In re Julie Anne
{¶ 1} This is a case of first impression in which the court on its own initiative issues a restraining order against tobacco smokers, restraining them from smoking in the presence of a healthy child within the court’s care, to protect the child from having her health compromised by being forced to breathe secondhand smoke.
{¶ 2} This ruling is a recognition of the law as it exists, and does not constitute an extension of the law.
{¶ 3} In this case, the court conducted a hearing on custody and visitation in which it was admitted that adults smoke cigarettes around the child, including in her home. The court raised the issue of the danger of secondhand smoke to children, including healthy children, with the custodial parent mother and her significant other with whom she and her heaíthy eight-year-old daughter Julie Anne live. They responded that the court’s prohibition against smoking around the child would place a strain on their relationship.
{¶ 4} The primary issue is the degree of scientific evidence demonstrating a causal relationship between secondhand smoke and serious health problems of children. The secondary issue is the authority and duty of family courts to prevent serious harm to children by prohibiting and restraining persons from smoking tobacco in their presence.
{¶ 5} The order in the case at bar is issued upon (1) the finding of fact that secondhand smoke constitutes a real and substantial danger to the health of children because it causes and aggravates serious diseases in children, as evidenced by the judicially-noticed superabundance of authoritative scientific studies demonstrating this conclusion; (2) the further finding of fact that this real and substantial danger to the health of children exists regardless whether the parents are aware of it, acknowledge it, or complain about it to the court, and regardless of the condition of the children’s health; (3) the further finding of fact that there is a causal relation between parental smoking and their children becoming addicted as active smokers, which not only is a serious health danger
{¶ 6} A considered analysis of the facts and law of this case 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 care is failing the children whom the law has entrusted to its care.
I. ISSUE: EVIDENCE OF CAUSAL RELATION BETWEEN SECONDHAND SMOKE AND SERIOUS DISEASE IN CHILDREN
(1) Smoking Tobacco as Cause of Serious Disease in Smokers
{¶ 7} About one-third of the world’s adults smoke cigarettes, and half of these smokers will die prematurely.
{¶ 9} More than 80,000 scientific publications have linked tobacco to dozens of causes of death.
{¶ 10} 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.
{¶ 11} Smoking causes about four million deaths annually worldwide, 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.
{¶ 12} Smoking is responsible for approximately 15% of all deaths in the United States
{¶ 13} Smoking kills almost the same number of smokers in the United States each week of the year as would be killed in three World Trade Center catastrophes.
{¶ 15} Since 1964 when the U.S. Surgeon General first called the nation’s attention to the health hazards of smoking, smoking among adults in the United States has declined from 40.4% in 1965 to 25.7% in 1991. In 2000, 23.8% of U.S. adults were current smokers, down from 25% in 1993. The prevalence of cigarette smoking among U.S. high school students, however, increased from 27.5% in 1991 to 36.4% in 1997 before declining to 34.8% in 1999.
{¶ 16} Every day on average over 3,000 additional children in the United States begin smoking on a daily basis.
{¶ 17} All tobacco products that are smoked deliver substantial amounts of carcinogens to their users.
{¶ 18} The evidence is overwhelming and irrefutable that smoking tobacco causes and aggravates serious diseases in smokers.
(2) Secondhand Smoke as Cause of Serious Disease in Non-Smokers
{¶ 19} Smoking is the leading cause and secondhand smoke is the third leading cause of preventable death in the United States. For every eight smokers killed by active smoking, passive smoking kills one non-smoker.
{¶ 20} Secondhand smoke kills about the same number of non-smokers in the United States every three weeks of the year as would be killed in a World Trade Center catastrophe.
{¶ 21} There is a plethora of comprehensive authoritative scientific studies on passive smoking.
{¶ 22} A causal relation was established almost two decades ago between secondhand smoke and disease in healthy non-smokers, including respiratory diseases in children of parents who smoke, in the United States Surgeon General’s 1986 report entitled The Health Consequences of Involuntary Smoking.
{¶ 23} A decade ago, in 1992, the United States Environmental Protection Agency classified secondhand smoke as a “Group A” carcinogen — a substance that produces cancer in humans.
{¶ 24} Several months ago, 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 summary
{¶ 25} More than two-thirds of non-smokers recognize that smoking is hazardous to non-smokers’ health; nearly half of smokers recognize this reality.
{¶ 26} Secondhand smoke is the single most important source of indoor air pollution
{¶ 27} Secondhand smoke, including mainstream smoke inhaled and exhaled by the smoker, and sidestream smoke released directly from the end of a burning cigarette, is a complex “chemical cocktail” of more than 4,000 chemical substances, over 40 of which are known to cause cancer.
{¶ 29} Sidestream smoke is much more dangerous than mainstream smoke to the passive smoker because it contains significantly higher amounts of toxic compounds than found in mainstream smoke.
