FEDERAL JUDGE SAYS EPA OVERSTATED CANCER LINK TO SECONDHAND SMOKE

WASHINGTON -- The tobacco industry won a victory in its battle against
public-smoking prohibitions as a federal judge in North Carolina
declared that a 1993 Environmental Protection Agency study overstated
the proven link between secondhand smoke and cancer.

The EPA findings have been a major factor spurring regulations and
ordinances enacted around the country curbing smoking in public
buildings, workplaces and restaurants. Though U.S. District Judge
William L. Osteen's decision apparently would have no direct legal
impact on those rules, tobacco executives made clear they would use
the opinion to lobby against new restrictions and ease existing ones.

The 92-page decision "destroys the basis for those agencies and state
and local governments that have banned or restricted smoking because
of the EPA's classification," Charles A. Blixt, general counsel for
RJR Nabisco Holdings Corp.'s R.J. Reynolds Tobacco Co., said in a
statement. "The court's ruling supports Reynolds Tobacco's long held
belief that the science does not justify public-smoking bans."

The ruling came in a case filed by the tobacco industry seeking to
overturn the study, and was issued late Friday in Greensboro, N.C.

Effect on Damage Suits

Industry lawyers also portrayed Judge Osteen's decision as a major
setback for nonsmokers seeking to win damages from cigarette makers.
The EPA's finding that "environmentally transmitted smoke" ranks among
the deadliest carcinogens has been invoked as crucial supporting
evidence in those cases. "This is going to have potentially profound
implications on litigation," said Michael York, a Washington attorney
for Philip Morris Cos. "This should erect a huge barrier to those who
would bring secondhand smoke cases."

EPA Administrator Carol Browner said that the agency was sticking by
its conclusions, and agency officials said an appeal was likely. Ms.
Browner said Judge Osteen's decision was "disturbing because it is
widely accepted that secondhand smoke poses very real health threats
to children and adults."

EPA spokeswoman Loretta Ucelli said the agency's attorneys were
optimistic about winning an appeal, though she added that a final
decision hadn't been made about taking the case to a higher court.

Cigarette Makers' Recent Victories

Judge Osteen's decision, first reported in Sunday's Washington Post,
is the latest in a series of courtroom and political victories for
cigarette makers in recent weeks. Last month, a Florida appeals court
threw out a two-year-old landmark verdict against B.A.T Industries
PLC's Brown & Williamson Tobacco Corp., in which a jury had awarded
$750,000 to an air-traffic controller with lung cancer. That came
shortly after the U.S. Senate quashed legislation that would have
increased cigarette prices and expanded regulatory oversight of the
industry. The tobacco industry has won a number of other lower-profile
court cases over the past few months.

In its 1993 study, the EPA rated secondhand smoke a "Class A
carcinogen," the most definitive link that the regulator can make
between a chemical and cancer. While tobacco companies didn't deny the
possibility of dangers from secondhand smoke, they argued that the
government overstated the connections demonstrated in its own studies.

Judge Osteen agreed. He declared that the EPA's finding was based on

insufficiently rigorous statistical tests and was therefore invalid.
The agency, he wrote, "disregarded information and made findings based
on selective information ...; deviated from its risk assessment
guidelines; failed to disclose important [opposing] findings and
reasoning; and left significant questions without answers."

Industry's Mixed Record

So far, the tobacco industry has had a mixed record in
secondhand-smoke court cases. Last year, the nation's four biggest
cigarette makers reached a $349 million settlement in a secondhand
smoke suit filed by a group of flight attendants. The companies didn't
pay the individuals any damages but agreed to set up a research
foundation to further study the matter. Earlier this year, a Muncie,
Ind., jury ruled that tobacco companies weren't responsible for a
nonsmoking nurse's death from cancer.

Two major secondhand-smoke cases are moving toward trial in
Mississippi and in New Hampshire, lawyers familiar with the issue said.

Plaintiffs' lawyers played down the legal impact of Judge Osteen's
decision, noting that other non-EPA studies have reached similar
conclusions about the dangers of secondhand smoke. "You can quibble
with the methodology, but in scientific and medical communities,
there's a consensus that the basic EPA conclusions are valid," said
Stanley M. Rosenblatt, the attorney for the flight attendants.

Mr. Rosenblatt asserted that, because the ruling hadn't been tested in
an appeals court, the North Carolina ruling would have little national
impact. But he acknowledged that "this case is helpful to the tobacco
industry."

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Mark Greer Media Awareness Project (MAP) inc. d/b/a DrugSense
MGreer@mapinc.org http://www.DrugSense.org/ http://www.mapinc.org
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Checked-by: "Rich O'Grady"