DEMOCRATIC PRINCIPLES, FREEDOM OF CHOICE

& CONSTITUTIONAL RIGHTS

Vs.

LEGISLATIONS BASED ON MYTHS

REPORT PREPARED BY:

EPITOME CONSULTING & INFORMATION TECHNOLOGY PRIVATE LIMITED

FOR THE VIRGINIA SMOKERS ALLIANCE

TABLE OF CONTENTS

OVERVIEW

Environmental Tobacco Smoke (ETS) also referred to as Passive Smoke or Second Hand Smoke, has become a controversial issue. The Environmental Protection Agency (EPA) have provided many unsubstantiated reports regarding ETS and these reports have formed the basis for many state and local government’s imposing bans and restrictions on smoking across the USA. In August 1997, the Clinton Administration enacted an Executive Order to ban smoking in all Federal Buildings. The administration justified the Executive Order by relying on a 1992 EPA report, Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, which stated that ETS was a ‘Group/Class A’ Carcinogen – the most deadly type – along with Radon gas and other toxic chemicals.

The scientific data available does not support EPA's classification of ETS as a "Group A" carcinogen.   Of the more than 30 epidemiologic studies conducted attempting to link second hand smoke and lung cancer among nonsmokers, the overwhelming majority reports no statistically significant association.  The studies focusing on ETS exposure in the workplace also generally have not reported a statistically significant increased risk. The classification of ETS as a Group A carcinogen required substantial stretching by EPA. To reach that conclusion, the EPA report combined eleven spousal smoking studies from the United States in a so-called "meta-analysis."  Of the eleven studies, however, ten reported no statistically significant increase in cancer among nonsmokers purportedly exposed to ETS.  To ensure that the meta-analysis would produce the desired results, EPA had no choice but to manipulate the numbers.

EPA and the scientific community use a 95% confidence interval as a means of ensuring that study results did not occur by chance, EPA adjusted the confidence interval downward to 90% in its report on ETS. James Enstrom, an epidemiology professor at the University of California, Los Angeles, explained, "That 90% doubles the chance of being wrong." To put it in lay terms, EPA's statistical maneuvering is the equivalent of moving the goal lines at a football game in order to score more touchdowns.  

According to Richard Daynard, Professor of Law, Columbia University, who obtained his degree in 1970 from Harvard University and a PhD. from Massachusetts Institute of Technology, funded primarily with grants from the Robert Woods Johnson Foundation, organized the movement to eradicate smoking has proceeded in three distinct phases. During the first phase, activists attempted to persuade smokers to stop smoking on the ground that smoking was bad for the smoker. Many smokers did stop smoking for that reason, others continued.  During the second phase, activists attempted to make smokers feel guilty about their enjoyment of smoking. Again, however, many individuals continued to smoke.  The third and current phase, according to Daynard, marked a more fundamental strategic shift.  In this phase, the movement began to focus on the "development" of "evidence" about ETS.  If people can be persuaded to believe that tobacco smoke is harmful to nonsmokers, it becomes easier to persuade both private entities and government authorities to restrict or ban smoking.  

There are numerous aspects which are affected either directly or indirectly as a result of EPA’s classification of ETS as a "Group A" carcinogen. These aspects include the issues which infringe on the citizen’s fundamental right to freedom of choice, legal issues, issues which have a bearing on how scientific data is analyzed by vested governmental agencies, nonprofits, socio-economic issues which have a bearing on the economy, jobs, health care, etc.

America continually believes that Democracy is the best form of government and as such negotiates with the rest of the world to follow in their footsteps.  Unfortunately America is imploding and going backwards into isolationism and prohibition.  Special interest groups, in this instance the primary special interest group is Big Pharma, have taken over the government all in the name of “profit and greed.  There power and influence extends globally all in the name of progress, freedom and ‘saving the children’.

America fought against the Taliban which prohibited men from growing long beards, made women wear a burkha, closed down schools other than fundamentalist and religious schools, they closed down theatres. The American government has insisted that all the dictates that Taliban enforced in Afghanistan were against the basic human rights. Then how does making us pay a sin tax for exercising our right to freedom of choice by choosing to smoke a legal product, does not amount to violation of our basic human rights. America is a free society; should its people be forced to follow such a draconian dictate?

Epitome Consulting & Information Technology Private Limited (EPITOME) is a Knowledge Based Outsourcing Company, which has reviewed and evaluated the various authentic reports, research findings, legal positions, socio-economic issues and the position taken by other Developed Countries in this matter. Epitome has compiled the findings of their research in this document.

ENVIRONMENTAL TOBACCO SMOKE (ETS)

Background & Meaning

Most of the studies about ETS demonize smokers and try to prove that ETS poses a grave danger to the society that needs to be eradicated. However, these so called studies have some serious fallacies, which if taken into account, will indicate that the exaggerated claims being made by the authors of these studies are misleading and not conclusive as claimed.

ETS is the combination of two forms of smoke from burning tobacco products:

Sidestream Smoke (SS), or smoke emitted between the puffs of a burning cigarette, pipe, or cigar, and

Mainstream Smoke (MS), or the smoke exhaled by the smoker<![if !supportFootnotes]>[1]<![endif]>.

The exposure of nonsmokers to ETS is referred to as involuntary smoking, passive smoking, or second hand smoke.

Bias in Studies against ETS

Some of the flaws in studies relating to ETS pertain to inappropriate methodology, inconsistency, statistically insignificant, biased unscientific selection & use of data and ignoring confounding error. Moreover, a number of these high profile studies have been discredited by authentic review and research. Some of the issues regarding ETS which have been scientifically refuted are summarized below: 

1. The claims of exposure are not authentic. Actual exposure is not measured. The studies on ETS actually measure nothing, but rely on the vague and grossly imprecise recall of queried subjects who attempt to evoke in a few minutes their individual lifetime memories of passive smoking exposure by phone interviews.

2. Errors in individual exposure recollection, most likely large, are unknown, and are unknowable. Subjects who have developed the disease appear to recall the exposure easily than those who have not developed such a disease, even though exposed to secondhand smoke for most of their lifetime. Accuracy of measuring exposure by recall method is highly questionable and such errors are impossible to calculate.

3. Digitized numerical claims of exposure based on imprecise memories are, therefore, incongruous and impermissible. Their numerical representation gives an impression of reliability and precision that is demonstrably false and misleading.

4. A recall bias has been demonstrated to be larger in subjects with lung cancer or cardiovascular disease, who are more likely to amplify their recall of passive smoking exposure as a justification for their disease.

5. A misclassification bias has been demonstrated to be larger in subjects with lung cancer or cardio vascular disease because they are more likely than healthy subjects to classify themselves as nonsmokers. After diagnosis there are more chances that subjects with lung cancer or cardiovascular diseases quit smoking. But when interviewed they (people who quit smoking after being smokers) tend to classify themselves as nonsmokers exposed to ETS. The probability that patients classifying themselves as nonsmokers are more prevalent when compared to healthy subjects. This introduces a bias of misclassification of smokers as nonsmokers – because some of the nonsmokers have actually been smokers at some point in time.

6. A mismatch error of cases and controls is inevitable because the groups compared are not homogeneous and differ in many characteristics other than recall of passive smoking exposure.

7. Confounding errors by definition are likely to be more prevalent among lung cancer and cardiovascular disease cases. Confounders are all other known and unknown potential causes of lung cancer and cardio vascular disease that interfere with the specific attribution of risk to passive smoking.

8. Probable errors of disease diagnosis are seldom addressed by passive smoking studies.

9. Publication errors have been found to favor the publication of studies that claim associations of increased risk.

10. Statistical errors of sampling and statistical significance are grossly inconsistent among passive smoking studies owing to the feeble differentials of exposure recall and the small number of subjects in each study. A majority of studies have not reached statistical significance. In any event, significant or not, the statistical indices of all passive smoking studies are illusory because they are derived from the grossly illusory and misleading numerical renderings of vague individual exposure recalls.

11. Results from different studies have not been consistent and reproducible. For example a recent study of over a million women in England could not find any causal effects of ETS and breast cancer.  A similar study but much smaller study was done in the USA which claimed a causal relationship between ETS and breast cancer<![if !supportFootnotes]>[2]<![endif]>.

12. Epidemiologic criteria of causal inference (the Hill criteria) are not met by passive smoking studies.

13. Attempts to summarize the results of different studies by meta-analysis statistical techniques are illegitimate. Results are obtained by pooling heterogeneous and selected studies, giving arbitrary preferential weights to certain studies, which, in any case, are handicapped by the sources of error listed above<![if !supportFootnotes]>[3]<![endif]>.

REPORT OF THE SURGEON GENERAL - RICHARD H. CARMONA - 2006

Overview of Surgeon General’s Report 2006 (SGR):

The Surgeon General’s report of 2006 focused on “The Health Consequences of Involuntary Exposure to Tobacco Smoke”. The topic of involuntary exposure of nonsmokers to second hand smoke was first published in Surgeon General Jesse Steinfields 1972 report, then again in 1986, 2004 and 2006. Second hand smoke is described similar to the mainstream smoke inhaled by the smoker in that it is a complex mixture containing many chemicals, many of which are known carcinogens. The SG’s Report stated that exposure to second hand smoke has claimed to cause excess deaths in the US population from lung cancer & cardiac related illness. His report documents that, exposure to second hand smoke still remains to be an alarming public health hazard. however, it has not been proved scientifically and has caused many scientists to disagree with his conclusions. 

This report probes into the toxicology of second hand smoke, assessment and prevalence of exposure to second hand smoke, reproductive and developmental health effects, respiratory effects of exposure to second hand smoke in children & adults, cancer among adults, heart diseases, stroke and control of second hand smoke exposure 

The SGR has not accurately compiled the data relevant and significant for any decision on ETS. It is apparent that the conclusion of the report was first established and the facts were collected to justify the pre-decided conclusion. 

Scientific & Statistical Fallacies in the Report 

Smoking has been considered as etiology for various diseases such as heart diseases, respiratory diseases, lung cancer, developmental defects, sudden infant death syndrome (SIDS) etc. Carmona’s SGR addresses the effect of involuntary exposure to tobacco smoke and various health consequences. The report has been organized into 10 chapters and deals with toxicology of second hand smoke, assessment of exposure, prevalence, various ill-effects on health and control of exposure. 

Epitome has found that the SGR has relied as its basis, many of the studies which are observational studies. Experimental data considered in the SGR report is less than what is scientifically acceptable.

Chapter 1 is the introductory chapter and discusses the concepts of causation and also summarizes the major conclusions of the report.

