Tobacco Smoking Conduct
"Smoking as Hazardous Conduct"
Vol. 86 New York St J Med (Issue 9) p 493 (Sep 1986)
                  
“The smoker of cigarettes is constantly exposed to levels of carbon monoxide in the range of 500 to 1,500 parts per million when he or she inhales cigarette smoke.1

“The Occupational Safety and Health Act of 1970, 29 USC § 651 - § 678 forbids hazards.

Ed. Note: meaning, substances re which regular exposure foreseeably leads to “material impairment of [employee] health”

“Rules such as 29 CFR § 1910.1000 provide specific examples of hazards such as carbon monoxide (limit of 50 parts per million). An employer has a duty to prevent and suppress hazardous conduct by employees.2   Compliance with 29 CFR § 1910.1000.Z is mandatory, not optional. Relative to smoking, an employer must comply with the “duty to prevent and suppress” a hazard such as carbon monoxide, since “the detrimental effects of cigarette smoking on health are beyond controversy.”3

“The so-called nonsmokers' rights movement is in a sense misdirected on this issue, although accurate, albeit by indirection. As a matter of law, it is not necessary to reach the issue of the hazard to nonsmokers, as the employer's duty to prevent and suppress hazardous conduct arises when smokers endanger themselves, a point in time before additional personnel (such as nonsmokers) are also endangered.

“So-called nonsmokers' rights cases such as Shimp v New Jersey Bell Telephone Co, 145 NJ Super 516; 368 A2d 408 (1976), and Smith v Western Electric Co, 643 SW2d 10 (Mo App 1982), were improperly pleaded. They addressed matters other than the hazard to smokers themselves, although the cases arrived at the right result—suppression of hazardous conduct.”

“REFERENCES

          1 Miller G H: The filter cigarette controversy. J Indiana St Med Assoc 1979:72;903-905.

          2 National Realty and Construction Co, Inc v Occupational Safety and Health Review Commission, [160 US App DC 133, 141;] 489 F2d 1257 at 1266, n 36 (DC Cir 1973).

          3 Larus and Brother Co v Federal Communications Commission, 447 F2d 876, 880 [91 P.U.R.3d 377] (CA4, 1971).”

The National Realty and Construction Co, Inc v Occupational Safety and Health Review Commission, 160 US App DC 133; 489 F2d 1257 (1973), supra, also says the safety duty adjective “free” (meaning “free” of banned hazards) is “unqualified and absolute.” Obeying the “absolute” duty is reasonable.

Employers who refuse to obey the safety law on the No. 1 hazard identified by the Surgeon General typically have little regard for the rest of the safety issue. Safety laws are written in both

  • general terms (words against jeopardizing safety) and
  • in numeric terms (“permissible exposure limits” (PELs) aka “threshold limit values” (TLVs)). Example: They say that quantities of toxic chemicals shall not exceed X amount, in essence, a speed limit, a quantity limit.

    • Employers must obey both the general words and the specific numerics. An employer who said, 'we'll obey the number, not the general rule' was found guilty of noncompliance under both federal and state law when a Detroit-area worker was killed on the job as a result. The case citations are
  • International Union, UAW v General Dynamics Land Systems Division, 259 US App DC 369; 815 F2d 1570 (1987) cert den 484 US 976; 108 S Ct 485; 98 L Ed 2d 484 (1987); and

  • People v General Dynamics Land Sys Div, 175 Mich App 701; 438 NW2d 359 (1989) lv app den 435 Mich 860 (1990).

    • The author is particularly familiar with these cases. The incident happened in a building in which he'd worked, and by which his job daily took him on the premises!
    Advisory: Do NOT believe OSHA or other “safety” personnel who pretend that OSHA does not cover TTS. Such personnel may knowingly attempt to deceive you that TLVs / PELs do not cover most TTS ingredients.
    The “carbon monoxide in the range of 500 to 1,500 parts per million” above cited, clearly grossly exceeds the PEL / TLV of 50 in the "breathing zone." However, OSHA officials carefully, intentionally, maliciously never record this fact.
    OSHA officials thus carefully, intentionally, maliciously (knowing harm and death to be foreseeable natural and probable consequences), attempt to scam you; refuse to enforce the pertinent PEL / TLV; and omit to cite the "general duty" clause.
    By refusing to cite "breathing zone" data, OSHA officials aid and abet tobacco deaths. They obstruct dealing with the initial hazard, to smokers themnselves.
    One might treat such officials as Jews should have treated their ilk at Auschwitz who said 'inside are showers,' but omitted other key facts!

