The nonsmokers' rights movement was growing and having some significant legislative successes. In 1973 the Arizona Legislature ended smoking in elevators, libraries, theaters, museums, concert halls, and buses. In 1975 Minnesota mandated separate smoking areas in restaurants, meeting rooms, and workplaces, in addition to the types of restrictions put in place in Arizona.^[3] The Minnesota law was the last time that clean indoor air legislation would pass without vigorous opposition from the tobacco industry.

The Berkeley Ordinance

In the spring of 1973, lawyer and legal editor Peter Hanauer went to a meeting of Berkeley GASP after his wife saw a meeting notice on a community bulletin board. Hanauer recalled,  œIt was a fairly ineffective group at the time. I mean, we were busy grinding out leaflets and trying to get a few new members here and there. ^[4] While there were thoughts about some greater level of activism ”two of the founders, Irene and Dave Peterson, had created a foundation to provide legal representation to people who were affected by secondhand smoke in the workplace ”not much happened until they were joined by Paul Loveday, a former professional basketball player turned lawyer. Loveday brought a clear vision and strong leadership to the group and soon became president of GASP. The aggressive Loveday and studious Hanauer, who was elected treasurer, were the  œodd couple   that became the backbone of the nonsmokers' rights movement in California.

Encouraged by the Minnesota Clean Indoor Air Act, GASP, led by Loveday, Hanauer, and Tim Moder, a chemist who turned his home into the group's headquarters,^[3] decided to persuade the Berkeley City Council to pass an ordinance restricting smoking in public indoor spaces and requiring separate sections for smokers and nonsmokers in restaurants. Although they wanted a statewide law, they knew there was little chance of success without some preliminary steps. Passing a local law would show that nonsmoking sections were possible and would give them some experience in writing legislation. The proposed ordinance was introduced in the Berkeley City Council in April 1976.

After a year-long campaign, which included numerous city council meetings as well as meetings with restauranteurs and local merchants, the Berkeley City Council passed the ordinance by a 9-0 vote in April 1977. The Berkeley victory illustrated an important lesson for Hanauer:  œAt the local level, as we discovered over the years, we could beat the tobacco industry, because their lobbyists could not defeat grassroots organizations who had the ears of their neighbors and friends who were on the city council. ^[4]

Proposition 5

Their Berkeley success encouraged Loveday and Hanauer to try to get the California Legislature to pass a state clean indoor air law. The tobacco industry, having learned its lesson in Minnesota, vigorously and successfully blocked GASP's attempt to replicate the Minnesota Clean Indoor Air Act in California. The bill did not even get out of committee.

After failing in the legislature, Loveday and Hanauer decided to take the issue directly to the voters through California's initiative process. The initiative, known as the California Clean Indoor Air Act, made smoking illegal in all public places unless they were specifically exempted. It required that partitions be erected in offices and public places, including restaurants, to separate smokers and nonsmokers. Violators were to be fined fifty dollars. In an effort to write an enforceable and reasonable law, Loveday and Hanauer included some exemptions, such as tobacco shops. Since the drug laws were not being enforced at rock concerts, they exempted rock concerts. This exemption, while reasonable from an intellectual point of view, was to become a major issue in the campaign. The idea of protecting nonsmokers from secondhand smoke was popular; polls (including those commissioned by the tobacco industry) showed support by a 3-1 margin.

Putting a proposed law before California voters as a statutory initiative requires proponents to collect valid signatures of 5 percent of the number who voted in the previous gubernatorial election,^[5] which meant collecting 300,000 signatures in 1977. While most initiative campaigns rely on paid signature gatherers, the Proposition 5 advocates did not have that luxury because they had very little money. Moder became the paid campaign coordinator, working out of his house with his own printing press. By using campaign workers who were almost all volunteers, advocates qualified the initiative at a cost of only $50,000, the least amount of money per signature ever spent to qualify a statewide initiative.^[4] The initiative appeared on the November 1978 ballot as Proposition 5.

Loveday and Hanauer formed a new organization to run the campaign, Californians for Clean Indoor Air. While nominally a coalition of many health and environmental groups, GASP provided the backbone of support. Loveday and Hanauer approached the voluntary health agencies for support, expecting them to be enthusiastic, but came away disappointed. Only the American Cancer Society (ACS) expressed interest in the initiative, and that interest was tempered. According to Hanauer,

We did get the ear of Ray Weisberg, who was then the chair of the Public Affairs Committee of the California Cancer Society. He agreed with us ¦that the way to really get smoking reduced was to make it socially unacceptable. This was our whole rationale. We not only felt that eliminating smoking in

public places and the workplace was good for nonsmokers but that it also reduced smoking in the long run. Of course, the tobacco industry agreed with us. We wished some of the health agencies had agreed with us as much as the industry did. It took a long time. The Cancer Society came around mainly because of Ray Weisberg, but the other agencies at that time were very slow in responding and gave sort of token support.^[4]

The voluntary health agencies, particularly the ACS in California, supported the campaign with some money but were not heavily involved in collecting signatures or conducting the campaign. Weisberg also convinced the California Medical Association (CMA) and the American Lung Association (ALA) to support the initiative, which made Proposition 5 appear more mainstream. The CMA put its name on the letterhead but, according to Hanauer,  œwouldn't lift a finger during the whole campaign. ^[4] The CMA sent the  œYes on Prop 5  campaign a seven-dollar invoice for some photocopying it had done for the campaign, which Hanauer refused to pay.^[4]

In addition to Weisberg, the other important recruit to the campaign was Stanton Glantz, an assistant professor of medicine at the University of California at San Francisco. Glantz, a Ph.D. in applied mechanics and engineering economics, conducted research on the function of the heart and was an expert in statistics. Glantz, who combined a background in political activism with his scientific training, would serve as the campaign's technical expert. Unlike some scientists, he was willing to do public battle with the tobacco industry.