Chapter 2 on the toxicology of ETS shows that more than 50 carcinogens have been identified in sidestream ETS. The urinary level of metabolites of carcinogens links the exposure to ETS with an increased risk for lung cancer.

However, causation of lung cancer from ETS evidence is available only from animal studies and the mechanism is based on the data obtained from active smokers. Most of the evidence is from invitro or animal studies that deal with short-term effect. Therefore there is no conclusive evidence.  His study violates Hill’s criteria of mixing several different types of studies into one meta analysis.

Chapter 3 provides perspective on key factors that determine exposures of people to ETS in indoor environments, including building designs & operations, atmospheric markers and biomarkers of exposure to ETS. Presently cotinine, the primary metabolite remains the biomarker of choice for assessing the ETS exposure. Smoking increases indoor particle concentration.

However, exposure is measured in terms of urine cotinine and nicotine levels. Many studies measure exposure to secondhand smoke by measuring cotinine and nicotine levels in urine. Urinary levels of carcinogens (cancer causing molecules) have not been detected consistently. To estimate cancer causing effect of secondhand smoke it would be better to measure the level of cancer causing molecules in urine. Measurement of cancer causing molecules has been estimated only in a few studies which concluded no significant rise among nonsmokers exposure to secondhand smoke. Even in active smokers the elevation in cancer causing molecules has been significant only in a few studies. There are significantly elevated levels in minority of active smokers and very few non smokers.

Chapter 4 summarizes findings that focus on nicotine measurements in air and cotinine measurements in biologic materials. The extent of exposure as indicated by evidence varies across the country. Homes & work places are the predominant locations for exposure to ETS.

The sample size considered is very small ranging from 1 to 20. The sample size calculation should have been based on population size and the prevalence of smoking. For example at least 190 samples with a prevalence of 44% exposure in restaurants, only one study considers 194 samples (Guerin et. al, 1992) to record the prevalence.

Chapter 5 reviews the ill effects of ETS on the process of reproduction, in infants, and on child development, the evidence is inadequate to infer that ETS causes infertility, spontaneous abortions, infant deaths, preterm delivery, congenital malformations, behavioral development, growth retardation, and childhood cancer.

Classification is this chapter has no established criteria. Some authors consider a person who has smoked less than 400 cigarettes in life their life time as a non-smoker and a few authors consider people who have quit smoking 10 years ago as nonsmokers.

The risk estimated varies, e.g. odds ratio that determines the strength of association of secondhand smoke and preterm birth varies from 0.54 to 1.86 after adjusting for various other risk factors for preterm birth. Anything under 2 is considered insignificant.

Chapter 6 reviews the effects of ETS on lungs. The evidence suggests that lower respiratory illness in infants & children is less in ETS exposed children, but that it.causes middle-ear disease, asthma and adverse effects on lung function.

Evidence gathered by the SGR is based on hospital studies. Such case-control studies have a very small sample size. Many studies do not show dose-response relationship which is very important. Adjustment of confounders reduces the risk which means when controlled for other risk factors for the same disease the risk from secondhand smoke is insignificant.

Chapter 7 summarizes the evidence on linking secondhand smoke with cancer of the lung, breast, nasal sinuses & cervix. The pooled evidence indicates 20%-30% increase in the risk of lung cancer but not any other type of cancer. 1.0 represents no risk, a 30% increase is 1.30 anything under 2 is considered statistically insignificant.

The evidence is inadequate to prove that ETS is carcinogenic i.e. can cause cancer, as case control studies show increased risk. 5 out of 8 studies (quoted in SGR page no. 437) conducted in the United States shows reduced or no risk for lung cancer. Other studies show a very marginal increase in risk. Stockwell et. al. (1992) shows high risk for siblings and mother wherein data on control subjects are not reported therefore half the report was missing and unreported.

Chapter 8 on cardiovascular effects documents that there is increased risk of mortality & morbidity among both men & women due to heart disease from exposure to ETS.

Heart disease can be caused by various other factors. When other factors like age, social status, diet, exercise, weight, heredity or a history of previous heart disease controlled. Men showed only a marginal increase in risk. (Page no. 515, SGR). Evidence is inadequate to support an association with stroke.

Chapter 9 examines the respiratory effects in adults.

The study reports no significant increase in risk for adult onset asthma. The scientific evidence is not sufficient to prove that asthma in adulthood is caused by exposure to secondhand smoke. It is also not sufficient to prove that secondhand smoke exposure worsen asthma control.

Chapter 10 summarizing on the control of ETS exposure suggests that only a total ban of indoor smoking is the only way to eliminate exposure.

Disease-wise review of scientific evidence supporting ETS as the etiology:

Coronary heart diseases and second hand smoke

Various risk factors that contribute to the development of heart diseases:

Age
Gender
Hypertension
Atherosclerosis
Blood clotting tendency
Hormones
Personality and emotional Stress
Diabetes/ carbohydrate intolerance
Diet: salt
Total calories
Fat
Vitamin intake
Hyperlipidemia
Physical activity
Heredity
Social pressures
Obesity
Smoking

Smoking is only one of the many risk factors for heart disease. The SGR only reviewed the studies showing positive association between heart disease and second hand smoke. The SGR concluded that evidence is sufficient to infer causal relationship between exposure to ETS and increased risk of heart disease morbidity and mortality among both men and women. Specific research studies and reports not included nor considered in SGR:

CPS     I
CPS     II
LEVOIS et al
MONICA conducted by WHO, 2001
Gio Batta Gori, 1995
ARIC study – (Atherosclerosis Risk in Communities)
Enstrom and Kabat Study

The above studies on secondhand smoke exposure and heart disease used the proper methodology to meet the objectives of the study. Statistical methods are used appropriately. Further these studies cover a large population followed over decades if these studies were included in the SGR report it would have lowered the risk factor to be statistically insignificant.

Analysis of scientific aspects:

The SGR included only those studies that showed positive association between heart disease and ETS. The risk for heart disease from ETS is similar to active smoking. This evokes doubt, as ETS is not similar to active smoking. The dynamic nature of ETS shows that it gets diluted and varies with rate of production, confining area and ventilation.

The articles considered for evidence synthesis have a draw back that major risk factors are not controlled. A well known answer that is given to substantiate that position is that- it is impossible to control all the confounders. Most of the studies consider women who are married to smokers might show a high correlation. There is a puzzling paradox in the fact that no decline in the incidence of heart attacks was observed in the ARIC sample, during a period when the prevalence of causal risk factors was reduced. Dose-response relationship is not confirmed. Presently there is evidence that bacterial infections like Helicobacter pylori have been shown to be risk factor for heart disease. It is more common in lower socioeconomic strata.

There is need for revalidation of the results and conclusion by considering the omitted studies that do not show association between ETS and heart diseases.

Stroke and second hand tobacco smoke:

Summary of the context as per SGR:

The evidence is suggestive but not sufficient to infer a causal relationship between exposure to ETS and an increased risk of stroke. The unmanifested (sub clinical) vascular diseases association with ETS has insufficient evidence and also does not infer causal relationship.

The following issues and questions remain un-clarified and un-answered:

1. Out of the only 6 studies that are considered, only one study covers a large sample of subjects.

2. There has been a misclassification of ex-smokers as nonsmokers.

3. Are the results consistent with the known cardiovascular pathology of cigarette smoking?

4. Are the results consistent with biochemistry and physiology of platelets?

5. Have the researchers take into account the demographic, behavioral and socioeconomic literature on smokers and their families?

6. No data is present that is suggestive of ETS as a causative factor for stroke.

The following additional issues and questions remain unexplained and unanswered in the SGR:

Issues & Questions:

1. How can anybody recall the exposure to smoke in childhood?

2. Indirect way of measuring the exposure level: Using the level of cotinine and nicotine in body fluids as a marker for amount of exposure. There can be exposure even from the diet as a major source that has been underestimated in the report.

3. Very few studies on cancer measure the biomarkers for cancer.

4. Exposure measurement in most of the studies is done using questionnaires that are converted to real numbers.

5. How can subjective measurements be converted to real numbers?

6. Even though the questionnaire is the main means of measurement the validity of such measurements is questionable.

7. Sample selection in the studies varies widely. Studies considering hospital population with controls as in neighborhood populations induce bias in selection as the characteristics of study and controls participants greatly differ e.g. case control studies on breast cancer (Page No. 454-458, SGR).

8. Studies with misclassification: A few investigators have included people who had quit smoking a few years back and nonsmokers as smokers exposed to ETS. Obviously there will be greater response among the nonsmokers. E.g. selective recall of exposures by nonsmokers who have developed the disease. (Page No. 513, SGR).

9. Many of the studies do not appropriately controlled for the other risk factors that can cause the same disease.

10. Studies showing higher risk for smoke related diseases consider women as study subjects who show higher response. (Page No. 511, SGR)

11. Interviewers are not blinded for cases or controls. Their recordings may be biased and record higher exposures among the cases.

12. Deceptive selection of studies considered for the synthesis of SGR: The studies which show positive relation between involuntary exposures to tobacco smoke are selected in compilation of the report. The studies even though well conducted controlling for various risk factors, if they shown a negative association or absence of association they are not used during the synthesis of evidence. This questions the authenticity of the report which has been compiled intelligently to bring forth only negative consequences of exposure. Apparent exclusions include, studies like CPS I, CPS II, MONICA Study by WHO, when conducting meta-analysis. These are major studies conducted for a long period of time but show no association and the least risk.

13. Failure to regard the dynamic nature of tobacco smoke: In the toxicology section an attempt has been made to measure the toxic products released from the tobacco smoke and its effects on animals and cells. But these studies measured only short term effects. The diseases claimed to be caused by tobacco smoke are chronic in nature, which require long term exposure to any potential toxins. The toxic products and cancer causing molecules present in subjects exposed to second hand smoke is shown to be different from that of active smokers by R. Nilsson. This shows the presence of other carcinogens not related to ETS to which the subjects could have been exposed to.

14. The smoke released after smoking or from the burning end of the cigarette diffuses and gets diluted to more than 1000 times the original strength.

15. Paradoxy in risk estimation: The risk estimated for development of a disease from exposure to ETS is more than or similar to the risk from active smoking.

Alleged association between ETS and various diseases: how true is the evidence in the report in reality?

1. Heart diseases: The association is weaker than what is quoted in many of the studies.

2. Stroke: The evidence is insufficient. Only six studies associating ETS and stroke are present in whole scientific literature.

3. Unmanifested vascular diseases: Only short term effects on cells are studied. Why ignore the recuperating power of the cells? The long term effects are not quoted in the report.

