Annual Report 2009

Action on Smoking and Health


Action on Smoking and Health (ASH) is a national nonprofit legal action and educational organization that fightsf or the rights of nonsmokers against the many problems of smoking. ASH uses the tremendous power of the law to represent nonsmokers in courts and legislative bodies, and before regulatory agencies.  For more than 40 years, ASH has been one  of the most effective antismoking and nonsmokers' rights organizations in the world.

ASH was formed in 1967 by Executive Director John F. Banzhaf III, and a distinguished body of physicians, attorneys and other prominent citizens who saw the need for an effective organization to represent nonsmokers' rights.  Although its income is tiny compared with much larger national health organizations also active in the field – in part because it receives no money from the government or from the multi-state tobacco settlement – ASH has been a major force in the war against smoking. For this reason, and because of its location in the nation's media center, ASH has also emerged as a major spokesperson for nonsmokers on radio and television and in the print media.

Also, unlike the many smaller state, local and specialty antismoking organizations with which it cooperates closely, ASH is active with regard to all aspects of the problems of smoking and nonsmokers' rights, and has a truly national focus.  Also, more recently, ASH again engineered a major expansion of its focus to become a leading – if not THE leading player – in the international war on smoking, by leading and serving as secretariat of the Framework Convention Alliance [FCA], an umbrella organization made up of hundreds of individual organizations in more than 100 countries all working to enforce and effectuate the Framework Convention on Tobacco Control [FCTC]; the world's first international antismoking and nonsmokers' rights treaty.

One of ASH's major roles in the U.S. is to serve as a think tank and incubator for new strategies and tactics, and as a vehicle for propagating these new ideas to other antismoking organizations, legislators and regulators, and the general public.  Thus ASH was out in front in proclaiming nicotine as a addictive drug, in urging bans on smoking not only in indoor public areas and workplaces, but also outdoors and in private apartments and homes where necessary to protect adjacent apartment dwellers and children living in the home, in pressing for lower health insurance rates for nonsmokers, and in many other areas. 

ASH was the first major organization to publicize how as little as 30 minutes of exposure to secondhand tobacco smoke could cause a fatal heart attack in nonsmokers, the dangers of Polonium 210 in tobacco smoke, and the dangers of thirdhand tobacco smoke.  It was ASH which first argued that courts can and should issue orders prohibiting smoking around children involved in divorce proceedings, and around foster children – a new movement which has now also led to bans on smoking in cars when children are present. 

More recently, ASH has led the fight to require e-cigarettes to be regulated, and to protect bystanders from the risks posed when these new and "illegal" [FDA] products are used in areas where the smoking of conventional tobacco cigarettes is prohibited.   ASH also helped develop and promote the concept that nonsmokers should pay less than smokers for health insurance.

ASH's Accomplishments During 2009


ASH filed a citizens’ legal petition with the Food and Drug Administration [FDA] urging the agency to take action concerning the importation and sale of e-cigarettes.  This is similar to the citizens’ legal petition ASH filed many years ago which urged the agency to take action regarding a very similar product  – Favor imitation cigarettes – which ultimately led to their ban.  The FDA is now reportedly restricting the importation of e-cigarettes into the U.S., and is involved in a battle in the courts concerning its jurisdiction over e-cigarettes.

ASH filed a motion to intervene in the nature of a brief amicus curiae in response to a complaint filed with the B.C. Human Rights Tribunal that there had been discrimination based upon smoking.  ASH argued, in opposition to the complaint, that there is no legally protected right to smoke, and that the tribunal has no authority to consider such a complaint.  No further action appears to have been taken regarding the complaint.

ASH filed a brief amicus curiae before the Quebec Commission on Human Rights opposing a previously-filed complaint against a help-wanted ad by the Quebec Council on Tobacco and Health seeking an employee who is not currently a smoker.  ASH argued that the complaint was baseless because there was no legally protected right to be a smoker.  It appears that no further action was taken regarding this matter.

ASH produced a report on four new dangers to nonsmokers.  This report included information on the following topics:  a “Shocking” Amount of Exposure to Secondhand Tobacco Smoke in “Smokefree” New York City; E-CIGARETTES -- ASH Legal Complaint Hits E-Cigarettes: New Product Poses Dangers For Both Smokers and Nonsmokers;  Third Hand Smoke Can Pose Serious Risks for Nonsmokers, Especially the Most Sensitive; and Smokers' Breath Can Be Harmful to Health, Especially to Children, the Elderly, and Those Especially Sensitive to Many Chemicals.

ASH researched existing law, and found legal theories – including a potential action under the ADA – which could be filed on behalf of a pregnant office worker who was very sensitive not only to tobacco smoke, but also to tobacco smoke residue.  ASH wrote a letter of complaint about her situation which forced her employer to move an  office worker who smoked during his breaks to another office.  ASH shared this information – about how to file a complaint based upon tobacco smoke residue – with the antismoking community, and helped begin the movement against what is now known as third-hand tobacco smoke.

