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Archives of Environmental Health: An International Journal Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/vzeh20
Passive Smoking and the Law Leo Uzych J.D., M.P.H. Published online: 03 Aug 2010.
To cite this article: Leo Uzych J.D., M.P.H. (1990) Passive Smoking and the Law, Archives of Environmental Health: An International Journal, 45:2, 72-73, DOI: 10.1080/00039896.1990.9935928 To link to this article: http://dx.doi.org/10.1080/00039896.1990.9935928
PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions
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Passive Smoking and the Law
LEO U N C H , J.D., M.P.H. 103 Canterbury Drive Wallingford, Pennsylvania
AN ESTIMATED fifty million persons in the United States are smokers,’ and 320 000 deaths annually are attributed to smoking. Tobacco smoke contains more than 3 800 chemicals.’ Their deleterious effects may extend to “passive” or involuntary smokers. Reports in the mid-1980s by the Surgeon General and the National Academy of Sciences fueled scientific and public interest in the harmful effects of passive smoking on adults and children.’ The Surgeon General‘s report proclaimed that passive inhalation of environmental tobacco smoke may cause disease.j Debate has resulted in the scientific and legal arenas. Environmental tobacco smoke is comprised of mainstream smoke, sidestream smoke, including vapors.’ Mainstream smoke is inhaled and then exhaled by the smoker; sidestream smoke is the smoke emitted from the lighted end of smoldering t o b a ~ c o Approximately .~ 85% of passive smoke i s sidestream smoke.’ Envtronmental tobacco smoke’ accounts for between 2 500 and 8 400 of the 12 200 lung cancer deaths that occur each year in adults. Passive smoking by adults may exacerbate cardiovascular disease and chronic respiratory symptoms. Passive smoking may be associated with acute and chronic respiratory problems in children,3 increase the risk of cervical ~ a n c e r , ~adversely -~ affect the fetus by lowering birth weight, and increase perinatal mortality and incidence of severe congenital malformations.’ Passive exposure to marijuana smoke may produce a positive urine test.’ I ’ Legal issues of passive smoking have involved claims made pursuant to the United States Constitution. Parties have complained in the courts that an alleged right to exposure to certain events at a stadium was violated because smoking was permitted.’ This was a claim made under the First Amendment, which, in part, grants freedom of “speech” in its various forms and expressions.I2 The argument was not accepted by the 72
Court. It is the author’s understanding that New York City-owned billboards will not renew leases for advertisements for tobacco products. In addition, the city will ban the sale of tobacco in public buildings where smoking i s f ~ r b i d d e n . ’This ~ may infringe freedom of commercial enterprise and challenge First Amendment interpretation. The Ninth Amendment of the U.S. Constitution has been explored in search of weapons to fight the perceived harms of environmental tobacco smoke. This amendment provides that the enumeration in the constitution of particular rights shall not be used to deny other rights retained by the ~ e o p l e . ’Although ~ complaining parties have intepreted this language to include the “penumbral” right to breathe clean air, this argument has been rejected by the court^.^ Plaintiffs have further advanced ”due process” claims under the Fifth and Fourteenth Amendment of the Constitution. Yet, the due process claim to an alleged right to be free of potentially dangerous chemicals and tobacco smoke has not been persuasive in the courtroom. In the Supreme Court’s view, to read the Constitution to protect nonsmokers from passive smoke is an expansive claim, which is better left for resolution by the legislative process.’ Many legislatures have taken the challenge. The administrative code of New York City, for instance, was This local amended to include a Clean Indoor Air law reflects the increasing scientific evidence that passive smoking exposure is linked to a variety of adverse health effects. The goals of the law are to protect the public health and welfare by prohibiting smoking in certain public places and by regulating smoking in the workplace, and to strike a reasonable balance between persons who wish to smoke and nonsmokers who wish to breath smoke-free air. New York City is not alone: an estimated 150 cities have enacted legislaArchives of Environmental Health
