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SUPPLEMENTARY SUBMISSION FROM TOBACCO MANUFACTURERS’ ASSOCIATION (Part 3)

TABLE 1 – Relative risk of lung cancer among lifelong non-smoking women in relation to smoking by the husband

Ref

Author

Year

Location

No. of lung cancers

Relative Risk

Confidence Interval at 95%

1

Garfinkel 1

1981

USA

153*

1.17

0.85 – 1.61

2

Chan

1982

Hong Kong

84

0.75

0.43 – 1.30

3

Correa

1983

USA

25

2.07

0.81 – 5.25

4

Tricholpoulos

1983

Greece

77

2.08

1.20 – 3.59

5

Buffler

1984

USA

41

0.80

0.34 – 1.90

6

Hirayama

1984

Japan

200*

1.45

1.02 – 2.08

7

Kabat 1

1984

USA

53

0.79

0.25 – 2.45

8

Garfinkel 2

1985

USA

134

1.23

0.81 – 1.87

9

Lam W

1985

Hong Kong

75

2.01

1.09 – 3.72

10

Wu

1985

USA

31

1.20

0.50 – 3.30

11

Akiba

1986

Japan

94

1.50

0.93 – 2.76

12

Lee

1986

UK

32

1.00

0.37 – 2.71

13

Brownson 1

1987

USA

19

1.68

0.39 – 6.90

14

Gao

1987

China

246

1.30

0.89 – 1.91

15

Humble

1987

USA

20

2.20

0.76 – 6.56

16a

Koo

1987

Hong Kong

88

1.64

0.87 – 3.09

17

Lam T

1987

Hong Kong

202

1.65

1.16 – 2.35

18

Pershagen

1987

Sweden

83

1.20

0.70 – 2.10

19

Butler

1988

USA

8*

2.02

0.48 – 8.56

20

Geng

1988

China

54

2.16

1.08 – 4.29

21

Inoue

1988

Japan

28

2.25

0.77 – 8.85

22

Shimizu

1988

Japan

90

1.08

0.64 – 1.82

23

Choi

1989

Korea

75

1.63

0.92 – 2.87

24

Hole

1989

Scotland

6*

1.89

0.22 – 16.12

25

Svensson

1989

Sweden

38

1.36

0.53 – 3.49

26

Janerich

1990

USA

146

0.75

0.47 – 1.20

27

Kalandidi

1990

Greece

91

2.11

1.09 – 4.08

28

Sobue

1990

Japan

144

1.13

0.78 – 1.63

29

Wu-Williams

1990

China

417

0.70

0.60 – 0.90

30

Liu Z

1991

China

5

0.77

0.30 – 1.96

31

Brownson 2

1992

USA

432

1.00

0.80 – 1.20

32

Stockwell

1992

USA

210

1.60

0.80 – 3.00

33

Du

1993

China

75

1.09

0.64 – 1.85

34

Liu Q

1993

China

38

1.72

0.77 – 3.87

35a

Fontham

1994

USA

653

1.29

1.04 – 1.60

36

Layard

1994

USA

39

0.58

0.30 – 1.13

37

DeWaard

1995

Netherlands

23

2.57

0.84 – 7.85

38

Kabat 2

1995

USA

69

1.08

0.60 – 1.94

39

Schwartz

1996

USA

185

1.10

0.72 – 1.68

40

Sun

1996

China

230

1.16

0.80 – 1.69

41

Wang S-Y

1996

China

82

2.53

1.26 – 5.10

42

Wang T-J

1996

China

135

1.11

0.67 – 1.84

43a

Cardenas

1997

USA

246*

1.20

0.80 – 1.60

44

Zheng

1997

China

69

2.52

1.09 – 5.85

46

Boffetta 2

1998

W.Europe

509

1.11

0.88 – 1.39

47

Shen

1998

China

70

0.75

0.31 – 1.78

48

Zaridze

1998

Russia

189

1.53

1.06 – 2.21

49

Boffetta 2

1999

Europe

66

1.00

0.50 – 1.90

50

Jee

1999

Korea

79*

1.72

0.93 – 3.18

51

Rapiti

1999

India

41

1.20

0.50 – 2.90

52

Speizer

1999

USA

35*

1.50

0.30 – 6.30

53

Zhong

1999

China

504

1.10

0.80 – 1.50

54

Lee C-H

2000

Taiwan

268

1.87

1.29 – 2.71

55

Malats

2000

Europe/Brazil

105

1.50

0.77 – 2.91

56

Wang L

2000

China

200

1.03

0.60 – 1.70

57

Johnson

2001

Canada

71

1.20

0.62 – 2.30

58

Lagarde

2001

Sweden

242

1.15

0.84 – 1.58

59

Nishino

2001

Japan

24*

1.80

0.67 – 4.60

60

Ohno

2002

Japan

191

1.00

0.67 – 1.49

62

Seow

2002

Singapore

176

1.29

0.93 – 1.80

63

Enstrom

2003

USA

177*

0.94

0.66 – 1.33

64

Zatloukal

2003

Czech Republic

84

0.48

0.21 – 1.09

Notes

* indicates a prospective study, all others being case-control studies.

The list excludes studies which have been superseded by later results or included in other studies, or where data or size of study is generally regarded as being inadequate.

