Results

POSITION TOWARD REGULATION AND AFFILIATIONS

As shown in table 1, those in favour of the regulation submitted more written commentary or testified at hearings more than those who were opposed to regulation. The distribution of affiliations differed between supporters and opponents of regulation. Those in support of the regulation were more likely than those against to represent lay activist associations (such as Action on Smoking or Health), health professionals, or government employees (table 1).

Overall, about one quarter of the opposition to the regulation came directly from the tobacco industry. There was some duplication between the tobacco industry affiliated commentaries in Washington and Maryland. For example, Philip Morris submitted over 40 binders (15 429 pages) of duplicate material to Maryland and Washington. With just one exception,† the tobacco industry unanimously opposed the regulations. The remainder of the opposition was primarily from small business owners, business organisations, and labour organisations.

OVERVIEW OF ARGUMENTS

Overall, more arguments were made in support of regulation (n = 454) than in opposition (n = 297). Arguments not related to science, particularly economic, ideological, political, and procedural arguments (61% of total arguments; 459/751), were more likely to appear in commentary and hearings than scientific arguments (39% of total arguments; 292/751).

SCIENTIFIC ARGUMENTS

Criteria for evaluating science

Overall, 45% (87/193) of the Washington commentary and 27% (93/345) of the Maryland commentary referred to criteria for evaluating science. As shown in table 2, supporters of regulation were more likely to mention the quantity of evidence available about the adverse health effects of passive smoking. For example, supporters of regulation pointed out that scientific consensus had already been reached about the health effects of passive smoking:

“ETS has been declared a human carcinogen by all the major scientific and medical organizations, both nationally and internationally and it is estimated to cause 3000 cancer deaths each year (Maryland commentary).”

 In contrast, opponents of regulation attacked thereliability,validity, andquality of the evidence base (table 2). Criticisms about the reliability of the evidence often claimed that the data on the health effects of passive smoking remained controversial:

“Other researchers who have reviewed the reported findings concerning the possible relationship between PTS [passive tobacco smoke] and respiratory symptoms and diseases in adults also contend that the results are mixed and inconclusive. (Maryland commentary)”

 When opponents criticised the validity of the scientific evidence, they often assailed the measurement of passive smoke exposure:

“All of the epidemiologic studies on the purported associations between living with a smoker and disease in non-smokers rely solely upon questionnaire responses about reported exposure, rather than upon actual ETS exposure data. Recent studies indicate that questionnaires are an extremely unreliable and inaccurate measure of exposure. (Washington commentary)”

 Peer review was often mentioned as a criterion for assessing quality, as shown by this testimony from a scientist in favour of regulation:

“The entire body of data that I showed you is published in the peer reviewed scientific literature . . .It doesn't do anybody any good to publish this stuff in non-peer reviewed journals. If it's going to be useful, it has to go through the rigors of peer review, and, as all scientists discover, it is a very good process because often you do make errors when you do science, and it's nice to have one or two or three—and I've had as many as six on some of my more controversial papers—six reviewers, and it's a big help. (Maryland hearing)”

 At another hearing, the regulators questioned an engineer who was testifying on behalf of the Tobacco Institute:

“Regulator: Just to make sure I'm clear, are the two papers you referred to on the absence of nicotine and research related to tobacco smoke, are they part of the record?Engineer: No, but I can certainly make them part of the record.Regulator: Have they been through peer review?Engineer: Oh, yes.

Regulator: I would like any documentation on what peer review they went through.

Engineer: Yes, they both appeared in peer reviewed journals. Well, actually, they were both peer reviewed conference proceedings. (Maryland hearing)”

 As this testifier suggests, the rigour of peer review can vary between journals and conference proceedings.36

Specific arguments about science

Most of the commentaries and testimony that discussed the quality of the evidence also gave detailed critiques of the research methods. Figure 1 shows that opponents of regulation were more likely to use scientific arguments than supporters. This difference was significant in Washington (p = 0.0002, χ²), but not Maryland (p = 0.8197, χ²).

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Figure 1

Scientific arguments. MD, Maryland; WA, Washington.

A common strategy of opponents of regulation was to focus on a single aspect of a study, rather than the study as a whole. Opponents of regulation often criticised the methods of studies on the health effects of passive smoking based on their generalisability, inability to control for confounding factors, selection of studies included in literature reviews, and misclassification bias (fig 1). Although there are strong methodological rebuttals of each of the scientific arguments against the regulations,38 commentaries in favour of the regulation rarely contained arguments about the science (fig 1). In Washington, for example, those in favour of regulation used only the arguments about confounding and biological plausibility.

Non-science arguments

As shown in fig 2, political, engineering, and procedural arguments were used more frequently by regulation opponents than supporters. Ideological and economic arguments were used to a similar extent by both supporters and opponents.

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Figure 2

Non-science arguments.