{¶ 30} The non-smoking spouse of a smoker has double the risk of lung and heart disease of a non-smoker living with a non-smoker.
{¶ 31} 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.
{¶ 32} 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
{¶ 33} The National Cancer Institute estimates that secondhand smoke causes 3,000 lung disease deaths and 18,500 heart disease deaths in non-smokers each year in the United States.
{¶ 34} The evidence is overwhelming and irrefutable that secondhand smoke causes and aggravates serious diseases in non-smoking adults and children.
(3) Children Especially Susceptible to Diseases Caused by Secondhand Smoke
{¶ 35} The adverse health effects from breathing smoke are manifest, whether one is actively smoking or is a captive involuntary passive smoker in a highchair,
{¶ 36} Every independent authoritative scientific body that has examined the evidence has concluded that secondhand smoke causes diseases affecting children, including low fetal birth weight, bronchitis, pneumonia, asthma induction, asthma exacerbation, chronic respiratory problems, middle ear infections, and Sudden Infant Death Syndrome (SIDS).
{¶ 38} Children raised in homes with smokers are particularly susceptible to health problems linked to secondhand smoke, predominantly respiratory disorders.
{¶ 39} In the United States, about 43% of children two months to eleven years of age live in homes with at least one smoker.
{¶ 40} Asthma, the most common long-term childhood disease, which affects about 1 in 13 school-age children in the United States, results in 10 million missed school days each year.
{¶ 41} Children exposed to secondhand smoke are twice as likely to develop asthma,
{¶ 42} The infants of women who smoke during pregnancy are at greater risk of spontaneous abortion, premature birth, and SIDS.
{¶ 43} 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
{¶ 44} The ETS Consultation found that the vast majority of children exposed to tobacco smoke do not choose 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 and disease in children, constitutes a substantial public health threat.
{¶ 45} It was concluded by the ETS Consultation that environmental tobacco smoke is a real and substantial danger to child health, causing death and suffering throughout the world. Environmental tobacco smoke exposure causes a wide variety of detrimental health effects in children, including lower respiratory tract infections such as pneumonia, bronchitis, coughing, wheezing, asthma, and middle ear disease. Children’s exposure to environmental tobacco smoke may also contribute to cardiovascular disease and neurobehavioral impairment in adulthood.
{¶ 46} 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 non-smoking pregnant women can cause a decrease in birth weight, and that infant exposure to environmental tobacco smoke increases the risk of SIDS.
{¶ 47} The evidence is overwhelming and irrefutable that children are especially susceptible to diseases caused by secondhand smoke.
{¶ 48} Overwhelmingly, children are captive involuntary passive smokers.
{¶ 49} For almost three decades, since 1976, the Great American Smoke Out Day has been celebrated each year on the third Thursday of November. 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 favor of a smoke-free world.
{¶ 50} 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 the history of the world. 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,”
{¶ 51} This court takes judicial notice that a superabundance of authoritative scientific evidence irrefutably demonstrates that secondhand smoke is a real and substantial danger to the health of children because it causes and aggravates serious diseases in children.
II. ISSUE: AUTHORITY AND DUTY OF FAMILY COURTS TO PREVENT SERIOUS HARM TO CHILDREN BY RESTRAINING SMOKING IN THEIR PRESENCE
{¶ 52} Children comprise the most abused segment of society in the world. The children of America fortunately are protected, however, by our unrivalled century-old system of juvenile justice.
(1) Doctrine of Parens Patriae — Fundamental Rule of Family Courts and Juvenile Justice
{¶ 54} The doctrine of parens patriae (the state as parent) is the fundamental rule of law that underlies our system of family courts and juvenile justice, providing that the state is “the ultimate parent” of children within the care of juvenile court.
{¶ 55} Under the doctrine of parens patriae, the state has an “urgent interest” in the welfare of the child,
(2) “Best Interests of Child” Standard — Mandatory Duty of Family Courts to Consider Danger of Secondhand Smoke to Children
{¶ 56} For at least a century and a half, the “best interests of the child” standard has been the polestar for family courts in Ohio and throughout the United States in determining matters involving children.
{¶ 57} The Ohio “best interests of the child” statute
{¶ 58} Under the mandatory standard of Ohio’s “best interests of the child” statute, the clear and convincing evidence that secondhand smoke causes and aggravates serious diseases in children cannot be ignored by the court because a parent fails to raise it. Many people simply are unaware of the danger
{¶ 59} Family courts on their own initiative as standard practice in exercising their judicial duties consider other serious risks of harm to children, such as the use of alcohol and drugs by persons living in the home of the child, as a factor in determining “best interests of the child” issues.
