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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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2013 H Street, N.W., Wash., DC 20006, USA, (202) 659-4310.
ASH is a 36-year-old national legal-action antismoking and
nonsmokers' rights organization which is entirely supported by
tax-deductible contributions.
Please credit ASH, and include ASH's web address: http://ash.org