Plan to ban smoking while driving lights fire under smokers

Published in the Asbury Park Press 07/9/05

BY ROB JENNINGS
GANNETT NEW JERSEY

Two state lawmakers want to make it illegal to drive a car while smoking ? a seemingly long-shot proposal that extends the tobacco debate from public places into privately owned automobiles.

The bill, A-4306, introduced on June 27, would stipulate up to a $250 fine for smoking while driving. It would be a secondary offense ? enforced only if a motorist had been pulled over for a separate traffic violation or other offense.

The proposed ban is lighting a fire under smokers.

"It's my car. I own it. Next time, will they come into my house? What's the difference," said Eileen Gilchrist while taking a smoke break from her job in Dover last week.

There are no states that prohibit drivers from smoking inside their own vehicles, according to Action on Smoking and Health in Washington, D.C. ? although lawmakers in Germany began weighing a nationwide ban two months ago.

Assemblyman John F. McKeon, D-Essex, said his bill would promote safety. He did not cite any studies linking smoking to a heightened risk of car accidents.

Jefferson Police Sgt. Eric Wilsusen, a 20-year veteran, said he couldn't recall a single accident attributed to smoking by the driver.

McKeon, 47, who also is mayor of West Orange, acknowledged that his primary goal is "to bring focus to the ravages of tobacco."

"This is just another in a series of legislation to see what we can do to curtail the use of tobacco," said McKeon, whose father died of smoking-related emphysema two years ago.

The bill's co-sponsor, Loretta Weinberg, D-Bergen, introduced the New Jersey Smoke-Free Air Act ? a proposal to prohibit smoking in indoor public places and in workplaces that would be similar to the New York law ? in January. The bill has not yet come to a vote.

Weinberg said she agreed to back a smoking-while-driving ban after McKeon broached the idea, even though she does not believe that it will become law.

"I know there are people who will consider this kind of silly," Weinberg said.

THE WASHINGTON POST

"Secondhand Smoke Finding Struck Down, Local Cigarette Ordinances Could Be Imperiled"

By John Schwartz

Washington Post Staff Writer



Sunday, July 19, 1998; Page A01 (This is an old story, but a damn good one which needs more coverage)



A federal judge has ruled that the Environmental Protection Agency wrongly declared secondhand tobacco smoke a dangerous carcinogen in a landmark 1993 report, a decision that could imperil hundreds of local and regional ordinances banning indoor smoking.

The controversial EPA report concluded environmental tobacco smoke is a Class A carcinogen, as hazardous as radon and responsible for some 3,000 lung cancer deaths each year. The tobacco industry promptly sued in federal court to force the study to be withdrawn, arguing that the agency ignored accepted scientific and statistical practices in making its risk assessment -- a contention made at the same time by many independent scientists.

After five years of court pleadings and deliberations, U.S. District Court Judge Thomas Osteen, of the Middle District of North Carolina, ultimately agreed with the industry. He issued his opinion late Friday, and many EPA and tobacco industry officials were still unaware of it even when contacted last evening.

EPA Administrator Carol M. Browner said in a telephone interview last night the opinion is "disturbing" because "it's so widely accepted that secondhand smoke causes very real problems for kids and adults. Protecting people from the health hazards of secondhand smoke should be a national imperative."

Browner said the administration would almost certainly appeal the decision. Michael York, an attorney for cigarette giant Philip Morris Cos., called Osteen's decision "a very important ruling" that could force the EPA to reverse its stand on secondhand smoke. "Now it will be up to the agency to reexamine all of the relevant studies and make the honest determination that the statistical correlations are extremely weak -- certainly below that necessary to justify their classification of [secondhand smoke] as a Class A human carcinogen."

Reports on the effects of secondhand smoke have long been controversial. While all credible scientific authorities say that cigarette smoking causes cancer, secondhand smoke involves such a low concentration of carcinogens that a strong cancer connection is hard to establish.

A number of studies have found secondhand smoke to raise the risk of cancer about 20 percent -- an increase many epidemiologists say does not constitute convincing proof. Others argue that exposure to secondhand smoke is so widespread that even small increases translate into large numbers of sick people.

Reports continue to emerge with findings that both support and undercut the EPA thesis. A 1998 study by California's environmental protection agency found that secondhand smoke is a potent carcinogen.

A new study, by the International Agency for Research on Cancer, found no statistically significant risk to secondhand smoke. The tobacco industry accused the study's sponsors, the World Health Organization, of trying to suppress the findings; WHO said the companies "completely misrepresented" the study.

