Urging Him to Use Michigan's Safe Cigarette Law
(MCL § 750.27, MSA § 28.216) As A Model For West Virginia
West Virginia residents have been hurt by tobacco and so have been involved in litigation for over a century due to the cigarette problem, e.g.,
Anderson v Newman, 190 W Va 577; 439 SE2d 442, 445 (21 Sep 1993) (case of potential harming of child by father, a smoker, case cited Jeffrey L. Hall, "Second Hand Smoke as an Issue in Child Custody/Visitation Disputes," 97 West Virginia Law Rev (#1) 115-139 at 137 n 112 (Fall 1994)
The former governor, Cecil Underwood, had a record of supporting action against tobacco. For example, he endorsed the goals of Tobacco-Free Day (10 February 1998) at the Legislature. On 11 February 1998, he attended a rally sponsored by the the West Virginia Youth Tobacco Prevention Campaign. On 18 February 1998, he submitted testimony to the Legislative Hearing on H.B. 2705. This was soon after he and Del Capito had been at Shoals Elementary where they witnessed a Teens Against Tobacco presentation and listened to essays from two students about tobacco dangers, details at http://www.state.wv.us/governor/tobtest.htm.
The most recent widely known tobacco case is Darrell V. McGraw, Jr. Attorney General, ex rel. State of West Virginia; the West Virginia Public Employees Insurance Agency; and the West Virginia Department of Health and Human Resources v. The American Tobacco Company, et al. Civil Action No. 94-C-1707 - Circuit Court of Kanawha County, details at http://www.state.wv.us/wvag/cons/annrep/litig1.htm. This was part of the country-wide effort to deal with cigarette costs to taxpayers.
In November 1998, based on that case, West Virginia joined the historic tobacco settlement to recover taxpayer money taxpayers had paid for treating sick smokers. Tobacco had cost West Virginia a lot of money, and the agreement provides some reimbursement, about $1.7 billion. The intent is also to stop tobacco companies from marketing to children. For details, see http://www.state.wv.us/wvag/cons/press/pr11.htm. For details on payments, see http://www.state.wv.us/wvag/cons/press/tobpay.htm.
It is clear that we have long needed protection from tobacco companies harming our people. Here is a sample letter providing details and offering a solution.
Honorable Robert E. Wise, Jr.
Governor, State of West Virginia
Office of the Governor
State Capitol Complex Toll free: 1-888-438-2731
Charleston, W.Va. 25305 Regular (304) 558-2000
e-mail: governor@governor.state.wv.us
Dear Governor Wise:
1. The recent tobacco settlement shows that tobacco companies have hurt West Virginia, targeted our children to addict them on smoking, and cost us taxpayers a lot of money for resultant health care costs. Often it is adults who suffer and die and bear the consequences. It's time to end the problem by adopting a smokers' rights law. We don't need to re-invent the wheel; Michigan already has an excellent cigarette control law, MCL § 750.27, MSA § 28.216 that we can copy. It forbids "any person within the state" from action that "manufactures, sells or gives to anyone, any cigarette containing any ingredient deleterious to health or foreign to tobacco . . . ." Please work to get such a law here in West Virginia.
2. There are periodic federal proposals for "fire-safe" cigarettes—to halt the needless home and business fires caused by cigarettes. Michigan has gone this concept one better, and requires cigarettes to be chemical safe. This cigarette control concept requires the ingredients themselves to be safe. It prevents discrimination against smokers, otherwise, the only group of people denied the right to a safe product. Let's protect West Virginia smokers too.
3. In 1909, when the Michigan law MCL § 750.27, MSA § 28.216, was passed, many aspects of cigarette "deleteriousness" were already known in the medical profession, and so well documented as to have received judicial notice. Examples:
* It is deleterious due to the fire hazard, Commonwealth v Thompson, 53 Mass 231 (1847).* It delivers a drug, Carver v State, 69 Ind 61; 35 Am Rep 205 (1879), Mueller v State, 76 Ind 310; 40 Am Rep 245 (1881), and State v Ohmer, 34 Mo App 115 (1889).
* Due to the second-hand smoke aspect, it is deleterious to nonsmokers, State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (1890).
