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, Nonsmokers Rights Foundation 2054 University Avenue, Suite 500 perkeley, CA 94704 (415) 841-3032 i J ee

'1'tll'~Al;(JU .[N~3'`i'lTU'I'[i'. LLRRARY Legislative Approaches to a Smoke Free Society Peter Hanauer Glenn Barr Stanton A. Glantz with a foreword by Jesse L. Steinfeld AMERICAN NONSMOKERS' RIGHTS FOUNDATION Berkeley, California REC'D t; iA Y 6) j:11 Il Ia

ii Copyright © 1986 by American Nonsmokers' Rights Foundation 2054 University Ave., Suite 500, Berkeley, California 94704 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, includ- ing photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher. ISBN 0-9616473-0-2 987654321 This book is dedicated to the volunteers and contribu- . tors who stayed with the nonsmokers' rights movement in the early years when the cause was not always pop- ular and the tobacco companies seemed to be winning. Thanks to their hard work and loyalty, smoke-free air is fast becoming a reality. iii

w iv "I don't think the kind of thing they're doing [in Califor- nia] is exportable." Walker Merriman Vice President, the Tobacco Institute Los Angeles Times, February 17, 1986 Foreword v It was lonely in the early 1950's in the National Cancer Institute to be a nonsmoker and to be even modestly or moderately militant about that stance. While evidence was accumulating that the epi- demic of lung cancer among adult American males was under way and that 90 percent of victims of lung cancer were inveterate cigarette smokers, the issue had not yet been tied together by evidence from retrospective and prospective epidemiologic studies, pathologic stud- ies of human lungs and experimental animal studies. The early ret, rospective epidemiologic studies compared current cigarette smokers with those who were no longer smokers or who had never been smok- ers. The first necessary goal was to show that, there was a higher in- cidence of and mortality from lung cancer among cigarette smokers as compared with the nonsmokers. In my own mind in the 1950's I felt that there were no true nonsmokers in our society, unless a per- son were a nonsmoking hermit, who disdained all contact with other members of the human species. During the early 1950's just about all of my c.hiefs in t.he Na- tional Cancer Institute smoked and in later years a series of directors of the National Cancer Institute smoked cigarettes, cigars or pipes. It is small wonder that my requests for "no smoking" in meetings, conferences and poorly ventilated areas were quickly, laughingly and overwhelmingly rejected. Further, during the 1950's and 1960's I had the temerity or lack of intelligence to approach the leadership of the American Associa- tion for Cancer Research, the American College of Physicians, the American Medical Association and the American Cancer Society and

vi to suggest the desirability of a "no smoking" rule during meetings of those organizations as a standard for the rest of the medical profes- sion and of society. I was not successful. Scientific information on smoking and disease continued to accu- mulate and by the time I became Surgeon General in 1969, it was clear that, even with all the other problems facing the country, smok- ing was the number one public health problem in the United States and I so indicated in numerous speeches. That position in 1969 was still unpopular. In fact, the Clearinghouse on Smoking and Health under Dr. Daniel Horn's leadership, was faced with extinction each year from 1969 to 1973 as a result of vigorous lobbying by tobacco in- terests. I am pleased that we were successful each year in saving the Clearinghouse from total destruction and, in its current form, the Of- fice on Smoking and Health provides world-wide reference standards, on which public health and other programs are based. It was during my first year as Surgeon General that I realized that the tobacco interests were perfectly willing and content for physicians and scientists to do more and more research on identifying the exact chemicals, radiation, viruses and oncogenes that cause the neoplastic process, and were not opposed to physicians and scientists educating each other about the latest discoveries. Discussions among scientists about methylcholanthene or dibenzanthracene resulted in very little change in the American public's habits. It became clear to me that this nation, while it can always use scientific research, needed more than scientific research: It needed social action. It was at that point that I made a national plea for citizens to take up the nonsmokers' rights movement. The tobacco industry became incensed! As I review the fifteen years since then, the major progress that has been made came from those groups who initiated social actions, including legislation for nonsmokers' rights. It is not possible to mention all of the pioneers, but there were many who placed their personal, professional or political careers on the line to spearhead the movement. A small group, or even a single dedicated individual, can make a profound difference in the health of his fellow men and women. Most of us who have been involved early have been called for advice from Vll around the United States by groups in states, cities or towns when a legislative issue was about to be voted on. The advice was informal and probably incomplete. Until now, there has been no compendium on how to conduct a campaign to achieve maximum effects utilizing minimum resources. (Minimum resources will always be the lot of the nonsmokers' rights movement. ) Americans for Nonsmokers' Rights (formerly Californians for Nonsmokers' Rights) has more legislative experience in success- fully combatting the tobacco industry than any other group. Peter Hanauer, Glenn Barr and Stanton Glantz have documented that ex- perience in this book. While every chapter and every suggestion will not be applicable in every political subdivision, there is much of merit and value here. New activist organizations will save time, effort and money and will move more rapidly toward having smoke-free air in public places in their communities through use of this book. I congratulate Americans for Nonsmokers' Rights on its many accomplishments. I trust that as you read, study and use this book, you will be rewarded by the satisfaction of helping to clear the air for everyone. Jesse L. Steinfeld, M.D. Augusta, Georgia March, 1986

