|
For a general discussion on tobacco industry campaigns,
including information on the "Osteen Decision"/EPA and the
1998 IARC study, please refer to Americans for Non-Smokers'
Rights summary, What
to Expect From the Tobacco Industry (last updated June
2003).
INDUSTRY ATTACK ON THE EPA AND THE "OSTEEN DECISION"
Overview
The 1998 Osteen decision regarding the tobacco industry's
lawsuit against the U.S. Environmental Agency is frequently
cited by the industry and opposition organizations as evidence
that lung cancer is not caused by second-hand smoke, or it
proves that such a causal relationship is at least suspect.
The propagation of misinformation, and the accusation of
"junk science", is a common
tobacco industry strategy. The industry regularly labels legitimate
scientific research as "corrupt", flawed in methodology,
ideologically driven, and defective. The industry has gone
to great lengths to legitimize their argument of "junk
science" by setting up 'good epidemiology" coalitions,
hiring lawyers, and buying scientists to deliver their message
(view a January
13, 1993 Philip Morris memo).
This strategy was employed upon the release of the 1993 EPA
report findings that second-hand smoke causes lung cancer,
is a human carcinogen and is responsible for 3,000 annual
lung cancer deaths in the United States. The tobacco industry
launched a lawsuit against the EPA challenging these findings,
which was presided over by Judge William Osteen of the North
Carolina Middle District Court. His decision was eventually
overturned by a higher U.S. court in December 2002.
The tobacco industry lawsuit against the U.S. Environmental
Protection Agency
After the publication of the 1993 EPA report Respiratory
Health Effects of Passive Smoking, the tobacco industry
filed a complaint in Flue-Cured Tobacco Cooperative Stabilization
Corporation v. EPA, challenging the legality of the EPA
report and the classification of second-hand smoke as a human
carcinogen responsible for 3,000 annual cancer deaths. The
plaintiffs also alleged that the report constituted regulatory
action in violation of the Radon Act, and that the decision
to classify second-hand smoke as a human carcinogen was arbitrary
and capricious.
Judge Osteen
The presiding judge was William Osteen, of the North Carolina
Middle District Court. In 1974 Judge Osteen worked as an industry
lobbyist for tobacco growers while a private attorney. He
was hired by a tobacco grower organization in Guilford, Alamance
and Rockingham counties, within the state of North Carolina,
to lobby former U.S. Secretary of Agriculture, Earl Butz,
not to go ahead with a plan to eliminate the federal tobacco
production quota program (AP press report, August 20, 1995;
Repace Associates). Many
judicial ethicists criticized Judge Osteen for not recusing
himself from the EPA case.
The ruling
On July 17, 1998, Judge Osteen ruled in favour of the tobacco
industry, striking down the findings of the EPA report. The
ruling was challenged by critics, who alleged Judge Osteen
went beyond the purview of the federal courts by reviewing
the epidemiology and other scientific information in the EPA
report. This strayed far from normal administrative law principals,
and essentially asked for his review of scientific evidence
to be given more credence than the EPA itself. Furthermore,
the EPA report took four years to complete, was an extensive
review of the current medical evidence on the health effects
of second-hand smoke that included the evaluation of hundreds
of individual studies, the public was consulted throughout
the development of the report. Since its publication in 1993,
several other meta-analysis have all come to the same conclusion
that second-hand smoke causes cancer.
EPA wins appeal and ruling overturned
The EPA appealed the decision to the United States Court of
Appeals for the Fourth Circuit. In a unanimous
decision on December 11, 2002, the court ruled that the
EPA report was not a reviewable agency action under the Administrative
Procedure Act (APA). The court held that there were "no
legal and direct consequences of the report which constitute
final agency action." In other words, because the EPA
report had no legal or regulatory function and was rather
advisory, Judge Osteen's judgment was dismissed.
Tobacco industry response and strategy
The 1993 EPA report was identified by the tobacco industry
as a report that would have enormous impact on public attitudes
and practices towards tobacco use. The industry feared that
the EPA findings would influence policy makers to further
regulate second-hand smoke exposure in public places and workplaces.