4. Lung cancer:  Many studies have no association contrary to what is reported by Surgeon General. This is shown by many investigators but their literature is not included in the SGR report. E.g.: Enstrom and Kabat, WHO multi-center study, ORNL study of 16 cities, and OSHA’s studies on ETS in smoky bars and restaurants.

5. Developmental defects mainly due to ETS are inconclusive.

6. Sudden Infant Death Syndrome (SIDS):  The major risk factor as per American Academy of Pediatrics is sleeping posture. There has been drastic reduction in the incidence of SIDS after the sleeping posture recommendation was passed.

7. Breast cancer: Studies are insufficient to shown direct positive association.

8. Acute respiratory diseases: Some studies show an association but to lesser extent than what is quoted.

Advantages of exposure to smoke as per scientifically proven studies:

1. Lesser prevalence of Parkinsonism among smokers.
2. Lesser incidence of Hypersensitivity and asthma among children of smokers.
3. Lesser risk of breast cancer.

References used in the Scientific & Statistical analysis

www.plosmedicine.org : Essay
1. John P. A. Ioannidis. Why Most Published Research Findings Are False. PLoS Medicine 2005; 2(8):e124:0696-701
2. James E Enstrom. Defending legitimate epidemiologic research: combating Lysenko

Pseudoscience. Epidemiologic Perspectives & Innovations 2007, 4:11 

3. James E Enstrom, Geoffrey C Kabat. Environmental tobacco smoke and tobacco related mortality in a prospective study of Californians, 1960-98. BMJ 2003; VOLUME 326.

4. GIO BATTA GORI. Dimensional errors of metaphorical measurements. Can they be resolved? International journal of Epidemiology.2006 

5. Men and Heart disease fact sheet. CDC 2008.

 6. The Changing Concept of Sudden Infant Death Syndrome: Diagnostic

Coding Shifts, Controversies Regarding the Sleeping Environment, and

New Variables to Consider in Reducing Risk further reducing SIDS risk. Pediatrics 2005; 116:1245–1255.

 7. IARC Technical Report No.33. Questionnaire on occasional smoking and environmental tobacco smoking.

 8. David J. Cohen, Michel Doucet, Donald E. Cutlip, Kalon K.L. Ho, Jeffrey J. Popma and Richard E. Kuntz. Intervention: Another Smoker’s Paradox?

Impact of Smoking on Clinical and Angiographic Restenosis After Percutaneous Coronary. Circulation 2001; 104; 773-778.

www.pubmed.com

Impact of the Surgeon General’s Report 2006 (SGR)

The SG Report has been used as a basis for many debates, discussions in public forums and legislative actions by local and state government. The immediate impact of this report was that in a number of states, smoking was banned immediately from public buildings bars, pubs & restaurants. The states which already had a ban went further and banned smoking outdoors. Smoking has been banned in parks and recreational areas, 25 feet from a doorway, cars, public housing, etc. in certain states in the U.S. which can be termed nothing but, a knee-jerk reaction that would benefit nobody but the big Pharmaceutical companies and their friends in the political circles.

Pharmaceutical companies are continuing to lobby for smoking bans and are funding organizations & groups to conduct tailored studies so that they could demonize smoking and these companies could in turn come out with ‘wonder drugs’ to cure smoking ‘the disease’ and its harmful effects. This report is a huge success for these companies and a severe jolt to the rights of citizens in general and to the rights of smokers, tobacco farmers, workers in tobacco industry, owners and workers of restaurants/pubs/bars, in particular.

Everybody has been harping about the harmful effects of smoking & ETS and the rights of nonsmokers but nobody seems to be bothered about the rights of the people who are enjoying a perfectly legal product! Nor the smoking/tobacco industry or the people related to the hospitality industry, nobody seems to be bothered about the grave losses that these industries have been suffering and will continue to suffer in near future. No thought or compassion for those who have lost their livelihood due to these bans. Free enterprise, freedom of choice, has been lost and justified under the slogan of “save the children”.

Draconian laws have been passed all due to one controversial report, a report that is marred with flaws and cannot be relied upon as being authentic. A report which became controversial when the Surgeon General claimed to the press & public that ‘"even brief exposure to secondhand smoke has immediate adverse effects" by increasing the odds of developing heart disease and lung cancer’<![if !supportFootnotes]>[4]<![endif]>, a statement, not supported and denied by the scientists who reviewed & cleared the report.

LEGAL ISSUES AS REGARDS THE BAN ON SMOKING

Federal Constitution

Violation of Fundamental First Amendment Rights

Bans on smoking violate the fundamental rights to freedom of association, freedom of assembly, free speech and freedom to travel.

The enactment of Laws prohibited citizens from enjoying the pleasures and benefits of privately owned places that are open to the public, particularly those places where they previously engaged in either social or business discourse while enjoying the right to smoke. This has substantially impinged public rights to freedom of assembly, freedom of association, and free speech, and further abridged their customary privileges as equal citizens to partake of the public life.

Laws banning smoking constitute an unconstitutional, unwarranted and discriminatory rollback of long-cherished rights and privileges, the very symbols of American democratic principles.

Violation of Equal Protection Clause of the Fourteenth Amendment

a)      Equal protection clause

Laws banning smoking expressly and unequivocally provides unequal and adverse treatment under the law of smokers, as compared to nonsmokers, which significantly impinge the former’s exercise of their fundamental First and Fourteenth Amendment rights to free speech, freedom of assembly, freedom of association and freedom to travel.

b)      Privileges or Immunities clause

Bans on smoking improperly abridge the privileges and immunities of citizens of the United States in violation of the Privileges or Immunities Clause of the Fourteenth Amendment to the United States.

The Fourteenth Amendment privileges sought to protect the customary rights to enter into contracts and to acquire and maintain property free of government interference. Thus, bans on smoking abridge the rights of citizens to enter into contracts with owners of private property which is open to the public who of their own volition wish to permit smoking. Such contracts have been made - either explicitly or implicitly - and have long been in effect; and, except for the intrusions of the state and municipal laws, would have remained in effect to the benefit of all willing parties to the contract. Ban’s on smoking improperly impinge on the rights of citizens to enter into contracts, to freely assemble and freely associate, and abridge their rights and the rights of others to travel in violation of the Privileges or Immunities Clause of the Fourteenth Amendment to the United States Constitution. (The argument is taken from the court case “NYC C.L.A.S.H. vs. New York City, 315 F. Supp. 2d 461”)

State of Virginia Constitution

Article I - Bill of Rights

Section 1. Equality and rights of men.

That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Section 3. Government instituted for common benefit.

That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

Section 11. Due process of law; obligation of contracts; taking of private property; prohibited discrimination; jury trial in civil cases.

That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts, nor any law whereby private property shall be taken or damaged for public uses, without just compensation, the term "public uses" to be defined by the General Assembly; and that the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin shall not be abridged, except that the mere separation of the sexes shall not be considered discrimination. That in controversies respecting property, and in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred. The General Assembly may limit the number of jurors for civil cases in courts of record to not less than five.

A look at the Federal and the State Constitution makes it very clear that this ban on smoking clearly infringes on property rights.

Whereas outdoor air is a common property, the building owner in essence, owns the air inside a building.  That means the building owner, who is in a position to control the amount of smoking that is permitted in the building, has an incentive to permit the right amount of smoking, that is, the amount that maximizes the welfare of individuals within the building. By imposing smoking ban in restaurants and bars the rights of a restaurateur are infringed as he is not able to cater the guests as per their preferences who come to enjoy the freedoms which are under the control of the restaurant owner. A restaurant owner owns the air inside the restaurant and has every right to control the same according to his wishes. By imposing the smoking bans a restaurant owner looses the rights over the air inside besides being penalized with financial implications.

Because customers select establishments based on the benefits and costs, they will avoid establishments with smoking policies they do not like.  Owners of public places thus bear the full costs and benefits of their decisions regarding smoking or no smoking in their establishments.

Court rulings

A lot of commotion has been raised against smoking and its ill effects and how & why it should be banned completely from all public places. A number of cases have been filed in the past on this issue and many are pending in different courts all over US. A few of the recent judgments have been discussed below so as to arrive at a rationale as to why a blanket ban on smoking at all public places is not feasible.

PHILIP WILEY CASE:

COURT OF APPEALS OF INDIANA, FIRST DISTRICT 1994

642 N.E. 2d 538; 1994 Ind. App. Lexis 1600

Parties:  Brown & Williamson Tobacco Corp., R.J. Reynolds Tobacco Co., Philip Morris Inc., The American Tobacco Co., Lorillard Tobacco Co., and the Liggett Group Inc. Also named in the suit are the Tobacco Institute and the Council for Tobacco Research v. Philip Wiley

Summary: Mrs. Wiley, 56, died a month after she was diagnosed with lung cancer. Her husband says she inhaled smoke constantly during her 17 years as a nurse in the psychiatric ward of the Veteran's Administration hospital. Philip Wiley was seeking at least $13.3 million in compensatory damages from six tobacco companies and two industry groups for the 1991 death of his wife, Mildred.

The jury of six nonsmokers said that cigarettes were not a defective product and that their makers were not negligent for failing to tell people that secondhand cigarette smoke was dangerous.

PANKOS DINER CASE:

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICGT OF NEW YORK 2003

321 F. Supp. 2d 520; 2003 US Dist. Lexis 25821

Parties: Pankos Diner Corp., K & S Caterers., Sean & Sean, Inc., Stardust Diners, Inc., Garden City Hotel, Inc., JKG’s Inc., v. Nassau County Legislature, Judith Jacobs, David M. Ackman

Summary: The 2002 Smoking Law Section 2 provides that the intent of the legislature was to strike a balance between the health needs of all non-smoking individuals, the rights of smokers and the imposition of regulatory burden on business. This act provided for the complete ban on smoking in all enclosed facilities within a place of employment except where the place derived at least 90% of its revenue from tobacco retail sales. The act sought to ban smoking in all public areas The plaintiffs alleged that the prohibition of smoking in public places violated the intention behind the statute because they expended substantial sums on the purchase and installation of ventilation and filtration systems and the construction of smoking rooms in reliance on and in order to comply with the 1998 Smoking Law wherein the Nassau County Local Law prohibited smoking in various public places, including restaurants, bars, taverns and hotels. The plaintiffs sought a preliminary injunction to this effect.

The court held on the grounds of possible irreparable harm that may be caused to the plaintiff, and for establishing clear and substantial likelihood of success on the merits, the court granted the preliminary injunction.

