11. Battles over
The combined effects of existing local tobacco control ordinances and
Proposition 99's resources for educating the public about the dangers of secondhand smoke
dramatically accelerated the rate at which clean indoor air and other tobacco control
ordinances were passing at the local level. By 1994, one or two local ordinances were
passing every week in California, and the pace of activity was accelerating. The efforts
to pass ordinances had raised public awareness about the health dangers of passive
smoking, and the issue of clean indoor air was mobilizing the general public to support a
broader tobacco control agenda. As a result of this activity, by
1993, nearly two-thirds of California's workers were protected by local laws mandating
entirely smoke-free workplaces, and more than four-fifths (87 percent) were subject to
some restrictions on workplace smoking.[2-5] Not only did this
trend lead to ordinances and other tobacco control policies that protected nonsmokers from
secondhand smoke, but the very battle for these protections engaged the community in a way
that undercut the social support network for tobacco use that the tobacco industry had
spent decades and billions of dollars building.
The tobacco industry viewed this development with great alarm. As early
as January 11, 1991, in its plan entitled California: A Multifaceted Plan to Address
the Negative Environment, the Tobacco Institute's State Activities Division set as one
of its long-term strategies Adopt a reasonable statewide smoking law, with
preemption.  Preemption is the
process whereby a state legislature (or Congress) takes away the right of lesser
political subdivisions to enact laws in a certain policy area. Preemption has been the
tobacco industry's central strategy for stopping public health activities since 1965, when
it convinced Congress to preempt state and local regulation of cigarette labeling and
advertising. By December 1990, the industry had succeeded in getting six states to pass
legislation preempting communities from passing ordinances pertaining to clean indoor air,
youth access to tobacco, and other tobacco control measures.
In the early 1990s there were three major battles over preemption in
California: in 1991 with Senate Bill 376 and in 1993 with Assembly Bills 13 and 996. SB
376 was the tobacco industry's first attempt to get the Legislature to pass a preemptive
state bill. Tobacco control advocates stopped it. In 1993 Assembly Member Terry Friedman
(D-Santa Monica), a friend of public health, introduced a smoke-free workplace law as AB
13; while generally acceptable to health groups, it included preemption of local clean
indoor air ordinances. The tobacco industry responded with a
competing weak bill, AB 996. Despite divisions in the public health community on the
wisdom of AB 13, it eventually passed. At the same time, the public health community
stopped the tobacco industry's AB 996. Motivated by the accelerating pace of local
ordinance activity and the possibility that AB 13 would pass, Philip Morris, followed
reluctantly by the rest of the tobacco industry, tried to overturn all of California's
local (and state) tobacco control ordinances with a statewide voter initiative,
Proposition 188, masquerading as an anti-smoking measure. The public health community put
its differences over AB 13 aside, unified, and defeated Philip Morris and the other
tobacco companies at the polls.
SB 376: The First Threat of Preemption
The tobacco industry recognized that it had a serious problem in
California because the advocates of local tobacco control were well aware of the
industry's strategy of preemption, and they were watching the Legislature carefully. To
get advice on how to deal with this problem, Philip Morris flew Assembly Speaker Willie
Brown and several other legislators (and their escorts) to New York for a secret meeting
in November 1990.[9-11] Brown suggested a three-part strategy.
First, the proposed legislation should preempt local tobacco control efforts. Second,
control was popular in California, the perception of a comprehensive
regulatory scheme would be essential for preemption of smoking restrictions to pass.
Third, the tobacco industry should give the impression of opposing the bill.
The speaker's approach was spelled out in a June 28, 1991, memo from
Michael Kerrigan, the head of the Smokeless Tobacco Council (the Tobacco Institute's
counterpart for spit tobacco), to his management committee summarizing his conference call
with representatives of Philip Morris, RJ Reynolds, the Tobacco Institute, and their
lawyers and lobbyists to discuss a proposed Comprehensive Tobacco Control Act in
Kurt opened the call stating the purpose was to have a dialogue on
policy questions that have arisen from the Philip Morris/Reynolds approach to seek
preemption of public smoking restrictions within the state of California. Kurt positioned
this issue by stating the 45 local battles that the T.I. [Tobacco Institute] is fighting
concerning smoking restrictions in California, and that they have dealt with them by
compromise, not by killing them. Therefore, he was trying to establish the need for
preemption of smoking restrictions in the state of California and position, at least
his concurrence, with the need for a preemptive strike in the state legislature ¦ .
Joe Lange reported on where they are and stated that
while there were some technicalities still open for discussion, he had done a great deal
of work on this matter. He stated Speaker [Willie] Brown and Assemblyman [Dick] Floyd
visited a cigarette company in New York City last fall and met with the key executives of
that company. At that time the Speaker made clear a significantly more proactive
tobacco control effort would be needed to secure preemption. Out of those discussions
the notion of a comprehensive Tobacco Control Act (that would provide preemption) evolved.
In order to gain preemption, the Speaker wanted a Comprehensive Tobacco
Control Act along the lines of the alcohol model. The Speaker believes the trick to
doing this would be that such an act would have to have the appearance
of a comprehensive scheme. Joe stated that leadership in both chambers are
aware of and support this effort. Joe stated that the chances for success, in his judgment
are very good because the key players have all been involved. However, the chances of
success depended upon the perception that the act was comprehensive.
The conversation shifted to Joe stating Speaker Brown and Chairman Floyd
would attempt to make the Tobacco Control Act as close as possible in
appearance to the concepts that the anti-tobacco groups were fostering.
Amazingly, that shuddering thought had no discussion. [emphasis
Whatever the Smokeless Tobacco Council ultimately decided about
Brown's proposal, it is clear that the cigarette companies worked to implement it. On July
11 SB 376 was amended to propose weak preemptive smoking restrictions following a Tobacco
Institute draft. Brown was delivering for the tobacco industry. SB 376 cleared the
Assembly Government Organization Committee, a committee that had been historically
friendly to the tobacco industry.
The industry's effort was derailed when the Smokeless Tobacco Council
memo appeared mysteriously at the offices of the voluntary health agencies and several
media outlets. The resulting storm of media criticism killed SB 376.[12-14]
The Voluntary Health Agencies Accept Preemption
In February 1992 Assembly Member Terry Friedman (D-Santa Monica), one
of only 8 legislators (out of 120) who refused to take tobacco industry campaign
contributions and a supporter of tobacco control efforts in the Legislature, introduced AB 2667, a nonpreemptive statewide clean indoor air law
that would have ended smoking in all enclosed workplaces. Friedman promoted the bill as an
alternative to local tobacco control ordinances. Because AB
2667 dealt with labor law, Friedman designated as the enforcement agency the California
Occupational Safety and Health Administration (CalOSHA) in the state Department of
Industrial Relations instead of the Department of Health Services (DHS). The voluntary
health agencies ”American Lung Association (ALA), American Heart Association (AHA),
and American Cancer Society (ACS) ”supported AB 2667, as did the California Medical
Association (CMA) and the California Labor Federation (AFL-CIO).
Despite its lack of enthusiasm for state legislation on clean indoor air issues, Americans
for Nonsmokers' Rights (ANR) also supported Friedman's efforts as long as his bill did not
contain language that preempted local ordinances.
Despite support for AB 2667, it had only a very slim chance of passing
because the hospitality and tourism industries, not simply the tobacco industry, were
unlikely to allow the bill to go forward. Because the odds
against the bill were so great, neither the state voluntary health agencies nor ANR saw
any practical reason to engage in broad discussions over the desirability of a state law
versus local ordinances or the conditions under which preemption of local ordinances would
be an acceptable compromise to obtain a state smoke-free workplace law.
The prospect of enacting statewide workplace smoking legislation
improved dramatically when Friedman negotiated support for his bill from the California
Restaurant Association (CRA). The CRA was concerned
about the growing body of scientific evidence that linked secondhand smoke with illness
and the potential liability for tobacco-induced diseases through worker compensation and
Americans with Disabilities Act claims. In previous years, the
CRA board had taken the position that there should be a single statewide standard
regulating smoking in all public places, including restaurants, and that the CRA would
continue to oppose local ordinances due to concerns about unfair competition.
