On July 17, in the heart of tobacco country, U.S. District Court Judge William L. Osteen Sr. threw out a pivotal 1993 study by the Environmental Protection Agency linking secondhand smoke to cancer. Although the Greensboro (N.C.) jurist claimed no particular scientific background, he took the unusual step of pronouncing judgment on the report's science--and found it lacking.
"EPA disregarded information and made findings on selective information," Osteen wrote. "The court is faced with the ugly possibility that EPA adopted a methodology for each chapter, without explanation, based on the outcome sought..." The opinion was a near-perfect echo of arguments made by tobacco companies in thousands of pages of comment to the EPA and contradicts the findings of EPA's independent Science Advisory Board.
The EPA hasn't decided whether to appeal. But if the ruling stands, will smoking be cheerily welcomed back into restaurants and offices? Will suits over secondhand smoke be crushed underfoot like the smoldering butt of a Marlboro?
Let's hope not. The EPA study is now only one of hundreds of scientific reports on the hazards of secondhand smoke. Nearly all of them, including the most recent, confirm the EPA's findings--and go beyond it. Among the most comprehensive is a 1997 study by California's Environmental Protection Agency. While the U.S. EPA report dealt with lung cancer, the California document took a broader look. Among its frightening conclusions: Each year in the U.S., secondhand smoke causes up to 2,700 cases of sudden infant death syndrome, 62,000 deaths from heart disease, and 26,000 new cases of asthma in kids.
What's more, industry documents have since come to light showing that the industry had firsthand knowledge of secondhand smoke's dangers. In the 1970s, industry researchers found that carcinogens called nitrosamines--in particular one called NNK--"were the most significant risk in lung cancer both among smokers and among nonsmokers subjected to sidestream smoke," said William A. Farone, director of applied research at Philip Morris Cos. from 1976 to 1984. Farone is now CEO of Applied Power Concepts Inc., a biotech company in Irvine, Calif., and an expert witness for plaintiffs challenging the tobacco industry. In a memo for plaintiffs' lawyers, he noted the industry knew how to eliminate NNK by the late 1980s but instead turned to research on how to make secondhand smoke smell better.
Even so, the industry "will use [Osteen's] decision fraudulently to mount an all-out assault against public and workplace smoking restrictions," says Clifford Douglas, president of Tobacco Control Law and Policy Consulting in Ann Arbor, Mich. In a statement, Philip Morris said the ruling "supports our view that...the enactment of severe smoking restrictions is not justified." But rescinding such laws would be unfortunate. While Osteen's authority as a judge gives him the power to throw out the EPA report, it doesn't give him the power to change the facts.