Ruling Mainly a Moral Victory for Big Tobacco

A federal court ruling that the Environmental Protection Agency erred in declaring secondhand smoke a human carcinogen has given Big Tobacco a lustrous but narrow victory that hardly signals a return to the days when smokers would light up where they pleased.

If Friday’s ruling by U.S. District Judge William L. Osteen in North Carolina is upheld on appeal, it still will not disturb hundreds of state and local laws that protect nonsmokers from secondhand smoke.

Nor is the decision apt to cause employers and building operators throughout the country--who have banned smoking on nuisance as well as health grounds--to seriously reconsider their policies.

But tobacco executives enthusiastically embraced the ruling as proof of bias in the agency’s bombshell report that declared secondhand smoke a significant cause of lung cancer, responsible for an estimated 3,000 cases per year.

Although the industry continues to be besieged by lawsuits, the ruling is the latest in a string of legal and political victories. Recently, for example, industry lawyers have persuaded federal judges in several states to deny class-action status for several massive lawsuits filed on behalf of allegedly addicted smokers.

The judge’s repudiation of the EPA’s findings could prove an effective argument in the industry’s worldwide struggle against additional curbs on where its customers can smoke--including its efforts to overturn California’s recently enacted ban on smoking in bars and casinos.

In another possible boost for cigarette makers, the ruling may discourage additional lawsuits claiming injuries from secondhand smoke, of which only a small number have been filed.

On balance, the ruling should be helpful to the industry, but “I wouldn’t overstate . . . [the] benefit,” said Martin Feldman, an analyst with Salomon Smith Barney in New York.

The ruling gives “the industry ammunition where they’ve had none for years,” conceded Matthew Myers, general counsel for the National Center for Tobacco Free Kids. But he predicted it will do little to stem the tide of public smoking bans.

The EPA report hit with explosive force in January 1993. The following June, cigarette makers filed their lawsuit seeking to invalidate the report, arguing that the EPA had cherry-picked data from health studies to support a preordained conclusion.

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Osteen said in his ruling that the EPA had failed to follow procedures required by law in arriving at its conclusion that secondhand smoke belongs--along with radon, asbestos, and primary smoking--on a short list of proven causes of cancer in humans. But he went beyond the finding of procedural failures, concluding that the EPA has not demonstrated “a statistically significant association” between secondhand smoke and cancer.

There is no dispute that secondhand smoke contains many toxic compounds to which nonsmokers are exposed. The industry contends that smoke concentrations are so diluted by surrounding air that bystanders are not exposed to any health risks.

In filing its challenge in North Carolina, the heart of tobacco country, the industry had consciously sought a friendly forum. However, Osteen is the same judge who, in the case of a similar challenge, shocked the industry by ruling last year that the Food and Drug Administration has legal authority to regulate nicotine.

The EPA suit would have been rendered moot had Congress ratified the proposed tobacco truce negotiated last year between the industry, state attorneys general and private anti-tobacco lawyers. Under one provision of the proposed $368.5-billion agreement, the industry would have abandoned the EPA lawsuit.

“We feel vindicated by the federal court’s decision that the EPA wrongly classified secondhand smoke as a cause of cancer,” Charles A. Blixt, general counsel of R.J. Reynolds Tobacco, said Sunday.

But having bloodied the EPA, it’s uncertain where the counterattack goes from here.

For one thing, the case against secondhand smoke is not limited to the EPA report. A more recent study by the California Environmental Protection Agency also concluded that secondhand smoke causes cancer and is associated with a higher incidence of sudden infant death syndrome.

Moreover, the drive to restrict public smoking, although accelerated by the EPA report, had begun long before. Given a growing intolerance for smoking, it appears there is no going back, no matter what the science shows.

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Today, nonsmokers are more numerous and vocal than ever and still remember the routine experience of going home with their clothes and hair smelling of smoke.

For their part, smokers as a group have failed to mobilize against smoking bans because most would like to quit.

In the legal arena, however, Osteen’s ruling could make litigation over secondhand smoke increasingly unattractive. If the ruling is upheld “it could erect a huge obstacle to individuals bringing claims based on their [secondhand smoke] exposure,” said Michael York, a lawyer for Philip Morris.

Only two secondhand smoke cases have ever gone to trial, and only one ended in a verdict. Last fall, after three months of testimony, cigarette makers agreed to pay a $349-million settlement in a class action suit by U.S. flight attendants. Plaintiffs’ lawyers had focused on the EPA report. Industry officials said they feared publicity about the case was distracting Congress from consideration of the global tobacco truce and settled the case only for that reason.

Then in March, the industry was found not liable for the lung cancer death of a former Indiana nurse that her family blamed on secondhand smoke. Only a few other secondhand smoke cases are pending.

In areas where smoking restrictions remain weak or nonexistent, the court ruling could help the industry hold the fort.

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Anti-smoking activists in California said the ruling may jump-start efforts to repeal the ban on smoking in bars and casinos.

The state’s workplace smoking ban, the nation’s toughest, took effect in 1995, but bars and casinos were exempt until January of this year. The industry has joined with tavern owners and others in an effort to restore the exemption for bars.

But Paul Knepprath, a lobbyist with the American Lung Assn. in Sacramento, predicted that the ruling will have little impact “on how people view the science” or on the state’s “policies to protect people from secondhand smoke, including the bar smoking ban.”

Gary Black, a tobacco analyst with Sanford C. Bernstein & Co., said the ruling might also help the industry by feeding “a backlash” against the crackdown on smoking.

There is growing sentiment that “the government’s gone way too far,” said Black. “And this [the court ruling] is another data point that says that.”