Because of the CRA's concerns about secondhand smoke, the organization
was open to endorsing the Friedman bill. But it was unwilling to do so unless the CRA goal
of a uniform statewide law was also met, and it made its support contingent on inclusion
of preemption of local ordinances. Friedman amended AB 2667 to
include a preemption provision that would supersede and render unnecessary the
local enactment or enforcement of local ordinances regulating the smoking of tobacco
products in enclosed places of employment.  The CRA immediately
endorsed the amended bill. This was the first time an important
business lobby in Sacramento had supported tobacco control legislation; the coalition of
health groups supporting AB 2667 were ecstatic.
By continuing to support AB 2667 after it was amended to include
preemption, however, the state voluntary health agencies adopted a position that
conflicted with their national organizations' policies against preemption. In 1989, in
response to preemptive legislation that had been proposed by the tobacco industry and
enacted in a growing number of states, the national voluntary health agencies, acting
through the Coalition on Smoking OR Health, took a strong anti-preemption position. It advised affiliates that it is better to have no law
than one that eliminates a local government body's authority to act to protect the public
health and suggested informing the appropriate legislator that unless
the preemption is removed from the bill ¦your organization can no longer support the
bill.  Despite this national policy, the state voluntary health
agencies and Friedman defended the preemption language by arguing that because the bill
would make all workplaces 100 percent smoke free, any local standard would be weaker,
making the preemption issue moot.[30-32]
ANR representatives, on behalf of many local tobacco control advocates,
did not accept this compromise. They believed that local legislation was a better device
to educate the public, generate media coverage, and build community support for
enforcement and implementation of tobacco control ordinances.
ANR also believed that any preemption
language would set a bad example for other states. Friedman's supporters countered that
it would take years to advance the policy agenda on smoke-free workplaces in some parts of
the state. More important, ANR worried that by accepting preemption in principle, it would
create a situation in which the tobacco industry would hijack the bill and weaken the
tobacco control provisions while maintaining the preemption. In
deference to Friedman, however, ANR took a neutral position, stating its opposition to the
preemption clause and raising concerns about CalOSHA's ability to enforce the law
Trying to allay these concerns, Friedman modified the severability
clause in the bill to limit preemption if the bill was weakened: In the event
this section is repealed or modified by subsequent legislative or judicial action so that
the (100 percent) smoking prohibition is no longer applicable to all enclosed places of
employment in California, local governments shall have the full right and authority to
enact and enforce restrictions on the smoking of tobacco products in enclosed places of
employment within their jurisdictions, including a complete prohibition of smoking.  Friedman and the bill's supporters argued that this language would
protect local ordinances because the preemption clause would self-destruct
if future legislation weakened the smoke-free mandate.
Friedman's attempt at compromise fell short, however, when in April he
solicited an analysis from the Legislative Counsel regarding the severability clause. The
Legislative Counsel concluded that the severability clause offered no legal protection
because the current session of the Legislature had no authority to bind future sessions of
the Legislature. Nevertheless, the state voluntary health
agencies continued to support the bill because of its 100 percent smoke-free workplace
Even with the support of the restaurants, labor groups, and voluntary
health agencies, AB 2667 failed to pass the Labor and Employment Committee in June 1992.
The Birth of AB 13
Friedman reintroduced AB 2667 as AB 13 in the next legislative session
in December 1992, and it was assigned to Friedman's Labor and Employment Committee in
February 1993. The bill was cosponsored by the CRA, AHA, AFL-CIO, and CMA.
The AHA, ALA, and ACS supported the bill because they wanted smoke-free workplaces. Groups
representing the tourism and hospitality industries and the Tobacco Institute opposed
AB 13. ANR opposed the bill because of objections to
preemption. ANR was also concerned that CalOSHA would be a less responsive enforcing
agency than local health departments or similar agencies that enforced local ordinances. The anti-tobacco activist group Doctors Ought to Care, the City of
Lodi, and the California State Association of Counties also opposed the bill because of
preemption.[41-43] Trying to address ANR's concerns over
enforcement, Friedman amended the bill to remove appropriate local law
enforcement agencies (police) as the enforcement agency so that local health
departments could enforce the law, including levying fines for violations.
These differences of opinion still appeared moot. Despite the broadened
support for the bill, it was still viewed as unlikely to pass. AHA lobbyist Dian Kiser
wrote her local affiliates, Frankly, the chance of passage of AB 13, like AB
2667, is minuscule.  Rather than treating preemption as a
policy issue, supporters of the bill fell back on the argument that since AB 13 was
100 percent smoke free, the issue of preemption was not important.
AB 13, unlike AB 2667, passed out of the Labor and Education Committee.
Newspapers credited AB 13's passage out of committee to a 1992 EPA report on secondhand
smoke as well as Governor Pete Wilson's decision in early 1993 to end smoking in all state
At the first hearing of the Ways and Means Committee, Friedman added two
amendments in a continuing effort to respond to concerns about preemption and enforcement.
The first clarified the severability clause to insure that, if AB 13's smoke-free mandate
were weakened, communities could pass and enforce future ordinances as well as enforce
existing ordinances. The other was his amendment to allow local governments to designate a
local agency to enforce the law rather than specifying local police.
While AB 13 was being considered by the Ways and Means Committee, the League of California
Cities, which had remained neutral on AB 2667, changed its position and announced support
for AB 13 on the grounds that the bill would allow local governments to pass restrictions
on tobacco in areas not covered by the bill.
The Tobacco Industry's Response: AB 996
The tobacco industry pursued three major strategies to counter AB 13.
First, working through its front groups (including the Southern California Business
Association) and the California Manufacturers Association
(of which Philip Morris was a member), it lobbied against the bill on the grounds that
AB 13 would be detrimental to California business. Second, the
tobacco industry tried to have the bill amended to weaken the smoking restrictions while
maintaining the preemption, as ANR feared and as it had done successfully in other states. Third, the tobacco industry proposed a weak law to compete with
AB 13 that would preempt local regulation of smoking.
On April 19, 1993, Assembly Member Curtis Tucker (D-Inglewood) amended
an unrelated bill, AB 996, to preempt all future tobacco control laws. AB 996 permitted
smoking in workplaces when employers met the ventilation standard defined by Standard
62-1989 of the American Society of Heating, Refrigerating, and Air Conditioning Engineers
(ASHRAE), although the ASHRAE standard stated that it was not strict enough to protect
workers from secondhand smoke. The use of the ASHRAE standard,
while sounding official, was already incorporated into most building codes in the state
and would have had little effect on restricting smoking in the workplace. The tobacco
industry has heavily influenced ASHRAE over the years.
The tobacco industry also used AB 996 to preempt emerging local
ordinances restricting youth access to cigarette vending machines. Rather than eliminating
vending machines as health advocates wanted, AB 996 proposed electronic locking devices
that had proven ineffective in controlling youth access. AB
996 was assigned to the Assembly Committee on Governmental Organization, chaired by
Tucker, where it passed by a 9-0 vote. The bill was then referred to the Assembly
Committee on Ways and Means, where AB 13 was also being considered.
AB 996 was supported by the tobacco industry and its allies in the
business community; it was opposed by the same coalition of health, local government, and
business groups that supported AB 13 in addition to those who opposed AB 13 because of its
preemption clause. The CRA opposed AB 996 because, in
protecting current local clean indoor air laws with a grandfather clause, it would not
lead to a uniform smoking policy around the state. The CRA also feared that it would not
protect restaurant owners from lawsuits and that the ASHRAE ventilation standards would be
prohibitively expensive for small restaurants.