The Tobacco Industry Joins the Battle

The tobacco industry mobilized against Proposition 5 before it was even written. According to Ernest Pepples, vice president for law at Brown and Williamson Tobacco, the industry began planning its strategy

before the terms of Proposition 5 were even known or concepts to combat it had been developed. Because of the early start a California Action Plan was presented to the chief executive officers [of the tobacco companies] within three weeks of the time the sponsors filed their  œClean Indoor Air Act  initiative and its provisions became known for the first time. That Action Plan became the basic blue print of the campaign concepts, strategy, organization and tactics for the entire campaign to defeat Proposition 5. The Tobacco Institute made Jack Kelly a full time employee ”he had been the paid executive of California's tobacco distributors group ”to devote all his efforts to the campaign.^[6]

The framing of the Proposition 5 debate was important to the tobacco industry, which wanted to avoid health issues and nonsmokers' rights to clean air. The industry's preferred framing was that voters should fight off government intrusion. Jim Stockdale of Philip Morris commented on the rights question:

What troubles me is the danger of having the issue defined at the onset the way our opponents would like it to be defined, namely smoker vs. non-smoker. Our strategy should put us on the offensive.  ¦Will the anti-smoking groups attempt to polarize the electorate into two groups ”smokers vs. non-smokers ”or will they attempt to broaden their appeal by coopting the individual rights argument (i.e., a non-smoker has an inalienable right to breathe  œclean air )? We should have strategies for either situation. We have to clarify the thrust the campaign should take. The message should be to vote  œno  to further governmental encroachment on individual rights.^[7]

Using this thrust, the industry hoped to broaden its base of support to include groups such as Libertarians. The call to fight off government intrusion would persist for the next twenty years in the industry's battles over clean indoor air policies.

Ed Grefe, vice president for public affairs at Philip Morris, became actively involved in the Proposition 5 campaign and specifically blocked any mention of the health issue. According to Grefe,  œthe biggest argument I had internally throughout the entire campaign was to convince the other companies to keep their mouths shut about the health issue. They would say, `Shouldn't we put out a little brochure?' I said, `Forget it, we want no goddamn brochure on the health question. We can't win on the health question. We'll lose.' Legally, they could fight and win on the health question, they'd been doing it for years, but politically they couldn't. It's no use bucking public opinion. ^[8]

The industry, recognizing from its own polling that it had virtually no public credibility, decided to act through a nominally independent campaign committee known as Californians for Common Sense (CCS). Even though CCS was created, financed, and controlled by the tobacco companies through a closely coordinated effort, CCS attempted to minimize and even hide its industry connections. The industry wanted the public to believe that CCS was a group of concerned California citizens. As a result, several important guiding principles were established to keep the profile of the tobacco industry as low as possible. As Ernest Pepples of Brown and Williamson wrote in a secret Campaign Report,

• All campaign functions would be operated through the citizens committee, Californians for Common Sense.
• Tobacco company visibility would be confined to financial contributions to CCS. There would be no attempt to disclaim or discount the amount of tobacco contributions.
• Tobacco company personnel would not make campaign appearances, occupy campaign positions or make public statements relative to the campaign.
• No campaign events, programs or advertising would be directed to college campuses, specifically, or to youth in general.^[6]

Although Pepples stated that there would be  œno attempt to disclaim or discount the amount of tobacco contributions,  the tobacco industry kept a low profile during the campaign, and campaign spokesmen denied the industry's financial role until legally required campaign disclosure statements proved the industry was financing the campaign. On one occasion, CCS issued a press release that misstated tobacco industry contributions to the campaign by leaving out $300,000 of in-kind campaign contributions. As in all similar campaigns everywhere since, more than 99 percent of the money came from the tobacco industry.

In spite of the prominent role given to CCS, however, the tobacco companies maintained tight control of CCS activities from behind the scenes. As Pepples noted in his Campaign Report,

A group of 5 tobacco company representatives consisting of Jim Dowdell who was succeeded by Charles Tucker from RJR, Ed Grefe from Philip Morris, Arthur Stevens from Lorillard, Joe Greer from Liggett & Myers and Ernest Pepples from B&W kept in constant contact with the operation of CCS. Visits were made at least once a month by the group to the CCS headquarters in both San Francisco and Los Angeles. Also frequent telephone conferences were held between Woodward & McDowell [the firm hired to manage the campaign] and the five company people. During the final month of the campaign, almost daily conferences were held by telephone including Woodward & McDowell and Jack Kelly together with Lance Tarrance [the tobacco industry's pollster] in Houston conferring with the five company representatives.^[6]

This tight control by the tobacco companies stood in sharp contrast with the industry's public position during the campaign: that Proposition 5 was a local California matter and that Californians for Common Sense was a campaign organization established by local citizens as a free-standing, autonomous organization. The industry's actual control also contrasted sharply with that of the national voluntary health organizations, which treated Proposition 5 as a local California matter and stayed out.

By the end of the campaign, Proposition 5's proponents had raised and spent $633,465, an amount dwarfed by the tobacco companies' $6.4 million ”divided among the companies in proportion to their shares of the cigarette market. The justification for this level of spending was simple in terms of protecting industry sales. Pepples did the math:

If it is assumed that the passage of Proposition 5 would have caused a decline in volume of just one cigarette per California smoker per day, the chart attached to this letter shows the industry would have suffered an after tax loss equal to $5.9 million in the first year. On that basis, it can be said that the industry will recover its  œinvestment  [i.e., the $6.4 million spent to defeat Proposition 5] over a period of one year. If it is assumed that the passage of Proposition 5 would have caused a decline of 2 cigarettes per day per smoker, then the industry can expect to recover the $5.9 million expense in only 6 months.

California represents about 10% of the population of the United States or 20 million people. California is regarded as a trendsetter and theoretically if Proposition 5 had passed it would have had an impact on sales elsewhere in the United States.^[9] [emphasis added]

The spending by the tobacco industry exceeded the combined expenditures of both candidates for governor and for many years remained a record for election spending in California.