A variety of indices of ETS exposure were used in these studies. Nearly all considered smoking by the spouse (or partner) as a measure of exposure, with a number of studies considering ETS exposure by other household members, in the workplace, in childhood or in social situations.

Where necessary, relative risks and 95% confidence limits were estimated from data presented.

The above studies should not be interpreted as indicating a causal effect of ETS:

  • the association is weak and in the great majority of studies is not statistically significant; about 80% show no statistically significant association;
  • the combined results vary over time, with the association being significantly weaker in studies published since 1989 than in those published in the 1980s; they also vary by region, study size, study quality and by the type of control group used (with no significant association evident in those studies using healthy population controls);
  • some of the very largest studies show no association, including 4 of the 5 studies involving over 400 lung cancer cases: No 31(Brownson 2) reported no statistically significant association between lung cancer and any index of ETS exposure; No. 29 (Wu-Williams) even reported a significantly reduced risk of lung cancer for non-smoking women married to smokers;
  • about 20% of the studies did not adjust for age in the analysis, a standard procedure in epidemiology to avoid bias; those studies report much stronger associations with spousal exposure than those that did age-adjust;
  • spousal studies are particularly susceptible to various biasing factors including failure to consider diet, lifestyle, family medical history, education, socio-economic status and other factors recognised as being different between smoking and non-smoking households; and the inappropriate inclusion of some misclassified current and former smokers among the life-long non-smokers;
  • the studies also rely on reported, rather than objectively measured ETS exposure data; and
  • publication bias must be taken into account - the studies are not representative of the totality of studies; those with results that are not positive may not be published.

TABLE 2 - Relative risk of lung cancer among lifelong non-smoking men in relation to smoking by the wife

Ref.

Author

Year

Location

No. of Lung cancers

Relative Risk

Confidence Interval at 95%

3

Correa

1983

USA

10

1.97

0.38 – 10.32

5

Buffler

1984

USA

11

0.52

0.14 -- 1.79

6

Hirayama

1984

Japan

64*

2.25

1.05 – 4.76

7

Kabat 1

1984

USA

25

1.00

0.20 – 5.07

11

Akiba

1986

Japan

19

1.80

0.39 – 6.96

12

Lee

1986

UK

15

1.30

0.38 – 4.39

15

Humble

1987

USA

8

4.08

0.70 – 23.91

23

Choi

1989

Korea

13

2.73

0.49 – 15.21

24

Hole

1989

Scotland

3*

3.52

0.32 – 38.65

26

Janerich

1990

USA

45

0.75

0.31 – 1.78

36

Layard

1994

USA

21

1.47

0.55 – 3.94

38

Kabat 2

1995

USA

41

1.60

0.67 – 3.82

39

Schwartz

1996

USA

72

1.10

0.60 – 2.03

43a

Cardenas

1987

USA

116*

1.10

0.60 – 1.80

44

Kheng

1997

China

25

0.67

0.22 – 2.04

45

Auvinen

1998

Finland

44

0.69

0.28 – 1.74

46

Boffetta 1

1998

Western Europe

141

1.47

0.81 – 2.66

55

Malats

2000

Europe/Brazil

17

1.50

0.41 – 5.43

56

Wang L

2000

China

33

0.56

0.20 – 1.40

58

Lagarde

2001

Sweden

191

1.15

0.81 – 1.63

63

Enstrom

2003

USA

79*

0.63

0.33 – 1.22

Notes

* indicates a prospective study, all others being case-control studies

The Notes at the foot of Table 1 are also relevant to this Table.

