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Underhand About Secondhand

A Federal Judge Rules that the EPA Put Politics Before Science in their Report that Called Secondhand Smoke a Killer
Jason Sheftell
From the Print Edition:
John F. Kennedy, Nov/Dec 98

You know the look. Every cigar smoker does. It starts with a glance, moves to a grimace and settles into a scowl. People get up and move away. Then the comments start. "Could you put that out?" or "Would you mind?" Lately it's been, "You're not allowed to smoke that here." In the mid- to late-1980s, "here" meant airplanes, certain sections of restaurants and a handful of other locations. In the past five years, it's been stretched to include workplaces, public buildings, entire restaurants, bars and, in recent cases, the outdoors.

Secondhand smoke has become the antitobacco lobby's prized weapon against one's right to smoke. While it may be an annoyance to some, does secondhand smoke kill? In 1993, the Environmental Protection Agency, protector of the country's air, water and soil, released a report declaring that it did. Tobacco smoke caused some 3,000 deaths a year from lung cancer among U.S. nonsmokers, the agency concluded. Classifying secondhand smoke as a Group A carcinogen, the most lethal category of cancer-causing agents, the report, titled "Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders," fueled a nationwide explosion of smoking bans.

On July 17, 1998, five years and more than 750 local, city and state smoking bans later, Judge William L. Osteen Sr. of the U.S. District Court for the Middle District of North Carolina repudiated the 1993 EPA report, voiding crucial sections and suggesting that the EPA manipulated, misrepresented and exaggerated data.

Osteen's decision is one in a string of recent victories for the tobacco industry, and his language suggests a critical shift of the status quo in the war against tobacco. "In this case," the judge's decision stated, "the EPA publicly committed to a conclusion before research had begun; adjusted established procedure and scientific norms to validate the Agency's public conclusion; failed to disclose important findings and reasonings; and left significant questions without answers." Asserting that the EPA manipulated statistics to arrive at a pre-determined conclusion, the judge's ruling, in effect, shifted the blame for presenting dubious data from the cigarette conglomerates to antitobacco forces in the government.

"The EPA report was shoddy science and is a perfect example of policy and political agenda stepping on science," says Jacob Sullum, author of For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health, a 1998 book that explores the war on smoking from a tell-it-like-it-is perspective. A nonsmoker, Sullum sees extremists and crusaders on both the tobacco and the antitobacco sides, and he thinks the scientists, the public and the facts are caught in the middle. "This decision at least evens the score," he says, "and lets people know that the government is just as committed to preventing people from smoking as people think the tobacco companies are to getting them to smoke."

Ordinarily, EPA policy guides are written after a study has been concluded. But in 1988, the EPA began drafting a policy handbook recommending workplace smoking bans to combat the effects of secondhand smoke. Problem was, the EPA risk-assessment study on secondhand smoke was still in the preliminary, predraft stage. Even then-EPA Administrator William K. Reilly knew he was jumping the gun. In a July 1991 memorandum to Louis W. Sullivan, secretary of the U.S. Department of Health and Human Services, Reilly admitted, "Beginning the development of an Agency risk assessment after the commencement of work on the draft policy guide gave the appearance of...policy leading science."

But the policy guideline and the Group A carcinogen classification fit the overall administration policy and Surgeon General C. Everett Koop's 1984 goal of a "smoke-free society" by 2000. Both government and antitobacco advocates sought to control avenues of access to tobacco, raise taxes on smoking products, enact tougher smoking restrictions and decrease smoking through indoor bans.

Did such clear policy dictate the study's conclusion?

Yes, according to Osteen. While admittedly not a scientist, Osteen examined the procedures that the EPA used to gather and study the available information on secondhand smoke, medically referred to as environmental tobacco smoke (ETS). In addition to finding that the EPA had "publicly committed to a conclusion before research had begun," the judge declared as valid the cigarette companies' accusation that the EPA had "cherry-picked" the studies it used to find a statistical link between ETS and lung cancer, excluding those studies that were unfavorable to its premise. Further, Osteen found that the EPA report altered the relationship between "mainstream" smoke (what a smoker inhales) and ETS from chapter to chapter to reach desired conclusions, departed from its risk-assessment guidelines by shifting the statistical confidence interval from 95 percent to 90 percent to achieve a significant link between ETS and lung cancer, and violated procedural requirements set forth by Congress by excluding tobacco industry representatives from its Scientific Advisory Board. In conclusion, the judge wrote, the "EPA produced limited evidence, then claimed the weight of the Agency's research evidence demonstrated ETS causes cancer."

The report's authors disagree with Osteen's findings. "The ruling is frustrating," says Jennifer Jinot, an EPA health scientist and one of the authors of the 1993 agency report. "It wasn't a scientific ruling. He misconstrued reality," she says, claiming the judge ignored the science and focused only on the legal issues.

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