Friday, April 4, 2014

Disagreement with Tobacco Control Now Punishable By Law

What century or what country are we living in?

In the 17th century Galileo was found “vehemently suspect of heresy” for holding beliefs that contradicted the church, forced to recant and sentenced to house arrest for the rest of his life.

These days in Russia, you can be fined for exposing children to homosexuality because it promotes social acceptability in defiance of the government’s position.

Surely not the American way, right? 

Yet when the issue is tied to smoking, New York City emulates both in time and place.

Leaning heavily on one of the soviet-style anti-smoker tenets that even the sight of smoking or appearance thereof sends a message that undermines their attempt to relegate it to a “socially unacceptable” and “deviant” behavior, Ex-Mayor Bloomberg, the city council and his health commissioner demonstrated that the truth is only what they say it is when it came to banning the use (vaping) of electronic cigarettes (e-cigs) wherever traditional smoking is banned.

On the local level, government determination of what the truth will be to advance its legislative agenda is bad enough. But when at the same time a U.S. District Court judge, by court order, makes that established truth mandatory of others – dissent punishable by law -- at the urging of the U.S. Department of Justice, the breath of the Inquisition is on our national necks.

In regard to NYC, when former U.S. Surgeon General Richard Carmona writes a formal letter to all council members urging them to reject the proposal to ban e-cigs because there was no valid social or scientific reason to do so, he’s dismissed and suddenly a disagreeing city health commissioner is more the expert than he is.  

Dr. Carmona served as the SG between 2002 and 2006.  It was he who spun gold for the rejoicing anti-smoker movement with the release of his 2006 Surgeon General’s Report, “The Health Effects of Secondhand Smoke,” from which emerged two press conference bullets intended to be the coup de grace to the head of all dissent:  “The debate is over,” and “no safe level.”  He was worshiped. To this day, those (his) words are considered unassailable by many.  

Today Carmona serves on the board of directors for NJOY Inc., a large electronic cigarette company.  

At first blush, it’s understandable that the council could find Carmona’s motive suspect – that he was serving the interests of the company for which he now works. But that suspicion can only be raised if one also entertains the idea that he is a man of questionable character who will say what benefits him at the moment. 

People can change jobs but a person’s nature is innate and achieved intellect fixed.  Carmona’s views can’t, at one’s pleasure, be scholarly gospel, and the next moment unreliable or dishonest. 

No matter.  Whether his press conference words in 2006 were, as many have charged, nothing but political because no support for them can be found in the actual Report or he’s dead right about e-cigs falling short of “unsafe,” he’s a man who was once revered for delivering the goods but who wasn’t even given the time of day now. (Perhaps a victim of his own doing – “no safe level” no matter what -- coming back to bite him in the ass?)  Buck the state dogma and it’s “Carmona who?”

On the federal level, in a racketeering (RICO) case brought against the tobacco industry by the U.S. Dept. of Justice, U.S. District Court Judge Gladys Kessler ruled in 2006 that the industry had lied and ordered “corrective statements” as part of the punishment.  But it took until now for an agreement to be reached on the content and placement (top newspapers and on major TV networks).

No issue is taken with the prescribed statements about primary smoking.  That ship has sailed.  What’s at stake here are the ordered statements about secondhand smoke. 

They begin with the major tobacco companies having to state that they “deliberately deceived the public about the health effects of secondhand smoke,” followed by a “The truth is…” list of effects that end with Carmona Who?’s words, “There is no safe level of exposure to secondhand smoke.”   

That the tobacco companies have filed an appeal over the wording is irrelevant at the moment. Two branches of government acting in concert have just directed that not only will they not hear of disagreement but that one must be forced to speak the government line.  No less than a state religion has been established right under your “smoke-free” noses.  The gospel is only what the government’s Anti-Smoker Church says it is and you have no choice but to adhere to it.

What’s remarkable is the anti-smoker crusaders’ triumphant wave of this decision -- rendered single-handedly -- as the absolute “truth” (the tobacco companies had lied) when seven years later a jury of one’s peers in Charleston, W. Va., decided that five major tobacco companies, in a case brought against them by hundreds of smokers, “didn't intentionally conceal evidence regarding the dangers of smoking.”

Arguing who might be right or wrong is beside the point.  The point is that a bonafide difference of opinion does exist. Though the scales of justice could easily tip further in favor of a diverse collection of eight regular folk versus one possibly biased judge (more on that later).  

Nevertheless, in the world of Judge Kessler and her champions, how soon until these eight people will be ordered to retract their verdict and replace it with a government mandated corrective statement?

Despite the stranglehold our modern day Prohibitionists’ have on the flow of information, effectively blacking or drowning out opposing views in the news, claims of effects on health by so-called secondhand smoke remains controversial. The science is not settled.  In fact, the “undeniable” has crystal clearly been denied.