* It is deleterious to smokers themselves, Austin v State, 101 Tenn 563; 48 SW 305, affirmed by the U.S. Supreme Court at 179 US 343 (1900), supra.
4. The Michigan smokers' rights law (the right to a safe product like all other products are required to be) is routinely disobeyed by tobacco companies. The law protects people from cigarettes containing deleterious ingredients. Cigarettes are inherently dangerous. Banzhaf v F.C.C., 132 US App DC 14, 29; 405 F2d 1082, 1097 (1968) cert den 396 US 842 (1969). The Department of Health and Human Services (DHHS), Reducing the Health Consequences of Smoking: 25 Years of Progress: a Report of the Surgeon General, Publication CDC 89-8411, Table 7, pp 86-87 (1989), lists examples of deleterious ingredients including but not limited to:
| acetaldehyde (1.4+ mg) | arsenic (500+ ng) | benzo(a)pyrene (.1+ ng) |
| cadmium (1,300+ ng) | crotonaldehyde (.2+ µg) | chromium (1,000+ ng) |
| ethylcarbamate 310+ ng) | formaldehyde (1.6+ µg) | hydrazine (14+ ng) |
| lead (8+ µg) | nickel (2,000+ ng) | radioactive polonium (.2+ Pci) |
Judicial notice of cigarettes' "inherent" deleteriousness is taken pursuant to an 1897 Tennessee law, in Austin v State, 101 Tenn 563; 566-7; 48 SW 305, 306; 70 Am St Rep 703 (1898) affirmed 179 US 343 (1900). The Michigan law was passed soon thereafter, in 1909, and (when enforced) protects people from this danger. Please support doing the same here in West Virginia.
5. The law also protects people from cigarettes' deleterious emissions, "Toxic Tobacco Smoke" (TTS, or sometimes, ETS). Due to cigarettes' inherently deleterious nature and ingredients, they, when lit, emit deleterious emissions into the breathing zone, violating the common law duty on "fresh and pure air." The Department of Health, Education and Welfare (DHEW), Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service, PHS Pub 1103, Table 4, p 60 (1964), lists examples of cigarettes' deleterious emissions exceeding the "speed limits" (official term: "Threshold Limit Values," TLV) set by toxic chemical regulation 29 CFR § 1910.1000, including but not limited to:
| acetaldehyde | 3,200 ppm | 200.0 ppm |
| acrolein | 150 ppm | 0.5 ppm |
| ammonia | 300 ppm | 150.0 ppm |
| carbon monoxide | 42,000 ppm | 100.0 ppm |
| formaldehyde | 30 ppm | 5.0 ppm |
| hydrogen cyanide | 1,600 ppm | 10.0 ppm |
| hydrogen sulfide | 40 ppm | 20.0 ppm |
| methyl chloride | 1,200 ppm | 100.0 ppm |
| nitrogen dioxide | 250 ppm | 5.0 ppm |
6. The law was passed to protect people from the foreign substance coumarin in tobacco. In Mike Moore, Attorney General ex rel State of Mississippi v American Tobacco Co, et al, No 94-1429 (one of the Attorney General cigarette cost reimbursement cases), Jeffrey Wigand, Ph.D., ex-tobacco company scientist, admitted coumarin (rat poison) in tobacco. Tobacco company attorney Thomas Bezanson objected, not as untrue, but "on trade secret grounds." See Philip J. Hilts, Smoke Screen: The Truth Behind The Tobacco Industry Cover-Up (NY: Addison-Wesley Pub Co, 1996), pp 161-163. This had been reported likewise in 1884:
"[I]t is largely used as an adulterant of smoking tobacco . . . [for its intoxicating, addicting effect]. Hence . . . cigarette-smoking . . . is assuming the proportions of a great national evil." Laurence Johnson, M.D., A Manual of the Medical Botany of North America (NY: William Wood & Co, 1884), pp 170-171.
The 1897 Tennessee law upheld in Austin v State, supra, was thereafter passed. Tennessee's law was even better than Michigan's. Please look into supporting that concept instead.
