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"Ventilation Solution" in Ontario

In this section, we provide information on municipalities in Ontario that have been lobbied by hospitality organizations working together with the tobacco industry to prevent smoking bans by securing ventilation technology as a compliance option in smoke-free legislation. The working relationship between the Ontario Restaurant, Hotel and Motel Association (ORHMA) and Canadian tobacco companies is laid out in Canadian Tobacco Manufacturers Council (CTMC) memos, in which the ORHMA is depicted as an ally of the industry and supportive of the tobacco industry's "ventilation solution."

We highlight the experiences of City of Toronto and York Region.

THE 'VENTILATION SOLUTION" IN THE CITY OF TORONTO

During the City of Toronto's smoke-free bylaw campaign in 1999, the Ontario Restaurant Association (ORA - today called the ORHMA), was the bylaw's most visible and vocal opponent. Throughout the bylaw debate, the ORA aggressively lobbied City Council for a "ventilation solution" in hospitality establishments. They advocated a heat-recovery ventilation system and directional airflow as an alternative to a 100% smoking ban or designated smoking rooms. The City of Toronto ultimately rejected the proposed ventilation technology, and instead allowed for designated smoking rooms (DSRs) in bars and restaurants as the alternative to a 100% ban. On June 1, 2001, Toronto restaurants and bowling alleys were required to either build DSRs or become 100% smoke-free. On June 1, 2004, the same requirement will apply to bars, pubs and nightclubs.

The connections between the ORA (today the ORHMA) and the Canadian tobacco industry became clear as the bylaw campaign progressed. In May 1999, the ORA held a press conference, during which John Luik spoke on behalf of the organization in response to the Medical Officer of Health's report on the proposed smoking bylaw, entitled, A Harmonized Environmental Tobacco Smoke By-Law for the City of Toronto: Policy Options and Recommendations. John Luik is a well-known tobacco industry consultant, who has also made false statements about his academic credentials (CBC T.V. News and Current Affairs, June 21, 2001; CBC Television). Please click here to read more about John Luik and his ties to the tobacco industry.

Tobacco industry arguments
The May 1999 press conference highlighted arguments frequently cited by the tobacco industry and allied hospitality organizations. Below are those three major arguments, with reasons why they should be rejected:

1) Denial of scientific evidence

Argument: The scientific evidence, taken as a whole, does not support the claim that second-hand smoke causes disease, including heart disease and lung cancer.

Response: There is overwhelming medical and scientific evidence that second-hand smoke is a major cause of disease, including lung cancer, heart disease, asthma, sudden infant death syndrome, middle ear disease, nasal sinus cancer, and is likely a cause of stroke, cervical cancer, breast cancer and cognitive illnesses in children. Please refer to Health Effects of second-hand smoke to learn more.

2) The "Osteen Decision"

Argument: A United States District Court struck down the U.S. Environmental Protection Agency's 1993 report findings that second-hand smoke causes lung cancer and is a "Group A" (or known human) carcinogen. This proves that the "jury is out" as to the exact health effects of second-hand smoke.

Response: In a December 2002 ruling, the United States 4th Circuit Court of Appeals overturned Judge Osteen's decision and unanimously upheld the EPA report. The Court ruled that the EPA report was not subject to court review because it was advisory and not a final agency action. The ruling affirms the EPA's authority to make scientific judgments and issue them without interference. Please click here to read more about the "Osteen Decision".

3) The 1998 IARC study

Argument: A 1998 International Agency for Research on Cancer (a branch of the World Health Organization) study proved that second-hand smoke does not cause cancer.

Response: This argument continues to be widely circulated and is part of a tobacco industry misinformation campaign that was launched after the publication of a 10-year, European study that did prove that second-hand smoke causes lung cancer. Please click here to read more about the tobacco industry's campaign to discredit the IARC study.

