit smoking, the patient would not have been successful in quitting smoking.

The success rates reported in the guideline itself are generally below 20%. This means that it is much more likely than not (in fact 4 times out of 5) that a patient who goes through the suggested intervention will fail to quit smoking.

I view this as an intractable problem in the use of the PHS CPG in medical malpractice lawsuits for failure to properly treat tobacco dependence. Until such time as there is a truly effective treatment for smoking cessation (one that works most of the time), there really can be no basis for establishing a causal relationship between the breach of duty and the incurred injury. Sure, one could successfully argue that there is a legal duty to the plaintiff to advise her to quit, that the physician breached that legal duty, and that there were damages incurred. But one could not hope to establish that the incurred injury was a direct result of the physician's failure to follow the guidelines, and thus that the damages stemmed from the negligent act. Even had the guidelines been followed, it is most likely the case that the patient would still have suffered the injury because more likely than not, they would have failed to quit smoking.

The situation is quite different in cases where there is a direct connection between the breach of duty and the incurred injury. If a physician fails to diagnose a person's heart disease because they fail to order an EKG or stress test when a patient presents with exertional chest pain, and the patient goes on to have a heart attack, it is reasonable to expect that one could show that the failure to diagnose the heart disease caused the injury - in other words, that the heart attack would not have occurred if the heart disease had been diagnosed and treated. But if a patient who smokes sees a doctor and a month later has a heart attack, it is not reasonable to expect that one could prove that the failure to advise the patient to quit smoking caused the heart attack - in other words, that the heart attack would not have occurred if the patient had been advised to quit smoking. The important point is that one must prove not that the heart attack would not have occurred if the patient had quit smoking (which is difficult enough), but that the heart attack would not have occurred if the patient had been advised to quit smoking.

Conclusion

Ultimately, what troubles me the most about this article is not the fact that it is devoid of any real legal substance or that it is inappropriate in a number of ways, but the fact that it is indicative of a larger problem in tobacco control: that we're headed in the wrong direction, spinning out of control, going off the deep end, losing our sense of reason, and becoming so narrow-minded that we are blind to everything other than smoking.

Challenge Issued to Association of Nonsmokers - Minnesota to Retract Fallacious Claim and Apologize; Similar Challenge Issued to ClearWay Minnesota

Today I am issuing a challenge to the Association of Nonsmokers - Minnesota to retract its fallacious and absurd public claim that 30 seconds of secondhand smoke exposure can cause as much deterioration of coronary artery function as that seen in chronic active smokers.

According to an article in the St. Paul Pioneer Press, a Minnesota anti-smoking group publicly claimed that 30 seconds of secondhand smoke is as bad as a lifetime of active smoking in terms of coronary artery function. The group - Association for Nonsmokers (Minnesota) - issued a press release which declared that a mere 30 seconds of secondhand smoke exposure results in coronary artery damage that is indistinguishable from the damage suffered by active smokers (many of whom have smoked for decades).

According to the article, the Association for Nonsmokers press release claimed that: "Just 30 seconds of exposure can make coronary artery function of nonsmokers indistinguishable from smokers."

The Rest of the Story obtained a copy of the press release, dated August 30, which indeed stated:

"Research studies have shown that even just thirty seconds of exposure to secondhand smoke can make coronary artery function of non-smokers indistinguishable from smokers."

The challenge, being issued today and the result to be reported on Thursday, is simple. The Association of Nonsmokers - Minnesota is being challenged to simply publicly acknowledge that the claim was fallacious, retract it, and apologize.

A similar challenge is simultaneously being issued to ClearWay Minnesota regarding its public claim that eating in a smoky restaurant increases the risk of a fatal or non-fatal heart attack by 30%.

As I revealed in September, ClearWay Minnesota is actively deceiving the public about important information regarding secondhand smoke. Specifically, I believe they are deceiving the public about the acute cardiovascular effects of secondhand smoke. In their smoking ban manual on their web site, they claim that a brief exposure to secondhand smoke decreases coronary blood flow in young, healthy individuals:

"Blood flow in the coronary arteries is decreased in healthy young adults exposed to secondhand smoke."

I think this claim is wildly misleading and deceptive. The truth is that exposure to secondhand smoke has been found not to affect basal coronary blood flow in healthy adults. In fact, the same study upon which this statement is based is the one that actually reports no difference in the blood flow in the coronary arteries of exposed adults.

Sure, the coronary reserve flow is reduced in exposed nonsmokers, but this reserve flow reduction is simply an indication of endothelial dysfunction, and it has no acute clinical significance.

I think it is irresponsible to mislead healthy young adults and to scare them by thinking that if they are exposed to secondhand smoke, the blood flow in their coronary arteries is going to decrease. It is not, and the claim is therefore wildly misleading.

Unfortunately, this is not the worst of it. Elsewhere in the same manual, ClearWay claims that eating in a smoky restaurant increases your risk of heart disease by 30%. Not eating in a smoky restaurant every day of your life, I might add. Just eating (presumably once) in a smoky restaurant:

"Current scientific data suggest that eating in a smoky restaurant can precipitate myocardial infarctions in nonsmokers and increase the risk of fatal and non-fatal cardiac events in nonsmokers by about 30 percent."

There is no evidence that eating in a smoky restaurant causes heart attacks in nonsmokers, but that's not the part of the claim that I'm most concerned about. The part I'm concerned most about is the claim that eating in a smoky restaurant increases your heart disease risk by 30%. Because that's not just a misleading or deceptive claim, it's completely fallacious.

The scientific evidence shows that chronic exposure (over many years) may increase your risk of heart disease by 30%. But eating once in a smoky restaurant? Obviously, this claim is false.

The challenge issued today to ClearWay Minnesota is to publicly acknowledge these mistakes, correct these two misleading claims, and apologize.

The Rest of the Story

While there are a large number of fallacious claims that are being made by anti-smoking groups, the claim made by Association for Nonsmokers - Minnesota is probably the most important because it is so absurd that it is obviously false on its face. There is absolutely no scientific documentation to support a claim that 30 seconds of secondhand smoke exposure causes as much damage to the coronary artery function of nonsmokers as chronic active smoking causes to the coronary artery function of smokers. Yet this claim was made in a press release disseminated to the media.

I am willing to give the group the benefit of the doubt and assume that it was just an innocent mistake. However, if this were the case, it is imperative, for the scientific integrity of the tobacco control movement and the reputation of all of us, that the group publicly acknowledge the mistake, retract or correct its claim, and issue some sort of apology for the mistake.

The same is true of ClearWay Minnesota's claims. I'm willing to give them the benefit of the doubt and assume that the 30% increased heart attack risk from eating in a smoky restaurant was meant to refer to chronic secondhand smoke exposure rather than a single acute exposure. However, it is again imperative for the scientific integrity of the tobacco control movement and all of our reputations that the group publicly acknowledge the mistake, correct it (since the manual is still widely available on the internet and intended to serve as a guidebook for many anti-smoking organizations), and apologize.

I will be the first to admit that it is easy to make mistakes when you are reporting lots of scientific data. I would be lying if I said that I had never made such a mistake myself. However, when I have and it has been called to my attention, I have immediately acknowledged the mistake, corrected it, and apologized. I will not hold tobacco control groups responsible for making mistakes; but it is quite another thing to refuse to acknowledge, correct, and apologize for the mistake.