Downloaded by [UZH Hauptbibliothek / Zentralbibliothek Zürich] at 02:42 27 December 2014
tion or regulations restricting smoking in public places.'' Likewise, by 1986, 41 states and the District of Columbia had promulgated legislation restricting smoking2 Private-sector restrictions on smoking, especially in the workplace, have also gained momentum. Congress has similarly been closely attentive to smoking-related legislation. Each year, the government spends millions of dollars on public h-ealth initiatives intended to warn people of the health hazards associated with tobacco. Yet, incongruously, tobacco manufacturers have traditionally claimed tax breaks for advertising that encourages smoking. Senator Bradley has proposed legislation in the 10lst Congress (S. 776) designed to amend the Internal Revenue Code to disallow deductions for advertising expenses associated with tobacco products." Senator Bradley has gone one step farther by introducing a bill in the 10lst Congress 6. 7771, which would amend federal law to add the following warning to cigarette products: "Smoking is addictive. Once you start, you may not be able to stop."" Legislation has been introduced in the House of Representatives to restrict the advertising and promotion of tobacco products" and to raise money from increased federal excise taxes on tobacco products for programs to discourage cigarette smoking-particularly by young persons." Despite these legal advances, the war on smoking is far from over. Approximately 30% of adults in this country still smoke cigarettes.20Smoking remains the chief preventable cause of premature death and disability in this country. The average smoker costs his or her employer approximately $4,600 yearly, which results from absenteeism, higher insurance costs, lost productivity, added cleaning costs, and property damage.*' Overall, the annual cost to the nation's economy is about $65 billion.' Although legislative initiatives should be pursued actively at the federal, state, and local levels, particular emphasis should be focused on local ordinances, laws, and regulations. Local legislation is well advised because it has been particularly effective in the past. Local groups concerned about tobacco hazards should work actively for the enactment of strong prohibitional ordinances. It i s also important that school districts develop anti-smoking policies. Data reported in the literature suggest that school smoking policies may be associated with decreased adolescent smoking." Activist groups should become familiar with the structure of local laws or ordinances. Although each local law has unique, small details, such laws include most of the following: legislative findings, definitions of key terms, enforcement mechanism, penalty provisions for violators, and a provision intended to implement the language of the ordinance. Members of the biomedical community should work with lawmakers in the crafting of tobacco-related laws, rules, and regulations. For example, if the ordinance pertains to limitations on smoking in public places, language must specify where smoking is and is not permitted. Details of fines, penalties, and possible actions against repeated offenders must be elucidated clearly. If the ordinance intends to impose a cigarette excise March/April1990 [Vol. 45 (No. 2)]
tax, then a tax rate per pack must be determined. If the pertinent law aims to prohibit sales of tobacco products to minors, then the age maximum for "minors" must be defined. Activists armed with forceful views and supporting fatts should assist legislators as they ponder proposed tobacco-related legislation. Increasing the excise tax on cigarettes, raising the legal smoking age, banning the distribution of free tobacco products, giving the federal Food and Drug Administration regulatory authority over tobacco products, and prohibiting the sale of tobacco products from vending machines are potentially f r ~ i t f u l . ~ ~ - ~ ~ Besides legislative initiative, there is a continuing need for epidemiologic and scientific studies of the health effects of environmental tobacco smoke. Public education efforts must be expanded. Physicians must actively counsel their patients to quit smoking. Society's responses to tobacco products must acknowledge that cigarette smoke is a killer.