FLUE CURED TOBBACCO CORP et al CASE:

FLUE CURED TOBBACCO CORP et al;

Vs

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY et al; 1998

4 F. Supp. 2d 435; 1998 US Dist. LEXIS 10986

Parties: Flue Cured Tobacco Corp et al; United States Environmental Protection Agency et al;

Summary:  In 1986, Congress passed the Radon Gas and Indoor Air Quality Research Act (hereinafter ‘The Radon Act’). The Administrator of the Environmental Protection Agency (hereinafter ‘EPA’) was to implement a research program on indoor air quality and to assess appropriate federal government actions to reduce the health risk associated with indoor air quality programs. The mandate of the Congress prohibited the Administration from carrying out any regulatory programs. The EPA report studies the health effects of Environment Tobacco Smoke (hereinafter ‘ETS’) and the increased risk of lung cancer in healthy non smokers.

The plaintiff’s allegation include that the Defendants ‘cherry-picked’ data to arrive at a desired conclusion, and in the process ignored other significant statistical data. Additionally, there was a substantial regulatory impact that has had a direct impact on the business of the plaintiff.

The Court held that the Agency action was definitive as the report and classification had a regulatory effect, albeit an indirect one due to the U.S. Postmaster's order of a nationwide ban on smoking in postal facilities and the introduction in Congress of legislation that would prohibit smoking in all buildings owned or leased by federal agencies. The court also took judicial notice of the fact that the General Services Administration ("GSA") prohibited the use of tobacco products in its Interagency Fleet Management System motor vehicles. Also, Gallins Vending Company had been asked to remove its cigarette machines from various premises.

The Court while deciding the matter considered EPA's complete disregard of statutory procedure and the potential waste of significant executive branch resources dealing with health and safety. The court finds persuasive the rationale underlying the District of Columbia's remedy in Marshal. The Court held that in addition to enforcing Congress' directive; the remedy should ameliorate the harm caused, or being caused, by EPA's procedural violation.

Thus, deciding the case in plaintiff’s favor, the Court held EPA's conduct transgressed the general meaning of the Radon Research Act's operative language. Further, to the extent EPA's conduct in this matter entailed interstitial construction of the Act, the court affords no deference to EPA. Congress did not delegate rule making or regulatory authority to EPA under the Act. EPA's conduct of the ETS Risk Assessment frustrated the clear Congressional policy underlying the Radon Research Act.

SURGEON GENERAL’S REPORT AND SOCIO-ECONOMIC ISSUES

Shaping Attitudes toward Smoking

Many legal scholars have the opinion that the Law indirectly controls the conduct of the citizens by shaping social norms and individual preferences. According to these scholars, imposing bans affect behavior, thus changing the existing social norms. The smoking ban is one of their favorite success stories. Those who favor bans on tobacco assume that the bans will lead to the welfare of the society, even though they cannot substantiate this conclusion either by science or by economic analysis. However, there is a bigger question - whether a ban on tobacco, a legal product, will enhance the social welfare or damage the very social fiber of this country and others?

Therefore, it is not clear whether sweeping smoking bans that are highly intrusive actually reduce the incidence of smoking in the long run.

People generally tend to get attracted towards things which are labeled as harmful or dangerous and the consumption or usage of which is prohibited by either society or by law.  Professor Lawrence Lessig, ‘Fellow’ with Academy of Arts and Science, and The World Academy of Art and Science; San Francisco, CA and Monthly Columnist with Wired Magazine explains, if a commodity is prohibited, then the individual, knowing all the relevant facts, may actually consume more of a commodity as a rebellious act.  Therefore, sweeping smoking bans may actually increase the incidence of smoking.

Increase in Crime Rate

A bouncer at a Manhattan, NY nightclub was stabbed to death after he tried to enforce New York's tough new anti-smoking law. Police said the bouncer was stabbed on April 13, 2003 in the ‘Guernica’ club on the Lower East Side after asking one of two brothers in the club to put out a cigarette. After an argument with the men, the bouncer tried to eject them and was stabbed in the stomach and 6-foot-6 Dana "Shazam" Blake, 32, died of his injuries<![if !supportFootnotes]>[5]<![endif]>.

Police in Newfoundland and Labrador say smugglers are increasingly turning to an old standby: tobacco. Police have confiscated more than 3,000 bags and 400 cartons of tobacco over the last year. More than 600 bags have been seized in the St. John's neighborhood of Kilbride this week alone. RCMP has 71 investigations underway at the moment, said Sgt. Pete McKay, who said the sale of cheap, illegal tobacco is not a victimless crime. "Our concern is when people are purchasing this they don't realize they're supporting organized crime, they're affecting the revenue base for the government and not to mention the potential hazard of using an untested product," McKay said.

Some of the tobacco seized recently has had insects in it, and some samples were moldy, McKay said. A bag of contraband tobacco sells for about $40, and is enough to make enough cigarettes to fill a carton, which would retail for between $85 and $100. The fine for possessing a bag of contraband tobacco is more than $300. Gambo resident Thomas Herber was fined $15,000 in January for contraband. McKay said most of the tobacco originates from Ontario and Quebec<![if !supportFootnotes]>[6]<![endif]>.

Effects of  Smoking Bans on Employment & Revenue

Taxation is one of the major source of income a government generates and the funds provided by taxation have been used by states and their functional equivalents throughout history to carry out many functions, which includes the enforcement of law and public order, protection of property, economic infrastructure (roads, legal tender, enforcement of contracts, etc.), public works, social engineering, and the operation of government itself. The government also uses taxes to fund welfare and public services, which can include education systems, health care systems, and pensions for the elderly, unemployment benefits, and public transportation.

The tobacco industry and sales of tobacco products make a significant contribution to the income of the governments through excise tax, state tax and the Master Tobacco Settlement. The advocates of smoking bans claim that banning smoking in the work place, enclosed public places including pubs and restaurants would not have any negative effect on trade and employment. However, studies and reports by major economists and economic institutions have proved that the ban on smoking does indeed have a negative impact on the employment and revenue from the hospitality industry especially from bars, restaurants and casinos. A study conducted by Dr. Jane Granville of the Congressional Research Services while referring to the data on federal tax revenues from Alcohol and Tobacco Tax and Trade Bureau, Cumulative Summary, Fourth Quarter FY2006, states that tobacco tax receipts in the United States include $7.8 billion in federal tax, $13.6 billion in state and local taxes, and $7.5 billion payments from the Master Tobacco Settlement. Further as a percentage of sales revenue, the federal, state and local, and tobacco settlement payments are respectively 8.8%, 15.5%, and 8.5%, for a total of 32.5%.

New York

A study prepared for the New York Nightlife Association and Empire State Restaurants and Tavern Association in the year 2004<![if !supportFootnotes]>[7]<![endif]> shows that, a result of statewide smoking ban in the year 2003, the bar and taverns industry suffered following losses as a direct result:

• 2000 jobs (10.7% of actual employment)
• $28.5 million in wages and salary payments
• $37 million in gross state product

 In addition the study showed indirect losses to other businesses which supply and provide services to the New York’s bar and tavern industry: 

• 650 jobs
• $21.5 million in labor earnings
• $34.5 million in gross state product

Using data from the New York State, Department of Labor, the average wage per employed worker in 2003 was approximately $14,175 per year. Combining the job loss with the average annual worker compensation estimate, lost wage and salary payments amounted to $28.5 million in 2003. These 2,000 workers would have added nearly $37 million to constant-dollar Gross State Product (output) in New York State. 

In addition to the direct economic impacts, there are indirect and induced changes to the local economic landscape. A system of regional input/output multipliers was used to assess these total changes. These effects are:  

1)      the change in output for a given industry needed to meet the initial dollar change in spending by final users (customer purchases at bars/taverns);

2)      changes in the output of all industries to meet the direct requirements of a given industry;

3)      changes in the output of all industries to meet the changes in production in (2) above; and

4)      the regional production required to meet changes in demand by final users created by higher local income generated by the first three effects.

In December of 2003, eight months after New York City’s smoking ban went into effect; International Communications Research (ICR) released an impact study claiming that:

• One-third of New York City bars, hotels and nightclubs have reduced staffing by an average of 16 percent since the ban took effect, and three-fourths of them cited the ban as the cause.
• Three-fourths of all affected bars and restaurants have experienced a decline in patronage averaging 30 percent, and almost 80 percent of businesses claim to have been negatively affected by the bans.
• Bars and nightclubs that do not offer food reported a reduction in alcohol sales approaching 20 percent.

Columbia, Missouri

In January 2007, a smoke-free ordinance, banning smoking in all bars, restaurants and workplaces took effect in the Columbia, Missouri. The Federal Reserve Bank of St. Louis prepared a paper analyzing the data for sales tax collections at eating and drinking establishments for the period January 2001 through December 2007<![if !supportFootnotes]>[8]<![endif]>. The findings suggest that the smoking ban has been associated with statistically significant losses in sales tax revenues at Columbia’s bars and restaurants. Point-estimates indicate an average decline of approximately 3½ to 4 percent. The examination of data reveals differences among categories of business. Those that serve only food show no statistically significant effects of the smoking ban. Those that serve food and alcohol, or alcohol only, show significant losses with point estimates in the range of 6½ to 11 percent (with the larger losses associated with bars).

Data from the city of Columbia show a distinct decline in the growth rate of sales tax receipts at bars and restaurants. The total for 2007 was only 0.6% above 2006. Over the previous four years, revenues had risen at an average rate of 7.4 percent. In 2006 the year preceding the implementation of the smoking ban revenues were 8.1 percent higher than the previous year. (See Figure 1)

The dramatic slowdown in sales tax revenues from dining establishments after the smoking ban was implemented is consistent with the anecdotal reports of revenue losses at Columbia bars and restaurants.

<![if !vml]><![endif]>

Figure 1

In addition to sales tax data for the total bar and restaurant sector of Columbia the study also discussed the sales tax revenues for three subsets of the total, along with listings of the specific businesses that fall within each category<![if !supportFootnotes]>[9]<![endif]>. The designations correspond roughly to Standard Industry Classification (SIC) codes, these the three categories are distinguished by the types of businesses that are prevalent on each list:

• Group 1 (SIC 5811): “Eating Places Only” (fast food, take out restaurants, coffee houses and many common  sit down restaurants)
• Group 2 (SIC 5812): “Eating and Drinking Places” (restaurants that might be commonly categorized as “bar and grill,” as well as many common sit-down restaurants)
• Group 3 (SIC 5813): “Drinking Places—Alcoholic Beverages” (mostly those establishments that would be commonly classified as “bars.”)