I t vnl P refac e 0 ix The tobacco industry's money and political clout are legendary. Yet, in recent years, small groups of political activists, operating on a shoestring, have repeatedly defeated the industry and passed strong legislation protecting nonsmokers from the thousands of toxic chemicals in second-hand tobacco smoke. You can pass such legislation if You know the issues and how to deal with the tobacco industry. That knowledge, combinecl with a little money and a lot of hard work, will produce success. This book tells you how to pass nonsmokers' rights laws. Before starting to read it, you should learn the following basic principles, which will guide you in your work: • Tobacco smoke is a serious form of indoor air pollution more serious, in fact, than outdoor air pollution. • The vast majority of the population, both smokers and non- smokers, supports restrictions on smoking in public places and workplaces. • Although some business organizations will oppose nonsmokers' rights legislation, the only real opposition will come froni the tobacco industry, which fears loss of sales as smoking becomes socially unacceptable. . No one likes the tobacco industry; the industry has no credi- bility with the public.

xi x Acknowledgements • Nonsmokers' rights laws have been on the books for years in California and throughout the country. They have worked well and have had broad public support. • The central strategy in passing nonsmokers' rights laws is to isolate the big (out-of-town) tobacco industry as the only op- ponent to a reasonable measure to protect the public health. This book is organized into two volumes. The first volume is a narrative that describes the issues and how to go about passing a law. Every key person in your organization should read it carefully before you begin a legislative campaign. The second volume is a collection of appendices containing important documents of a; technical nature as well as samples of brochures, press releases, action letters and other materials you will need. Different people in your organization will find different parts of the appendix useful as your campaign progresses. ln planning these volumes, we were convinced that they would be useful only if they were comprehensive in every sense of the term. We believed that anyone making a serious attempt to pass legislation must have at his or her fingertips all the relevant information that we could assemble based on our many years' experience in the field. The time you invest in reading and absorbing this material will save you time, money and, possibly, defeat once you lock horns with the tobacco industry. You should treat these volumes as resource materials which can be constantly referred to rather than something to be read through once and put aside. We are confident that you will find them useful and we wish you every success in using them. The authors wish to acknowledge with grateful thanks the many valuable contributions to this book by other persons. Charles Mawson, former Legislative Director of Americans for Nonsmokers' Rights, put together much of the raw material on which the text is based and compiled much of the appendix. In a very real sense, he created a need for this book by successfully lobbying for non- smokers' rights legislation throughout California over a four-year pe- riod. Walt Bilofsky, Jay Matchett and Robert Stern, members of the Board of Directors of the American Nonsmokers' Rights Foundation, and Karen Krzanowski, Program Director of the American Lung As- sociation of Michigan, made numerous suggestions to improve the scope and wording of the book and provided materials for the Ap- pendix. Dr. Paul Magnus, Medical Associate to the Director of the National Heart Foundation of Australia, kindly permitted us to use his summary of the adverse health effects of second-hand smoke as the basis for Chapter 2. Michael Pertschuk, former Chairman of the Federal Trade Commission, kindly permitted us to use various ideas he had developed in preparing an organizing guide for anti-smoking groups in Latin America. John Finnegan, Jr., Director of Media at the Minnesota Heart Health Program, University of Minnesota, vol- unteered his time to do a final edit of the manuscript, and in the process offered several important suggestions for improving the text. The staff of the American Nonsmokers' Rights Foundation, Denise Kivlen, Mark Pertschuk, Julia Carol and Len Casey, spent many hours reviewing and preparing the text and appendix. The authors also wish to thank William Bloomfield, Sr., Joli Peter Hanauer Glenn Barr Stanton A. Glantz Berkeley, California March, 1986

xii Table of Contents xiii Quentin Kansil, Michael Parker, Joseph Shane and the Wallace A. Gerbode Foundation, whose generous financial assistance made pub- lication of this book possible. We also thank the American Cancer Society, California Division, which for years stood alone among the major voluntary health agencies in embracing the goals and methods of the nonsmokers' rights movement, and whose financial support and cooperation made it possible to develop the winning strategies this book documents. Finally, we wish to thank Paul Loveday, whose early leadership and tireless devotion to the cause laid the foundation for the success- ful nonsmokers' rights movement in California. P.H. G.B. S.G. Foreword v Preface ix Acknowledgements xi 1. A Short History of the Nonsmokers' Rights Movement I 2. The Health Hazards of Second-Hand Smoke 8 • What's in the Smoke that Nonsmokers Breathe? 11 • How Much Exposure do Nonsmokers Get? 12 • What are the Health Hazards of Passive Smoking? 14 • How Big is the Risk? Where is it Encountered Most? 18 • Physical Irritation and Discomfort: Who Wants it? 18 • How Strong is the Evidence? 18 3. Supporters and Opponents of Nonsmokers' Rights Legislation 23 • Natural Constituencies 24 • Potential Allies 25 • Certain Opponents 26 • Probable Opponents 27 • What About Smokers? 29 • Role of the Media 29

