8. The Tobacco
The organizational and program design barriers faced by Proposition
99's Tobacco Control Program would have been hard for any new program to overcome. But,
unlike traditional public health programs that involve attacking bacteria or viruses,
tobacco control advocates were dealing with an intelligent and rapidly evolving adversary
”the tobacco industry. Far from sitting quietly while the new program was put in
place, the tobacco industry undertook a major effort to dissect the program, to identify
its strengths and weaknesses, and to shift money away from its strengths. The tobacco
companies appreciated the importance and effectiveness of two parts of the California
program ”the media campaign and the local health department programs ”well
before the health groups had convincing evidence that these programs worked. The industry
was not worried about how the schools were spending their Proposition 99 money.
The Industry and the Media Campaign
In the first authorizing legislation (AB 75), the tobacco industry
tried to prevent any of the education money from being spent on an anti-tobacco media
campaign. They hired dozens of lobbyists to kill off the media campaign, but failed
because their effort was so obvious and heavy-handed. They would not make this mistake
again; future efforts against the media campaign would be conducted through
After the media campaign hit the airwaves on April 10, 1990, the
tobacco companies complained loudly in the press that the advertisements were tasteless
and a waste of money and that they were political rather than
educational. According to the Los Angeles Times,
They pitched Prop. 99 as: `We want to reach under-aged children.
We want to educate children to the purported health effects of smoking,' said Thomas
Lauria, a spokesman for the Tobacco Institute, a Washington-based industry group ¦ .
He said he had not seen the state's anti-smoking ads and that industry
leaders would view the ads before deciding whether to respond further.
But, he said: These ads sound like they are trying to lay
the groundwork for a next phase of a political agenda, which is to ban advertising from
cigarette companies. These people are on a long march toward prohibition of tobacco. 
The Tobacco Institute briefly considered a lawsuit to stop the
media campaign and consulted with both Covington and Burling (its law firm in Washington,
DC) and California legal counsel. But the institute decided that a lawsuit against the
media campaign would be a tactical error and that there is no basis for a suit
which would have a realistic chance of success.  Within RJ
Reynolds, H. E. Osmon put it more bluntly: I believe that we should take no
overt legal action. It increases the rhetoric, sustains the story, and, if we lose, it
would be a major embarrassment.  The institute had also
considered a counteradvertising campaign but rejected it: If the industry
attempts to meet the Department of Health Services head on in the media, the controversy
is likely to shift from the advertisements to the industry. 
On April 11, 1990, the day after the media campaign started in
California, Samuel D. Chilcote, Jr., president of the Tobacco Institute in Washington, DC,
sent a memo to his executive committee, with copies of the Industry Spokesmen
ad and the other broadcast and print advertisements attached, describing the
Tobacco Institute's three-pronged approach for dealing with the California campaign:
(1) Encourage California legislative leaders to intervene, (2) Through
third party allies, attempt to convince Health Services head [Ken] Kizer to either
pull or modify the current advertisements, (3) Encourage the Governor to intervene against
the current advertisements (emphasis added). Using
sympathetic legislators to attack the funding and content of the media campaign while
pressuring the administration to channel the campaign into messages acceptable to the
industry would remain the industry's strategy against the media campaign throughout the
history of Proposition 99.
Chilcote went on to describe the tobacco industry's legislative
efforts to eliminate the media campaign by putting the Proposition 99 funds to other
acceptable uses. While acknowledging the loss on AB 75, he was clearly
anticipating the next battle over authorization as another opportunity to shut down the
media campaign, working with the industry's allies who wanted to see the money going to
Despite Herculean efforts [on AB 75], our goal of completely
eliminating the media dedication was not met. But through our work, the media component
was sliced to $14.3 million for fiscal year 1989-90. Another $14.3 million is allocated
for fiscal year 1990-91, for a total to date of $28.6 million.
The industry has been approached by representatives of county
governments, as well as physician groups, expressing an interest in working with us so
that they may receive monies that are currently earmarked to the media
education campaign. These avenues continue to be explored with the California
State Association of Counties and the California Medical Association.