Figure 2, shows the data series (seasonally adjusted and not seasonally adjusted) for each of the three groups. Group 2 is the largest of the three, accounting for approximately 61 percent of the total over the sample period. Group 1 account for just over one-third (34 percent), while Group 3 accounts for only about 5 percent. Over time, the share of total tax revenues for Group 1 establishments has been rising slightly (reaching 35 percent in 2007) while the share from Group 3 has been falling (4 percent in 2007).

The results in the report indicate that there have been statistically significant losses to bar and restaurant sales tax revenues after banning smoking. The effects of the ban on smoking vary for different types of businesses. Restaurants that serve primarily food only show no significant effect, while bars and restaurants with bars show significantly greater losses. For the latter categories, losses are estimated to be in the range of 6½ to 11 percent. Many businesses in this category are likely to have been unaffected (e.g., take-out businesses, fast-food franchises, and other restaurants that already had smoke-free policies). Accordingly, some businesses are likely to have suffered losses that are far greater than the average. Anecdotal reports from specific business owners suggesting losses in the range of 30 percent do not seem unreasonable.

AUTHORITATIVE REPORTS / STUDIES

MONICA Study by World Health Organization<![if !supportFootnotes]>[10]<![endif]>

During the early 1990’s, WHO coordinated a study by Rodolfo Saracci of the International Agency for Research on Cancer. The research was conducted for over 10 years and included comparison of 650 lung cancer patients with 1542 healthy people across twenty one European countries, Australia and North America.  Scientists could not find a statistical connection between the reduction and changes in obesity, smoking, blood pressure or cholesterol levels. The results were expressed as “risk-ratios”, where the normal risk for a non-smoker of contracting lung cancer was set at one. The margin of error was set as 0.93 to 1.44. The result of the research indicated that the exposure to second hand smoke (ETS) raised the risk (lung cancer) to 1.16 at home and 1.17 at the work place. Considering the margin of error, the true risk ratio as concluded by this research was less than one. The results were announced at the European Congress of Cardiology in Vienna but were never published in a medical journal nor peered reviewed.

Enstrom & Kabat<![if !supportFootnotes]>[11]<![endif]>

James E. Enstrom PhD, MPH, of Jonsson Comprehensive Cancer Center, University of California, LA, USA and Geoffrey C. Kabat PhD, MD, New Rochelle, NY, USA have carried out one of the most scientifically accurate Meta-Analysis and Critique of ETS and Coronary Heart Disease (CHD) Mortality in the United States. All the underlying data and methodology used in this research are publicly available and can be verified independently. The research concluded that ETS and CHD association is considerably weaker than what was reported earlier. As a matter of fact their findings were within the margin of error for CHD (.85 to 1.05).

Their report concluded that several major meta-analyses have concluded that exposure to environmental tobacco smoke (ETS) increases the risk of coronary heart disease (CHD) by about 25% among never smokers. However, these reviews have excluded a large portion of the epidemiologic evidence on questionable grounds and have been inconsistent in the selection of the results that are included.

Our results for coronary heart disease and lung cancer are consistent with those of most of the other individual studies on environmental tobacco smoke,^4–8 including the results for coronary heart disease and lung cancer in the full CPS I.^{10 16} Moreover, when our results are included in a meta-analysis of all results for coronary heart disease, the summary relative risks for current and ever exposure to environmental tobacco smoke are reduced to about 1.05, indicating a weak or no relation.

Personal monitoring of nonsmokers indicates that their average ETS exposure from a smoking spouse is equivalent in terms of nicotine exposure to smoking less than 0.1 cigarettes per day. When all relevant studies are included in the meta-analysis and results are appropriately combined, current or ever exposure to ETS, as approximated by spousal smoking, is associated with roughly a 5% increased risk of death from CHD in never smokers. Furthermore, there is no dose-response relationship and no elevated risk associated with the highest level of ETS exposure in males or females. An objective assessment of the available epidemiologic evidence indicates that the association of ETS with CHD death in U.S. never smokers is very weak. The American Cancer Society blocked Enstrom and Kabat’s study from being published in the United State<![if !supportFootnotes]>[12]<![endif]>.

Judge Osteen's Ruling Vacating the EPA's Classification of Secondhand Smoke as a Known Human Carcinogen<![if !supportFootnotes]>[13]<![endif]>

Judge William L. Osteen of the United States District Court for the Middle District of North Carolina vacated the EPA's classification of secondhand smoke as a Known Human (Group A) Carcinogen; because he found that the EPA had wrongly excluded the tobacco industry from the risk assessment process, "cherry-picked" existing data, and engaged in de facto regulation of tobacco products. Judge Osteen ruled that the EPA had violated the Radon Act, which was the agency's authority for disseminating its "de facto regulatory scheme" that intended to prohibit passive smoking. The Osteen’s ruling was overturned by a higher court, not for his content but a higher court determined it was outside his jurisdiction, it was never appealed thereafter.

Statement of Hon. Thomas J Bliley Jr. to the House Sub Committee on Health & Environment, July 21st, 1993<![if !supportFootnotes]>[14]<![endif]>

Hon. Thomas J Bliley Jr., Member of the US House of representatives from Virginia’s 3^rd and 7^th District, testified to the Health & Environment sub-committee of the House Committee on Energy and Commerce to report on the results of his extensive investigation of the EPA’s handling of ETS. Hon. Thomas J Bliley Jr. stated the following in his testimony:

• “In the past the Oversight and Investigations Subcommittee of this
  Committee has conducted hearings on EPA's abuses of government contracting requirements.  So pervasive is the level of abuse that Chairman Dingell has characterized EPA's pattern of contract mismanagement as a "cesspool".  EPA's Inspector General recently has confirmed that such abuses also have taken place in connection with a number of EPA contracts involving ETS, and the ‘O’ and ‘I’ Subcommittee's own investigation is continuing”.
• “The Agency has deliberately abused and manipulated the scientific data in order to reach a predetermined, politically motivated result”.
• “Analysis of the risk assessment (of ETS) reveals, however, that EPA was able to reach that conclusion only by ignoring or discounting major studies, and by deviating from generally accepted scientific standards”. They changed the level of confidence from 95% to 90%, making the margin of error 10 times more.
•  “EPA's willingness to distort the science in order to justify its
  classification of ETS as a ‘Group A’ or ‘known human’ carcinogen seems to stem from the Agency's determination early on to advocate smoking bans and restrictions as a socially desirable goal.”
• “EPA began promoting such policies in the mid-to late 1980s, ostensibly as part of its efforts to provide information to the public on indoor air quality issues.  The Agency then decided to develop the ETS risk assessment to provide a scientific justification for smoking bans.  The risk assessment thus was never intended to be a neutral review and analysis of the ETS science. Rather, it was intended from the start to function as a prop for the Agency's predetermined policy. Not surprisingly, therefore, the process at every turn has been
  characterized by both scientific and procedural irregularities”.
• “EPA betrays its own lack of confidence in its tortured statistics by
  refusing to incorporate the results of the ETS-lung cancer study by Brownson and coworkers.  Evidently, publication of the Brownson study caused no small degree of consternation at EPA.  In order to avoid incorporation of the Brownson study's results into the risk assessment and invalidating EPA's claim that the epidemiology shows a significant risk, EPA rushed to issue the final report in early”.
• Mounting concern about EPA's misuse of science prompted
  former EPA Administrator William Reilly to convene an expert panel in 1991 to review EPA's handling of scientific issues and to recommend improvements.  The expert panel, which was comprised of eminent scientists from leading institutions across the country, issued a report in March 1992 entitled "Safeguarding the Future: Credible Science, Credible Decisions."  The report confirmed that, "currently, EPA science is of uneven quality, and the Agency's policies and regulations are frequently perceived as lacking a
  strong scientific foundation".

The EPA has provided reports and justifications for banning smoking. Their reports formed a basis for many bans and restrictions on smoking across the USA. Significantly, in August 1997, the Clinton Administration enacted an Executive Order to ban smoking in all Federal Buildings. The administration justified the Executive Order by relying on a 1992 EPA report, Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, which stated that ETS caused Cancer and that ETS was an extremely harmful carcinogen.

EPA reports were (heavily relied upon in Surgeon General Richard H. Carmona’s report of 2006), was used for banning smoking in public places. Following are some of the Chapters of Surgeon General Carmona’s report that have relied on the EPA reports:

• CHAPTER 1 PAGE 6:  EPA report stating that approximately 3000 deaths in US occur due to lung cancer.

• CHAPTER 1 PAGE 7: EPA blamed ETS or secondhand smoke to be a major cause for Sudden Infant Death Syndrome, cardiac related deaths and deaths caused by lung cancer.
• CHAPTER 1 PAGE 18: The report referred to the application of the micro environmental model (to measure the nicotine level) that was originally propounded by the EPA.
• CHAPTER 3 PAGE 100: In 1992, the EPA listed several criteria that a biomarker of exposure for a spe­cific air contaminant should meet (USEPA 1992).
• CHAPTER 5 PAGE 180: Anderson and Cook (1997) and the California Environmental Protection Agency (Cal/EPA 1997, 2005) have provided systematic reviews of the effects of secondhand smoke exposure on SIDS.

Professor Emeritus Dominick Armentano, University of Hartford (Source cato.org September 28^th 1998)<![if !supportFootnotes]>[15]<![endif]>

According to Dominick Armentano, “one of the important arguments for restricting smoking is that it can endanger innocent nonsmokers who inhale environmental tobacco smoke (ETS). Indeed, many states (led by California and Florida) have decided over the last few years to severely restrict smoking in commercial establishments on the basis of a 1993 Environmental Protection Agency report that classified ETS as a ‘Group A Carcinogen,’ that is, as a significant risk to health. It now turns out that the influential 1993 EPA report ‘Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders’ was as phony as a three-dollar bill. State officials and private businesses that believed that ETS was a public health danger (and not just a nuisance) were completely misled by the EPA. And, of course, so was main street American public opinion”.

Center on regulation and Economic growth, a research project of the non profit, non-partisan Alexis de Tocqueville Institution<![if !supportFootnotes]>[16]<![endif]>

The Alexis de Tocqueville Institution (AdTI) is a public-interest research foundation for democracy. AdTI was founded by a resolution drafted July 29, 1985. AdTI research strives to bring the insights and spirit of, Alexis de Tocqueville (who is admired by statesmen as diverse as Russell Feingold, Ronald Reagan, and Hillary Clinton — and cited by George Bush as "my favorite political philosopher"), to application to vital policy and ideopolitical issues of the day.

