Private-Sector Smoking Rules Debated Secondhand Smoke Not Proved Harmful, Industry Lawyers Say

Smoking in private-sector offices should be allowed because the state has failed to show secondhand smoke is a health hazard, tobacco industry lawyers told a judge Wednesday.

Lawyers for the state Department of Labor and Industries countered that the agency has ample and reliable evidence from the Environmental Protection Agency to show secondhand smoke is hazardous, even life-threatening.

Both sides gave opening arguments in a challenge to Washington’s 1994 regulations allowing smoking in private office buildings only in designated smoking rooms. The rooms must meet stringent ventilation requirements and can be used for smoking only.

Washington also bans smoking in public places, such as stores, in state offices and in restaurants except for areas designated for smoking. Those rules are not under challenge.

The trial before Thurston County Superior Court Judge Richard Strophy is expected to last three or four days, lawyers for both sides said.

Clausen Ely, an attorney for tobacco companies and several Washington businesses challenging the regulation, attacked the rule on a number of grounds.

He contended Labor and Industries officials wrote and put the rule into effect, and then built a record to justify the action in violation of state administrative law.

Moreover, he said, the state failed to ensure, as legal precedence demands, that the regulation was based on a proof of “significant risk of injury,” that it be the least restrictive rule available, and that it be based on the best scientific evidence.

Ely attacked an EPA study, calling it statistically insignificant.

The study found that “environmental tobacco smoke causes approximately 3,000 lung cancer deaths per year among nonsmokers.”

Assistant Attorney General Elliott Furst countered that when it comes to secondhand smoke in the workplace, “any death is going to be significant” because there is no economic reason for the presence of tobacco smoke on the job.

He argued that under state law, the department is not even required to prove that smoking is a health hazard, but only to show that limits on its use are the result of reasonable judgments by a “rational decision-maker.”

L&I Director Mark Brown, who was present to testify, said during a break that the tobacco industry “is trying to debunk EPA, and I think that’ll be tough to do.”

The regulation took effect Sept. 1, 1994. Plaintiffs failed to get the rule summarily dismissed despite appeals all the way to the state Supreme Court.

Maryland courts last year upheld a similar workplace smoking rule, said Phillip Hubbard, also representing the state.

Sandi Snell, an L&I spokeswoman, said the vast majority of Washington businesses abide by the regulation, either installing a properly ventilated smoking room or more typically, requiring employees to smoke outside. She said most violators comply with warnings and few are for violating the law.