2 1/2 Years Later, OSHA’s Proposed Ban on Workplace Smoking Is Stalled

While President Clinton has won praise for backing the Food and Drug Administration’s drive against youth smoking, a sweeping anti-smoking initiative with less political appeal has languished in the federal bureaucracy, all but forgotten.

The proposed ban on workplace smoking, announced 2 1/2 years ago by the Occupational Safety and Health Administration, is going nowhere--stalled by fierce opposition from tobacco and restaurant interests and fear of antagonizing congressional Republicans who have sought to cut OSHA’s enforcement powers.

The proposal has been downgraded to a list of OSHA “long-term” actions, and nearly all staff members involved with the rule have gone on to other projects. Officials say the smoking ban will remain in hibernation at least through the November election, and might never be adopted.

“We are still very concerned about . . . secondhand smoke in the workplace, but . . . this is extremely complicated and it has stirred up a hornet’s nest,” Labor Secretary Robert B. Reich said in an interview with the Los Angeles Times. Added Reich: “The hostile environment we’ve been working in for the last two years isn’t one in which a sane official would lead with his chin.”

The delay of the OSHA proposal contrasts sharply with the rapid advance of the FDA initiative, with its popular call to protect kids from tobacco marketers. The political appeal of the FDA initiative actually worked against the smoking ban, some observers believe, because the Clinton administration does not want to be seen as singling out one industry or dangerous product.

For the besieged tobacco industry, the delay and possible demise of the workplace smoking ban is a rare piece of good news.

The stakes for the industry are enormous and go beyond legal exposure to claims of illness from secondhand smoke. Surveys repeatedly have shown that most smokers would like to quit, and by forcing them to go longer without a nicotine hit, smoking bans could induce millions of smokers to quit or cut down.

If smoking bans prompted the country’s 48 million smokers to cut down by just three cigarettes a day, retail tobacco sales would drop by roughly $5 billion a year.

But the delay has been criticized by some health officials and anti-smoking groups, who also question why the Clinton administration has failed to act on a long-dormant proposal to ban smoking in federal buildings by executive order. Critics say the delays reflect a broader retreat on secondhand smoke, declared by the Environmental Protection Agency to be a cause of lung cancer and heart disease.

“The single most effective thing you can do to protect people from tobacco smoke is create smoke-free workplaces,” said Stanton Glantz, a professor at UC San Francisco medical school and a vocal proponent of the OSHA ban.

“Not only does that protect nonsmokers from the toxins in secondhand smoke, it creates an environment in which . . . smokers quit,” Glantz said.

Voluntary action by employers, in addition to state and local laws such as California’s virtual ban on workplace smoking, already have created tens of thousands of smoke-free job sites. Nonetheless, a little less than half of all employees work at smoke-free job sites, according to researchers at the National Cancer Institute.

OSHA estimates that about 700 cases of lung cancer a year and up to 13,000 deaths from heart disease are attributable to workplace exposure to secondhand smoke.

The agency’s proposed rule, announced in April 1994, would ban smoking at about 6 million job sites, including restaurants and bars, and exempt only sites with enclosed smoking rooms that exhaust their air to the outdoors. Under the proposal, employers would also have to check and, when necessary, repair ventilation systems to protect workers from other indoor pollutants.

The tobacco companies have spared no effort or expense to refute claims that secondhand smoke is dangerous--a contention they say is based on junk science. They sued the EPA over its landmark report in 1993 that secondhand smoke causes lung cancer. And they attacked the OSHA proposal with unsurpassed vigor.

The companies spent millions of dollars fighting the proposal, hiring an army of lawyers and expert witnesses and flooding the hearing record with thousands of pages of arguments. Leading the charge for industry leader Philip Morris was Patrick Tyson, a lawyer and former veteran OSHA official who for a time ran the agency during the Reagan administration.

The cigarette makers also orchestrated tens of thousands of written comments from employees and customers, many from members of the National Smokers Alliance, a group underwritten by the major tobacco firms.

The hearing record “demonstrated that the proposed rule is legally indefensible” and based on faulty science, said Jeff Furr, a lawyer for R.J. Reynolds, maker of Camel, Winston and other brands. Meanwhile, the anti-smoking group Action on Smoking and Health has accused OSHA of unreasonable delay and has petitioned the U.S. Circuit Court of Appeals in Washington to force the agency to impose the ban.

Pointing out that there were 77 days of public hearings on the rule and more than 100,000 comments, OSHA has contended that the time it has taken “can hardly be considered unreasonable” given the complexity of the case. A hearing on the petition is scheduled for Tuesday.

Insiders say the agency is biding its time, hoping for new faces in Congress after the November election. Republican lawmakers last year tried unsuccessfully to cut OSHA’s enforcement budget by 40%, and have also pushed legislation to constrain its enforcement powers.

But in some ways, OSHA’s situation differs little from that of the FDA--which also faced ferocious opposition from the tobacco industry and anti-regulatory venom from Congress, but still came forward with its anti-smoking measure.

Issued last month, the FDA rules include a ban on tobacco-brand sponsorship of sporting events, prohibit tobacco billboards within 1,000 feet of schools, and restrict advertising to black-and-white text in publications with significant youth readership.

A key difference was that the FDA, unlike OSHA, got strong support from the White House--due partly to FDA Commissioner David Kessler’s politically astute portrayal of smoking as a “pediatric disease.”

That the FDA sought to protect innocent kids--rather than meddle in the business of adults--gave the campaign tremendous resonance. A poll released by an anti-smoking group earlier this month found nearly 85% of Americans approved of Clinton’s support of the rules--including most smokers and citizens of tobacco-growing states.

Packaging the rules “as basically a children’s protective measure” was an “extremely savvy” move, said David Vladeck, head of Public Citizen Litigation Group, a consumer organization. “I mean, who in their right mind is going to be in favor of children smoking?”

But in an editorial last month in the American Heart Assn. journal Circulation, Glantz and coauthor William W. Parmley warned that the “current single-minded focus on children will ultimately mean accepting many unnecessary deaths . . . among current adult smokers and the people around them.”

Glantz also cited the Clinton administration’s failure to move on a 5-year-old proposal to ban smoking in federal buildings as a missed opportunity.

The proposal surfaced in 1991 and was quietly pushed during the final year of the Bush administration by Dr. Louis Sullivan, former Health and Human Services secretary. Sullivan, currently president of Morehouse School of Medicine in Atlanta, was disappointed that Bush left office without signing the executive order.

“I frankly felt . . . that there was not support for this among some of the staff around the president . . . who controlled the flow of papers to him,” Sullivan told The Times.

But early in 1993, a group of Democratic congressmen raised the matter with Sullivan’s successor, Donna E. Shalala, urging her to forward the order to Clinton.

However, no action has been taken. Congressional sources familiar with the issue said administration officials first rebuffed the proposal because Clinton was then seeking a large cigarette tax increase to fund health-care reform--and did not want to appear to be piling on the industry.

When health-care reform collapsed, the youth smoking issue became another reason for holding up the executive order.

In an interview with The Times, a spokesman for Shalala said the administration “is not ruling [the executive order] out in the future.”

“The children’s tobacco initiative was the administration’s priority,” the spokesman said, adding: “There are only so many major initiatives that one can take on.”