Osteen ruled the EPA had wrongly used provisions of the 1986 Radon Gas and Indoor Air Quality Research Act in determining that secondhand smoke is hazardous. That act required a broad-based panel to be convened for such findings, including representatives of affected industries, but the agency excluded industry voices, the judge ruled.

From the time the report was issued, even scientists not affiliated with the industry criticized the EPA for using too low a standard for what constitutes causation rather than chance.

Osteen agreed that the agency's science was lacking. "Using its normal methodology and its selected studies, EPA did not demonstrate a statistically significant association between [secondhand smoke] and lung cancer," he said. Statistical significance is the scientific standard that separates interesting results that could be the product of chance from more convincing evidence that is likely to constitute a true association.

"EPA publicly committed to a conclusion before research had begun; excluded industry by violating the Act's procedural requirements; adjusted established procedure and scientific norms to validate the Agency's public conclusion, and aggressively utilized the Act's authority to disseminate findings to establish a de facto regulatory scheme intended to restrict Plaintiffs' products and to influence public opinion," Osteen wrote.

An EPA official who asked not to be named said the agency's process included peer review and provided the "functional equivalent" of the requirements of the Radon act; the official also said that the judge did not have standing to rule on the EPA report because it was not a formal rule-making or final agency action.

Since the report was issued, indoor smoking bans have popped up in hundreds of states, cities and counties. California, for example, prohibits smoking even in bars.

The blow to the EPA report could give new energy to opponents of these bans, since "the release of the original risk assessment gave an enormous boost to efforts to restrict smoking at the state and local levels," said Matthew L. Myers, a spokesman for the National Center for Tobacco-Free Kids.

In addition, a number of lawsuits filed against tobacco companies over claims of injury from secondhand smoke still lie in the balance. For example, a class-action suit was settled with airline flight attendants last year for $349 million, but individuals still have to sue the industry and prove that secondhand smoke harmed them -- which could be more difficult without the EPA's support.

Myers said, however, that the one judge's ruling could not blunt the national trend -- especially given that so many reports have found secondhand smoke dangerous. "While the move to restrict smoking indoors could be temporarily set back by this decision," he said, "it won't be stopped."

State Attorneys General, Credit Card Several state attorneys general along with ATF have struck a deal with the major credit card companies to no longer process orders for most online cigarette retailers. Cigarettes can still be purchased online by check or money order at most places.



How is it that the states via the attorneys general can collude with each other without the consent of Congress? This is forbidden by the U.S. Constitution.



The Commerce and Compacts Clauses of the Constitution, Article I, section 10:



"No State shall enter into any Treaty, Alliance, or Confederation;" and that "No State shall, without the Consent of Congress, ...enter into any Agreement or Compact with another State..."



The states cannot collude with each other without congressional approval. It's the federal government's job to represent the states. Only the federal government can regulate interstate commerce. Yet we have attorneys general usurping the 'just supremacy' of the United States.



The clause was put in the constitution for this very reason. So that no political entity can be created that is neither state nor federal in nature.



Congress should put an immediate stop to this illegal collusion among attorneys general and credit card companies which exceeds the power and authority of the states.



These same attorneys general are responsible for the 1998 Master Settlement Agreement (MSA) which is also an agreement among states, and is illegal, because it was again, done without congressional approval.



The MSA created an illegal cartel among state attorneys general and tobacco manufacturers. MSA stifles competition, engages in price fixing, and creates a monopoly for Big Tobacco which are clearly antitrust violations.



Big Tobacco is said to pay an estimated 246 billion over 25 years, yet in reality, the money comes out of smokers pockets as Big Tobacco increased their prices.



Big Tobacco doesn't pay under the MSA, smokers do. In effect, this money represents a national consumption tax, or a national tobacco tax if you will, that was illegally imposed on smokers.



We have representative government for a reason, so that if we don't like the laws our legislators are passing, we can vote them out of office. But here we have an illegal cartel that bypasses representative government and creates a tax, through MSA, that was never approved by any state or federal legislators.



And now you see the danger when states collude with each other and why The Commerce and Compacts Clauses of the Constitution was put into place, to prevent this very sort of thing from happening. Yet it IS happening today. Where is Congress in all of this?



This issue should concern smokers and non smokers alike, for it is an abuse of power. Congress should step in and disband the illegal cartels created with state attorneys general, credit card companies and Big Tobacco. Congress should also declare the MSA unconstitutional and render it null and void.



For Congress to do nothing or to support such activity would amount to dereliction of duty.



Write your Congressman in opposition to this illegality and feel free to use anything I have here in your letter. Go here to contact your Representative: http://www.house.gov