The $43 Million Claim

The alleged high cost of implementing the initiative was one of the tobacco industry's key themes in its campaign against Proposition 5. In the previous election of June 1978, California voters had passed Proposition 13, which slashed property taxes and started the  œtaxpayers' revolt,  and the issue of government waste was high on the public agenda. For months the tobacco industry's campaign hammered the claim that Proposition 5 would cost taxpayers $43 million to implement.

Proposition 5 proponents challenged this claim in letters to television and radio stations in early September, shortly after the tobacco industry began its massive advertising campaign against the initiative, asserting that the advertisements were  œfalse and misleading.  (Proponents argued that Proposition 5 would actually save money by reducing smoking and the associated costs.) The stations ignored this challenge. A couple of weeks later, someone leaked three important documents to the Yes on 5 campaign: a planning poll that Houston-based pollster V. Lance Tarrance and Associates had conducted for CCS in December 1977 and two reports presenting cost estimates for implementing Proposition 5 that provided the basis for the industry's advertising claims. These documents revealed yet another instance of the industry saying whatever it thought necessary to sway the public. The Tarrance poll in fact showed strong support for the idea of clean indoor air among all segments of California voters and tested the arguments that the industry was considering for its campaign to defeat the initiative. None of these arguments moved the voters save one: cost to taxpayers.

The pollster asked people three questions about how they would vote, depending on what the initiative would cost taxpayers to implement.^[10] The initiative gathered a landslide 71.2 percent  œyes  vote if it cost $0.5 million to implement. The margin of victory dropped substantially if the initiative cost taxpayers $5 million to implement; only 53.6 percent said they would vote   œyes.  If the initiative cost $20 million to implement, the   œyes  vote fell to 41.4 percent and the industry won. The tobacco industry then hired the consulting firm of Economic Research Associates (ERA), which produced a report claiming Proposition 5 would cost taxpayers $19.7 million to post No Smoking signs in state buildings.^[11] ERA produced a second report stating that enforcement would cost another $23 million, bringing the total alleged cost to $43 million, twice the amount that the tobacco industry needed to push voters toward a   œno  vote.^[12]

To obtain the $19.7 million cost estimate, ERA assumed that No Smoking signs would cost $27.50 each, even though hardware stores were selling them for less than $1.00. ERA made an even more fundamental error: they got the arithmetic wrong. In estimating the number of No Smoking signs that would be needed, ERA calculated the total square footage of office space in state buildings and then multiplied the square root of the office area by 4 to obtain an estimate of the number of linear feet of office walls in state buildings (it was assumed that signs would be placed at regular intervals). But the square root of 207.2 million square feet was miscalculated as 14.4 million feet whereas it should have been 14.4 thousand feet. Thus, even using the industry's own methods and $27.50 signs, the report overestimated the cost of signs by a factor of 1000. Simply correcting the arithmetic error brought the industry's cost estimate down to $19,700.

Loveday and Glantz thought they had caught the industry in a major scandal. They had the poll showing that a high cost claim was necessary to defeat the initiative and they had a flawed report that seemed designed to justify the number that the tobacco industry needed. On September, 19, 1977, they held press conferences in Los Angeles and Sacramento exposing the poll and the arithmetic error. Unfortunately, few members

of the press understood what a square root was. According to Loveday,  œWhat was really funny; I mean you look back on it and you say, `God this was so aggravating, so frustrating.' The press didn't understand the math. Stan would try to explain at a press conference what had happened and that the press just couldn't ¦they didn't know a square root from a cigarette.  ¦You can discover something like that but getting to the public with that information through the press when the tobacco industry is spending $6 million.  ¦It was a pretty uphill battle. ^[13]

Even when the initiative's supporters thought they had a winning issue, the industry quickly recovered. On the way home from their press conference announcing the mistake, Loveday and Glantz heard a radio advertisement ridiculing the lower number. As Grefe observed,  œAll that square root stuff? The error is irrelevant. The whole strategy is to put the other person on the defensive. If I say, `It'll cost a billion dollars' and you say, `No, it'll only cost a million,' you've lost, you're dead. ^[8]

Even though the industry was successful in framing the election fight as a cost issue at this point, it continued to worry that the health issue could appear. According to Pepples,

Lance Tarrance's organization kept a close watch on the effect of the pro-5 advertising. If other people's smoke became a dominant issue in the closing days of the campaign, we had an alternate ad campaign which was prepared and kept in the can in case it was needed. It had been tested in Madison, Wisconsin. It was based on work done by BBD&O [Batten, Barton, Durstine, and Osborne, an advertising firm with longstanding tobacco accounts]. The testing at Madison showed no perceptible improvement in attitudes about  œother people's smoke,  but it seemed to be bombproof.^[6]

The industry never needed these advertisements because Proposition 5's supporters never succeeded in getting the campaign focused on health issues. In the end, the tobacco industry defeated Proposition 5, with 54 percent voting  œno.  

The Postmortem

The extent and intensity of the industry's efforts surprised Proposition 5's proponents. As Hanauer explained,

I think we weren't prepared psychologically or politically for what hit us. I mean we were a bit naive in those days. We were just a bunch of citizens trying to get clear indoor air and who could be against that? If people want to smoke, they can wait and go outside. What's the big deal? We heard the first tobacco industry ads on the radio against us, months and months in advance.

They started advertising even before we qualified for the ballot.  ¦They wanted to get the public questioning what we were doing as early as possible.  ¦We laughed at the ads ¦we were naive in terms of just how sophisticated the industry really was and how they could turn the public against what the public had thought was a good idea.^[4]

Proposition 5 did have some vulnerabilities that made it open to attack by the industry. In particular, the specific exceptions to the requirement that public places provide nonsmoking sections were ridiculed by the industry. For example, rock concerts, professional bowling and wrestling matches, pool halls, and gaming halls were exempted. The tobacco industry latched onto this distinction in a biting series of radio advertisements ridiculing the initiative.