xiv xv 4. The Issues 31 • Telephone Trees 92 • The Need for Paid Staff 92 • The Health "Issue" 34 • Funding 93 • Is Legislation Necessary? 39 • Using External Resources 94 • Is Legislation Wanted? 42 • Scope of Legislation 43 8. Legislative Strategy 95 • Civil Liberties 44 • Knowing Your Local Political and Legislative Process 95 • Government Regulation 47 • Writing Your Legislation ; 96 • Costs 49 • Choosing Your Author 98 • Enforcement- 52 ' • Countering the Opposition s Strategy 99 onents and Opponents • Pro 53 p • Lobbying Individual Legislators 100 5. Scope and Types of Legislation 57 • Testifying and Choosing Spokespersons 102 • State vs. Local Legislation 57 • Organizing Grass Roots Pressure 103 • Comprehensive vs. Specific Legislation 58 • Second Readings: Keeping Up the Pressure 105 • Most Important Targets 59 • Lobbying the Chief Executive 105 • Ineffective Legislation 59 • Letters to the Editor 106 • Voluntary or Look-Alike Legislation 60 • Ammending Existing Legislation 106 • Legislation by Referendum 61 • A Case Study: The Los Angeles Ordinance 106 • Provisions Protecting "Rights" of Smokers 62 9. Dealing With the Media 109 • Specific Wording of Legislation: A Model Ordinance 62 • Importance of the Media 109 6. Experience With Existing Legislation: What the Record • Getting the Media to Work for You 111 Shows 83 • Press Releases 111 7. The Basics of Organizing 87 • Following Up Your Initial Contact 112 • At State or Local Level 87 • Press Conferences 114 • Leadership 88 • Media Events 117 • Forming an Organization 88 • Editorial Support 117 • Building a Coalition 89 • Editorial Replies 119 • Building Grass Roots Support 90 • Ways to Have Your Viewpoint Heard 119

xvi • Debates 120 • Keeping Records 122 • What to Tell the Media 122 About the Authors Appendix' 125 • Excerpts from "Clean Your Room! A Compendium on In- door Pollution," California Department of Constuner Af- fairs, February, 1982 • Excerpts from Indoor Pollutants, National Academy Press, 1981 J A. "A Study of'Public Attitudes Toward Cigarette Smoking and the Tobacco Industry in 1978," The Roper Organization, May, 1978; prepared for the Tobacco Institute I. Letter of support for a nonsmokers' rights ordinance from the Greater Riverside (California) Chambers of Comrnerce B. "Proposition P: Anatomy of a Nonsmokers' Rights Ordinance," Peter Hanauer, New York State Journal of Medicine, July, 1985 J. Celebrities who have supported nonsmokers' rights K. Data on smoking and fires C. Charts of California and national nonsmokers' rights laws D. "Bibliography on Involuntary Smoking," compiled by Stanton A. Glantz and Lydia Jensen E. 1986 Letter from Surgeon General C. Everett Koop to Ameri- cans for Nonsmokers' Rights summarizing the health effects of second-hand smoke • Known Causes of Residential Fires: National Figures for 1981, California Fire Incident Reporting System • Known Causes of Residential Fires: California Figures for 1981, California Fire Incident Reporting System L. "Tobacco Industry Conglomerates," Smoking and Health Re- porter, July, 1984 F. "Tobacco Smoke and the Nonsmoker" brochure M. Cost of smoking to business G. Testimony in support of nonsmokers' rights legislation before • Testimony of Professor Marvin Kristein before the United the United States Senate Subcommittee on Civil Service, Post States Senate Subcommittee on Civil Service, Post Office Office and General Services of the Committee on Governmental and General Services of the Committee on Governmental Affairs, September 30, 1985 Affairs, September 30, 1985 ~ • "How Much Can Business Expect to Profit rrom Smoking • James L. Repace Cessation?" M. Kristein, Preventive Medicine, 1983 ~ • Joseph A. Califano, Jr. • "Wanted: Smoking Policies for the Work Place," M. Kris- ~ • Alfred Munzer, M.D. tein, Business and Health, November, 1984 ~ • Stanton A. Glantz, Ph.D. • "A Smokefree Workplace," California Nonsmokers' R.ights C!1 Foundation 1985 P~+ 'The appendix is in a seperate volume. , xvll • Bill Ross H. Indoor air pollution studies

xvlll N. Public opinion surveys on smoking restrictions . 1984 California Poll . 1983 National Gallup Poll . 1984 Gallup Monthly Report on Eating Out . 1985 Harris Poll . 1984 Michigan Survey • Summary of 1980 Minnesota Poll O. Editorials supporting nonsmokers' rights . Los Angeles Times, February 10, 1985 . New York Times, April 2, 1980 . New York Times, January 21, 1981 • New York Times, February 11, 1986 • Oakland Tribune, September 20, 1985 • San Jose Mercury, May 20, 1983 . Washington Post, November 22, 1985 P. Columnists supporting nonsmokers' rights . Ellen Goodman, August 6, 1985 . Don Graff, July 25, 1982 . Bob Greene, December, 1985 . Ann Scott, October 23, 1985 • Carl Rowan, November, 1983 Q. Cartoons on smoking . Abbett, June 8, 1983 . Auth, July 25, 1982 . Auth, 1982 • Stein, April 20, 1984 xix R. Correspondence showing misuse of inedical evidence by oppo- nents of nonsmokers' rights legislation • Correspondence between Dr. Paul Magnus and Dr. Claude Lenfant . Letter from Dr. Jonathon Rhoads to Mr. Jack Mcdowell and copy of quote out of context in initiative campaign ballot pamphlet S. Tobacco Institute analyses of health effects of passive smoking and rebuttals thereto , • "Cigarette Smoke and the Nonsmoker," The Tobacco In- stitute, 1984 ."A Rebuttal to the Tobacco Industry's Paper, 'Cigarette Smoke and the Nonsmoker,' " Ernster and Burns, Journal of Public Health Policy, September, 1984 ."Response to American Lung Association of Superior, California Document 'The Need for Smoking Control Leg- islation in Butte County: A Case Statement,' " Center for Environmental Health and Human Toxicology • Letter from Robert Hutchings of the Office on Smoking and Health to Mark Pertschuk, January 24, 1986 T. Tobacco industry polls on smoking restrictions and related newspaper articles • Los Angeles, 1984 • Analysis of Los Angeles poll by Californians for Narlsmok- ers' Rights • Michigan, 1985 • The Coloradoan, November 13, 1984 • Los Alamos Monitor, December 15, 1982 i U. Letters from California city attorneys concerning the constitu- j tionality of nonsmokers' rights legislation