In these studies, the index of exposure is based on smoking by the spouse or, if not available, the nearest equivalent: otherwise exposed to ETS at home.

TABLE 3 - Relative risk of lung cancer among lifelong non-smokers reportedly exposed to ETS exposure in the work place

Ref

Author

Publication

Location

Sex

Relative Risk

Confidence Interval at 95%

7

Kabat

1984

USA

M

F

3.27

0.68

1.01 – 10.62

0.32 – 1.47

8

Garfinkel

1985

USA

F

0.93

0.55 – 1.55

10

Wu

1985

USA

F

1.30

0.50 – 3.30

12

Lee

1986

UK

M

F

1.61

0.63

0.39 0 6.60

0.17 – 2.33

16

Koo

1987

Hong Kong

F

1.19

0.48 – 2.95

22

Shimzu

1988

Japan

F

1.18

0.70 – 2.01

26

Janerich

1990

USA

C

0.91

0.61 – 1.35

27

Kalandidi

1990

Greece

F

1.70

0.69 – 4.18

29

Wu-Williams

1990

China

F

1.06

0.80 – 1 40

31

Brownson

1992

USA

F

0.98

0.74 – 1.31

35

Fontham

1994

USA

F

    •  

1.21 – 2.02

38

Kabat 2

1995

USA

M

F

1.02

1.15

0.50 – 2.09

0.62 – 2.13

39

Schwartz

1996

USA

C

1.50

1.00 – 2.00

40

Sun

1996

China

F

1.38

0.94 – 2.04

42

Wang T-J

1996

China

F

0.89

0.46 – 1.73

43b

Cardenas

1997

USA

M

F

1.09

1.00

0.62 – 1.91

0.65 – 1.54

46

Boffetta 1

1998

Western Europe

M

F

1.13

1.19

0.68 – 1.86

0.94 – 1.51

48

Zaridze

1998

Russia

F

0.88

0.55 – 1.41

49

Boffetta 2

1999

Europe

C

1.50

0.80 – 3.00

51

Rapiti

1999

India

C

1.10

0.30 – 4.10

53

Zhong

1999

China

F

1.70

1.30 – 2.30

54

Lee C-H

2000

Taiwan

F

0.91

0.52 – 1.62

56

Wang L

2000

China

C

1.56

0.70 – 3.30

57

Johnson

2001

Canada

F

1.36

0.80 – 2.31

60

Ohno

2002

Japan

F

1.38

0.92 – 2.05

Note

The Stockwell study (No 32) also reported finding no association but gave no detailed results.

TABLE 4 - Relative risk of lung cancer among lifelong non-smokers in relation to ETS exposure in childhood