"[It] has been used commercially for many years--mainly in cigarettes . . . harvest of [it] is expanding . . . . The composition of one flavoring extract that includes [it] was patented in 1961. . . . About two million pounds of cured plants are harvested annually. . . . Because [it] is a perennial and the roots are not harvested, maintaining populations is not a problem. A decrease in plant populations has not been noted." See Krochmal, Trilisa odoratissima, 23 Econ Bot 185-186 (1969)."Leaves of [the plant] . . . are used in the tobacco industry, particularly in cigarette mixtures. . . . It appears that the . . . constituent most desired by the tobacco industry is coumarin." See Haskins, et al., Coumarin in Trilisa odoratissima, 26 Econ Bot 44-48 (1972).
"Leaves used to flavor pipe and cigar tobacco and cigarettes . . . and as a moth repellant . . . may cause hemorrhage and liver damage." Duke, Handbook of Medicinal Herbs (Boca Raton: CRC Press, 1985), p 491.
7. Explanation of the deleteriousness of specific cigarette ingredients is stated in, e.g., the following reference materials:
a. Gosselin, Smith, Hodge, and Braddock, Clinical Toxicology of Commercial Products, 5th ed (Baltimore: Williams & Wilkins, 1984). Page II-4 lists toxicity levels of 1-6 (1, "practically non-toxic"; 4, "very toxic"; 6, "super-toxic"). Nicotine, item 772, pp II-237 and III-311-4 is rated a 6; coumarin, p II-257, item 861, is a 4.
b. Dreisbach and Robertson, Handbook of Poisoning: Prevention, Diagnosis and Treatment, 12th ed (Norwalk, CT: Appleton & Lange, 1983 and 1987). Pages 35 and 259-263 cover carbon monoxide poisoning; pp 130-132, tobacco and nicotine; pp 385-7, anticoagulants, e.g., coumarin and warfarin.
c. Sondra Goodman, Director, Household Hazardous Waste Project, HHWP's Guide to Hazardous Products Around the Home, 2d ed (Springfield, MO: Southwest Mo St Univ Press, 1989). Page 99 covers poisoning by carbon monoxide, of which cigarettes emit 42,000 ppm , exceeding the 29 CFR § 1910.1000 average safe limit of 50 ppm).
d. Arena and Drew, Poisoning, 5th ed (Springfield, IL: Charles C. Thomas Pub, 1986). Pages 216-217 cover nicotine; pp 308-312, carbon monoxide; p 999, which lists coumarin, says, ominously, "see Warfarin," p 1007.
8. Due to cigarettes' deleteriousness, "Over 37 million people (one of every six Americans alive today) will die from cigarette smoking years before they otherwise would," see DHEW, National Institute on Drug Abuse (NIDA), Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p v (Dec 1977). This number constitutes a "holocaust" (referring to the then "annual death toll of some 27,500"), see Royal College of Physicians, Smoking and Health Now (London: Pitman Medical and Scientific Publishing Co, 1971), p 9. Such deaths are "natural and probable consequences," a term defined in Black's Law Dictionary, 6th ed (St. Paul: West Pub Co, 1990), p 1026, as events happening "so frequently as to be expected [intended] to happen again." Cigarette deaths are clearly foreseeable and so are not "accidents" ("unexpected" "unusual," "fortuitous" events), p 15. So adopting a safe cigarettes law is urgently needed. Either the Tennessee or Michigan law would be fine to solve this.
9. A safe cigarettes law follows the principle that it is unlawful to provide people the means--e.g., a deleterious substance--to injure or kill themselves, even if death is slow, People v Carmichael, 5 Mich 10; 71 Am Dec 769 (1858); People v Stevenson, 416 Mich 383; 331 NW2d 143, 145-6 (1982); and People v Kevorkian, 447 Mich 436, 494-6; 527 NW2d 714, 738-9 (1994).
10. A safe cigarettes law is needed to prevent the continued killing of nonsmokers with lung cancer. Medical evidence "provides compelling confirmation that breathing other people's tobacco smoke is a cause of lung cancer," as shown anew in the analysis by A. K. Hackshaw, M. R. Law, and N. J. Wald, "The accumulated evidence on lung cancer and environmental tobacco smoke," 315 Brit Med J 980-988 (18 Oct 1997).
