Tobacco Documents Online

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 • But consumers (in this case smokers) and tobacco producers are not operating on an equal footing. The free market system is not equal for all participants. Misleading What's more, the market-justice approach ignores millions of Americans who have little or no role in the marketplace decision- nonsmokers. Yet their quality of life is worsened, and their health endangered, by tobacco smoke in the environment. information or distortions can create demand and can lead consumers to uninformed choices. Misleading messages that smoking is glamorous or sexy cloud its immense personal health risks. Activities which associate positive results with tobacco use are attempts to mislead the public for financial gain. What's more, the market-justice approach ignores millions of Americans who have little or no role in the market- place decision-non- smokers. Yet their quality of life is wors- ened, and their health endangered, by tobacco smoke in the environment. Another barrier is the notion that government intervention into the lives of private citizens should be minimized. The dilemma faced by nonsmokers should be solved by "common courtesy." This approach places the burden on the non- smoker to ask others to refrain from smoking. This is impractical, and it makes a healthy option far more difficult to attain. Local efforts to discourage tobacco use and create cleaner indoor environments have been met with efforts by the tobacco industry to portray itself as an advocate of civil rights, a protector of free speech and competitive business practices. But these arguments ignore the health risk, which is a far greater concern. PREEMPTION OF LOCAL LAWS Proposed state tobacco laws often threaten local regulation of tobacco through preemption of local ordinances. A preemp- tion provision in state law removes the power and authority to regulate from local government. The tobacco industry promotes preemption clauses in federal and state legislation to eliminate their need for involvement at the local level. Preemption generally precludes stronger local laws and establishes maximum rather than mini- mum standards. A recent example of attempted preemption in California was Senate Bill 376, introduced during the 1990-91 Session and supported by the tobacco industry. This comprehensive but weak tobacco control bill was designed to occupy the entire field of tobacco control. It contained explicit preemption language prohibiting enactment of stronger legisla- tion at the local level. The bill was defeated by city and county officials and a strong coalition of health professionals. 14 •

I n t r o d u c t i o n • • • A State master plan called not only for developing community based programs, but also for creating tobacco control leadership in county health departments to provide direction and support to local anti- tobacco eflorts.10 These were new resources for cities to draw upon. (A list of contacts for each county health department appears in Appendix C.) The goal of the master plan is to reduce tobacco consumption in California by 75 percent by 1999. If it succeeds, the number of smokers in California will drop from I in 5 to I in 20, saving thousands of lives and billions of dollars." The State master plan calls for a media campaign and various policy interventions. Hard-hitting commercials on television and radio, and in newspapers, along with administrative and legislative no-smoking policies, have delivered a strong anti-smoking message. This shift in approach, like the Healthy Cities model, promotes the inextricable link of health to the social and cultural environments of our cities. CALI FORN IA SMOKE' FREE CITIES In 1990, the California Healthy Cities Project was awarded a competitive grant from the California l)epartment of Health Services to create California Smoke- Free Cities. Funded by tobacco tax rev- enues, California Smoke-Free Cities is sponsored by the California Healthy Cities Project and administered by the Western Consortium for Public Health. It is a unique partnership which includes the California Healthy Cities Project, the League of California Cities, Americans for Nonsmokers' Rights and the Health Officers Association of California. (See Appendix A.) California Smoke-Free Cities is a major new resource for cities interested in tobacco control. Its comprehensive 1990 survey provides an extensive bank of information about local tobacco control policy and leadership. It has implemented a comprehensive technical assistance network to provide immediate service and informa- tion to municipal officials. The project also conducts educational seminars, provides educational materials, administers a mini- grants program to cities, and provides recognition programs for cities with tobacco control ordinances. ABOUT TH E PARTN ERS The California Healthy Cities Project is a statewide program which helps cities and public health agencies promote healthful community environments. Through resource brokering and referral, technical consultation, sponsorship of educational programs and development and distribution of products and publications, the Project works with cities to address the specific challenges confronting their communities. The League of California Cities is a nonpartisan association which represents cities in policymaking decisions, offers training and information services for local officials, and promotes cooperative efforts to improve the quality of life for city residents. Americans for Nonsmokers' Rights is a national advocacy group with expertise in tobacco policy issues at municipal, county, state and federal levels. It provides technical consultation and resource materi- als on a variety of tobacco related issues. Health Officers Association of California is a private, nonprofit organiza- tion that provides local health officers an independent voice for public health advo- cacy.

