To: National Institute for Occupational Safety and Health
From: Carl V Phillips, PhD
The Consumer Advocates for Smoke-free Alternatives Association (CASAA)
15 September 2014
VIA Federal eRulemaking Portal (https://www.regulations.gov)
Re: Docket No. CDC–2014–0013; NIOSH–274 (National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS)), draft Current Intelligence Bulletin (CIB) entitled NIOSH Current Intelligence Bulletin: Promoting Health and Preventing Disease and Injury through Workplace Tobacco Policies
This comment on Docket No. CDC–2014–0013; NIOSH–274 (National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS)), draft Current Intelligence Bulletin (CIB) entitled NIOSH Current Intelligence Bulletin: Promoting Health and Preventing Disease and Injury through Workplace Tobacco Policies, is submitted on behalf of The Consumer Advocates for Smoke-free Alternatives Association (CASAA). CASAA is a membership-based public health and education NGO and is the leading representative of consumers who use or might in the future use smoke-free tobacco/nicotine products. CASAA is not an industry group and does not represent the interests of industry.
CASAA does not take positions on regulations or other government actions regarding combustible tobacco products. These comments are about the content of the draft CIB as it relates to low-risk smoke-free tobacco products, including smokeless tobacco and e-cigarettes.
We object to the repeated conflation of cigarettes and low-risk non-combustible tobacco products in a document that is primarily about exposures to environmental tobacco smoke (ETS) in the workplace and ways to reduce it. Use of smoke-free tobacco products is not at all similar to smoking in terms of health effects. Smokeless tobacco poses such low risks to the user (if any) that they are below the limits of detection in the ample epidemiology on the topic. Smokeless tobacco poses absolutely no risk to bystanders for obvious reasons. E-cigarettes, according to the available evidence, pose little or no more risk to the user than smokeless tobacco. While the environmental impact from e-cigarettes is not zero, it is trivial compared to that from ETS, and the available evidence suggests that it poses no consequential health hazard and is more similar to the environmental impacts of air fresheners than those from either ETS or important workplace chemical exposures.
Smokeless tobacco products
This document repeatedly engages in manipulative and misleading conflation of smoking and other tobacco use. The phrases “tobacco” or “tobacco use” are repeatedly used in statements that are specifically about smoking and its hazards. This appears to be an attempt to create the illusion that those statements apply equally to all tobacco products when, in most cases where those collective phrases are used in the document, they do not.
The background information about smokeless tobacco is grossly misleading. While many commentators have concluded that it poses a net health risk, there is far from universal agreement on even this claim. It is stated as fact that smokeless tobacco causes a particular list of diseases, but none of these are established for the types of smokeless tobacco that are used by almost all consumers in the USA. The document cites the International Agency for Research on Cancer (IARC) as its primary source for the conclusions about disease risk, but IARC bases its analysis primarily on the effects of South Asian oral dip products which are not actually even smokeless tobacco, and not on the products relevant for present purposes. South Asian dip products (which sometimes contain tobacco, but it is not their main ingredient and clearly not the source of the health hazards they pose), such as gutka, do seem to pose a health hazard comparable to that from smoking, but this is obviously not relevant to Americans using actual smokeless tobacco.
For several of the specifically-stated diseases, the evidence supports a claim that there is no such risk from the smokeless tobacco products that are actually used by Americans. For the others, the evidence is, at most, suggestive that there might be some small risk. Experts on the topic generally refer to the total risk as being on the order of 1/100th of that from smoking – putting it down in the range of everyday hazards – and even that residual 1/100th is a matter of speculation, with no solid evidence of any particular disease risk. Thus, smokeless tobacco use is completely unlike smoking in terms of its health implications and implying otherwise is blatantly misleading.
However, to a large extent, that fact is moot for present purposes. Even if one believes, contrary to the evidence, that smokeless tobacco poses, say, 1/20th or 1/10th the risk to the user as compared to smoking, the inclusion of smokeless tobacco in the draft CIB is inappropriate at best. The recommendation that employers prohibit the use of smokeless tobacco in the workplace is in no way supported by the claims about ETS or any other legitimate mission of NIOSH. Simply put, there is no workplace hazard analogous to ETS that is created by the use of smokeless tobacco. The document contains no arguments for the recommended policies about smokeless tobacco, and it is difficult to imagine any such argument could be made. This is purely an attempt by CDC to engage in social engineering under the guise of providing legitimate workplace recommendations.