11. "Coronary heart disease is the leading cause of death in the United States . . . 1995 . . . 481,287 deaths . . . . To achieve a meaningful reduction in the burden to society of coronary heart disease, both passive and active smoking must be targeted . . . The only safe way to protect nonsmokers from exposure to cigarette smoke is to eliminate this health hazard from public places and workplaces, as well as from the home," see Jiang He, M.D., Ph.D., Suma Vupputuri, M.P.H., Krista Allen, M.P.H., Monica R. Prerost, M.S., Janet Hughes, Ph.D., and Paul K. Whelton, M.D., "Passive Smoking and The Risk of Coronary Heart Disease—A Meta-Analysis of Epidemiolgic Studies," 340 N England J Med (12) 920-926 (25 March 1999).
12. "Most smokers do not view themselves at increased risk of heart disease or cancer." John P. Ayanian, M.D., M.P.P., Paul J. Cleary, Ph.D., "Perceived Risks of Heart Disease and Cancer Among Cigarette Smokers," 281 J Am Med Ass'n (11) 1019-1021 (17 March 1999). Wherefore they do not see the danger that smoking poses to nonsmokers. Wherefore nonsmokers' —children and adults—only advance protection is via safe cigarette laws.
13. A safe cigarettes law is needed to prevent the continued killing of babies with Sudden Infant Death Syndrome (SIDS).
"Tobacco use is an important preventable cause of . . . deaths from . . . SIDS. . . . The cigarette . . . injures or kills a sizable proportion of its users when used as intended by the manufacturer. The harm caused by the cigarette is not limited to the user, however, as unborn children and infants are . . . harmed by other people's use of tobacco," as shown in the analysis by J. R. DiFranza, and R. A. Lew, "Effect of Maternal Cigarette on Pregnancy Complications and Sudden Infant Death Syndrome," 40 J Family Practice 385-394 (1995).
14. Tobacco company intent and action when unrestrained is shown by this example of smoking—30% of 6 year old boys; 50% of "boys between 9 and 10"; 88% of boys over 11, reported by Dixon, On Tobacco, 17 Canadian Med Ass'n J 1531 (Dec 1927). As continued sales to children show, a narrow law banning sales to them only does not work. That is why a safe cigarettes law is needed, so everyone is protected from being sold the dangerous product. That is the same consumer protection right we all have on all other products.
15. Cigarettes' toxic chemicals cause severe suffering. Due to cigarettes' deleteriousness, they are the No. 1 cause of premature death, thus of the preceding severe suffering. As a "natural and probable consequence," there is a 9-1 smoker-nonsmoker suicide ratio, the same ratio as lung cancer. See Cowell and Hirst, "Mortality Differences Between Smokers and Nonsmokers," 32 Transactions of the Society of Actuaries 185-261 (1980), Table 9, p 200. This occurs as
"smokers have excesses of suicide: risks; thoughts; attempts; and deaths . . . Suicide [is] strongly . . . associated with smoking . . . independent of age, gender, exercise, cholesterol, race, low local income, diabetes, MI [myocardial infarction], etc. [variables]. Ex-smokers had lower suicide rates than current smokers. The pooled dose-response statistic [is] highly significant. . . . Suicide is prospectively, independently, consistently, strongly, and highly significantly dose-response associated with smoking." See Leistikow, et al., Analysis of Association Between Smoking and Suicide, 15 J of Addictive Diseases 141 (1996).
16. Cigarettes' toxic chemicals cause brain "injury" that "takes away the power of resistance." They lead to abulia, a "state of dethronement of reason from its governing power," Carmichael, 5 Mich 21, supra. See e.g., Johnston, Smoking Cure, 263 Lancet 480-482 (6 Sep 1952); Brown, Tobacco Addiction, 50 Tex St J Med 35-36 (Jan 1954); Am Psychiatric Ass'n (APA), Diagnostic and Statistical Manual of Mental Disorders (1980) pp 159-160, 176-178, and (1987) pp 150-151, 181-182; Caprin v Harris, 511 F Supp 589, 590 n 3 (D ND NY, 1981); Comment, Tobacco Addiction, 81 Mich Law Rev 237-258 (Nov 1982); and Ott, et al, Smoking, Dementia, and Alzheimer's Disease, 351 Lancet 1840-1843 (20 June 1998).
The Alzheimer's Disease study should be available through your local public library, and is at http://www.thelancet.com (though to view it, you must become a member (not subscriber) of the Lancet's site, then click on "search", then choose volume 351, page 1840.