Ref

Author

Location

Sex

Relative Risk

Confidence Interval at 95%

8

Garfinkel 2

USA

F

0.91

0.58 – 1.42

10

Wu

USA

F

0.60

0.20 – 1.70

14

Gao

China

F

1.10

0.70 – 1.70

16a

Koo

Hong Kong

F

0.56

0.21 – 1.50

18

Pershagen

Sweden

F

1.00

0.40 – 2.30

25

Svensson

Sweden

F

3.30

0.50 – 18.80

26

Janerich

USA

Combined

1.33

0.86 – 2.06

28

Sobue

Japan

F

1.28

0.71 – 2.31

31

Brownson 2

USA

F

0.80

0.60 – 1.10

32

Stockwell

USA

F

1.66

0.80 – 3.44

35

Fontham

USA

F

0.89

0.72 – 1.10

38

Kabat 2

USA

M

F

0.90

1.63

0.43 – 1.89

0.91 – 2.92

40

Sun

China

F

2.29

1.56 – 3.37

42

Wang T-J

China

F

0.91

0.56 – 1.48

46

Boffetta 1

West Europe

M

F

0.79

0.77

0.52 – 1.21

0.61 – 0.98

48

Zaridze

Russia

F

0.92

0.64 – 1.32

49

Boffetta 2

Europe

Combined

0.60

0.30 – 1.20

51

Rapiti

India

M

F

1.09

12.0

0.38 – 3.18

4.30 – 32.0

53

Zhong

China

F

0.93

0.72 – 1.20

54

Lee C-H

Taiwan

F

2.10

1.40 – 3.14

56

Wang L

China

M

F

1.46

1.51

0.60 – 3.70

1.00 – 2.20

57

Johnson

Canada

F

1.38

0.81 – 2.34

60

Ohno

Japan

F

1.00

0.51 – 1.98

61

Rachtan

Poland

F

3.31

1.26 – 8.69

64

Zatlopukal

Czech Republic

F

1.61

1.01 – 2.57

Note

Two other studies – Nos 3 and 11, reported finding no association but gave no detailed results.

TABLE 5 - Relative Risk of heart disease among lifelong non-smokers reportedly exposed to ETS in the work place

Ref

Author

Publication

Location

Sex

Relative Risk

Confidence Interval at 95%

3

Lee

1986

UK

M

F

(0.26. 0.66

0.69

(0.26 0.26 -1.66

(0.26 0.26 –1.87

5

Svendsen

1987

USA

M

1.40

0.80 – 2.50

9

Jackson

1989

New Zealand

M

F

1.80

1.55

0.94 – 3.46

0.48 – 5.03

12

Dobson

1991

Australia

M

F

0.95

0.66

0.51 – 1.78

0.17 – 2.62

17

Muscat

1995

USA

M

F

1.20

1.00

0.60 – 2.20

0.40 – 2.50

19

Steenland

1996

USA

M

F

1.03

1.06

    • 0.89 – 1.19
    • 0.84 – 1.34

21

Kawachi

1997

USA

F

1.68

0.81 – 3.47

24

Spencer

1999

Australia

M

No RR but no significant association

 

25b

He

2000

China

F

1.85

0.86 – 4.00

27

Rosenlund

2001

Sweden

M

F

1.14

0.94

0.78 - 1.67

0.59 – 1.50

28

Pitsavas

2002

Greece

M+F

1.97

1.16 – 3.34

29

Chen

2003

USA

M+F

1.70

0.90 – 3.20

Note

In study no. 21, the estimates were given by study No 32.

TABLE 6 – Meta - analysis : Lung Cancer

Index of ETS Exposure

Estimates Combined

Fixed effects RR

95% CI

Random Effects RR

95% CI

Smoking by husband

62

1.17

1.11-1.24

1.22

1.13 – 1.33

Smoking by wife

21

1.13

0.95 –1.35

1.13

0.95 – 1.35

Workplace exposure

30

1.21

1.11 –1.31

1.21

1.11 – 1.31

Childhood exposure from any co-habitant

29

1.07

0.99 – 1.16

1.18

1.00 --1.40*

Childhood exposure from Mother specifically

9

0.96

0.77 – 1.20

0.98

0.77 – 1.25

Social exposure

12

1.04

0.92 - 1.17

1.02

0.80 – 1.28

Notes

Fixed effects meta- analysis assumes all the individual study estimates derive from a common mean, with their contribution to the overall estimate depending only on within-study variability, with large studies carrying more weight than small ones.

Random effects meta-analysis assumes that the individual study estimates derive from a distribution of effects, with the weighting of the individual estimates depending both on the within-study and between-study variability.

This estimate is inflated by one study (No 14, Gao – China) reporting an extremely high estimate of 12.0 (4.30 – 32.0)

TABLE 7 – Meta-analysis: Lung Cancer

Of studies of smoking by the husband, by publication date

Studies published

Estimates Combined

Fixed Effects RR

95% CI

Random Effects RR

95% CI

1981 – 1989

25

1.38

1.23 – 1.55

1.38

1.23 – 1.55

1990 – 2003

37

1.11

1.04 – 1.18

1.16

1.04 – 1.28

TABLE 8 – Meta-analysis: Heart disease

Studies

Estimates Combined

Fixed Effects RR

95% CI

Random Effects RR

95%CI

Spouse ever smoked

42

1.07

1.04 – 1.09

1.14

1.07 – 1.20

Spouse current smoker

42

1.08

1.05 – 1.11

1.16

1.09 – 1.23

Workplace exposure

17

1.11

1.01 – 1.23

1.13

1.01 – 1.27

Notes

Meta-analysis, its difficulties and shortcomings, are explained at paragraph 17 et seq.

