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Action on Smoking and Health (ASH) has agreed to dismiss its law suit against the Occupational Safety and Health Administration [OSHA] to avoid serious harm to the nonsmokers' rights movement from an adverse action OSHA had threatened to take if forced by the law suit to do so.

In its court filing, OSHA had argued that it might not be feasible to ban smoking in restaurants, and that developing some hypothetical measurement of tobacco smoke pollution might be a better remedy than prohibiting smoking.

However, in its court response, ASH noted that smoking bans in California, Maryland, and many other jurisdictions clearly prove that smoking bans are feasible, and that there is no evidence that any level of tobacco smoke however measured would ever meet OSHA's regulatory mandate to prevent worker deaths.

Nevertheless, it became clear that OSHA would use this (and perhaps even stronger) language in a formal OSHA decision if ASH continued to press its law suit, and that such language could seriously hurt efforts to pass nonsmokers' rights legislation at the state and local level, and to get relief for nonsmokers in court suits and administrative proceedings

Another major threat was that, if the agency were forced by ASH's law suit to promulgate a rule regulating smoking in the workplace, OSHA -- at least under this administration -- would be likely to pass a very weak one.  This weak rule in turn could pre-empt future and possibly even existing nonsmokers' rights law -- a risk no one is willing to take.

ASH therefore reluctantly agreed to dismiss the law suit after consultation with other leaders in the nonsmokers' rights movement.

As a result of ASH's dismissal of its law suit, OSHA will now withdraw its rulemaking proceeding related to workplace smoking, but will do so without using any of the damaging language which they had threatened to include.  Indeed, the notice of dismissal, which is scheduled to appear shortly in the Federal Register, will note three things of importance to ASH and to the nonsmokers' rights movement:
    1. that a great many state and local laws have already curtailed smoking in workplaces and public places;
    2. that OSHA' s decision now does not foreclose further action in this issue at some future time; AND
    3. that evidence supporting the non-ETS portion of the proposal is sparse - and, therefore, by implication, that the evidence supporting the ETS portion of the proposal was not sparse.

ASH Executive Director John Banzhaf  also noted that the decision does not preclude Action on Smoking and Health from taking other actions involving federal and/or state OSHA to protect nonsmokers in smoky workplaces.  He noted that ASH had been a major force in helping to persuade Maryland's OSHA [MOSH] to ban smoking in workplaces; a major victory considering that Maryland is a major tobacco growing state, and one which might be fruitful if pursued in other states.

He also noted that ASH continues to supply nonsmokers with forms under which they can complain about workplace smoking -- a project which may become more effective once the rulemaking proceeding is dismissed and can no longer be used as an excuse for OSHA to refuse to act on individual complaints.

Below is a press release which ASH has issued, followed by the Withdrawal of Proposal by OSHA which will be published shortly in the Federal Register.

LAW SUIT OVER OSHA'S WORKPLACE SMOKING RULE DISMISSED
ACTION FORESTALLS HARM TO MOVEMENT, AND MAY INCREASE NONSMOKER PROTECTION

  A law suit seeking to force the Occupational Safety and Health Administration (OSHA) to take some final action on its long-delayed workplace smoking proceeding has been dismissed as moot since the agency is terminating the proceeding entirely as a result of the law suit.

  The plaintiff, Action on Smoking and Health (ASH), says the suit's dismissal will avoid forcing OSHA to take the action it had suggested in its court filings which could have been very harmful to the nonsmokers' rights movement.

  In those papers OSHA suggested that it might not be feasible to ban smoking in restaurants, and that developing some hypothetical measurement of tobacco smoke pollution might be a better remedy than prohibiting smoking.

  However, in its court response ASH noted that smoking bans in California, Maryland, and many other jurisdictions clearly prove that smoking bans are feasible, and that there is no evidence that any level of tobacco smoke would meet OSHA's regulatory mandate to prevent worker deaths.

  The U.S. Court of Appeals apparently accepted ASH's arguments.  Rather than ruling in OSHA's favor as the agency had requested, the court ordered OSHA to submit a timetable for taking action on the proceeding, thereby prompting OSHA to terminate the rulemaking proceeding effective next week.

  "Thus, even though we are confident that we could have persuaded the court to overrule OSHA if it sought to rely upon those nonsensical arguments in terminating its rulemaking proceeding, we are happy that OSHA is not going to be pressured into having to take such a position in a formal document," says law professor John Banzhaf, ASH's Executive Director.  OSHA also could have issued a very weak rule, and one which would have preempted very strong existing and future state and local laws prohibiting smoking, he said.

  "We might now be even more successful in persuading states and localities to finally ban smoking on their own once they no longer have the OSHA workplace smoking rulemaking to hide behind," Banzhaf predicted. 

29 CFR Parts 1910, 1915, 1926, 1928, Docket Number RIN 1218-AB37, Indoor Air Quality

OSHA is withdrawing its Indoor Air Quality proposal and terminating the rulemaking proceeding.

In the years since the proposal was issued, a great many state and local governments and private employers have taken action to curtail smoking in public areas and in workplaces.

In addition, the portion of the proposal not related to environmental tobacco smoke (ETS) received little attention during the rulemaking proceedings, and much of that consisted of commenters calling into question significant portions of the proposal.  As a result, evidence supporting the non-ETS portion of the proposal is sparse.

Withdrawal of this proposal will also allow the Agency to devote its resources to other projects.  The Agency's current regulatory priorities, as set forth in the Regulatory Agenda, include a number of important occupational safety and health standards.  This notice does not preclude any agency action that OSHA may find to be appropriate in the future.