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ASH: New Frontiers and Victories in the War For Nonsmokers' Rights

by Public Interest Law Professor John F. Banzhaf III,
FAMRI Dr. William Cahan Distinguished Professor Executive Director and Chief Counsel
Action on Smoking and Health (ASH)

Presented at the Medical Symposium of FAMRI {Flight Attendant Medical Research Institute)
in Miami, Florida, May 2007

I’ve been asked to talk with you about the many new battlefronts which we at ASH have helped to open in the war to protect nonsmokers’ rights.
 Here are more than a dozen – all in less than ten minutes.

■ 1. More than a dozen states are virtually smokefree, with smoking banned in all workplaces, including bars and restaurants
    almost a dozen more are effectively smokefree, but with smoking still permitted in bars
    thousands of local jurisdictions have similar prohibitions
    some now beginning to ban smoking even in gambling casinos

■ 2. More than a dozen countries also are already virtually smokefree, with more on the way,
    this occurred largely as a result of a new world antismoking and nonsmokers’ rights treaty known as the “Framework Convention on Tobacco Control”
    which ASH helped to get adopted, and now – through the Framework Convention Alliance – has a major role in enforcement
    Thus there are no more smokey Irish pubs, and, when you arrive at the main airport in Norway, you see the sign:
     "THE ONLY THING WE SMOKE HERE ARE SALMON"
    NEW proposed guidelines under the FCTC to protect nonsmokers can be found at: http://ash.org/fctcguidelines

■ 3. Others people – including Patty Young of FAMRI, Billy Williams, and Jack Cannon –
    are now using the Americans With Disabilities Act [ADA] to obtain additional protection for persons with conditions which make them especially susceptible to tobacco smoke,
    a concept ASH helped pioneer first with the predecessor Federal Rehabilitation Act, and then with the more expansive ADA
    and one which will soon be extended oversees – as you will hear

■ 4. More than 800 jurisdictions, including several states, now ban smoking in various outdoor areas
    commonly on beaches, in parks or playgrounds, on lines, and near entrances to buildings
    Calabasis, CA, with urging from ASH, banned smoking virtually everywhere outdoors – it’s now permitted only in “smokers’ outposts”
    In Calif the Air Resources Board (ARB) has declared tobacco smoke outdoors to be a Toxic Air Contaminant because it can cause lung cancer, heart attacks, and even breast cancer in nonsmokers,  and this ruling may ultimately force outdoor bans throughout state

IMPORTANT:  It is important to note that these various victories, in addition to their primary purpose of protecting nonsmokers, also are a major factor in discouraging smoking itself, in several ways;:
    they make it more difficult, or at least inconvenient, to be a smoker;
    they also remind smoker that smoking makes them stinky and smelly, rather than suave, sexy, and sophisticated as the ads claim

■  5. In almost two dozen states, judges have ruled that nonsmokers may have legal rights to be protected from toxic tobacco smoke which drifts into their apartment or condo – even in the absence of any statute.  We have been successful in using three major legal theories
    trespass by particles
    breach of the covenant of quiet enjoyment
    nuisance (unhealthy & offensive) 
    In addition, Calabasas and Dublin California have by statute declared tobacco smoke to be a legal “nuisance”
    thereby simplifying the problem of brings law suits.
Thus, while a man’s home may still be his castle, he doesn’t have an unlimited right to smoke in it if the smoke drifts into other castles
OR HARMS OR PUTS CHILDREN AT RISK -- WHICH LEADS TO THE NEXT SEVERAL VICTORIES

■  6. In about 35 states, courts have ruled that it is appropriate for judges deciding custody disputes to consider if a parent subjects a child to toxic tobacco smoke in the car or at home
    thousands of court orders have banned smoking in cars, and even in homes, when children involved in custody disputes are involved, some 24-48 hrs before they arrive
    and, in a few cases, parents have lost custody if, after being warned, they continued to subject their child to toxic tobacco smoke

■ 7.  Largely as a result of a new movement ASH began two years ago, more than a dozen states, and many local jurisdictions, have ruled that smoking should be banned in cars and in homes when foster children are present
    particularly in view of the very high concentrations of tobacco smoke to which the children are subjected in cars – much higher than in a typical home or office, or even in a smokey bar.
    This, by the way, seems to be have opened the door to banning smoking in cars when any children are present – something which, prior to this development, could not be done through legislation.
    Now legislators are beginning to realize that banning smoking in cars when only certain children are inside makes no sense, and that all children in cars should be entitled to the same protection from toxic tobacco smoke as those in foster care or involved in custody disputes.