In this table, ‘spouse ever smoked‘ is used where a study also provides data for ‘spouse current smoker’, and estimates for ‘spouse current smoker’ are used where a study also provides data for ‘spouse ever smoked’.

As for lung cancer, heart disease studies published in recent years show a weaker relationship of risk to smoking by the spouse than previously published studies. It is notable that the relative risks from the two largest US studies, published in 1995 and 2003, were very close to 1.00 in each sex, and not statistically significant.

Again all the studies are subject to the same biases and confounding factors as are noted under Table 1.

ETS POSTSCRIPT

Whilst completing this supplementary evidence for the Committee, two reports have been published upon which comment is relevant.

The first is a report by IARC1 , published only at the end of May but a short report of the findings were made and publicised earlier, in 2002. The 222-page section entitled ‘involuntary smoking’ reports the ETS studies and reviews that have been undertaken. It reaches no substantially different conclusions as to the findings of those studies and reviews than is reported here and as was reported in the findings of the IARC study published in 19982 .

IARC’s overall evaluation that exposure to ETS is carcinogenic to humans crucially depends on its evaluation that there is sufficient evidence that ETS causes lung cancer in humans, since IARC clearly considers the evidence that ETS causes other cancers in humans to be inconclusive. IARC considers that there is sufficient evidence of carcinogenicity of sidestream smoke condensates, but this finding on its own could not lead to ETS being classified as a Group 1 carcinogen. For the evidence that ETS causes lung cancer in humans to be considered sufficient, IARC requires that a positive association be observed for which “a causal interpretation is considered to be credible” and for which “chance, bias or confounding” can “be ruled out with reasonable confidence.”

Although IARC presents its own up-dated meta-analysis of the evidence relating ETS exposure to lung cancer risk in non-smokers, these analyses are not adjusted for bias or confounding. Instead, the conclusion that the excess risk “remains after controlling for some potential sources of bias and confounding” relies heavily on previously published meta-analyses of the evidence. The majority of the latter are old and based on limited data; of the only two citations by IARC in the last 10 years, IARC fails to address even adequately the substantial issues concerning misclassification, other biases and confounding that those citations raise, and fails to address the claim that the association of spousal smoking with lung cancer risk in non-smokers essentially disappears if proper adjustments are made. In this regard, the views of the eminent authorities quoted in paragraph 47 of this evidence to the Committee are also pertinent.

The second publication is that of a study3 examining levels of cotinine, a biomarker of exposure to ETS, with the risk of coronary heart disease and stroke. This study took data from the British regional heart study, which is a prospective study of cardiovascular disease in men aged 40-59 years that began in 1978-80. In 1978-80, research nurses administered a questionnaire on present and previous smoking habits – but not asking about ETS exposure - and blood samples were taken and frozen. In 2001-02, those samples were thawed and cotinine concentration (a nicotine metabolite and crude marker for ETS exposure) was measured. The cotinine values for each person were then compared with heart disease events over the period 1980 to 2000.

The study found no increase in risk of stroke associated with ETS exposure as measured by cotinine, a finding which contradicts results from an earlier retrospective case-control study4 . It found no increase in risks for coronary heart disease when measured after 15 to 20 years. For life-time non-smokers, the study reports increases in risk that are not statistically significant for all adjustments apart from one.

As the study states, it was “modest in size with limited precision”. It also expressed concern as to possible misclassification arising from men in the higher cotinine groups smoking cigarettes on an intermittent basis. Such misclassification might account for the otherwise puzzling finding of a relative risk for non-smokers exposed to ETS being almost the same as that for active smokers of 1 to 9 cigarettes a day.

Contrary to the sensationalist headlines reporting the study in the popular press, the researchers’ conclusions were appropriately modest and prompt further questions about the nature of the association, if any, between ETS and heart disease, rather than provide any definitive answers.

ANNEX

Studies referred to in Tables 1 to 5

1 Garfinkel L. Time trends in lung cancer mortality among nonsmokers and a note on passive smoking. J Natl Cancer Inst 1981;66:1061-6.

