On the passive smoke fraud
Author: John Dunn, MD
Article Published: 05/11/2008
William Osteen 1998
Local politicians and the public might be in a rush to do the right thing, but they might be well advised to take another look, since both these events come less than ten years after the whole second hand smoke crusade by the government was thrown out of court by Federal Judge William Osteen (Flue Cured Tobacco v. United States Environmental Protection Agency Middle District of North Carolina Memorandum Opinion July 17, 1998). Later the 4th Circuit dismissed the case because the EPA presented a technicality, but Judge Osteen’s comments, analysis and condemnation of the misconduct of the anti tobacco researchers stands as a stark reminder of the problem of misconduct by federal agencies and their bought and paid for researchers when they’re working on a religious issue. You may not have heard there is a new national church, the High Church of Holy Smoke Haters, if you spent the last ten years on a boat or in a cave without electricity.
What both the surgeons general’s report and the Kessler decision ignore is that Judge Osteen said that the government failed to present reliable evidence on any bad effect from second hand smoke, and there was no reason to continue the suit or to allow the government to continue their campaign against second hand smoke because of government misconduct and a presentation of weak and unreliable research. The Judge ordered the Environmental Protection Agency, the original federal anti tobacco agency, to cease publishing their bad science. That bad science reappeared in only slightly modified form in the Surgeon General’s report and the Department of Justice pleading against Big Tobacco in front of Judge Kessler.
Osteen’s decision in 1998 was devastating to the anti tobacco crusaders inside and outside of government, but apparently the government and the crusaders just ignored it and kept up the chant. In his opinion delivered after full briefings and submissions of expert evidence, Judge Osteen pointed out that the conduct of the Environmental Protection Agency and their manipulation of science for their argument wasin violation of basic scientific rules.
- When congress requires specific procedures, agencies may not ignore them or fashion substitutes.
- It is circular for the EPA to now argue the epidemiology studies support the agency’s a priori theory.
- The court is faced with the ugly possibility that EPA adopted a methodology for each chapter (a book on second hand smoke by EPA), without explanation, based on the outcome sought in that chapter.
- EPA should live within its own categorization framework for carcinogens and risk, or clearly explain why they chose not to do so.
- If the EPA’s a priori hypothesis fails, EPA has no justification for manipulating the Agency’s standard scientific methodology to get the result it desires.
- (Quoting the 4 Th Circuit) If agency action is to withstand judicial review, the agency’s actual reasoning must prove reasonable, not the post hoc rationalization devised during litigations (sic).
- EPA’s study selection is disturbing. . . . EPA “cherry picked” its data.
- The EPA excluded nearly half of the available studies . . . and conflicts with EPA’s Risk Assessment guidelines.
- EPA adopted statistical testing methods rejected by epidemiologists,
- Using its normal methodology and its selected studies, EPA did not show a statistically significant association between ETS (second hand smoke) and lung Cancer. (more on what that means herein under)
In the meantime the debate on second hand smoke is not over. In fact it is getting real interesting and there is good chance Judge Kessler and the Surgeon General will have to admit they were pushed by people overplaying their hand. The best and most robust and reliable research on second hand smoke in the past 10 years (e.g. Boffetta et al. WHO Study of second hand smoke effects. In the Journal of the National Cancer Institute,
The precautionary principle (accept no risk) is a tool of the ignorant. It is not an adult or mature and prudent scientific or legal basis for public policy making in a free society. It depends too much on the anxieties of the few and ignores the rights of the many. For example, there are risks involved in not accepting risks. The second hand smoke population health effect studies fail repeated and always to show the reliable effect, but the crusaders from the High Church tell the public and politicians that second hand smoke causes a ten, twenty, or thirty percent increase in deaths and bad health effects, but fail to tell the truth that they are cheating on the analysis and their studies are below acceptable proof of any effect at all. No responsible epidemiologist would use anything less than 100 per cent effect in discussing toxic effects from population studies. They are not allowed by the rules to pick these 20 or 30 percent effects and claim to the public they mean something or they should lose their appointments and their credibility. Some epidemiologists insist that the effect in these studies must be 200 percent or relative risk of 3. None of the credible second smoke studies show effects above 30 percent. Smoking a pack of cigarettes a day increases risk of cancer deaths, compared to non-smokers risk of 1% lifetime risk, to a 10% lifetime risk, one thousand percent. The continuous all day exposure to second hand smoke is the equivalent of less than one cigarette smoked.
The British House of Lords, just this year, refused to recommend action on second hand smoke after debate and consultation with British experts in epidemiology like Sir Richard Peto, who said the population studies showed no evidence of measurable bad health effects from second hand smoke. Imagine that, given the nanny-state that is
I work as an emergency physician and I know how people die. They don’t die from second hand smoke. This is a campaign built on goofy deceitful data manipulation by desktop anti-smoking commandos of the public health and legal community. None of the second hand smoke haters can show me one death, not one death from second hand smoke. People die all the time from lots of things, but not from exposure to the equivalent of a cigarette a day. My goodness, I worked as a farm boy in dusty barns, without suffering. The anti smoking scientists are still trying to find a way to condemn any smoke any time anywhere, but their scientific studies fail them. It doesn’t shut them up though, because they want prohibition and want to stop the smokers. Second hand smoke is their only weapon.