{¶ 60} A superabundance of judicially noticed authoritative studies demonstrates by clear and convincing evidence that secondhand smoke is a real and substantial danger to the health of children because it causes and aggravates serious diseases in children, and both general (“all relevant factors’) and specific (“physical health”) provisions of Ohio’s “best interests of the child” statute impose a mandatory duty upon family courts on their own initiative to consider the danger of secondhand smoke to all children within their care in determining matters of visitation and custody.
{¶ 61} The United States Supreme Court has ruled that the harm to be considered from secondhand smoke includes both present harm and possible future harm, and accordingly family courts have an unqualified duty to consider the dangers of secondhand smoke to all children, regardless of the condition of their health. The high court ruled in 1993 that a state prisoner’s complaint states a cause of action by alleging that other inmates’ secondhand smoke constitutes an unreasonable risk to his health and involuntarily subjects him to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, and that the claim can be based upon possible future harm to health as well as present harm.
{¶ 62} Secondhand smoke is a danger to all children, regardless of the condition of their health.
{¶ 63} Additionally, constitutional challenges (i.e., due process, equal protection, and freedom of expression) by smoking prison inmates attempting to strike down smoking restrictions are uniformly held to be without merit upon the basis that smoking is not a fundamental right and secondhand smoke cannot be imposed involuntarily upon other people because it is detrimental to their health.
{¶ 64} 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.”
{¶ 65} The Supreme Court of the United States has definitively ruled that (1) smoking is not a fundamental right,
{¶ 66} The United States Supreme Court has also definitively ruled that (1) the constitutional right to privacy is not absolute,
(5) United States Supreme Court Case Law — Smoker’s Right of Privacy-Does Not Include Right to Inflict Secondhand Smoke on Children
{¶ 67} Based upon these unequivocal pronouncements of the Supreme Court of the United States, a smoker has a right of privacy to treat his health in whatever manner he chooses, but this right does not include the right to inflict health-destructive secondhand smoke upon other persons, especially children who have no choice in the matter.
{¶ 68} A man’s home is his castle, but no one is allowed to hurt little children — even in his castle.
(6) Duty of Family Courts, Legislatures, and Administrative Agencies to Protect Children from Diseases Caused by Compelled Exposure to Secondhand Smoke
{¶ 69} The clear and convincing evidence of manifold harm from secondhand smoke to children is consistent, robust, and irrefutable, and gives rise to a duty upon family courts, the legislature,
{¶ 71} Family courts can protect our children by issuing court orders as standard practice restraining persons from smoking in the presence of children within its care. Legislatures can protect our children by enacting statutes prohibiting persons from smoking in the presence of children, by enacting more specific statutes directing family courts to consider the danger of secondhand smoke in determining best-interests-of-the-child matters, and by enacting statutes directing administrative agencies to establish regulations restraining smoking around children in their care. Administrative agencies can protect our children by enacting regulations and issuing directives that foster parents and other persons in close contact with children in their care shall not smoke around them.
(7) Causal Relation Exists Between Parental Smoking and Children Becoming Addicted as Active Smokers
{¶ 72} A causal relation exists between parental smoking and their children becoming addicted to nicotine as active smokers, exposing them to the serious diseases of smokers. Children of smokers are almost twice as likely to smoke as children of nonsmoking parents. Very few people begin using tobacco as adults.
{¶ 78} Numerous studies have found tobacco products to be as addictive as heroin, cocaine, and alcohol,
{¶ 74} The extreme addictive nature of nicotine is demonstrated by the facts that although almost three-quarters of smokers want to stop smoking,
{¶ 75} The causal relation between parent-child smoking supports the fact that 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.
{¶76} The synthesis of active smoking by parents,
{¶ 77} Once children become addicted to nicotine by smoking cigarettes, usually 'within a year or less of beginning smoking,
{¶ 78} Parental smoking is a key factor in children becoming active smokers, which not only constitutes a serious health danger but also is a risk factor for substance and drug abuse.
{¶ 79} Studies show that nicotine use increases alcohol consumption.
(9) Considered Analysis of Law and Evidence Leads to Inescapable Conclusion that Family Court that Fails to Restrain Smoking in Presence of Children is Failing Children Whom Law has Entrusted to Its Care
{¶ 80} A considered analysis of the law including the parens patriae (the state as parent) doctrine, the Ohio “best interests of the child” statute, and United States Supreme Court case law; as well as a considered analysis of the facts including the irrefutable judicially noticed authoritative scientific evidence demonstrating that secondhand smoke constitutes a real and substantial danger to the health of children because it causes and aggravates serious diseases in children, leads to the inescapable conclusion that a family court that fails to issue court orders restraining persons from smoking in the presence of children within its care is failing the children whom the law has entrusted to its care.
{¶ 81} For these compelling reasons, the mother and father are restrained under penalty of contempt from allowing any person, including themselves, to smoke tobacco anywhere in the presence of the minor child Julie Anne.