On Thursday, I will report back on the response to this challenge, which is being communicated directly to the two organizations. So check back here on Thursday for the rest of the story.

To Reduce Health Care Costs, Employers Should Refuse to Hire Anyone Exposed to Tobacco Smoke: Both Active Smokers and Passive Smokers

Several anti-smoking groups (example 1; example 2) and many tobacco control advocates have expressed their support for policies by which employers deny jobs to anyone who smokes in an effort to try to curtail rising health care costs and to improve health by discouraging smoking. Among the employers who have followed this advice are Weyco Inc., Scotts Miracle-Gro, Crown Laboratories, Truman Medical Centers in Kansas City, the World Health Organization, and most recently, Medical Mutual.

These employers have instituted policies in which they refuse to hire anyone who smokes. Some enforce the policy by requiring a urine sample from prospective employees. If the urine cotinine level exceeds the threshold that indicates active smoking, then the applicant is automatically rejected for the position, regardless of his or her qualifications for employment. Several of these employers go so far as to fire existing smokers if they are unable to or uninterested in quitting within a given time period.

The Rest of the Story

These policies make no sense. If employers really want to reduce their health care costs, then it seems the appropriate step would be to deny employment not only to smokers, but to anyone who is exposed to secondhand smoke. After all, according to the United States Surgeon General and a large number of anti-smoking groups, there is no safe level of exposure to secondhand smoke and even brief exposure puts individuals at significantly increased risk of heart attacks.

In fact, according to Americans for Nonsmokers' Rights, "Even a half hour of secondhand smoke exposure causes heart damage similar to that of habitual smokers. Nonsmokers' heart arteries showed a reduced ability to dilate, diminishing the ability of the heart to get life-giving blood." If even a half hour of secondhand smoke exposure diminishes the ability of the heart to get life-giving blood, then certainly no employer would want to take on the risk of hiring someone who is exposed to this extreme hazard. Health care costs are simply too high already and employers need to protect themselves by refusing to hire passive smokers, no matter how brief the exposure.

Furthermore, according to the Association for Nonsmokers - Minnesota, "Research studies have shown that even just thirty seconds of exposure to secondhand smoke can make coronary artery function of non-smokers indistinguishable from smokers." If just 30 seconds of secondhand smoke exposure equalizes coronary artery function between smokers and nonsmokers, then clearly passive smokers should be considered in the same risk category as active smokers when it comes to employment decisions.

According to SmokeFreeOhio, "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." Thus, any individual exposed to secondhand smoke for as little as 20 minutes raises health care costs for an employer because of the increased frequency of heart attacks among these individuals. To avoid incurring these costs, employers should refuse to hire anyone with detectable levels of cotinine in their urine. They should even consider firing existing employees who do not eliminate their exposure to secondhand smoke.

According to ClearWay Minnesota, "Blood flow in the coronary arteries is decreased in healthy young adults exposed to secondhand smoke." Certainly, reduced blood flow in the coronary arteries puts one at risk of a heart attack. And the medical care costs associated with heart attacks are extremely high. No employer wants to face such costs. The solution is quite simple: don't hire anyone, even a healthy young adult, who is exposed to secondhand smoke.

The reasons for refusing to hire individuals, even healthy young ones, who are exposed to secondhand smoke are not limited to the risk of heart attacks. According to SmokeFreeOhio, secondhand smoke exposure also causes the debilitating and costly lung disease - pulmonary emphysema: "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."

Obviously, the health care costs associated with hiring individuals exposed to secondhand smoke who go on to develop disabling pulmonary emphysema are immense. There is no reason why an employer should want to take this risk. Employers who are truly concerned about rising health care costs should not only deny employment to anyone with detectable levels of cotinine in their urine, but should fire workers who do not produce urines devoid of cotinine within a reasonable period of time: say one year.

Treating both active and passive smokers in a similar category is scientifically justified. According to Action on Smoking and Health, the heart attack risk associated with 30 minutes of secondhand smoke exposure is identical among passive smokers and chronic active smokers: "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."

Employers should therefore start screening prospective employees to make sure that they do not spend time walking along beaches, sitting on park benches, or listening to concerts in areas where a smoker may be present. Doing so will cause the employer to incur the same health care cost risk profile as employing a smoker, according to ASH.

Beyond the risks of heart attacks and pulmonary emphysema faced by individuals exposed even briefly to secondhand smoke, lung cancer is another serious risk. According to the U.S. Surgeon General, "Even brief exposure to secondhand smoke ... increases risk for ... lung cancer." Moreover, the Surgeon General stated that "Breathing secondhand smoke for even a short time can damage cells and set the cancer process in motion."

Due to the enormous medical costs associated with the treatment for lung cancer, employers concerned about health care costs should deny employment to prospective employees exposed even briefly to secondhand smoke who, according to the Surgeon General, are at increased risk for lung cancer, and in whom the cancer process has in fact already been set in motion.

I urge all anti-smoking groups and advocates to support my call for employers to screen all potential employees for cotinine. Doing so will not only save millions of dollars in health care costs for businesses, it will also serve as a strong deterrent that will encourage smokers to quit and will encourage passive smokers to avoid exposure to secondhand smoke.

This initiative, which I am calling "Smokefree Workplaces 2010," aims to clear all the smoke, both active and passive, out of our workforce by the year 2010 to save money and save lives. It is a win, win, win proposal for our nation's employers, our workers, and the entire public's health.

Biased Science in Tobacco Control: A Re-Evaluation of a 1997 Study on Secondhand Smoke and Heart Disease

I recently re-examined an article that is widely cited by tobacco control groups as supporting the contention that chronic exposure to secondhand smoke causes heart disease -- a claim that, right off the bat, I acknowledge I think is scientifically sound. However, in re-evaluating the article, I noticed something disturbing. The study showed evidence of a severe investigator bias -- one that raises serious questions about the scientific objectivity of the tobacco control movement.

The paper, published in 1997 in the British Medical Journal (BMJ), is entitled "Environmental tobacco smoke exposure and ischaemic heart disease: An evaluation of the evidence" (see Law MR, Morris RK, Wald NJ. BMJ 1997; 315:973-980).

The article presents a meta-analysis of 19 "acceptable" published studies of the risk of heart disease among nonsmokers living with smokers versus nonsmokers, and reports a pooled relative risk of 1.30 (95% confidence interval, 1.22-1.38).

The Rest of the Story

I was curious as to what represented an "acceptable" study. It turns out that there were 21 studies identified that met the inclusion criteria for the meta-analysis. However, the authors deemed that two studies (references 35 and 36 in the paper) were not acceptable and excluded these studies from the meta-analysis.

Nowhere in the methods section of this article does it state the reasons why these two studies were excluded. Nor are there any objective criteria offered by which the inclusion or exclusion decision was to be made.

