KWAME HOLMAN: Thirty-four years after a landmark surgeon general's report issued the warning, there is no dispute cigarette smoking is a health hazard. But whether the smoke generated in the process is a threat to nonsmokers nearby long has been controversial.
In 1993, the federal environmental protection agency said second-hand smoke is harmful. The EPA report stated second-hand smoke "is responsible for approximately 3,000 lung cancer deaths each year in non-smoking adults and impairs the respiratory health of hundreds and thousands of children." Six months later, the tobacco industry filed a lawsuit that challenged the EPA's findings.
Last week, in North Carolina, the federal judge in the case sided with the industry, saying the EPA made serious mistakes five years ago in evaluating the risk of second-hand smoke. In his ruling, Federal District Judge William Osteen said the "EPA publicly committed to a conclusion before research had begun" and the "EPA disregarded information and made findings on selective information."
That, the judge said, put into question the agency's 1993 decision to designate secondhand smoke a Class A carcinogen or a proven cause of cancer in humans. Only 15 other highly reactive substances, including asbestos and radon, are ranked Class A carcinogens.
The EPA report on second-hand smoke was the impetus for hundreds of jurisdictions around the United States to ban smoking in public places, including restaurants, office buildings, and airports. The report also has been used as evidence in lawsuits against the tobacco companies. In a video news release a tobacco executive said the new ruling attacking the EPA report is likely to undercut the basis for future suits claiming injury from second-hand smoke.
ELLEN MERLO, Senior Vice President Corporate Affairs, Philip Morris: I think was this ruling gives us is an opportunity for reasonable dialogue, for developing reasonable options and solution to deal with the whole issue of secondhand smoke, like ventilation technology, working together to ensure that we're upholding the rights and the preference of both smokers and nonsmokers alike.
JIM LEHRER: Carol Browner is the administrator of the Environmental Protection Agency. Charles Blixt is the Executive Vice President and General Counsel of R.J. Reynolds tobacco company. He was a lead lawyer of the industry when it first challenged the EPA.
JIM LEHRER: Was the EPA wrong in 1993, Ms. Browner?
CAROL BROWNER, EPA Administrator: We stand by our science. I think there's wide agreement. The American people certainly recognize that exposure to second-hand smoke brings with it a whole host of health problems, not only lung cancer and those who choose not to smoke but a lot of problems for our young children. The EPA report found problems in terms of respiratory illnesses. Subsequent studies have shown decreased birth weight, asthma in children, sudden infant death syndrome. There are real public health problems and what we did is we put out a scientific report that was independently peer reviewed. Eighteen well-respected scientists looked at it, agreed with the conclusion it is EPA reached. The judge simply made a procedural ruling.
JIM LEHRER: But the judge said you had foregone conclusions and ignored evidence that didn't support your conclusion.
CAROL BROWNER: Absolutely not true. We all know that the EPA report in 1993 was only one in a series of reports. You had in 1986 the Surgeon General saying tobacco smoke was a problem. You had the National Academy of Sciences. As a result of those 1986 reports, it is true that EPA sought to educate the American people about the dangers of tobacco smoke. That's part of our job, to educate the American people. But then we undertook a comprehensive review, 31 independent scientific studies were reviewed, 18 scientists from outside of EPA looked at the conclusions, the weight of the evidence, and they all unanimously agreed that second-hand tobacco smoke brings with it real health problems.
JIM LEHRER: And the judge's decision last week doesn't change anything from your point of view?
CAROL BROWNER: We stand by our science. I think the judge made a procedural ruling. What he essentially said is that industry, that R.J. Reynolds should have sat at the table to review the science. And we don't agree with that. We think independent scientists -- as we did -- are the appropriate people to review a body of scientific evidence.
JIM LEHRER: Mr. Blixt, in your point of view a procedural ruling or something sweeping about second-hand smoke?
CHARLES BLIXT, R.J. Reynolds executive vice president and general counsel: This opinion wasn't about any abuse of procedure, Jim. This opinion was about abuse of power by the EPA. What the EPA essentially did was deliberately mislead about the American people what about what science has proven about second-hand smoke. The judge's opinion cut right to the heart of that science. Sixty pages of the opinion discussed the science that the EPA supposedly conducted in evaluating and conducting this risk assessment.
And as your lead-in story said, the judge specifically found that the EPA came to a pre-determined conclusion then cherry picked data, excluded any data which didn't support their pre-determined conclusion, changed the rules of science, didn't follow the law, and didn't follow its own internal regulatory procedures. All of which the judge used to strike down six of the chapters of the EPA report.
JIM LEHRER: So is it your position, the industry's position, that second-hand smoke is not harmful to health?
