Case No. 97-PR-755

In re Julie Anne, a Minor Child.

Decided August 27, 2002

1. Secondhand smoke is carcinogenic to children.

2. Secondhandsmoking kills about the same number of Americans each year as died in the Vietnam War.

3. Every independent authoritative scientific body that has examined the evidence has concluded that secondhand smoking causes diseases affecting children.

4. Secondhand smoke is a real and substantial threat to child health, causing a wide variety of adverse health effects in children.

5. Almost half of the world’s children regularly breathe air polluted by tobacco smoke, particularly at home.

6. The vast majority of children exposed to tobacco smoke do not chose to be exposed. The major source of exposure to tobacco smoke for young children is smoking by parents and other household members.

7. The involuntary nature of children’s exposure to secondhand smoke crystallizes the harm as egregious.

8.There is a strong link between parental smoking and Sudden Infant Death Syndrome, with typical studies finding a two- to threefold increase in risk among children of smokers.It is reported that three times as many infants die of Sudden Infant Death Syndrome caused by maternal smoking as are killed as a result of homicide or child abuse.

9. Parental smoking is a key factor in children becoming active smokers after involuntarily being passive smokers, and active smoking by children not only is a serious health risk but also is a risk factor for substance and drug abuse.

10. For at least a century and a half, the “best interests of the child” standard has been the polestar for Ohio courts in determining matters involving children.

11. A family court that fails to issue court orders restraining persons from smoking in the presence of children under its jurisdiction is failing the children whom the law has entrusted to its care.

12. Courts will take judicial notice of the superabundance of scientific evidence that demonstrates secondhand smoke is harmful to children, giving rise to a duty upon family courts to take action to reduce children’s involuntary exposure to tobacco smoke.

WilliamF. Chinnock, Judge.

{¶1}This case involves the issuance of a restraining order against tobacco smokers to protect children under the court’s jurisdiction from having their health compromised by being forced to breathe secondhand smoke.

{¶2}In this case, the court conducted a hearing on custody and visitation in which it was admitted that adults smoke cigarettes in the home in which the child lives.The court raised the issue of the danger of secondhand smoke to children, and discussed this peril with the custodial parent mother and her significant other with whom she and her healthy eight-year-old daughter Julie Anne live.They responded that the court’s prohibition against smoking in their home would place a strain on their relationship.

{¶3}The primary issue is the degree of scientific evidence demonstrating a causal relationship between secondhand smoke and health problems of children. The secondary issue is the authority and duty of family courts to prevent harm to children by prohibiting and restraining persons from smoking tobacco in their presence.

{¶4}One third of the world’s adults smoke cigarettes, and half of these smokers will die prematurely.[1]

{¶5}More than 80,000 scientific publications have linked tobacco to dozens of causes of death.[2]

{¶6}Lung cancer is the most common cause of death from cancer in the world.The major cause of lung cancer is tobacco smoking, primarily cigarettes.[3]

{¶7}Smoking tobacco is practiced worldwide by over one thousand million people.Between one-fifth and two-thirds of men in most populations smoke, while women’s smoking rates vary more widely but rarely equal male rates.[4] Since 1964 when the Surgeon General first called the nations’ attention to the health hazards of smoking, smoking among adults has declined from 40.4% in 1965 to 25.7% in 1991. In the United States, 23.3% of adults were current smokers in 2000, down from 25% in 1993.[5] Children are the chief source of new consumers of the tobacco industry, which each year must replace the many consumers who quit smoking and the many who die from smoking-related diseases.[6]

{¶8}All tobacco products that are smoked deliver substantial amounts of carcinogens to their users.[7] Smoking is responsible for approximately 15% of all deaths in the United States.[8] Half of all persistent cigarette smokers are eventually killed by a tobacco-caused disease, half of these deaths occur in middle age, and those killed by tobacco lose on average 20 to 25 years of nonsmoker life expectancy.[9] One of the documents released under the1997 Attorneys General Settlement Agreement between the tobacco industry and 46 states was an internal handwritten memo by a lawyer for Liggett Tobacco Company, stating: “Cigarettes kill people beyond a reasonable doubt.”[10]

{¶9}Smoking causes about four million deaths annually, mainly attributable to cardiovascular disease, chronic lung disease, lung cancer, and other cancers. There is evidence in humans that tobacco smoking causes many types of cancer, including cancer of the lung, oral cavity, nasal cavity, larynx, esophagus, stomach, pancreas, liver, kidney, bladder, and cervix.[11]

{¶10}In June 2002, an international team of 29 experts from 12 countries comprising the International Agency for Research on Cancer, a branch of the World Health Organization, issued its meta-analysis summery analyzing more than 3,000 studies on secondhand smoke that involved millions of people on six continents. Its conclusion[12]: “Secondhand smoke is carcinogenic to humans.” 