Even in defeat Loveday believed that something had been accomplished. He observed,  œPrior to Proposition 5, people who were concerned about nonsmokers' rights were looked on as real kooks; maybe you'd read something about it on the 42nd page. That's not true anymore; it's a very respectable issue. We have now gotten the point that people's cigarette smoke is harmful to the nonsmokers. And I think we've laid the groundwork where we can have something like this passed in the future in California and other places. ^[13] Indeed, since strategists for the tobacco industry knew that people did not approve of secondhand smoke, the campaign against Proposition 5 had to acknowledge that secondhand smoke was bad while claiming that Proposition 5 was worse. Pepples acknowledged the industry's vulnerability in California:   œAfter election surveys show that 71% of the electorate say they would support `some regulation' of smoking in public places. ^[6] In the process of defeating Proposition 5, however, the tobacco industry ran the largest public awareness campaign on secondhand smoke the world had ever seen.

While the tobacco industry did what it had to do to win, there were limits to the strategies it would pursue. Attacking the Legislature could have helped defeat the initiative, but this strategy was rejected because the industry was worried about offending its defenders in the Legislature, where it had historically been well protected. According to Pepples,

Woodward & McDowell very much wanted to carry a theme in the advertising which was a parody on the legislature. The opinion surveys indicated that the voters currently hold the legislature in very low esteem. The proponents had begun to respond to our original message that this was a bad law, poorly drafted. They conceded that it had some flaws but said not to worry, the legislature will take care of any flaw by amendment. Woodward &

McDowell, therefore, urged a direct attack on the legislature to take advantage of the negative voter attitudes toward the legislature and to crowd the proponents into a corner. The companies differed in their reaction but after internal discussion, it was agreed that the tobacco industry must live with the California legislature for years to come and should not damage its relations by supporting advertising which made fun of the legislature.^[6]

This caution proved to be a wise move, since the California Legislature consistently supported the tobacco industry on a wide range of issues over the years, in particular with regard to diverting Proposition 99 funds away from tobacco control. As always, the tobacco industry was thinking in the long term.

Loveday would get a chance to try again in just two years, when he, Hanauer, and their compatriots presented California's voters with Proposition 10.

Proposition 10

After the defeat of Proposition 5 in November 1978, its key proponents were exhausted, even though many supporters were urging them to try again. A few months after the Proposition 5 defeat, Glantz and his wife, Marsha, had dinner with Loveday and the inevitable subject of a second attempt came up. Loveday responded,  œAre you nuts? I'm going to go out and make some money!  Two weeks later, Loveday called Glantz and asked him if he would join a new effort to try another statewide initiative.

What happened?

In the June 1978 election, California voters had overwhelmingly passed Proposition 13, the Jarvis-Gann Initiative, which drastically cut property taxes, despite the fact that most of the state's political and business establishment opposed it. The campaign to pass Proposition 13 was managed by a relatively new political consulting firm named Butcher-Forde.

A major electoral victory naturally attracts attention to a consulting firm, even if the victory is on a comparatively easy issue, such as getting people to vote to cut their own taxes. But Butcher-Forde also attracted attention within the California political community for the innovative way in which it managed and financed the campaign to qualify and pass Proposition 13. Rather than relying on volunteer or paid circulators to gather the necessary signatures along with a separate fund-raising campaign, Butcher-Forde combined these two operations. They ran a large direct mail campaign in which they sent petitions to prospective supporters with a request that they sign the petitions (and ask a few friends to sign), then return the signed petitions together with a donation. Thus, rather than costing money to collect the necessary signatures, the process of collecting the signatures became a fund-raising device. In the process, Butcher-Forde built a mailing list of supporters that could be sent subsequent fund-raising appeals to finance the election campaign. And, of course, Butcher-Forde took a commission on every piece of direct mail that was sent.

After winning Proposition 13, William Butcher and Arnold Forde were looking for another campaign to manage. Based on polling, they identified clean indoor air as a popular issue with the voters. They approached Loveday and Hanauer with a proposal that Butcher-Forde manage a campaign for a new clean indoor air initiative. Loveday and Hanauer would write the initiative and serve as spokesmen and Butcher-Forde would do the rest. They would raise the money, qualify the initiative, and run a winning campaign. It all seemed so easy.

Hanauer and Loveday drafted a new initiative, cleaning up some of the problems with Proposition 5 and calling it the Smoking and No Smoking Sections Initiative. The new initiative did not distinguish between rock and jazz concerts, eliminated the need for partitions, limited what government could spend on signs, provided for citations for violators, and gave nonsmokers fewer protections than Proposition 5 would have. Californians for Clean Indoor Air was renamed Californians for Smoking and No Smoking Sections to run the campaign, coalition partners were recruited, and the effort for a new initiative was formally started on August 24, 1979.

Unfortunately, Butcher-Forde found that getting people to give money to support clean indoor air was not as easy as getting them to support cutting their own taxes. The consulting firm dumped Californians for Smoking and No Smoking Sections two months into the signature drive. According to Hanauer,

[Butcher-Forde] started organizing these fund-raising letter campaigns. They discovered early on what we had discovered during Prop 5, that this is not a pocketbook issue for people. That there are a lot of people who say,  œYes, we're with you,  but if you get $10 out of them, you're lucky.  ¦By the time we were halfway through the signature drive, the two of them came up to wine and dine Paul and me at a dinner at the airport, basically to kiss us off and say,  œI guess you realize this is not a pocketbook issue and there's no way we can continue on this because we're losing our shirts.  And we were happy to get rid of them because we didn't like them.^[4]

Butcher-Forde's departure was a problem for tobacco control advocates, however. It was one thing to run a campaign and be defeated at the polls by a multimillion dollar advertising blitz from the tobacco industry. It was quite another to sponsor an initiative that did not even qualify for the ballot. Advocates felt that they could not back away from the initiative campaign.

Loveday, Hanauer, and their colleagues began a frantic effort to mobilize the old grassroots network and raise money. In the end, they managed to collect the necessary signatures, thanks in part to the opening of the Star Wars sequel, The Empire Strikes Back. The film was immensely popular and attracted long lines. Volunteers worked the lines to collect signatures. On June 26, 1980, the initiative qualified for the November 1980 ballot as Proposition 10.