Instead, in the discussion section of the paper, the following explanation for the decision to excluded these two studies is offered:

"A separate analysis of one of the studies of environmental tobacco smoke exposure and ischaemic heart disease in the set of 19 studies (fig 1), and of two data sets not published elsewhere (from the US National Center for Health Statistics and the American Cancer Society) has been published by Layard and LeVois, consultants to the tobacco industry. They reported a combined relative risk estimate from the three studies of 1.00, with a narrow 95% confidence interval (0.97 to 1.04). This negative result is statistically inconsistent with the estimate of 1.30 (1.22 to 1.38) from the above analysis of 19 studies (P<0.001). The difference is too great for the two groups of studies to be combined as separate valid estimates; one must be flawed. We took the estimate from the 19 studies as valid and rejected that of Layard and LeVois, since there is no reason to reject an analysis based on 19 independent studies in favour of one from a single group with a vested interest."

To be completely honest, this reasoning was quite shocking to me. Essentially, what the paper is saying is that an "acceptable" paper is one that contributes to finding an effect of secondhand smoke on heart disease, while an "unacceptable" paper is one which finds no such effect.

In other words, what the paper is explaining is that these two studies were excluded specifically because they failed to find a significant increase in heart disease risk associated with secondhand smoke exposure!

This paper has committed perhaps the most egregious possible cardinal sin of a meta-analysis: making a decision about what studies to include or exclude after the fact and based on the results, rather than on the methodologic aspects of the study. If you conduct your meta-analysis first among studies you know to support your pre-determined conclusion and then you exclude from the meta-analysis any specific studies that you know not to support that conclusion, then you are automatically guaranteed of concluding your pre-determined conclusion!

I don't know how something like this passed peer review. However, mistakes like this are sometimes made. The point is not how the mistake was made but the fact that the article would use this type of reasoning in the first place.

Think about it this way: you have a collection of studies, most of which support your hypothesis, but several of which do not. You have two choices. First, you can combine all the studies together. If you do that, there is a risk that the negative studies will wash out (negate) or dilute the positive ones. Second, you can combine the positive ones to derive an estimate of the effect and then show that the negative studies are inconsistent with that finding. Then, you argue against including the negative studies because they are inconsistent. This is precisely the reasoning that was used in this paper.

Before discussing the implications, let me first make several points to dispel comments that I know some will make:

1. I am not arguing here that secondhand smoke does not cause heart disease. I think that even including the two studies that were excluded, if you look at Figure 1 in the paper you'll see that there is still an overall finding of a small increased heart disease risk among those exposed to secondhand smoke.

2. I am not arguing here that the two studies that were excluded should not necessarily have been excluded. There may be valid methodologic reasons to exclude these papers. However, any such methodologic flaws are not the reason provided for why these papers were excluded.

3. That the studies in question were published by authors with tobacco industry ties is not the reason given by the paper for excluding them. Even if it were, the nature of the funding is probably not sufficient reason to exclude the studies. But the point is moot, because the article makes it clear that the two studies were excluded not because they were commissioned by the industry, but because they failed to find positive results.

This paper represents a revelation to me. It really is a revelation for me, because it is something that I previously failed to look closely at - I assumed that a paper of this nature, published in a journal like BMJ, would naturally have used reasonable criteria for study inclusion and exclusion. It would never have occurred to me that the paper would have made the decision about excluding studies after the positive studies were combined and that the decision would be based on whether or not a study found an effect or not.

There are several important implications of this revelation.

First, it suggests that there is a serious bias inherent in the tobacco control movement, one which raises serious concerns about the scientific objectivity of the movement.

I have already expressed similar concerns based on the fallacious claims being made by a large number of anti-smoking groups about the acute cardiovascular effects of secondhand smoke. But this is the first instance in which I have found blatant scientific bias in the literature on the chronic effects of secondhand smoke.

Second, it suggests that the tobacco control movement has a crisis of scientific integrity on its hands. We need to respond to this crisis immediately and definitively in order to reclaim our scientific integrity and to prevent any loss of scientific credibility.

Third, it suggests that the loss of objectivity in tobacco control is something that is not restricted to the past eighteen months - a time period during which I have been documenting numerous examples of misrepresentation of the science by anti-smoking groups, including by the Surgeon General. This particular story would have made my blog headlines in 1997, if I had a blog at that time (or even knew what a blog was).

Finally, it reminds us that the peer review process, while an essential and usually an effective one, is not perfect. As I teach my students, one must always take the time to critically evaluate any published study, no matter how prestigious the journal. There is no substitute for careful evaluation of the published literature. The scientific review process must not end when the journal's peer review process ends.

Medical Mutual Now Requiring Negative Urine Test for Cotinine for Job Applicants to Be Considered

According to an article in the Akron Beacon Journal, Cleveland-based Medical Mutual, one of Ohio's largest health insurance companies, will consider job applications only from nonsmokers. Job applicants must agree to submit a urine sample for cotinine testing. If cotinine is detected at a level indicating that the person is an active smoker, the job application is automatically rejected, regardless of the applicant's qualifications for the position.

The article notes that "lighting up at home could have a high price: It could cost smokers a job. Faced with rising health-care costs, a few employers refuse to hire anyone who smokes. Cleveland-based Medical Mutual, one of the state's largest health insurance companies, recently started testing new hires for tobacco use. All prospective employees must submit to a urine test for evidence of nicotine use. (The threshold for detecting nicotine presence is high enough, experts say, that people exposed to secondhand smoke don't risk testing positive.) Those who flunk are automatically rejected for employment, regardless of their qualifications. ...

As a company that encourages its customers to lead healthy lifestyles, Medical Mutual decided that hiring only nonsmokers sets a good example, said Paula Sauer, vice president of care management. 'In keeping with health and wellness being part of our whole philosophy, it made sense,' Sauer said."

The Rest of the Story

In keeping with health and wellness being part of Medical Mutual's philosophy, does it not also make sense to set a good example by refusing to hire fat people, people who don't exercise, people who eat too much fatty foods, people who eat food with trans-fats, and people with inadequately controlled diabetes and hypertension?

Apparently not, as Medical Mutual has not announced plans to refuse to hire any of these other groups which greatly increase health care costs and set an example of unhealthy lifestyles. The fact that the company is singling out smokers to discriminate against in its hiring suggests that something beyond merely health and economic concerns is at play. And it's called bigotry.

I wonder what's next. Will Medical Mutual incentivize its customers to lead healthy lifestyles by refusing to cover the cost of illnesses caused by smoking? How about requiring smokers to sign a contract stating that they promise to try to quit? Or refusing to cover the cost of illnesses among smokers if they fail to sign up for a smoking cessation program?

Actually, though, it doesn't really matter what's next, because what's happened already is bad enough. What's happened already is employment discrimination against smokers which is unfair, unfortunate, and unjustified.

If Medical Mutual were taking a broad and consistent approach to hiring in terms of healthy lifestyles, and refusing to hire anyone who engages in a behavior that has serious long-term health implications, it would be one thing. Then I might take them seriously and believe that the health and economic concerns are really at the forefront of their action. But by discriminating only against smokers, I think they have exposed the true force beyond the policy: bigotry and intolerance of a large segment of the population whose personal and private lifestyle choices they are unwilling to accept.

I'm sorry, but employers have no business inside the homes of their employees, other than to ensure that they are not engaging in illegal behaviors or behaviors that directly impair their job performance. And employers certainly have no business getting inside the body fluids of their employees, except, again, to ensure that they are not using illegal substances. But when it comes to engaging in lawful behaviors in one's home that do not directly influence job performance, an employer has no business interfering with an employee's or potential employee's privacy.