For instance, it was only a few months ago that an article on a soon-to-be published study was printed. Headlined “No Clear Link Between Passive Smoking and Lung Cancer” in the Journal of the National Cancer Institute, the available abstract says, "A large prospective cohort study of more than 76,000 women... found no link between [lung cancer] and secondhand smoke."  

Buy the full paper and there you’ll find Dr. Gerard Silvestri adding, "We've gotten smoking out of bars and restaurants on the basis of the fact that you don't want to die. The reality is, we probably won't."

So how is holding a position that is apparently supported by contrary material a lie? If anyone is deliberately deceived it’s we the people from whom this latest study was kept.  Find it reported by mainstream news.  I dare you.

There’s more.

In 2003 Drs. James Enstrom and Geoffrey Kabat had their study on secondhand smoke published in the British Medical Journal that concluded there was “no significant relationship between environmental tobacco smoke (ETS) and tobacco-related mortality.”  

Just this past July Dr. Ronald Bayer from NYC’s Columbia University Mailman School of Public Health emerged with his analysis about smoking bans in outdoor spaces like beaches and parks. “Far from definitive and in some cases weak” was what he concluded in response to claims that it causes harm to health, extraordinary litter, and influences young minds (promotes acceptability).

In an extensive NPR interview Dr. Bayer emphasized, “The evidence of harm to non-smokers on the beach or in a park from someone smoking is virtually non-existent.”

Criticism of these papers doesn't absolve any who force a confession of sin from a defendant who can provide tangible reason for honestly believing differently. 

That’s not to say they haven’t tried to essentially airbrush the counter evidence out of existence (the same way the anti-smokers have airbrushed cigarettes out of photos) to create a synthetic “no alibi” environment.

Kessler, in agreement with a DOJ argument as part of the RICO case, goes as far as indicting the Enstrom and Kabat paper as a lie itself.  That tacitly implicates all such studies as fabrications simply for its guilt-by-association subject matter.

Their work and reputations dragged into this case, these researchers’ honesty and integrity were put on co-trial without any representation.  Their part was what the behind-the-scenes leaders in the anti-smoker movement told the DOJ it was and cemented by the testimony of one.

Having already gone to great lengths to defend his paper when it was first released from a vicious attack by those with an “ideological and political agenda,” Dr. Enstrom’s response to this further injustice was to write, “The Judge repeated in her opinion a number of the misleading and inaccurate statements about my study[…] However, the Judge identified no specific errors in the study and identified no scientific misconduct by me. At no time was I ever given an opportunity to challenge or refute the statements made about me and my research in the USDOJ Findings of Fact, in the trial itself, or in the Kessler opinion.” 

The previous charge of bias in and by this court doesn’t appear so far-fetched.

Deliberately deceived”?  

Considering that the aforementioned evidence to the contrary regarding secondhand smoke is but the tip of the iceberg, that’s as grotesque a charge as if a court ruled (as if it was its place to even do so) believers of human evolution are willful liars rather than leaving them alone to lean on a scientifically based difference of opinion no matter how hotly contested by others.  Would we not be aghast at the very idea that the debate was a matter of permission by a court at the urging of a government agency?

But in light of NYC’s behavior and especially the actions of Judge Kessler and the DOJ  how soon until Silvestri, Enstrom, Kabat, Bayer and the many other researchers who have reached similar conclusions or any one individual will be hauled into court and tried for the act of entertaining unacceptable thoughts, punishable by law?  If the crime is going against government doctrine why stop at industry?

Unless they want to admit persecution (“Big Tobacco is evil”) as the grounds for prosecution, the court is clear; it’s ultimately what was said, not who said it.  Galileo went down for asserting the earth revolved around the sun, not because he was Galileo. 

Let it also be clear none of this is to defend the tobacco companies that are but a red flag exhibit, but to denounce the elimination of dissent.

Despising the tobacco industry is no refuge for what the secondhand smoke portion of those “correctives” portend for everyone’s freedom to dissent when one is refused their honest belief, based on multitudes of material, that something remains genuinely open to debate.  


  1. Judge doesnt accept statistical studies as proof of LC causation!

    It was McTear V Imperial Tobacco. Here is the URL for both my summary and the Judge’s ‘opinion’ (aka ‘decision’):

    (2.14) Prof Sir Richard Doll, Mr Gareth Davies (CEO of ITL). Prof James Friend and
    Prof Gerad Hastings gave oral evidence at a meeting of the Health Committee in
    2000. This event was brought up during the present action as putative evidence that
    ITL had admitted that smoking caused various diseases. Although this section is quite
    long and detailed, I think that we can miss it out. Essentially, for various reasons, Doll
    said that ITL admitted it, but Davies said that ITL had only agreed that smoking might
    cause diseases, but ITL did not know. ITL did not contest the public health messages.
    (2.62) ITL then had the chance to tell the Judge about what it did when the suspicion
    arose of a connection between lung cancer and smoking. Researchers had attempted
    to cause lung cancer in animals from tobacco smoke, without success. It was right,
    therefore, for ITL to ‘withhold judgement’ as to whether or not tobacco smoke caused
    lung cancer.

