'Passive smoke' study likely to spur lawsuits

January 08, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- A chain reaction of legal challenges aimed at factories, offices, restaurants and other public places seems certain to be set off by a new government study finding that cigarette smoke is deadly to nonsmokers -- and especially to children.

A spate of lawsuits and a fight over a tangled web of proposed federal rules, reaching deeply into Americans' daily lives, are almost predictable consequences of the Environmental Protection Agency's first-time ruling yesterday that "passive smoke" causes cancer in people who do not smoke and is the likely cause of a whole host of other health problems for nonsmokers.

The EPA report, a 2-inch thick study of the health hazards of secondhand smoke, was barely in circulation here before anti-smoking activists began pushing forward with new legal maneuvers designed to stamp out smoking altogether in tens of thousands of workplaces and other public facilities, or at least to force the segregation of smokers from the rest of the populace.

Activists are determined to challenge smoking in ways that would go far beyond existing limitations on smoking under state and local laws or under rules imposed within private companies.

One of the early targets of potential legal challenge are the nation's fast-food restaurants, on the premise that they are places where children are routinely exposed to passive smoke even if some seats are set aside for nonsmokers.

John F. Banzhaf III, a law professor here who has made a quarter-century career out of fighting smoking through his organization, Action on Smoking and Health, said he will send copies of the new EPA study to about 30 fast-food restaurant chains. The aim, he said, will be to put them on notice that if any asthmatic or allergic children show signs of reaction to passive smoke in such places, lawsuits seeking damages for injury might be forthcoming swiftly.

Restaurants where children are among the patrons, Mr. Banzhaf said, could be challenged for maintaining "a foreseeable danger" for children by letting patrons smoke.

"It would be no different," he argued, "from an amusement park with very dangerous rides allowing children to get on."

Children also will be the focus of a planned new effort in Congress, announced yesterday, to ban smoking in any indoor facility where services are provided to children and federal funding is involved. A bill offered by Sen. Frank R. Lautenberg, D-N.J., and Rep. Richard J. Durbin, D-Ill., also would ban smoking in federal office buildings.

President Bush was put under new pressure yesterday by the Coalition on Smoking or Health, which demanded that he ban smoking in most federal office buildings simply by issuing a presidential order. That proposal has been on Mr. Bush's desk, with no action, for two years. The coalition is made up of the American Lung Association, the American Cancer Society and the American Heart Association.

Anti-smoking groups also will pressure the incoming Clinton administration, especially its Labor Department workplace safety agency, to move rapidly to protect nonsmokers in factories and offices across the nation.

If that agency, the Occupational Safety and Health Administration, delays acting much longer on job-site risks resulting from the habits of smoking workers, a federal appeals court here might be persuaded to compel some action. Already, the appeals court has before it a new plea to force OSHA to start writing a new anti-smoking rule for the workplace.

Once before, in late 1991, that court ordered OSHA to justify its delay in acting. The agency still has not begun a formal proceeding that could lead to a new rule; it is confining itself to studying comments it got on a public plea for information on all forms of indoor air pollution.

EPA Administrator William K. Reilly, announcing the new "passive smoke" study results yesterday, flatly predicted yesterday that "OSHA will act," emphasizing the word "will." But OSHA's press secretary, Douglas Fuller, said that "we've been waiting for this report [by EPA]," so that it was "too early to tell" what OSHA might do. "We haven't seen the report yet."

OSHA has the power to write workplace health and safety standards for use at any kind of work site, and it has the authority to force obedience to its standards by any company that has 10 or more workers.

The lawsuit pending against OSHA seeks to force it to single out tobacco smoke for a nonsmoker protection rule all its own, without dealing with any other substances that may foul indoor air.

If a sweeping workplace rule emerges from OSHA, it probably will not be confined solely to places ordinarily thought of as work sites, such as factories or offices. Almost any place where people go to buy or enjoy something or to get a service -- a restaurant, a bar, a museum, an amusement park, an airliner, a train -- could be considered a place where someone works, and those workers, too, might well gain some legal insulation from the smoke of patrons.

At yesterday's news conference, Health and Human Services Secretary Louis W. Sullivan, who has fought smoking throughout his four years in the Cabinet, joined Mr. Reilly to announce a new public relations campaign to highlight the hazards of smoking.

Mr. Sullivan also revealed the results of a newly completed HHS study showing a connection between "crib death," a largely unexplained phenomenon of sudden death among infants, and the smoking habits of the infants' mothers during pregnancy or after the birth of their children.

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