C h a p t e r F o u r • T h e W o r k p l a c e • I environmental tobacco smoke. Compared to other women, they have almost four times the expected lung cancer mortality and two-and-a-half times the expected heart disease mortality rate.28 In spite of the evidence that second- hand smoke endangers workers, unions have been slow to press for smoke-free workplace policies. Unions after all repre- sent smokers as well as nonsmokers. Instead, union leaders have sometimes emphasized that a smoke-free workplace policy constitutes a change in working conditions and is thus an item for collective bargaining. TRENDS IN THE WORKPLACE Early workplace policies typically required nonsmoking areas of specified sizes or locations. Most banned smoking in common areas like elevators, hallways and lobbies, and required nonsmoking areas in cafeterias and lounges. Private offices occupied by smokers were exempt. As more Californians quit smoking and as support for nonsmoking policies increased, empha- sis shifted to authorizing nonsmoking workplaces, giving preference to the wishes of nonsmokers in offices where both smokers and nonsmokers worked, and designating limited areas for smoking. First and second generation work- place policies proved to be inadequate. Smoke from private offices and designated smoking areas could not be eliminated from nonsmoking areas. Even the best ventilation systems did not eliminate known carcinogens in cigarette smoke. Three major Califor- nia cities-Sacramento, Walnut Creek and Oak- land-along with several First and second generation counties and smaller cities have prohibited smoking in both public and private workplaces. The effectiveness of local ordinances was borne workplace policies proved to be inadequate. Smoke from private offices and designated smoking out by the Proposition 99 areas could not be eliminated from funded California Tobacco Survey of public use and attitudes toward tobacco. It concluded that, "local nonsmoking areas. ordinances may have a greater impact than voluntary policy alone on the exposure of nonsmokers to environmental tobacco smoke through a combination of increasing the likelihood that worksites would have a ban on smoking at least in the work area and increasing the likelihood that indi- vidual smokers would obey the restrictions that are present in the worksite." 4(See Appendix F.) ON 27

• • APPENDIX A. Description of Organizations in the Partnership .................................................. 81 B. California Tobacco F,ducation Program ..............................................................85 C. County Health Department Tobacco Control Programs ......................................88 D. Tobacco Control Ordinance Matrices (5 charts) .................................................. 95 E. Sample Ordinances ..........................................................................................134 F. excerpts from "Tobacco Use in California, 1990-1991 " ....................................... 164 G. excerpts from "The Health Consequences of Involuntary Smoking: A Report of the Surgeon General," 1986 .............................................................................181 H. excerpts from "EPA Indoor Air Facts No. 3, Ventilation and Air Quality in Offices" .....185 1. excerpts from NIOSH Current Intelligence Bulletin #54, "Environmental Tobacco Smoke in the Workplace: Lung Cancer and Other Health Effects" ....... 189 J. excerpts from "Smoking and Restaurants: A Guide for Policy-makers" .................. 193 K. excerpts from "The Cost of Smoking in California, 1989" ................................... 194 L. excerpts from "The Effect of Ordinances Requiring Smoke-Free Restaurants on Restaurant Sales in California" .....................................................................196 M. excerpts from "An Update, The Effect of Ordinances Requiring Smoke-Free Restaurants on Restaurant Sales in California" ................................................... 198 N. excerpts from "Response to Tobacco Industry Criticisms ofThe Effect of Ordinances Requiring Smoke-Free Restaurants On Restaurant Sales in California" ............... 199 O. reprint of `The Politics of Local Tobacco Control" ............................................. 202 P. excerpts from "Political Expenditures by the Tobacco Industry In California State Politics from 1976 to 1991" .....................................................................210 Q. excerpts from "Undoing Proposition 99: Political Expenditures by the Tobacco Industry in California Politics in 1991" ...............................................212 R. reprint of "The Effects of Combining Education and Enforcement to Reduce Tobacco Sales to Minors....................................................................... ...... 215 S. excerpts from "Publications from the Office on Smoking and Health" ..................219 m N 1P l0