The introduction of AB 996 changed the debate over state smoking
restrictions. Prior to AB 996's emergence as a competing bill to AB 13, media coverage of
AB 13 included the debate among tobacco control advocates over the merits of AB 13,
particularly ANR's concern with preemption. When AB 996 started moving in tandem with AB
13, media coverage
framed the debate as a good bill (AB 13) versus a bad bill (AB 996). Supporters of AB
13 were successful in garnering support for AB 13 and opposition to AB 996 from editorial
boards throughout the state. The fact that AB 996 preempted future local ordinances was an
important point in rallying public opposition to the bill.
Newspapers described AB 996 as a bill whose real purpose was to prevent local communities
from approving their own tough anti-smoking ordinances.
The View from outside Sacramento
The potential effect of AB 13's preemption provisions on local
ordinances created controversy and confusion among local tobacco control advocates over
whether to support the measure. Local coalitions, composed of people from local affiliates
of the voluntary health agencies, local medical associations, departments of health, and
individual activists, received inconsistent information on the state debate over AB 13 and
AB 996. While opposition to AB 996 was unanimous, the state voluntary health agencies
urged support of AB 13 while ANR continued to urge opposition. Many individuals who
participated in these local coalitions were members of both a voluntary health agency and
ANR, and so were receiving conflicting action alerts from different organizations.
Some activists at the local level questioned the effect of AB 13 on
local legislation and remained skeptical that a workable bill would emerge from the
Legislature. Of special concern was how the preemption
language would affect nonworkplace provisions of local ordinances (such as those mandating
public education) or nonretaliation clauses (which would protect employees who complained
about noncompliance with the smoke-free workplace requirement). Questions from those
communities about AB 13 were interpreted by lobbyists at ALA and ACS as efforts by ANR to
undermine their authority, and they complained of having to devote time and resources to
respond to what they perceived as ANR's misinterpretation of the bill.
ANR saw its activities as a legitimate way to present its opposition to preemption to the
people most affected.
As controversy over the bill intensified and communication broke down
between state players, a hostile exchange occurred, with local activists caught in the
cross fire. One LLA director later described the atmosphere: Oh my God. We
were on the record of telling our coalition that it was preemptive and that it was not a
good thing. And because we had had these conversations, some individuals wrote letters. I
calls back from Friedman's office just saying, `It is not preemptive! Who told you
this? That's wrong!' And they would call us. I mean these are individuals who English is
not necessarily their first language who did not know how to, like, argue back. The whole
process of that was real divisive.  In a public demonstration
of the growing conflict among former tobacco control allies, the presidents of the state
voluntary health agencies and the CMA circulated a letter warning, ANR's
opposition is unsound and could have dangerous effects.  This
letter was a modified version of one that Friedman had written to ACS earlier, claiming
that ANR authored a shocking opposition letter which seriously distorts AB 13.
AB 13 and AB 996 on the Assembly Floor
AB 13 and AB 996 were considered in tandem by the Assembly Ways and
Means Committee. Although contradictory in intent and effect, both bills passed the
committee, with several members voting for both bills. The bills next moved to the
Assembly floor, where AB 13 was amended on May 24, 1993, to exclude hotel guest rooms from
AB 13's definition of place of employment. Since AB 13 preempted only
local regulation of places of employment, local governments would be
permitted to regulate hotel guest rooms.
Both AB 996 and AB 13 came to a floor vote in the Assembly on June 1,
1993, and both failed. Just days later, AB 996 was taken up again, while reconsideration
for AB 13 was delayed until the following week by a technicality. The tobacco industry's
bill, AB 996, passed by a 42-34 vote. The Assembly members who voted for AB 996 had
received a total of $964,740 (average $22,970 per yes vote) in tobacco
industry campaign contributions during the years 1975-1993, compared with only $193,567
for opponents (average $5,693 per no vote).
Newspapers reported that campaign contributions from tobacco interests to legislators were
buying votes against AB 13 and for AB 996. Friedman
denounced passage of AB 996 as an example of the absolutely disgusting power
the tobacco industry wields in the Legislature. 
In the debates over local tobacco control ordinances, it had become
routine for the tobacco industry, acting through surrogates, to claim that smoking
restrictions would cause economic problems. On June 6, the day after AB 996 passed the
Assembly but before AB 13 was reconsidered, several Southern California
business groups, led by the Southern California Business Association, a
group with tobacco industry connections,
released an economic study by the accounting firm of Price Waterhouse.
(Price Waterhouse conducts negative economic impact studies for the
tobacco industry throughout the nation.) The study, sponsored by the San Diego Tavern and
Restaurant Association, claimed that AB 13 would jeopardize 82,000 jobs in California and
cost the state more than $3.5 billion.
The CRA immediately hired another accounting firm, Coopers and Lybrand,
to review the Price Waterhouse report. Coopers and Lybrand said the Price Waterhouse
results were biased because the respondents had no previous experience with a statewide
smoke-free law, so their impressions would not accurately reflect potential business loss. The survey also produced bias in its results by giving respondents
misleading information regarding the scope of areas affected by AB 13. Coopers and Lybrand
noted that Price Waterhouse omitted a key conclusion, if not the key
conclusion, that over 61% of respondents thought that there would be no impact or positive
impact on sales from the proposed ban.  This prompt response by
the CRA neutralized the effects of the Price Waterhouse study.
AB 13 was granted reconsideration on June 7 and passed the Assembly with
a 47-25 vote. Members who voted for AB 13 had received $363,823 in campaign contributions
from the tobacco industry between 1976 and 1993 (average $7,741 per yes
vote), and those who voted against it, $711,405 (average $28,456 per no
vote). Friedman hailed his success as a
spectacular turnaround, attributing the change in votes to
the outpouring of spontaneous public support for AB 13 all over the state,
and the outrage expressed by the voters at the passage of the industry-sponsored measure.  Several members of the Assembly expressed discontent with both AB
13 and AB 996, saying one bill was too strict and the other was not strict enough, and
voiced the hope that a compromise bill could be created in the state Senate or in a
On to the Senate
In the Senate, AB 13 and AB 996 were assigned to both the Senate
Health and Human Services Committee and the Judiciary Committee. AB 996 died in the Senate
Health and Human Services Committee, chaired by Senator Diane Watson (D-Los Angeles), as a
result of effective lobbying by tobacco control advocates and senators friendly to tobacco
Tucker never brought it up for a vote, presumably because it did not have enough votes
to pass. In a November 1993 memo, David Laufer of Philip Morris
noted that it was unlikely that the tobacco industry could move AB 996 out of the Senate
AB 13 passed the Senate Health and Human Services Committee on its
second hearing after being further amended to exempt hotel and motel lobbies, bars and
gaming clubs, and some convention centers and warehouses. Once again, these exemptions
were created by excluding these venues from AB 13's definition of places of
employment. Since AB 13 applied only to places defined as places of
employment, these exemptions from the smoke-free mandate were also exempted from the
bill's preemption clause, leaving them open to local regulation. Friedman admittedly
accepted the amendments to exempt these areas so as to move the bill through committee; he
declared the bill's passage to be a victory against the tobacco industry.
The AB 13 coalition continued to support the bill, even though it was no
longer 100 percent, the rationale initially used by several members of
the support coalition to justify their acceptance of the preemption language. Between the
first and second committee hearings, in response to a question from a reporter, Friedman
argued that AB 13 creates one uniform protective statewide law and preempts
the patchwork of local ordinances around the state with which businesses must currently
comply. It protects all workers from environmental tobacco smoke and all employers from
claims related to environmental tobacco smoke (emphasis added).
After passing the Health and Human Services Committee, AB 13 was
referred to the Judiciary Committee, chaired by Senator Bill Lockyer (D-Hayward), the
author of the Napkin Deal (see chapter 3). At AB 13's first hearing in
the Judiciary Committee, on August 19, it was clear AB 13 did not have the votes to clear
the committee. Over the next several weeks, Lockyer proposed
several amendments that would further weaken the bill's smoke-free mandate, including a
request that Friedman relinquish his 100 percent smoke-free requirement in favor of
ventilation standards. Rather than accepting Lockyer's proposal, Friedman petitioned to
turn AB 13 into a two-year bill, allowing him to bring the bill back to committee for
discussion in 1994. His request was granted and Friedman vowed to return in 1994 with a
stronger support coalition for the bill.