The Folly of Belmont

Today I offer a two-part commentary on the proposed smoking ordinance in Belmont, California, which would ban smoking in all indoor and outdoor areas of the city with the exception of detached, single-family homes.

In part I, I discuss the disturbing class issues raised by the proposed policy.

In part II, I discuss the disturbing public health impact of the proposed policy.

The Folly of Belmont: PART II - Proposed Policy Would Harm Children By Increasing Secondhand Smoke Exposure

The Belmont (California) City Council voted unanimously Tuesday night to draft an ordinance for consideration by the Council that would ban smoking in all indoor and outdoor areas of the city with the exception of detached, single-family homes and the possible additional exception of private cars. I have already explained why this proposal is unjustified from a public health perspective and I have exposed a disturbing class inequity that the policy would create. Here, I consider the disturbing public health implications of the proposal in terms of childrens' exposure to secondhand smoke.

The Rest of the Story

If enacted as presented to the public, this ordinance would ban smoking outdoors, while allowing it inside detached, single-family homes. This means that if parents who smoke observe the law, they will smoke inside their homes instead of stepping outside to protect their children from secondhand smoke exposure. The effect of the policy, therefore, would be to increase exposure for children of smokers.

Smoking outside is precisely what we want smoking parents to do. It is not something we want to ban. The last thing in the world that we should want is to force parents to smoke inside the home, where children will be heavily exposed, rather than encouraging them to smoke outside to minimize their childrens' exposure.

While one could argue that most parents would not be stupid enough to observe the law, if one has to rely upon the public to disobey a law in order to ensure its effectiveness in protecting the public's health, then obviously the proposed law is nonsensical.

This proposal is something which anti-smoking groups should be condemning loudly. But instead, the 3 anti-smoking groups which have publicly spoken out about the proposal so far about the proposal are supporting it.

I think that anti-smoking groups need to get their act together quickly. This proposal would be disastrous for the anti-smoking movement for many reasons.

The Folly of Belmont: PART I - Proposed Ordinance Would Create Disturbing Class Inequity

The Belmont (California) City Council voted unanimously Tuesday night to draft an ordinance for consideration by the Council that would ban smoking in all indoor and outdoor areas of the city with the exception of detached, single-family homes and the possible additional exception of private cars. I have already explained why this proposal is unjustified from a public health perspective and why I think it goes too far and threatens the reputation and credibility of the tobacco control movement. Here, I consider a disturbing implication of the proposal in terms of the class inequity that it would produce.

The Rest of the Story

If enacted as presented to the public, this ordinance would have the effect of banning smoking completely among poor and lower middle-class residents of Belmont, while allowing smoking among wealthier residents.

By banning smoking completely outdoors and in all apartments, multi-family, and attached single-family housing, the ordinance would essentially ban smoking among anyone who is not wealthy enough to afford a detached, single-family home. Those who own a detached, single-family home could continue to smoke.

In other words, if this proposal is enacted, you will essentially have to buy your way into being able to smoke in Belmont. It will become a privilege of the rich, and the poor will have this right taken away from them. There is something very disturbing about a policy that regulates smoking differently among those who are poor and those who are wealthy. The policy would create a rather extreme class inequity.

The policy would essentially close Belmont's doors to poor and lower middle-class smokers. Smokers, or families that include a smoker, who cannot afford a detached, single-family home in Belmont would be deterred from moving to the city.

To be more realistic, the ordinance would actually ban smoking by everyone but the wealthy and upper middle-class residents of the city. The minimum price of a detached, single-family home that is now on the market in Belmont is $645,000. Not exactly chump change, but that's what you'd have to pay for the right to smoke in Belmont if the current proposal is enacted into law.

Belmont (California) City Council Approves Drafting of Ordinance to Ban Smoking Everywhere Except Detached, Single-Family Homes

The Belmont (California) City Council voted unanimously Tuesday night to draft an ordinance for consideration by the Council that would ban smoking in all indoor and outdoor areas of the city with the exception of detached, single-family homes and the possible additional exception of private cars (article 1; article 2; article 3; article 4; article 5).

The ordinance has not been drafted, so the precise details are not clear. However, the clear directive given to the city attorney was to draft an ordinance that essentially bans smoking everywhere, except in detached, single-family homes. Smoking would apparently be banned on all streets and sidewalks and in parks and parking lots, as well as everywhere else outdoors, including private residential property. Two of the newspaper articles were in conflict over whether smoking was to be banned in private cars or not. Either way, enactment of such an ordinance would be historic. The ordinance would be the most restrictive ever enacted, surpassing by far the restriction of smoking by Calabasas (also in California) in any outdoor area where a nonsmoker is within 25 feet.

According to an article in the San Mateo County Daily Journal: "As first reported in the Daily Journal yesterday, the Belmont City Council voted unanimously to draft an ordinance that will ban smoking in all areas of the city except for detached, single-family residences. It would make Belmont the first city in the nation to draft such a broad ban. By law, a person caught smoking in a park, on the street or in their apartment could be slapped with a ticket."

Another Daily Journal article quoted Councilmember Dave Warden as stating: "You can'’t walk down the street with a beer, but you can have a cigarette. You shouldn'’t be allowed to do that. I just think it shouldn'’t be allowed anywhere except in someone'’s house. If you want to do that, that'’s fine."”

It appears that the anti-smoking organizations which were interviewed for these newspaper articles expressed support for the concept. These include the American Lung Association, American Cancer Society, and Breathe California.

According to the San Jose Mercury News, "'There's some momentum going on,' said Caren Licavoli, a vice president with Breathe California, a non-profit supportive of tougher anti-smoking laws. 'The ball is rolling.'''

The same article stated: "Angie Carrillo, a spokeswoman for the American Cancer Society, also was enthusiastic. 'Anytime we can prevent smoking, that's always a victory,' she said."

Once drafted, the ordinance will be formally considered by the Belmont City Council early next year.

The Rest of the Story

According to the Palo Alto Daily News, Philip Morris stated its opposition to the proposed ordinance: "'We understand and agree that people should be able to avoid being around secondhand smoke, particularly in places where they must go, such as public buildings, public transportation,' said Bill Phelps, spokesman for Philip Morris USA. 'However, we think that complete bans on outdoor smoking go too far.'"

I would have to agree with Philip Morris on this one. The proposed smoking ban does go too far. It regulates smoking even when there is no risk to any bystander and it aims to protect the population from exposure to evinfinitesimaltesmal dose of secondhand smoke. It's like using a sledgehammer to drive a quarter-inch nail.

"Philip Morris has no intention of fighting Belmont's legislation, Phelps said."

I do, however. I don't think anti-smoking groups and advocates can sit idly by and watch something like this happen. I think we should be actively opposing this legislation, and by no means should we be supporting it.

It needs to be understood that there is apparently more underlying the proposal than a simple desire to prevent disease among nonsmokers due to secondhand smoke exposure. If that were the sole intention, then smoking would only need to banned in areas where there is substantial exposure among nonsmokers and where nonsmokers could not easily avoid that exposure -- in other words, where regulation of smoking was necessary to address a serious public health problem.