{¶ 82} Let right be done.
{¶ 83} SO ORDERED.
Judgment accordingly.
Notes
. The instant case is a companion to the collection of cases discussed in the annotation found at 36 ALR5th 377 entitled "Smoking as Factor in Child Custody and Visitation Cases,” and in the law review article found at 97 W.Va.L.Rev. 115 (1994) entitled "Secondhand Smoke as an Issue in Child Custody/Visitation Disputes,” holding that the danger of secondhand smoke to children is a "best interests of the child” factor in a family court determining visitation and custody issues. In the annotated cases, as in this case, judicial notice is taken of the danger of harm of secondhand smoke to children; a well-grounded legal-presumption based upon judicial notice obviates the need for expert testimony. In this case, judicial notice of the danger of secondhand smoke to children is based upon an avalanche of cited authoritative scientific evidence. This case differs from the annotated cases, however, in several significant respects. First, in the annotated cases the issue of the danger of secondhand smoke to the child is raised by a non-smoking parent. In this case, the issue of the danger of secondhand smoke to the child is raised by the court on behalf of the child under the parens patriae doctrine, based upon the duty imposed by law upon family courts to prevent risk of serious harm to a child, regardless whether the risk is known, acknowledged, or complained of by a parent. The ruling on this point of law is mandated by the plain language and manifest intent of the Ohio "best interests of the child” statute. Second, in the annotated cases the child has a respiratory problem and the legitimate objective is to prevent it from becoming worse. In this case, the child is healthy and the legitimate objective is to prevent the onset of the destruction of the child’s health. The ruling on this point of law is supported by United States Supreme Court case law. Neither of these points of law applied to the two above-specified factual differences between the annotated cases and the case at bar is meant to suggest that the risk of secondhand smoke to children should in all cases be the sole factor in determining the "best interests of the child.” Under existing law a family court on its own initiative and regardless of the health of the child, however, has a legal duty to consider the danger of secondhand smoke to children as a significant and possibly determinative factor (where child has health problems) in determining issues of visitation and custody, and to protect children under its care as a matter of standard practice by issuing a court order restraining anyone from smoking in their presence.
. World Health Organization (1999) Addressing the Worldwide Tobacco Epidemic.
. International Agency for Research on Cancer, World Health Organization, Monograph Vol. 83, Tobacco Smoke and Involuntary Smoking, June 2002.
. World Health Organization (2001) Monograph: Advancing Knowledge on Regulating Tobacco Products.
. International Agency for Research on Cancer, World Health Organization, Monograph Vol. 83, Tobacco Smoke and Involuntary Smoking, June 2002.
. International Agency for Research on Cancer, World Health Organization, Monograph Vol. 83, Tobacco Smoke and Involuntary Smoking, June 2002.
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. September 11, 2001 World Trade Center deaths set at 3,030 (as of August 2002 by CNN and Reuters); U.S. smoking deaths set at 430,000 annually. See fn. 8 and 9, supra.
. New York Times, Oct. 22, 1985, at C2.
. In 1965, Congress’ first cigarette warning label legislation specified the warning: "Caution: Cigarette Smoking May Be Hazardous to Your Health.” 15 U.S.C. 1333. In 1970, Congress made the label warning more specific "Warning: The Surgeon General Has Determined that Cigarette Smoking is Dangerous to Your Health.” Pub.L. No. 91-222, 84 Stat. 88. In 1984, Congress enacted legislation expanding the public warning to advertisements and outdoor billboards, and also substituted four specific warnings for the previous single warning, to be rotated quarterly: (1) "SURGEON GENERAL’S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy,” (2) "SURGEON GENERAL’S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health,” (3) "SURGEON GENERAL’S WARNING: Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight,” and (4) "SURGEON GENERAL’S WARNING: Cigarette Smoke Contains Carbon Monoxide.” Pub.L. No. 98-474, 98 Stat. 2201 (1994); 15 U.S.C. 1333(a)(2) and (3), and 1333(c).
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. Centers for Disease Control, Surveillance Summaries (June 2000); C. Everett Koop, M.D., Sc.D (1997), Final Report to the United States Congress of the Advisory Committee on Tobacco Policy and Public Health. There are 314,000 children living in Ohio today who will ultimately die prematurely from smoking. National Center for Tobacco-Free Kids, tobacco-freekids.org (2002).
. C. Everett Koop, M.D., Sc.D (1997) Final Report to the United States Congress of the Advisory Committee on Tobacco Policy and Public Health; Lynch (1994) Growing Up Tobacco Free, National Academy Press; Bauman (1990) Effect of Parental Smoking Classification on the Association between Parental and Adolescent Smoking; Canadian Council on Smoking and Health (1995) ETS in Home Environments. National Clearing House on Tobacco and Health; United States Department of Health Services, Office on Smoking and Health (1994) Preventing Tobacco Use Among Young People. A Report of the Surgeon General.