Chilcote described the tobacco industry's efforts to line up
opposition to the advertisements in the minority community: The black and
Hispanic communities also are upset because very few Prop 99 dollars have found their way
to the poor in the form of new health services. A substantial amount of the Prop 99
revenues are being use [sic] to `replace' previous state funding from other
The industry was also planning to conduct its own focus group research
in order to support our position that the advertisements are more propaganda
than information.  There was, in fact, a chance that people
would not consider the advertising as education. The innovative nature
of the California media campaign was based on the recognition that merely providing
information about health-compromising behaviors did little to reduce smoking. Heavily
promoted by the industry as attractive, glamorous, and necessary for social acceptance,
smoking had to be shown instead as a deadly, addictive habit foisted on people by a
cynical industry with seemingly endless amounts of money to spend on lying about its
product. The campaign was thus designed to unmarket smoking rather than
inform people about the health effects of smoking, which traditional health educators
thought an education campaign was supposed to do. If the industry could
demonstrate that the public did not see the advertisements as educational,
then it might have additional ammunition to take to the Legislature.
On April 18, 1990, Chilcote sent another, more detailed memo to members
of his Executive Committee providing a further update on
our efforts to deal with the anti-smoking advertising campaign in California.  By this time, Kurt L. Malmgren, the Tobacco Institute's senior vice
president for state activities, had added a fourth part to its earlier strategy for
dealing with the media campaign: Cooperate with minority, business and other
groups in developing their opposition to the advertising program. 
On the Tobacco Institute's list of options, this tactic became second only to working with
the legislative leadership.
In the week between these two memos, the Tobacco Institute realized that
Kizer of DHS would fight to protect the campaign and that Governor George Deukmejian,
while not agreeing with the specifics of the campaign, would back him up:
After analysis from our California team, it is clear that our efforts
should center on the first two strategies [the Legislature and other groups], with the
hope that these efforts can have some effect on the other two strategies.
The reasons for this approach are (1) Dr. Kizer is not likely to pull or
modify the advertisements without strong pressure from the Administration; (2) as a
lame duck, the Governor is not likely to get into a public sparring match with
Dr. Kizer, even though he disagrees with the Department of Health Services' attack
approach with the anti-tobacco advertisement.
Seeing little chance of success with the Deukmejian administration,
the industry decided to concentrate its efforts on getting the Legislature to eliminate
funding for the media campaign.
By April 18, the industry had made more than one hundred contacts about
diverting money away from the media campaign and was already working to create a
focused coalition willing to take the lead in an effort to end funding for media
from Prop 99 taxes and redirect it elsewhere.  In addition to
the county supervisors and the California Medical Association (CMA), this coalition was to
include the black and Hispanic communities, the Western Center for Law and Poverty, the
Asian community, hospital groups, and business groups. According to Malmgren,
Intelligence to date shows a range of reasons why these groups are ill
at ease and concerned with the advertising campaign. Black concerns, for example, vary
from resentment at the denigrating nature of the advertisements, to concern that Prop 99
dollars are not being channeled to pressing health care needs for minority groups, to the
fact that Prop 99 media dollars are not being funneled to black-owned media. ¦
The doctor and hospital segment appears to believe the media funds
would be better spent to pay medical costs. [emphasis added]
On May 3, New York-based KRC Research delivered a public opinion survey
regarding the media campaign to Covington and Burling,
followed on May 18 by a qualitative study of the advertisements.
The survey was based on a questionnaire administered between April 26 and 29, just two
weeks after the advertisements started. By then, 66 percent of California respondents were
already aware of the campaign, and 46 percent were aware of discussions about the
campaign. The Tobacco Control Section's plan to create some noise was clearly working.
Forty-five percent of respondents thought the campaign would help smokers stop and 70
percent thought it would be effective in stopping nonsmokers from starting. However, an
even larger share of respondents (83 percent) thought school-based smoking education
programs would be more effective than the ads. In addition, 74 percent said they would
rather see the money spent on health care for the poor than on the media campaign. There
was an even split, 43 percent to 43 percent, between those who thought the advertisements
were an appropriate use of state money and those who did not. KRC concluded,
To engage in a public debate over this advertising campaign (i.e.,
whether it is an appropriate use of state funds, and whether it will actually be an
effective deterrent to smoking) will most likely serve only to escalate the controversy.
We believe it will be more effective for the Tobacco Institute not to
engage in this battle, but rather to attempt to focus attention on the ways that people
would prefer to see state money spent in the pursuit of improved public health.
To this end, we believe that the questions we develop for use in Field's
California Poll should be designed to identify the types of health care and educational
programs that people believe will be more effective and that they would prefer to see
The Field California Poll is a widely regarded survey whose results
are always made public, regardless of who commissions the survey. The fact that the
industry did not pursue a Field California Poll suggests that it was uncertain of getting
the answers it wanted.