The tobacco industry started detailed planning to defeat Proposition 10 well before it qualified for the ballot. On February 25, 1980, the tobacco industry's polling firm, Tarrance and Associates, presented a detailed analysis of Proposition 10, showing some changes in voter attitudes since 1978. According to the company's analysis,   œThese data suggest a strong feeling of `fair' play and equal rights on the side of the anti-smokers that has not been apparent in previous campaigns. ^[14] Proposition 10 had the early support of 72 percent of the voters, up from the 68 percent that Proposition 5 had at the same time, primarily because nonsmokers felt that they had a right to clean indoor air. The report warned the industry that its successful campaign against Proposition 5  œdid not lessen the public's desire for smoking regulation, it only convinced the public that Proposition 5 was a bad law  (emphasis in original).^[14]

Tarrance and Associates suggested that Proposition 10 was more popular than Proposition 5 because it appeared to insure equal rights for smokers and nonsmokers and it lacked specifics about place, time, and enforcement methods. The report recommended these primary campaign themes to oppose the initiative: the ambiguity of the law and the power it would give to bureaucrats, the inequality of the bill because it gave preferential treatment to nonsmokers, the waste of police resources, the outrageousness of the fine, the adequacy of current law, and the undesirability of government intrusion in private lives.

The tobacco industry hired Robert Nelson and Eileen Padberg of the political consulting firm of Robert Nelson and Associates to run the campaign. Nelson incorporated Californians Against Regulatory Excess (CARE) on June 12, 1980, to serve as the front group to run the

campaign. They then proceeded to recruit some prominent Californians to serve on the CARE's board of directors.^[15] The fact that the campaign manager recruited the board (rather than the other way around) underscored the fact that the board was mere window dressing. Indeed, before the board ever held a formal meeting, Nelson had retained the advertising agency Woodward, McDowell & Larson, the same agency that had run the campaign against Proposition 5, to develop and run CARE's ads against Proposition 10.

While the tobacco industry's money bought them victory in 1978 in the Proposition 5 campaign, their spending started to hurt them toward the end of the campaign. Mervyn Field, head of the nonpartisan Field Institute, which conducts the California Poll, observed two years later:  œAnother negative aspect to disproportionately heavy advertising is that it becomes an issue in itself. For example, with Proposition 5, the fact that the tobacco industry was spending as much money as it was to defeat it, became an issue. There was a sort of a counter trend in the closing days of the campaign. If the tobacco industry had spent a couple more million dollars, it might have lost the election  (emphasis added).^[16] Aware that the tobacco industry and its money had become an issue in the Proposition 5 campaign, CARE attempted to minimize tobacco industry involvement in the Proposition 10 campaign, despite the fact that the organization was established by and for the tobacco industry. On August 15, 1980, CARE distributed a letter stating,  œCost prohibits the No on 10 campaign from using media. ^[17] In September 1980, when an interviewer from the Los Angeles Times asked Padberg,  œDo you need the cigarette companies to fight this measure?  Padberg responded,  œWe could do it without them. It certainly would be a lot easier with them. But we could do it without them. ^[18] In the end, the tobacco companies delayed their major advertising blitz until the weeks just before the election, pouring a relatively restrained $2.7 million into the CARE campaign against Proposition 10.

Although proponents of the initiative spent $707,678, it was not enough money to overcome the industry's saturation advertising. The voters rejected Proposition 10 by the same margin ”54 percent  œno,  46 percent  œyes   ”as they had Proposition 5 two years earlier.

Going Local

In December 1980, a month after losing the Proposition 10 election, Loveday, Hanauer, Glantz, Weisberg, and Chuck Mawson (a volunteer who had kept an industry   œlook-alike  bill bottled up in the state legislature during the Proposition 10 fight) got together in Hanauer's living room in the Berkeley hills to decide what to do next. After suffering their second defeat in a statewide initiative, they decided that it was time to change tactics. The Legislature was clearly under the thumb of the tobacco industry and, while the public supported the idea of clean indoor air, the nonsmokers' rights advocates recognized that they could not raise the money needed to counter effectively the tobacco industry's advertising campaigns against a state initiative. On the other hand, they knew from both polling and personal experience that the public supported clean indoor air.

They decided to work on local ordinances because the one clear success they could point to was the Berkeley local clean indoor air ordinance. They decided to focus the limited resources of the nonsmokers' rights advocates on one community at a time. They reasoned that, while the tobacco industry would almost certainly oppose every ordinance, their campaign contributions, lobbyists, and massive advertising campaigns would not work as effectively as well-organized residents who knew the members of the city council and favored the ordinance. To raise money, advocates decided to use the mailing list that had been developed during the campaigns for Propositions 5 and 10. Ray Weisberg promised to seek seed money from the American Cancer Society, and Chuck Mawson quit his job as a computer salesman to work full time on the effort, together with the campaign's part-time bookkeeper, Bobbie Jacobson. The campaign organization was renamed Californians for Nonsmokers' Rights (CNR), and the nonsmokers' rights movement entered a new phase.

Seven months later, on July 15, 1981, the first local clean indoor air ordinance was enacted when the city council of Ukiah, a small town 150 miles north of San Francisco, adopted an ordinance that was essentially identical to Proposition 10. Over the next three years, CNR continued to identify and work with local activists throughout California, and by May 1983 twenty-one cities or counties had passed local clean indoor air ordinances. CNR's local ordinance strategy was working.

The San Francisco Ordinance

Quentin Kopp, a powerful member of the San Francisco Board of Supervisors, had supported Proposition 5, and Hanauer knew him personally. Hanauer had approached Kopp on several occasions about the possibility of carrying a San Francisco ordinance, and in 1983 Kopp agreed to introduce a comprehensive clean indoor air ordinance for public places and workplaces. But before he could introduce his ordinance, another supervisor, Wendy Nelder, surprised everyone by announcing that she was going to introduce an ordinance limited to workplaces.

