HOW LEGAL AND LAW-RELATED ACTIONS HAVE
PLAYED
A MAJOR ROLE IN THE NONSMOKERS'
RIGHTS
MOVEMENT
Legal actions (in the courts and before administrative agencies,
as
well as later before legislative bodies) have played a major role in
the
civil rights, disability rights, environmental protection, women's
rights,
automobile safety, antismoking, and other movements. They have
also
played, and continue to play, a major role in the nonsmokers' rights
movement.
A good example is provided by Action on Smoking and Health (ASH), a
charitable
organization which pioneered the concept of using legal action as a
weapon
both against smoking generally, and subsequently to protect nonsmokers
from
tobacco smoke pollution. In 1989, the Surgeon General's Report
noted
that: [ASH] played
a
major role in establishing the legal concept of the right of nonsmokers
to be free from exposure to tobacco smoke. [It was also
responsible
for successfully introducing] more aggressive advocacy and direct
lobbying
to the war on smoking. [Prof. John Banzhaf] introduced the
principle of private legal activism to influence legislation and other
decisions on smoking and health issues. [ASH serves as the] legal
action arm of
the antismoking community."
A history of the war against smoking, including but not limited to
actions
related to protecting nonsmokers' rights, shows that a wide variety of
legal
actions played a major role. See, e.g., http://ash.org/victories
The
following summarizes only a few specific examples. For
more
information, and possible suggestions for legal action, see http://ash.org/victories
The nonsmokers' rights movement started with an ASH legal petition to
the
Civil Aeronautics Board (CAB) which resulted in a CAB rule requiring
domestic
airlines to provide separate no-smoking sections. Subsequent ASH
legal
petitions expanded this rule to guarantee sufficient seats to
accommodate
all nonsmokers, to ban pipe and cigar smoking, to deal in a limited way
with
drifting tobacco smoke, and provide other protections. Legal
complaints
filed by ASH forced the CAB to actually enforce these rules, and
airlines
to begin providing more protections. The initial rule were also
the
catalyst for early nonsmokers' rights laws, first in Arizona and then
in
South Dakota.
Ultimately these CAB restrictions led to a complete smoking ban on
short
domestic flights, then to a complete smoking ban on all domestic
flights,
and then a smoking ban on flights to and from the US. A similar
legal
process orchestrated by ASH resulted in no smoking sections on buses,
followed
by a total smoking ban.
A parallel thrust was to use legal action to seek smoking bans in
offices
and public places. In an early case ASH helped Donna
Shimp,
an office worker allergic to smoke, get an injunction prohibiting
smoking
in her office in 1976. Several years later legal actions
aided
by ASH helped establish that persons who were especially sensitive to
secondhand
tobacco smoke were entitled to protection as "handicapped persons"
under
the Federal Rehabilitation Act, a predecessor to the Americans With
Disabilities
Act (ADA).
An ASH legal petition helped persuade the National Association of
Insurance
Commissioners (NAIC) to recommend that health insurance should charge
smokers
more than nonsmokers, just as life insurance companies routinely do.
Several
companies began charging smokers more, and the federal government
approved
the concept in 1987.
Legal action was also necessary to protect nonsmokers' rights laws
which
were attacked on a wide variety of grounds. All of the attacks
were
defeated, with courts holding that there was no legal right to smoke,
and
that smoking bans did not violate any constitutional rights.
Ultimately,
the legal right of both private and governmental employers to have a
smokefree
work force, and to prohibit employees from smoking both on and off the
jobs,
was upheld.
Several years ago ASH's legal research suggested that smoking could be
raised
as a factor in custody disputes, and ASH began urging and assisting
attorneys
to seek orders banning smoking around children involved in custody
disputes,
and in extreme cases to revoke custody where a parent continues to
subject
a child to tobacco smoke pollution. In at least fifteen states,
courts
have ruled that smoking is a factor which should be considered in
custody
disputes, hundreds of orders protecting children have been written, and
several
parents have lost custody for subjecting their children to tobacco
smoke.
In some cases, authorities have acted on complaints from persons
other
than a parent about parental smoking.
In a more recent move to protect children, ASH filed legal petitions
with
several state foster care agencies asking them to adopt rules which
would
prohibit smoking in cars and residences when foster children are
present.
Two states have adopted such requirements legislatively, and
several
more have assured ASH that they will consider adopting them at the
agency
level. ASH is also providing apartment dwellers with
information
about how they can bring legal action to protect themselves from
drifting
tobacco smoke.
The above is only a small sample of the role legal actions have played
and
are continuing to play in protecting nonsmokers from tobacco smoke
pollution.
For a more complete history of the war on smoking, see http://ash.org/victories.
Students
are also urged to use Lexis and Westlaw to find articles in law
reviews,
the popular press, and other sources about ongoing legal actions
related
to nonsmokers rights.