According to the Center on Regulation and Economic growth, a research project of AdTI, “it now appears that the Federal Government has gone beyond its traditional Anti-Smoking efforts, consisting mainly of education and health warnings, and is now moving towards a (de facto) ban on smoking. The vehicle by which this ban may take effect is an Environmental Protection Agency (EPA) study which allegedly found harmful effects on nonsmokers from environmental tobacco smoke, ETS, which is also called “second hand smoke” and “passive smoking”. If this were the case, it would be difficult to stop the government from banning smoking in the name of protecting innocent nonsmokers. Unfortunately, in its zeal to abolish smoking, science has been sacrificed. The EPA’s findings that, second-hand smoke is harmful to human health, is based on a lower threshold of risk assessment than what the agency normally uses for other substances. In short, the EPA study relied on methodologies different from those which have been historically used in such analysis. Scientific standards were seriously violated in order to produce a report to justify a political agenda, namely to ban smoking”. 

Brownson and Fontham Studies <![if !supportFootnotes]>[17]<![endif]>

Brownson and Fontham Studies are considered as two largest US epidemiologic studies of ETS and Lung Cancer. According to these studies there is no association between Lung Cancer and adult ETS exposure. Further these studies are in contradiction to the EPA’s conclusion that ETS is a Lung Carcinogen or with California EPA’s conclusion that post 1991 epidemiologic studies support a casual relationship between ETS and Lung Cancer.

Department of Energy’s Oak Ridge National Laboratory (ORNL)<![if !supportFootnotes]>[18]<![endif]>

The Oak Ridge National Laboratory conducted a 16 cities study on more than 1500 subjects in the United States and found the highest level of ETS nicotine levels in workplaces where smoking is permitted to be between 9.41 and 14.9 micrograms per cubic meter, which is far low than the numbers assumed by EPA and Occupational Safety and Health Administration (OSHA). The ORNL while conducting the study employed extensive controls in collecting and analyzing the air samples collected by the participants in the study. Test subjects in the study also submitted to saliva test that would reveal cotinine, a constituent of tobacco smoke. Further to measure authentic effects of ETS, smokers were excluded from the study. The researchers recorded a maximum respirable suspended particulate matter (RSP) level of 768 micrograms per cubic meter for a minimum of four hours. Whereas the OSHA standard for RSP is 5,000 micrograms per cubic meter over eight hours.

STATUS IN OTHER SCIENTIFICALLY DEVELOPED COUNTRIES<![if !supportFootnotes]>[19]<![endif]>

The same studies that we have analyzed were used to support the claims that ETS caused cancer, heart or lung disease in nonsmokers.  Further the World Health Organization Global Tobacco Treaty has used the same inconclusive scientific studies to initiate the campaign to eliminate tobacco by 2020.  Funding has been obtained by the Robert Woods Johnson Foundation, Bloomberg Foundation and the Gates Foundation to finance this particular agenda of WHO.

Around most of the developed world smoking has been banned but, only partially. Smoking is banned in govt. offices, schools, hospitals and there is a partial ban in restaurants, bars & pubs, where smoking is allowed subject to certain conditions. The conditions generally include a separate enclosure or area for smokers. This means, a segregation of smoking and non smoking parts of the restaurant, bar or a pub using sliding doors or air curtains or separate ventilation open non enclosed area etc. Although, studies have shown that this too has led to a loss of business to the restaurant and bar owners in a big way. We have discussed hereunder, the status of smoking ban in some of the developed countries of the world and how those Countries have addressed this issue.

Since 1 July 2007, a partial smoking ban has been in effect across the whole of the UK.

United Kingdom

Wales

Smoking was banned across all enclosed public premises and work premises in Wales on 2 April 2007. However, six months after the ban's implementation, the Licensed Victuallers Association (LVA), which represents pub operators across Wales, claims that pubs have lost up to 20% of their trade. The LVA says some businesses are on the brink of closure, others have already closed down, and there is little optimism that trade will eventually return to pre-ban levels.

England

Smoking was banned in indoor public places in England, including workplaces, bars, clubs and restaurants, on 1 July 2007. Some places, such as certain smoking hotel rooms, nursing homes, prisons, submarines, offshore oil rigs, psychiatric wards, and stages/television sets (if needed for the performance) are excluded. Palaces were also excluded, although members of the House of Commons and the House of Lords agreed to ban all smoking in the Palace of Westminster.  The Queen still allows smoking in all her private residences.

Germany

In January 2008, Germany imposed smoking ban in bars and restaurants and in public places in 11 of the 16 states. However, as a means of civil disobedience many of the bars and restaurants have come up with novel ways around the prohibition. The restaurant owners have come up with separate smoking rooms or the patrons are simply going out to enjoy a cigarette. In one incident a restaurant has even cut holes in the walls so that the patrons can technically smoke outside the restaurant<![if !supportFootnotes]>[20]<![endif]>. This smoking ban has recently been deemed unconstitutional by the German Courts and is currently repealed.

France

France, on 1 February 2007, tightened the existing ban on smoking in public places found in the 1991 Évin law, which contains a variety of measures against alcoholism and tobacco consumption. It is named after Claude Évin, the minister who pushed for it. The law leaves certain important criteria on what is allowed or not with respect to smoking sections to executive-issued regulations, and it is those regulations that were altered in 2007.

Smoking is now banned in all public places (stations, museums, etc.); an exception exists for special smoking rooms fulfilling strict conditions. However, a special exemption was made for cafés and restaurants, clubs, casinos, bars, etc. Under the new regulations, smoking rooms are allowed, but are subjected to very strict conditions: they may occupy at most 20% of the total floor space of the establishment and their size may not be more than 35 m²; they need to be equipped with separate ventilation which replaces the full volume of air ten times per hour; the air pressure of the smoking room must constantly be lower than the pressure in the contiguous rooms; they must have doors that close automatically.

Italy

Italy was the fourth country in the world to enact a nationwide smoking ban. Since January 10th, 2005 it is forbidden to smoke in all public indoor spaces, including bars, cafés, restaurants and discos. However, special smoking rooms are allowed. In such areas food can be served, but they are subjected to strict conditions: they need to be separately ventilated, with high air replacement rates; their air pressure must constantly be lower than the pressure in the surrounding rooms; they must be equipped with automatic sliding doors to prevent smoke from spreading to tobacco-free areas. Only 1% of all public establishments have opted for setting up a smoking room. Smoking rooms are allowed in offices (public, as well).  Widespread disobedience is taking place and the Italian High Court has established that locale owners/managers are not responsible for the enforcement of smoking prohibition.

Finland

Finland provides a very good model of smoking regulations; the smoking restrictions at workplaces in Finland were voluntary until March 1995 when reform of the Tobacco Control Act prohibited smoking in all common and public premises. The new legislation gave employers two options when implementing the Act either impose a total ban on smoking or allow smoking in designated smoking rooms with separate ventilation systems and lower air pressure than non-smoking facilities.

Canada

Smoking in indoor workplaces and public places is banned in all territories, provinces and in federally regulated buildings. However, some jurisdictions allow specific exemptions to the smoking ban.

• Prince Edward Island has banned smoking in public places and workplaces since 2003. Ventilated smoking rooms are allowed, however, but food cannot be served in them.

• Nova Scotia: since 1 December 2006, smoking is banned in public places, with the exception of special rooms in nursing homes and care facilities. Tobacco products cannot be displayed prominently in stores.

Israel

In Israel it is forbidden to smoke in public closed places since 1983. The law was amended in 2007 so that owners are held accountable for smoking in premises under their responsibility. The ban includes pubs and bars, and it is illegal for owners of such places to put ashtrays anywhere inside closed spaces. Also, owners of public places must put "no smoking" signs and prevent visitors from smoking. They can also designate a well ventilated and completely separate area for smokers, as long as the nonsmokers’ area does not fall below 75% of the whole area. Israel further implemented a ban on smoking in military bases and other security institutions. The soldiers however, started to disobey the order soon after the same was issued<![if !supportFootnotes]>[21]<![endif]>.  

Japan

The anti-smoking hysteria has not arrived in Japan yet, and smoking is still relatively popular. The smoking rate among adult men is almost 50%, while for women it is below 15%. The law prohibits the smoking of cigarettes to persons under the age of twenty. Cigarettes can be bought in tobacco stores and at vending machines.

Non-smoking areas are not very common in restaurants and public areas, not even in fast food or family restaurants. On the other hand, all trains have non-smoking cars. Japan has the lowest rate of lung cancer in the world. The rate of lung cancer deaths in Japan is 46 per 100000 people<![if !supportFootnotes]>[22]<![endif]>.

Russia

The legislation, passed by the State Duma, bans smoking in workplaces, on aircraft, trains and municipal transport as well as in schools, hospitals and government buildings. It requires specially designated smoking areas to be set up and also requires restaurants and cafes to set up no-smoking areas<![if !supportFootnotes]>[23]<![endif]>. Even after the implementation of smoking ban in Russia, the numbers of smokers in the country is still the very high and Russia has the sixth highest number of smokers in the world<![if !supportFootnotes]>[24]<![endif]>.

Ban status in some US States<![if !supportFootnotes]>[25]<![endif]>

It may be observed that there are instances within the US wherein there has been either no statewide smoking ban, or a bill to ban smoking in public places which has been rejected or a smoking ban had been implemented, but was later repealed.

Kansas

No statewide smoking ban. The Kansas Legislature twice has rejected a statewide smoking ban, once in January of 2007 and again in August of 2007. A third attempt failed when it was not passed by the end of the legislative year in May of 2008. In 2007, upon a bar owner's challenge to Lawrence's smoking ban, the Kansas Supreme Court ruled that cities and counties may enact smoking bans which are more stringent than state law.

• Mission Hills, May 2007, rejected smoking ban
• Sedgwick, November 20, 2007, rejected ban on smoking in bars and restaurants by unanimous decision of the city council
• Scott City, January 2004, rejected ban on smoking in bars and restaurants
• Shawnee, January 2, 2008, banned in all workplaces including restaurants and private clubs, but exempting 25% of hotel rooms and any bars which derive less than 33% of their gross annual revenues from food sales.
• Wichita, December 17, 2007, rejected ban on smoking in all enclosed workplaces, including bars and restaurants.