• Los Angeles, 1983 • Sacramento, 1984 • San Francisco, 1982 V. Tobacco Institute legal opinion on constitutionality of non- smokers' rights legislation W. "Smoking at the Workplace: Legal Issues," Timothy J. Lowen- burg, American Lung Association, 1983 X. "Addiction Mortality in the United States, 1980: Tobacco, Al- cohol, and Other Substances," R.T. Ravenholt, Population and Development Review, December, 1984 Y. "Economic Costs of Smoking: An Analysis of Data for the United States," Dorothy Rice, December 28, 1983 Z. Questions and Answers on Proposed Nonsmokers' Rights Leg- islation AA. "A Quantitative Estimate of Nonsmokers' Lung Cancer Risk from Passive Smoking," Repace and Lowrey, Environment In- ternational, April, 1985 BB. Brochures explaining how smoking pollution control laws work • Oregon • San Jose • San Diego • Fort Collins CC. Sample brochure for businesses explaining a voluntary work- place smoking program, and including a survey measuring the success of the program Legal opinion on the right of an employer to hire only non- smokers, Tom Downs, September 11, 1985 Model Smoking Pollution Control Ordinance FF. Sample smoking pollution control ordinances • Los Angeles • San Diego • San Francisco • Sacramento • Palo Alto • Mountain View GG. Legal opinion on validity of clau4 in workplace smoking ordi- nance prohibiting retaliation by employer against employee for asserting rights under the law, Paul N. Dubrasich, October 18, 1984 HH. Newspaper articles on success of nonsmokers' right.s laws • Wall Street Journal, August 15, 1984 • Sacramento Bee, April 3, 1984 • Los Angeles Times, May 13, 1985 • Contra Costa Times, November 17, 1985 II. Letters and testimony of enforcement officials and c.hamber of commerce officials attesting to the success of smoking pollution control ordinances • Cupertino . East Lansing, Michigan . Minnesota . Pasadena • Poway • San Diego • San Francisco • San Jose • Santee

xXiu . West Hollywood (letter from City Councilmember quoting chamber of commerce officials) JJ. List of officials in California responsible for administering smoking pollution control laws KK. Sample petition seeking passage of a nonsmokers' rights law LL. Tobacco Institute testimony before the United States Senate Subcommittee on Civil Service, Post Office and General Ser- vices of the Committee on Governmental Affairs, September 30, 1985 MM. Sample action letters to grass roots supporters • Pleasant Hill • San Francisco • Los Angeles (postcard) NN. Case study of Los Angeles workplace smoking ordinance, as reported by the Los Angeles press • "L.A. Councilman to Propose Anti-Smoking Ordinance," Los Angeles Times, July 8, 1983 • "L.A.'s Gravy Train," Los Angeles Herald, Feb. 3, 1984 • "City Panel Studies No-Smoking Proposal," Los Angeles Daily Journal, Feb 16, 1984 ."Watered Down No-Smoking Law Gets Preliminary OK," Los Angeles Downtown News, Feb 28, 1984 • "L.A. Council Acts To Limit Smoking At Places of Work: 10--1 Vote for Measure," Los Angeles Daily Journal, Oct. 10, 1984 • "Council Adopts Tough Law on Smoking on Job," Los Angeles Times, Oct. 10, 1984 • "Conflicts Mostly Solved: Few Fired Up Over L.A. Smok- ing Law," Los Angeles Times, Oct. 11, 1984 • "L.A. Council Acts To Ease Curbs on Smoking at Work: Victory for Business," Los Angeles Daily Journal, Oct. 17, 1984 • "Tobacco Firms Act to Snuff Out Smoking Law: View Weakening of L.A. Plan as Just a First Step," Los Angeles Times, Oct. 18, 1984 ."No-Smoking Law Opponent Hosting Council at Resort," Los Angeles Times, Oct. 19, 1984 .."L.A. Strengthens Draft Ordinance To Curb Smoking: Penalty for Retaliation," Los Angeles Daily Journal, Oct. 24, 1984 • "Council Puts Some Muscle Back in L.A. Smoking Law," Los Angeles Times, Oct 24, 1984 ."L.A. Approves Strict On-Job Smoking Law," Los Angeles Times, Oct. 31, 1984 • "Bradley to Sign No-Smoking Ordinance, Press Aide Says," Los Angeles Times, Nov. 1, 1984 ."Law's Opposition Doused," Los Angeles Times, Nov. 9, 1984 •"Cloek Running for No-Smoking Plans," Los Angeles Daily News, Dec. 14, 1984 • "Smoking on Job: No More Ifs, Ands, Butts It's Law," Los Angeles Times, April 14, 1985 ."A Month With Smoking Law: Problems Resolved Smoothly," Los Angeles Times, May 13, 1985 00. Sample press releases • Press release announcing a press conference • Press release announcing the support of a nonsmokers' rights ordinance by a prominent physician PP. Transcript of a debate between a nonsmokers' rights activist and a tobacco industry representative

