NewsHawk: Mark Greer Source: Wall Street Journal Contact: http://www.wsj.com/ Pubdate: 20, July 1998 Author: JACOB M. SCHLESINGER Staff Reporter of THE WALL STREET JOURNAL FEDERAL JUDGE SAYS EPA OVERSTATED CANCER LINK TO SECONDHAND SMOKE WASHINGTON -- The tobacco industry won a victory in its battle against public-smoking prohibitions as a federal judge in North Carolina declared that a 1993 Environmental Protection Agency study overstated the proven link between secondhand smoke and cancer. The EPA findings have been a major factor spurring regulations and ordinances enacted around the country curbing smoking in public buildings, workplaces and restaurants. Though U.S. District Judge William L. Osteen's decision apparently would have no direct legal impact on those rules, tobacco executives made clear they would use the opinion to lobby against new restrictions and ease existing ones. The 92-page decision "destroys the basis for those agencies and state and local governments that have banned or restricted smoking because of the EPA's classification," Charles A. Blixt, general counsel for RJR Nabisco Holdings Corp.'s R.J. Reynolds Tobacco Co., said in a statement. "The court's ruling supports Reynolds Tobacco's long held belief that the science does not justify public-smoking bans." The ruling came in a case filed by the tobacco industry seeking to overturn the study, and was issued late Friday in Greensboro, N.C. Effect on Damage Suits Industry lawyers also portrayed Judge Osteen's decision as a major setback for nonsmokers seeking to win damages from cigarette makers. The EPA's finding that "environmentally transmitted smoke" ranks among the deadliest carcinogens has been invoked as crucial supporting evidence in those cases. "This is going to have potentially profound implications on litigation," said Michael York, a Washington attorney for Philip Morris Cos. "This should erect a huge barrier to those who would bring secondhand smoke cases." EPA Administrator Carol Browner said that the agency was sticking by its conclusions, and agency officials said an appeal was likely. Ms. Browner said Judge Osteen's decision was "disturbing because it is widely accepted that secondhand smoke poses very real health threats to children and adults." EPA spokeswoman Loretta Ucelli said the agency's attorneys were optimistic about winning an appeal, though she added that a final decision hadn't been made about taking the case to a higher court. Cigarette Makers' Recent Victories Judge Osteen's decision, first reported in Sunday's Washington Post, is the latest in a series of courtroom and political victories for cigarette makers in recent weeks. Last month, a Florida appeals court threw out a two-year-old landmark verdict against B.A.T Industries PLC's Brown & Williamson Tobacco Corp., in which a jury had awarded $750,000 to an air-traffic controller with lung cancer. That came shortly after the U.S. Senate quashed legislation that would have increased cigarette prices and expanded regulatory oversight of the industry. The tobacco industry has won a number of other lower-profile court cases over the past few months. In its 1993 study, the EPA rated secondhand smoke a "Class A carcinogen," the most definitive link that the regulator can make between a chemical and cancer. While tobacco companies didn't deny the possibility of dangers from secondhand smoke, they argued that the government overstated the connections demonstrated in its own studies. Judge Osteen agreed. He declared that the EPA's finding was based on insufficiently rigorous statistical tests and was therefore invalid. The agency, he wrote, "disregarded information and made findings based on selective information ...; deviated from its risk assessment guidelines; failed to disclose important [opposing] findings and reasoning; and left significant questions without answers." Industry's Mixed Record So far, the tobacco industry has had a mixed record in secondhand-smoke court cases. Last year, the nation's four biggest cigarette makers reached a $349 million settlement in a secondhand smoke suit filed by a group of flight attendants. The companies didn't pay the individuals any damages but agreed to set up a research foundation to further study the matter. Earlier this year, a Muncie, Ind., jury ruled that tobacco companies weren't responsible for a nonsmoking nurse's death from cancer. Two major secondhand-smoke cases are moving toward trial in Mississippi and in New Hampshire, lawyers familiar with the issue said. Plaintiffs' lawyers played down the legal impact of Judge Osteen's decision, noting that other non-EPA studies have reached similar conclusions about the dangers of secondhand smoke. "You can quibble with the methodology, but in scientific and medical communities, there's a consensus that the basic EPA conclusions are valid," said Stanley M. Rosenblatt, the attorney for the flight attendants. Mr. Rosenblatt asserted that, because the ruling hadn't been tested in an appeals court, the North Carolina ruling would have little national impact. But he acknowledged that "this case is helpful to the tobacco industry." - ------------------------------------------------------------------------ Mark Greer Media Awareness Project (MAP) inc. d/b/a http://www.DrugSense.org/ http://www.mapinc.org - ------------------------------------------------------------------------ - --- Checked-by: "Rich O'Grady"