It appears to me that this proposed policy goes far beyond simply aiming to protect the health of nonsmokers. It seems that the proposal is aiming to do one or more of the following: (1) to protect nonsmokers from having even the possibility of having to experience even the annoyance of breathing in a few wisps of secondhand smoke; (2) to protect nonsmokers from having to even see a smoker; and (3) to make a moral statement about smoking, condemning it as something that needs to be restricted to the confines of the private home.

The statement by Councilmember Warden confirms the intent behind the proposal. By comparing smoking in public with drinking a beer in public, he seems to display a misunderstanding of what smoking regulations are all about. The issue is completely different. There is no secondhand beer exposure. The concern is for public drunkenness, which is a potential threat to the public's safety. But with smoking, people who smoke outdoors are actually doing the public a favor. The alternative would be smoking indoors, where the smoke truly would present a public health threat.

Smoking outdoors is only a public health threat when: (1) the level of exposure is substantial; and (2) nonsmokers cannot easily avoid the exposure. Otherwise, what is being regulated is merely a nuisance, not a public health problem. I don't see a need to invoke the state's police powers and to intrude upon individual freedom so invasively simply to prevent a nuisance.

By the same logic, we should ban the use of strong perfumes in public because it creates a nuisance to people (like me) who can't stand the smell. Perfumes, like tobacco smoke, also may represent a health hazard to extremely sensitive individuals and may even trigger an asthma attack in rare situations.

If you live on a 1-acre lot in Belmont, you cannot tell me that if you step outside to smoke a cigarette you are creating a public health problem, or that you are even threatening the health of any other individual. It is absurd to make that illegal and to allow the police to cite that individual with a civil violation.

In fact, what this proposal will do, if people actually abide by it, is to substantially increase secondhand smoke exposure among children of smokers. Don't we actually want smokers to refrain from smoking inside their homes and instead, to go outside to smoke so that they don't expose their children or other family members? But in Belmont, in order to comply with the proposed law, they would actually have to smoke inside the house, which will potentially create a hazardous situation for their children.

Quite possibly, this law could do more harm than good. It could likely increase the exposure of children to secondhand smoke inside the home, especially in denser residential areas where parents could reasonably fear being seen smoking if they step outside to smoke. In contrast, the law will likely do very little to reduce secondhand smoke exposure outdoors, as there isn't exactly a huge problem of exposure in streets, sidewalks, parking lots, and parks.

Another problem with the proposal is that it is essentially unenforceable. To enforce it would literally require the smoking police. The police would have to devote time to issuing tickets to people who are smoking. There are far more important things for the police to be doing than issuing fines to smokers. In reality, the police would not devote time to this (and the Belmont police have already indicated such).

In essence, then, the proposal is more of a moral statement than anything else. It is largely unenforceable and the police have already stated that they have little or no intention of enforcing it. It is therefore a feel-good policy that will do little to protect the public health and may actually increase secondhand exposure to vulnerable groups like children.

Moreover, it is quite possible that enactment of this law could lead some smokers to violate existing smoking bans in indoor places. If I'm a smoker and I have a private office in my workplace and I abide by the current law and always smoke outdoors, but now they tell me I'm not allowed to do that, I might just sneak a few drags in my office rather than risk the public's scorn by smoking outside.

Another adverse effect of this policy would be to help destroy the reputation of the anti-smoking movement. If this truly is a trend and it spreads to other cities, as one anti-smoking group expressed hope for, then the public is going to come to perceive anti-smoking advocates as fanatics whose goal is simply to ban smoking everywhere. This could well undermine our ability to promote smoking bans that really would protect the public's health, such as those which eliminate secondhand smoke exposure in workplace where people spend 40 or more hours per week, as opposed to the few seconds that they may spend breathing in smoke while walking down a street or through a parking lot.

What concerns me the most, however, is not that the public may get the perception that our goal is simply to ban smoking everywhere. My greatest concern is that our goal is simply to ban smoking everywhere.

When I went into the field of protecting the public from secondhand smoke, my understanding was that this wasn't about prohibiting smoking, it was simply about addressing the severe public health hazard posed by high levels of involuntary exposure to secondhand smoke. It now appears that I was wrong and that the ultimate goal was, and is, to simply get rid of all public smoking to completely eliminate the nuisance and protect nonsmokers from ever having to even see someone smoking.

It's beginning to look like I was sold a bill of goods.

The only thing that could change my current perception is if anti-smoking groups and advocates speak out publicly against this proposal. But so far, all I see are at least three anti-smoking groups which are actually supporting the proposal.

I'm just glad that I didn't pay a membership fee to join the smoke-free movement. Because right around now I'd be asking for a refund.

Health Advocates in Bangor Pushing Legislation to Ban Smoking in Cars with Children

A group of local public health advocates in Bangor are pushing for legislation that would make it illegal to smoke in a car when a child is present. The ordinance, which would be enforced by the police as a secondary motor vehicle infraction, would impose a $50 fine for smoking in a car when any child under age 18 is present.

According to an article in the Bangor Daily News: "Bangor pediatric dentist and child health advocate Jonathan Shenkin is the primary mover behind the proposal. Shenkin said Friday that he was dismayed by a recent report from the Office of the U.S. Surgeon General. The report shows that despite a drop in smoking rates nationally, exposure to 'secondhand smoke' --— smoke in the air from a nearby cigarette or other smoking material --— remains high. 'The most shocking thing is that the population at highest risk -- is young children age 4 to 11,' he said."

"Physician Geoff Gratwick, who serves on the Bangor City Council, said Friday that he will sponsor the proposal enthusiastically. ... Gratwick said the ordinance should not be perceived as an intrusive or heavy-handed measure, but rather as an opportunity to raise awareness among parents and other adults about the serious health consequences their smoking can cause in the children they care for. 'If you love your children, this is something you should learn not to do,' he said."

The Rest of the Story

While I appreciate the desire to protect children from secondhand smoke exposure in cars, I'’m afraid that the proposal to ban smoking in cars occupied by children represents an unwarranted intrusion into the privacy and autonomy of parenthood. The autonomy to make one'’s own decisions about what risks to subject a child to is not to be interfered with lightly. It should only be done in cases where there is a substantial threat of severe harm to the child. Interfering with parental autonomy in a case where there is only minor risk involved is unwarranted.

Let me explain what I mean by substantial threat of severe harm and minor risk.

If an infant is riding in a car without a car seat, there is a substantial threat of severe harm should the car be involved in an accident. In fact, if the car is in any major accident, severe harm to the child is almost certain. Death is likely if the accident is severe. The connection between not being in the child restraint and suffering severe injury or death in an accident is direct, immediate, and definitive.

On the other hand, exposure to secondhand smoke in a car in most cases merely poses an increased risk of upper respiratory or middle ear infection. The likelihood, more often than not, is that the child will not suffer any harm. What is involved is only an elevation of risk for an ailment. There is no certainty of harm, nor is there any substantial threat of severe harm. The harm, if any occurs, is removed in time from the exposure and in most cases it is impossible to directly connect the exposure with the ailment. Thus, the connection is neither direct, immediate, nor definitive.