2 Chan WC, Fung SC. Lung cancer in non-smokers in Hong Kong. In: Grundmann E, editor. Cancer Epidemiology, Volume 6. Stuttgart, New York: Gustav Fischer Verlag, 1982;199-202. (Cancer Campaign.)

3 Correa P, Pickle LW, Fontham E, Lin Y, Haenszel W. Passive smoking and lung cancer. Lancet 1983;2:595-7.

4 Trichopoulos D, Kalandidi A, Sparros L. Lung cancer and passive smoking: conclusion of Greek study [Letter]. Lancet 1983;2:677-8.

5 Buffler PA, Pickle LW, Mason TJ, Contant C. The causes of lung cancer in Texas. In: Mizell M, Correa P, editors. Lung cancer: causes and prevention, Proceedings of the International Lung CancerUpdate Conference, New Orleans, Louisiana, March 3-5, 1983. Deerfield Beach, Florida: Verlag Chemie International, Inc, 1984;83-99.

6 Hirayama T. Lung cancer in Japan: effects of nutrition and passive smoking. In: Mizell M, Correa P, editors. Lung cancer: causes and prevention, Proceedings of the International Lung Cancer UpdateConference, New Orleans, Louisiana, March 3-5, 1983. Deerfield Beach, Florida: Verlag Chemie International, Inc, 1984;175-95.

7 Kabat GC, Wynder EL. Lung cancer in nonsmokers. Cancer 1984;53:1214-21.

8 Garfinkel L, Auerbach O, Joubert L. Involuntary smoking and lung cancer: a case-control study. J Natl Cancer Inst 1985;75:463-9.

9 Lam WK. A clinical and epidemiological study of carcinoma of lung in Hong Kong [Thesis]. University of Hong Kong; 1985.

10 Wu AH, Henderson BE, Pike MC, Yu MC. Smoking and other risk factors for lung cancer in women. J Natl Cancer Inst 1985;74:747-51.

11 Akiba S, Kato H, Blot WJ. Passive smoking and lung cancer among Japanese women. Cancer Res 1986;46:4804-7.

12 Lee PN, Chamberlain J, Alderson MR. Relationship of passive smoking to risk of lung cancer and other smoking-associated diseases. Br J Cancer 1986;54:97-105.

13 Brownson RC, Reif JS, Keefe TJ, Ferguson SW, Pritzl JA. Risk factors for adenocarcinoma of the lung. Am J Epidemiol 1987;125:25-34.

14 Gao Y-T, Blot WJ, Zheng W, Ershow AG, Hsu CW, Levin LI, et al. Lung cancer among Chinese women. Int J Cancer 1987;40:604-9.

15 Humble CG, Samet JM, Pathak DR. Marriage to a smoker and lung cancer risk. Am J Public Health 1987;77:598-602.

16a Koo LC, Ho JH-C, Saw D, Ho C-Y. Measurements of passive smoking and estimates of lung cancer risk among non-smoking Chinese females. Int J Cancer 1987;39:162-9.

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Note on judgments in employment cases involving ETS

The only cases of which the TMA is aware are those which there is an official court record, or where there has been a news report in the columns of the press.

The only case in which there has been full adjudication of the facts is the English case of Silvia Sparrow v St Andrew’s Homes Limited that was heard in the Manchester High Court in 1998. In this case, the Plaintiff, who was a state-enrolled nurse in a nursing home, claimed that ETS had caused or aggravated her asthma. In May 1998, her claim was dismissed and the Judge found that her employers had done all that was reasonably practicable to take reasonable care of Mrs Sparrow’s safety at work. In particular, the Judge concluded that there was insufficient scientific evidence relating to the causation of asthma in adults to be able to conclude that ETS caused her asthma. He said that what science there was, was “small in compass and speculative in weight”. The onus was on Mrs Sparrow to find other work, given that simple adjustments to the work place could not resolve the issue to her satisfaction.

In 1990, a case was heard by the Social Security Commission, Clay v Adjudication Officer. It is understood that Miss Clay worked as a social security officer and claimed that her asthma was aggravated by exposure to ETS. The Social Security Commissioner who decided her case, found that she had extreme sensitivity to the chemicals in tobacco smoke and that the case turned on its own special facts. He specifically stated that his decision was “no precedent for other cases where it may be alleged that there has been a deleterious effect from the gradual day-by-day process of employees being obliged to inhale other employees’ tobacco smoke.”