The qualitative analysis of the advertisements was based on a series of
eight focus groups. The report concluded,
The atmosphere in California appears to be rapidly evolving into an
anti-smoking environment. This reality is accepted by smokers and
advocated by non-smokers. Smokers believed that smoking is potentially harmful, yet
they cannot quit and cannot be forced to do so. However, they want their children to be
Neither smokers nor non-smokers voiced strong opposition to Proposition
99. They all empathized with people who could not afford healthcare, and supported making
it more accessible to the poor. There was general support for the $221 million education
campaign, and a mixed reaction (though only one or two respondents were strongly opposed)
to $28 million being spent on an anti-smoking media campaign.
As for the five commercials, they were perceived to have slight to no
impact on the marketplace. These ads will not change smokers' behavior. The ads do,
however, add to the general anti-smoking environment.
It is important to understand that the commercials' lack of appeal
was not based on the idea that government infringed on the rights of smokers. Rather,
opposition was based on the perception that these ads were not strong enough.
Respondents generally agreed that an effective non-smoking ad campaign
should be more medically informative and visually explicit. [emphasis in original]
The report was not encouraging to the tobacco industry, since it
suggested that the public wanted an even stronger anti-tobacco campaign.
On May 14 Walter N. Woodson, the Tobacco Institute's vice president of
state activities, wrote to Chilcote advising him that the industry was moving ahead with
efforts to shift the media money to specific service providers:
We are working with several groups who share our interest in having
the funds targeted to real health care concerns. Among them:
- California Health Foundation
- Black Health Network
- California Rural Counties Association
- California Hospital Association
- California Medical Association
- A just-formed, and as yet unnamed, confederation of most state minority health
By November, the Tobacco Institute seemed to be making some progress
in this strategy. A report noted that prompted by minority health groups such
as the Watts Health Foundation and the Black Health Network, two Democratic
legislators attempted to reopen the funding of the media program and dedicate
the funds to other programs benefitting their communities.  The
effort was stopped in a conference committee by Republicans who would not support the
effort without a promise of support to amend Proposition 98, which required that 40
percent of the state budget go to education. The Democrats refused to reopen Proposition
98, so this effort to divert the media campaign money died.
The industry strategy then focused on the 1991-1992 legislative session,
when a new piece of implementing legislation would be needed for
the Proposition 99 programs. The tobacco industry and its
allies would be working with Governor Pete Wilson and his new administration, which would
prove more sympathetic to the industry's positions.
It's the Law
While most local ordinance activity in California was concentrated on
clean indoor air at this time, there was also growing interest in passing local ordinances
that would make it harder to sell cigarettes and other tobacco products to children. In
response to this development, which was matched by a similar climate in other states for
reducing youth access to tobacco products, the Tobacco Institute developed
It's the Law. This program provided stickers that merchants could post to warn
consumers that it was illegal to sell cigarettes to children. It was designed to head off
laws that could impose meaningful enforcement provisions or penalties on retailers or
By 1991, the tobacco industry was actively planning ways to use its
youth initiative to undermine Proposition 99. Philip Morris intended to
introduce legislation in several states to address sales penalties and vending machine
restrictions in terms that were acceptable to the company.
Despite its ostensible goal, however, the program had nothing to do with decreasing the
youth smoking rate: The ultimate means for determining the success of this
program will be: (1) A reduction in legislation introduced and passed restricting or
banning our sales and marketing activities; (2) Passage of legislation favorable to the
industry; (3) Greater support from business, parent and teacher groups. 
Although the tobacco industry claimed to have designed the program to promote
our objectives in preventing youth smoking while protecting our sales and marketing
practices,  its main purpose was clearly the latter.
The youth strategy was an important aspect of undermining Proposition
99. In a December 21 memo. T. C. Harris of RJ Reynolds wrote, I believe that a
concentrated implementation of the Youth Non-Smoking Program is a critical component, as
it gives us a credible way to show that the Proposition is unnecessary, whether we
do it via advertisements or in negotiations (emphasis in original).