The Philip Morris Plan
Friedman was not the only one making plans for 1994. In November 1993,
conceding that it would likely be unsuccessful at blowing AB 996 out of Senate
Health,  Philip Morris started planning an initiative modeled
on AB 996:
Simply filing [a proposed initiative] has some advantages because it
may force the legislature to act in a way we can help channel (e.g.: if they believe a
less onerous bill would pass on the ballot, we can give them the opportunity to pass
something a little more restrictive, but less than a total ban, then not turn in any
signatures). Conversely, if we believe we can win with something more moderate than the
legislature might pass, we should turn in signatures and go to the ballot.
Thus, the filing of an initiative might give the industry some
leverage in the Legislature against AB 13. This strategy was similar to the one that the
industry had traditionally used at the local level ”the threat of a referendum to
force counties and municipalities into more moderate ordinances (see chapter 9).
On November 1 David Laufer of Philip Morris laid out the California
situation.  The San Francisco Board of Supervisors
had just passed an ordinance similar to AB 13. According to Laufer, It is no
coincidence that the bill resembles AB 13, since Terry Friedman has spent the last several
weeks in SF lobbying the Board. He went on to say, Barring a miracle or
a decision to take this to the ballot, it is a done deal. He noted that the
smoke-free ordinance in Los Angeles had gone into effect and, while perhaps
not enforced, was being complied with on the whole. He added that
the Tobacco Institute has no more funds this year to continue to pursue the
case, so we will need to decide if we want to continue and pick up the tab. In San
Jose, the City Council had directed the city attorney to draft a law making all public
places and worksites smoke free (which passed on December 30, 1993), and San Diego was
discussing strengthening its ordinance. Sacramento had been smoke free for several years.
Laufer offered this summary: In 4 of the 5 largest population centers in the
state, a ban is, or will likely be the reality, making AB 13 (a statewide ban) all the
more appealing and easy to enact when session reconvenes in early January 1994. ¦In
conjunction with whatever remaining allies we have, I believe we must launch a
simultaneous counterattack on several different fronts: legislative, initiative,
and legal.  Ellen Merlo, Philip Morris's vice president of
state activities, agreed: If the four largest cities in California go, it is a
very dangerous precedent and I think we have to throw as many resources at at least some
sort of a compromise that we can live with. Let's do ASAP. 
On January 12, 1994, Merlo wrote to Geoff Bible, president of Philip
Morris, to bring him up to date on the steps that we will take in California
over the next several weeks in order to achieve state-wide preemption with accommodation
for smokers.  California clearly warranted attention at the
tobacco giant's highest levels. Four steps were outlined:
- We will file a lawsuit on February 1st against the City of San Francisco over the
jurisdictional issue of whether or not San Francisco has the authority to ban workplace
smoking. We will be a co-plaintiff along with local business people in this lawsuit and
based on precedent and legal advice, we think we have an excellent chance of prevailing.
- At the state level, we will create a flurry of legislative activity to
confound the antis by introducing various bills and measures to put them on the defensive,
including asking for an audit of the Proposition 99 trust fund, an investigation of
political abuses of the Proposition 99 fund and a resolution to ask U.S. OSHA to establish
Indoor Air Quality Standards within the state.
- We will create the same level of local activity in cities like Anaheim, South San
Francisco, Stockton, Palm Desert, Rancho Mirage, etc. by introducing smoking accommodation
- Finally, on or about January 17th, we will file a ballot initiative seeking a state
preemption bill that provides for smoker accommodation. The Initiative will be filed by
three independent business and/or association members. Simultaneous with our filing of the
ballot initiative, we will conduct additional polling to ensure that we thoroughly probe
voter reaction to this bill, which preliminary polling indicates we have a very good
chance of winning.
Merlo added that if the company had the opportunity to
reach a negotiated settlement through the Legislature for preemption and accommodation, we
will do so. 
RJ Reynolds did not share Merlo's optimism about an initiative. On
January 17 Tim Hyde wrote to Tom Griscom and Roger Mozingo about the proposed initiative,
saying, Overall, I think this is a bad approach, referring to a survey
conducted for Philip Morris. He offered the following arguments
to support his view:
- A. I am doubtful we could prevail on such a ballot question. We haven't seen the whole
survey, yet, but Q57 [the head-to-head comparison of AB 996 and AB 13], in the deck, shows
that almost as many people would vote for a total ban as for designated areas (44-46%).
And that's before the other side has had a chance to propagandize about out-of-state
tobacco companies spending big money to protect their interests.
- B. There are tremendous down sides if we lose. It would establish the official
position of the California electorate on this issue, making it much more difficult for
legislators and local public officials to resist the anti's call for public bans. It
would also have obvious national fallout.
- C. Even if we should win, it doesn't solve the problem. The real problem is the hundreds
of millions that other side has in Prop. 99 money to fight us. I suspect that if they
weren't spending their efforts trying to enact local ordinances, as they are now, they
would be up to worse activities: such things as harassing private employers, even more
egregious studies and pilot intervention programs, and who knows what else.
If we were going to mount a proactive initiative, why not one that
would divert these funds to prison construction and emergency rooms? That has
immediate public appeal, is a get for the voters, and would have
precedential value for other states.
I also think we need to be careful with what the other side has
identified as front organizations. A California chapter of the
National Smokers' Alliance, for example, will be quickly seen as PM's grassroots arm. The
group we have fostered ”California Smokers' Rights ”has 8,000 paid members and
money of their own in the bank, but the [sic] are still frequently accused of being
a front for the industry.
Finally, five million dollars is a lot of money.
RJ Reynolds was clearly not interested in an initiative battle over
smoke-free workplace laws, preferring instead to try to kill off the Proposition 99 Health
Education and Research Accounts once and for all. Local ordinances were causing problems
for the industry, but the root cause of the problem was Proposition 99. Philip Morris
ignored RJ Reynolds and continued with its initiative.
The Philip Morris Initiative
As Merlo had alerted Bible, on January 17 Philip Morris and a group of
restaurant owners submitted an initiative statute, the California Uniform Tobacco Control
Act (essentially identical to AB 996) to the California
Attorney General with the intention of qualifying it for the November election. The
initiative stated that current regulation of smoking in public in California
is inadequate and that there is a clear need for uniform statewide
regulation of smoking in public to assure those interested in avoiding secondhand smoke
have the same protection wherever they go in the state and that those who do smoke have
fair notice of where smoking is prohibited.  The smoking
regulations in the initiative were simply worded as broad prohibitions; the even broader
exceptions appeared near the end of the initiative, couched in technical terms. The
language that preempted all local ordinances regulating any aspect of tobacco consumption,
distribution, or promotion was buried on the last line of page 9.
The initiative would have overturned eighty-five local ordinances that
mandated smoke-free workplaces and ninety-six ordinances that mandated smoke-free
restaurants (as of January 1994). In addition, because strict workplace smoking
restrictions encourage some smokers to quit and others to reduce the number of cigarettes
smoked, a trend that is reversed when restrictions are relaxed, passage of the initiative would have actually increased smoking
and exposure to secondhand smoke. While Philip Morris's public
statements did not emphasize the potential of the initiative to protect tobacco profits,
the company explicitly presented the initiative as a way for tobacco retailers to protect
their business: The adverse impact on retail cigarette sales would be
immediate [without the initiative]. Your cigarette sales, along with your profits, could
Organized opposition to the initiative, which was eventually placed on
the ballot as Proposition 188, developed slowly. When Philip Morris first proposed the
initiative in January 1994, only Carolyn Martin, an ALA volunteer and former chair of the
Coalition for a Healthy California and TEOC, and ALA lobbyist Tony Najera, expressed
strong concern about it. Most people viewed the Philip Morris initiative as a sure failure
because the California public had been educated about the health dangers of tobacco and
did not trust the tobacco industry.