This difference is not subtle. In fact, it is so stark that it serves as the basis for deciding when society should interfere with parental autonomy regarding exposure of their own children to health risks. Generally, causing harm to children or putting them at substantial risk of severe, direct, immediate, and definitive harm is viewed as something for which there is a legitimate government interest in interfering with parental autonomy. Simply placing children at an increased risk of more minor health effects is not something for which there is a legitimate government interest in interfering with parental autonomy.

If we extended the argument of the supporters of this proposed legislation, then we would also have to support laws that regulate a wide range of parental activity that takes place in the private home which places children at increased risk of adverse health effects.

We would have to ban parents from smoking in the home. We would have to ban parents from drinking more than a drink or two at a time in the home. We would have to ban parents from using insecticides and pesticides. We would have to ban parents from allowing their children out in the sun without sunscreen. We would have to ban parents from allowing their children to ride giant roller coasters. We would have to ban parents from serving their children foods that contain trans-fats. We would have to ban parents from serving their children peanuts before age 3. We would have to ban parents from allowing their children to drink soda that contains sodium benzoate and citric acid.

And more:

• Allowing their infants to play with walkers;
• Allowing their children to watch more than four hours of television every day;
• Failing to ensure that their children get adequate physical activity;
• Owning a wood-burning stove;
• Failing to filter water that contains trihalomethanes;
• Not boiling their babies'’ bottles before serving them milk;
• Not breastfeeding their infants;
• Allowing their children to watch violent television programs;
• Allowing their children to watch R-rated movies;
• Serving alcohol at a party;
• Allowing their children to drink alcohol; and
• Failing to keep vitamins out of the reach of children.

One could easily argue that 'If you love your children, [these are all things] you should learn not to do.' That may or may not be true, but what is clear is that we should not interfere with parental autonomy by banning all of these things.

The question I find interesting is why a child advocate would single out smoking around one's children as the sole example of a situation in which the government interferes with the autonomy of a parent to make decisions regarding the exposure of her children to a health risk. What is it about smoking that, among all of the myriad above health risks to which parents often expose their children, it is the one and only one that is chosen to be regulated?

I fear that the answer is that there is a moral stigma attached to smoking as opposed to these other risky parenting behaviors. And I also fear that it is the anti-smoking movement that has contributed to this moral stigma. What it ultimately comes down to, I'm afraid, is that the anti-smoking movement is starting to moralize. We are starting to try to dictate societal morals, rather than to stick to legitimate public health protection.

It's a dangerous line that we're crossing. Because once that line is crossed, there's little assurance that the autonomy of parents to make decisions regarding raising their children can or will be adequately protected.

Des Moines City Council Considering Ban on Smoking in Municipal Parking Garages

The Des Moines City Council is presently considering an ordinance that would ban smoking in municipal parking garages. Citing "complaints from people who dislike walking through secondhand smoke to get to or from their cars," City Councilwoman Christine Hensley announced plans to introduce a ban on smoking in city parking garages, noting: "You can actually walk through it, and smoke is on your clothing."

A City Council committee will consider the proposal at a public meeting tonight.

The city has had an ordinance in place since 1988 which bans smoking in municipal buildings.

According to the Des Moines Register article: "Councilman Tom Vlassis, who stopped smoking about three years ago, said he will consider the garage ban but is uncertain if it's practical. 'With all the pollution that goes in a parking garage because of the cars, I don't know if it would be effective at all,' Vlassis said. 'It's not normally a gathering place.'"

In an op-ed point-counterpoint published Monday in the Des Moines Register, Hensley explains the reasoning behind her proposal: "We have received more and more complaints about the smoke filling cars as people drive through the smokers, the smell penetrating their clothes when they walk through the smokers to the skywalk and the large groups gathering at many of the skywalk entrances, causing safety concerns."

In the counterpoint column, Richard Maynard, Iowa Coordinator for The Smoker's Club Inc. (and a Rest of the Story reader), counters: "At first, I thought maybe Christine Hensley was trying to protect smokers from the double-whammy of smoking while inhaling toxic fumes from car exhaust. Then, my more cynical side told me it must be a ploy to make smoking bans in bars and restaurants sound more reasonable. Whatever the case, the fact remains that brief exposure to secondhand smoke may be irritating to some, but it is not a public-health issue, despite what the George W. Bush-appointed surgeon general claimed last summer."

Maynard quotes two tobacco control researchers who have shared similar sentiments about outdoor smoking bans in places where nonsmokers can easily avoid anything but transient secondhand smoke exposure.

First, he quotes Dr. Simon Chapman, editor of the journal Tobacco Control, as stating: "For some rare individuals with exquisite sensitivity, an acute exposure (to SHS) might precipitate an adverse episode. Similar claims are made about a large range of environmental agents. But, in general, public policy is not based on cocooning such people from exposures that are inconsequential to nearly everyone."

Second, he quotes me as stating that: "these policies (outdoor smoking bans) are not supported by scientific evidence." These non-science-based policies represent "social engineering at its worst. It treats smokers as social pariahs, demonstrates intolerance, and takes tobacco control out of the realm of public health, turning it instead into a non-evidence-based moral crusade."

The Rest of the Story

I agree with Dr. Chapman and with Richard Maynard on this issue. There simply is not evidence that transient exposure to secondhand smoke, such as that associated with walking or driving through a parking lot, is an important public health hazard that warrants invoking the state's police powers to ban smoking in these facilities. There is no substantial hazard to anyone except those with exquisite sensitivity to secondhand smoke and there seems little reason to formulate public policy based on the hypothetical existence of such rare individuals in Des Moines.

The most important thing that I think needs to be recognized is that this is not a science-based public health policy. It is not truly based on a concern for protecting the health of the public. Instead, it appears to be primarily designed to avoid what its proponents see as a nuisance: having to endure, even for a few moments, the presence of smokers.

The smell of the smoke seems to be the predominant concern that is driving this proposal. Hensley readily admits that the motivating force behind the proposal is "complaints about the smoke filling cars as people drive through the smokers, the smell penetrating their clothes when they walk through the smokers to the skywalk."

Is it really that bad that the city needs to enact an ordinance to deal with this? Are there not more important health concerns for the city to worry about?

The irony of the proposal, of course, is that while the city is apparently worried about the health effects of exposure to a few smokers for several seconds, the proposal does nothing to address the exposure to the car fumes in the parking garages. And while the city is spending all this time worrying about minute doses of exposure in parking garages, it is doing nothing to address the substantial exposure that takes place in its bars and restaurants, where workers may be exposed for more than 40 hours per week.

Sure - the city's hands are tied by the state's law which preempts bar and restaurant smoking regulations; but if Councilwoman Hensley is so concerned about the effects of secondhand smoke on Des Moines residents, she would be better off mounting a campaign to urge state lawmakers to repeal the state's preemption of local smoking regulation.

This story highlights the fact that the anti-smoking movement is rapidly spiraling out of control. Extremism in the movement is now ruling the day. I am quite sure that Iowa tobacco control groups will not speak out against this proposal; thus, the extremist element of the anti-smoking movement effectively represents all of us in tobacco control.

This is precisely the sort of thing that I think could eventually erode our credibility and reputation with the public. If we are perceived as wanting government to ban smoking in order to prevent getting smoke on our clothes, does this not undermine efforts to get the public to embrace us as reasonable public health practitioners who seek government intervention only because of a severe and substantial public health hazard?