. Global Youth Tobacco Survey Collaborative Group (2002) Tobacco Use Among Youth: A Cross Country Comparison 11:252 (produced by United States Centers for Disease Control
. See fn. 14, supra.
. International Agency for Research on Cancer, World Health Organization, Monograph Vol. 83, Tobacco Smoke and Involuntary Smoking, June 2002. Studies estimate the monetary health-care costs from smoking to be between 6% and 14% of all annual personal health-care expenditures in the United States, with a commonly cited figure if $50 billion in annual costs. Tsai (2000) A Primer on Domestic and International Tobacco Control, American Medical Student Association, citing to Warner, et al. (1999) Medical Costs in the United States. Tobacco Control 8:290, and Barlett, et al. Medical-Care Expenditures Attributable to Cigarette Smoking — United States 1993. Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report (July 1994). It is reported that each pack of cigarettes sold in the United States costs American taxpayers an estimated $7.18 in medical care costs and lost productivity. Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report (April 2000).
. International Agency for Research on Cancer, World Health Organization, Monograph Vol. 83, Tobacco Smoke and Involuntary Smoking, June 2002.
. Schwartz (8-7-97) Tobacco Firms Shielded Data on Hazards, Washington Post, p. Al; Meier (8-7-97) Tobacco Lawyers Papers are Made Public, New York Times, p. A16; Geyelin (8-7-97) Lawyers Shielded Tobacco Firms, Papers Show, Wall Street Journal, p. A3; Kelly (8 — 7— 97) Tobacco Lawyers Discussed Hiding Risk, USA TODAY, p. Dl.
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. Circulation (1991) Journal of American Heart Association. See fn. 44, infra.
. September 11, 2001 World Trade Center deaths set at 3,030 (as of August 2002 by CNN and Reuters); U.S. secondhand smoke deaths set at 53,800 annually (see fn. 44, infra).
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. United States Environmental Protection Agency (1992) Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders.
. International Agency for Research on Cancer, World Health Organization, Monograph Vol. 83, Tobacco Smoke and Involuntary Smoking, June 2002.
. Tobacco Free Initiative, Secondhand Smoke. http://wmv5.who.int/tobac-co/page.cfm?pid=43.
. Ekos Research Associates, An Assessment of Knowledge, Attitudes and Practices Concerning Environmental Tobacco Smoke (1995). See annotation found at 46 ALR5th 813, entitled "Secondary Smoke as Battery.”
. Roper Organization (1978) A Study of Public Attitudes towards Cigarette Smoking and the Tobacco Industry. Washington DC.
. Ginzel (1990) Hazards Smokers Impose, New Jersey Medicine 87:311.
. Conservation Foundation (1987) The Epidemic of Indoor Air Pollution, Bus. and Soc. Rev. 60:53.
. Conservation Foundation (1987) The Epidemic of Indoor Air Pollution, Bus. and Soc. Rev. 60:53; Legislation for Clean Air: An Indoor Front (1973) Yale L.J. 82:1042 (dangers of smoke to non-smokers, while not well known, are significant).
. Conservation Foundation (1987) The Epidemic of Indoor Air Pollution, Bus. and Soc. Rev. 60:53 (five-year EPA study).
. National Clearinghouse on Tobacco and Health, Canadian Council on Smoking and Health (1995) ETS in Home Environments', Hoffman (1997) The Changing Cigarette, 1950-1995, J. Toxicology and Environmental Health 50:307.
. American Academy of Pediatrics (1986) Involuntary Smoking — A Hazard to Children, Pediatrics, Vol. 77.
. Repace, Tobacco Smoke and the Non-Smoker, reprinted in Hearings before Congressional Committees and Subcommittees of Congress, Indoor Air Quality Research, H.R. Doc. No. 54, 98th Congress, 1st Session, p. 451.
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. Action on Smoking and Health (ASH) (1989) The Effects of Involuntary Smoke.
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. Centers for Disease Control (1994) www.cdc.gov/tobacco.
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. Tobacco Free Initiative, A Project of the World Health Organization, www5.who.in1/tobac-co; Pitsavos, et. al. (2002) Association Between Exposure to Environmental Tobacco Smoke and the Development of Acute Coronay Syndromes (2002) Tobacco Control 11:220.
. National Cancer Institute (November 1999) Smoking and Health Monograph 10 (53,800 secondhand smoke deaths annually, based upon midpoints for heart disease [48,500], lung cancer [3,000], and SIDS deaths [2,300]).
. See text and supporting footnotes, 2-9. 14, 18-29, 35-50, 54-65, 89-108.
