TESTIMONY OF KANSAS ATTORNEY GENERAL CARLA STOVALL
BEFORE THE SENATE ENVIRONMENT & PUBLIC WORKS COMMITTEE
APRIL 1, 1998
"ENVIRONMENTAL TOBACCO SMOKE ISSUES RELATIVE TO THE JUNE 20 AGREEMENT"

Addressing concerns which arise from environmental tobacco smoke (ETS) and related issues are important components of the June 20 agreement between the Attorneys General and the tobacco companies. Notwithstanding its significance, it is often an overlooked issue because it does not generate the controversy that other provisions do. The Attorneys General appreciate the time this Committee is dedicating to this particular issue and are hopeful that our work on the settlement will be helpful to this Committee as you consider the deadly consequences of environmental tobacco smoke.

As you know, there is no minimum federal standard governing smoking in public places or in the workplaces of millions of Americans. As a result, nonsmokers are regularly subjected to air which has been contaminated by their smoking friends and colleagues. Is "contamination" too harsh a word to use in this context? Not when we know that tobacco smoke contains more than 4,000 chemical compounds, including 200 known poisons (such as benzene, formaldehyde, and carbon monoxide) and 50 other chemicals which cause cancer in humans and animals. Six years ago the Environmental Protection Agency classified ETS as a Group A carcinogen - a substance with no safe level of exposure.

Environmental tobacco smoke comes from two sources every time a pipe, cigar or cigarette is lit. "Mainstream smoke" is what the smoker exhales after inhaling and once exhaled becomes part of the air nonsmokers breathe. The more dangerous source is called "sidestream smoke." This is what is produced when the tobacco product is burned. A lit cigarette sitting in the ashtray is producing "sidestream smoke," which has even higher concentrations of tar and nicotine than "mainstream smoke" and more cancer causing substances too. This is because the cigarette is burning at a lower temperature when sitting on the ashtray and results in dirtier and less complete combustion because it is not drawn through the cigarette's filter. Thus, the "mainstream smoke" a nonsmoker inhales is more toxic than the filtered direct smoke the smoker breathes.

Americans know all too well how many young men and women this country lost in the entire Vietnam War. We lose almost that many every year to second hand smoke! Fifty-three thousand nonsmokers die each year from exposure to environmental tobacco smoke! These preventable deaths are caused by heart disease and lung cancer resulting from ETS.

Not everyone who is exposed to ETS dies from its consequences - but prolonged contact with environmental tobacco smoke is detrimental. Infants whose mothers smoke are at an increased risk of dying from Sudden Infant Death Syndrome (SIDS); exposure to second hand smoke causes between 150,000 and 300,000 respiratory infections in children each year; between 7,500 and 15,000 children are hospitalized each year as the result of respiratory infections caused by ETS; second hand smoke exacerbates asthma in about 20% of children who suffer from asthma; the arteries of nonsmokers exposed to ETS thicken 20% faster than in nonsmokers with no ETS exposure; it is linked to cervical cancer, brain tumors, aggravated asthmatic conditions, impaired blood circulation, bronchitis, pneumonia, stinging eyes, sore throats and headaches; and ETS is linked with a 20% increase in the acceleration of arteriosclerosis.

Some of the exposure to second hand smoke occurs in homes across America. Children have parents who smoke. In fact, EPA estimated in 1993 that one-half to two-thirds of all children in the US under six live with a smoker and living with even one smoker increases the risk of lung cancer. Children's exposure to ETS is especially grave because they absorb more nicotine and toxins in their lungs and they breathe more per kilogram of body weight than adults. Nonsmokers married to heavy smokers have 2-3 times the rate of lung cancer as nonsmokers living with nonsmokers. Nonsmoking wives who were married to smokers have a 30% increased risk of lung cancer as do nonsmoking wives with nonsmoking husbands. Nonsmokers exposed to twenty cigarettes a day have twice the risk of developing lung cancer. The Attorneys General never intended to ask the federal government - or state governments - to regulate these situations. While gravely affecting the health of the nonsmokers, smoking in private homes was never at issue.

What is at issue, however, is the exposure to environmental smoke which occurs in public facilities or the workplace. Approximately 80% of nonsmokers' exposure to ETS occurs in the workplace! OSHA has estimated that between 14 million and 36 million nonsmokers are exposed to ETS at work. The Center for Disease Control has determined that workers exposed to ETS have a 34% higher risk of lung cancer than those who work in smoke-free facilities.

Workers in a smoking facility are not the only ones that these provisions would protect. Customers or patrons of the establishment would also benefit. This is important when we consider that the U.S. Surgeon General has estimated 800,000 children are exposed to ETS at their schools and daycare facilities.