Missouri

• No statewide smoking ban. Only one proposal for a statewide smoking ban ever has been proposed before the Missouri General Assembly (S.B. 1079 in February of 2008), but it had no cosponsors and little support and failed without even receiving a hearing. Most state officers, both Republican and Democrat, including Governor Matt Blunt, believe that the issue should be decided by cities and counties, not by the state. Only 20% of Missourians support a statewide ban on smoking in all public places. As of November, 2007, Missouri has the second-lowest cigarette excise taxes in the United States (behind only South Carolina) at 17 cents per pack, and the electorate voted in 2002 and 2006 to keep it that way.^] In 2007, Forbes named Missouri's largest metropolitan area, St. Louis, America's "best city for smokers." Missouri also has one of the most permissive approaches to alcohol in the United States. Missouri law allows bars and restaurants which seat fewer than 50 people, bowling alleys, and billiard parlors to decide their own smoking policies, without limitation.
• Farmington, October, 2007, mayor vetoed a ban on smoking in restaurants; and a ban on smoking in all workplaces was rejected in January of 2008
• Jefferson City, December, 2003, mayor vetoed a ban on smoking in restaurants
• Independence, March 17, 2007, banned in all workplaces, including bars and restaurants, per referendum in November of 2006, but declared invalid and unenforceable by a state court in December of 2007.
• Kansas City, June 7, 2008, due to be banned in all indoor workplaces, except casinos, but halted by a state court on June 4, 2008
• Lake Saint Louis, January 1, 2008, rejected a ban on smoking in enclosed workplaces; instead, required businesses which allow smoking to post exterior signage stating their smoking policy, which either may be "No Smoking Permitted", "Restricted Smoking Area Available", or "Smoking Permitted"; if a business states that a "restricted smoking area is provided," that area must be separately ventilated with no intrusion of smoke into the non-smoking area.
• Smithville, December 18, 2007, rejected a ban on smoking in all workplaces, including restaurants and bars
• St. Louis County, August, 2006, rejected a ban on smoking in bars, restaurants, and casinos; instead, required businesses which allow smoking to post exterior signage stating their smoking policy.

North Carolina

• No statewide smoking ban. A state law passed in 1993 expressly prohibits any smoking restrictions to be passed by any form of local government (counties, cities, towns, etc.). The law is written with a caveat which allows local governments to enact smoking restrictions within: buildings owned/leased/occupied by local government, public meetings, and the indoor space in an auditorium/arena/coliseum, libraries or museums open to the public, and any place on a public transportation vehicle owned or leased by local government and used by the public. The North Carolina House of Representatives rejected a statewide smoking ban in May of 2007.

• Eugene, July 2001 banned in all public areas, including bars, restaurants, and venues
• Multnomah County, July 1, 2000 banned in workplaces, except bars, truck stops, and private residences
• Philomath, banned in all workplaces, restaurants, and bars.

Texas

• No statewide smoking ban.
• Amarillo, May, 2008, ban rejected by 238 votes
• Galveston, February, 2006, rejected ban on smoking in all enclosed workplaces

Wyoming

• There has been no statewide smoking ban other than five counties. They are Cheyenne, Evanston, Green River, Laramie and Rock Springs.

Alaska

• There has been no statewide smoking ban other than two counties. They are Anchorage and Juneau.

  ---

 COMPARISON OF ETS WITH  FOOD HABITS

The EPA has assumed that ETS or secondhand smoke, as it is more commonly known, to be the sole reason for so many deaths that occur in the United States. However, the Surgeon General’s report concedes to the fact that while studying the various factors that cause deaths, ETS is usually confounded (confounding refers in this context to the mixing of the effect of another factor with that of secondhand smoke) with other factors that may, otherwise be a potential reason for a health risk. On page 23 of the Surgeon General’s report ‘The Health Consequences of Involuntary Tobacco Smoke’, that, “Confounding implies that the confound­ing factor has an effect on risk that is independent of secondhand smoke exposure. Some factors considered as potential confounders may, however, be in the same causal pathway as a secondhand smoke exposure.”<![if !supportFootnotes]>[26]<![endif]>

The consumption of aerated drinks (such as Coke & Pepsi), junk food (such as Burgers and Pizzas), and alcohol are the major contributory factors that have lead to significant health risks and exposed the consumers to chronic and incurable diseases.

Aerated drinks & Junk Food

Many studies have shown that history of diabetes mellitus and a diet high in glycemic load are both potential risk factors for pancreatic cancer<![if !supportFootnotes]>[27]<![endif]>. US has the highest consumption of sugar-sweetened soft drinks/aerated drinks in the world which are a prevalent source of readily absorbable sugars and have been associated with an increased risk of obesity and diabetes. Junk food which makes up a quarter of US diet is the other major source of obesity. Chronic diseases, which are preventable, are rapidly increasing.  Obesity (which can lead to heart disease, hypertension, stroke and diabetes), has tripled in the last 20 years<![if !supportFootnotes]>[28]<![endif]>.

A report by WHO/FAO on chronicle diseases advised the consumers to cut down sugar intake and it also projected that, by 2020, chronic diseases will account for almost ¾ of all deaths worldwide, and that 71% of deaths due to ischaemic heart disease, 75% of deaths due to stroke. According to the report, the leading causes for increasing chronic diseases are the increasing intake of high-calorie, low-nutrition foods, increasingly inactive lifestyles, and other factors<![if !supportFootnotes]>[29]<![endif]>.

The study conducted by WHO/FAO states that, “Increases in obesity over the past 30 years have been paralleled by a dramatic rise in the prevalence of diabetes.” Increasing obesity is linked to increasing risks to diabetes, cardiovascular disease and hypertension.  Restricting “free sugars” (i.e. added sugar); it says can reduce the risk of unhealthy weight gain, a trigger for many chronic diseases. It cautions that children with a high consumption of soft drinks rich in free sugars are more likely to be overweight and to gain excess weight. Fructose is added to just about everything, especially children’s cereals

Consumption of aerated drinks has led to obesity among pre-schoolers, children, adolescents and adults. This change has led to increase in prevalence of obesity that predisposes to heart disease, lung disease and diabetes mellitus. Yet another aspect is that of people resorting to junk food, which is usually high in fatty acid content. Everyday consumption of junk food which are low in nutrition and results in weight gain, obesity, heart diseases and type II diabetes. Junk food contains transfatty acids which are more than 41-74 grams.

Increased consumption of junk food and fizzy drinks can be more harmful than so called danger from the occasional exposure to secondhand smoke. Cancer has become one of the major causes of death throughout the world and overweight and morbidity obesity (partly caused by excessive sugar intake) are two of the major factors for cancer.

According to the study as conducted by WHO, “There are now an estimated 150 million cases of diabetes, mainly Type 2 (non-insulin-dependent, or lifestyle-triggered) diabetes, worldwide, and the number is predicted to double by 2025.  These figures are underestimates as many cases are undiagnosed.”

According to the report, “the most dramatic increase in Type 2 diabetes are occurring in societies in which there have been major changes in the diet consumed, reductions in physical activity, and increases in overweight and obesity”<![if !supportFootnotes]>[30]<![endif]>.

Fast-food restaurants, and foods and beverages that are usually classified under the “eat least” category in dietary guidelines are among the most heavily marketed products, especially on television. Young children are often the target group for the advertising of these products because they have a significant influence on the foods bought by parents.

It has been estimated that each additional can or glass of sugars-sweetened drink that children consume every day increases the risk of becoming obese by 60%. Most of the evidence related to soda drinks but many fruit drinks and cordials are equally energy-dense and many promote weight gain if drunk in large quantities. Overall, the evidence implicating a high-intake of sugars-sweetened drinks in promoting weight gain was considered moderately strong<![if !supportFootnotes]>[31]<![endif]>.

Alcohol

The habit of smoking has often been associated with alcohol, however nonsmokers also consume alcohol. Alcohol is the major cause in cases of heart diseases, cancer; chronic alcoholism affects the immune system and slows down the recuperating power of an individual. Alcoholism is associated with atherosclerosis (disposition of fats, platelets etc.) that increases the risk for heart diseases. Alcoholics have a tendency to develop fatty (filled with fat) liver and are more prone to viral infections. This reduces the capacity of liver to remove the toxic substance in the body. The risks for developing mental defects in the offspring are high when mothers consume alcohol. The risk is higher compared to secondhand smoke exposure. Therefore, it can be inferred that alcohol is a major cause for the heart diseases and the ill effect of alcohol on the health are far more dangerous than ETS.

COMPARISON OF ETS WITH VEHICULAR EMISSIONS

Health Hazards of secondhand smoke include various consequences as reviewed in the Surgeon Generals Report. It is claimed to cause breathing problems, aggravate asthma, allergy, heart diseases, stroke, lung cancer, and reduction in fertility, birth defects, nuisances like bad odor and irritation to non smokers. This has been condemned by many. As quoted in the report of the Surgeon General in the year 1986, the “liberty to smoke ends when it encroaches upon the freedom of non smoker”. With the advancement in science one can expect improvement in technology that can provide us a possible solution to this particular problem. On the contrary we need to safely remove particles especially from the exhaust of vehicles that tend to be harmful. When absorbed by the human body they evoke responses in the form of tissue reactions that can exacerbate pre-existing lung and heart diseases.

It is more harmful because of production of damaging radicals (Reactive Oxygen Species). These particles can also damage the generic structure leading to cancers. Smoke emitted from vehicles contains carbon monoxide and nitrogen dioxide molecules at a higher concentration. These emissions are 100 to 1000 times more harmful than secondhand smoke. The chemicals emissions are at such high concentration possess more damaging effects than secondhand smoke.

POLITICS, PHARMACEUTICAL LOBBY AND SMOKING CESSATION DEVICES

There exists a clear and directly proportional nexus between the ban on smoking and the definite influence of pharmaceutical companies in the political scenario that has lead to such rampant activism to ban smoking.

There are a number of factual instances which indicate strategic planning adopted by the pharmaceutical companies in order to make profits by funding ‘Banning Smoking Campaigns’ by donating money to associations, nonprofits, charitable nonprofits and, in advertising smoking cessation devices of which some are a direct delivery of nicotine into the blood stream to oral pills that alter brain chemistry. The Robert Woods Johnson Foundation has spent over 99 million dollars to ban smoking in America through 2004 (no recent figures available)..

A number of Pharmaceutical companies have been for the past so many years organizing and sponsoring ‘Sessions & Conferences’ in support of a ban on smoking. The big pharmaceutical companies funding such conferences as "primary patrons" include some of the major pharmaceutical multinationals: GlaxoSmithKline (GSK), Novartis, Pharmacia all of whom make and/or market "nicotine replacement" or other smoking cessation products. Johnson & Johnson's McNeil Consumer Products, marketers of ‘Nicotrol’, are well represented by the Robert Wood Johnson Foundation, which receives almost $8 billion from shares of J&J stock.