xxiv Chapter 1 1 A Short History. . of the Nonsmokers' Rights Movement In the early 1970's, nonsmokers began to realize that there might be an alternative to spending their liv'~es under a cloud of tobacco smoke. Heartened by the mounting evidence of the dangers of smok- ing, the elimination of cigarette advertising on radio and television and the first studies showing possible harm to nonsmokers from to- bacco smoke, a loose coalition of grass roots nonsmokers' rights or- ganizations formed in various communities throughout the United States. Most of these organizations had only a handful of members, who were pioneers in a new social movement. Their task was not so much to limit public smoking -- that was not yet possible but rather to persuade fellow nonsmokers that public smoking was an important problem. Remember: less than 15 years ago, close to half the adult population smoked cigarettes (it is closer to one-third today) and there was hardly any public place (much less a place of employment) where smoking was restricted. At that time, it took great courage for someone to ask another person not to smoke - in a private or public place. The movement attracted a large following in a short time. Al-

2 CHAPTER 1. HISTORY though the tobacco industry did not take it seriously as long as it consisted of persons passing out leaflets and buttons, it was forced to take notice when the State of Minnesota enacted a law in 1975 that restricted smoking in most indoor public places and required the establishment of nonsmoking sections in the workplace, for both public and private employers. Minnesota has no real economic inter- est in the tobacco industry, and an energetic and resourceful state legislator was able to push the bill through the legislature with little fanfare. Unfortunately, this was the last time the industry would be caught napping. It did not take long for the tobacco industry to realize the danger posed by such a law and to realize that if it did not do something, many similar laws would soon be passed throughout the country. The potential power of the nonsmokers' rights movement was clearly brought home in a secret 1978 report prepared by the Roper Orga- nization for the Tobacco Institute, the industry's trade association. Among other things, the report found: • Almost two-thirds of nonsmokers believed second-hand smoke to be harmful. . There was majority sentiment for having separate smoking sec- tions in all public places covered by the report. . More people said that they would vote for than against a polit- ical candidate who takes a position favoring a ban on smoking in public places. '(Remember that this was in 1978, before all the string of legislative successes - and point this out to leg- islators whose support you seek.) . Favorable attitudes toward the tobacco industry were at their lowest ebb. (They are certainly even lower today.) The report demonstrated that the early nonsmokers' rights activi- tists were correct in realizing that they had to raise the consciousness of other nonsmokers, because the report showed that there was rel- atively little public concern over the smoking issue compared with 3 other social issues such as crime, drugs and pollution. (Of course, the report should have noted that the smoking issue also involves drugs and pollution.) But the report also demonstrated that those early activists had, at the very least, succeeded in convincing a large pro- portion of nonsmokers that second-hand smoke is hazardous. Non- smokers' rights activists received a tremendous psychological boost in knowing they no longer consisted of small voices crying in the wilderness. Ironically, the boost was provided by the tobacco indus- try itself. The most important part of the Roper Report was its conclusion that the nonsmokers' rights movement was the single greatest threat to the viability of the tobacco industry. In other words, laws and social pressures restricting smoking in public places would hurt the industry more than all the health warnings to smokers! There are two reasons why this is so: The first, and rather obvious, reason is that as smoking is re- stricted, smokers will have less opportunity to smoke and thus will smoke fewer cigarettes per day. As an executive of R.J. Reynolds pointed out in 1984, if nonsmoking laws had the effect of cutting consumption by just one cigarette per smoker each (lay, the industry would sell 22 billion fewer cigarettes each year! The second reason is both more subtle and more significant: the nonsmokers' rights movement and concornmitant legislation make smoking socially unacceptable. The tobacco industry had long ago figured out how to successfully combat the health warnings of the medical profession, but it knew it could not abide an attack on the very reason for smoking - that it was suave and sophisticated and that people who smoke were popular. If smokers could be made to feel like outcasts - driven to the far corner of a room to indulge in a filthy habit - they would soon find the fortitude to quit altogether. The industry might survive reduced consumption, but it could not survive if it were to lose its customers altogether. The Roper Report remains one of the key documents in the battle for nonsmokers' rights and is must reading for anyone who is seriously involved in the nonsmokers' rights movement. (For a complete copy of the report, see Appendix A.)