I'm glad that Richard took the initiative to write the counterpoint argument, and I'm delighted that, through his quoting of my opinion on this issue, I can play a role in the consideration of this public policy issue.

Anti-Smoking Groups Hone their Tactics to Suppress Dissent: My Suggested Guidebook for Tobacco Control Advocates for Quelling Internal Dissent

Over the past months, anti-smoking groups have been forced to hone their techniques of suppressing dissent from within the movement, since so far I have not been deterred by any of these tactics.

But I've learned a lot about how the groups are able to suppress dissent.

Thus, I offer my Top Five List of Techniques to Suppress Dissent. I propose this as a guidebook or manual that could be given to anti-smoking advocates. I even offer actual, real-life examples of each of the techniques.

Top Five List of Techniques to Suppress Dissent:
A Guidebook for Tobacco Control Advocates

5. Accuse the Dissenter of Being Paid Off by the Tobacco Industry

When you don't like what a colleague is saying, simply turn the tables on him and accuse him of being paid off by the tobacco industry. Don't worry about not having documentation of your accusation or the possibly defamatory nature of your public statement. After all, claims only need to be documented when they're made by the tobacco companies. Anti-smoking groups are not subject to the same ethical standards.

Example: Accuse the dissenter of being a tobacco stooge.

4. Accuse the Dissenter of Supporting the Tobacco Industry

Just shy of making an outright accusation that the dissenter is being paid off by the tobacco companies, simply accuse the dissenter of supporting the tobacco industry cause. This relieves you of the defamation risk but allows you to accomplish virtually the same objective of discrediting the dissenter and ruining his career. This is enough to discourage all but the most hardy of anti-smoking advocates from offering any criticism of the tactics, statements, or agenda of the movement.

Example 1: Accuse the dissenter of lending support to the destruction of the health of the public.

Example 2: Accuse the dissenter of running a tobacco industry support group.

3. Accuse the Dissenter of Helping to Kill People

There are times when tactics #4 and #5 will not work because the dissenter has a long history of fighting Big Tobacco and it will be clear to your colleagues that he doesn't support the tobacco industry cause. In these cases, an excellent approach is to accuse him of helping to kill people, even though that may not be his actual goal. By aligning him with the goals of Big Tobacco without actually suggesting that he is intentionally supporting tobacco companies, you have at your hands an excellent way of discrediting the advocate through personal attack.

Example: Accuse the dissenter of helping Big Tobacco kill people.

2. Implore All Anti-Smoking Groups and Advocates to Ignore the Dissenter

If you don't think that anyone will buy the argument that the dissenter is taking money from Big Tobacco or supporting the Big Tobacco cause because he has devoted 20 or more years of his life to fighting tobacco-related morbidity and mortality, the next best thing to do is to try to get all of your colleagues to simply ignore him. Sending an email to thousands of advocates entitled "Please Ignore [insert name of dissenter here]" is a great way of accomplishing this.

Example: Implore thousands of colleagues to please ignore the dissenter.

1. Censor the Dissenter by Removing Him from All Internet and Email Listserves and Discussion Forums

There are situations in which none of the less aggressive tactics will work. In cases of especially well-known and prominent dissenters who have made major contributions to the tobacco control movement through decades of research, advocacy, and leadership, you may need to resort to more aggressive and definitive tactics. Since email and internet discussion forums are now a predominant mode of communication in tobacco control, expelling the dissenter from all tobacco control email listserves and discussion forums is an ideal tactic to silence him.

Remember that you don't need a legitimate reason to expel the dissenter. You can simply state that he has interfered with the quality of the listserve messages, or that he is being too repetitive.

Example 1: Expel the dissenter from listserves and discussion forums.

Example 2: Expel the dissenter from listserves and discussion forums.

Additional Techniques to Consider

In rare situations, none of the above techniques will be effective in suppressing dissent from a colleague because he may actually have a conscience and may decide that expressing the truth to the public is worth risking his career. Do not worry. In these situations, there are a number of additional techniques that you can use.

1. Suggest that There Are More Important Things to Worry About then the Concerns Raised by the Dissenter

There are times when the concerns raised by the dissenter are actually valid and his arguments are compelling. In these cases, an effective technique is to make people think that there are many more important things to worry about then the concerns raised by the dissenter. Some very good lines to use are the following:

"We are too busy fighting Big Tobacco to pay attention to this distraction from our important work."

"Nobody is perfect. In our work to protect kids and save lives, we are bound to make a few mistakes."

"Sure we made a few misleading statements. But they're nothing compared to the statements being made by the tobacco companies and smokers' rights groups."

The word "distraction" is an excellent one to use. It turns the attack on the dissenter, suggesting that he is a distraction to the movement. Trying to deflect the criticism by turning it against the tobacco industry is also a wise and effective strategy. No matter how unethical or inappropriate the tactics and statements of the anti-smoking groups are, it will never be as bad as what the tobacco companies have done. Reminding people of that will always deflect attention from any untruths being spread by the movement.

Example: Suggest that there are more important things to do then worry about the concerns of the dissenter.

2. Point Out that Only a Small Fraction of Statements We are Making are Misleading

No matter how inaccurate or fallacious a statement the anti-smoking movement is making may be, it will never represent more than about 1% of all statements made by these groups. Thus, pointing out that only a small fraction of statements made by anti-smoking groups are misleading or inaccurate is a valid and effective technique. It will take attention away from any deception that is going on and focus attention on the many accurate things that we say. Combining this technique with Additional Technique #1 is particularly effective, as it may help not only to distract attention from the deception going on in the tobacco control movement's propaganda, but re-focus it on the deception going on in the tobacco companies' propaganda.

Example: Point out that our misleading statements are only a fraction of all of our statements.

Techniques to Avoid at All Costs

The one technique to avoid at all costs is responding substantively to the arguments being made by the dissenter. Respond with an ad hominem attack, but by no means address the actual argument being made.

Cuyahoga County Approves Cigarette Tax Increase to Fund the Arts

Voters in Cuyahoga County, which includes Cleveland and its suburbs, approved Issue 18, which increases the tax on cigarettes by 30 cents per pack in order to fund arts programs, including the performing arts in the county. The measure is expected to raise $20 million a year, all of which will be used to support the arts.

Two years ago, Cuyahoga County voters rejected a proposed property tax increase that would have provided funding for the arts. According to the Cleveland Plain Dealer, a decision was made to tax smokers because other types of taxes were deemed to be politically risky: "Issue 18 was the county cultural industry's second attempt in recent years to win voter support for public funding. In March 2004, voters defeated a proposed property-tax increase to benefit economic development including arts and culture. Arts and elected leaders decided to pursue public support this year through a cigarette-tax increase after other types of taxes, including property, real-estate conveyances, food-and-beverage and general sales, were rejected as inadequate or too politically risky."

In explaining their decision to propose a tax on cigarettes, Issue 18 supporters wrote: "Northeast Ohioans have clearly shown that they do not want new additions to their property taxes."

The advertisements for Issue 18 boasted: "If you don't smoke, you won't pay anything for Issue 18."

The Rest of the Story

This is very bad public policy. I think it is a great example of a truly regressive tax.

The costs of the policy are borne entirely by smokers, who represent a disproportionately lower-income and lower-education group. The benefits of the policy, however, accrue primarily to upper-income and higher-education groups.

