A recent federal court decision in North Carolina could set back the gains that antismoking activists have made both in courtrooms and in raising public consciousness about the dangers of secondhand smoke, says Dr. Patricia A. Nolan, director of the Rhode Island Department of Health.
The ruling by U.S. District Judge William L. Osteen Sr., a former paid lobbyist for tobacco farmers, was sharply critical of a government report that declared secondhand smoke caused cancer.
Nolan yesterday called Osteen's ruling "sloppy," and said that "having spent the time to review a good bit of the EPA report, I was really shocked that the judge found it flawed."
At issue is an influential 1993 Environmental Protection Agency report that concluded that smoke is as dangerous as radon or benzene. The report prompted many state and local agencies, as well as private businesses, to institute smoking bans inside offices, sports arenas and restaurants.
In 1994, cigarette makers brought suit, claiming the EPA findings had prompted numerous government and private moves to restrict smoking, thereby harming the industry. Philip Morris, R.J. Reynolds and groups representing growers, distributors and marketers claimed that the EPA manipulated scientific studies and ignored accepted scientific and statistical practices.
On Friday, Osteen agreed, saying the EPA failed to follow standard scientific methods and procedures, and that the agency "cherry picked" its data. And, Osteen said, the EPA had failed to demonstrate the link between secondhand smoke and lung cancer.
On the contrary, Nolan said yesterday, the EPA study was conducted using widely accepted scientific methodology.
"Second," she said, "the EPA report was reviewed by a panel of experts who went over it with a fine-tooth comb. Eighteen independent experts reviewed it and held two public hearings.
"One of the things we've seen the last several years are attacks on science," Nolan said. "There's a real effort to undermine public confidence in scientific studies. There were attacks on previous EPA publications as junk science. Some are motivated by the tobacco companies, others by other industries. To me, that's what Judge Osteen's judgment is really aimed at."
The great harm of Osteen's ruling, Nolan says, is the impact it could have on future lawsuits brought by individuals to recover damages as well as to change work conditions.
"The judge's decision would be used to try to dismiss scientific testimony," Nolan said.
Further, Nolan says she is troubled that decisions such as Osteen's will have impact "on people who are trying to make decisions about whether they're going to expose their children to secondhand smoke or smoke themselves, or allow others to smoke in their houses or businesses.
"I'm more concerned with the impact on people's decision-making. I hate to see the consciousness-raising undermined by a judge saying good science is bad."
Osteen was a private lawyer in Greensboro, N.C., in 1974 when he worked as a paid lobbyist for a group of tobacco farmers. That year, he went to Washington to urge Agriculture Secretary Earl Butz to drop a plan to end federal price supports for tobacco.
In 1996, when Osteen, as a federal judge, was assigned to decide the tobbaco industry's legal challenge of the authority of the Food and Drug Administration to regulate it, antismoking activists were incensed.
But, Osteen ruled last year that the FDA indeed has legal jurisdiction to regulate tobacco.
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