SCARC ACTION ALERT: Support Needed to Save OSHA's Smokefree Workplace Proposal (December 12, 1995)
SCARC ACTION ALERT -- December 12, 1995
Support Needed to Save OSHA's Smokefree Workplace Proposal
"This thing has been going on since the dawn of history. It makes Judge Ito look like a sprint runner."
John Coale, a plaintiffs lawyer in the Castano case, commenting on OSHA delays, LEGAL TIMES, November 20, 1995.
SUMMARY
While the tobacco control world's attention has been focused on the Food & Drug Administration proposal to regulate nicotine as a drug, a proposal pending before the Occupational Safety and Health Administration (OSHA) has been left out of the limelight. This has allowed the tobacco industry to go unchallenged in its efforts to kill the proposal through procedural delays.
Discussions about requiring all workplaces to be smokefree began within the Department of Labor as early as 1992 and OSHA first introduced its proposal in early 1994. A final rule had been expected by the end of this year (1995). The proposal would require all workplaces to be smokefree. Workplace smoking would only be permitted in separately ventilated lounges.
Unlike the FDA proposal, which focuses on preventing tobacco use among young people, the OSHA proposal would focus on protecting the health of adults in the workplace. Secondhand smoke is the leading source of toxic chemical exposure for most workers and passive smoking kills 53,000 people annually. According to government estimates, 83% of worker-health complaints related to problems with indoor-air quality would be eliminated with the creation of smokefree workplaces. Over the next 45 years, smokefree workplaces would prevent over 32,000 cancer deaths and over 575,000 heart-disease deaths (WALL STREET JOURNAL, March 28, 1995, p. A10.).
Hundreds of cities, many federal agencies and five states (California, Maryland, Utah, Vermont and Washington) have already implemented smokefree workplaces. The OSHA proposal is similar to many of the municipal ordinances and more comprehensive than any of the federal or state restrictions.
Under pressure from the tobacco industry, the proposed smokefree workplace requirement has been included as part of a comprehensive set of regulations regarding indoor air quality. These broader regulations would require businesses to draw up comprehensive indoor air quality plans which increases the annual cost to businesses of $8 billion, according to OSHA estimates. The section of the rule dealing with environmental tobacco smoke
(ETS) provide the greatest benefits of the proposal while comprising only a tiny fraction of the cost. Various estimates indicate that eliminating ETS would save between $15 and 29 billion.
In an attempt to delay the rule-making process as much as possible, the tobacco industry, with little organized opposition from the health community, started to mire the process in mountains of procedural and other delays. Tobacco industry lawyers managed to drag these hearings out for several months, producing a 15,000 page record.
The tobacco industry also orchestrated a negative public response to the proposal. More than 100,000 comments, the vast majority of them critical of the proposal, were sent to OSHA during the public comment period. The industry has paid well over a million dollars to private consulting firms to generate much of the mail.
Although the public comment period has closed, those who participated in the public hearings can still file comments until January 16, 1996. Others can do so as well, although the comments will be noted as having been filed late. Following the close of the public comment period, OSHA could issue a final regulation at any time.
Senior officials in the Clinton administration have been largely silent on the issue, focusing instead on the FDA's proposal to regulate nicotine as an addictive drug.
Even if OSHA does decide to move ahead with a final recommendation, it is likely to face strong opposition from Congress, which has already recommended severe cuts in OSHA's budget. Requiring smokefree workplaces could also inspire a suit from the tobacco industry.
(For more background on the OSHA proposal, including details of the industry's strategies to derail the hearings, see SCARC Action Alert, "Industry Preparing to Undermine Proposed OSHA Regulations," September 9, 1994.)
OBJECTIVES
1) To encourage OSHA and the Clinton Administration to move ahead with final regulations to require workplaces to be smokefree.
2) To encourage OSHA to separate the ETS part of the proposed rule from the rest of the general indoor air rule.
USEFUL QUOTES - PRO
"The whole idea of the hearing is to develop a record upon which OSHA will develop rules -- a high-quality scientific record. The industry gummed up the process, and the real reason that happened was because it was unopposed on procedural issues by the health groups."