CALIFORNIA HEALTHY CITIES PROJECT WESTERN CONSORTIUM FOR PUBLIC HEALTH • CALIFORNIA HEALTHY CITIES • LEAGUE OF CALIFORNIA CITIES • AMERICANS FOR NONSMOKERS' RIGHTS • HEALTH OFFICERS ASSOCIATION OF CALIFORNIA

C h a p t e r T w o • T o b a c c o C o n t r o l - A L o c a l / s s u e • proportion of local employees and send a symbolic message to all who have contact with the city and its services. . The businesses most conspicuously affected by tobacco control are local retailers and restaurants, businesses which serve and employ local residents. Even if not locally-owned, they pay local taxes, need local licenses and must comply with local building, planning, sign, health and other codes. Tobacco regulation is a local issue for businesses.  The public debate and increased awareness that accompany a local policy proposal make an enacted policy easier to implement.  Local enforcement mechanisms are already in place. Local businesses must have local business licenses; local restaurants are regularly inspected by local health officials; local code inspectors visit commercial buildings; local fire inspectors visit local businesses for fire safety. All of these mechanisms can be used for tobacco control education, and for responding to complaints.  Many local organizations can assist with tobacco education and regulation: voluntary health agencies such as the American Lung Association, the American Cancer Society and the American Heart Association; county health departments; local programs funded by Proposition 99 revenues; health care providers; educators; All of these factors support the appropriateness and the necessity of regulating tobacco by local policy making. There is also an educational advantage implicit in local policy making and local implementation: all participants will learn about the dangers of secondhand smoke. A comprehensive local ordinance will create a community environment in which public smoking is not socially acceptable. In that environment, nonsmokers will not involuntarily be exposed to the dangers of secondhand smoke, fewer youths will begin smoking-and smokers who wish to quit will have strong support. The California Tobacco Survey of public use and attitudes towards tobacco, funded by Proposition 99, found that "when smokers who live in areas where there were strong ordinances were com- pared to smokers who live in areas where there were no ordinances, there was slightly greater readiness to quit among those who lived in areas with strong ordinances." 4(See Appendix F.) Local policy helps to create and maintain a healthier community for all. In a democracy local governments exist to allow for the expression and representation of local interests. No current health issue better expresses that purpose than tobacco control. BARRIERS TO SUCCESS As mea_ninafi-il anrl annrnn_ri2_rP a~ W

