Tobacco Documents Online

Tobacco Control in California Cities

We thank the following publications for permission to reproduce or adapt their copy- righted material: Journal of the American Medical Association (Appendices 0, R), Institute for Health Policy Studies, School of Medicine, University of California, San Francisco (Appendices L, M, N, P, Q). Fdited by 7'ed Fourkas Cover Design by Page Design Inc. Publication Design by Martinez/Hardy Design & Communication December 1992 This guidebook was developed with the support of the California Department of Health Services, Tobacco Control Section, under contract no. 90-10964 using ftuids generated by the passage of Proposition 99. © California Department of Health Services

• CAN SMOKI NG CONTROL ORDINANCES SAVE MONEY FOR BUSINESSES? Yes-whichisonereasonmoreandmore businesses prohibit smoking. Smoking damages the health of all employees, smokers and nonsmokers alike, and increases costs due to cleaning, absenteeism, tardiness, higher medical expenses and lost productivity. In fiscal year 1991, the economic cost of smoking to California businesses was $7.6 billion-for smokers alone. The figure is even higher if the impact on nonsmokers is added in, as detailed in Chapter 5. H OW DOES TH E TOBACCO I N DU STRY FIGHT LOCAL Historically,the ORDI NANCES? t y ha.~foc~sed its attention and its campaign funds on Congress and State Legislatures. But with the steady increase in local ordinances, atten- tion is shifting to the community level. The industry typically works behind the scenes, organizing and financing local groups to challenge ordinances. When all else fails, it turns to the courts. For details, see Chapter 11. WHY ENACT LOCAL ORDINANCES TO CONTROL SMOKING? WHY NOT STATE OR FEDERAL LAWS? Cities and countieshave taken the foreftont in the battle to reduce smoking. Smoking is a local health issue, and local constituents have strong feelings about it. State and federal lawmakers have not only been reluctant to adopt anti-smoking mea- sures, they often seem more interested in passing laws to preempt stiffer laws in local jurisdictions. For details, see Chapter 2. HowmanyCal ifornia cities have passed smok- ing pollution control measures? More than halfofCalifornia's 468 cities now have ordinances on the books which restrict smoking. The trend is toward measureswhich totally ban smoking in worksites and public places. A matrix in Appendix D provides comprehensive data on how individual cities in California control smoking. 51423 0250 ,J i • •

• 8. CONSTRUCTING A SMOKING POLLUTION CONTROL ORDINANCE ....................................................43 Elements of an ordinance ...................................................................................43 9. PUBLIC TESTIMONY AND REFERENDA .................................................47 Council study committees ..................................................................................47 Public hearings .................................................................................................. 47 Controversial issues ............................................................................................ 48 Referenda .................................................................................................... .....50 10. OTHER WAYS TO REDUCE TOBACCO USE ........................................... 53 California Smoke-Free Cities mini-grants ............................................................53 Long-term commitments ................................................................................... 57 Modest outside funding ..................................................................................... 59 A focus on youth ............................................................................................... 59 City employees .................................................................................................. 60 11. THE TOBACCO INDUSTRYS REACTION ............................................... 61 Industry supported groups .................................................................................62 Industry activities ..............................................................................................63 Other tactics .................................................................................................... .63 Common strategies ............................................................................................ 64 12. LEGAL PERSPECTIVES ............................................................................... 65 Constitutional issues .......................................................................................... 65 Federal legislation .............................................................................................. 66 California laws ..................................................................................................67 The workplace .................................................................................................. 69 13. FRAMING THE ISSUE ................................................................................71 Presenting the Issue ........................................................................................... 71 Press releases and personal contacts ..................................................................... 73 Press conferences and other approaches ...............................................................73 Gaining access to the media ...............................................................................74 14. MAKING HEALTHIER CHOICES EASIER CHOICES ...............................75 The "health" agenda ..........................................................................................75 Healthy choices .................................................................................................76 REFERENCES .................................................................................................... 77 • •

HOWARD RICE LIBRARY SAN FRAnICiqro JUN 3 0 '993 10 TOBACCO CONTROL IN CALIFORNIA CITIES: A GUIDE FORACTION 0 CALIFORNIA HEAITHY CITIES PROJECT IN PARTNERSHIP WITH LEAGUE OF CALIFORNIA CITIES AMERICANS FOR NONSMOKERS' RIGHTS HEAITH OFFICERS ASSOCIATION OF CALIFORNIA AND MANAGED BY THE WESTERN CONSORTIUM FOR PUBLIC HEALTH Ln r ~ N m N The Western Consortium for Public Health is a nonprofit corporation sponsored by the Schools of Public Health and Ln University Extensions, University of California at Berkeley and University of California at Los Angeles. The San Diego State University School of Public Health is an affiliate member.