17. The Alzheimer's disease article provides an additional large bibliography of material. The key finding is
"Compared with never smokers, smokers had an increased risk of dementia . . . and Alzheimer's disease. Smoking was a strong risk factor in [certain smokers]." Their "interpretation" is that "Smoking was associated with a doubling of the risk of dementia and Alzheimer's disease.""Smoking is a risk factor for vascular disease, including atherosclerosis and thrombosis, and increases the risk of vascular dementia. . . . Vascular involvement is probably more important than previously though in the pathology of Alzheimer's disease."
18. Cigarettes' toxic chemicals impair impulse and ethical controls, i.e., cause abulia (addiction). Cigarettes are the delivery agent for nicotine, the gateway (starter) drug on which children are first hooked (average age 12). Alcohol follows, average age 12.6; then marijuana, average age 14. Drug dependence develops in stages, requiring intervention at the earliest stage-- cigarettes. See DHEW NIDA Research Monograph 17, supra, p vi; DuPont, Teen Drug Use, 102 J of Pediatrics 1003-1007 (June 1983); Fleming, et al., Cigarettes' Role in The Initiation And Progression Of Early Substance Use, 14 Addictive Behaviors 261-272 (1989); and DHHS, Preventing Tobacco Use Among Young People: Surgeon General Report (1994). Page 10 supports law enforcement, saying, "Illegal sales of tobacco products are common." Passing a Michigan-type law MCL § 750.27, MSA § 28.216, is a "War on Drugs" issue and is needed to win that War.
19. Smokers suffer, then many self-medicate with alcohol. Drunk drivers are typically smokers, as police oft see. "Smoking prevalence among active alcoholics approaches 90%." See Hayes, et al., Alcoholism and Nicotine Dependence Treatment, 15 Journal of Addictive Diseases 135 (1996). So it leads, in turn, to promiscuity, pregnancy, and abortion. See the Surgeon General Report (1994), supra; and DiFranza, et al., "Effect of Maternal Cigarette Smoking," 40 J of Family Practice 385-394 (April 1995). Passing a Michigan-type law MCL § 750.27, MSA § 28.216, due to the drunk driving aspect, is a MADD issue. The tobacco link to promiscuity and abortion is a "right-to-life" issue. Please take action to prevent these things by working for a Michigan-type law MCL § 750.27, MSA § 28.216.
20. Once the abulic process of impairing ethical and impulse controls occurs, tobacco's 90% role in crime results. Most crime is committed by smokers, just as most lung cancer, suicide, etc., not to say that all smokers get/do such. "Maternal prenatal smoking predicts persistent criminal outcome in male offspring." See Brennan, et al., 56 Arch Gen Psychiatry 215-219 (March 1999). The tobacco-crime link has been cited many times by prison officials and judges since the Auburn Report (1854).
"Nowhere is the practice of smoking more imbedded than in the nation's prisons and jails, where the proportion of smokers to non-smokers is many times higher than that of society in general." Doughty v Board, 731 F Supp 423, 424 (D Col, 1989)."Nationwide, the [ratio] of smokers [to non-smokers] in prisons is 90 percent." McKinney v Anderson, 924 F2d 1500, 1507 n 21 (CA 9, 1991).
21. Tobacco depresses the immune system, causes abulia, and leads to post-gateway-drug drug abuse, so is a triple risk factor for AIDS. See APA, Diag and Stat Manual of Mental Disorders, supra; Newell, et al., AIDS Risk Factors, 14 Preventive Med 81-91 (1985); Schechter, et al., Vancouver AIDS Study, 133 Can Med Ass'n J 286-292 (1985); Halsey, et al., AIDS & Smoking in Haitian Women, 267 J Am Med Ass'n 2062-2066 (1992); and Watstein, The AIDS Dictionary (NY: Facts on File, Inc., 1998), p 253.