Chapter Three • Three Case Studies • • bans hurt business. However, the tobacco industry generally kept a low profile. One ordinance supporter observed, "They might have been better off if they had been public;" the TUFF spokesperson's style alienated voters. Emotions ran high, creating turmoil among political alliances. TUFF's major emphasis was indi- vidual rights and personal freedom of choice. According to the TUFF, "The issue is not a health issue; the issue is not a smoking issue; it is a rights issue-your rights-everyone's rights-American rights." National magazines distributed free in Lodi by Philip Morris and R. J. Reynolds urged voters to vote to protect their rights. "Don't let them get away with it!" "Outrageous new rules." "Speak out for your rights." Ordinance supporters stressed the dangers of secondhand smoke but later downplayed the significance of that information: "You can't persuade people with health information." More influence was attributed to resentment toward the tobacco industry. "Meddling in local affairs, in your politics, in your town." As one piece of literature distributed by the Lodi Clean Indoor Air Coalition stated, "The tobacco industry is trying to dictate to Lodi what laws can be passed to protect our health and safety. With a huge campaign war chest, tobacco companies are trying to dissuade Lodi from passing our own local legislation. Local control over local affairs is a basic principle of our democracy. It shouldn't be swept away on a selfish tide of tobacco industry money." The brochure went on, "Measure M upholds the principle that Lodians should legislate for themselves, without intrusion of the tobacco industry. If you believe that big, out-of-state tobacco companies should not control our local legislation, Vote yes on Measure M." Health organizations remained on the sidelines during the campaign. One week before the election, a popular community figure who had supported the ordinance died from lung cancer; he was a nonsmoker who had worked with smokers for twenty years. The family allowed ordinance supporters to publicize the circum- stances of his death. The referendum appeared on a ballot on which six candidates were running for three council seats. Three incumbents on the ballot were identified with the ordinance. Two of them, who were also identified with growth-related National magazines distributed free in Lodi by Philip Morris and R. J. Reynolds urged voters to vote to protect their rights. "Don't let them get away with it!" "Outrageous new rules." "Speak out for your rights." decisions, were defeated. The third, incumbent Mayor Randy Snider, was re- elected. More important, the voters supported the ordinance by a 60 percent majority. Mayor Snider was strongly linked with support for the ordinance. The vote took three days to tally because of the closeness of the race and the unusually large number of absentee ballots. Snider retained his seat, but believes the referendum cost him about 2,000 votes. "Supporters of the referendum were not going to vote for me. I had to compete with the others from a much smaller pool of available voters." Public health was ultimately victori- ous in Lodi. However, the events there- the unsuspecting council, the strength of the opposition, the reaction from those previously unheard at City Hall-pointed to a new era in tobacco control. Lodi's experience signaled an end to any attempt 17

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 • attorney to develop a new measure. A change in the city attorney's office delayed drafting of the ordinance, but in May 1990 Reiss finally introduced the ordinance. It was passed 4-1 by the council. Interested individuals and members of the voluntary health groups-including The Restaurant Association chapter eventually dropped its opposition (citing) fears of workers' compensation claims as influencing employer support for smoking bans. the American Lung Association, the American Heart Association, the American Cancer Society and the local medical society-actively sup- ported the proposal. They offered expert testimony at hearings and recruited others with direct experience. During public hearings, testimony by Dr. Steve Hansen, a local delegate to the American Medical Association, was particularly persuasive. A number of individuals were against the measure, arguing the issue was over a fundamental right in a free society. Opposi- tion also came from the Central Coast chapter of the California Restaurant Association which emphasized the vulner- ability of restaurants dependent on tourists and travelers. (Reiss countered that San Luis Obispo's isolated location would keep consumers from going to other communi- ties.) The Tobacco Institute funded mailers to smokers urging them to call a list of council members and voice their concerns. The local newspaper interviewed several rigidly opposed senior citizens, the regular daytime clientele of a long-established local bar frequented at night by college-age nonsmokers. The Restaurant Association chapter eventually dropped its opposition because the ordinance covered all businesses without singling out restaurants. A spokes- person for the chapter cited fears of workers' compensation claims as influenc- ing employer support for smoking bans. The lone dissenter on the council supported strengthening the earlier ordi- nance but felt that free-standing bars not connected to a restaurant should be exempt and that, instead of a total ban, restaurants should accommodate smokers with better ventilation. Reiss had originally planned to exempt bars, but decided that could not be justified. He concluded that smoking threatens the health of the public and directly endangers employees in workplaces where it is permitted. The ordinance has been in effect since mid-1991, long enough for residents to experience its impact and long enough for emotions to cool off. There are several useful aspects to the San Luis Obispo case. The development of the ordinance again demonstrated the indispensable role of a committed council member. There is a wide contrast of social and economic environments in Lodi and San Luis Obispo, but the activities of the two councils in fact were remarkably similar. Second, the San Luis Obispo ordinance legislates California's most comprehensive regulation of smoking in eating and drinking places, making it a test of public reaction. Finally, implementation of the ordinance is an administrative test case for enforcement issues. The unique import of the San Luis Obispo ordinance is probably less in its development than in its history since adoption. Local newspaper attention was frequent during the five months the ordinance was under consideration prior to passage on July 3, 1990. The newspaper featured letters to the editor, interviews and field visits with supporters and opponents. Between August 1990 and May 1991 there were three newspaper stories on issues related to the ordinance: a report of a recall attempt, an informal survey by a longtime • 20 51423 0270