A week later Hanauer was on San Francisco radio station KCBS discussing smoking issues in general and CNR specifically, along with Michael Eriksen, who was in charge of health issues for Pacific Bell. (Eriksen subsequently became head of the federal Office on Smoking and Health at the Centers for Disease Control and Prevention.) Hanauer mentioned that CNR was working on a San Francisco ordinance without giving details. Nelder was angry that Hanauer had not mentioned her name and let him know that she wanted nothing to do with him or CNR. CNR was placed in the awkward position of working for an ordinance whose principal sponsor would not talk to the organization's members. Despite the personality problems and vigorous opposition from the tobacco industry, the Board of Supervisors passed Nelder's workplace smoking ordinance by a vote of 10-1 on May 31, 1983. San Francisco became the twenty-second locality in California to enact a clean indoor air ordinance when Mayor Dianne Feinstein signed it into law on June 3, 1983.

The ordinance required that all workplaces have policies on smoking that accommodated the needs of smokers and nonsmokers. If an accommodation acceptable to the nonsmoker could not be found, however, the work area would have to be smoke free. Using language suggested by the Bank of America, the ordinance gave flexibility to employers but established the right to a smoke-free environment for employees.

While the San Francisco ordinance was neither the first nor the strongest, it attracted national and international media attention.

The Tobacco Industry's Counterattack

On June 14, 1983, less than two weeks after Feinstein signed the ordinance, several people who described themselves as a  œgroup of union leaders and small businessmen  announced that they were organizing a petition campaign to overturn the ordinance at the polls the following November.^[19] The group was nominally chaired by Jim Foster, a gay political activist and founder of San Francisco's Alice B. Toklas Democratic Club. The Chamber of Commerce announced that it was supporting the effort to overturn the ordinance, reversing an earlier agreement with

CNR to support the measure.^[4] The campaign against the San Francisco Workplace Ordinance was initially called Californians Against Government Intrusion, but the name was changed to San Franciscans Against Government Intrusion (SFAGI), possibly because the acronym of the original name was pronounced   œcagey. ^[20] The group had until July 1 (thirty days from the date of passage) to collect 19,000 valid signatures for suspending the law and forcing a referendum on the November ballot. David Looman, a political consultant and SFAGI committee member, said,  œThe tobacco industry has been asked for contributions, but no money has been received from any tobacco firm yet. ^[19]

The industry provided a substantial war chest ”over a million dollars ”and hired Nelson-Padberg Consulting (Eileen Padberg had been promoted to a full partnership with Robert Nelson since they had directed the Proposition 10 campaign) to run the San Francisco campaign. Over half the initial budget of $1,046,000, as of July 12, was for advertising, including direct mail, radio, and television. The money that the industry put into the campaign was only part of the effort; the cigarette companies planned to reach smokers with cigarette carton inserts or stickers and point-of-sale materials.^[21] As the Nelson-Padberg campaign plan makes clear, Foster and SFAGI had very little to do with decision making for the actual campaign, all of which had been planned in July 1983.^[22][23]

In order to collect over 19,000 valid signatures in the two weeks remaining before the July 1 deadline, the tobacco industry hired the Southern California firm of Bader and Associates to collect over 40,000 signatures.^[24] The industry's use of paid signature-gatherers, at a cost of $40,000, made it difficult to hide the fact that the tobacco industry was financing the repeal effort.

For activists who had been involved in the campaigns for Propositions 5 and 10, the pattern over the next five months was predictable from previous industry behavior. A campaign manager would be hired to create a  œgrassroots   organization. The industry would then pretend that this organization was independent, vigorously denying industry involvement. In fact, the campaign would be funded by the industry and managed by the firm it had hired. When the campaign finance laws finally required disclosure of the fact that virtually all the money came from the tobacco companies, the anti-ordinance campaign would continue to assert that they were just   œinterested citizens  who approached the benign tobacco industry for help. As the tobacco industry has always

done, the campaign against the ordinance would avoid discussing health dangers of secondhand smoke and focus instead on the costs of enforcement and the issue of government intrusion.^[20]

Tobacco Control Advocates Mobilize

While irritated with Nelder, ordinance proponents immediately mobilized to defend the ordinance at the polls. At a meeting in Weisberg's home in San Francisco's Seacliff district, Weisberg, Loveday, Hanauer, Glantz, and others decided to create a new independent political committee to raise the funds to run a Yes on Proposition P campaign to defend the ordinance. Since Hanauer and Loveday lived outside San Francisco and Glantz, a San Francisco resident, was president of CNR, none of them seemed an appropriate chair for the campaign. Weisberg accepted the chairmanship of the effort and pledged to use his connections with the ACS to obtain $15,000 to get the campaign off the ground. The San Francisco Lung Association also contributed $7,500. CNR committed its mailing list for fund-raising purposes, even though everyone recognized that diverting donations away from CNR would create severe financial problems.

From the beginning, the theme of local control was the centerpiece of the campaign to uphold the ordinance. On August 17 the proponents held a press

conference on the steps of the San Francisco City Hall to announce formation of their campaign organization, San Franciscans for Local Control; Weisberg explained that the law   œis to protect the health of people who live and work in San Francisco.   ¦Our concern is the public welfare of San Francisco and the integrity of its legislative process. The tobacco companies' only concern is to sell more cigarettes. ^[25] The group hired Ken Masterton to manage the campaign and opened an office in San Francisco's Castro district.

Nelson-Padberg pointed out to the tobacco industry that  œthe campaign will be closely watched by major cities throughout America, and the conduct of the campaign ”as well as the elections' results ”will have major implications to attempts to adopt similar ordinances in other municipalities. ^[23] Tobacco control advocates thought it was remarkable that the tobacco industry considered the San Francisco ordinance so important; as a result, they also viewed the fight as nationally significant.

That summer, when Glantz and Hanauer attended the World Conference on Smoking or Health in Winnipeg, Canada, they found a strong interest in the outcome of the Proposition P fight. Many tobacco control advocates offered suggestions on how to win the campaign, to which Glantz responded,  œWe don't need ideas, we need money. If we raise $150,000, we'll win, if we raise $100,000, we'll lose. 