The second hand smoke population studies are a secret joke in the epidemiology and public health field, because there is a devoted and fanatic group that knows they are playing with people’s cancer and health fears. The fanatics of the church of the stubbed cigarette know that smoking prohibition can only be accomplished by the second hand smoke panic but the data and research for their crusade are weak and unreliable. They also know that the media make panicmongering an art form. So the fanatics exaggerate, have the suburban housewives and mothers as well as nervous politicians in a panic to protect the kids, the handsome and earnest physician on TV reads the claims that cigarette smoke is killing thousands of American kids in the streets, more deaths in America than you can imagine. It’s a wonder we haven’t had violence, but that is so far.
As an emergency physician, I am a toxicologist by training and necessity, I know that the anti smoking physicians are campaigning to eliminate cigarette smoking, and couldn’t be bothered by a lack of good science on second hand smoke. Toxicology is about dose, and second hand smoke in its worst case is less than a cigarette a day. Smoking a cigarette a day is not a cancer or any other health risk, thanks to the fact that the dose is insignificant and bodies are not that fragile. The studies on health effects of ETS all show effects in small ranges below level of proof.
The Medical Profession has been recruited and they are willing to tell a few white lies because they hate smoking. (Soon these well-intentioned nannies will be after fat people and people who eat the wrong foods—whoops, forgot, that’s already happening). The population studies and the scientific truth on second hand smoke don’t support the handsome well -intentioned pediatrician reading from the anti smoking script some pseudo scientific claim of thousands of deaths from ETS, but he just knows he is lying for a good cause if he knows epidemiology. The Surgeon General and Judge Kessler were also just being led by public health scientists on ETS and they are not well informed about the weak science and lack of proof of deaths or disease from ETS.
Given the trial court judiciary’s inclination to read the papers and test the wind on issues that the left has taken to high dudgeon, the Circuit Court may be the best place to kill this second hand smoke junk science. The Supreme Court or politicians will not be inclined to go contrary to the public advocacy noise, even if the science shows no effect. The left wing of the Supreme Court and the politicians have swallowed the precautionary principle so at the circuit court is the best chance to kill second hand smoke junk science one more time. The Supreme Court can just refuse to reverse the remand, an easier avenue. Otherwise prohibition and increasing intrusive interference with smoker’s rights to be left alone will be fabricated.
Some of the fanatics would probably consider prohibition and think that smoking should be a felony—that’s why we call them fanatics. But they need to be considered as the environmentalist true believers, and stopped from asserting control.
This writer hopes that when the Circuit Court looks at Judge Kessler’s opinion they will have on their desk a very important set of scientific rules of evidence and reliability described in The Federal Judicial Center’s Reference Manual on Scientific Evidence (2nd Edition) distributed to all Federal Judges (West Group 2000). If one reads the chapter on Epidemiology by Green, Freedman, and Gordis, internationally respected epidemiologists, in the business of studying health effects in populations, the misconduct of the government and the mistakes of Judge Kessler and the Surgeon General will be revealed.
The authors assert in the chapter, for the benefit of the federal judge and lawyer audience, that reliable proof of causes in population studies demands that the effect be 200 per cent or more than the disease or effect in the unexposed population. The minimum effect, but not really reliable is 100 percent. That means that Judge Kessler and her favorite witness in the trial, Dr. Jonathan Samet, who now holds Dr. Gordis’ old chair at Johns Hopkins decided to put one over on the public and claim that 20 or 30 percent effect is important. He knows that is a lie. There is no way to make his deceit nice or an honest mistake. Dr. Samet wouldn’t use 20 percent or 30 percent in any other non political population health effects studies, but he has carved out an exception for ETS, air pollution, obesity, radon where pseudo science substitutes.
Public officials should back off of moving in panic mode and trust their instincts to be skeptical of noisy federal agencies, their bought and paid for “researchers” and the mouthpieces for activist groups like Stanton Glantz of San Francisco, who heads a tobacco campaign from an academic seat in a university, probably in violation of his ethical duties as a member of a University Faculty.
There is another game going on here—cheat on the data analysis and proclaim a toxic effect, then move quickly to the best part, telling people how to live. Public Health Scientists have become the equivalent of schoolteachers and counselors—looking to make a wave and change society instead of sticking to the effort to find the truth. These noisy “scientists” also act like journalists, trying to shape public policy and opinion. Pubic Health officials are a new and dangerous group of agitators and propaganda makers, taking advantage of their positions to push their political views. This new generation of public health researchers are convinced they are critical to the survival of the human race, and they will cheat on the science to move their agenda.
A good investment would be a manual of scientific evidence for all local, federal and state agency researchers and a close look at the Osteen opinion. Why did the federal government spend tens of millions of dollars on a lawsuit this past year that retried a case the government lost 8 years ago? Why is everyone hailing the Surgeon General and the Opinion of Judge Kessler, both based on junk science?
John Dale Dunn MD JD