Martin and Najera hired Jack Nicholl, who had been campaign manager for
the Yes on Proposition 99 campaign. The three contacted former Coalition members to alert
them to Philip Morris's actions and to mobilize local groups to publicly denounce the
initiative as an attack on their local tobacco control ordinances, local autonomy, and
public health and to contact editorial boards and secure their opposition. Martin also
asked for contributions for a three-month campaign to defeat the petition drive (table
2) and convened former members of the Coalition on February 17, 1994.
Meanwhile, ACS funded a poll of California voters asking how would they
vote if they knew Philip Morris was behind an initiative that would decrease smoking
restrictions in California, overturn local laws, and prohibit cities and counties from
making their own smoking laws. This poll also tested various
messages that could be used to oppose the initiative, so it provided important marketing
research for the public health campaign. The results revealed that 70 percent of those
polled would vote against such a law, 24 percent would vote for it, and 6 percent were
While the proponents of an initiative write the text of the proposed
law, the California Attorney General provides the official title and summary, which appear
on the ballot. This wording is important because it may be the only material that a voter
reads about the measure before voting. The title and summary also appear at the top of all
copies of the petitions used to gather signatures to qualify the initiative for the
ballot. Given their experience in the Proposition 99 campaign, Martin and Najera realized
the importance of not only the initiative's title and summary but also the Legislative
Analyst's analysis and ballot arguments, which appear in the Voter Pamphlet. Philip Morris
had submitted proposed language emphasizing that the initiative bans smoking,
restricts ¦vending machines and billboards, and
increases penalties for tobacco sale to and purchase by minors while
downplaying the exceptions. The Coalition hired an attorney who
presented a title and summary to the Attorney General that emphasized preemption of local
ordinances, relaxation of current restrictions on smoking, and the increase in smoking
that the initiative would cause. The final title and
summary that the Attorney General released on March 9, 1994, reflected the Coalition's
concerns; it highlighted the preemption of existing laws and significant exceptions to
smoking restrictions. The Coalition's timely and assertive
intervention would prove very important as the battle over the initiative unfolded.
The Continuing Fight over AB 13
As he had promised in November 1993, Friedman was ready to push AB 13
when the Legislature returned in January of the following year.
In February 1994 AB 13 was taken up again in the Senate Judiciary Committee. Friedman
amended the bill to expand exemptions for hotels and motels to gain the support of the
California Hotel and Motel Association, a previous opponent of AB 13. Friedman also
adopted Lockyer's amendment to permit smoking in bars until January 1, 1997, after which
time bars would have comply with an as yet unwritten EPA or CalOSHA ventilation standard
to protect workers from secondhand smoke. However, Friedman made sure to stipulate that if
no standard was written by January 1, 1997, smoking would be prohibited in bars and gaming
AB 13 was continuing to move through the Legislature. When the Senate
Judiciary Committee heard AB 13 again on March 22, two tobacco-friendly amendments were
added to the bill. The first, sponsored by Senator Art Torres
(D-Los Angeles), extended the phase-in period and ventilation options for bars, gaming
clubs, and convention centers to restaurants. The second amendment, sponsored by Senator
Charles Calderon (D-Whittier), preempted all future ordinances. Calderon had a history of
supporting such preemption language as well as the tobacco industry generally. In proposing his preemption amendment to AB 13, Calderon argued
that if Friedman truly wanted to establish a state standard for smoking, he should extend
the preemption in the bill to all local ordinances. Friedman objected that his fragile
support coalition would disintegrate because many supporters were philosophically opposed
to preemption. The Judiciary Committee ignored Friedman and
passed the bill by a vote of 6-1, including the amendments.
Once AB 13 was amended to broadly preempt local laws, the health groups,
which had been divided about the preemption in AB 13, united in opposing it. The League of
California Cities, ACS, ALA, and AHA expressed opposition to the two pro-tobacco
amendments and said they would oppose the bill until both amendments were removed.[95-98] ANR continued to oppose the bill.
The weakening of AB 13 was front-page news.
The Los Angeles Times editorial page called the hearing a rape in
Sacramento.  Friedman lobbied to remove the Torres and
Calderon amendments from AB 13 in the Senate Appropriations Committee, the last committee
before the Senate floor. Torres, realizing he had been misled
at the hearing by restaurant owners in his district, worked with Friedman's office to
remove the amendment he had suggested as well as Calderon's preemption language. Friedman and his supporters successfully removed the hostile
amendments in the Senate Appropriations Committee. The AB 13 support coalition once again
backed the bill, while ANR continued to oppose it.
The Philip Morris Signature Drive
The flurry of press activity surrounding AB 13 did not extend to the
Proposition 188 signature drive. Philip Morris began a quiet effort to qualify its
initiative, using the Dolphin Group (which had created front groups for fighting local
ordinances) to run the campaign as Californians for Statewide Smoking Restrictions (CSSR).
Voters began receiving phone calls inquiring whether they would support a uniform state
law restricting smoking. Respondents who answered yes received a packet
that contained advertising materials and a copy of the petition to be signed and returned.
This attractive packet, which cloaked the initiative as a pro-health measure, detailed
strict regulations that would be implemented by the proposed law and
outlined its benefits :
- Completely prohibits smoking in restaurants and workplaces unless strict ventilation
standards are met.
- Replaces the crazy patchwork quilt of 270 local ordinances with a single, tough, uniform
- [Is] stricter than 90% of the local ordinances currently on the books.
Using staff resources donated by ALA, the Coalition campaigned to keep
Philip Morris from collecting enough signatures to qualify the initiative and sought
resolutions from local governments that had already passed strong local tobacco control
ordinances in an attempt to create debate and interest the press in covering the story.
Even though the Coalition considered this strategy a long shot, any controversy created
during the signature gathering might attract early press attention before the general
The Coalition also advised voters who had signed the petition in the
belief that it would promote health to complain to Acting Secretary of State Tony Miller. On April 8 Miller sent a letter to the restaurant owners who had
filed the petition, warning them that deceptive petitioning
practices would not be tolerated. He later launched an investigation into CSSR's
possibly fraudulent petitioning practices, stating that he would not certify
any measure for any ballot that met the signature requirement only by breaking the law.
The Coalition capitalized on Miller's actions, publicizing his warnings and
simultaneously instructing voters how to request removal of their signatures from the
petition (which turned out to be impossible, for all practical purposes).
On May 9 CSSR submitted 607,000 signatures (385,000 valid signatures
were required) to the secretary of state's office. As part of his continuing
investigation, Miller asked for court permission to randomly sample the signatures to
survey for fraud. The court denied permission on the grounds that it would constitute
invasion of privacy. On June 30 the secretary of state
certified that Philip Morris had collected enough valid signatures to place the initiative
on the ballot for the November 1994 election as Proposition 188.
The Legislature Passes AB 13
Back in the Legislature, AB 13 was continuing to move. After passing
the Senate Appropriations Committee, it was sent to the Senate floor. Senator Marian
Bergeson (R-Newport Beach), AB 13's floor manager in the Senate, successfully fought off
several hostile amendments. However, one amendment was accepted on June 16: smoking areas
would be allowed in long-term patient care facilities and in businesses with fewer than
five employees so long as all air from the smoking area was exhausted directly outside,
the area was not accessible to minors, no work stations were situated within the smoking
area, and EPA or CalOSHA ventilation standards were met, once established. The bill passed
the Senate on June 30, 1994. The Assembly voted concurrence with the Senate amendments.
Governor Wilson signed the bill into law on July 21, 1994.
The final version of AB 13 retained its 100 percent smoke-free mandate
as well as its preemption clause. Amendments were worded so any exemption from the
smoke-free mandate allowing smoking was also an exemption from the preemption clause.