The absurdity of the recommendation about smokeless tobacco is exemplified by the majority of the paragraph where this recommendation is introduced (p. viii of the document version available at http://www.regulations.gov/#%21documentDetail;D=CDC-2014-0013-0002) being about designated permitted-use areas and what constitutes adequate ventilation and physical separation. There is no apparent benefit to anyone from forcing someone to step outside and away from doorways in order to use snus. The contradiction between the recommendations about smokeless tobacco and the legitimate scientific information in the draft CIB is further exemplified by the extensive analysis of airborne occupational exposures and NIOSH’s positions about them. This is clearly entirely about smoking, not other tobacco use.
CDC's Office on Smoking and Health is engaged in a moral crusade against all tobacco use, regardless of its health impacts. This is inappropriate, contrary to the stated name of the office, arguably illegal, and substantially damaging to the credibility of the CDC due to the blatant disregard for both science and principles of good public policy. For NIOSH to engage in the same behavior is a serious threat to the credibility of a CDC unit that is generally respected, and thus to the respectable science-based units of CDC in general.
Of course, to the extent that use of smokeless tobacco products constitutes a legitimate hazard due to the nature of the workplace, NIOSH has a legitimate role in making recommendations. For a minuscule number of highly-toxic workplaces – those where employees should also be forbidden from chewing gum or using breath mints – smokeless tobacco use is contraindicated. However, it seems unlikely that employers in such industries would need to be reminded to include smokeless tobacco in their prohibitions against any intra-oral product consumption in the space, and such policies have nothing to do with the fact it is tobacco. They would, for example, apply equally to the pharmaceutical nicotine lozenges and gums that are not mentioned in the draft CIB except in the context of positive recommendations, even though there is no difference among those categories for any present purpose. For the vast majority of workplaces these conditions do not apply, and thus the recommendations are baseless.
It is worth noting also that all of the statements about potential negative synergies with other occupational exposures mentioned in the document refer to inhalation hazards and possible interactions with smoking or ETS. There is no suggestion of any such synergies with non-inhaled tobacco products.
In contrast with the complete lack of environmental exposures caused by smokeless tobacco, e-cigarettes do have a small environmental impact, and thus it is conceivable that workplace regulations could be justified. E-cigarettes, with their electronics, heating element, and required manual manipulation, obviously should not be used in workspaces where any of those could pose a genuine hazard. Employers presumably are capable of figuring this out without NIOSH’s recommendations, but such recommendations are not inappropriate.
The claims in the document about environmental hazards posed by e-cigarette exhalate, however, are false and misleading. All of the available evidence suggests that the exposures to hazardous chemicals experienced by vapers (e-cigarette users) themselves are trivial, and thus the total risk from using them is probably down in the range of that from smokeless tobacco. Any chemical exposures to bystanders are several orders of magnitude lower than those, as noted by Burstyn (2014; http://www.biomedcentral.com/1471-2458/14/18).
We also note that though Burstyn’s paper is the most comprehensive and useful study of e-cigarette exposures to date, it is not cited in the draft CIB document. Given that Burstyn is a highly-respected occupational epidemiologist, and his paper uses occupational exposure standards and methods as its basis, this is a particularly glaring omission by NIOSH. This further suggests that the draft CIB is a thinly veiled social engineering effort by the Office on Smoking and Health, and not appropriate for a science-based office like NIOSH. Had the authors of this document read Burstyn, they would have realized, for example, that the supposed PAH exposure they cite as the only specific chemical exposure from e-cigarettes is implausible given the mechanics of e-cigarettes, and any substantial quantity found in a study is probably due to a contamination of the equipment with the cigarette smoke it has been used to analyze. Also the authors would have understood the difference between the environmental impact of spraying e-cigarette aerosol into a space and actual “second-hand” exposure to exhalate, which has far lower impacts due to much of the aerosol being absorbed by the vaper (which is, of course, the point of using an e-cigarette). These are widely conflated in the research, which consists almost entirely of the former but is frequently reported as if it were the latter.