Ideological arguments centred around protecting non-smokers, maintaining the rights of smokers, government intrusion, and the appropriateness of smoking restrictions as policy solutions. Many opponents of regulation expressed their concern that smokers' rights were being violated, and that workers should have a choice to smoke on the job. A delegate to the Maryland assembly, who testified at the bequest of the Tobacco Institute, reflected this view:

“I'm not here saying everybody should be smokers. But I am saying that there is such a thing as a freedom of choice and that those who do smoke have some rights, and I don't think all their rights should be taken away from them . . .I've been in the House of Delegates for 16 years, and I think I'm almost at the point where I believe that if you pass a law you ought to take one off. We've regulated people, the next thing we're going to tell them how many times they're going to have to chew their steak so they won't swallow wrong. (Maryland hearing)”

 Supporters of regulation noted that non-smokers had rights as well, as did this federal government employee who testified after the delegate:

“This is not to deny “smokers' rights”, it is to give non-smokers equal opportunities for a clean area. Why should a smoker have the choice to foul “clean air” while the non-smoker nearby may have no choice but to breathe smoke contaminated air. (Washington commentary)”

 Opponents consistently reiterated their belief that protecting workers from exposure to tobacco smoke was unwarranted government intrusion. This president of a chain of tobacconists expressed his concern regarding the slippery slope of government protection:

“Where does the intrusion into personal rights by the government stop? Our economy has been built on the ingenuity and creativity of individuals to develop business. With excessive controls we stagnate and “Big Brother” takes over. Let business operate as business does best. If employees, or customers, want to work in the environment that management has created, they will do so. If they don't they will go elsewhere, but let management determine how business is to be run. (Maryland hearing)”

Later in that same hearing, a representative of the American Heart Association responded:

“[I]f we were to leave it up to those people who cry “government regulations,” there would not be sneeze guards over salad bars and restaurant employees would not be required to wash their hands before handing food. (Maryland hearing)”

Economic arguments, like ideological arguments, were frequently used by both supporters and opponents of regulation (fig 2). Supporters of regulation argued that the regulation would decrease smoking related diseases and, therefore, the cost to the state of caring for people with these diseases:

“If the state does not move to provide a smoke-free environment in the workplace, more and more workers are going to seek compensation for smoke related illnesses. (Maryland hearing)”

 Opponents of the regulation argued that enforcing the regulation would cost the state money:

“However, what will be the cost to hire more L & I workers to make checks of air quality, to seek and find those not in compliance and to issue citations, etc? What will it cost Washington tax payer to have all state buildings brought into some type of compliance? (Washington commentary)”

One opponent contended that the regulation would hurt his business and, ultimately, the entire state:

“I can't market my business and make it grow as much as I should be able to, thereby costing this state jobs that I would love to create. (Washington commentary)”

In contrast, regulation supporters argued that the regulation was actually good for business:

“It [voluntary restaurant smoking ban] has helped manage the restaurant, it's assisted us in seating our guests and inevitably there's a smile on guests' face when they ask for a non-smoking section and we tell them that our entire restaurant is non-smoking. It's received with almost entire pleasure. (Maryland hearing)”

Procedural and political arguments were used more often by opponents of regulation than supporters (fig 2). A consistent theme among these arguments was challenging the legitimacy and the authority of the administrative board to regulate exposure to tobacco smoke in the workplace. Other opponents asserted that restricting smoking in the workplace should be legislated not regulated. Still others asked the board to wait for the federal Occupational Safety and Health Administration (OSHA) to promulgate its indoor air regulation before acting.

In Washington, procedural arguments included discussions of the scope of the regulation. The Washington regulation was originally proposed as a comprehensive indoor air regulation. Thus, there was much discussion regarding the broadness of the regulation to cover all indoor air toxins. Supporters of smoking restrictions argued that the regulation should be narrowed to cover only passive smoking because they feared that regulating indoor air quality was complicated and that the process would take too long.39

Arguments about building engineering and ventilation were used more frequently by opponents of regulation (fig 2). They offered ventilation as a solution, contending that health protections could be achieved with adequate ventilation or banning smoking. Supporters of the regulation countered that separate ventilation systems for smoking rooms would be technologically difficult and prohibitively expensive. One physicist testified at the Maryland hearing:

“Let's look at the probability of lung cancer death in a workplace as a function of ventilation rate. Now, the tobacco industry—in the form of Mr Turner—has suggested that ventilation is a very good control measure for environmental tobacco smoke. Here's ASHRAE's 62-1989, which is the ventilation standard currently promulgated by the American Society of Heating, Refrigerating and Air Conditioning Engineers: 20 cubic feet per minute per occupant. That corresponds to a risk which is of the order of 10⁻³. If we wanted to get it down to a 10⁻⁶ level, which is the bottom line here, you can see we would have to have . . . 10 000 cubic feet per minute per occupant, or better, to get it down that way. (Maryland hearing)”

 This witness is testifying that, in effect, a tornado would need to be created in the room in order to reduce passive smoke to a level that is not harmful.