CHARLES BLIXT: It's not our position that second-hand smoke is not harmful to health. It's our position that the science doesn't support any finding or any conclusion that second-hand smoke causes cancer or heart disease or any of these other diseases that were listed. In fact, if it were proved, why would the World Health Organization be currently conducting the largest single study of this kind, spending millions of dollars, a study that's been going on for several years and the preliminary report of which says that the risk of cancer from second-hand smoke has not been established.
JIM LEHRER: And that's your position? Not that it isn't there, that it may not be possible...that it just hasn't been established yet?
CHARLES BLIXT: Well, science can't prove a negative, Jim. Science can't prove that something doesn't happen. All they can do is look at ate hypothesis, not a pre-determined conclusion, as the EPA did, but form a hypothesis, undertake a scientific inquiry and determine if the hypothesis is proven by the data and in this case it's not.
JIM LEHRER: Let's move together from the 1993 report to where we are today. Make your best case for the fact that second-hand smoke is, in fact, a health hazard, does, in fact, cause 3,000 people to die each year.
CAROL BROWNER: Study after study, studies that came after the EPA study-
JIM LEHRER: Such as?
CAROL BROWNER: The French study issued by the medical department of France. The U.K. study. Even the World Health Organization study. You know, let's not mislead the American people. I have a statement from the scientists in the World Health Organization and they say their results support previous studies in Europe and the United States which indicate that passive smoking -- secondhand smoke -- increases the risk of lung cancer in humans. That's a statement from the scientists.
CHARLES BLIXT: But it's not...
CAROL BROWNER: Excuse me, hold on, my turn.
CHARLES BLIXT: She's reading from a report. The biennial report of the International Agency for Research...
CAROL BROWNER: I'm reading from a statement from the scientists who did the study and I'm...
JIM LEHRER: Let her answer the question.
CAROL BROWNER: More importantly, what you have here is a judge. A judge in Winston-Salem, North Carolina essentially trumping the scientific opinion of 18 independent scientists. Trumping the opinion of the Surgeon General, the National Academy of Sciences. You know, there's nothing else like this in EPA's history. We did what we're supposed to do. We looked at all of the science, we reached conclusions, we presented those to independent scientists, we asked the tobacco industry what they thought about those in a draft form. They gave us thousands of pages. They appeared for hours before the scientists reviewing these findings and at the end of the day, the conclusion was unanimous. Secondhand smoke is bad.
And you know, it's extremely important that the American people understand that nothing in this judge's ruling has changed that. There are real health problems both in adults and most particularly our children. And Jim, just one last thing. The tobacco industry did not challenge EPA's scientific findings with respect to our children. The respiratory findings that EPA made.
JIM LEHRER: Is that true?
CHARLES BLIXT: Well, the two chapters which dealt with respiratory diseases in children doesn't need to be attacked then.
CAROL BROWNER: You agree, then?
CHARLES BLIXT: It was so much weaker than the purported science the EPA had on the lung cancer issue.
CAROL BROWNER: But the judge let the two chapters stand.
CHARLES BLIXT: Let's get a couple factors correct. It wasn't a judge in Winston-Salem, North Carolina. It was a federal judge in the middle district of North Carolina which sits in Greensboro. The same judge who a year ago ruled contrary to what the tobacco industry desired--that the FDA had the authority to regulate the tobacco industry - an opinion which is now on appeal to the fourth circuit. The implication that it was a single judge in Winston-Salem . . .
CAROL BROWNER: It is a single judge. One judge's opinion.
CHARLES BLIXT: He's a federal judge.
CAROL BROWNER: I don't disagree. It's a federal judge. But it's one judge trumping 18 scientists.
CHARLES BLIXT: But, he didn't trump 18 scientists.
CAROL BROWNER: He did.
CHARLES BLIXT: If you read the opinion, Jim, he used the internal scientists from the EPA itself, and I'll cite you to page 64 of the opinion where he quotes four or five different scientists inside of EPA, a member of the scientific advisory board of the EPA all of whom said before the final draft was written that this was wrong.
JIM LEHRER: We'll get back to all of the procedures in a moment. What I'm interested in tonight is the practical effect this should have on the way people conduct their lives and from your point of view, Mr. Blixt, what would you say to somebody listening to this tonight? Does this change the way they should handle their attitude toward second-hand smoke?
CHARLES BLIXT: It's always been our position that the attitude towards smokers should be one of accommodation and we still believe that. We believe smokers and non-smokers can be accommodated, can live together. Can be accommodated in the workplace, can be accommodated in the service industry, in restaurants and bars and we don't need the EPA to trump up science to come to an incorrect conclusion.
JIM LEHRER: We heard you on that.
CHARLES BLIXT: And then try to regulate where people can smoke.