********** Submitted for publication June 29, 1989; revised; accepted for publication October 19, 1989. Reauests for remints should be sent to: Leo Uzvch. I.D., M.P.H., 103 Canterbury Drive, Wallingford, PA 19086
********** References
1. Tipping WM. Taking tobacco's measure. Oncology Times, 03/89. 2. Byrd JC, Shapiro RS, Schiedermayer DL. Passive smoking: a review of medical and legal issues. Am J Public Health 1989; 79:209-13. 3. Fielding JE, Phenow KJ. Health effects of involuntary smoking. N Engl J Med 1988; 319:1452-59. 4. Slattery ML, Robison LM, Schuman KL et al. Cigarette smoking and exposure to passive smoke are risk factors for cervical cancer. JAMA 1989; 261 :1593-98. 5. Layde PM. Smoking and cervical cancer: cause or coincidence? JAMA 1989; 261 :1631-32. 6. Anonymous. Passive smoke linked to cervical cancer. Am Med News 1989; March 17:53 (col 1). 7. Seidman DS. Health effects of involuntary smoking, N Engl J Med 1989; 320:1287. 8. Schwartz RH, Hawks RL. Laboratory detection of marijuana use. JAMA 1985; 254:788-92. 9 McBay AJ. Drug-analysis technology: pitfalls and problems of drug testing. Clin Chem 1987; 33338-408. 10 McBay AJ. Cannabinoid testing: forensic and analytical aspects. Lab Management 1985; 23:36-41. 11 Cone El, Johnson RE. Contact highs and urinary cannabinoid excretion after passive exposure to marijuana smoke. Clin Pharmacol Ther 1986; 40:247-56. 1 2 United States Constitution, First Amendment. 13 Anonymous. Tobacco ads nixed in New York: Am Med News 1989; March 1 0 2 (col 1 ) . 14. United States Constitution, Ninth Amendment. 15. Administrative Code, City of New York. Title 17, Chapter 5 ("Clean Indoor Air Act"). 16. S. 776, l0lst Cong., 1st Sess. (1989). 17. 5. 777, 10lst Cong., 1st Sess. (1989). 18. H.R. 1493, lOlst Cong., 1st Sess. (1989). 19. H.R. 718, lOlst Cong., 1st Sess. (1989). 20. Anonymous. Challenges remain in war on smoking. Am Med News 1989; January 13:23 (col 1). 21. Pentz MA, Brannon BR, Charlin VL, Barrett El, MacKinnon DP, Flay BR. The power of policy: the relationship of smoking policy to adolescent smoking. Am J Public Health 1989; 79:857-62. 22. Bankhead CD. Anti-smoking forces plan strategy. Med World News 1989; February 27:46. 23. Pinkney DS. Tobacco industry under fire from anti-smoking suits, policies. Am Med News 1989; January 6:28 (col 3).
73
Archives of Environmental Health: An International Journal Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/vzeh20
Passive Smoking and the Law Leo Uzych J.D., M.P.H. Published online: 03 Aug 2010.
To cite this article: Leo Uzych J.D., M.P.H. (1990) Passive Smoking and the Law, Archives of Environmental Health: An International Journal, 45:2, 72-73, DOI: 10.1080/00039896.1990.9935928 To link to this article: http://dx.doi.org/10.1080/00039896.1990.9935928
PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions
Downloaded by [UZH Hauptbibliothek / Zentralbibliothek Zürich] at 02:42 27 December 2014
Passive Smoking and the Law
LEO U N C H , J.D., M.P.H. 103 Canterbury Drive Wallingford, Pennsylvania
AN ESTIMATED fifty million persons in the United States are smokers,’ and 320 000 deaths annually are attributed to smoking. Tobacco smoke contains more than 3 800 chemicals.’ Their deleterious effects may extend to “passive” or involuntary smokers. Reports in the mid-1980s by the Surgeon General and the National Academy of Sciences fueled scientific and public interest in the harmful effects of passive smoking on adults and children.’ The Surgeon General‘s report proclaimed that passive inhalation of environmental tobacco smoke may cause disease.j Debate has resulted in the scientific and legal arenas. Environmental tobacco smoke is comprised of mainstream smoke, sidestream smoke, including vapors.’ Mainstream smoke is inhaled and then exhaled by the smoker; sidestream smoke is the smoke emitted from the lighted end of smoldering t o b a ~ c o Approximately .~ 85% of passive smoke i s sidestream smoke.’ Envtronmental tobacco smoke’ accounts for between 2 500 and 8 400 of the 12 200 lung cancer deaths that occur each year in adults. Passive smoking by adults may exacerbate cardiovascular disease and chronic respiratory symptoms. Passive smoking may be associated with acute and chronic respiratory problems in children,3 increase the risk of cervical ~ a n c e r , ~adversely -~ affect the fetus by lowering birth weight, and increase perinatal mortality and incidence of severe congenital malformations.’ Passive exposure to marijuana smoke may produce a positive urine test.’ I ’ Legal issues of passive smoking have involved claims made pursuant to the United States Constitution. Parties have complained in the courts that an alleged right to exposure to certain events at a stadium was violated because smoking was permitted.’ This was a claim made under the First Amendment, which, in part, grants freedom of “speech” in its various forms and expressions.I2 The argument was not accepted by the 72
