Front Group Claiming OSHA Preemption

ANR UPDATE 22(3), Fall 2003

The Empire State Restaurant and Tavern Association (ESRTA) is a well-known player in New York tobacco control. Over the years, this organization has fought against local smokefree air laws, lobbied for preemption, promoted flawed economic impact studies, and supported weak, ineffective legislation. ESRTA has been known by different names over the years, including the United Restaurant, Hotel and Tavern Association and the New York Tavern and Restaurant Association, but its purpose of undermining smokefree indoor air laws has remained the same.

Changing names to disguise its identity has not hidden ESRTA’s well-established ties to the tobacco industry. In 1994, the Tobacco Institute, which was created and funded by the tobacco industry, gave money to ESRTA to fund ads against the proposed New York City smokefree air law. The Tobacco Institute also channeled over $400,000 through ESRTA to help its 1995 state preemption campaign. ESRTA’s newest tactic was recently revealed in its fight against the New York State Clean Indoor Air Act.

Just days before going into effect, ESRTA filed a lawsuit to prevent the implementation of the law, arguing that the state law is preempted by federal Occupational Safety and Health Administration (OSHA) regulations. ESRTA’s argument is frivolous and illogical, as the question of whether OSHA preempts state and local clean indoor air activity has already been addressed. In 1998, a tobacco control advocate in Wisconsin received a letter from Frank Frodyma, the Acting Director of Policy for OSHA, stating:

“[S]ince OSHA has not promulgated a rule on Indoor Air Quality, Wisconsin’s promulgation and enforcement of State laws and local ordinances addressing the issue of occupational exposure to tobacco smoke would not be subject to claims of preemption until such time as Federal OSHA adopts such a standard.”

In December 2001, OSHA decided not to pursue a federal clean indoor air regulation because local and state authorities around the country have taken, and continue to take, effective action to protect the public from the health hazards of secondhand smoke.

The Clean Indoor Air Act is proving to be popular with New Yorkers and is beneficial both for their health and for New York businesses. ESRTA’s effort to overturn the law is just one more attempt on behalf of the tobacco industry to undermine smokefree air laws that protect people from secondhand smoke in order to protect the tobacco industry’s interests.


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