As discussed in the section on ventilation,
preventing smoke-free legislation is a key element of the
tobacco industry's strategy to protect its profits.
Scholarly research and internal industry documents demonstrate
that the tobacco companies planned to slander the EPA, develop
counter-scientific studies on second-hand smoke research and
launch into a mass disinformation campaign and media strategy.
A February
19, 1993 Philip Morris memo outlines a communications
strategy regarding the EPA report and second-hand smoke. The
strategy includes:
- Grassroots
coalition building and financial backing of supporting hospitality
organizations willing to be "non-industry" messengers.
- Selecting
the right spokespeople to produce the right popular media
response to produce the right public response.
- "Have
non-industry messengers provide reasons for legislators,
business executives and media to view the EPA study with
extreme caution."
- Develop
key messages, such as "Science never should be corrupted
to achieve political ends."
- Create
a national "Restoring Integrity to Science Coalition
(RISC)" that will "educate the media, public officials
and the public about the dangers of 'junk science'...[the]
Coalition is composed of a board that includes scientists,
business executives from 'targeted' industries and other
spokespeople seeking to improve quality of EPA research."
- "Train
Coalition leaders prior to speaking tours…place opinion
articles in key markets…initiate tours of key markets
with Coalition leaders…[and]hold conference on 'junk
science' issues in key market."
A January
13, 1993 Philip Morris memo, from the files of Victor
Han, Director of Communications for Philip Morris, describes
the threat of the EPA findings to the tobacco industry and
sets out the company's media strategy. The following are excerpts
from that memo:
The threat of the second-hand smoke issue to the viability
of the industry is described:
- "Indirectly,
ETS [environmental tobacco smoke] will have considerable
influence on all other tobacco-related legislation, including
taxation, marketing freedoms, etc. Of critical importance
will be the effect on consumers, practically deprived of
more and more locations in which they can smoke, and psychologically
given more incentive to quit."
The EPA is characterized as:
- "…an
agency that is at least misguided and aggressive, at worst
corrupt and controlled by environmental terrorists."
The urgency to retaliate against the EPA is set out:
- "However,
without a major, concentrated effort to expose the scientific
weaknesses of the EPA case, without an effort to build considerable
reasonable doubt about that case - particularly among consumers
- then virtually all other efforts including the effort
to achieve a more balanced approach by OSHA [Occupational
Safety & Health Administration], will be significantly
diminished in effectiveness. This is the toughest challenge
of all, the one against which the clock is ticking the fastest
and the one that should be treated with the greatest urgency."
Philip Morris states that they cannot win based on fighting
the second-hand smoke issue alone (an inadvertent acknowledgment
that second-hand smoke medical evidence is conclusive and
resonates with the public):
- "The
credibility of EPA is defeatable, but not on the basis of
ETS [environmental tobacco smoke] alone. It must be part
of a larger mosaic that concentrates all of the EPA's enemies
against it one time."
Finally, media stories should do the following:
- "General
EPA bashing by credible, authoritative sources (ie. scientists,
mayors, etc.)…and EPA ineptitude and, when possible,
corruption."
Ontario Hospitality Organizations and the Osteen Decision
Despite being overturned by a higher court in December 2002,
the Ontario Restaurant, Hotel
and Motel Association, the Pub
and Bar Coalition of Ontario, the Canadian
Restaurant & Foodservices Association and other opposition
groups continue to reference the "Osteen decision" as sufficient
reason to doubt the medical science on the health effects
of second-hand smoke. The "Osteen Decision" argument is often
made to municipal, county or regional councils that are conducting
smoke-free bylaw campaigns. PUBCO
references the "Osteen Decision" on its web site. What these
organizations fail to tell Councillors, the public, or media
is that Judge Osteen's ruling met with criticism from the
legal and scientific community and was later overturned by
a unanimous decision by the United States Court of Appeals
for the Fourth Circuit. The decision can be viewed at: http://pacer.ca4.uscourts.gov/opinion.pdf/982407.P.pdf.