Thus, local entities would be allowed to enforce existing regulations and pass and enforce
new regulations restricting smoking in areas exempted from AB 13, despite its preemption
clause. Nevertheless, Governor Pete Wilson cited the bill's preemption of local ordinances
as a reason to sign the bill into law. He stated that AB 13 protected California's
businesses as well as the health of workers because by providing a uniform,
statewide standard which
preempts the patchwork of local ordinances around the state with which businesses must
currently comply, the law does not give one business an economic advantage over another
Wilson continued to press his view that AB 13 preempted local
communities from regulating smoking. In 1995 a nursing home resident in San Jose
complained that he was being forced to breathe secondhand smoke in the television room at
the nursing home; he asked the city, under its clean indoor air law, to require that the
room be smoke free. The city complied, and DHS sued, claiming that AB 13 preempted the
ordinance. DHS lost in the trial court and appealed. On August 18, 1998, the Sixth
District of the Court of Appeal unanimously ruled that the neither federal law nor state
law preempted localities from enacting local tobacco control ordinances:
By disavowing any intent to preempt the regulation of tobacco smoking,
and by in fact expressly authorizing local agencies to ban completely the
smoking of tobacco in any manner not inconsistent with the law, the Legislature
clearly indicated its intent to leave to the local authorities the matter of regulating
the smoking of tobacco in their respective jurisdictions, provided the regulations so
adopted do not conflict with statutory law. In delegating such regulatory power to local
agencies and expressing its preference that regulation of tobacco smoking at the local
level be made by local governments, the Legislature impliedly [sic] decreed that
where the local agencies have stepped in to regulate the smoking of tobacco within their
own territorial boundaries, the state's administrative agencies, such as the Department
[of Health Services] should step back ¦ .
Evidently, the rationale for the Legislature's deference to local
governments, equipped as they are with superior knowledge of local conditions, [is that
they] are better able to handle local problems relating to regulation of tobacco smoking.
The fact that DHS under the Wilson administration was willing to
advocate the position that a nursing home resident had no right to a smoke-free
environment while watching television was just one more example of the administration's
pro-tobacco position. The result, however, was a resolution of the bitter debate within
California's tobacco control community over whether or not state law was preemptive. It
AB 13 and Proposition 188
For the tobacco industry, Proposition 188 ”which had started out
as a way to finesse legislative behavior and get what the industry regarded as a good
preemptive bill ”had become essential after passage of AB 13. John M.
Hager, a vice president at American Tobacco, wrote Donald S. Johnston, president and
CEO, AB 13, a virtual smoking ban, is in place for January 1 and Prop 188 is
our `last chance' for reason in California. 
In June 1994, before AB 13 became law, the tobacco industry commissioned
a public opinion poll on Proposition 188. The poll, conducted by Voter/Consumer Research
of Houston, showed that the initiative was running even among voters (43 percent for, 43
percent against). Its supporters were primarily people who wanted to strengthen smoking
restrictions, and opponents were primarily smokers, people who opposed government
regulation, and people who disapproved of Philip Morris's sponsorship of the measure. The poll also revealed that Proposition 188 faced two other
problems. The first problem was that the initiative was confusing to people (especially
with tobacco control advocates and the media attacking it), and confusion leads to
no votes. The other problem was that the industry was asking for
yes votes, which are historically harder to get.
As RJ Reynolds recognized, Since the signing of AB 13, the effect of
P[roposition] 188 would be to relax restrictions. In other words, the whole electorate
will probably reconfigure on this issue.  Those who wanted
smoking restrictions would likely shift to support the new status quo, AB 13, which meant
they became no votes, while those who opposed Philip Morris sponsorship
would stay on no. Only smokers and opponents to regulation would stay
where they were. The only hopeful news for the tobacco industry from the poll was that
while Californians preferred smoking bans to nothing, they preferred restrictions to bans,
and that while tobacco sponsorship was not a plus, it was not a killer.
The Stealth Campaign
After the initiative qualified, CSSR avoided the media and public
debates on the initiative and instead began an expensive direct mail advertising campaign
to reach voters. Proposition 188 was promoted as a tobacco control law, a tough but
reasonable alternative to AB 13. Although virtually all the money for Proposition 188 was
coming from the tobacco industry (table 3), CSSR downplayed the industry's role in the
campaign and, in typical fashion, presented itself as a coalition of small business
owners, restaurants, and concerned California citizens.
Lee Stitzenberger of the Dolphin Group ran the campaign for Philip
Morris. RJ Reynolds's Roger Mozingo and Tim Hyde described Stitzenberger's plan to Tom
Griscom and B. Oglesby on August 4:
It calls for no television, 15 m pieces of mail, the ol' slate-card
extortion, earned media, some newspaper ads, and a couple of weeks of radio at the end. Basically,
it is a kind of stealth campaign: much of it will fly under radar cover. The first
phase of the campaign, between now and Labor Day, will hit the sponsorship head on.
If you think this is a ploy by the tobacco companies, read the proposal. Here
it is. Read it. The next phase will attempt to use allies, broaden the base with
coalitions, and the use of spokespeople for earned media. The final phase will be targeted
radio and the slates.
The primary message, other than we don't have anything to
hide, will be that AB 13 goes too far, we need severe restrictions, not bans. The
other side won't have any money, but they will have almost universal editorial support.
The campaign will monitor their use of Prop 99 monies and is prepared to challenge any use
thereof in court.
They [CSSR] have a $9 m budget for the remainder of the campaign. We
guess PM has put about $1.5 [m] in so far. Ellen [Merlo] said that PM has budgeted $6 m,
so they are looking for $3 [m] from the rest of the industry. In addition, National
Smoker Alliance will do two statewide smoker mailing [s] (which, of course, PM will pay
for) ¦ .
What they want from the rest of the industry, in addition to $3,000,000,
is the use of some of our outdoor boards, help with point-of-sale distribution, smoker
lists, and spokespeople (such as Danny Glover).
We speculate that PM is interested in full industry participation for
reasons beyond money. We suspect they want to share the negative pr this effort is taking
in the media and among elected officials.
Lee said that there is not a 50-50 chance that we will win this, but it
isn't far off. Their main point (and that of the entire California team, including
O'Mally) was that this is the only chance we have of making progress in that state. [emphasis added]
The CSSR attempted to present Proposition 188 as an anti-smoking
measure. In doing so, the organization departed from previous tobacco industry election
campaigns by emphasizing anti-tobacco themes: limiting youth access to tobacco, protection
of nonsmokers, and accommodation (figure 14).
Yet Proposition 188 represented a rollback of existing California
tobacco control laws. Philip Morris used the industry's usual rhetoric only in emphasizing
that restrictions on tobacco represented unwarranted government intrusion into people's
private lives; targeted mailings to its National Smokers' Alliance and other smokers'
rights lists portrayed Proposition 188 as a chance to preserve your right to
The No Campaign
The Coalition for a Healthy California chose Stop Philip
Morris as its campaign theme. Polls dating back to 1978 had consistently shown that
the tobacco industry had very low credibility among voters.
For example, a 1982 poll prepared for the Tobacco Institute as part of its effort to
defeat a tobacco control initiative in Bakersfield revealed that knowledge of
tobacco company [opposition to a measure] does move a significant number of
respondents into the `yes' column.  The Coalition concluded
that simply educating the voters about the tobacco industry's involvement with Proposition
188 would convince them to vote no.
By mid-September, the formal No on 188 campaign was launched. The ALA
and ACS were actively working together, with Martin sharing the CHC chair with ACS
volunteer Gaylord Walker. The Coalition held press conferences around the state, and press
events aimed at informing the public that Philip Morris was behind the initiative.
Following the press conferences, the tobacco industry received telephone calls from
media in only San Francisco and Sacramento and considered the extremely quiet press
good news. 
Despite strong grassroots support for its position, the Coalition was
having difficulty raising money to counter the tobacco industry's direct mail campaign.
Knowledgeable observers ”who knew Philip Morris was behind the campaign ”could
not believe that the voters would support Proposition 188 after several years of
anti-tobacco public education funded by Proposition 99. According to Nicholl, Proposition
188 was viewed as such an extreme and aggressive tactic by the tobacco
industry that it couldn't possibly win. 