For these reasons, the Attorneys General proposed strong requirements to minimize the exposure of nonsmokers to environmental tobacco smoke. The provisions would:

* Restrict indoor smoking in public facilities (i.e., any building regularly entered by ten or more individuals at least one day per week) to ventilated areas with systems that --

-exhaust air directly outside;

-maintain the smoking area at "negative pressure;"

-do not recirculate the air inside the public facility;

* Ensure no employees would be required to enter a designated smoking area

while smoking is occurring;

* Exempt restaurants (except "fast food" restaurants), bars, private clubs, hotel guest rooms, casinos, bingo parlors, tobacco merchants and prisons;

* Direct OSHA to issue regulations implementing and enforcing the standard within one year of the legislation. Enforcement costs would be paid from industry payments pursuant to the settlement agreement and federal legislation.

As envisioned by the Attorneys General, the legislation regarding environmental tobacco smoke would not preempt any state or local restriction equal to or stricter than this standard. It would not affect any federal rules restricting smoking in federal facilities.

While the federal government has the authority under current law to implement regulations having the same outcome as this standard, the practical matter is that no such regulations exist. OSHA has a proposed rule that was drafted over four years ago. The agency conducted more than six months of hearings which ended two years ago - and, yet, we still have no final regulation in existence. I have been told that a final regulation is still at least four years away!

Including this ETS standard in federal legislation currently being considered means we could put on an express track the protection of nonsmokers in their working environments and in public places. In the four additional years that would be required for the OSHA regulation to be issued, another 212,000 nonsmoking Americans will die. And approximately 80%, or 169,600, will be from the exposure to the smoke from their coworkers. We cannot afford to wait!

There is nothing revolutionary in this proposal. As of 1993, 45 states and the District of Columbia restricted smoking in public places. Forty-four states and the District have legislation which addresses smoking in public workplaces and twenty-three which address it in private workplaces. In 1994, the Department of Defense, the largest employer in the US with nearly 3 million employees, banned smoking in all DoD facilities worldwide. In 1991, a survey of 833 companies was undertaken and found 85% had adopted a policy restricting smoking. And US flights of six hours or less ban smoking. We have been heading in the right direction for years now. This agreement gives us the impetus to take the final step and uniformly and consistently restrict smoking in public places.

The provisions of the June 20 agreement on ETS are modeled extensively after the provisions in Congressman Henry Waxman's 1994 bill which was voted out of Committee. They do, however, provide exemptions (e.g., restaurants, bars) which his current bill, H.R. 1771, does not. The provisions hammered out at the negotiating table last spring and summer were approved by the Attorneys General, of course, but also by the tobacco companies without objection.

Understandably, business owners may have reservations about the financial impact of such regulation. There is nothing in this standard which requires expensive retrofitting or renovation. I have heard that opponents estimate this will cost American businesses $70 billion. We have seen nothing which would substantiate such a calculation. To avoid any cost at all associated with this provision, a business owner could maintain a smoke free environment. But if he/she chose to allow a smoking area within the business, the smoking area simply has to be vented to the outside. No fancy filters or cleaning devices. This standard is comparable to what hundreds and hundreds of cities across America have already implemented without considerable expense or obstacles to business owners.

As a matter of fact, cost savings would be realized which could offset any expense a business owner undertakes to comply with this standard. Businesses which currently allow smoking incur an average of $500 per smoker annually for property maintenance and cleaning costs. In addition to those expenses, are the lost-productivity costs of exposing employees to environmental tobacco smoke. On a generalized scale, EPA estimates that the elimination of exposure to ETS in the workplace would result in savings between $35 and $66 billion annually by the avoidance of illness and premature deaths.

Certain businesses worry that smoking restrictions or a total smoking ban would cause a reduction in customers. Restaurants most notably voice this concern. But a study published in the American Journal of Public Health compared fifteen cities that prohibited smoking in restaurants with fifteen cities that had no such prohibition. No significant economic impact was demonstrated.

Other studies show that smokers do not avoid smoke-free locations. In another look at the issue, forty convention groups were surveyed to determine whether they would be dissuaded from booking in a smoke-free facility. Only the group representing the tobacco industry found that a controlling factor. Another study published in the American Journal of Public Health found that 90% of patrons would maintain or increase use of restaurants if they became smokefree and 89% would maintain or increase their patronage at bars and clubs. Smokers made up 68% and 56%, respectively, of those totals.

Public support for these restrictions is overwhelming. Almost 80% of Americans believe there should be restrictions on smoking in public places; eight out of 10 nonsmokers are annoyed by second hand smoke; and 90% of adults believe people have the right to breathe smokefree air.

The Attorneys General believe this is a reasonable proposal which would provide critical protection to nonsmokers, while still giving flexibility to business owners. The proposal does not create something unheard of prior to June 20 - it merely builds upon the trend this country has seen during the last decade. The proposal acknowledges the serious health risks of environmental tobacco smoke and takes measured steps to reduce the unnecessary and preventable loss of life.

Thank you for the opportunity to present the view of the Attorneys General on this important issue.

(Sources for this testimony include publications by the American Lung Association, the American Cancer Society, ENACT, and "Tobacco: Biology and Politics," by Stanton A. Glantz. Copies can be made available upon request of the Committee members.)