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 • thought we should." From another, "The county ordinance was not important. It was weak and not enforced anyway." From a third, "It was really the mayor's idea." In fact, a county-wide voluntary health association first approached the Lodi City Council about enacting a smoking ordinance. Smoking ordinances had been passed in the nearby City of Stockton as well as by San Joaquin County, but more than a year passed before the Lodi council gave the suggested ordinance attention. A council study session found fault with a variety of provisions to limit smok- ing in restaurants, including the county Despite its relatively stable and conservative politics, in 1990 Lodi ordinance. First consid- ered was an ordinance requiring designated smoking sections, but discussion centered on the difficulty of implement- enacted a remarkable and ing and enforcing size and capacity limitations. Local courageous tobacco control restaurateurs were ordinance. The city went from no regulation to stringent tobacco control restriction following a tough fight. expected to object to separate room and ventilation requirements. At the mayor's sugges- tion, the ordinance introduced completely banned smoking in restaurants and public places. The approach was appealing because it presented the fewest enforcement problems. Bars and bingo games were among the few exemptions allowed. Just one council member opposed the ordinance as introduced, and the council moved on to other business. Within two weeks, the issue grew from spring shower to hail storm. The local newspaper was filled with letters to the editor. The council chambers were jammed with impassioned speakers at a three-hour hearing. A subsequent hearing was sched- uled and testimony continued. As the hearings continued, however, the mayor became fully committed to the ordinance. While opposition was vocal, business organizations were inexplicably quiet. A proposal to put the measure on the ballot was defeated 3-2 and the council supported the ordinance as before. Opponents began gathering signa- tures to place a referendum on the ballot, linking their efforts to an active voter registration drive. About 1,000 new voters were registered, an indication of the newness of the constituency uncovered by the smoking control issue. The petition qualified despite a high rate of invalid signatures, and the referendum was placed on the ballot after the Council refused to rescind its action. A group to become known as the Lodi Clean Indoor Air Coalition organized and sought the advice of a national re- saarcher in tobacco control efforts. After learning about methods employed by the tobacco industry to block local control, the coalition hired a political consultant for advice. A survey conducted with the help of a local real estate association indicated that nonsmokers would not voluntarily express objections to a smoker. The findings supported the need for tobacco control legislation. Both sides of the issue paid for advertisements and mailers. Monies for the pro-smoking group, Taxpayers United For Freedom (TUFF), came from a San Francisco consultant employed by the tobacco industry. A tobacco industry representative outlined a campaign to organize restaurant owners and their employees as well as other retail businesses, with the campaign message that smoking ® • 16 51423 0266

C h a p t e r N i n e • P u b l i c T e s t i m o n y a n d R e f e r e n d u m s • 5. Ballot alternatives. On the same ballot with a referendum the council may sponsor a revised ordinance, judged to be preferable to the one being challenged. In this case, the voters must be informed that the alternatives before them are inconsistent and of the "factual basis for the inconsis- tency." The alternative with the most affirmative votes prevails. 6. Reenacting the ordinance. If a successful referendum forces repeal, a council may not enact an essentially similar ordinance for one year. Ln r - W m N l0 C1 51