There may be other cases which have been brought in the UK, but these are the only two of which we are aware and for which we have any information.

The website of ASH makes reference to an award made in May 2000 in relation to Matthew Comstive, whose mother, Collette Comstive, was apparently exposed to ETS while working at Great Universal Stores during her pregnancy. ASH reported that a judge in chambers awarded the sum of £5,000. However, this may have been as a result of a settlement, rather than a court adjudication.

We are also aware that over the past 10 years there have been some 10 cases in respect of which legal proceedings were commenced but then settled, with the settlement details generally remaining confidential:

In England and Wales

Veronica Bland v Stockport Borough Council (1993) (reported settlement - £15,000)

Beryl Roe v Stockport Borough Council (1995) (reported settlement - £25,000)

Walmsley v Scottish & Newcastle (1997)

Michael Dunn v Napoleons Casino (2000)

In Northern Ireland

McGuirk v Southern Health & Social Services Board (1993)

McCalmont v Eastern Health & Social Services Board (1995)

Megarry v Police Authority for Northern Ireland (1998)

McClusky v Groby ex-Servicemen’s Social Club (2001)

In Scotland

Agnes Rae v Strathclyde Joint Police Board (1995)

Margaret Pacetta v Clydesdale Bank (1996)

We are also aware of several cases brought to the Employment Tribunal and Employment Appeals Tribunal in the context of constructive unfair dismissal claims:

In Waltons & Morse v Dorrington (1997), Mrs Dorrington lodged a claim for constructive and unfair dismissal on the grounds that she was forced to resign as a result of her employer’s failure to provide a smoke-free environment in which she could work. On appeal the Employment Appeals Tribunal held that:

“[I]t is an implied term of every contract of employment that the employer will provide and monitor for employees, so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties. The starting point for the implication of such a term is the duty on an employer under s.2(2)(e) of the Health and Safety at Work Act to provide and maintain a working environment for employees that is reasonably safe and without risk to health and is adequate as regards facilities and arrangements for their welfare at work. The right of an employee not to be required to sit in a smoke-filled atmosphere affects the welfare of employees at work, even if it is not something which directly is concerned with their health or can be proved to be a risk to health.”

The Employment Appeals Tribunal concluded that it would have been reasonably practicable for the employers to have solved the problem by telling those who smoked that they would not be permitted to smoke in the building because it rendered the working conditions of other employees unacceptable. It was therefore reasonably practicable for the employers to have provided the employee with a working environment that was suitable for the performance by her of her contractual duties. The conditions in which they were requiring Mrs Dorrington to work therefore rendered them in breach of the implied term to provide a reasonably suitable working environment.

The Employment Appeal Tribunal has also considered the issue of ETS from the perspective of a smoker. In Dryden v Greater Glasgow Health Board (1992), Mrs Dryden, a nurse employed at the Western Infirmary in Glasgow, lodged a complaint of constructive dismissal following a ban on smoking on the employer’s premises. The Tribunal dismissed the complaint holding that there was no implied term to the effect that Mrs Dryden was entitled to be provided with a place to smoke at work. There was no basis for holding that there was any implied term to the effect that failure to provide such facilities was a breach of the implied term of trust and confidence.

SUPPLEMENTARY SUBMISSION FROM BRITISH HOSPITALITY ASSOCIATION SCOTLAND COMMITTEE

Thank you for the opportunity to submit supplementary evidence to the Committee for consideration. I hope the points outlined below help clarify our position and will aid the Committee’s consideration of the Prohibition of Smoking in Regulated Areas (Scotland) Bill (‘the Bill’).

In the oral evidence session the Committee questioned the British Hospitality Association Scotland’s (BHA) position. The BHA supports the Voluntary Charter as long as it continues to have industry and government support. If the Voluntary Charter is no longer supported in this way a total ban on smoking in places of employment is viewed by the BHA as the only logical step open to government. A partial ban on smoking in certain public areas or a ban that is introduced at a local authority level are viewed by our organisation as the worst possible policy or legislative options.