{¶11}More than two-thirds of nonsmokers recognize that smoking is hazardous to nonsmokers’ health; nearly half of smokers recognize this reality.[13] The overwhelming majority of adults (87%) believe people have a right to be freed from breathing other people’s secondhand smoke.[14] The tobacco industry’s response to public awareness of the dangers of secondhand smoke is contained in a secret study conducted for the United States Tobacco Institute in 1978 -- that such public awareness is “the most dangerous development to the viability of the tobacco industry that has yet occurred.”[15]

{¶12}Secondhand smoke is the single most important source of indoor air pollution.[16]

{¶13}Secondhand smoke, including the smoke inhaled and exhaled by the smoker and the smoke released directly from the end of a burning cigarette, is a mixture of more than 4,800 chemical substances, over 50 of which are known to cause cancer.[17] In 1992, the United States Environmental Protection Agency classified secondhand smoke as a “Group A” carcinogen -- a substance that produces cancer in humans.[18]Exposure for as little as 8 to 20 minutes causes physical reactions linked to heart and stroke disease.[19]

{¶14}Secondhand smoke, or environmental tobacco smoke, inevitably results in involuntary or passive smoking by nonsmokers.Two-thirds of the smoke from a burning cigarette is not inhaled by the smoker, but enters into the surrounding environment, and the contaminated air is inhaled by anyone in the area.[20]A nonsmoker in a smoky room inhales the equivalent of 35 cigarettes an hour.[21] Secondhand smoke has twice as much nicotine and tar and five times the carbon monoxide as the smoke inhaled by smokers.[22]The nonsmoking spouse of a smoker has double the risk of lung and heart disease of a nonsmoker living with a nonsmoker.[23]

{¶15}Secondhand smoke is the third leading cause of preventable death in this country.For every eight smokers killed by active smoking, passive smoking kills one nonsmoker.[24]Passivesmoking kills about the same number of Americans each year as died in the Vietnam War.[25]

{¶16}It is estimated by the United States Environmental Protection Agency that the risk of developing cancer from exposure to secondhand smoke is about 57 times greater than the total risk posed by all outdoor air contaminants regulated under federal environmental law. In the United States, about 43% of children two months to eleven years of age live in homes with at least one smoker.[26]Simple separation of smokers and nonsmokers, if they remain within the same air space, only reduces but does not eliminate exposure of nonsmokers to environmental tobacco smoke.[27]It takes more than three hours to remove 95% of the smoke from one cigarette from the room once smoking has ended.[28]

{¶17}There is a plethora of comprehensive authoritative scientific reports on passive smoking.[29] The evidence that passive smoking causes disease is not new. The first studies linking passive smoking with breathing problems in children and lung cancer and heart disease in adults were issued 10 to 20 years ago.

{¶18}The United States Surgeon General’s 1986 report entitled The Health Consequences of Involuntary Smoking was the first public service health report to establish a causal relationship between secondhand smoke and disease in healthy nonsmokers, including respiratory diseases in children of parents who smoke.[30]

{¶19}While the emphasis on passive smoking has been on lung cancer and breathing, the effects on heart disease are even more severe. The chemicals in secondhand smoke injure the heart muscle, interfere with the ability of blood vessels to control blood pressure and flow, increase the buildup of blockages of blood vessels (which leads to heart attacks), and make blood stickier. The net effect is that passive smoking causes about 15 times more deaths from heart disease than from lung cancer.[31]

{¶20}Every independent authoritative scientific body that has examined the evidence has concluded that passive smoking causes diseases affecting children, including low fetal birth weight, bronchitis and pneumonia, asthma induction and exacerbation, chronic respiratory problems, middle ear infections, and Sudden Infant Death Syndrome ("SIDS").[32]

{¶21}The infants of women who smoke during pregnancy are at greater risk of spontaneous abortion, premature birth, and SIDS.[33] There is a strong link between parental smoking, including maternal smoking during pregnancy and parental (especially maternal) smoking after birth, and SIDS; typical studies find a two- to threefold increase in risk among children of smokers.[34]Same-room exposure doubles the risk.[35] It is reported that three times as many infants die of SIDS caused by maternal smoking as are killed as a result of homicide or child abuse.[36]

{¶22}In response to the 1997 Declaration on Children’s Environmental Health, adopted by the Environment Leaders of the Eight (Canada, France, Germany, Italy, Japan, Russian Federation, United Kingdom of Great Britain and Northern Ireland, United States of America), the World Health Organization in 1999 convened an International Consultation on Environmental Tobacco Smoke and Child Health (“ETS Consultation”) in Switzerland. Experts from developing and developed countries gathered to examine the effects of exposure to tobacco smoke on child health and develop actions to eliminate this exposure.[37]

