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Action on Smoking and Health (ASH) has won the second round in its law suit against the Occupational Safety and Health Administration (OSHA) over smoking in the workplace.  More specifically, ASH's law suit asks the court to force OSHA to issue a rule the agency proposed more than six years ago to ban smoking in virtually all workplaces including offices, stores, shopping malls, restaurants, and even bars.

In ASH's first win, the U.S. Court of Appeals refused OSHA's request that ASH's legal action be dismissed without even requiring the agency to answer ASH's arguments, and ordered the agency to respond to ASH's allegations of unlawful delay and needless deaths.  For more information, see  ASH Wins Round 1 in Workplace Smoking Suit [07/09/01]

Now the court has refused OSHA's second request that it throw out ASH's law suit based upon the agency's arguments intended to justify its delay.   Instead, the US Court of Appeals has ordered OSHA to submit a timetable for completing work on this rulemaking proceeding.

Below is a press release issued today by ASH.

To read a copy of ASH's law suit against OSHA, click here: ASH Sues to Ban Workplace Smoking [05/07/01]

To read a copy of ASH's opposition to OSHA's motion to dismiss, click here: ASH Wins Round 1 in Workplace Smoking Suit [07/09/01]

To read a copy of ASH's response to OSHA's arguments allegedly justifying even more delay, click here:  ASH Files Reply to OSHA's Arguments [09/24/01]

  The U.S. Court of Appeals has ordered the Occupational Safety and Health Administration [OSHA] to provide it with a timetable for concluding a rulemaking proceeding to ban smoking in virtually all workplaces.  The rule includes all offices, stores, shopping malls, restaurants, and even bars.

  The unanimous order comes in a law suit filed by Action on Smoking and Health (ASH) which argued that OSHA unreasonably delayed in acting to protect American workers from secondhand tobacco smoke, and in adopting a rule it proposed years ago to ban smoking in virtually all U.S. workplaces.

  When it proposed the rule in 1994 — in response to an earlier law suit by ASH — OSHA conservatively estimated that the rule would save almost 8,000 lives a year.  Although OSHA now argues that the number of workers killed each year by secondhand tobacco smoke has declined because many jurisdictions have adopted smoking restrictions, ASH argued that the number of deaths from tobacco smoke pollution in the workplace still exceeds all the deaths supposedly prevented by all of OSHA's existing or proposed rules.  Most states do not currently prohibit smoking in workplaces.

  OSHA also argued that banning restaurant smoking might not be feasible.  But ASH reminded the court that California, Maryland, and a number of other states and localities have successfully banned smoking in restaurants.

  The court's order comes on the heals of a study published in the Journal of the American Medical Association showing that exposure to secondhand tobacco smoke for as little as 30 minutes — less than the time to eat a typical restaurant meal — can damage a nonsmoker's heart to the point where his risk of a heart attack is the same as a smoker's.  This is especially important because the U.S. Centers For Disease Control estimates that over 60,000 nonsmokers are killed each year by heart attacks from exposure to smoke.

  ASH's law suit sought to require OSHA to act on its proposed rule within 90 days of the court's order.  It now appears the court will review the timetable OSHA is now being required to prepare before deciding how quickly to order that OSHA finally act on its rule to ban workplace smoking.