Court. It is the author’s understanding that New York City-owned billboards will not renew leases for advertisements for tobacco products. In addition, the city will ban the sale of tobacco in public buildings where smoking i s f ~ r b i d d e n . ’This ~ may infringe freedom of commercial enterprise and challenge First Amendment interpretation. The Ninth Amendment of the U.S. Constitution has been explored in search of weapons to fight the perceived harms of environmental tobacco smoke. This amendment provides that the enumeration in the constitution of particular rights shall not be used to deny other rights retained by the ~ e o p l e . ’Although ~ complaining parties have intepreted this language to include the “penumbral” right to breathe clean air, this argument has been rejected by the court^.^ Plaintiffs have further advanced ”due process” claims under the Fifth and Fourteenth Amendment of the Constitution. Yet, the due process claim to an alleged right to be free of potentially dangerous chemicals and tobacco smoke has not been persuasive in the courtroom. In the Supreme Court’s view, to read the Constitution to protect nonsmokers from passive smoke is an expansive claim, which is better left for resolution by the legislative process.’ Many legislatures have taken the challenge. The administrative code of New York City, for instance, was This local amended to include a Clean Indoor Air law reflects the increasing scientific evidence that passive smoking exposure is linked to a variety of adverse health effects. The goals of the law are to protect the public health and welfare by prohibiting smoking in certain public places and by regulating smoking in the workplace, and to strike a reasonable balance between persons who wish to smoke and nonsmokers who wish to breath smoke-free air. New York City is not alone: an estimated 150 cities have enacted legislaArchives of Environmental Health
Downloaded by [UZH Hauptbibliothek / Zentralbibliothek Zürich] at 02:42 27 December 2014
tion or regulations restricting smoking in public places.'' Likewise, by 1986, 41 states and the District of Columbia had promulgated legislation restricting smoking2 Private-sector restrictions on smoking, especially in the workplace, have also gained momentum. Congress has similarly been closely attentive to smoking-related legislation. Each year, the government spends millions of dollars on public h-ealth initiatives intended to warn people of the health hazards associated with tobacco. Yet, incongruously, tobacco manufacturers have traditionally claimed tax breaks for advertising that encourages smoking. Senator Bradley has proposed legislation in the 10lst Congress (S. 776) designed to amend the Internal Revenue Code to disallow deductions for advertising expenses associated with tobacco products." Senator Bradley has gone one step farther by introducing a bill in the 10lst Congress 6. 7771, which would amend federal law to add the following warning to cigarette products: "Smoking is addictive. Once you start, you may not be able to stop."" Legislation has been introduced in the House of Representatives to restrict the advertising and promotion of tobacco products" and to raise money from increased federal excise taxes on tobacco products for programs to discourage cigarette smoking-particularly by young persons." Despite these legal advances, the war on smoking is far from over. Approximately 30% of adults in this country still smoke cigarettes.20Smoking remains the chief preventable cause of premature death and disability in this country. The average smoker costs his or her employer approximately $4,600 yearly, which results from absenteeism, higher insurance costs, lost productivity, added cleaning costs, and property damage.