22. "Each year, use of tobacco products is responsible for an estimated 19,000 to 141,000 tobacco-induced birth defects . . . . . Tobacco use is an important preventable cause of birth defects." See Joseph R. DiFranza and Robert A. Lew, "Effect of Maternal Cigarette on Pregnancy Complications and Sudden Infant Death Syndrome," 40 Journal of Family Practice 385-394 (1995).
a. Tobacco smoke contains numerous teratogenic substances which double the risk of fetal malformations. See Wenderlein, JM, "Rauchen und Schwangershaft [Smoking and Pregnancy]," 89 Z Arztl Fortbild (Jena) (5) 467-471 (October 1995)
b. Considerable evidence indicates that the chemicals in tobacco smoke are capable of producing deleterious changes in the placenta and fetus. See Walsh, RA, "Effects of Maternal Smoking on Adverse Pregnancy Outcomes: Examination of the Criteria of Causation," 66 Hum Biol (GDV) (6) 1059-1092 (December 1994).
c. "Gestational substance abuse poses a significant risk to the physical and mental health of an emerging generation of Americans. Because abuse of cocaine and alcohol seriously threatens fetal health, the state has a strong interest in preventing pregnant women from abusing these substances." See Kristen Rachelle Lichtenberg, "Gestational Substance Abuse: A Call for a Thoughtful Legislative Response," 65 Washinton Law Review 377- 396 (April 1990).
23. Smokers' abulia results in fire-setting and rule-defying rebelliousness, Haller v City of Lansing, 195 Mich 753; 162 NW 335 (1917); Tanton v McKenney, 226 Mich 245; 197 NW 510 (1924); Jacobs v St Mental Health Dep't, 88 Mich App 503; 276 NW2d 627 (1979); and Stevens v Inland Waters, Inc, 220 Mich App 212; 559 NW2d 61 (1996).
24. In view of the pattern of abulia caused by cigarettes' toxic chemicals, "smoking is a predictor of divorce," see Bachman, et al., Smoking, Drinking, and Drug Use in Young Adulthood (Mahwah, NJ: Lawrence Erlbaum Assoc, Pub, 1997), p 70. Smokers have 53% more divorce than nonsmokers. See Doherty, et al., Cigarette Smoking and Divorce, 16 Families, Systems & Health 393-400 (1998).
25. Cigarettes are a risk factor in abortion, as shown by Joseph R. DiFranza and Robert A. Lew, "Effect of Maternal Cigarette on Pregnancy Complications and Sudden Infant Death Syndrome," in 40 Journal of Family Practice 385-394 (1995). That study found that "Each year, use of tobacco products is responsible for an estimated 19,000 to 141,000 tobacco-induced abortions . . . . . Tobacco use is an important preventable cause of abortions."
26. The record shows that all cigarettes are both deleterious and adulterated. The warning label itself establishes deleteriousness. Grusendorf v City of Oklahoma City, 816 F2d 539, 543 (CA 10, 1987). In view of such facts and above-cited effects, it is clear why Michigan and Tennessee banned such a severely deleterious product, the No. 1 cause of suffering and death. West Virginia needs to do the same.
27. A safe cigarettes law has the advantage of following the concept of criminalizing fraudulent sales, snake-oil sales, etc., not the buying. Criminalizing buying/use makes too many criminals, promotes disrespect for law, and punishes the victim of the fraudulent sale. This is especially true for children, below the age of maturity and consent to even make contract decisions. We criminalize leaving one's refrigerator outside with the lock on, not the falling prey to it.
28. By banning the gateway drug, not a post-gateway drug such as alcohol, a safe cigarettes law avoids the error of Prohibition (that error was to fail to ban cigarettes), and puts personal responsibility on those with most knowledge of the contraband substance (manufacturers and sellers), not on unwary consumers, often children.
29. Money can compensate for the damage in some crimes; but it cannot compensate for tobacco smoke-caused irreparable harm such as death. Shimp v N J Bell Tele Co, 145 N J Super 516; 368 A2d 408 (1976); Com v Hughes, 468 Pa 502; 364 A2d 306 (1976); and Smith v Western Elec Co, 643 SW2d 10, 13 (Mo App, 1982) (the latter, a case for injunction with respect to second-hand smoke/involuntary smoking). Both second-hand smokers and first hand smokers, and indeed, all West Virginia residents endangered by this deleterious and adulterated product, need such a law.
30. In conclusion, please work for a law to ban deleterious and adulterated cigarettes so they will be treated the same as all other consumer products, only safe ones sold.
Respectfully,
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