If legislation is to be brought forward it must deliver clear health benefits, be Scotland-wide or in the case of Health and Safety legislation UK-wide. The legislation must also be straight forward to implement and enforce. Penalties must be focussed on those individuals who smoke in areas of employment rather than penalising operators for the offences of others. Legislation must be applied equitably across all areas to which the public have access and not just where food is served. The Bill as currently drafted does not meet this criterion.

The BHA believes that the Voluntary Charter has delivered tangible results; indeed, as the Committee has already heard it has met or exceeded almost all of its original targets. The Voluntary Charter provides consumer choice while extending the number of smoke free areas. However, we are fully aware that for the Charter to succeed it must have political, public and industry support. If the situation arises where the Voluntary Charter no longer has support, we would then support legislation in this area.

The BHA has a number of concerns with the Bill as currently drafted. These include:

  • The Bill is not equitable, as the ability of an establishment to implement separate areas will depend on its physical characteristics. Thus it discriminates against smaller establishments, damaging their ability to compete.
  • The ‘5 day’ rule is complicated for the hospitality industry to implement. For example, contract caters may supply food to a venue and not be aware, or able to control, whether smoking was allowed within the previous 5 days. Nevertheless, they would be liable to prosecution under this Bill.
  • The 5 day rule will be virtually impossible to enforce. It does not take into account the dynamic nature of the hospitality industry and will lead to both guest and staff confusion which will impact negatively upon guest satisfaction and staff recruitment.
  • If the health impacts of passive smoking are as outlined in the Bill’s Policy memorandum then a total ban on smoking in public is the only realistic option.

The Committee inquired whether the Voluntary Charter Group had discussed ‘ratcheting’ up the Voluntary Charter in response to concerns that it was not delivering improvements at a rate which satisfied stakeholders. In a meeting with Tom McCabe MSP, Deputy Minister for Health on 20 May 2004, the Charter Group comprising the Scottish Licensed Trade Association, Scottish Beer and Pub Association and the BHA made a number of proposals which would ‘ratchet’ up the Voluntary Charter. These proposals would extend the Charter to include registered clubs within the Charter and that:

  1. every licensed premise must have a written smoking policy for employees;
  2. every licensed premise must have a written smoking policy for customers;
  3. the smoking policy of every licensed premise must be clearly communicated to the public by signage or some other acceptable means;
  4. in all licensed premise no smoking will be permitted within three feet of the bar counter or within three feet of other areas where staff are serving behind a counter; and,
  5. no smoking will be permitted in licensed premises where and when food is served unless fully segregated areas are provided.

The Charter Group also suggested that under a revamped Voluntary Charter all licensed premises would be required to have a designated (but not segregated) non-smoking area in areas where food is not served and that the size of that area will be increased yearly as follows:

Year 1 – minimum of 30% of public floor space

Year 2 – minimum of 40% of public floor space

Year 3 – minimum of 50% of public floor space

It was the view of the Voluntary Group that the three year period will allow the Scottish Executive to monitor the impact of the new regulations and gauge public opinion as to whether the percentages should be increased. However, the position of the Deputy Health Minister was that the Voluntary Charter Group should put these proposals forward during the Scottish Executive consultation on smoking in public.

The Committee requested further information on the BHA’s position on the economic impact of the Bill. Our position is that the Scottish Executive research (commissioned as part of the Scottish Executive consultation) on the economic impact of similar bans on smoking should be carried out and published before legislation in this area is considered.

I hope this additional clarification and information will be helpful and does not leave the Committee in doubt of our position that the only options are a continuation of the Voluntary Charter or a total ban on smoking in public.


1 IARC Monograph on the Evaluation of Carcinogenic Risks to Humans, Volume 83, Tobacco Smoke and Involuntary Smoking. 2004

2 Boffetta, P et al, Multi-centre case-control study of exposure to environmental tobacco smoke in Europe, Journal of the National Cancer Institute, 1998;90: 1440-1450 and IARC Technical Report No 33, IARC 1998

3 Whincup, P H et al, Passive smoking and risk of coronary heart disease and stroke: prospective study with cotinine measurement. BMJ Online First,30 June2004

4 Bonita, R et al, Passive smoking as well as active smoking increases the risk of acute stroke. Tobacco Control 1999;8:156-160