r wrote to the landlord. A month later, he vacated the premises and sued, alleging that the landlord had breached the covenant of quiet enjoyment and the statutory duties imposed on landlords (including doing “whatever is reasonably necessary to put and keep the premises in a fit and habitable condition”). The Court of Appeals reversed a dismissal of the case, concluding that there are “genuine issues of material fact concerning the amount of smoke or noxious odors being transmitted into appellant’s rental unit”.8
Additionally, Parmet et al9 have cited litigation that directly benefited children who brought an action under the public accommodation provisions of the Americans With Disabilities Act to get access to McDonald’s and Burger King restaurants in the United States.10 A similar case has been filed in 1998 in the state of Maryland against two large restaurant chains.11The theory behind these cases is that, under federal law, places that are open to the public must not have policies which discriminate against persons with disabilities. By permitting smoking in their restaurants, the plaintiffs allege, persons with respiratory disabilities are denied access and experience discrimination.
ETS litigation in the United States is maturing. In February 1998, the first wrongful death case involving ETS went to trial in Indiana12; the jury returned a verdict for the tobacco company defendants on 19 March 1998.13 The first phase of a class action suit brought by flight attendants exposed to ETS was settled in October 1997 for $300 million to fund tobacco-related medical research.14 These lawsuits and other similar cases slated for trial may also help send the message to parents that ETS exposure, particularly over time, does indeed pose a potentially grave threat to their children.
Legislation is also affecting how America deals with the issue of children and ETS. For example, it is already illegal under United States law to permit smoking in facilities that provide kindergarten, elementary, or secondary education, library services, or health care to children.15
States are beginning to follow the lead of the federal government. After learning that smoking in a vehicle is 23 times more toxic than in a house and 8.5 times more toxic than in an aircraft because of the smaller enclosed space, Colorado state Senator Dorothy Rupert (Democrat from Boulder) filed a bill to impose a $56 fine on adults caught smoking in a car where a child under age 16 is present.16While some commentators attacked the bill as being an example of excessive governmental intervention in people’s lives—or “stupid purity legislation”17—others, such as Dr Frank Judson, director of the Public Health Department in Denver, Colorado, predicted that the bill will raise the consciousness of parents who smoke.18 Dr Judson described smoking in a car as “putting your kids in a tobacco smoke chamber.”18
Although Glantz correctly noted that the tobacco control community in the United States “should redouble our efforts to enact local clean indoor air ordinances and repeal preemption in the states that have it”,19 tobacco control advocates around the world must also explore practical ways in which their societies can protect children from the demonstrable and unnecessary harm caused by exposure to ETS in the home. Homes with children need to become smoke-free zones. Part of the answer is educating parents and other adults about the risks ETS poses to children. As recent legal developments demonstrate, regulation of such conduct in the home may eventually be required.