W I 4 CHAPTER 1. HISTORY Thus, by the mid-1970's, the battle was joined, and the industry would never again sit idly by while a nonsmokers' rights law was passed. Tobacco industry lobbyists began appearing in nearly every location where legislation was being considered. Even with increased public awareness of the issue, most nonsmokers' rights organizations were unable to attract politically powerful supporters and were usu- ally no match for the sophisticated lobbying campaigns of the tobacco industry, particularly at the state level. As a result, efforts to enact legislation in the latter half of the 1970's were usually met with hos- tility and indifference; with few exceptions, legislation either failed altogether or was so diluted as to be almost meaningless. In 1978, after being frustrated in an attempt to enact statewide legislation, the organization which later became Americans for Non- smokers' Rights placed a comprehensive nonsmokers' rights measure on the California statewide ballot by means of the initiative process. The 600,000 signatures obtained (twice the number needed) and the early large approval of the measure in public opinion polls were clear evidence that nonsmokers' rights had come of age with the public. What nonsmokers were not prepared for, however, was the outra- geous campaign against the measure conducted and financed by the tobacco industry. By the time the smoke cleared, the industry had spent $6.5 million and had literally bought the election. The initia- tive was defeated by a margin of 54 percent to 46 percent. At the same time, a group in Dade County, Florida also put a measure on the ballot and also suffered a defeat, although by an even slimmer margin, 51 percent to 49 percent. Both organizations, having come so close to winning, came right back and placed similar measures on the 1980 ballot, but both lost again, by almost identical margins. Nonsmokers learned the hard way that they could not easily com- pete with the tobacco industry in what amounted to expensive mass media campaigns. Not only is the industry highly skilled in using mass media to begin with (it spends more than $2.5 billion per year advertising cigarettes), but it is able to use the media to distort the facts and to confuse the electorate. As any politician will tell you, a confused voter will invariably vote "No." Nonsmokers also learned just how expensive election campaigns can be, and how much volun- teer teer time and energy is necessary to run them. The initiative cam- paigns were glamorous, but ultimately unsuccessful and dishearten- ing. It was time for a new strategy. In 1981, the leaders of the two California initiative campaigns formed Californians for Nonsmokers' Rights (renamed Americans for Nonsmokers' Rights in 1986), and returned to the legislative pro- cess by concentrating on passing ordinances at the city and county level. The mounting medical evidence of the dangers of second-hand smoke and the increased public awareness of those dangers (largely generated by the two election campaigns) had paved the way for the passage of effective laws. Californians for Nonsmokers' Rights soon discovered that the further down you go in the governmental structure, the less influence the tobacco incJustry has and the more influence individual constituents have. While at the state level indus- try lobbyists and money can severely impact legislators, city council members and county supervisors often refuse even to talk to indus- try lobbyists, and are far more inclined to listen to the arguments of local citizens. Nonsmokers found that when they were sufficiently organized and personally lobbied local legislators, they were able to pass legislation in almost any community, often by unanimous votes. In less than five years, more than 75 ordinances were passed through- out California, in places ranging in size from towns with only a few thousand people to cities as large as Los Angeles. The major turning point, however, was in November 1983, when the tobacco industry put a referendum on the ballot (Proposition P) in an attempt to overturn a workplace smoking ordinance which had been passed in San Francisco. Even though the industry spent more than $1.1 million and outspent the supporters of the law by more than ten to one, the voters approved the ordinance and handed the industry its first election defeat. Because the referendum took place in a large, highly-visible city, and in a non-election year, it re- ceived national, and even international, attention. This one event, more than anything else, showed the popularity of nonsmokers' rights laws and demonstrated the vulnerability of the tobacco industry. It opened the door for the passage of many more ordinances in Califor- nia and heightened interest in legislation around the country. (For I

6 CHAPTER 1. HISTORY an analysis of the Proposition P campaign, see Appendix B.) And, of course, there have been many other laws passed in other parts of the country by various nonsmokers' rights organizations. (For charts showing the places and types of major legislation, na- tionally and in California, see Appendix C.) In 1984, the industry again tried to overturn a law that had already been passed, this time in Fort Collins, Colorado. The voters there recorded a resounding 64 percent approval of the law and, perhaps, dissuaded the industry from attempting any future referenda. These recent successes should point the way toward a surge of legislative activity that could literally put a damper on smoking in public places and workplaces throughout the country. In the current climate of public opinion, it is possible to pass comprehensive non- smokers' rights legislation in almost any community in the United States, provided the effort to do so is well-organized by knowledgable people. To those of you who are just beginning to consider involvement in the legislative process, two items of encouragement are offered: First, as the 1978 Roper Report indicated, most people do not view nonsmokers' rights as a highly important issue, and the tobacco industry will play this fact to the hilt. Before you finish your task, someone is bound to ask why you don't work on something "im- portant." But you need not be at all defensive as to why you are working for nonsmokers' rights. There are good reasons why non- smokers' rights is a vital issue even if most people do not view it as such, and you should not hesitate to point these out when the ques- tion arises. The most obvious reason is that you are working on a public health measure that affects everyone in our society. But just as important is the fact that what you are doing is directly attacking the tobacco industry, and that means cutting down on the hundreds of thousands of cigarette-related deaths that occur each year. Since cigarettes kill more Americans every three years than have died in all the wars this country has ever fought, anything that can be done to reduce those deaths is worthwhile. Moreover, a side benefit of im- proving the health of both nonsmokers and smokers is reduced health care costs and reduced taxes. And, of course, nonsmokers' rights is 7 important to you and your own health. That is reason enough to be involved. Second, not only is nonsmokers' rights legislation possible, but it can be accomplished by a small number of very dedicated people, without too many resources beyond their ingenuity and stubborn- ness. If you are willing to face temporary setbacks and frustrations, you will succeed. The tobacco industry knows it is fighting a rear- guard action. If you stick to it, you will eventually pass nonsmokers' rights legislation no matter how bleak the prospects might sometimes seem.

