Tobacco industry fights smoke claim Suit calls on EPA to retract report

June 23, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The cigarette industry, reeling from a fast-spreading campaign to ban smoking in public places, fought back yesterday by asking a federal judge to erase the government's conclusion that secondhand smoke causes cancer in nonsmokers.

In an unusual legal claim, the industry demanded that the Environmental Protection Agency be ordered to take back what it said in January when it found that other people's cigarette smoke is so poisonous that there is no safe level of exposure to it.

The EPA's conclusion, according to the lawsuit filed in Greensboro, N.C., is being translated all across the country into tight new restrictions on smoking, including a ban on it in 40,000 post office buildings.

Insisting that the EPA skewed science to reach a biased finding, the three tobacco manufacturers, two industry groups and one cigarette vending company said that the new restrictions are causing "decreased sales and use of cigarettes."

John F. Banzhaf III, an anti-smoking activist and law professor here, described the new lawsuit yesterday as "an unprecedented act of desperation." He said the EPA has done nothing but issue a report, and thus has taken no action a court could pass upon. The lawsuit, he predicted, "is going to be thrown out."

But, he conceded, the mere filing of the lawsuit might help the industry to go to county and city governments from coast to coast, and tell them to avoid acting on new restrictions because the EPA's finding -- the basis of many new anti-smoking rules -- is under review in court.

EPA Administrator Carol Browner said "we stand by" the conclusion that passive smoking causes cancer, and argued that "16 independent scientists outside EPA" had endorsed that finding unanimously.

The Cleveland lawyer who will be the lead attorney for the industry in the new case, Robert C. Webber, said the lawsuit was "a straightforward challenge" to the EPA's action in labeling "environmental tobacco smoke" as a cancer-causing source of the worst kind.

"It is [a lawsuit], and no more," he said, insisting that the industry did not prepare the case as part of any public relations counterattack against the EPA.

The EPA's finding about the health risks it found in so-called "passive smoking" has led not only to a spate of official regulations, as well as restrictions imposed voluntarily by private business firms, but also is adding some pressure on the government's workplace safety organization -- the Labor Department's Occupational Safety and Health Administration -- to act directly to curb smoking on the job.

OSHA itself is being sued by Mr. Banzhaf to force it to act, and a federal appeals court has turned down a government plea to dismiss that lawsuit.

The EPA report also has stimulated new lawsuits, aimed at fast-food restaurants like McDonald's and Roy Rogers, under the new federal law that protects disabled Americans from discrimination in access to public places on the theory that smoking in those restaurants would deter people with lung problems from eating there.

Congress has taken no action yet on another response to the EPA report, a newly introduced bill to ban smoking in any indoor facility where services are provided to children and federal funding is involved.

The issue over the health risks of exposure to other peoples' cigarette smoke is a deeply complex one, depending heavily upon how one interprets a long list of studies of the actual or potential effects of passive smoking.

The industry's lawsuit, a 48-page document that contains more scientific debate than legal contentions, charges the EPA with manipulating the data it studied, picking and choosing among research techniques to support pre-determined conclusions, and deviating sharply from accepted scientific standards and techniques.

When the EPA's work is analyzed, the lawsuit contends, the link that the agency found between secondhand smoke and cancer actually can be explained away as being the result of mere chance, bias, or factors such as diet, past medical history, choice of lifestyle, job conditions, or the weather and other environmental factors.

Any statistical links that the agency found between secondhand smoke and lung cancer "are so weak" that other factors "very likely" provide the explanation, the industry argues.

It claims that the EPA study violates the industry's right to fair procedures, goes beyond any power that Congress has given that agency, and violates the laws that are supposed to guide the EPA's review of environmental risks.

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