FOR IMMEDIATE RELEASE: Monday, February 26, 1996

The Occupational Safety and Health Administration (OSHA) has been given less than two weeks by the U.S. Court of Appeals to explain its "unreasonable delay" in adopting a rule which would ban smoking in virtually all U.S. workplaces.

The unusual and unexpected order, which was issued "on the court's own motion," came in a law suit filed against the agency by Action on Smoking and Health (ASH), a national antismoking organization.

ASH's earlier law suit against OSHA forced the agency to propose an unprecedented rule which would virtually ban smoking in all workplaces, including offices, stores, restaurants, and even bars.

According to law professor John Banzhaf, ASH's Chief Counsel, the order indicates that the court is finally getting fed up with delay after delay by the agency in protecting workers against what every federal agency which has studied the issue agrees is the most dangerous workplace carcinogen.

"The court could well order the agency to issue the rule before the fall, making a national workplace smoking ban an issue in the presidential elections," he says.

In responding to ASH's earlier suit, the court said that OSHA should "complete its proposed rulemaking expeditiously and issue its final rule within the 120 day time period set forth in [OSHA's] Cancer Policy."

OSHA's Cancer Policy establishes strict time limits for the agency to complete work on any proposed rule to protect workers from chemicals in the workplace which cause cancer time limits which have already expired.

In December of 1992 the Environmental Protection Agency (EPA) ruled that secondhand tobacco smoke was a "Group A carcinogen"; a substance known to cause cancer in human beings, and one for which no safe lower level of exposure has ever been found.

OSHA agrees that tobacco smoke is a human carcinogen, a conclusion also reached by the U.S. Public Health Service, several U.S. Surgeons General, the National Academy of Sciences, the National Institute on Occupational Safety and Health, and a number of other agencies.

In its order the court directed OSHA attorneys to "discuss the factors set forth in TRAC," a well-known case involving unreasonable agency delay in acting.

In an earlier opinion the court had admonished OSHA that "TRAC has made it clear that this court will not permit agency gridlock to frustrate the statutory mission Congress has given an agency."

Although the deadline under the Cancer Policy for action on this issue has passed, OSHA officials and insiders have been quoted as predicting that it would take at least another year before any action is taken.

While privately conceding that political pressures are a major factor in the delay, they publicly blame the large amount of testimony, evidence, and comments which the agency has received in its rulemaking proceeding on this issue to date.

However, ASH reminded the court, virtually all of the testimony, evidence, and comments OSHA received is legally irrelevant under its own rules, and thus does not provide a legal basis for any further delay.

Moreover, notes ASH, state OSHA's in both Maryland and Washington managed to complete rule making proceedings on the very same issue, and to promulgate rules drastically limiting smoking in their respective states.

The fact that five states have now banned smoking in virtually all of their private as well as public workplaces also proves conclusively that such regulations are effective, can be enforced, do not drive companies out of business, and do protect workers, says ASH.

ASH - ACTION ON SMOKING AND HEALTH 2013 H Street, NW / Washington, DC 20006 / (202) 659-4310