■ 8. So now at least two states –  Louisiana, Arkansas – and several local jurisdictions, including Bangor Maine – have banned smoking when children are present in a car,
    and California is considering a similar measure

IMPORTANT: In addition to protecting children, who are the most vulnerable and helpless victims of toxic tobacco smoke, these bans discourage smoking:
    by making it more difficult to continue being a smoker
    and by forcefully reminding smokers that their smoking is putting their families at risk

■ 9.  Tobacco smoke itself is hazardous, but even the residue of tobacco smoke which remains on a smokers’ clothing and hair after smoking can be dangerous, at least to people who are particularly susceptible.
    So ASH, opening up still another new front in the battle to protect nonsmokers, threatened to take legal action against a university when they forced a sensitive pregnant nonsmoker to work in the same office as a person who smoked – even though not in the office.
    We cited letters from her physician that these tobacco residues endangered not only the health of the nonsmoking woman but also her fetus, and legal precedent that she was entitled to special protection.
    The university backed down immediately – and we hope that this new movement attacking tobacco smoke residue,
    as well as tobacco smoke itself, will likewise continue to spread.

■ 10.  At ASH we think nonsmokers’ rights extends beyond protection from tobacco smoke, and that nonsmokers and their families should have the right NOT to be killed or injured in fires caused by cigarettes –
    cigarettes the major cause of residential fire deaths
    At this moment, more than half a dozen states – including California – and all of Canada, have laws in place which require that only cigarettes which have been demonstrated NOT to cause fires when carelessly dropped by a smoker can be sold. 
    These so-called “fire safe” cigarettes, also called RIP for “reduced ignition propensity,” do not continue to burn as most US cigarettes do,
    Rather, they generally self-extinguish quickly.
    And, one possible additional advantage is that the annoyance of having to relight such cigarettes is that it may discourage consumption.

ECONOMIC: As you may know, the US Surgeon General has estimated that smoking costs the American Economy about $140 BILLION a year,
    and that most of it is paid by nonsmokers in the form of higher taxes and bloated insurance premiums. 
Well, that’s beginning to change, because of several new frontiers in the battle to protect nonsmokers' rights"

■ 11.  I recently obtained a governmental ruling re-establishing the right of health insurance companies to charge smokers more –
    or nonsmokers less, which is really the same thing,
for health insurance, because smoking adds thousands of dollars to the costs of providing medical care to people who smoke. 
More and more companies are moving to do this.
There are at least THREE Reasons Why Charging Smokers More Reduces Smoking:
    1. For many smokers, it provides for the first time an immediate and very concrete incentive for them to quit
    2. Strong reminder that the dangers of smoking are very real
    3. Monthly bills serve as a constant reminder and reinforcer

■ 12. In a related move, ASH is pressing states to begin charging smokers more for health insurance services under Medicaid, and Tennessee has now become the first state to do so. Such charges will also help to reduce smoking, for the same three reasons.

■ 13.  Finally, some companies are going even further, insisting upon a workforce which is both smoke free as well as drug free –
    and refusing to employ or promote workers who smoke, even off the job – since the dramatically-increased health care costs are the same whether they smoke on or off the job.
    ASH is defending that practice, one which has now been adopted by many leading companies, as well as by the World Health Organization.

AND now a quick look at some possible new frontiers in the war to protect nonsmokers’ rights

■ A. ADOPTION:  We are considering asking or even requiring adoption agencies to consider if an adoptive parent is a smoker who will be subjecting the child to toxic tobacco smoke, and perhaps permitting the mother putting up a child for adoption to insist that the adoptive parents be nonsmokers

■ B. AUTO ACCIDENTS; Banning all smoking while driving, as New Delhi has just done, and as England and several other countries are now considering, not to protect children, but rather to help reduce automobile accidents

■ C. PETS - Since there appears to be a growing body of evidence that secondhand tobacco smoke can affect the health of pets as well as people,
    we may want to consider using that as a argument for smokers to quit, OR
    even seeking to use animal protection laws to limit smoking around pets

■  D. ENVIRONMENTAL: With all the recent and apparently growing concern about Global Warming and Environmental Harm, we might want to take advantage of that movement to stress how much smoking contributes to both:
    obviously not just the heat generated by smoking, but by the deforestation it contributes to, the fossil fuel used to grow, transport, and even cure tobacco and to make cigarettes, etc.

■ E. LITTER: A closely related problem which also adversely affects nonsmokers is that of tobacco-related litter
    in many areas, such as beaches, cigs are the major cause of litter
    Not only can we use this as an additional argument for banning smoking in many outdoor areas,
but perhaps even move towards requiring a deposit on cigarette filters such as many states have for soft-drink soda bottles.

 


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