. California Environmental Protection Agency (1997) Health Effects of Exposure to Environmental Tobacco Smoke. Background papers relating to secondhand smoke and child health prepared for the International Consultation on Environmental Tobacco Smoke and Child Health can be accessed online at http://www5.who.in1/tobacco/page.cfm?tld=67, including J.Samet, School of Hygiene and Public Health, Johns Hopkins University. Synthesis: The Health Effects of Tobacco Smoke Exposure on Children; B. Eskenazi, et al., School of Public Health, University of California, Berkeley. Association of in útero or Postnatal Environmental Tobacco Smoke Exposure and Neurodevelopmental and Behavioral Problems in Children; D.Cook, et al., St. George's Hospital Medical School, London, England. Effects of Maternal and Paternal Smoking on Children’s Respiratory Health; S. Gidding, Northwestern University Medical School. Effects of Passive Smoking on the Cardiovascular System in Children and Adolescents; A. Greco, et al., University of Lyon, France. Parental Tobacco Smoke and Childhood Cancer; G. Windham, Department of Health Services, Oakland, USA. Prenatal Exposure to Environmental Tobacco Smoke and Fetal Growth; E. Mitchell, et al., University of Auckland, New Zealand. Smoking and Sudden Infant Death Syndrome; M. Jarvis, University College of London, London, UK. Children's Exposure to Passive Smoking: Survey Methodology and Monitoring Trends; C. Melvin, et al., Division of Reproductive Health, Centers for Disease Control, USA. The Costs of Environmental Tobacco Smoke (ETS): An International Review; W. Long, U.S. Environmental Protection Agency, Washington, D.C. Environmental Tobacco Smoke: Using Communication and Outreach to Reduce Childhood Exposure to ETS; V.
. National Research Council (1986) Environmental Tobacco Smoke: Measuring Exposures and Assessing Health Rislcs.
. United States Department of Health Services, Office on Smoking and Health (1986) The Health Consequences of Involuntary Smoking. A Report of the Surgeon General; Martinez, et al. (1992) Increased Incidence of Asthma in Children of Smoking Mothers, 89 Pediatrics 21; Colley (1974) Respiratory Systems in Children and Parental Smoking and Phlegm Production, 2 Brit. Med. J. 210; Neuspiel, et al. (1989) Parental Smoking and Post Infancy Wheezing in Children, 79 Am. J. Pub. Health 168; Pedreira, et al. (1985) Involuntary Smoking and Incidence of Respiratory Illness During the First Year of Life, 75 Pediatrics 594.
. Shoop (1991) Smoking Parents Lose Points in Child-Custody Case, Trial.
. Mitchell (1990) Growing Up In Smoke.
. Pirkle, et al. (1996) Exposure of the U.S. Population to Environmental Tobacco Smoke. JAMA 275:1233.
. United States Department of Health Services, Office on Smoking and Health (1986) The Health Consequences of Involuntary Smoking. A Report of the Surgeon General.
. Repace (1999) Risk Management of Passive Smoking at Work and at Home, St. Louis University Public Law Review Vol. 13:2, 763-785.
. President’s Task Force on Environmental Health Risks and Safety Risks to Children (1999) Asthma and the Environment: A Strategy to Protect Children; Taylor (1992) Impact of Childhood Asthma on Health. Pediatrics 90:657.
. National Heart, Lung, and Blood Institute (1999) Data Fact Sheet on Asthma.
. United States Environmental Protection Agency (1992) Respiratory Effects of Passive Smoke: Lung Cancer and Other Disorders, EPA/600/6-90/006F (peer-reviewed by 18 eminent independent scientists).
. Centers for Disease Control and Prevention “Facts About Secondhand Smoke” Fact Sheet.
. Needleman, et al. (1994) Raising Children Toxic Free. New York: Farrar, Strauss, and Giroux.