By 1991, the Tobacco Institute was also interested in how it could use the youth issue to
gain the ear of elected officials. In May, Walter Woodson of the Tobacco Institute, was
preparing a mailing to 6,000 California elected officials containing a press release on
the Tobacco Institute's youth smoking initiative and a press kit on It's the
Law. According to Woodson,
The industry is being hit hard at the local level in California this
year. We currently are facing more than forty local ordinances, many of which address more
than one issue. As might be expected, a number of these bills have been introduced under
the premise that youth have easy access to tobacco products. ¦Sending the youth
materials to all elected officials in the state may help to alleviate the surge of
introductions for the time being, and provide us with a vehicle to go in and meet with
some of the representatives there. Additionally, such a mailing could assist with efforts
to achieve broad distribution of the youth program throughout the state.
In other words, the purpose of the program was to head off legislation
restricting tobacco marketing.
The Industry and the Schools
In contrast to its reaction to the anti-tobacco media campaign, the
tobacco industry seemed satisfied with the school-based programs that the California
Department of Education (CDE) was running. Indeed, some schools were actually using
educational materials produced by the tobacco industry, even though these
materials were widely viewed by tobacco control advocates as subtly encouraging smoking.
CDE, unlike DHS, did not understand that the tobacco industry had to be treated as an
RJ Reynolds hired the consulting firm of Stratton, Reiter, Dupree &
Durante from Denver to provide a thorough analysis of the structure of TCS, CDE, and the
Proposition 99 anti-tobacco program. By April 1991, the firm
had concluded that the program in the schools did not threaten the industry and perhaps
represented an opportunity. In a memorandum summarizing his conversations with the firm's
Rick Reiter, Tim Hyde of RJ Reynolds wrote,
$72,000,000 [of the Health Education Account money] goes to the
Department of Education for K-12 classroom uses. The specific allocation of this money is
fairly straightforward. It is primarily being used for training and materials to be
included as a tobacco supplement to drug and AIDS curriculum. There are also a few odds
and ends, such as numerous tobacco-free contests and the like. Rick's
preliminary suggestion is for us to take advantage of the review-committee opportunity to
get industry personnel involved in the overall DOE decision-making process because the
goals of this program are consistent with our own views on youth smoking. [emphasis added]
The industry's consultants recognized the schools' lack of commitment
to doing something about tobacco with the new Proposition 99 money. The report comments,
Coincidently [sic], it wasn't until after passage of Prop 99
that CDE suddenly discovered tobacco prevention as being tantamount to promotion of
healthy lifestyles for children. In reviewing HKHC [Health Kids, Healthy California]
workshop materials developed prior to 1990, seemingly every health-related issue at the
school level was emphasized except tobacco. ¦With the recent discovery of tobacco
as a health threat came the discovery of a funding mechanism to supplement the newly
introduced HKHC comprehensive health program. This co-mingling effort of shared
resources suggests that CDE tobacco excise revenues are being used to supplement
activities related to drug and alcohol prevention and cessation. These two areas are the
priority health and safety concerns in the public schools.
The report was uncertain about the degree to which tobacco had, in
fact, become part of the schools' program and suggested that the cutbacks could
be of some relief to the industry; funds are being shifted to areas outside of the
Health Education Account, and CDE will continue spreading [the reduced allocation] among
drug and alcohol programs rather than tobacco exclusively.  The
chief threat posed by the schools, according to the report, was that schools had helped
frame the smoking issue as a health issue, which the tobacco industry had consistently
tried to avoid in California. When smoking was framed as a health issue, not one of
individual choice or taxation, the industry generally lost its political battles.
The tobacco industry had its own strategy for schools. It produced
curricula designed to educate kids about tobacco without clearly
discussing the health dangers of smoking or the fact that it killed adult smokers. RJ
Reynolds produced Right Decisions, Right Now ; the Tobacco Institute produced
Tobacco: Helping Youth Say No, originally entitled Helping
Youth Decide. Both packages were slickly produced and were free to schools. Rather
than presenting tobacco as a dangerous product that should be avoided by everyone, these
materials emphasized the choice to smoke and that smoking
was for adults. The industry justified their materials with the objective of
ensuring that minors receive support and education in regard to smoking being
an adult practice.  These messages are consistent with
traditional tobacco industry advertising themes ”that smoking makes kids look grown
up ”and even convey the notion that smoking is a desirable forbidden
fruit for youth.[15-17] The curriculum materials also seemed
to serve an important political purpose for the industry: they supported the argument that
there was no need for government to spend tax dollars to reduce smoking; the industry
would take care of everything.