Chapter One • The Health Risk • • • . Concentrations of environmental tobacco smoke indoors are in general directly proportional to the number of smokers, and inversely proportional to the ventilation rate. This means that if its concentration is not to increase, smoke must be removed by the ventilation system as fast as it is generated.  In a typical 1,000 square-foot office occupied by two smokers, a ventila- tion system has to move more than 4,000 cubic feet of air per minute per smoker to remove tobacco smoke particles as fast as they are generated.  The American Society of Heating, Refrigerating and Air Conditioning Engineers' Standard for Acceptable Indoor Air Quality (62-1981) currently recom- mends 5 cubic feet of outside air per minute per occupant in buildings where smoking is prohibited, and 20 cubic feet per minute in buildings where smoking is permitted.  Ventilation standards for tobacco smoke developed by the American Society of Heating, Refrigerating and Air Condi- tioning Engineers are not based on health. They are designed to reduce the offensive odor of tobacco smoke to an acceptable level for 80 percent of visitors to a building.  According to the National Re- search Council, a ventilation rate greater than 50 cubic feet of outside air per minute (2.5 times the current standard) is necessary just to make odor in smoking areas acceptable to more than 80 percent of adult smokers and nonsmokers combined. Levels satisfactory to 80 percent of nonsmokers have not been defined. 9 The Environmental Protection Agency and the National Institute on Occupational Safety and Health have both recommended that if smoking is permitted, the smoking area should be enclosed, separately ventilated and directly exhausted to the outside. Scientific evidence suggests that no reasonable amount of ventilation will eliminate environmental tobacco smoke from an enclosed area. At the same time, the Environmental Protection Agency recognizes no safe level of exposure to Class A carcinogens. Environmental tobacco smoke must be eliminated from enclosed areas to remove the health risk.

• TABLE OF CONTENTS Frequently Ask ed Qu estio ns About Smoking Pollution Control ........................... i - ii INTROI)UCT Overview .. California j Proposition California S About the p Acknowled ION ......... oins th 99 ... moke artner gemen ...... ....... e He ....... -Frec s ...... ts .... ...................................................................................... ........................................................................................ althy Cities movement ..................................................... ........................................................................................ Cities ............................................................................. ....................................................................................... ....................................................................................... ..1 ..1 ..1 .. 2 ..3 .. 3 ..4 1. THE HEA LTH RISK .................................................................................... .. 5 The danger s of en viron mental tobacco smoke ..................................................... .. 5 The facts sp eak fo r the mselves ............................................................................ .. 7 Ventilation is not the a nswer .............................................................................. ..8 • 2. TOBACCO CO NTR OL - A LOCAL ISSUE ............................................... 11 Why local a ction? ....... ................................................................................... .... 12 Barriers to s uccess ....... ................................................................................... .... 13 Preemption of loc al law s .................................................................................... 14 3. THREE CA SE S TUD IES ............................................................................... 15 I .odi's break throu gh ... ....................................................................................... 15 San Luis Ob ispo's smo ke-free bars ...................................................................... 19 Sacramento phase s in a ban ................................................................................ 21 4. THE WOR KPL ACE . ..................................................................................... 25 City govern ment as em ployer ............................................................................. 25 Workers' co mpen satio n costs ............................................................................. 26 Trends in th e wor kplac e ..................................................................................... 27 5. IMPACT O N B USIN ESS .............................................................................. 29 Costs of wo rkplac e smo king ............................................................................... 29 Restaurants: a spe cial c ase ................................................................................... 30 A final note ........ ........ ............................................................................. .......... 32 6. ACCESS F OR M INO RS ................................................................................ 35 Vending ma chine s ...... ....................................................................................... 36 Licensing m ercha nts ... ....................................................................................... 37 Banning fre e samp les .. ....................................................................................... 37 Ln Other appro aches ....... ................................................................................ ....... 37 ~-' ~ 7. ADVERTIS ING AND PROMOTION .......................................................... 39 u, Public trans portat ion .. ....................................................................................... 40 m Tobacco bill board s ..... ....................................................................................... 40 ~' ~ ~

Chapter Three • Three Case Studies • 0 had signed both petitions. The signature of a resident from the unincorporated area was invalid on the city petition, but acceptable on the county petition. On June 2, 1992, the voters of Sacramento County, by a 56 to 44 margin, upheld the County's smoking regulation. The tobacco industry outspent proponents of the measure by 30 to 1, but did not overcome the public's growing disdain for tobacco smoke. Leadership on the tobacco control issue came from city council member Lynn Robie. The political pressure she felt included a personal element: Robie is an enthusiastic booster of her local high school alma mater, and the ordinance would eliminate smoking at the bingo games from which school athletic programs received more than half their revenue. Following the successful implementa- tion of its comprehensive and restrictive smoking ordinance, the city passed an ordinance banning tobacco vending machines in the city limits. The clearest lessons of Sacramento's story are the importance of attention to the details of referendum procedures, the potential rewards of inter-departmental city-county teamwork and, once again, the decisive role of a single council member. Sacramento was also the first to demon- strate the political usefulness of a phase-in period, an approach now popular else- where. ~ ~ ~ N m N J W 23