Discussion

Support for the workplace smoking regulations came primarily from lay activist organisations, health care providers or professional organisations, and government workers, and appeared to be uncoordinated within or between states. Opposition to the regulations came primarily from tobacco industry affiliated individuals, small businesses, and business organisations. Similarities in the material submitted by opponents of the regulation in Maryland and Washington suggest that the opposition was organised at a national level. Internal industry documents suggest that the opposition from small business owners and merchant organisations could have resulted from industry efforts.40

Although the regulatory process requires that scientific evidence be considered when developing a regulation,14 economic, political, and ideological arguments were more likely to appear in commentary and hearings than scientific arguments. This finding confirms trends observed in the analysis of legislative tobacco control policy.18 Economic and ideological arguments were used to a similar extent by regulation supporters and opponents.

Although scientific arguments were used less frequently than other types, arguments about the science were used more often by those opposed to the regulations than by those in favour. In both states, those opposed to the regulations attempted to reduce regulators' confidence in the research evidence upon which the regulations were based. The criteria used to evaluate the evidence base for the regulation differed between those opposing or favouring the regulation. Supporters emphasised the quantity of the scientific evidence, while opponents criticised its reliability, quality, and validity. Numerous scientific studies regarding the health effects of passive smoking and the economic impact of smoking restrictions exist. However, those in favour of the regulation often failed to mention these studies in order to counter the criticisms of the science. Those favouring regulation may have believed that the scientific evidence supporting the workplace health restriction was well accepted and that there was no need to restate the evidence.

Tobacco industry emphasis on the science is most likely due to two factors: one historical, the other strategic. The tobacco industry, like other corporations that are subject to regulation, has used a number of tactics to prevent regulation of their product.41-43 For years, the industry has funded and published research that supports alternative explanations for the adverse health effects associated with passive smoking, as well as criticised research that finds an association of passive smoking and adverse health effects.36 44-47 We have shown previously that original research articles from symposia proceedings, such as those cited in the public commentary by the tobacco industry, use different standards for peer review and are of poorer methodological quality than articles from peer reviewed journals.48-50Our findings suggest that the industry has used some of their funded critiques to undermine the science that underlies regulation of passive smoke and infuse the development of tobacco control regulations with controversy.51 When these two regulatory efforts were launched almost simultaneously in the two states, the tobacco industry was able to produce volumes of written commentary critiquing the science that underlies workplace smoking restrictions and send their paid scientific advisors to hearings.

The second factor possibly underlying the tobacco industry's constant critique of the science is strategic. The few times that public health advocates invoked the science, they explained that the cumulative body of research fortified the imperative of smoking bans. Tobacco industry spokespersons did not like the conclusions of this body of literature, so they attacked the methods by which they were reached, fragmenting the science into acontextualised slices of single studies which they criticised. Strategically this serves multiple purposes. Firstly, it is an attempt to construct scientific uncertainty. Policy makers depend upon public and politicians' support of their work, and if a policy seems controversial or unfounded, or if the preparatory review work of regulators appears to be lacking, there may be pressure to postpone action. The fact that the tobacco industry is presenting lengthy and complex highly technical and narrowly specified critiques of mere slices of the whole body of science evidence may be lost on audiences of public proceedings. Secondly, as noted by Murphy,52this narrow focus on research methodology is an attempt to redefine the parameters of the issue, and allows the tobacco industry to withdraw from considerations of other issues, such as its social responsibility. Opponents of other health regulations have also relied on scientific claims to argue for the responsible use of science and to redefine public health issues.53

Public input into the regulatory process offers opportunities for public health activists to correct all factually misleading claims of the tobacco industry, and continue to frame the issues inherent in tobacco control policy.21 39 54 Public health advocates should also organise credible, legitimate scientists to testify at public hearings in order to explain the strength of the scientific evidence and defuse criticisms of omission, errors, biases, and poor procedures inherent in the evidence base.55 This implies a great deal of coordination on the part of tobacco control activists, and is possible through the use of the internet. Coordination of public health activists' efforts is also pivotal in anticipating the political, economic, and ideological arguments and planning counter-arguments. As presented above, many tobacco control activists formulated cogent political, economic, and ideological arguments that could be deployed across policy making sites. For example, at these public hearings the tobacco industry representatives contended that smoking bans infringe upon smokers' freedom of choice, and violate the rights of smokers. Public health advocates countered by distinguishing between voluntary and involuntary exposure, explaining that workplace exposure is involuntary exposure. Those who earn their living in an indoor workplace do not have a choice as to whether or not to be exposed to passive smoking while they are at work. They further countered the “smoker's rights” issue by contending that non-smokers have rights as well.56 They also pointed out that smoking denies people with asthma, chronic bronchitis, and emphysema access to public places. In some nations the rights of people with disabilities to equal access to all places, and reasonable accommodation within all public spaces, is guaranteed by law.57 These points and counter points could be finely honed and shared by various public health groups all over the world.21

Our findings suggest strategies for supporting health related regulations. Firstly, supporters of regulations could keep the issue framed as a scientific one by submitting commentary that emphasises the sound research base for the regulation. Secondly, supporters of regulation could counter the criticisms of the research on which the evidence is based. Lastly, organisation of these efforts to support regulation at a national level, rather than a local level, could avoid duplication of effort and make more efficient use of limited public health resources.