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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).


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.

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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.

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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:

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