{¶23}The ETS Consultation found that the vast majority of children exposed to tobacco smoke do not chose to be exposed.Children’s exposure is involuntary, arising from smoking mainly by adults in the places where children live, work, and play.The major source of exposure to tobacco smoke for young children is smoking by parents and other household members.Given that more than a thousand million adults smoke worldwide, the World Health Organization estimates that around 700 million, or almost half of the world’s children, regularly breathe air polluted by tobacco smoke, particularly at home.The large number of exposed children, coupled with the evidence that environmental tobacco smoke causes illness in children, constitutes a substantial public health threat. 

{¶24}It was concluded by the ETS Consultation that eenvironmental tobacco smoke is a real and substantial threat to child health, causing death and suffering throughout the world. Environmental tobacco smoke exposure causes a wide variety of adverse health effects in children, including lower respiratory tract infections such as pneumonia and bronchitis, coughing and wheezing, worsening of asthma, and middle ear disease. Children’s exposure to environmental tobacco smoke may also contribute to cardiovascular disease in adulthood and to neurobehavioral impairment.

{¶25}The ETS Consultation also concluded that maternal smoking during pregnancy is a major cause of sudden infant death syndrome and other well-documented health effects, including reduced birth weight and decreased lung function. In addition, the ETS Consultation noted that environmental tobacco smoke exposure among nonsmoking pregnant women can cause a decrease in birth weight and that infant exposure to environmental tobacco smoke increases the risk of SIDS.

{¶26}In August 2003, the 12th World Conference on Tobacco or Health will be held in Helsinki, Finland, and will bring together thousands of professionals dedicated to counteracting the global tobacco epidemic in favour of a smoke-free world.

{¶27}For at least a century and a half, the “best interests of the child” standard has been the polestar for Ohio courts in determining matters involving children.[38]

{¶28}The 1989 United Nations Convention on the Rights of the Child, ratified by almost 200 countries, including the United States, is the most universally accepted human rights document in history.It provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”[39](Emphasis added.) Because the Convention creates obligations for signatory governments to ensure children’s right to the highest attainable standard of health, the involuntary harmful exposure of children to secondhand smoke can be seen as a human rights violation.

{¶29}The involuntary nature of children’s exposure to secondhand smoke crystallizes the harm as egregious.A recent decision by the United States Supreme Court is in point.In that case, the high court held that a state prisoner’s complaint states a cause of action by alleging that his cell mate’s and other inmates’ secondhand smoke constitutes an unreasonable risk to his health and subjects him to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.[40]

{¶30}Over a century ago, the Supreme Court of the United States affirmed a state supreme court decision that took judicial notice that cigarettes are “wholly noxious and deleterious to health.”[41]

{¶31}This court takes judicial notice that there is a superabundance of scientific evidence that demonstrates secondhand smoke is harmful to children.This evidence of manifold harm from secondhand smoke to children is consistent and robust, and gives rise to a duty upon family courts (and the legislature) to take action to reduce children’s involuntary exposure to tobacco smoke.

{¶32}Moreover, perhaps even more significantly, parental smoking is a key factor in children becoming active smokers after involuntarily being passive smokers; children of smokers are almost twice as likely to smoke as children of nonsmoking parents.[42] Very few people begin using tobacco as adults.[43] Active smoking by children not only is a serious health risk but also is a risk factor for substance and drug abuse.[44] Teens who smoke are three times more likely than nonsmokers to use alcohol, eight times more likely to use marijuana, and 22 times more likely to use cocaine.[45] High school seniors who are regular smokers and began smoking by grade nine are 2.4 times more likely than their nonsmoking peers to report poorer overall health, 2.7 times more likely to report cough with phlegm or blood and shortness of breath when not exercising, and 3.0 times more likely to have seen a physician for an emotional or psychological complaint.[46]

{¶33}The overwhelming authoritative scientific evidence leads to the inescapable conclusion that a family court that fails to issue court orders restraining persons from smoking in the presence of children under its jurisdiction is failing the children whom the law has entrusted to its care.

{¶34}For these compelling reasons, the mother and father are hereby restrained under penalty of contempt from allowing any person, including themselves, to smoke tobacco in the presence of the minor child Julie Anne.If smoking is allowed in the house in which the child lives or visits on a regular basis, it shall be confined to a room well ventilated to the outside that is most distant from where the child spends most of her time when there.

{¶35}SOORDERED.

William F. Chinnock, J., retired, of the Cuyahoga County Juvenile Court, sitting by assignment.

K. L., for plaintiff.

Defendant, pro se.