Back to top
INDUSTRY ATTACK ON THE IARC STUDY
Overview
The tobacco industry's "version" of the landmark 1998 International
Agency for Research on Cancer (IARC) study on second-hand
smoke and lung cancer was another anti-regulation public relations
campaign orchestrated and propagated by the industry. It continues
to be passed on directly or indirectly to opposition groups,
particularly hospitality organizations, fighting against smoke-free
legislation.
Considerable research and real-time events have revealed
the tobacco industry's plot to subvert the IARC study's principal
finding: second-hand smoke causes lung cancer.
In 1988, IARC, a research branch of the World Health Organization
(WHO), undertook the largest European epidemiological study
to date on the relationship between second-hand smoke and
lung cancer. Published results in 1998 demonstrated an increased
risk of 16% for non-smoking spouses of smokers developing
lung cancer from second-hand smoke, and a 17% increased risk
for workplace exposure.
The publication of the study sent shockwaves throughout the
tobacco industry. Internal documents reveal that the industry
knew that the landmark research would ultimately have a profound
effect on the regulation of tobacco products, in particular
smoking in public places and workplaces. The IARC research
was the largest case-controlled study at that time that provided
conclusive evidence that second-hand smoke causes lung cancer.
While the study showed significant increased risk to non-smoking
spouses of developing lung cancer when exposed to passive
smoke, the tobacco industry claimed that that the study did
not demonstrate such an increased risk. According to scholarly
research on this topic, the tobacco industry launched a three-prong
strategy to subvert IARC's work. Part one was the development
of a scientific strategy, which included creating counter-scientific
studies designed to undercut the IARC findings. Part two was
the development of a communications strategy, designed to
manipulate public opinion through the media. Part three consisted
of a government relations strategy, that sought to prevent
increased regulation of the use of tobacco products.
The following sources provide excellent information on the
tobacco industry's IARC strategy:
A few days before the release of the IARC study, the London
Sunday Telegraph incorrectly reported that the WHO was withholding
the study because it demonstrated that second-hand smoke did
not cause cancer, and might even reduce lung cancer risk,
based on information from the British American Tobacco company.
In response, the WHO immediately released a denial to counter
the industry's claims. The March 9, 1998 release was titled,
"Passive
Smoking Does Cause Lung Cancer. Do Not Let Them Fool You".
Tobacco Industry Response to 1998 IARC study
Scholarly research and the analyses of tobacco industry internal
documents reveal the industry's plan to subvert the 1998 IARC
findings through sophisticated public relations, media relations
and government relations campaigns. We highlight two industry
memos, one from the British American Tobacco files (Imperial
Tobacco Canada Limited is a wholly-owned subsidiary of BAT)
and one from the Philip Morris collection.
March
2, 1994 BAT memo: IARC Multicentre Study on ETS and lung cancer:
Some ideas of work that might be useful
The BAT author, Peter Lee, is a long-time industry consultant
who specializes in second-hand smoke research that offers
counter "evidence" to the proven causal relationship
between second-hand smoke and lung cancer. Lee makes the following
suggestions:
"Publish a short paper on the relevance of diet as a
potential confounding factor specifically to lung cancer in
non-smokers."
"Consider carefully, and perhaps conduct a study, relating
to bias due to misclassification of ETS exposure."
"Prepare a criticism of the published paper."
September
2, 1993, Philip Morris Brussels head office memo:
The memo outlines the potential impact of the IARC study and
sets forth a detailed action plan to subvert the findings.
The "Objectives" set the tone for the action plan:
1. "Delay the progress and/or release of the study.
2. Neutralise possible negative results of the study.
3. Counteract the potential impact of the study on Government
policy, the media and on public opinion."
The following is an excerpt from the strategy outline:
"…we
need to move along parallel tracks, simultaneously seeking
to slow down progress at the national clinical level while
seeking to take advantage of budgetary constraints and a
new IARC Director with new priorities, to fully exploit
any openings to get the study shelved altogether. In tandem,
we need to build a solid foundation of scientific criticism
which can be activated with respect to the methodology,
junk science and the misuse of epidemiology within that
context. Finally, we need to be simultaneously working to
create a regulatory and public opinion climate which will
mute the impact of negative study results."