8 CHAPTER 1. HISTORY I Chapter 2 9 The Health Hazards of Second-Hand Smoke It has long been known that high levels of outdoor air pollution from factory chimneys and automobiles can cause illness and even death. These serious effects of air pollution have led to federal stan- dards for the regulation of outdoor exposure levels, and considerable progress has been made in curtailing outdoor air pollution. How- ever, we spend 90 percent of our lives,indoors. Therefore, the levels of indoor air pollution assume great importance in determining total exposure to many air pollutants. Indoor air pollution from tobacco combustion not only is chemi- cally related to the smoke from factory chimneys and other sources of outdoor air pollution, but generally occurs at far higher levels indoors than does factory smoke and automobile exhaust outdoors. Because one-third of the U.S. adult population smokes, and because ventila- tion rates are primarily designed to conserve energy rather than to preserve indoor air quality, the smoke from burning cigarettes, pipes and cigars overwhelms the capability of typical building ventilation systems, inflicting substantial air pollution burdens on nonsmokers - far in excess of those encountered in indoor environments free of tobacco smoke, outdoors generally or in vehicles on busy commuter highways.l

10 CHAPTER 2. SECOND-HAND SMOKE 11 There are more than 600 medical and scientific studies of the effects of second-hand smoke (see Appendix D for a bibliogra- phy). This evidence has been reviewed by several independent sci- entific bodies, including the Office of the United States Surgeon General,2-4 the National Academy of Sciences5 and the World Health Organization,6 all of which have concluded that involuntary expo- sure to tobacco smoke represents a significant public health prob- lem. (The tobacco industry has sponsored "international workshops in Geneva and Vienna" which it claims have come to different con- clusions. For a discussion of these workshops and how to invalidate industry arguments based on them, see Chapter 4.) Surgeon General C. Everet Koop succinctly summarized this ev- idence in a letter written in 1986 as follows:7 The harmful constituents of mainstream cigarette snioke [which the smoker inhales] are found in sidestream smoke [which the nonsmoker inhales], sometimes to a greater extent than in mainstream smoke. Pollution from tobacco smoke in homes, offices, other worksites and in certain public places can reach levels which exceed contaminant levels permitted under envi- romnental and occupational health regulations. Nonsmokers absorb the constituents of tobacco smoke into their bodies, even though in smaller amounts than is true for those who smoke. Maternal smoking has harmful effects on pregnancy, including an increased risk of miscarriage, prematurity, stillbirth, death soon after birth, low birth weight, and fetal death. There is increasing evidence to suggest that environ- mental tobacco smoke can bring disease, including lung cancer, in healthy adults, children and infants. It is on the basis of these facts that I advise nonsmok- ers to avoid exposure to cigarette smoke wherever possi- ble, and that, in particular, they should protect infants and children from this smoke. (Appendix E contains the full text of this letter, which makes a useful handout to legislators and the press. Appendix F contains a brochure summarizing the health effects of second-hand smoke. Appendix G contains testimony on the health effects of second-hand smoke presented at a hearing before a U.S. Senate subcommittee.) What's In the Smoke That Nonsmokers Breathe? Cigarette smoke contains approximately 4000 chemicals, many of them poisons.2,3 The burning end of a cigarette releases twice as much sidestream smoke directly into the air as mainst.ream smoke, which is inhaled directly through the cigarette by the smoker. Sidestream smoke is then breathed by the nonsmoker in amounts that depend on how many cigarettes are burning at a time; how close the nonsmoker is to the source of the snioke; and the size, shape and ventilation of the space involved.8 The sidestream smoke that the nonsmoker inhales is even more toxic than an equal amount of mainstream smoke.2 This is due to the fact that when a cigarette is smoldering in an ashtray (which is about 95 percent of the time that a cigarette is lit), it burns at a lower temperature than when it is being inhaled (because air is being drawn through the burning tobacco), so there is less complete, and hence dirtier, combustion. The poisons in second-hand smoke include:2 Carbon Monoxide: This is a colorless, odorless and highly poisonous gas which lowers the amount of oxygen carried by the blood. It does this by beating oxygen to the red blood cell "posi- tions" which normally carry oxygen in the blood. If someone stays in a closed garage with an auto engine running, it is the carbon monoxide which kills the person. Carbon monoxide is the poison that makes people have headaches from breathing second-hand smoke. Nicotine: This is the addictive drug that maintains the tobacco habit. It makes the heart beat faster and work harder than