Before making any recommendations about e-cigarettes, NIOSH needs to consider the evidence about them. We note that there are no explicit recommendations about e-cigarettes in the document. On one hand this is appropriate given the failure to present any basis for making recommendations. However, this makes the innuendo – the negative statements about e-cigarettes in the text – doubly inappropriate. Not only is it misinformation, but it is presented in a context where NIOSH is clearly not prepared to make recommendations, and thus its only conceivable role is to manipulate perceptions. What appear in the document are a few cherry-picked references – of a quantity and quality that is woefully inadequate for making U.S. government policy – which do not establish that there is any hazard. Moreover, unless NIOSH is planning to issue similar blanket recommendations about forbidding the use of perfumes, air fresheners, upholstery, carpets, paints, and drywall, the exposures should be put in the context of the quantities that result from those near-universal workplace exposures. It is particularly notable that pharmaceutical (NRT) nicotine inhalers, which create almost exactly the same environmental impact as e-cigarettes, are not mentioned.
NIOSH has no business engaging in social engineering
Attempting to manipulate the behavior of individuals for purposes unrelated to workplace safety, in the guise of promoting workplace safety, is inappropriate and a violation of U.S. government regulatory and scientific standards. NIOSH clearly has no business engaging in efforts to manipulate individuals’ non-workplace behavior. The Office on Smoking and Health arguably oversteps its legitimate mission by pushing a moralizing agenda about tobacco use, but even if that is accepted as legitimate, it is clearly inappropriate for NIOSH to emulate them.
The document repeatedly introduces claims about ostensible benefits of these policies for workers that have nothing to do with workplace health and safety. Actions to control employees’ outside behavior to keep them more productive bring to mind a feudal society, not a free society where government is supposed to act on behalf of the people. Naturally, there will be some inclination for employers to do just that, but it should not come with the imprimatur of the U.S. government. Moreover, there is no acknowledgement of the costs to workers of complying with the lifestyle recommendations. Businesses are arguably free to ignore costs to others when making policies, but the U.S. government is not.
Consider a few contrasts. Employers are not told by NIOSH to “place motorcycle spaces in your parking lot far from the building to discourage motorcycle use and provide counseling sessions advising against motorcycle use” even though this would tend to reduce non-workplace hazards to employees (and, if successful, by considerably more than discouraging smoke-free tobacco use). Nor does NIOSH make recommendations about sociopolitical statements that workers are allowed to make in the workplace. Such statements can have enormous impacts on employees, and there are relevant laws and regulations from other parts of government, but they are not a matter of occupational health and thus are outside the purview of NIOSH. NIOSH presumably recognizes the inappropriateness of attempting social engineering in these realms, and should extend that wisdom to the use of smoke-free tobacco products.
Accuracy of other claims
While we are not commenting on policies about combustible cigarettes, we do note that some of the discussion about them demonstrates a disregard for honest science. U.S. government regulators have an obligation to present a balanced view of the science. Readers of this document would not know that there are respectable scientists who are expert on the evidence about ETS and who conclude that it is not clear it causes measurable risks for the diseases caused by smoking at the relevant levels of exposure. Obviously it is the official position of the CDC that it does cause such risks, and it is perfectly reasonable to make that clear. But failing to even acknowledge that there is legitimate doubt about the existence of nontrivial risks – making claims and choosing references as if the CIB were an advocacy broadside rather than proper government recommendations – is unacceptable and in violation of the U.S. government’s scientific standards for the work of a supposedly scientific agency.
The document states, “there is no risk-free level of exposure to SHS.” The phrase “no safe level,” as anyone familiar with relevant sciences knows, basically means “science has not yet figured out how low the exposure must be in order to be sure the risk is so low that it gets called ‘safe’ (recognizing, of course, nothing in the world is perfectly safe).” But it sounds to laypeople as if it means “we know that exposure to any level, no matter how low, poses nontrivial risks.” Obviously anyone who is scientifically literate knows that this is never true. There is undoubtedly a nonzero level that is low enough to be “safe” (as that term is normally used). But even if there were not, there is no way we will ever know that. Dishonest activists take advantage of this inevitable confusion and use the jargon to imply the false natural language claim. The draft CIB, however, takes this a step further, explicitly replacing the standard jargon with a natural language rephrasing that is clearly false.