The following are selected points from the action plan:
- "Identify
and establish third party intelligence/influence link with
the new IARC Director."
- "Identify
key national Government influence points within the 16 IARC
doner countries; establish the feasibility for generating
pressure for reorientation/reprioritization of IARC priorities/budget
allocations."
- "Develop
a communications programme to build appropriate public/policy
climate in advance of the study results."
- "Assemble
a crisis communications team/plan to manage the impact of
the release of the study.'
- "Prepare
a critique of the methodology targeted to the scientific
community."
- "Develop
a programme to generate support for 'junk science' and education
on use and abuse of epidemiology, possibly through a coalition
on bad science."
- "Develop
a communications programme to mute/neutralize smoking bans/excessive
restrictions."
The 1998 IARC study continues to be referenced by opposition
groups in Ontario, mainly hospitality organizations, fighting
against smoke-free workplaces and public places legislation.
Back to top
INDUSTRY ATTACK ON ASHRAE
Comprised of approximately 50,000 members, the American Society
of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE)
is an international organization that sets heating, refrigeration
and air-conditioning standards for the United States. Those
standards are generally followed internationally. The standards
are developed through 80 committees, and revised every five
years to reflect new changes in technology and knowledge.
Standard 62 defines standards for acceptable indoor air quality,
and is called Ventilation for Acceptable Indoor Air Quality,
Standard 62-1999. It has been revised in 1973, 1981, 1989,
and 1999.
Once a standard is approved by ASHRAE, it is submitted for
approval to the American National Standards Institute (ANSI).
At this point, ASHRAE approved standards are often written
into building codes, giving them the force of law - this is
why being able to influence ASHRAE is a top priority for the
tobacco industry. Industry employees and consultants continue
to participate in many ASHRAE committees. For example, a tobacco
industry employee is a non-voting member of the Standard 62
Committee and a voting member of the Sources, Source Control
and Ventilation Subcommittee.
Over the last 20 years, the tobacco industry has actively
lobbied ASHRAE to keep Standard 62 inline with industry interests.
The industry has employed different techniques to ensure this.
One example was the proposed revision to Standard 62 in 1996.
The 1996 revised air quality standard provoked a strong reaction
from the industry because the revision declared that there
was no established, acceptable level of second-hand smoke
regarding its carcinogenicity: therefore the only way to ensure
acceptable indoor air quality was to eliminate second-hand
smoke altogether.
In reaction to the proposed revision, the tobacco industry
fueled public comments sympathetic to its concerns. The industry
provided a 239 page briefing book for company employees and
hospitality allies, resulting in 9,000 comments, that by ASHRAE
procedure all had to be reviewed. In June 1997, the language
in the revised Standard 62 was watered down and responsibility
for setting safe levels of exposure to second-hand smoke shifted
to health authorities, which is now set out in Standard 62-1999.
In September 1999, Standard 62-1999 was published. It defines
acceptable indoor air quality as:
"Air
in which there are no known contaminants at harmful concentrations
as determined by cognizant authorities and with which a
substantial majority (80% or more) of the people exposed
do not express dissatisfaction."
Standard 62-1999 included addendum 62e, which set the standards
according to a smoke-free framework. Ventilation rates are
now only set for smoke-free air. It is not possible to have
a building ventilated by ASHRAE standards if smoking is permitted.
Standard 62-1999 also recommends the reduction of "the
concentration of all known contaminants of concern to some
specified acceptable level" in second-hand smoke. To
determine the acceptable level, ASHRAE refers to a list of
health authorities that includes the World Health Organization,
the U.S. Environmental Protection Agency, the American Medical
Association, the American Lung Association, the National Institutes
for Occupational Safety and Health, the National Academy of
Sciences, the Occupational Safety and Health Administration
and the Surgeon General. All of these health authorities agree
that there is no safe level of exposure to second-hand smoke.
There are three excellent sources on the tobacco industry's
influence over ASHRAE and the history of Standard 62 up to
current form:
Back to top
|