    Most people are familiar with “speed limits,” as well as the general driving rule, 'drive safely.' Cigarettes emit deleterious emissions (“Toxic Tobacco Smoke” [TTS]) that exceed the “speed limits” for toxic chemicals in the air. These toxic emissions are due to cigarettes' inherently deleterious nature and ingredients.

    The U.S. 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 TTS deleterious emissions (citing cigarette emissions vs their “speed limts” / PELs / TLVs set by medical analyses codified in safety rule 29 CFR § 1910.1000), e.g.:

    Cigarette
    Chemical    		Emission
    Quantity    		“Speed Limit”
    PEL - TLV
    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

               In this context, it is easier to understand why TTS cigarette emissions are so fatal. The "speed limit" for carbon monoxide is about 100, whereas it's doing 42,000. This emissions rule (29 CFR § 1910.1000) is a federal regulation.

    Check your state laws as well. For example, Michigan law MCL § 750.27, MSA § 28.216, bans cigarettes with hazardous ingredients, as analyzed by this writer. By banning cigarette manufacture and sales, so that cigarettes cannot legally be in Michigan, the Michigan law has the effect of making Michigan smoke-free.

    And check the Constitution and common law. TTS violates the right to life, and due process, due to its violating the “common law legal right to fresh and pure air.” The TTS danger helps explain why employers should not hire smokers.

    See also Daniel M. Berman, Death on the Job: The Politics of Occupational Health in the United States (San Francisco: Medical Committee for Human Rights, 1974), for background on employees being killed on the job.

    See also precedents against murder, in job-safety and tobacco context.

    “If you poison your boss a little bit each day it's called murder; if your boss [or smoker coworker] poisons you a little each day it's called a Threshold Limit Value [Permissible Exposure Limit]. —James P. Keogh, M.D.” cited by Prof. Robert N. Proctor, Cancer Wars: How Politics Shapes What We Know and Don't Know About Cancer (New York: Basic Books, 1995), p 153.

    A murderous boss may pretend ventilation is a substitute for smoke-free behavior. Not so. There is no controversy in the science nor among the recognized experts in ventilation technology. The only "controversy" is a fraud, made up by opponents of smokefree policies. The recognized organization on ventilation, referenced in many regional and national building codes, is the American Society for Heating, Refrigerating & Air Conditioninging Engineers. It specifically addressed this subject several years ago and concluded there is no ventilation, air cleaning or air filtration technology on the market that can adequately remove the toxins of secondhand smoke to where it would no longer pose a health risk.

    Other Writings by Same Author

    “Are You Missing $omething?,”
    26 Smoke Signals 4 (Oct 1980)
    (discusses cigarette costs to society, following my practice of
    consolidating in one narrative, data from a multiplicity of sources,
    refuting the then notion that cigarettes are a cost plus to society)

    “[Indoor Air Quality] IAQ Already Regulated,”
    3 Indoor Air Rev 3 (April 1993)
    (discusses workplace smoking (TTS) as already illegal
    pursuant to OSHA's 29 CFR § 1910.1000 emissions limits,
    which cigarettes regularly exceed)

    “Alternative Models for Controlling Smoking Among Adolescents,”
    87 Am J Pub Health 869-870 (May 1997)
    (discusses prevention of smoking among children
    by doing for them as for all other people:
    a law providing that only safe products
    be manufactured, given away, and sold)

    “Don't Hire Smokers: Here Is Why And How Not To Hire Smokers”
    (cites precedents on the legal duty to not commit
    personnel negligence/malpractice by hiring dangerous people:
    obviously violated when smokers are hired as they are
    foreseeably dangerous to themselves, others, and property)

    Also Recommended Reading

    Right of Employee to Injunction Preventing Employer
    From Exposing Employee to Tobacco Smoke In Workplace
    37 ALR4th 480

    Plant and Job Safety—OSHA and State Laws
    61 Am Jur 2d, §§1-130

    Prof. William L. Weis and Bruce W. Miller,
    The Smoke-Free Workplace
    (Buffalo, NY: Prometheus Books, 1985),
    esp ch 3-7 (costs) and 12 (hiring/transition practices).

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