Philip Morris's strategy, however, was working. The independent Field
Institute California Poll in mid-July had shown the initiative ahead: 52 percent for, 38
against. By mid-September, polls conducted by the Field
Institute and the Los Angeles Times showed that voters were evenly divided. Proposition 188 had a good chance of passing.
Media attention is generally attracted by controversy, and reporters
usually seek to represent both sides of an issue. The tobacco industry was so committed to
staying out of the public eye that CSSR had an unlisted telephone number and actively
avoided journalists and public debates. For example, when
the League of Women Voters scheduled a debate to be broadcast in the Bay Area (the
second-largest media market in California), CSSR refused to send a representative. Unable
to take a formal position opposing the initiative due to its bylaws (which required equal
consideration of both sides before taking a position on an initiative), the league
canceled the debate. When the Senate Health Committee and the
Assembly Governmental Organizations Committee held the public hearing required by law to
present issues raised by Proposition 188, CSSR refused to participate.
By shunning the spotlight, CSSR successfully minimized controversy over Proposition 188,
clearly part of Stitzenberger's stealth strategy. The strategy allowed Philip Morris to
control the message through direct mail advertising while denying the opposing camp the
free forum that would have accompanied media coverage.
On October 21, 1994, John H. Hager of American Tobacco again wrote to
Donald S. Johnston to brief him on the Proposition 188 campaign. He enclosed an analysis
of Proposition 188. A notable strength of Proposition 188 was
low awareness of the measure, especially compared with two high-profile initiatives that
were on the ballot ( three strikes, which required long prison sentences for
repeat offenders, and anti-immigrant measures). Other strengths included support now among
smokers, high-turnout groups (such as the elderly), and those who favored the initiative's
youth focus. The weaknesses were, however, significant: support for the measure declined
when voters were somewhat informed; AB 13 had strong support (48 percent preferred it to
Proposition 188); the health groups had substantial credibility; and Philip Morris's
sponsorship of the initiative was a distinct liability. The strategy for the last month of
the campaign was to identify and mail to likely smoker households, exploit populist
themes, and keep buying media.
American Tobacco knew something that the Coalition did not know. The
California Wellness Foundation, a large California foundation, was thinking about
launching a large nonpartisan voter education project to make sure that the public
understood exactly what Proposition 188 meant ”and who was supporting it and who was
opposing it. While strictly neutral from a content perspective, this educational campaign
would effectively smoke out the tobacco industry's involvement and expose its stealth
American Tobacco's analysis presented four major concerns:
- Wellness Foundation. While the official NO campaign has only
$90,000 cash on hand as of 9/30, the nonprofit Wellness Foundation may spend anywhere from
$1 million to $3 million in non-partisan radio spots. ¦They are
being quoted non-profit rates, so this would also extend the reach of their buy. While we
may be able to counter a $1 million buy, an effective $3 million buy to raise awareness of
188 sponsorship virtually dooms our campaign.
- Prop 99 ads. Even though they do not mention 188, the extent of these new ads
pose[s] a real threat, especially if the NO campaign or the Wellness Foundation helps
voters relate the theme of the 99 ads (lies and deceit) to the initiative.
- Media. The media could accomplish the above connection with little difficulty.
- C. Everett Koop. If the NO campaign has any money to put him on TV ads, we're in
The tobacco industry did not have to worry about the Proposition 99 ads.
Sandra Smoley, Governor Pete Wilson's secretary of health and welfare, had been one of two
votes against the Sacramento County smoke-free ordinance in 1990 when she was a member of
the Board of Supervisors. As secretary of health and welfare, she forbade DHS from doing
any public education about AB 13, despite the fact that educating the public before such
laws are implemented greatly smooths the process.
In anticipation of a major media blitz by CSSR, the Coalition laid out
a strategy for utilizing paid advertising to get out its message. Nicholl produced
television and radio advertisements highlighting the deceptive nature of CSSR's
advertising. The Coalition ads featured former surgeon general C. Everett Koop, one of the
signers of the ballot argument against Proposition 188.
But there was no money to broadcast the advertisements. With the discouraging September
poll results indicating that Proposition 188 would win, the California voluntary health
agencies approached their national organizations for money.
The AHA and ACS national organizations responded with substantial
donations in late October, which represented a major shift in policy for these
organizations. In the past they had considered measures like Proposition 188 as state
matters to be handled by the state affiliates. National AHA and ACS leaders recognized
that a victory for the tobacco industry in California, which had been regarded as a
pioneer in tobacco control efforts nationwide, would not only have national repercussions
but also help the industry pass preemptive statewide smoking regulations elsewhere. The national ALA continued its past practice of not providing
financial assistance to individual state campaigns, but four
ALA state affiliates (in Oregon, Maine, Nebraska, and Wisconsin) saw Proposition 188 as a
national issue and sent a total of $32,800. The American Medical Association gave $25,000.
The Kaiser Permanente health maintenance organization donated $50,000 and ran full-page
newspaper advertisements opposing Proposition 188. These last-minute injections of cash
allowed the Coalition to run the Koop advertisements for the last week of the campaign.
The tobacco industry has long understood that local and state campaigns make an important
contribution to national policy and has always treated these tobacco battles from a
national perspective. The Proposition 188 campaign marked a growing, but still limited,
recognition by the national organizations supporting tobacco control that state and local
issues are strategically important.
The Wellness Foundation
The tobacco industry's fears were confirmed when the California
Wellness Foundation initiated a nonpartisan educational campaign to give voters accurate
information about Proposition 188. The Wellness Foundation was concerned that Philip
Morris and the other tobacco companies were controlling the public's perception of
Proposition 188. On October
17 the Public Media Center, a nonprofit advertising agency in San Francisco, launched a
unique $4 million campaign, funded by the California Wellness Foundation, to educate the
public about Proposition 188. The campaign was designed to provide California
voters with objective and balanced information on a ballot question that many voters are
uncertain or confused about.  The Public Media Center print,
radio, and television advertisements presented the ballot arguments, signatories, and
major donors to both sides of Proposition 188. The campaign also presented a toll-free
number (1-800-KNOW188) that voters could call for more information. A voter calling the
number was sent the Voter Pamphlet (containing the proposition's title and summary, the
Legislative Analyst's report, and arguments for and against the proposition). To ensure
neutrality in designing its campaign, the Public Media Center did not confer with
advocates or opponents of Proposition 188; it relied entirely on publicly available,
official information. The Coalition's victory months earlier in securing accurate Voter
Pamphlet language proved to be crucial to innovative advertising strategies used by the
Public Media Center.
After meeting with representatives of the Coalition and CSSR, the
Legislative Analyst stated that Proposition 188 was weaker than the protection most
Californians enjoyed. CSSR then sued the Legislative Analyst, Attorney General, signers of
the ballot arguments against Proposition 188, and the Coalition, claiming the initiative's
ballot label, title, summary, ballot arguments, and Legislative Analyst's statement did
not present the public with nonprejudicial statements of the initiative's content and
potential effects. On August 12, 1994, the Superior Court ruled in favor of the defendants
and allowed the Voter Pamphlet to stand.
Despite the fact that the Public Media Center campaign did not support
or oppose Proposition 188, the center's attorney received an inquiry from a deputy
attorney general, investigating a complaint lodged against the California Wellness
Foundation for supporting the educational campaign.
(California Attorney General Dan Lungren had close ties to the tobacco industry and the
Dolphin Group, which managed his unsuccessful bid for governor in 1998.)
The deputy refused to specify who had lodged the complaint, but the Public Media Center
interpreted it as a clumsy attempt to intimidate us by tobacco industry
By presenting the facts in a clear way, this educational advertising
campaign focused media and public attention on the role of the tobacco industry in the
Proposition 188 campaign, which forced CSSR to abandon
its low-profile campaign strategy. CSSR supplemented its direct mail with broadcast
advertising using formats almost identical to those of the Public Media Center, with the
same visual presentation and voice-over techniques, but presenting only arguments in favor
of Proposition 188 and urging a yes vote. The Public Media Center sued
in federal court, requesting that the copycat ads be taken off the air. The judge granted
the Public Media Center's request, but later that same evening an appellate court stayed
the restraining order, citing infringement of free political speech.