Pharmaceutical companies lobbying for smoking bans:

There are a number of Non Governmental Organizations (NGOs) that support these ‘Smoking Ban  Campaigns’ which are backed by funding from the Robert Wood Johnson Foundation (RWJF) which has direct ties to the Johnson & Johnson Company (J & J), and J & J is the manufacturer of ‘Nicoderm’ & ‘Nicoderm CQ’ via its wholly owned subsidiary ALZA. Recently, the buyout of Pfizer means J & J profits even more from the passage of smoking bans through additional sales of ‘Nicotrol’ and the new smoking cessation drug ‘Chantix’<![if !supportFootnotes]>[32]<![endif]>.

The Robert Wood Johnson Foundation, Kellogg Foundation, Bloomberg Foundation, and George Soros funds most of the groups which lobby for smoking ban legislation. The American Lung Association, American Heart Association, American Cancer Society, the American Medical Association, American Non-Smoker's Rights, the Center for Tobacco Free Kids (of which Action on Smoking and Health – ASH – is a member) etc. all have received funding from RWJF which in turn benefits RWJF financially when smoking bans are passed; making them highly suspect, to say the least and certainly represents a major conflict of interest. The above organizations have invested huge sums of money in the research of ETS.. The research institutes have firstly, conducted studies that claim that ETS is extremely harmful for the human body. Secondly, they have introduced certain drugs that allegedly help curb craving to smoke. Therefore, if the bans are implemented based on these studies, people will make an obvious choice to resort to the drugs prescribed by these organizations, thereby being a source of  large profits to both the drug manufacturing companies as well as the other foundations investing into these companies and associations. Thus, there is evidence of mutual interest between the funding organizations and these health and research associations.

The pharmaceutical nicotine product sales is a $500,000,000.00+ annual business, almost exclusively owned by the J & J conglomerate, of which RWJF is an entity and single largest shareholder of J & J stock, with a $5.4 billion dollar holding<![if !supportFootnotes]>[33]<![endif]>.

ALZA is another wholly owned subsidiary of Johnson & Johnson Co. ALZA has developed products which have provided therapy for millions of patients throughout the world including transdermal (D-TRANS) which has found applications in many widely used pharmaceutical products, such as ‘NicoDerm CQ’ (nicotine). ALZA is the connection which proves Johnson & Johnson pharmaceutical makes a profit selling pharmaceutical nicotine products. Especially lucrative businesses after smoking bans are implemented.

Ban based on Environmental Protection Agency report:

Almost all of these draconian laws to ban smoking are based on the Environment Protection Agency (hereinafter EPA) report. According to a recent report of April 23^rd, 2008<![if !supportFootnotes]>[34]<![endif]>, by The Union of Concerned Scientists’, “Interference at the EPA: Science and Politics at the U.S. Environmental Protection Agency”, calls the EPA "an agency under siege from political pressures” and further states that “On numerous issues -- ranging from mercury pollution to groundwater contamination to climate change  -- political appointees have edited scientific documents, manipulated scientific assessments, and generally sought to undermine the science behind dozens of EPA  regulations." The study found the White House - Office of Management and Budget to be the worst culprit. A stunning "889 scientists personally experienced at least one incident of political interference during the past five years," while "among EPA veterans (scientists with more than 10 years of experience at the agency), 409 (43 percent) said interference occurred more often in the past five years than in the previous five-year period." One EPA scientist warned: "Do not trust the Environmental Protection Agency to protect your environment”. Ask questions. Be aware of political and economic motives. Become politically active. Elect officials with motives to protect the environment and hold them accountable”<![if !supportFootnotes]>[35]<![endif]>.

It is interesting to observe that of all the 43 Presidents that the United States of America 27 of them were/are smokers<![if !supportFootnotes]>[36]<![endif]>. However, Barak Obama, the candidate for the Democratic Party in 2008 has been quoted, “I’ve never been a heavy smoker,” Obama told the Chicago Tribune<![if !supportFootnotes]>[37]<![endif]>. I’ve quit periodically over the last several years.”

Tobacco Preferences US Presidents:

William Howard Taft                1909-1913    cigars

Warren G. Harding                   1921-1923    cigar

Calvin Coolidge                        1923-1929    cigar

Herbert Hoover                        1929-1933    cigar

Franklin D. Roosevelt               1933-1945    cigarette

Dwight Eisenhower                   1953-1961    cigarette

John F. Kennedy                      1961-1963    cigar

Lyndon Johnson                       1963-1969    cigar

Richard Nixon                          1969-1974    cigar

Gerald Ford                             1974-1977    pipe

Bill Clinton                                1993-2001    cigar

George W. Bush                       2001-till date cigar

In an article written by Mr. Joseph Bast (published in Health Care News on November 1, 2007; publisher: Heartland Institute) a few crucial aspects of the EPA report was pointed out by the author of the article which stated, “Did Carmona and coauthors cherry-pick the data? Absolutely. They ignored the largest and longest study credible study ever conducted on spouses of smokers, by Enstrom and Kabat, published in the May 12, 2003 issue of the British Medical Journal. The authors found: ‘The results do not support a causal relationship between environmental tobacco smoke and tobacco-related mortality. The association between tobacco smoke and coronary heart disease and lung cancer may be considerably weaker than generally believed.’ Indeed their results were well within the margin of error.

Carmona mentions the Enstrom study just once, in an appendix listing studies too recent, even though the study was published in 2003 to include in the report. But Enstrom's study was published in the British Medical Journal<![if !supportFootnotes]>[38]<![endif]> three years before Carmona’s, he cites more recent studies. In fact, Carmona's principal ‘findings’ were taken from a 2005 report--not a scientific study, merely another report from California's Clean Air Resources Board<![if !supportFootnotes]>[39]<![endif]>, mostly citing the very studies the federal judge rejected in 1993.”<![if !supportFootnotes]>[40]<![endif]> 

Vested interest of pharmaceutical companies:

These pharmaceutical companies with vested interests, who have been sponsoring & supporting the ban on smoking on the one hand and producing smoking cessation drugs on the other hand, have managed to accrue vast amount of wealth in the process.

Under the banner of its subsidiary, McNeil Consumer Products, J&J markets Nicotrol nicotine patch and nicotine inhaler.

Pharmaceutical giants Glaxo Wellcome and SmithKline Beecham (SKB) merged on December 27, 2000, making the new company GalxoSmithKline the world's biggest drugs group by sales. Glaxo Wellcome markets ‘Zyban’ and ‘Wellbutin XL’ (buproprion) and SKB markets ‘Nicoderm CQ’ nicotine patch and ‘Nicorette’ gum.  Pharmacia - (Also Pharmacia & Upjohn) makes ‘Nicorette’ and ‘Nicotrol’, ‘a family of tobacco dependence therapies.’

Pharmacia & Upjohn Consumer Healthcare develops, manufactures and sells safe and efficacious OTC (Over the Counter) products. A number of products are also sold globally. Among the company's largest and most well-known brands is a line of nicotine replacement products, including nicotine gum, transdermal patch, and nasal spray and inhaler.

Pfizer (J&J Co.) discovers, develops, manufactures and markets leading prescription medicines for humans and animals, and many of the world's best known consumer products. Pfizer had global revenues of $29.6 billion in 2000. Pfizer has developed a new agent for smoking cessation, currently known as CP-526,555 that relieves both cravings and withdrawal symptoms and blocks the reinforcing effect of smoking<![if !supportFootnotes]>[41]<![endif]>.

Defects with the smoking cessation drugs:

Many of these products that have been launched by these big pharmaceutical companies have also been the source of many deaths or heart attacks to the users. First, the Federal Aviation Administration banned ‘Chantix’ use, now it's the Federal Motor Carrier Safety Administration issuing the following ban – ‘to not qualify anyone currently using this medication for commercial motor vehicle licenses.’  On Nov. 20, 2007, FDA issued an Early Communication to the public and health care providers that the agency was evaluating post marketing adverse event reports on Chantix related to changes in behavior, agitation, depressed mood, suicidal ideation, and actual suicidal behavior<![if !supportFootnotes]>[42]<![endif]>.

CHANTIX^® (varenicline) is non-nicotine prescription medicine specifically developed to help adults who quit smoking. Chantix contains no nicotine, but it targets the same receptors that nicotine does. Chantix is believed to block nicotine from these receptors.

The Federal Aviation Administration banned the drug for pilots and air traffic controllers, after seeing the study, which reported that ‘Chantix’ was linked to 988 serious events in the last quarter of 2007 alone<![if !supportFootnotes]>[43]<![endif]>.

Therefore, it may be deduced that the pressure on the FDA is the result of lobbying by pharmaceutical companies.

CONCLUSION

Based on research and evaluation of authentic records, the following aspects come to light and may require attention of organizations which are initiating action to promote democratic principles, freedom of choice and compliance to constitutional rights

• Classification of ETS as a Class A Carcinogen is not based on conclusive scientific data.
• EPA’s research methodologies are questionable.
• Reports authored by EPA; which has been used as a basis for justifying state or local legislation to ban smoking, are not authentic and have been proven to be unscientific.
• The SG did not rely totally on EPA’s study, they used others and did not use OSHA’s, ORNL studiesSurgeon General Carmona’s report which relied heavily on EPA’s reports for its conclusions. This report has many scientific and statistical fallacies and therefore cannot be taken as an authentic source for legislative action.
• Citizen’s rights under the Federal and State Constitution of Virginia are infringed through imposition of a blanket ban on smoking.
• Various authoritative reports, House committee hearing, Scientific studies, Scientific institutions have established that EPA’s assertions on ETS and the notions of ETS causing lung cancer are not backed by proven scientific evidence.
• Many developed Countries have stayed away from a blanket ban on smoking. Rather they have established reasonable restrictions and controls.
• There are more compelling issues which cause health hazards and need immediate attention, rather than ETS which there is no conclusive scientific research report, to suggest that it causes cancer.
• Politics and Pharmaceutical lobbies play a very important role in publicizing certain unproven facts of ETS.  

DISCLAIMER

Epitome Consulting and Information Technology Private Limited (EPITOME) has no vested interest in this report nor in this subject matter and preparation this report, has not been funded by any organization.

Epitome Consulting and Information Technology Private Limited (EPITOME) is not a law firm and does not provide any legal opinion and is not engaged in active practice of law in the United States or anywhere else in the world. EPITOME hereby disclaims any liability which might accrue to any organization that relies on this information / work product provided by EPITOME