    [9.10] In any event, the pursuer has failed to prove individual causation.
    Epidemiology cannot be used to establish causation in any individual case, and the
    use of statistics applicable to the general population to determine the likelihood of
    causation in an individual is fallacious. Given that there are possible causes of lung
    cancer other than cigarette smoking, and given that lung cancer can occur in a nonsmoker,
    it is not possible to determine in any individual case whether but for an
    individual’s cigarette smoking he probably would not have contracted lung cancer
    (paras.[6.172] to [6.185]).
    [9.11] In any event there was no lack of reasonable care on the part of ITL at any
    point at which Mr McTear consumed their products, and the pursuer’s negligence
    case fails. There is no breach of a duty of care on the part of a manufacturer, if a
    consumer of the manufacturer’s product is harmed by the product, but the consumer
    knew of the product’s potential for causing harm prior to consumption of it. The
    individual is well enough served if he is given such information as a normally
    intelligent person would include in his assessment of how he wishes to conduct his
    life, thus putting him in the position of making an informed choice (paras.[7.167] to

  2. My argument has always been the level of so called proof required to prove disease outcomes where no proof actually exists. The Kessler rulings are based upon NO-PROOF. From the EPA study and Judge Osteens Verdict here:

    The EPA fought to have Osteen's decision overturned on technical grounds, ignoring the multitude of facts in the decision. They succeeded in 2002 on the narrowest of technicalities. The fourth circuit court of appeals ruled that because the report was not an official policy document Osteen's court did not have jurisdiction. In their appeal the EPA did not answer a single criticism in the 92 page report, nor challenge a single fact put forth by Judge Osteen. Not one.

    Then we go back to the Doll Hospital study there again no proof given,except to find Sir Richard Doll was using the exact same epidemiological criteria as what the Nazi anti-tobacco researchers used.

    We then see the introduction of the PRECAUTIONARY PRINCIPLE from the RIO environmental summit in 1992 where it became observed law on an international Basis. The principle has become the '' DO NO HARM PRINCIPLE''. It gives no proof the same standing as having actual proof where no proof but a simple claim of harm is now all you need to pass a criminal law or convict!

    It seems Judge Kessler is a wide believer in the principle yet in her BIO she was a member of the scientific evidence review board for federal guidelines on acceptable research to the courts...........

    In that guideline Book it clearly states OSHA is the acceptable source on levels of harm!

    Carmonas '' No safe Level '' Claim is literally not acceptable as evidence to anyone.

    Reference Manual on Scientific Evidence: Third Edition

    This sorta says it all

    These limits generally are based on assessments of health risk and calculations of concentrations that are associated with what the regulators believe to be negligibly small risks. The calculations are made after first identifying the total dose of a chemical that is safe (poses a negligible risk) and then determining the concentration of that chemical in the medium of concern that should not be exceeded if exposed individuals (typically those at the high end of media contact) are not to incur a dose greater than the safe one.

    So OSHA standards are what is the guideline for what is acceptable ''SAFE LEVELS''

    So when we state Junk Science that's exactly what it means junk science with out ever producing proof of harm to anyone at any level of actual proof!

    7 October, the COT meeting on 26 October and the COC meeting on 18
    November 2004.

    "5. The Committees commented that tobacco smoke was a highly complex chemical mixture and that the causative agents for smoke induced diseases (such as cardiovascular disease, cancer, effects on reproduction and on offspring) was unknown. The mechanisms by which tobacco induced adverse effects were not established. The best information related to tobacco smoke - induced lung cancer, but even in this instance a detailed mechanism was not available. The Committees therefore agreed that on the basis of current knowledge it would be very difficult to identify a toxicological testing strategy or a biomonitoring approach for use in volunteer studies with smokers where the end-points determined or biomarkers measured were predictive of the overall burden of tobacco-induced adverse disease."

    In other words ... our first hand smoke theory is so lame we can't even design a bogus lab experiment to prove it. In fact ... we don't even know how tobacco does all of the magical things we claim it does.

    The greatest threat to the second hand theory is the weakness of the first hand theory.

  3. Great post Audrey!

    BTW, have you seen this yet?

    Prohibits the sale or provision of any quantity of electronic liquid

    Prohibits the sale or provision of any quantity of electronic liquid; defines "electronic liquid" as any liquid composed of nicotine and other chemicals that is sold for use in electronic cigarettes.

    Bill S6939-2013

  4. First rate effort, and oh, that wonderful writing style! What does this refer to though? [quote]But when at the same time a U.S. District Court judge, by court order, makes that established truth mandatory of others – dissent punishable by law...[quote] -- Merilee O

    1. I discuss that later in the column. It's Judge Kessler's RICO ruling and order for "corrective statements."