. DiFranza (1995) Effect of Maternal Cigarette Smoking on Pregnancy Complications and Sudden Death Syndrome. J Fam Pract 40:385 (Smoking during pregnancy increases a woman's risk of miscarrying by 24%; maternal smoking is responsible for 35% of all SIDS deaths in the U.S., and 66% of all SIDS deaths among the infants of women who smoked during their pregnancy; smoking during pregnancy triples the risk of SIDS); Anderson (1997) Passive Smoking and Sudden Infant Death Syndrome; Review of the Epidemiological Evidence, Thorax 52:1003 {Conclusion: maternal smoking doubles the risk of Sudden Infant Death Syndrome); Waller (1996) Environmental Tobacco Smoke and Sudden Infant Death Syndrome. Assn, of Reproductive Health Professionals, Clinical Proceedings; Mitchell, et al. (1998) Objective Measurements of Nicotine Exposure in Victims of Sudden Infant Death Syndrome and other Unexpected Child Deaths. Ped 133:232 (increased risk of SIDS probably predominantly due to in-utero effect of tobacco smoke rather than postnatal secondhand smoke); Am J Epidemiol (8-1-97) (Smoking is one of the most important preventable risk factors for SIDS; adjusted SIDS odds ratios for infants of women who smoked 10 or more cigarettes per day during pregnancy were 2.3 to 3.8, compared with infants of nonsmoking women); Mitchell (1997) Risk Factors for Sudden Death Syndrome, Ped 100:835 (adjusted SIDS odds ratio for infants of mothers who smoked was 5.01); MacDorman (1997) Sudden Infant Death Syndrome and Smoking in the United States and Sweden. Am J Epidemiol 146:249; Pirkle, et al. (1996) Exposure of the U.S. Population to Environmental Tobacco Smoke, 1988-1991. JAMA 275:1233; Blair et al. (1996) Smoking and the Sudden Infant Death Syndrome, Brit Med J 313:195; Greenberg, et al. (1996) Passive Smoking During the First Year of Life. Am J Public Health 80:29; Haglund, et al. (1995) Sudden Infant Death Syndrome in Sweden, 1983 — 1990, Am J Epidemiol 142:619; JAMA (3-8-95) (Sudden Infant Death Syndrome is the most common cause of death of infants between one month and one year of age, and accounts for about 50% of deaths of infants between two and four months of age; breast-feeding was protective for SIDS among non-smokers but not smokers); Klonoff-Cohen, et al. (1995) The
. Waller (1996) Environmental Tobacco Smoke and Sudden Infant Death Syndrome. Assoc, of Reproductive Health Professionals Clinical Proceedings.
. DiFranza (1995) Effect of Maternal Cigarette Smoking on Pregnancy Complications and Sudden Death Syndrome. J Fam Pract 40:385.
. World Health Organization (1999) International Consultation on Environmental Tobacco Smoke and Child Health.
. See fn. 62, supra.
. United Nations (1989) The Convention on the Rights of the Child.
. See text and supporting footnotes 2-9, 14, 18-29, 35-50, 54-65, 89-108.
. Meyer v. Nebraska (1923),
. See fn. 85, infra.
. See fn. 86, infra.
. Gishwiler v. Dodez (1855),
. R.C. 3109.04(F)(1).
. Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992),
. See in. 33, supra.
. See fn. 71, supra.
. Haralambie (1993), Handling Child Custody, Abuse, and Adoption Cases (McGraw-Hill Family Law Series).
. See text and supporting footnotes 45 and 65.
. Helling v. McKinney (1993),
. See text and supporting footnotes 45 and 65.
. See Annotation found at 66 ALR5th 237,
. In Austin v. State (1898),
. See fn. 78, supra.
. See fn. 78, supra.
. See fn. 76, supra.
. See fn. 76, supra.
. Roe v. Wade (1973),
. Lassiter v. Dept. of Social Serv. (1981),
. Palmore v. Sidoti (1984),
. Lehr v. Robertson (1983),
. Prince v. Massachusetts (1944),
. Ohio's "Endangering Children” statute, R.C. 2919.22(A), provides that "[n]o person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child * * * shall create a substantial risk to the health and safety of the child, by violating a duty of care, protection, or support.” Some medical authorities consider exposing children to secondhand smoke as a form of child endangering and/or child abuse. http://medicalreporter. health, org/tmr0895/smokemylh0895 .html.
. See fn. 64, supra.
. See fn. 15, supra.
. See fn. 14, supra.
. C. Everett Koop, M.D., Sc.D (1997) Final Report to the United States Congress of the Advisory Committee on Tobacco Policy and Public Health; United States Department of Health, Office on Smoking and Health (1994) Preventing Tobacco Among Young People: A Report of the Surgeon General; United States Department of Health, Office on Smoking and Health (1988) The Health Consequences of Smoking: Nicotine Addiction: A Report of the Surgeon General; Institute of Medicine (1994) Growing Up Tobacco Free; Journal of the American Medical Association (July 1995). A 1963 tobacco industry internal memo freely admitted, "[W]e are * * * in the business of selling nicotine, an addictive drug.” Yeaman, Implications of Battelle I & II and the Griffith Filter, cited in The Cigarette Papers (see fn. 102, infra).
. United States Department of Health Services, Office on Smoking and Health (1988) The Health Consequences of Smoking — Nicotine Addiction. A Report of the Surgeon General.
. Royal College of Physicians (February 2000) Nicotine Addiction in Britain.
. Lader, Smoking Related Behaviour and Attitudes (2000) Great Britain Office for National Statistics.
