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Bad Science, Bad Laws

Marvin R. Shanken
From the Print Edition:
Claudia Schiffer, Jul/Aug 97

Just when you thought it was time for cigar smokers to relax a little bit and enjoy the newfound popularity of their pastime, along comes an insidious assault that would effectively end the existence of all cigar bars, clubs and any place where smoking takes place, maybe even your own home. Not possible, you say? Read on.

The culprit is the Trojan horse being readied by the federal government's Occupational Safety and Health Administration (OSHA). The specific proposal is called the Indoor Air Quality standard, which was proposed in the Federal Register in 1994 and is awaiting action. No, that's not legislative action, or a vote of Congress, or even a referendum, but a regulation that will be promulgated by a bureaucratic organization, OSHA. There will be no easy public recourse once it takes effect.

Who can be against clean air? We all would like to have a less polluted environment to live or work in. But the Indoor Air Quality regulation identifies environmental tobacco smoke (ETS), or secondhand smoke, as one of the primary culprits in sullying the quality of indoor air. It gets singled out into a separate category even though the report identifies a host of other indoor contaminants such as adhesives, wall and floor coverings, carpeting, copy machines, bug parts and paints. In those categories, the component pollutants are listed without specific numbers, while for ETS, there is a lengthy discussion of the concentrations of each chemical found in it.

Like the Environmental Protection Agency's designation of secondhand smoke as a Class A carcinogen, on par with gasoline fumes, this report also relies on a hodgepodge of outdated secondhand smoking studies and assumptions that upon close reading don't justify the rule. In fact, the OSHA report cites the EPA report as one justification; i.e., one instance of bad science supporting a result that is itself without justifiable scientific foundation.

What does the rule say? I quote: "It is OSHA's intent that no work of any kind shall be performed in a designated smoking area when smoking is taking place." Taken to its logical conclusion, this would eliminate all smoking areas, even in restaurants and bars, because any employee of such an establishment could not work where smoking was taking place; even in a room that was separately ventilated, no work could take place, so you couldn't have a waiter or a busboy enter it. That would include clubs and cigar bars and even Cigar Aficionado's offices, where my staff tests cigars in their offices for each issue's tasting.

Of course, OSHA says it is not banning smoking; all an employer has to do is create a separately ventilated smoking area with a negative pressure (so no nasty particles can escape when the door is opened); but no employee could go in there while working. And this regulation can reach far beyond the standard workplace. Suppose you had a home office where you smoked, but you also had a secretary who came in to type once a week--no smoking allowed in your home.

Why isn't this rule already in effect? Well, when OSHA asked for public comment, they received more than 100,000 comments. That's right. Most regulations like this get fewer than 100 comments. And, the majority were against the rule. The clamor helped slow down the steamroller, and it now languishes in the director's office.

It's time to make more noise. The current director, acting assistant secretary Greg Watchman, has several options: he can finalize the rule and put it into effect; he can let it sit and not do anything; or he can start over, announcing that the rule was flawed and should be reconsidered to create a more reasonable approach, even a compromise. But we shouldn't be complacent. Don't just look at this as a simple regulation. It's a blatant attempt to deprive cigar smokers of their rights. If you agree, please write the director at the Occupational Safety and Health Administration, 200 Constitution Ave, N.W., S-2315 Washington, D.C. 20210 and send me a copy of the letter so we can follow up later this year.

Marvin R. Shanken
Editor & Publisher

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