T o b a c c o C o n t r o I i n C a I i f o r n i a C i t i e s • recommended at its February 19, 1991 meeting that ETS be identified as a toxic air contaminant. The Board said the docu- mented adverse health effects of ETS are greater than many of the compounds already identified as toxic air contaminants; and many substances in environmental tobacco smoke, such as benzene and vinyl chloride, are themselves classified as toxic air contaminants. The Environmental Protection Agency (EPA) estimates that about 467,000 tons of tobacco are burned indoors each year. Over a 16-hour day, the average smoker smokes about two cigarettes Environmental tobacco smoke is one of the most widespread and harmful indoor air pollutants-and the state Air Resources Board estimates Californians spend roughly 86 percent of their time indoors. per hour, spending about 10 minutes per cigarette. It takes only a few smokers to release a steady stream of environ- mental tobacco smoke into the indoor air 40 The first compre- hensive report on the health effects of environ- mental tobacco smoke was the 1986 Surgeon General's Report on the health consequences of involuntary smoking37 (See Appendix G). It concluded that:  involuntary smoking is a cause of disease, including lung cancer, in healthy nonsmokers;  children of parents who smoke, when compared to the children of non- smoking parents, have an increased frequency of respiratory infections, in- creased respiratory symptoms and reduced rates of increase in lung function as the lung matures; and  the simple separation of smokers and nonsmokers within the same air space may reduce but not eliminate the exposure of nonsmokers to environmental tobacco smoke. Also in 1986, the National Research Council reported that nonsmokers who live with smokers suffer a 30 percent higher incidence of lung cancer than those living with nonsmokers.22 Since 1986 the evi- dence on the harmful effect of environmen- tal tobacco smoke has continued to mount:  In 1990, the Environmental Protection Agency recommended that tobacco smoke be classified as a Class A carcinogen, joining a list which includes such substances as benzene and asbestos.41  By 1990, research was also suggest- ing that nonsmokers who grew up with parents who smoked have twice the risk of lung cancer as nonsmokers whose parents did not."  A 1991 University of California, San Francisco study concluded that passive smoking takes 53,000 American lives a year from heart disease and cancer, making it the third leading cause of preventable death in the United States behind active smoking and alcohol related deaths.14  In the first official government statement on the dangers of workplace cigarette smoke, the National Institute for Occupational Safety and Health concluded in its June 1991 report that "all available preventive measures should be used to minimize occupational exposure."Z' (See Appendix I.) According to the EPA's May 1992 draft report, "Respiratory Effects of Passive Smoking: Lung Cancer and Other Disor- ders," the following are just some of the effects of smoking on nonsmokers: 12 51423 0251 6 •

T o b a c c o C o n t r o I i n C a I i f o r n i a C i t i e s • to quietly pass a tobacco control measure and as California's first 100 percent smoke- free restaurant ordinance, it became a milestone on the road to a smoke-free California. City leaders were committed to increasing public awareness of the hazards of both smoking and environmental Lodi's experience signaled an end to any attempt to quietly pass a tobacco control measure and as California's first 100 percent smoke- free restaurant ordinance, it became a milestone on the road to a smoke-free California. tobacco smoke. In 1992, the city prepared a grant application and received a California Smoke-Free Cities mini-grant (see chapter 10 for more details). Lodi's example offers several lessons. One lesson is familiar to decision makers: the role of opportunity in the development of public policy. Policy is seldom a rational conclusion to a set of events or constitu- ent pressures, especially in an area that at least initially is of little local public interest. A second lesson is that each city's tobacco control campaign will reflect its own particular ideals. In Lodi, the success of the local smoking ordinance was based on the popularity of the mayor, the notoriety of the TUFF leader, the mixing of tobacco regulation with other local campaign issues and, perhaps, the limited appeal of health information. The emphasis by TUFF on perceived democratic values is a theme that will be seen elsewhere. The position that smoking is an expression of individual rights guaranteed by the first Amendment is encouraged by the tobacco industry. Characterizing smoking as a right and an expression of freedom of choice, has popular appeal and superficially seems consistent with the first Amendment guarantee to freedom of expression. Legally, however, smoking is not a first Amendment issue and a major responsibility of govern- ment is to protect the public health. Ironically, the theme of ordinance support- ers also appealed to democratic values: home rule and local pride, and the right of a community to maintain its independence despite outside influence. The experience in Lodi suggests that professional help may be useful if a public vote becomes necessary. Supporters stress the importance of that professional assis- tance. "You need a consultant to get tobacco control. There will be opposition from the tobacco industry anywhere. You must have an organized effort. They do and they have money." At the same time, the campaign was costly and some supporters felt the consultant was an unnecessary expense. Since enactment of the ordinance, enforcement problems have been minimal. TUFF attributed the failure of a local restaurant to the smoking ordinance, but the restaurant owner had in fact filed for bankruptcy prior to its enactment. A small coffee shop, Mom's Corner Kitchen, declared itself a private club for smokers-but lost its case at both the trial and the appellate court levels (People of the State of California v. Judith Ann Smith, Case No. 50887, San Joaquin County Superior Court Appellate Department). Owner Judith Smith refused repeated informal attempts to comply with the city's ordinance and was finally cited for failing to post required "No Smoking" signs. The case was tried in May 1991 and she was convicted and fined $100. The court found that her restaurant did not meet the qualifications of a private club, and that simply posting the required 0 51423 0268 18