The Proposition P Campaign

Polls showed that Proposition P was leading by a 2-1 margin at the beginning of the campaign, but in the face of the industry attack, the margin narrowed. The industry's strategy was based on its success in previous campaigns. According to Nelson-Padberg's planning document of July 1983, the aim was to convince voters that the ordinance was  œunnecessary, unworkable, or costly. ^[23]

The first objective of the Nelson-Padberg campaign was to secure a list of voters from the most recent election ”an effort to recall Mayor Dianne Feinstein because of her support for gun control ”and to sort them by approximately one hundred variables. A phone canvas of likely voters was planned to identify those opposed to the ordinance; these voters would then receive a thank-you letter and an application for an absentee ballot. Undecided voters were to get a  œgentle push  argument as well as intensive direct mail advertising. Nelson-Padberg planned for twenty paid people to work five shifts for sixty working days to accomplish the phone screen. The telephone canvas, which eventually reached 65,000 voter households, formed the basis for the industry's direct mail campaign, which was concentrated on likely voters, the relatively conservative western part of San Francisco, blacks, and gays.^[26] The focus on the gay community was clear from the hiring of Foster and from the industry's effort early in the campaign to raise the fear that Proposition P would set a precedent that would be used to discriminate against people with AIDS.^[20]

To make it difficult for Proposition P supporters to air their ads, Nelson-Padberg planned to delay its radio and television advertising until the final four weeks before the election. Unlike the tobacco industry with its essentially unlimited resources, the Yes on P committee had little money. While the proposition's supporters hoped to buy some television and radio advertising, they expected to get most of their advertising space for free under the Federal Communications Commission (FCC)'s Fairness Doctrine. In 1983 the FCC still required that electronic media fairly present both sides of controversial issues. Since the passage of

Proposition P was obviously controversial, once the No side began running paid advertisements, the Yes side could approach the television and radio stations and ask for free time to respond. Nelson-Padberg recognized this possibility:  œEarlier advertising would only stimulate additional Fairness Doctrine opportunities for our opponents, expose our advertising strategy to long scrutiny, and is not necessary due to the high voter awareness pre-existing the campaign. ^[23]

Exposing the tobacco industry's backing of the No on P campaign was the central thrust of the ordinance supporters. They attacked the industry at every turn and sought to capitalize on public distrust of the tobacco industry. They also made a concerted effort to reduce the effectiveness of the No on P advertising by forcing the television and radio stations that were broadcasting the advertisements to disclose the real sponsor ”the tobacco industry, not San Franciscans Against Government Intrusion. The Federal Communications Act requires that advertisements identify the true sponsor, and the advertisements against Proposition P listed only San Franciscans Against Governmental Intrusion as the sponsor, with no mention of the tobacco industry. Volunteer lawyers, including Loveday, pulled together extensive documentation that the industry was really paying for the advertisements. They argued that it was the stations (not the sponsors) who were responsible for seeing that the  œtag lines  on the advertisements identified the true sponsors. At a press conference Loveday and others announced that they were sending formal letters to all radio and television stations running the No on P advertisements to demand that the tag lines be changed to  œPaid for by the tobacco industry ; they threatened to file complaints with the FCC against stations that refused.

A few days later, the NBC affiliates in San Francisco ”KRON television and KNBR radio ”required that the No on P campaign clarify the tag line in its ads to indicate tobacco industry involvement.^[20] Rather than adding an oral tag line saying that the campaign was paid for by the tobacco industry, the industry pulled its advertisements off KNBR, one of the largest radio stations in San Francisco. After threatening to sue the stations, the industry decided to acquiesce on the television advertisements and changed the visual tag line to get them back on the air (visual tag lines are not as prominent as oral ones).^[26] Even if other stations did not respond directly to the pressure to correct the tag lines, raising the issue had helped highlight the tobacco industry's efforts to hide its political activities.

Nelson-Padberg recognized the effectiveness of the Yes on P strategy surrounding the tag lines:

Californians for Nonsmokers Rights did an excellent job of urging television stations to give them free television advertising time. Additionally, they were able to convince KRON-TV that the station should require our campaign to identify our advertising as having been  œpaid for by San Franciscans Against Government Intrusion which is financially supported by companies in the tobacco industry.  This requirement by KRON-TV stimulated extensive discussion by other television stations, radio stations, and daily newspapers in the city. In fact, this action by KRON served as a kind of a catalyst to the  œmoney  issue, driving this issue into very sharp focus in the final days preceding the election.^[26]

The favored campaign theme of the proponents got an important shot in the arm just three weeks before the election.

The Yes on P forces, having learned from the Proposition 5 and 10 campaigns to make the tobacco industry the issue, managed to maintain a consistent message throughout with the central theme  œTell the Tobacco Industry to Butt Out of San Francisco.  Working with a small advertising agency run by Edgar Spizel, they prepared two television advertisements making this point. One advertisement involved several well-known San Francisco politicians and other figures of varying political persuasions; they all agreed on one thing ”that the tobacco industry should butt out of San Francisco politics. The other, which won an Addy award, showed a cowboy on horseback riding up a San Francisco street and urging people to tell the tobacco companies to  œbutt out  and  œvote yes on P. 

While the Yes on P forces believed from the beginning that they had a real chance to win because an election contest against the tobacco industry in San Francisco would take less money than one throughout the entire state, they grew increasingly frustrated by the way city politicians were allowing personalities to interfere in running an effective campaign. According to Hanauer,

It was very exciting because we knew we were in the race this time. The polls showed that we had a good chance, that we weren't losing ground rapidly like we had in the other two campaigns. And we had support that we didn't have before, both editorially and [among] some business people. What we didn't have was Wendy Nelder's assistance.  ¦She wanted to run her own campaign. She insisted on making her own television spots. They were atrocious. They were the epitome of the bad talking head ¦ œPlease vote `yes' on P because I say so.  ¦She was driving everybody crazy.   ¦And we kept trying to persuade her,  œDon't waste your money on these, as we have this wonderful advertising campaign. 