Internal documents reveal tobacco industry-hospitality industry link
The exact nature of the relationship between the ORA (and later the ORHMA) and Canadian tobacco companies in their joint effort to push for a "ventilation solution" as a compliance option in Toronto's smoke-free bylaw has been revealed through tobacco industry internal memos, made available after the 1998 Master Settlement Agreement in the United States. Two depositories were created, one in Minnesota and the other in Guildford, England, and together they contain tens of millions of tobacco industry documents.

A July 15, 1998 CTMC memo revealed that the President & CEO of the ORA was working with the CTMC to secure funding for ventilation projects during Toronto's smoke-free bylaw campaign. Terry Mundell, the President & CEO of the ORA/ORHMA, is named:

"[ORA President] Terry Mundell has quietly indicated the Ontario Restaurant Association's (ORA) plan to consult a polling firm with respect to the planned "consultation" polling by the Toronto Board of Health. At the very least, the ORA intends to get an opinion on the board of health's questions and to call into question their methodology publicly. They are also considering the suggestion to undertake their own poll to counter that of the board of health. A request of funding by the HAC [Hotel Association of Canada] will probably be considered.

Terry asked for assistance in proving that a carbon dioxide detector could be a proper measure for ETS as an "anchor" for the ORA position on ventilation. Mundell wants to ensure that the "technical aspects are right." Regrettably, our research on this subject has indicated that no such proof exists as CO2 is an indicator of overall air quality and not specifically ETS."

The memo also shows that at the time of the Toronto smoke-free bylaw campaign, the ORA planned to call Toronto Board of Health methodology into question before having actually assessed it. Finally, it demonstrates that funding for ventilation projects has been provided through the CTMC via the Hotel Association of Canada (please click here for a further discussion on the Association's Courtesy of Choice program).

The Black Dog Pub ventilation pilot project
Funding from the Hotel Association of Canada, as outlined in the July 15, 1998 CTMC memo, went towards the Black Dog Pub ventilation pilot project, carried out in Scarborough, Ontario.

The Black Dog Pub ventilation pilot project was conducted on behalf of the ORA (today the ORHMA). The ORA alleged that the project proved that the ventilation technology tested created the equivalent of air in a regulated non-smoking area in the City of Toronto and should be introduced as a compliance option in Toronto's smoke-free bylaw. The technology tested was a heat-recovery ventilation system that utilized directional airflow. In essence, this is a ventilation system in which air is introduced into a non-smoking room and exhausted out of a room in which smoking is allowed, the purpose being to prevent those in the non-smoking room from being exposed to smoke from the smoking area.

The results of this project were first made public a few days before Toronto City Council was scheduled to vote on the 1999 smoking bylaw, in an attempt to convince Councillors not to require designated smoking rooms, but rather to permit unenclosed ventilation as a compliance option. The results were presented at a news conference chaired by Terry Mundell (Mr. Mundell continues to be the ORHMA President & CEO).

The results had no effect of Council's decision and the bylaw passed.

Dr. Sheela Basrur, Toronto's Medical Officer of Health, also reviewed the ventilation technology tested in the Black Dog Pub pilot project and concluded that ventilation should not be approved as an alternative in Toronto's smoking bylaw. Click here to view her critique, presented in a June 28, 1999 memorandum.

Furthermore, Health Canada was asked to test the Black Dog ventilation technology in order to confirm whether or not it should be used as a compliance option. Former Health Canada Assistant Deputy Minister Ian Potter outlined reasons for refusing to test the technology in a March 17, 2000 memo. The memo states in part that:

"The problem with ventilation as an exposure reduction strategy is that exposure, even if the system is operating at maximum efficiency, is never zero. In other words, in the best-case scenario, there is an explicit acceptance of some level of exposure to non-smokers. In the worst-case scenario, where the ventilation system is never maintained and becomes inoperative, exposure of non-smokers to tobacco smoke is maximized….

Since no ventilation system will protect everybody, and might even delude non-smokers into a false sense of protection, it is concluded that such systems are not as good as a total ban."