*' Overall, the annual cost to the nation's economy is about $65 billion.' Although legislative initiatives should be pursued actively at the federal, state, and local levels, particular emphasis should be focused on local ordinances, laws, and regulations. Local legislation is well advised because it has been particularly effective in the past. Local groups concerned about tobacco hazards should work actively for the enactment of strong prohibitional ordinances. It i s also important that school districts develop anti-smoking policies. Data reported in the literature suggest that school smoking policies may be associated with decreased adolescent smoking." Activist groups should become familiar with the structure of local laws or ordinances. Although each local law has unique, small details, such laws include most of the following: legislative findings, definitions of key terms, enforcement mechanism, penalty provisions for violators, and a provision intended to implement the language of the ordinance. Members of the biomedical community should work with lawmakers in the crafting of tobacco-related laws, rules, and regulations. For example, if the ordinance pertains to limitations on smoking in public places, language must specify where smoking is and is not permitted. Details of fines, penalties, and possible actions against repeated offenders must be elucidated clearly. If the ordinance intends to impose a cigarette excise March/April1990 [Vol. 45 (No. 2)]
tax, then a tax rate per pack must be determined. If the pertinent law aims to prohibit sales of tobacco products to minors, then the age maximum for "minors" must be defined. Activists armed with forceful views and supporting fatts should assist legislators as they ponder proposed tobacco-related legislation. Increasing the excise tax on cigarettes, raising the legal smoking age, banning the distribution of free tobacco products, giving the federal Food and Drug Administration regulatory authority over tobacco products, and prohibiting the sale of tobacco products from vending machines are potentially f r ~ i t f u l . ~ ~ - ~ ~ Besides legislative initiative, there is a continuing need for epidemiologic and scientific studies of the health effects of environmental tobacco smoke. Public education efforts must be expanded. Physicians must actively counsel their patients to quit smoking. Society's responses to tobacco products must acknowledge that cigarette smoke is a killer.
********** Submitted for publication June 29, 1989; revised; accepted for publication October 19, 1989. Reauests for remints should be sent to: Leo Uzvch. I.D., M.P.H., 103 Canterbury Drive, Wallingford, PA 19086
********** References
1. Tipping WM. Taking tobacco's measure. Oncology Times, 03/89. 2. Byrd JC, Shapiro RS, Schiedermayer DL. Passive smoking: a review of medical and legal issues. Am J Public Health 1989; 79:209-13. 3. Fielding JE, Phenow KJ. Health effects of involuntary smoking. N Engl J Med 1988; 319:1452-59. 4. Slattery ML, Robison LM, Schuman KL et al. Cigarette smoking and exposure to passive smoke are risk factors for cervical cancer. JAMA 1989; 261 :1593-98. 5. Layde PM. Smoking and cervical cancer: cause or coincidence? JAMA 1989; 261 :1631-32. 6. Anonymous. Passive smoke linked to cervical cancer. Am Med News 1989; March 17:53 (col 1). 7. Seidman DS. Health effects of involuntary smoking, N Engl J Med 1989; 320:1287. 8. Schwartz RH, Hawks RL. Laboratory detection of marijuana use. JAMA 1985; 254:788-92. 9 McBay AJ. Drug-analysis technology: pitfalls and problems of drug testing. Clin Chem 1987; 33338-408. 10 McBay AJ. Cannabinoid testing: forensic and analytical aspects. Lab Management 1985; 23:36-41. 11 Cone El, Johnson RE. Contact highs and urinary cannabinoid excretion after passive exposure to marijuana smoke. Clin Pharmacol Ther 1986; 40:247-56. 1 2 United States Constitution, First Amendment. 13 Anonymous. Tobacco ads nixed in New York: Am Med News 1989; March 1 0 2 (col 1 ) . 14. United States Constitution, Ninth Amendment. 15. Administrative Code, City of New York. Title 17, Chapter 5 ("Clean Indoor Air Act"). 16. S. 776, l0lst Cong., 1st Sess. (1989). 17. 5. 777, 10lst Cong., 1st Sess. (1989). 18. H.R. 1493, lOlst Cong., 1st Sess. (1989). 19. H.R. 718, lOlst Cong., 1st Sess. (1989). 20. Anonymous. Challenges remain in war on smoking. Am Med News 1989; January 13:23 (col 1). 21. Pentz MA, Brannon BR, Charlin VL, Barrett El, MacKinnon DP, Flay BR. The power of policy: the relationship of smoking policy to adolescent smoking. Am J Public Health 1989; 79:857-62. 22. Bankhead CD. Anti-smoking forces plan strategy. Med World News 1989; February 27:46. 23. Pinkney DS. Tobacco industry under fire from anti-smoking suits, policies. Am Med News 1989; January 6:28 (col 3).
73