She had her heart in the right place. She was genuinely concerned about secondhand smoke, but she didn't know much about the health issue. And she didn't know the politics of tobacco.^[4]

Quentin Kopp, who had a substantial constituency, was another source of frustration because of his reluctance to back a Nelder ordinance.^[4] San Franciscans for Local Control wanted to use Kopp's name on a flyer being mailed to the Sunset district, the conservative neighborhood (at least by local standards) in western San Francisco where Kopp lived and his name would carry weight. Kopp refused, even though he supported the ordinance.

On November 3, 1983, six days before the election, Tarrance and Associates reported that Proposition P was still on the way to passing: 50 percent planned to vote  œyes,  38 percent  œno,  and 12 percent was undecided. The Tarrance report added,  œOn the YES side, there are three main arguments: non-smokers' rights, health hazard, annoyance/irritation. Not only do these three messages hold together well, they are unanswerable and seem to be dominating the campaign. ^[27] Even before the election results were known, the tobacco companies were beginning to worry about the fallout. On November 4, 1983, Gene Ainsworth of RJ Reynolds forwarded the Tarrance poll to Ed Horrigan (an RJR executive), with this comment:

Passage of the tough Workplace Smoking Ordinance in San Francisco, with all its attendant press coverage, will trigger a rush to pass similar legislation in many areas of the nation ”especially in California. In light of these probable developments the industry needs to consider, on a priority basis, the preparation of a Model Ordinance ¦as a  œstop-gap  measure which can be used if the situation in any particular area gets out of control.  ¦The long term counter to San Francisco type legislation is the implementation of an effective industry program to address the issue.^[28] [emphasis added]

The win in San Francisco was not only national but international news. ABC's Nightline devoted its election-evening program to the Proposition P victory, and CBS's 60 Minutes did a segment on the campaign. The margin of victory was narrow ”1,259 votes ”but it was a victory nonetheless and it set the stage for other localities to pass ordinances.

Lessons from the Proposition P Campaign

The early and prominent role of the industry turned out to be an important election issue. In analyzing their loss, a Nelson-Padberg report concluded,

œIf signatures could have been gathered through volunteers, that would have delayed the issue and perhaps prevented it from ever becoming central. If money could have been raised from non-tobacco interests in the city of San Francisco, that would have prevented it from becoming a key issue; or if some other issue could have been made more important to reporters, that might have shifted or softened the focus, perhaps preventing the money issue from being so critical later in the campaign. ^[26] Tobacco control advocates had learned how to frame the issue as one of outside interference by the tobacco industry.

in one city and county went a lot further than a half a million statewide. ^[4]

The report on Proposition P prepared by V. Lance Tarrance outlined for the industry three of its key problems. First, the tobacco industry's involvement was not a strong reason for people to vote for the proposition, but the amount of money spent by the industry was. According to Tarrance,  œFuture campaigns should work to minimize this issue. ^[27] When respondents were asked to evaluate the industry campaign contributions, 52 percent disapproved and 27 percent approved, compared with 45 percent and 37 percent, respectively, during the Proposition 5 campaign in 1978. The campaign contribution issue was becoming a more salient one for voters. Second, the health effects of secondhand smoke were considered a serious threat. Again, comparing the two elections, the report found that in 1983 59 percent thought secondhand smoke was harmful, up from 49 percent in 1978. Third, the message that people should be allowed to work things out themselves did not get through to people as effectively as the government intervention issue did, and the  œaccommodation  message might have been a more powerful argument in converting votes.

Among specific voter subgroups, the gay vote was   œdisappointing.  In early polling gays were one group who appeared to be prepared to vote against the proposition, but in the end their voting pattern was virtually identical to those of other groups. This fact particularly pleased the Yes on P forces, for they perceived the tobacco industry concentrating on winning the gay vote.

In 1991, when the Tobacco Institute drafted a report titled   œCalifornia: A Multifaceted Plan to Address the Negative Environment, ^[29] the passage of Proposition P was listed as the first   œimportant event  among those that had raised the level of acceptability of smoking restrictions. Hanauer could agree with the industry on this point:   œThis was a landmark. I've always said that this was the whole key to the national nonsmokers' rights movement. If we had lost Prop P, it would have set us back ten years or more. ^[4] In 1989 the US Surgeon General's report Reducing the Health Consequences of Smoking: Twenty-Five Years of Progress identified the San Francisco victory as a stimulus to further ordinance activity.^[30]

Conclusion

Passing local ordinances rapidly became the preferred strategy for tobacco control advocates; at the local level they were able to neutralize the

industry's power and portray the industry as  œoutsiders.  Local grassroots advocates were a powerful voice.^[30] In 1984 CNR changed its name to Americans for Nonsmokers' Rights and formally began working to spread the local ordinance strategy nationwide. By the end of 1986, 112 California cities and counties (of 192 nationwide) had enacted tough worksite ordinances of their own; by October 1988, this number had grown to 158 in California (and 289 nationwide).

The tobacco industry also recognized the power of the local ordinance movement. In a 1986 speech, Raymond Pritchard, chairman of the board of Brown and Williamson Tobacco, explicitly recognized this fact:

Our record in defeating state smoking restrictions has been reasonably good. Unfortunately, our record with respect to local measures ”that is cities and counties across the country ”has been somewhat less encouraging. San Francisco provides a stark example of what this industry and its customers can face at the local level. We must somehow do a better job than we have in the past in getting our story told to city councils and county commissions. Over time we can lose the battle over smoking restrictions as decisively in bits and pieces ”at the local level ”as with state or federal measures.^[31] [emphasis added]

The defeats of Propositions 5 and 10 contributed in important ways to the California tobacco control movement. First, the campaigns educated voters about the dangers of secondhand smoke as well as the rights of nonsmokers to breathe clean indoor air. Second, the devious nature of the tobacco industry became also more recognized by politicians, the ordinary voter, and the media. Third, tobacco control activists learned how to be effective in the political process. Proposition P represented the first big public defeat that the tobacco industry had ever suffered, and it laid the foundation for Proposition 99.

Notes