This is a classic example of tax the poor to benefit the rich. And I think it's inappropriate.

If higher income people want more arts in their communities, then that's great. But the costs of those programs should be borne by those higher income folks. Raising property taxes to support such programs makes perfect sense. The wealthiest citizens will bear a proportionately higher share of the costs and will accrue a corresponding proportionately higher share of the benefits. That's fair.

But asking the poor to pay for programs so that people who are more well-off can enjoy the arts is unfair.

What's interesting is that supporters of Issue 18 readily admit that they are funding the arts on the backs of smokers. And they readily admit that the reason they are picking on smokers is because they don't have the courage to take on any political risk.

What it amounts to is: I'm not willing to risk losing any votes from the wealthy, so I'm going to help my political career by putting a higher tax burden on those who can least afford it, but who have the least political power.

According to the Plain Dealer article, the only groups which opposed Issue 18 were Philip Morris and Citizens Against New Taxes. Well you can add my name to that list. I'll stand alongside Philip Morris on this one. And I think it's unfortunate that apparently no anti-smoking or public health groups in Ohio opposed this initiative.

If you are going to tax cigarettes in order to raise revenues that will be used for programs whose benefits will accrue largely to smokers, then that's one thing. But to use smokers to raise funds for programs that the government should be funding anyway is wrong. To do so in order to avoid having to take on political risk by taxing wealthy people is disgusting.

A 30 cent per pack tax increase is not going to be enough to get smokers to quit. Perhaps some will cut down slightly. But the overall health benefits of the proposal will be minimal. The costs, however, could be quite high. There are many smokers, especially those who are poor, who pay a significant proportion of their income for cigarettes, sometimes at the expense of healthier food. Because of the addictive power of cigarettes, most of these smokers will not quit, despite the tax increase. They will just pay a higher proportion of their income for the cigarettes. They will be hurt by the tax increase.

But supporters of Issue 18 are OK with hurting the poorest and most addicted smokers. Because the richest citizens of the greater Cleveland area will benefit by being able to enjoy their operas, ballets, and concerts.

How many inner-city Cleveland residents or poorer residents of other cities and towns do you think will be able to take advantage of the increased support for the arts? Well take a look at next Friday's Cleveland Symphony concert, which features Mitsuko Uchida performing Mozart's piano concertos (K. 450 and K. 537), as well as a performance of Schoenberg's Chamber Symphony Number 1 (to be honest, I could live without the Schoenberg piece).

If you want to sit in the orchestra or lower balcony seats, you're talking $61 a pop. Mid-balcony seats are $50 each. Upper balcony (nose-bleed) seats are a bargain at $34 per head. There's sure going to be a lot of socioeconomic diversity at that concert.

And suppose you are not too well off economically and you want to send your kid to the Karamu Performing Arts Theater for their youth performing arts program this year. For your kid to get to go to one class every two months, you pay $225. For a mere one class per month, you pay $360. Youth dance ensemble and youth performance theater classes are $300 a head.

In my view, anti-smoking groups should have been on the front lines opposing this regressive tax proposal. Taxing the poor to benefit the rich is not consistent with the social justice paradigm that is supposed to be the basis for all public health action.

Anti-Smoking Colleagues Respond to My Pointing Out Lack of Scientific Integrity in Movement by Suggesting There are More Important Things for Us to Do

A number of my anti-smoking colleagues have responded in recent days to my commentaries pointing out the lack of scientific integrity that seems to have taken hold in the tobacco control movement by attacking and insulting me and by suggesting that there are more important things for anti-smoking groups to worry about.

Interestingly, these colleagues seem to acknowledge that my arguments are correct and that the movement is indeed basing its smoke-free air campaigns, in part, on a distortion of the scientific facts regarding the health effects of secondhand smoke. However, they argue, we have too many important things to do to be concerned about the "small" number of misrepresentations that are being made.

For example, one advocate wrote: "I think there are a lot of people who may agree with you in principle -that any organization including anti-smoking organizations need to be accurate in their communication. But the question is what are you going to do about it. I don't like Trent Lott, but he's in for 6 more years, and I am not going to go out an picket him every day. I don't like prostitution, but I am not going to spend my time fighting it. I've got other things to do."

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I think this attitude reveals exactly why what the anti-smoking groups are doing is so unethical. My colleagues readily admit that we are misleading the public, but excuse it by saying that we're too busy doing too many important things to worry about it.

Well I'm sorry, but misleading the public about the health effects of secondhand smoke in order to promote our cause is simply wrong. I reject the idea that the ends justifies the means. That is a very dangerous proposition.

The bottom line is that if we adopt this attitude, then we have completely lost our scientific integrity as well as our ethical principles upon which public health should be based.

And the consequences of adopting such an attitude are not only a threat to the tobacco control movement, but to public health itself.

What could possibly be more important than our honesty, our integrity, our ethics, and our scientific integrity? It's beyond me how our agenda is somehow more important than all of those combined.

It's noteworthy that a number of advocates are threatened by my commentaries, and that they apparently see the truth within my arguments, so that they are left with no response but an insulting ad hominem attack against a colleague.

It shows me that what I'm doing is indeed having an impact and that people are angry with me because I really do represent a threat. In other words, it reveals that deep down, people see the truth in what I'm saying.

Well you know what? They should feel threatened. This is a serious threat to our credibility and to our integrity.

And if people do see the truth in what I'm saying, then the appropriate response is not to attack ME, but instead, to correct the problem!!!

The continued ad hominem attacks against me, with absolutely no discussion of the actual issues or arguments that I raise, is documentation that the tobacco control movement has become a McCarthyism-like movement in which one cannot challenge the prevailing wisdom without risking one's career. And that's precisely why nobody is willing to speak out against the nonsense that is going on.

Wake up out there! We have publicly stated that just 30 SECONDS of exposure to secondhand smoke causes heart attacks. That's despicable (what's despicable is really that we haven't corrected it or apologized - anyone can make a mistake). There's simply no excuse for it (for failing to correct it and apologize).

This completely destroys our scientific integrity and threatens our credibility. Once that is lost, then we can spend all the time we want doing all the "more important" things mentioned in the responses to my commentaries, but it won't amount to a hill of beans. Because without credibility, we don't have a movement. Or at least one that can accomplish anything.

Most importantly, I find it disturbing that my colleagues suggest that even though there are severe integrity and ethical problems going on in our movement, we should turn a blind eye towards them and focus on our agenda. That violates the most basic values that I pride myself on.

Should we turn a blind eye to what went on with Foley in Congress because there are more pressing issues for the Congress to deal with than whether pages are being sexually harassed?

I agree - prostitution is a serious societal problem and perhaps we can't doing anything about it. We just accept it as part of society. Fine. But when that prostitution is occurring in our movement, then we sure as hell need to do something about it. There's no mystery about "what are you going to do about it?" The answer is simple: eradicate it. There's no room for a lack of scientific integrity in tobacco control. Period.

Others may be willing to accept prostituting our scientific and ethical principles for the cause. Well I'm not.

And colleagues can continue to attack and insult me all they want, but I'm not going to let down. These are values that are basic to me, and I'm not giving them up, no matter how much mud is slung at me.