ASH engaged in legal research which indicated that a new world treaty – entitled the “Convention on the Rights of Persons with Disabilities” – could be helpful in protecting the rights of nonsmokers around the world because it is very similar to our “Americans With Disabilities Act” which ASH used very successfully for that purpose.  ASH oversaw the production of four legal documents aimed at helping people in other countries use this new treaty to protect nonsmokers, and made these available to the antismoking community.

ASH’s appearance on a nationally broadcast NPR program triggered an announcement by the FDA that e-cigarettes were an “illegal” product; the first time such an announcement had been made.

ASH worked with and provided information to a Texas attorney who helped to get a temporary restraining order, and then a permanent injunction, prohibiting a neighbor from smoking in his apartment.  The effect of this law suit was to help establish an important precedent – in Texas as well as elsewhere – to help protect nonsmokers from smoking drifting into their homes. 

ASH wrote to all of the nation’s attorneys general to be sure they were aware of the health and other problems posed by e-cigarettes, and to urge them to take legal action against this new problem.  Several attorneys general have now filed law suits aimed at the sale of these products and, in at least one state, the sales seem to have ceased.

ASH collected and published the positions of virtually all of the major antismoking organizations on the issue of e-cigarettes so that the public and other antismoking organizations would be aware of their concerns and of their warnings about the dangers of e-cigarettes.  This compilation has been used in several legal proceedings.

ASH sent a legal letter to Amazon.com warning the company of the potential legal liability and other problems which could result if they continued to sell e-cigarettes – a product which the FDA has declared is “illegal” – including possible tort liability if one of the products allegedly caused a health problem for a user or even a bystander.  Shortly thereafter they dropped the product.

ASH helped persuade Suffolk County, New York, to ban the use of e-cigarettes wherever the use of conventional cigarettes is already prohibited.  ASH went further by publicizing the arguments which helped persuade the legislators, as well as the decision itself, so that it could create a favorable precedent for other jurisdictions.

ASH helped to publicize a memo by the Department of Department of Housing and Urban Development [HUD] in which it "strongly encouraged" all public housing authorities to ban smoking in their individual housing units, citing the deadly health hazards, the increased risk of fires and fire deaths, and the added cost to fumigate a unit formerly occupied by a smoker.  ASH added additional information and support to the memo to benefit other antismoking activists.

ASH’s taped appearance for an NBC-TV Evening News broadcast, in which it blasted the FDA for its inaction on e-cigarettes, was the catalyst which caused the FDA to suddenly report that it found in samples of e-cigarettes a variety of "toxic and carcinogenic chemicals" including diethylene glycol, "an ingredient used in antifreeze, [which] is toxic to humans"; "certain tobacco-specific nitrosamines which are human carcinogens"; and that "tobacco-specific impurities suspected of being harmful to humans - anabasine, myosmine, and B-nicotyrine - were detected in a majority of the samples tested."

To deal with a growing topic of interest to ASH members, regulators, Members of Congress, and others, ASH produced a report showing why it is lawful – under two different federal rulings which ASH obtained – for health insurance companies to charge nonsmokers less than smokers for health insurance.

When an e-cigarette company sent a letter to a major Qatar newspaper claiming that its article pointing out some of the dangers of e-cigarettes reported by the Food and Drug Administration [FDA] "could lead to the deaths of smokers and electronic cigarette users” and demanding a retraction, ASH responded.  ASH’s letter pointed out the possible bias of the letter writer, why the claim was an exaggeration, and new dangers about e-cigarettes, including that they “are potentially lethal to children." The newspaper did not retract the story, and in nearby Dubai, the importation of e-cigarettes is being blocked because of their potential dangers

ASH sent a legal letter to PayPal.com warning the company of the potential legal liability and other problems which could result if they continued to sell e-cigarettes – a product which the FDA has declared is “illegal” – including possible tort liability if one of the products allegedly caused a health problem for a user or even a bystander.  Shortly thereafter they stopped facilitating the sale of e-cigarettes.

ASH’s widespread warning – based upon published medical article by the CDC and other entities and researchers – that exposure to secondhand tobacco smoke for as little as 30 minutes can trigger a heart attack, and that even such a brief exposure can increase a nonsmokers’ risk of a heart attack virtually to that of a smoker, was widely adopted by dozens of other health organizations.  ASH revised and updated its report to include additional research.

ASH prepared and obtained wide distribution of calculations showing that John McCain’s status as a former smoker very dramatically increased the chances that, should he be elected President, the chances that his Vice President would have to take over were considerable.  The calculations also showed the corresponding risk for Barack Obama who is a current smoker.  Neither ASH nor any of its staff ever takes any position or voices any support regarding any candidate for public office.

ASH helped persuade the city of Belmont, California to ban smoking in private apartments; a move which follows ASH’s earlier successes in persuading other California jurisdictions to restrict or ban smoking in apartments or in outdoor areas.

