WASHINGTON -- A Labor Department lawyer told a federal appeals court yesterday that the government does not yet know enough about the health risks of tobacco smoke to justify any kind of smoking ban in offices and factories across the nation.
The attorney, Charles F. James, urged the U.S. Circuit Court of Appeals here to let the department follow its own pace in deciding whether to do anything to protect non-smoking workers from the "passive smoke" they inhale from other workers' cigarettes.
But he conceded under questioning that it may be many months before the department's Occupational Safety and Health Administration decides whether to take action. The agency has authority to impose nationwide standards to assure workers of a safe environment in their office or factory. OSHA will issue a formal call next month for information about the health risks of a variety of substances in the air in the nation's workplaces, and will give the public four months to supply data, Mr. James said. He would not estimate how long OSHA would take to act after it gets the information.
Although Mr. James said there is evidence that "passive smoke" has been a cause of various diseases, he said there is insufficient data on how much risk would exist in the environment of offices or factories. Much of the data available now, he said, is related to the risk to family members in the home, not to fellow workers in the workplace.
An anti-smoking group, Action on Smoking and Health, has been trying for the past four years to get OSHA to issue an "emergency" nationwide order either to ban smoking outright in the workplace, or at least to take steps to protect non-smokers.
OSHA rejected that plea in September 1989, and ASH's challenge to that decision did not come up in the Circuit Court until just yesterday. The court is expected to decide the issue before next fall.
At yesterday's hearing, ASH general counsel Athena R. Mueller told the three-judge panel that more than 57,000 people die every year from exposure to "passive smoke," and she cited one estimate that a third of those who die from that cause have been exposed at work.
A variety of studies, she said, show that this is a "grave danger" in the workplace, thus justifying emergency action by OSHA. Accusing that agency of remaining "isolated" from the real world of smoking hazards, she said OSHA "needs your encouragement . . . to do its duty."
Circuit Judge Ruth B. Ginsburg told both lawyers that she had some doubt that the court could rule that Congress intended to have OSHA ban smoking in the workplace, when Congress provides a financial subsidy every year to farmers to grow tobacco.
Ms. Mueller countered that the subsidy was a "political decision," while OSHA was faced with a scientific decision about real health hazards. Mr. James told the judge that OSHA does not consider the tobacco subsidy to be a factor against controlling smoking on the job.