It is also clearly disingenuous for the U.S. government to cite the financial savings from the purchase price and lower insurance premiums as reasons for quitting tobacco use without acknowledging why those costs exist. The reason the latter cost exists is because the U.S. government made it the single allowable behavioral or health-status basis for biasing insurance premiums, and the reason the former is substantially burdensome is because of the punitive taxes imposed by the governments of the USA and its various states and localities. Presenting these punishments for tobacco use as if they were states of nature, rather than intentionally engineered by the same government that is publishing the document, is dishonest.
Inclusion of smoke-free tobacco products in the CIB will be harmful to public health and workplace health and safety
NIOSH may be under the impression that even if the recommendations about smoke-free products are beyond their legitimate purview, including them in the CIB serves some greater good. This is wrong. As noted, any health benefits from discontinuing use of smoke-free tobacco products are trivial, whereas including them in workplace restrictions is actively harmful.
Almost all workers who use e-cigarettes, and many who use smokeless tobacco, do so as a substitute for smoking. For many of them, smoking has advantages compared to the alternative, but they have chosen the alternative because of its greater net benefits. The most obvious benefit of choosing the alternative is, of course, approximately eliminating the health risks, but the convenience of not having to leave work to go to a place where smoking is allowed is also substantial. If users of smoke-free products are forced to go to smoking areas, the latter advantage will be lost. Those who still prefer the experience of smoking will also be constantly reminded of that and exposed to situations where someone would supply them with a cigarette on whim. As a result, such policies will cause more people to smoke, and the health costs from that will dwarf any health benefits of discouraging the use of low-risk products.
Moreover, most smokeless tobacco users will recognize the inappropriateness, absurdity, and complete unenforceability of rules that say they cannot use snus while sitting at their computer. They will presumably ignore these rules. Similarly, experienced e-cigarette users, if not visually monitored or in very close proximity with others, can easily vape discreetly in their workplaces without discovery. The inevitable disregard and deserved disdain that will greet such rules will erode respect for all workplace safety rules. This will result in people ignoring rules that actually do serve a legitimate workplace safety goal.
In order to bring the CIB into compliance with requirements for proper actions by U.S. government agencies, and up to the normally high standards of NIOSH, and to ensure that it protects rather than harms public health, the following steps should be taken:
- Recommendations about forbidding the use of smokeless tobacco (both explicit and implicit), except in rare workplaces where such things as breath mints are legitimately forbidden, should be removed. They clearly have no workplace health and safety justification, and send the message to users of these low-risk products that they might as well smoke.
- Hints and innuendo suggesting that the use of e-cigarettes be forbidden, except in workplaces where the use of the physical devices pose a hazard, should be removed until and unless evidence is produced that the environmental hazard is great enough to warrant such special treatment compared to other minor environmental exposures. The CIB should not comment on behaviors that it is not making recommendations about.
- The document should be rewritten so that when a statement is made about cigarettes or smoking, it is phrased in terms of cigarettes or smoking rather than an overly-general term like “tobacco.”
- It should be made clear that smoke-free tobacco products pose a tiny fraction of the risk from smoking, if that.
- For the sake of the respectability of NIOSH, normally a sober and sensible agency, we also recommend stripping out the breathless boilerplate about the hazards of smoking in favor of a few brief sentences that summarize what everyone already knows. The background and analysis about legitimate NIOSH concerns (workplace exposures) are, of course, appropriate. But pages of discussion, however accurate, about how smoking is bad for you turn the document into a typical over-the-top Office on Smoking and Health advocacy broadside.
CDC’s Office on Smoking and Health has long disregarded both scientific evidence and ethics in its pursuit of its inappropriate crusades. NIOSH and the rest of CDC generally adhere to higher scientific and ethical standards, and are respected for that. Acting as mouthpieces for the Office on Smoking and Health creates a real risk that NIOSH will be seen pursuing a similar politically-based agenda at the expense of legitimate science. NIOSH should focus on genuine workplace health and safety issues, and adhere to its normally high standards of scientific evidence.