Prof. Stan Glantz, University of California, LEGAL TIMES, November 20, 1995.
"We're at the end portion of a very long rule-making process with certainly the largest record in the history of OSHA and maybe the largest in regulatory history."
Dr. Adam Finkel, OSHA Director of Health Standards, LEGAL TIMES, November 20, 1995.
USEFUL QUOTES - CON
"We'll keep our options open with respect to legal challenges. There is no sense that there is an impending regulation from OSHA."
Walker Merryman, Tobacco Institute, LEGAL TIMES, November 20, 1995.
"...I'll probably hold a hearing. Everybody who knows how OSHA operates knows that they don't know how to write a finite standard -- so they'll probably write an infinite standard."
Rep. Cass Ballenger (R-NC), chair of the House Workforce Protections Subcommittee of the Economic and Educational Opportunities Committee, LEGAL TIMES, Nov. 20, 1995.
"I have the largest tobacco manufacturing plant in the world in my district and I have a lot of tobacco farmers. I'm not the greatest lover that ever existed of OSHA regulations."
Rep. Cass Ballenger (R-NC), LEGAL TIMES, November 20, 1995.
QUESTIONS AND SUGGESTED ANSWERS
Q. Shouldn't we focus all our effort on supporting FDA right now?
A. Certainly FDA needs and deserves all the support it can get from the health community, but it shouldn't be an either/or situation. Since the FDA proposal concentrates mostly on children and tobacco, and the OSHA proposal concentrates mostly on protecting adults from secondhand smoke, it makes sense to support *both* proposals as a truly comprehensive approach to the problem?
Q. Does the OSHA proposal go *too* far?
A. What OSHA has proposed is no stronger than any number of state and local ordinances that are working very well. Since we know that secondhand tobacco smoke is a dangerous carcinogen, no one should have to be exposed to it in any public or work environment.
MEDIA BITES
America's workforce deserves these protections -- the tobacco industry's lawyers and PACs shouldn't be allowed to delay and lobby their way out of them.
The industry's smoke and mirrors shouldn't hide the real issue: no one should be forced to breathe other people's smoke in order to stay on the job.
If you want to protect children *and* adults, support FDA *and* OSHA!
What do you think the industry is most concerned about, protecting workers' health or protecting their stockholders' wealth?
Don't let the tobacco lobby let smoke get in OSHA's eyes. Clinton has been a hero in standing up to the tobacco lobby for FDA. He should also let OSHA finish the job.
Since the passive smoking restriction provides the greatest benefit at the least cost, it makes sense to move ahead with at least that part of the rule.
SUGGESTED ACTIONS
1. Write to Administration officials asking them to support OSHA's efforts to make workplaces safer. Specifically, ask that the proposed regulation to require smokefree workplaces be considered separately from other regulations regarding indoor air quality and that OSHA not grant any more extensions in the time the record is kept open so that the rule making process can finally go forward. Write to:
- President William J. Clinton Secretary Robert Reich
- The White House Department of Labor
- 1600 Pennsylvania Ave., N.W. 200 Constitution Ave., N.W.
- Washington, D.C. 20500 Washington, D.C. 20210
- Joseph A. Dear
- Assistant Secretary for OSHA
- Department of Labor
- 200 Constitution Ave., N.W.
- Washington, D.C. 20210
2. Write to your Members of Congress and urge them to support OSHA's efforts. OSHA has been hearing from many Congressional opponents of their proposed rule but almost no supporters. Letters of support from Congress could be especially influential at this time.
3. Send copies of your above letters to OSHA:
- Docket Office
- Room N-2625
- U.S. Department of Labor
- 200 Constitution Avenue, N.W.
- Washington, D.C. 20210
- 202-219-7894
4. Encourage local offices of national voluntary organizations, medical associations and other organizations concerned with tobacco control to publicly support OSHA's proposal.
5. In all of your efforts to support FDA's proposal to regulate nicotine as a drug, include calls for support of OSHA as well. Frame the two proposals as a comprehensive tobacco control agenda.
6. Let local media know that OSHA's proposal is still pending. Point out that the process has taken so long because of industry's unprecedented delaying tactics.
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