State House News Service 

AUG. 17, 1999--Citing fears of legal challenges, the Department of Public Health today backed away from its controversial plan to use the state's sanitary code to ban smoking in restaurants, adopting instead a "strategy of delay" that will focus on local anti-smoking battles.

The decision means that fights over smoking in restaurants will continue to
be waged at the local Board of Health level between smokers, city and town leaders and eatery owners.  It also puts on hold, for at least a year,
plans for a statewide ban on smoking in restaurants - a major goal of the
state's public health and anti-smoking advocates.

The Public Health Council in April asked for an investigation of the legal
ramifications of applying the sanitary code toward a purpose for which it
was not intended.  Proponents of the plan had argued that a section of the
code banning the use of poisonous or toxic chemicals in eateries could also
be used to ban tobacco smoke, which is known to contain carcinogens.

This morning, DPH Deputy General Counsel Howard Saxner told the council that re-interpreting existing regulations in a way that would have a
"widespread, significant effect across the Commonwealth" would violate due
process requirements. 

"Interpreting the existing language as it stands would give rise to a serious legal challenge," Saxner said.  "Agencies can't simply, by interpretation, take a position that's going to have a profound impact upon the Commonwealth."

Dr. Greg Connolly, director of the Massachusetts Tobacco Control Program, told the council that DPH has the authority to promulgate new regulations banning smoking in restaurants, but will not use it in favor of pushing town-by-town smoking bans. 

Within one year, Connolly said, he hopes to see an increase in restaurant
smoking restrictions from the current 30 percent to about 80 percent.
Connolly said he would report back to the council in 12 months with an
update.  At that time, he said, he may ask DPH to proceed with new
regulations.

"Right now, I think the best strategy is to have the locals continue with,
we expect, great progress to be made over the next year, and then come back and it's a moot issue," Connolly said.  "By funding local municipalities
and empowering them, it's our opinion that we can change social norms."
Local boards of health receive $4.5 million annually in state aid, he said.

After the meeting, Connolly said he's not disappointed with the outcome of
the sanitary code exploration.  "No, I think we're very pleased with the
fact that so many people from the media here are looking at a very
important public health issue," he said.

Dr. David Rosenthal, chairman of the Massachusetts Coalition for a Healthy
Future, said he is disappointed about the unfeasible verdict.  But he urged
the council to adopt other recommendations in an April report from the
Boston-based Medical Foundation, especially one creating a task force to
examine smoking on state property, including cars and buildings.

"There are people dying from lung diseases, allergies, asthma and cancer,
from environmental tobacco smoke," Rosenthal said.  "We'd like to see
things go much faster."

The council, chaired by DPH Commissioner Howard Koh, voted to accept the recommendations, but Koh said stamping out smoking remains his "highest priority."  He pledged to ensure that the council revisits the issue in a year, and urged officials to start "harnessing the moral outrage" at the
local level.

"I will pledge to travel to every corner of the state and talk to local boards of health and any other group that wants to hear me," Koh said.  "I personally will not stop until we have reached the goal of crystal-clear
air for people to breathe in Massachusetts."

Gov. Paul Cellucci is satisfied with today's outcome, said spokeswoman
Ilene Hoffer.  The governor "philosophically has no opposition" to banning
smoking in restaurants, but the expected legal challenges to a statewide
ban might have undermined local efforts, she said.

"That seems to make good sense," Hoffer said of DPH's decision to back off the sanitary code idea.  "We think it makes sense in the meantime, until
they can study the issue of the statewide ban further, to continue to work
to help local communities that want to adopt bans to do so."

Anti-smoking advocates appeared upbeat about the decision.  Lori Fresina,
director of government affairs for the American Cancer Society, said
activists have better luck with local boards of health than with the
Legislature, where industry lobbyists have more sway.  Creating a local
groundswell is the best way to reach the state's political leaders, she said.

"When the people lead, the leaders will follow," Fresina said.  "I think
we've switched into that mode now.  As every legislator's district starts
to visit this issue ... we're going to see state leaders take this up as a
serious issue."

The Massachusetts Restaurant Association, which has vigorously opposed
smoking bans at the state and local levels, greeted today's decision with
surprise, then a shrug.  Bruce Potter, MRA's director of membership
services, said he always thought the code proposal was "a little odd."

The anti-smokers' plan to focus on community bans doesn't affect the
association's strategy, which has always been at the local level, Potter
said.  "It hasn't changed anything to us," he said.  "We've been pursuing
this as a local issue for the past six years."
 

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