. Smoking Cessation Guidelines and Their Cost Effectiveness. Thorax 1998, Vol. 53, Supp.5, part 2, p. S13 (successful quit rates between 3% [will power alone] and 20% [nicotine replacement therapies such as patches, chewing gum, tablets, inhalers, nasal sprays, etc.]); Jha and Chaloupka (1999) The World Bank, Curbing the Epidemic: Government and the Economics of Tobacco Control (fewer than two out of five U.S. senior high-school smokers who believe they will quit within five years actually do quit); Tsai (2000) A Primer on Domestic and International Tobacco Control, American Medical Student Association (successful quit rates of about 30% in high-income countries such as United States and United Kingdom, and 5-10% in low-income countries such as China, India, and Vietnam). Nine out of every ten smokers in the United States try to quit using will power alone, resulting in a long-term success rate of only 5%. Goldman (1999) Clinical Rounds — Treat Tobacco Dependency as Chronic Disease. Int. Med. News 32(24):23.
. Stolerms, et. al. (1995) The Scientific Case that Nicotine is Addictive, Psychopharmacology 117:2.
. United States Department of Health Services, Office on Smoking and Health (1994) Preventing Tobacco Use Among Young People. A Report of the Surgeon General.
. See fn. 14, supra, and fn. 103, infra.
. The American Lung Association points out that the recruitment of children as smokers is partially effectuated by the film industry glamorizing smoking in movies, highlighting the use of tobacco in over two-thirds of the 25 movie hits of 2001, including eleven PG-13 movies. Mekemson and Glantz, How the Tobacco Industry Built Its Relationship With Hollywood,
. The tobacco industry’s claim that it does not actively market its products to children has recently been debunked through the discovery of its internal documents showing that (a) cigarette manufacturers closely monitored the smoking habits of teenagers over the past several decades, (b) tobacco industry executives refer to youth as a source of sales and as fundamental to the survival of the tobacco industry, and (c) the features of cigarette brands (i.e., filter, taste, etc.), packaging (size, color, and design), and advertising (media placements, themes, and imagery) were developed specifically to appeal to teenagers. There is also evidence that youth-oriented marketing documents have been destroyed and the language of more recent documents sanitized to cover up efforts to market tobacco to youths. Cummings, et. al. (2002) Marketing to America’s Youth: Evidence from Corporate Documents, Tobacco Control 11:15; Landman and Glantz (2002) Tobacco Industry Smoking Prevention Programs: Protecting the Industry and Hurting Tobacco Control. Am. J. Public Health 92:917; Ling and Glantz (2002) Why and How the Tobacco Industry Sells Cigarettes to Young Adults: Evidence from Industry Documents. Am. J. Public Health 92:908; Cummings and Pollay (2002) Exposing Mr. Butts’ Tricks of the Trade, Tobacco Control 11:162. See The Cigarette Papers, by S. Glantz, et. al. (1996)(University' of California Press), of which The New Yorker exclaimed: "Makes it clear that Big Tobacco has known for decades that cigarettes are lethal and addictive and has done everything in its power to suppress and deny that knowledge * * *. A shocking collection of secret industry documents.” A decade ago, 30% of three-year-olds and 91% of six-year-olds in the United States could identify "Joe Camel” as a symbol of smoking. Fischer, et al., Brand Logo Recognition by Children aged 3 to 6 years. Mickey Mouse and Old Joe the Camel. JAMA (December 1991) 266(22):3145. In 1984, one tobacco industry researcher cautioned his employer: "Younger adult smokers are critical to [the tobacco industry’s] long-term performance and profitability. Therefore, [the tobacco industry] should make a substantial long-term commitment of manpower and money dedicated to younger adult smoker programs* * *. If younger adults turn away from smoking, the industry must decline, just as a population which does not give birth will eventually dwindle.” Burrows (1984) Younger Adult Smokers: Strategies and Opportunities. R.J. Reynolds internal memo (No. 506777955-80420).
. Royal College of Physicians (February 2000) Nicotine Addiction in Britain; DiFranza, et al. (2002) Development of Symptoms of Tobacco Dependence in Youths, Tobacco Control 11:228 (seventh grade students’ loss of autonomy over tobacco use began with first symptom of dependence upon use of two cigarettes one day a week).
.See fn. 97, supra.
. Torabi (1993) P.V.V., Cigarette Smoking as a Predictor of Alcohol and other Drug Use by Children and Adolescents: Evidence of the Gateway Drug Effect. Journal of School Health.
. Dzung Anh Le, J.B.R., University of Toronto Centre for Addiction and Mental health, U.S. Journal of Alcoholism (November 1999); National Institute on Drug Abuse, U.S. Department of Health and Human Services, J.B.R. NIDA News Release (February 2000).
. United States Public Health Service, Office on Smoking and Health (1994). Preventing Tobacco Use among Young People: A Report of the Surgeon General.
. Arday, et al. (1995) Am J of Health Promotion, Cigarette Smoking and Self-Reported Health Problems among U.S. High School Seniors, 1982-1989.