In the early years of Proposition 99's Tobacco Control Program,
educators who should have known better contacted the tobacco companies and ordered some of
the industry's materials for use in the schools. In April 1992, two and a half years after
CDE began receiving Proposition 99 monies, Bill White (head of CDE's Tobacco Use
Prevention Education program) telephoned RJ Reynolds to ask about the Right
Decisions, Right Now program. H. E. Osman, to whom White had spoken, ran his
response by his superiors, given the sensitivity of sending anything to the
Prop 99 people. Osman's paranoia about White, however, was ill founded. A year
later, some of the Right Decisions, Right Now posters were decorating
the walls in the Healthy Kids, Healthy California office.
White was not the only person from the schools requesting these
materials. Schools all over the state requested copies of the tobacco industry's
educational materials, including one director of a Healthy Kids regional
The DHS anti-smoking advertising campaign clearly identified the
tobacco industry as a threat to the public health, and the industry reacted quickly and
vigorously to develop a political strategy to fight the media program. The industry
learned from its defeat in the AB 75 battle that it would have to stay in the shadows and
work through surrogates to fight the media campaign in the Legislature.
The schools did not threaten the industry. While some efforts to place
tobacco industry materials were rebuffed in schools, the CDE leadership showed little
commitment to anti-tobacco efforts. Many were even willing to cooperate with the industry
in distributing its curricula, despite the fact that this material was widely criticized
in the public health community. For the industry, the Proposition 99 programs in the
schools posed no threat and even presented an opportunity to advance its own legislative
strategy. Industry documents contained no strategy to kill off the schools program.
The media campaign and the local government programs were not so
fortunate. The fight against anti-tobacco efforts at the local level, in fact, became a
central piece of the industry strategy, one in which the industry would invest substantial
time and money.
1. Roan S. State to launch anti-smoking
ad campaign . Los Angeles Times 1990 April 10;A1.
2. Malmgren KL. Memorandum to
Samuel D. Chilcote, Jr. April 18, 1990 . Bates No. TIMN 298437/298420W.
3. Osmon HE. Memo to W. E.
Ainsworth and R. L. Mozingo. April 12, 1990 . Bates No. 50760 3741/3742.
4. Chilcote SDJ. Memorandum to the
members of the Executive Committee. April 11, 1990 . Bates No. TIMN 423498/423504.
5. KRC Research. Memo to Stanley
Temko, Covington & Burling, re: California quantitative research. New York: KRC
Research & Consulting. May 3, 1990 . Bates No. TIMN 355366/355370.
6. KRC Research. Qualitative
research report: Reaction to California's Proposition 99 and its 1990 anti-smoking media
campaign. New York: KRC Research & Consulting, 1990 May. Bates No. TIMN
7. Woodson WN. Memo to Samuel D.
Chilcote, Jr., re: California advertising situation. May 14, 1990 . Bates No. TIMN
8. Tobacco Institute (?).
California anti-tobacco advertising program. November 1, 1990 . Bates No.
9. Slavitt JJ. Memo to Pat
Tricorache re: TI youth initiative. February 12, 1991 . Bates No. 2500082629.
10. Slavitt JJ. Memo to William I.
Campbell. March 1991 . Bates No. 2500082631/2634.
11. Harris TC. Memorandum to T. N.
Hyde re: Planning meeting on impending Prop 99 efforts. December 20,
1991 . Bates No. 51199 9020x.
12. Woodson W. Memorandum to Marty
Gleason. May 13, 1991 . Bates No. TIMN 378297.
13. Stratton, Reiter, Dupree & Durante.
Report to R. J. Reynolds Tobacco on the Tobacco Control Plan, State of
California. Denver, June 14, 1991. Bates No. 51319 3999/4061.
14. Hyde T. Memo to Tommy Griscom,
Tom Ogburn, Roger Mozingo, Jim O'Mally, and Mark Smith, re: Stratton & Reiter's
California research project. April 4, 1991 . Bates No. 50777 7860/7863.
15. DiFranza JR, Godshall WT.
Tobacco industry efforts hindering enforcement of the ban on tobacco sales to
minors: Actions speak louder than words . Tobacco Control 1996;5(2):127-131.
16. DiFranza JR, Savageau JA, Aisquith BF.
Youth access to tobacco: The effects of age, gender, vending machine locks,
and It's the Law programs . Am J Pub Health
17. DeBon M, Klesges RC.
Adolescents' perceptions about smoking prevention strategies: A comparison of the
programmes of the American Lung Association and the Tobacco Institute . Tobacco
18. Tobacco Institute. Order form
for Helping Youth. Washington, DC, 1993, Bates No. TIMN