A 50% [61 cent] cigarette tax increase which ASH promoted was passed by Congress.  ASH had sent letters to each member of the Senate summarizing arguments in favor of such an increase, including historical benchmarks and generally accepted world norms, the enormous benefits of such an increase, and a refutation of the tobacco industry’s arguments against the increase.  For example, ASH noted that raising the federal cigarette tax to only $1/pack would save 900,000 lives annually, bring in almost $10 billion in increased revenue, decrease smoking by kids by almost 10%, help persuade over 1 million current smokers to quit, and save about $1 billion in 5-year health-care savings alone.

A RICO prosecution brought by the Department of Justice against the major tobacco companies was upheld on appeal.  ASH helped to start the legal action by generating a memo suggesting legal theories which was sent to Senator Dick Durbin.  The result of this latest court decisions was to uphold the largest fraud, deception, RICO suit ever; one which involved a 50 year conspiracy, as well as one imposing numerous legal restrictions designed to protect children from becoming smokers.

When the FDA’s jurisdiction over e-cigarettes was attacked by an e-cigarette company in U.S. District Court, ASH was the only organization to enter the proceeding on behalf of the agency, filing no fewer than four different pleadings.  The result, however, was a decision by the lower court judge which enjoined the FDA from stopping imports of e-cigarettes.  Fortunately, that injunction has now been stayed by a unanimous decision of the U.S. Court of Appeals.

ASH helped persuade the state of New Jersey to follow the lead of Suffolk County, New York, in banning the use of e-cigarettes wherever the use of conventional cigarettes is already prohibited.  ASH went further by publicizing the arguments which helped persuade the legislators as well as the decision itself so that it could create a second favorable precedent for other jurisdictions.  Virginia also has a similar ban, although it was done by executive rather than legislative action.

When the U.S. Congress began moving forward with regard to health care reform, ASH formulated a proposal to permit higher premiums for smokers as a way to force them to pay more of their fair share and to lower the costs passed on to nonsmokers.  ASH’s proposal to impose personal responsibility on smokers was featured in and debated on a variety of national television programs [e.g., on Fox News, MSNBC, etc.] as well as in articles and on the Internet.  ASH also sent dozens of emails in support of the proposal to Members of Congress, and issued numerous press releases explaining why it was fair to charge smokers more for health insurance.

ASH also began revising and modernizing its award-winning Internet web site, a process which also included creating new pages related to legal, medical, and scientific issues, as well as updating many pages which had been prepared earlier.

ASH's Effectiveness During 2009

Perhaps the most remarkable thing about the many victories Action on Smoking and Health (ASH) was able to achieve during the year 2009 was that it was able to do so by spending just a few million dollars, and only about one million domestically  – a drop in the bucket compared with many of the larger antismoking organizations, including many with major grants, governmental support, income from the multi-billion-dollar multi-state tobacco settlement, and otherwise.

Although ASH's audited financial report for the year 2009 is still being prepared, ASH's fund raising expenses during the year 2008 mounted to only about 5% of its total expenditures, and ASH spent only about 9% on management and other general expenses – including mandatory costs such as the preparation of an annual report prepared by an outside auditor, fees imposed by government, insurance and other necessary fees, etc. In short, over 85% of ASH's expenditures went to fight smoking and protect nonsmokers – a record few other organizations can match.

Solely for the purpose of permitting readers to more easily find additional information about ASH – and about other charitable organizations – we list below links to several organizations which provide such information on line for visitors.  The listing below of any such information-providing organization does NOT suggest or imply that the organization endorses or supports ASH in any way, nor that ASH necessarily agrees with everything in the organization's report.

American Institute of Philanthropy (CharityWatch):
http://www.charitywatch.org   http://www.charitywatch.org/toprated.html

Charity Navigator:
 http://www.charitynavigator.org   http://www.charitynavigator.org/index.cfm?bay=search.summary&orgid=8247

Give.org (Better Business Bureau):
http://charityreports.bbb.org  http://charityreports.bbb.org/Public/Report.aspx?CharityID=2305

*ASH meets all of the numerous BBB standards except that it has not designated one Board member as a Treasurer.  Instead it has two different chief financial officers, and two separate bookkeepers who produce an annual report audited by an independent accounting firm.


Other Links about ASH

ASH's Trustees and Sponsors: http://ash.org/ashboard.html

ASH's Goal and Mission: http://ash.org/mission.html

ASH's Privacy Policy: http://ash.org/privacypolicy.html

ASH's Form 990: http://ash.org/990 2009.pdf


The following information is taken from
ASH's Audited Financial Report for 2009:
http://ash.org/auditedreport2009

Total income =
$3,986,663

Program Expense 1: Public Education = $2,911,064 (75% of Total Expenses)
Program Expense 2: Legal Action = $379,663 (10% of Total Expenses)
Total Program Services = $3,290,727 (85% of Total Expenses)

Fund Raising Expenses = $195,623 (5% of Total Expenses)
Administrative (Management and General) = $368,742 (10% of Total Expenses)

Total End of Year Assets = $7,302,702

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Action on Smoking and Health (ASH)
701 4th St. NW / Washington, DC 20001 / (202) 659-4310
A national nonprofit, scientific and educational organization founded in 1967.
All donations are fully tax deductible.