Authors: Richard Kluger
Despite such elaborate planning, pro-consumer legislators blocked passage of the TCJL-backed bill. By the time the legislature reconvened in 1991, a new governor presided over Texas—moderate Democrat Ann Richards—and her lieutenant governor, Bob Bullock, who presided over the state Senate, had
once headed the Texas attorney general’s consumer and antitrust division. Prospects for tort revision seemed bleak, and indeed got nowhere that term.
But Gullahorn persevered. He added new groups to his coalition, got learned articles published seeming to authenticate the grim effect on Texas business of plump awards by juries to product liability claimants, and helped install as head of the TCJL the former chief deputy to Lieutenant Governor Bullock when he had served as state comptroller in the late 1970s. Bullock’s parliamentarian, moreover, was the father of an RJR lobbyist, one of twenty-eight who were helping push the TCJL cause (including six for Philip Morris) by the time the legislature convened to consider what Ralph Nader had tagged “the 1993 Wrongdoers’ Protection Bill.” By then Bullock was not only aboard Gullahorn’s wagon but pushing hard to turn tort revision into law—an effort bolstered immeasurably by the defeat in the 1992 election of three pro-consumer members of the Senate, destroying the thin protective margin that had denied victory to the TCJL forces for four years. Fearing they would be overwhelmed and denied virtually all causes of product liability claims, the trial lawyers’ association succumbed to the Bullock-brokered deal that removed tobacco, liquor, and firearms from the list of actionable products. The victory probably cost the cigarette companies $5 to $10 million.
“This is the biggest gift any legislature has ever given the tobacco industry,” declared DOC’s Alan Blum, who went on to blast Bullock for having accepted campaign funds from the industry and proceeded to do its bidding. Bullock’s spokeswoman replied that the $7,500 he had taken in tobacco PAC money in 1990 was peanuts compared to what others accepted, “and it would be incorrect to conclude that it bought anything. Bob Bullock has always considered himself a consumer advocate.”
Such efforts as the Texas triumph served to safeguard tobacco companies’ treasuries against raids by claimants but did not help smokers escape a spreading web of restrictions by state and local authorities. The earlier wave of clean indoor air acts inevitably prompted a demand for more sweeping laws to create smoke-free environments. States on the cutting edge of social legislation, like California, New York, Washington, and Maryland, were banning or rigidly confining smoking almost everywhere people congregated, and many other states were moving in that direction. By 1995, according to
Common Cause
magazine, more than 600 local jurisdictions had joined in a patchwork quilt of antismoking restrictions across America. Some 100 communities had banned the sale of cigarettes by vending machines. Columbus, Ohio, a conservative, midsize city, barred smoking in its stores, theaters, and bowling alleys, while New York City implemented perhaps the most stringent smoking control law of any U.S. metropolis, banning the practice in most public places except small restaurants, offices occupied by three or fewer people, and set-aside zones that met fixed high-ventilation levels. By then more than three-quarters of all
American corporations with 750 or more employees had either banned smoking outright or sharply limited it, even if state laws did not call for such measures, and more than half of smaller businesses had done the same.
III
ALTHOUGH
the belief in secondhand smoke as a serious health menace had become the most potent contributor to the nation’s deepening war on cigarettes, just how real a peril it was had not been definitively determined. The three authoritative reports in 1986—by the U.S. Surgeon General, the National Academy of Sciences, and the congressional Office of Technology Assessment—had all agreed that further serious research was needed before a true appraisal of the ETS risk could emerge. Smoking control advocates, though, their patience exhausted from decades of evasion and denial by the tobacco industry about the health risks of direct smoking, would not wait for definitive evidence on ETS.
The fact remained, however, that it was proving difficult to develop epidemiological data on ETS drawn from real-life conditions. How heavy a dose of toxic substances smokers themselves directly ingested had long been readily calculable, but no one had been able to figure out practicable ways to determine—except theoretically—dilution rates of ETS and how to classify just who was or wasn’t exposed to it at least to some degree in a society where it was next to impossible to avoid the stuff. It was also questionable science, however tempting, to extrapolate risk ratios at low exposures from the effects observed at higher exposures. As a 1994 study for the Congressional Research Service noted, “The existence of an exposure threshold for disease onset below which many passive smokers fall is not implausible. Many organisms have the capacity to cleanse themselves of some level of contaminants”—which was why public-health policymakers usually did not insist that every unit of air or water pollution be scrubbed from the environment.