CAROL BROWNER: Wait. No, no, no, no, no.
JIM LEHRER: Let me just finish with Mr. Blixt. As you know, as a result, as Kwame said in his report, as a result of the EPA report in 1993 and subsequent reports, there are a lot of city ordinances, a lot of state laws that have to do with smoking in public places, etc. Is it the industry's position that those things should be -- that they should be looked at, they should be reexamined, there should be a second look taken at all of those as a result of what this judge did in North Carolina?
CHARLES BLIXT: Well. Clearly what the EPA did was establish a foundation for all those regulations which is have been passed subsequent to that? That foundation has been pulled out from underneath the EPA and underneath all of these regulations. Does that mean all of these municipalities and states are going to go back and . .
JIM LEHRER: Should they? Do you think they should?
CHARLES BLIXT: Well, I think there's been, as a result partially of the EPA's report and as a result of the anti-smoking industry's crusade to ban smoking I think that there's been an extreme and almost ridiculous separation of smokers. In some communities you can't even smoke in a public park. That's not accommodation and it's not reasonable. I think that people should look at these things, employers should look at these, businesses should look at it, restaurants, bars, the service industry, and accommodate both smokers and non-smokers. I know there's a lot of people who are annoyed by smoke and they shouldn't have to be exposed to it if they don't want to be.
JIM LEHRER: Now, Ms. Browner, what do you think should be done as a result of this judge's ruling? Should anything change?
CAROL BROWNER: Absolute any nothing should change. The American people need too know that second-hand tobacco smoke is bad for their health, it's bad for adults and it's bad for children. And no city, no business that's made a sensible decision to protect people from second-hand smoke should change those decisions. They're right, that's what the American people want, that's what the American people have come to expect. I don't think we want to go back to a time when you enter a public building, when you enter an airplane and you gag because of the amount of smoke. If you choose not to smoke, you deserve to be protected. Our science was thorough on this. We stand by the science and nobody should walk away.
JIM LEHRER: Are you going to... Is the federal government or the EPA going to appeal Judge Osteen's decision?
CAROL BROWNER: We're looking at all of our options and clearly at the top of the list and what's most likely is we will appeal this. Again, we've never seen a judge go into a body of science -- a body of science not just reviewed by EPA but reviewed by 18 scientists from outside of EPA -- the head of the Yale Medical Center, the New York Medical Center -- they all, all 18, unanimously concurred with the conclusions that second-hand smoke causes lung cancer and it causes respiratory problems in our children.
JIM LEHRER: Is the industry going to pursue this to its final conclusion? In other words, if EPA appeals, you go with it and go all the way to the supreme court if you have to?
CHARLES BLIXT: Certainly we'll pursue whatever avenue in this litigation is necessary to see that the power of the EPA is not abused. Clearly that's what's happened here.
JIM LEHRER: What is it that you want... When this is all said and done, if you win, what do you want to win?
CHARLES BLIXT: Well, when this started five years ago, Jim, all we were trying to do was to hold the EPA to its scientifically rigorous standards of doing a risk assessment. It may be politically correct to contend that smoking causes these diseases. It's not scientifically correct and a judge has now said it's not legally correct.
JIM LEHRER: So what do you want to do?
CHARLES BLIXT: What we want out of this case is for... as has now happened, the entire report dealing with cancer has been invalidated, we have a pleading on file, a supplemental pleading, to stop the EPA from trying to regulate in this area as they have tried to do.
CAROL BROWNER: We don't regulate as you know. Now wait, Jim, this is important.
CHARLES BLIXT: They have tried to conduct regulation and the judge found they have de facto regulated this industry.
CAROL BROWNER: No. No. No. Now hold on just a moment.
CHARLES BLIXT: It was a finding of the judge.
CAROL BROWNER: Excuse me. EPA issued a scientific report. Cities and businesses across the country of their own volition put in place regulations to ban smoking.
JIM LEHRER: There's no EPA regulation?
CAROL BROWNER: There's no EPA ...there is absolutely no EPA regulation on smoking. Now, admit that. That's true!
CHARLES BLIXT: What the judge has found...
CAROL BROWNER: Chuck, you know that's true. No.
CHARLES BLIXT: What the judge has found...
CAROL BROWNER: Cite the regulation.
CHARLES BLIXT: What the judge has found is that this is de facto regulation by the EPA.
CAROL BROWNER: No. No.
CHARLES BLIXT: The EPA, according to our supplemental complaint, which will now be litigated--
CAROL BROWNER: We issued a scientific report.
CHARLES BLIXT: ...has tried to invade the private arena and tried to regulate the tobacco industry.
JIM LEHRER: I have a hunch we haven't heard the last of this but we have right at this moment. Thank you both very much.