Health Supreme by Sepp Hasslberger

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April 02, 2005

Court: Second Hand Smoke Agenda Driven - Case For Independent Science

An 'authoritative' study of the U.S. Environmental Protection Agency which led to widespread acceptance of the - apparently false - precept that smoking endangers people who are around and inhale the smoke 'second hand', was soundly rejected by Judge William Osteen of the Middle District of North Carolina Federal Court. has a report on this.

Although not new (the decision is from 1998) this episode does show the tip of the iceberg of a widespread situation where science is being used as a tool of industry to obtain approval for previously mapped-out strategies, rather than as a way of finding out the facts and act accordingly. Mae-Wan Ho of the ISIS Institute points out that there is an ongoing action by the Independent Science Panel (ISP), a panel of scientists from many disciplines, committed to the promotion of science for the public good, to ask the European Community to put an end to that practice.

Calling on the European Community to support Independent Science, the Panel says that funding needs to be removed from industry and technology driven areas like genomics and information technologies towards sustainable agriculture, ecology and energy use in sustainable systems, and holistic health. In particular, they would like to see top priority given to scientists working with local communities to revitalize and protect traditional agricultural and healthcare systems.

And here is a copy of that article on second hand smoke...

- - -

Federal Court Rejects EPA Secondhand Smoke Study

(see original here)

Decision has far-reaching implications
Written By: Environment & Climate News staff
Published In: Environment News
Publication Date: September 1, 1998
Publisher: The Heartland Institute

In one of the most embarrassing setbacks for EPA in recent memory, a federal judge has thrown out the agency's landmark 1993 risk assessment linking secondhand smoke to cancer.

The ruling, handed down July 17, invalidated EPA research linking exposure to secondhand smoke, also known as environmental tobacco smoke (ETS), to 3,000 cancer deaths each year. The agency's ETS risk assessment was subsequently challenged by tobacco industry officials who feared--quite rightly, as it turned out--that the agency's findings would be used to justify smoking bans in public places. Tobacco companies argued that EPA cherry-picked data and ignored standard scientific and statistical practices to reach its conclusions, an opinion shared by a large number of independent scientists.

The new court ruling could have a profound effect on the risk assessments and other scientific reviews periodically released by the federal government. If allowed to stand, the decision will establish a precedent that risk assessments are subject to judicial review in instances where they have a regulatory impact. That prospect is nothing short of a nightmare for federal agencies unaccustomed to seeing their scientific pronouncements challenged in court.

In his blistering 92-page decision, Judge William Osteen of the Middle District of North Carolina essentially vindicated those who had accused EPA of manipulating data in order to reach a preconceived conclusion. Osteen ruled that EPA had violated provisions of the 1986 Radon Gas and Indoor Air Quality Act, under which the agency determined that exposure to ETS is hazardous.

"EPA publicly committed to a conclusion before research had begun; excluded industry by violating the Act's procedural requirements; adjusted established procedure and established scientific norms to validate the Agency's public conclusion; and aggressively utilized the Act's authority to disseminate findings to establish a de facto regulatory scheme intended to restrict Plaintiff's products and to influence public opinion," Osteen wrote.

Among other things, the Act requires that a broad-based, stakeholder advisory panel -- one that includes the participation of affected industries -- be convened to review the findings of EPA research alleging a substance is dangerous to human health. Judge Osteen noted, however, that the tobacco industry had been excluded from the secondhand smoke panel.

"Findings Based on Selective Information"

Osteen added that EPA's findings were based on insufficiently rigorous statistical tests and were therefore invalid. EPA, he noted, "disregarded information and made findings based on selective information . . . ; deviated from its risk assessment guidelines; failed to disclose important [opposition] findings and reasoning; and left significant questions without answers."

Osteen's ruling isn't expected to have much impact on smoking bans already in place. (Some California communities might be an exception, where bans on smoking in bars are immensely unpopular with patrons and owners.) But the ruling is certain to discourage lawsuits aimed at recovering damages for people claiming to have been harmed by exposure to ETS. Plaintiffs will no longer be able to cite EPA's now-discredited risk assessment to buttress their claims.

No Choice but to Appeal

Although legal observers agree Osteen's ruling is likely to be upheld by a higher court, EPA has little choice but to appeal. Risk assessments are the foundation of the agency's regulatory action. To have one of its high-profile risk assessments invalidated by a federal judge for violating standard scientific and statistical practices is nothing short of an humiliation for EPA. It raises serious questions about the science underlying other EPA regulatory decisions, including last year's controversial decision to tighten standards for particulate matter and ground-level ozone. That action is also being challenged in court, with a ruling expected in the next twelve months.

EPA wins appeal and ruling overturned

The EPA appealed the decision to the United States Court of Appeals for the Fourth Circuit. In a unanimous decision on December 11, 2002, the court ruled that the EPA report was not a reviewable agency action under the Administrative Procedure Act (APA). The court held that there were "no legal and direct consequences of the report which constitute final agency action." In other words, because the EPA report had no legal or regulatory function and was rather advisory, Judge Osteen's judgment was dismissed.

(This last paragraph update is from this site)

See also:

Article on I-SIS.ORG's site

The text of the court decision - Passive Smoke

Science versus Democracy?
A report by Prof. Peter Sounders of the Institute for Science in Society


posted by Sepp Hasslberger on Saturday April 2 2005
updated on Friday June 26 2009

URL of this article:


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Cancer may be largely to blame on man made chemicals in our environment, rather than on smoking and diet, the factors that are emphasized by medical experts. The article reporting the Canadian study was printed in the Penticton Herald, a relatively obscure paper and I haven't seen it taken up by other press outlets so far. A separate study of scientists from the Shanghai University of Traditional Chinese Medicine blames... [read more]
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EU supplements directive based on bad science
The European Union has issued a directive on food supplements which must be incorporated into national law by the member countries by the end of July 2003. There have been numerous protests and challenges to the EU legislators from consumers, health shops, manufacturers and practitioners, but the apparency is that of a decision made that cannot be undone. As consumers and sometimes patients we will lose access to a large... [read more]
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Creative Commons has become a modern-day alternative to copyright which we inherited from pre-computer and pre-internet times. Ubiquitous copyright has become an obstacle to sharing and utilizing the immense amounts of information now at our fingertips. The idea is to form a "commons", that is, a freely accessible body of facts and ideas where barriers to the exchange and use of information have been removed or at least lowered from... [read more]
February 21, 2005 - Sepp Hasslberger

Peer Review - Politics of Science?
According to a recent article on, the White House is looking for ways to more closely control what scientists are allowed to say in studies that are to be used by the US government in forming policy in the areas of health and the environment. The peer review system, whereby a scientific article is scrutinized by a scientist's colleagues - actually often by an anonymous selection of "guardians of... [read more]
January 29, 2004 - Sepp Hasslberger

Schubert: 'Sound Science' Overrides Reality and Common Sense
Science in the service of politics? Yes, says the Union of Concerned Scientists, appalled over the hijacking of science by political expediency. According to an article in The Register, more than four thousand scientists signed the latest protest against the Bush administration's appalling bending of scientific fact to fit the political agenda. David Schubert, head of the Cellular Neurobiology Laboratory at the Salk Institute for Biological Studies in La Jolla,... [read more]
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