By the late ’Eighties, the population studies on ETS remained few, involved a low number of subjects (usually fifty or fewer), and revealed relatively weak links to cancer—they consistently showed a 20 to 30 percent heightened risk for exposed nonsmokers, compared to the risk for those reporting no exposure from spouses or at their workplaces; an increased risk of 100 to 200 percent was generally regarded as significant evidence of causation by epidemiologists. Few antismoking advocates candidly noted the disproportionate bases of the risks being claimed. Only one or two nonsmokers per thousand died of lung cancer, while fifty to one hundred smokers per thousand succumbed to it; by stressing the risk of ETS exposure, the smoking control movement was effectively trivializing the risk from direct smoking, which was
thirty to forty times greater. It was an incendiary, effective, but questionable tactic for those on the side of the angels.
What the antismoking camp most needed was a finding by the Environmental Protection Agency that ETS qualified as what the EPA termed a Group A carcinogen, meaning that it was found to cause at least 1 death per 100,000, the measure by which asbestos, radon, and a dozen other substances were branded human killers and thus subject to government regulation. By such a finding, ETS would be elevated to an official public menace, given the all but universal exposure to it by the American public, and it would hardly matter how relatively slight the risk from it might be for any healthy individual; in the process, the industry’s chief defense—that ETS had not been shown to be a legitimate health risk but was, for some, a source of annoyance, readily mitigated by courtesy on both sides—would be destroyed.
Thus, as the EPA in the late 1980s undertook a formal risk assessment of ETS, the tobacco industry was much vexed at the prospect. If the agency pronounced secondhand smoke carcinogenic to man, the Labor Department’s Occupational Safety and Health Administration (OSHA) would be standing by to issue smoking regulations, which the EPA was not empowered to do, for the proprietors and managers of the nation’s businesses. To strengthen its hand, the tobacco industry decided to encourage research on ETS rather than just stand by helplessly—and, it would be charged, negligently—while unsympathetic government investigators carried on the quest. If the companies had undertaken the research in their own laboratories, had arrived at unfavorable findings, and then had suppressed them, they would have risked charges of fraudulently deceiving the public. If, on the other hand, their own findings exonerated ETS as a serious health peril, they would surely have been disparaged as the work of predisposed scientists. Their decision, therefore, implemented in 1988, was to establish the Center for Indoor Air Research (CIAR), in the dubious tradition of the Council for Tobacco Research, overseen by an advisory board of scientists from leading universities who made grants to investigators unaffiliated with the industry. Maddeningly, as Philip Morris house counsel Steven Parrish commented, “[W]e get criticized for trying to buy off scientists, even though the grants are given with no strings attached.” But CIAR did not function beyond the industry’s close surveillance, as one top Philip Morris scientist conceded, having served on the industry’s “oversight committee” for CIAR, which he characterized as “a creature of the industry.”
CIAR’s. agenda was heavily laden with projects contending that many other factors besides ETS, such as faulty ventilation systems and a rogues’ gallery of other contaminants less visible and aromatic than smoke, caused the real problem with indoor air. But CIAR also sponsored studies of authentic value by reputable investigators, such as the American Health Foundation report “Determination of Nicotine Metabolites by Immunochemical Methods,” a step toward
measuring ETS dosages. The industry, though, also crossed to the shady side of the street by contributing millions of dollars, according to reports by NBC News and
The New York Times
, to a Fairfax County, Virginia-based private company called Healthy Buildings International, which ostensibly conducted objective indoor air pollution tests and reported their findings to owners or tenants. A number of whistle-blowers once employed by the company charged that the data gathered during its inspections, which almost never faulted ETS as a major pollutant, were routinely doctored to reduce the measured level of ambient smoke and that its representatives, coached by tobacco industry personnel, made frequent public appearances during which they downplayed ETS as a serious health threat. Asked about these disclosures, the Tobacco Institute admitted that it had given funds to Healthy Buildings, which it called “a fine firm.”