The next stage of the Black Dog Pub ventilation pilot project took place a few days before the June 1, 2001 compliance date for restaurants under the Toronto bylaw. The now-Ontario Restaurant, Hotel and Motel Association (ORHMA) held another news conference during which it released an article summarizing the Black Dog Pub study, claiming that since the results of the ventilation project had now been published in a peer-reviewed journal, this constituted the equivalent of a court decision about the validity of unenclosed ventilation. Once again, Toronto Council paid no attention to the publication of this study.

The ventilation pilot project was published in the December 2001 issue of Regulatory Toxicology and Pharmacology (Environmental Tobacco Smoke in the Non-smoking Section of a Restaurant: A Case Study. Jenkins, RA, Finn Derrick, et al. Regulatory Toxicology and Pharmacology, 2001 Dec; 4(3): 213-20). The Hotel Association of Canada was identified as the project funding source on page 219. Subsequent reviews of the published study agreed that there were flaws in methodology, misrepresentation of findings, and that many aspects of the findings had no relevance to the conclusions. Contact OCAT for more information on the technical peer reviews referred to above.

The published study was linked to the tobacco industry in several ways:

Funding for the study was provided by the Hotel Association of Canada, which in turn collected funds for this project from the CTMC.
Roger Jenkins, the study's lead author, is a long-time U.S. tobacco industry consultant. He is a chemist with the Oak Ridge National Laboratory, and specializes in producing studies on indoor air pollution that find low levels of exposure to second-hand smoke. We encourage you to read more about Roger Jenkins and his affiliation to the tobacco industry.
The second author of the study, Derrick Finn, has a history of working with the CTMC. He is identified in a March 30, 1998 CTMC memo as "our technical advisor".
Regulatory Toxicology and Pharmacology is funded in part by the American tobacco company RJ Reynolds. An associate editor of the journal is Gio Gori, a long-time and well-known U.S. tobacco industry consultant who has worked for many years to discredit the scientific case in support of regulation of second-hand smoke exposure. He also co-authored a book with John Luik, Passive Smoke: The EPA's Betrayal of Science and Policy, commissioned and published by the Fraser Institute.

In April 2002, Terry Mundell approached Toronto City Council's Economic Development Committee to ask for renewed consideration of ventilation technology as a compliance option in the City's smoke-free bylaw. His request was rejected.

Most recently, John Luik wrote an article criticizing Toronto's Medical Officer of Health for ignoring the Black Dog Pub project findings (National Post, April 12, 2003. Financial Post, page 11).

THE "VENTILATION SOLUTION" IN THE REGION OF YORK

Despite the passage and subsequent implement of York Region's smoke-free bylaw (with provisions virtually identical to Toronto's), the ORHMA and the Canadian Restaurant and Food Services Association (CRFA) continued to lobby Regional Council to amend the bylaw to allow for unenclosed ventilation technology as a compliance option.

In June 2002, Terry Mundell and Douglas Needham, President of the CRFA, made a joint request to York Region's Health and Emergency Medical Services Committee to conduct an unenclosed ventilation pilot project. The Committee passed a resolution, subsequently endorsed by York Regional Council, that consideration be given to participation and that Regional staff prepare a report describing the conditions under which participation might occur.

On September 5th, 2002, the Committee received the staff report, which recommended that the Region not participate in the project. The Committee approved the staff recommendation by a unanimous vote. Councillors who spoke in support of rejection, including Regional Chair Bill Fisch, made it clear that they were not only rejecting the proposal before them, but that they did not wish any further representations made to them about ventilation demonstration projects. Vaughan Regional Councillor, Joyce Frustralgio, chair of the Health and Emergency Medical Services Committee, summed up York Region's position on ventilation in a June 9, 2002 Toronto Star article (page B4):

"'We took the time, the interest and spent a considerable amount of taxpayers' dollars to assess…the ventilation system that they (restaurant groups) purported to be an excellent one - and it was not. So we in turn have sent back a very clear message: Don't come and waste our time and waste our dime.'"