Despite the loss in appellate court, the legal challenge to the copycat ad was well
documented in the media, bringing attention to CSSR and the tobacco industry's role in
Another CSSR advertisement, which featured middle school vice principal
Nancy Frick claiming that Proposition 188 would benefit children, backfired in the last
week of October. (Frick's husband had appeared in one of CSSR mailings.)
The Coalition sharply criticized the advertisement, emphasizing the industry's deceptive
practices. Two days later, the Coalition persuaded Frick to
retract her comments and widely distributed the retraction, in which she stated that she
was unaware Proposition 188 would overturn 300 local laws.[134-136]
She also demanded that the advertisements be taken off the air.
The Federal Communications Commission
ANR decided to use the truth-in-advertising provisions of the Federal
Communications Act to force the tobacco industry to clearly disclose its sponsorship of
Proposition 188 in radio and television advertisements. ANR reasoned that requiring
disclosure of tobacco industry funding would reduce the effectiveness of the Yes on 188
advertisements, and perhaps even make them counterproductive. ANR had used a similar
tactic successfully during the Proposition P campaign in San Francisco in 1983 (see
chapter 2). On October 20 ANR sought help from the Media Access Project, a nonprofit
telecommunications law firm in Washington, DC. Since CSSR had
filed with the California secretary of state as Californians for Statewide
Smoking Restrictions ”Yes on 188, a committee of Hotels, Restaurants, Philip Morris,
Inc. and other tobacco companies, as required by California law, the Media Access
Project believed the Federal Communications Commission (FCC) would likely agree that all
CSSR's advertisements should reveal the entire committee name.
On October 21 ANR informed all radio broadcasters running CSSR's
advertising that their failure to reveal CSSR's complete legal name at the end of all
commercials was in violation of FCC regulations and that unless the advertisements were
corrected by October 24, ANR would file a complaint against the station with the FCC. Many stations immediately changed the commercials.
On October 25 ANR filed a complaint with the FCC against several stations who had refused
to comply. In addition to forcing many stations to change the
Yes on 188 advertisements, the controversy surrounding the FCC complaints focused the
media on Proposition 188.
ANR's actions took place the same day that the Coalition held a press
conference unveiling its Koop advertisement, with the hope of generating free media
attention. (At that point the Coalition still did not have money to purchase air time to
run the advertisements.) Although the other Coalition members failed at first to see the
value of the ANR strategy, once the complaint proved useful, they cooperated with ANR. Ten
days later the Coalition joined ANR in a new complaint to the FCC against television
broadcasters who refused to modify CSSR's advertisements to disclose the tobacco
companies' involvement. On November 1 the FCC made an informal
determination that proper disclosure after CSSR's commercials should include the
information about tobacco industry sponsorship.
By November 2, 1994, the tobacco industry's tracking polls showed that
Proposition 188 was losing, along with these findings:
As voters become more aware of the initiative's sponsorship, they tend
to become opposed to Proposition 188.
We have learned the opposition has doubled their air time purchase for
the remainder of the campaign using Wellness Foundation money.
We have targeted mailings, television and radio spots dropping during
the next three to five days. Unpaid media continues to be manageable, but the infusion of
Proposition 99 ads and Wellness Foundation funded ads are responsible for the shift in
On November 8, Proposition 188 was defeated by a vote of 71 percent
against to 29 percent for ”the widest spread of any measure on the ballot.
Thirty-eight percent of the people who voted against Proposition 188 stated that they did
so to protect smoke-free public places, and another 22 percent voted against it because it
was sponsored by the tobacco industry. Seventeen percent of
the people who voted for the initiative did so because they still felt it was an
anti-smoking measure. Proposition 188 lost in every county in California, liberal and
and rural. As Philip Morris's overwhelming defeat at the polls demonstrated, tobacco
control had become a popular issue that cut across all demographic, geographic, and party
lines. According to Peter Hanauer, one of the original tobacco control activists from the
Proposition 5 campaign of 1978, That was the icing on the cake in terms of
showing the extent to which the tobacco industry had fallen out of favor. 
AB 13 was implemented on January 1, 1995. Restrictions on smoking in
bars were to take effect January 1, 1997. The following year the tobacco industry
convinced the Legislature to delay the smoke-free bar provision until January 1, 1998; the
public health groups, who thought that the state was not ready for smoke-free bars at the
time, put up only token opposition. In the fall of 1997 the tobacco industry tried to
delay the effective date again. This time the health groups mobilized and beat the
industry. Senate president pro tem Bill Lockyer shifted sides and helped the health groups
defeat the tobacco industry. On January 1, 1998, all bars in California became smoke free.
In California 1994 was a busy year for tobacco control. By bringing
together business, labor, local government, and health organizations, Friedman and the AB
13 support coalition successfully transformed public sentiment against smoking into
statewide legislation that the tobacco industry did not like. The voluntary health
agencies disseminated information about the adverse health effects of secondhand smoke,
the CRA helped dispel fears that state smoking restrictions would hurt the restaurant
business, and the League of Cities lent support to arguments that the bill would not limit
the power of local governments to pass stricter restrictions than those contained in the
bill. The coalition prevented the tobacco industry from taking control of the bill and
passing a blatantly pro-industry version in the guise of tobacco control.
However, there was no consensus among California's tobacco control
advocates on whether it was acceptable to compromise on preemption. Tobacco control
advocates in Sacramento viewed the preemption clause in AB 13 as an acceptable compromise
because of its 100 percent smoke-free mandate. They did not consider players outside
Sacramento relevant, an attitude that damaged efforts to build support in the field for
state-level legislative efforts. When asked about the disagreement within the California
tobacco control movement over AB 13, a representative
of the ACS's Sacramento Public Issues Office responded, Organizations that
are interested in tobacco control and have Sacramento-based lobbying offices were in
agreement, and worked together regarding AB 13. 
In 1994 the tobacco industry was nearly successful in tricking
California voters into repealing their own tobacco control laws. If the tobacco industry
had been able to maintain its original strategy of a stealth campaign, its effort might
well have succeeded. By limiting itself to direct mail, the industry would have stayed
within a medium where it could control the message and deprive the health community of a
platform. However, once the industry was forced out into the more public realm of
mainstream advertising, it lost control over the public discourse about Proposition 188.
The Proposition 188 battle reunified tobacco control advocates as they
put the fights over AB 13 behind them. According to one LLA director, The
whole process of that [AB 13] was real divisive. You know, we had members on our coalition
who were saying, `No, this is great and although it's not perfect, it's better to have
something than nothing.' And it's like, `But is it good to have something that's a piece
of trash? That's going to eliminate ever doing anything better?' ¦Huge arguments. Once it
finally passed and then Prop 188 came along, it was interesting, everybody sort of banded
back together in the fight against Philip Morris.  California's
tobacco control community was able to unify against and defeat Philip Morris.
But the passage of AB 13 and defeat of Proposition 188 significantly
distracted the health groups from the fight to reauthorize the Proposition 99 programs.
The legislation authorizing expenditure of Proposition 99 funds expired on June 30, 1994,
at the height of the AB 13 debate and shortly after Proposition 188 had qualified for the
ballot. AB 13, in particular, dominated the tobacco control agenda in California, draining
the resources of health groups and commanding attention by the press and public. So in what was a critical year for Proposition 99, its chief
defenders were largely occupied elsewhere, which did not bode well for reauthorization. In
addition, AB 13 and Proposition 188 would give the CMA and other medical groups cover for
diverting Health Education Account monies. Proposition 99 was destined for another hard
year in the Legislature.
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137. Sohn G. Interview with Heather
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