In gearing up for its ETS evaluation, the EPA enlisted a sixteen-member panel of experts, including six who had received industry grants, to counsel its scientific advisory board. They gave every sign of approaching the task judiciously. The agency was then aspiring to Cabinet-level status and thus was eager to be viewed not as a bunch of antibusiness, power-hungry bureaucrats but as prudent guardians of the public interest, in touch with everyday realities. One result was that over the ensuing four years of the Bush presidency, EPA allowed itself to be pressured and interfered with by tobacco industry lawyers and officials in what Michael Pertschuk, guru of the smoking control movement, called “a classic failure of bureaucratic nerve.” But the delays and hesitations in issuing the EPA risk assessment on ETS were at least partly due to the seriousness of the tobacco industry’s objections to the evaluation process.
At first the EPA took pains to be warily cordial when the tobacco industry lawyers approached them and offered help in the ETS risk assessment. That the agency feared the industry’s wolfish intent, though, was made clear when a high official wrote to the tobacco lawyers in February of 1988, “ … We are neither seeking the advice of the tobacco industry nor opening a formal line of communication.” Yet a month later, EPA sent industry lawyers the draft of a handbook the agency was drawing up for employers and institutional administrators entitled “Understanding Indoor Air Pollution”—a curious procedure in view of the agency’s own concurrent risk assessment of ETS; why not wait for the completion of the latter before undertaking the former?
The industry lawyers’ reply to the invitation to review the handbook gave EPA officials a clearer understanding of what they were in for. Many of the assertions in the draft of the booklet were unfounded, the tobacco people said, and the suggestion that eliminating ETS will “get rid of relevant pollutants is simply wrong.” On the contrary, a large number of studies “show that poor ventilation is by far the most important cause of indoor air pollution,” the industry spokesman added, and the 1986 Surgeon General’s report had not coneluded
eluded that ETS was “a leading cause of lung cancer in nonsmokers,” as the EPA booklet said, and because of all the foregoing inaccuracies, it “seriously misrepresents the consensus of the scientific community.” Later in the year, Tobacco Institute lawyers took further issue with the draft of an EPA “fact sheet” on ETS, part of the agency’s series on indoor pollutants. They claimed to be particularly upset by the assertion, “plainly without justification,” that “ETS contributes 80 to 90 percent of the pollution present” in buildings where smoking was permitted, and pointed out that the Surgeon General had determined that no previously healthy person was likely to develop chronic lung disease on the basis of “involuntary smoke exposure in adult life.”
The war of words escalated the following spring, when the TI enlisted Virginia’s U.S. Senator John Warner, who wrote EPA to ask why the handbook was being written by Robert Rosner, director of the Smoking Policy Institute in Seattle, whom Warner called “an outspoken and vehement antismoking advocate,” and why both the handbook and the fact sheet were being written before the risk assessment had been completed, implying a prejudicial mind-set on the part of the agency. An assistant administrator, William G. Rosenberg, replied to the senator that Rosner was familiar with the subject and that his writings would be closely edited but that “whether or not there are health effects associated with ETS is no longer in question.” Just how serious those effects were, however, was precisely the question being investigated.
Pressure on the agency grew and the exchanges became more pointed by mid-1989, when the Tobacco Institute’s attorney, John Rupp of Covington & Burling, told Rosenberg that the TI had received “numerous calls from smokers around the country” who had lost their jobs, been shunted to undesirable locations, or been denied the opportunity to compete for a job because the person in charge of their office “had decided that ETS has been proven to be a health hazard.” While it was true that the TI had been allowed to comment on the handbook and fact sheet drafts, “at no time has there been an opportunity for a scientific discussion of fundamental issues regarding ETS,” Rupp wrote, adding, “All opposing data and views are simply ignored. We cannot understand how such an approach can be justified.” The price the industry was now paying for all the years it had acted to confuse the public through its disinformation efforts was revealed by Rosenberg’s response: “Frankly, the tobacco industry’s argument … would be more credible if it were not so similar to the tobacco industry’s position on direct smoking, despite the estimated 50,000 studies linking smoking with disease in humans.”