12 CHAPTER 2. SECOND-HAND SMOKE it should, and it adversely affects blood clotting factors which may play a part in heart attacks. Carcinogens: There are dozens of carcinogens (cancer-causing agents) in tobacco smoke. One of the most potent of all carcinogens is benzopyrene, discovered in tobacco smoke more than 30 years ago. Hydrogen Cyanide: This is the gas often used to execute prisoners in gas chambers. In the amounts found in tobacco smoke it kills cilia, the tiny hairs that move together in waves to help keep our lungs clean. Arsenic: This is a potent poison. Pesticides: There are numerous pesticides in tobacco smoke, includ- ing DDT, paraquat, endrin, parathion and endosulfan, espe- cially when the tobacco is imported from countries that do not restrict their use. Radioactive Compounds: Such compounds as polonium 210 and pot- assium 40 are known to cause cancer. As the accompanying table shows, there is much more of some to- bacco smoke poisons in sidestream smoke than in mainstream smoke. How Much Exposure Do Nonsmokers Get? Obviously, the exposure of nonsmokers to tobacco smoke will vary a great deal, according to the factors listed above. Practically all nonsmokers are involuntary smokers to some extent. Some are lucky enough to get very little exposure to tobacco smoke. But for many the exposure is heavy, frequent and largely unavoidable. Investigations of indoor air quality have shown that tobacco smoke is clearly a major source of indoor air pollution for most people.1,9-s 13 SOME POISONS IN SIDESTREAM AND MAINSTREAM CIGARETTE SMOKE Poison Ratio of concentration Sidestream: Main4trcam2 Carbon monoxide Nicotine Formaldehyde (inhibits lung cilia) Benzo(a)pyrene (carcinogen) B-Napthylamine (carcinogen) 4-Amino biphenyl (carcinogen) Dimethylnitrosamine (carcinogen) Ammonia Polonium-210 (radioactive compound) 5:1 3:1 51:1 5:1 39:1 30:t 52:1 46:1 4:1 For example, levels of carbon monoxide in the air often exceed federal standards when cigarettes are being smoked, even in well- ventilated rooms, and may occasionally exceed recommended max- imum limits for an eight-hour exposure at work.2 Levels of carbon monoxide in smoky rooms are commonly about three times those found close to city roadways. A major study on indoor air pollution done at the Environmental Protection Agency in 1980 in various common settings, such as work- places and restaurants, found that "levels of respirable suspended particulates [smoke particles] in places where tobacco is smoked greatly exceed levels found in smoke free environments, outdoors and vehicles on busy commuter highways." ' In contrast, the indoor air always met federal outdoor clean air standards when no one was smoking. Involuntary exposure to cigarette smoke is sometimes expressed as the equivalent of the number of cigarettes "srnoked" by measuring the quantity of tobacco smoke in the air breathed by the nonsmoker

14 CHAPTER 2. SECOND-HAND SMOKE 1 15 or by measuring the by-products of tobacco smoke in the nonsmoker's bloodstream or urine. Such an approach can be very misleading because different chemicals in cigarette smoke are handled differently by the body. Not surprisingly, the tobacco industry selectively cites one lower extreme of these estimates, based on nicotine absorption, which is said to show that it would take 100 hours in a smoky bar to inhale the equivalent of one cigarette. Nicotine is not a good index of total exposure because it is rapidly converted to other chemicals such as cotinine by the body. Studies that have considered cotinine in the urine show that passive smokers are often exposed to the nicotine equivalent of one to two cigarettes every 24 hours. Remember: there is no safe level of smoking. Smoking even one cigarette a day is dangerous, and nonsmokers have chosen to avoid that risk. Moreover, the exposure to other components of tobacco smoke, including sevefal powerful cancer-causing agents, can be much higher than that. The major 1980 EPA study on indoor air pollution dis- cussed above estimated that an office worker sharing a room with a smoker could inhale the equivalent of 5 cigarettes a day in smoke particles, which include, of course, many carcinogens.l Cancer-causing agents are a special concern because there is no safe level of exposure to them. A number of them appear in much higher concentrations in sidestream than in mainstream smoke. One study showed that nonsmokers in a smoky room for one hour may inhale as much of one powerful cancer-causing agent, dimethylni- trosamine, as the smoker inhales directly through a pack of filter cigarettes (dimethylnitrosamine is 52 times more concentrated in sidestream than in mainstream smoke). In a similar time and cir- cumstances, the passively inhaled dose of benzopyrene, one of the most potent cancer-causing agents known, has been found to equal that obtained by smoking four cigarettes.9 What Are The Health Hazards Of Passive Smoking? Clearly, tobacco smoke is filled with toxic chemicals. What is the i P i evidence that passive smoking really does hurt people? A review of ~ recent research supports the following conclusions: Lung Cancer In Adult Nonsmokers. By the end of 1985, there had been 15 studies across six cultures the world over (including industrialized Western societies) which ex- amined the question of lung cancer and passive smoking by coinpar- ing lung cancer incidence in nonsmoking women married to non- smoking men to that in nonsmoking women married to smoking men. Taken as a whole they strongly suggest that passive smoking causes lung cancer. Fourteen of the 15 showed a positive relationship between lung cancer and repeated exposure to passive smoking (in seven it was "statistically significant" ) and the effect was generally dose-related (the more passive smoking, the greater the risk).8 Two studies of involuntary smoking and lung cancer done by the American Cancer Society deserve special mention. The first of these, published in 1981,10 was the only major study to reach a negative conclusion on the association between involuntary smoking and lung cancer. At the time, the authors pointed out that there were poten- tial methodological problems with the study in that the nonsmoking women married to nonsmoking husbands may, in fact, have actu- ally received substantial exposure to second-hand smoke from other sources. (As discussed in Chapter 4, the tobacco companies have seized on this one study as evidence that involuntary smoking is not associated with lung cancer in nonsmokers.) The second study" was done with careful attention to avoiding the problem of the first study. The results, published in late 1985, were in agreement with the work of others linking passive smoking with lung cancer. Taken as a whole, these fifteen studies indicate that the average lung cancer risk to the passive smoker is roughly double that of the true unexposed nonsmoker.12 In countries where few women smoke but most of their husbands do, the total number of female lung can- cers from passive smoking may equal or exceed those caused by active smoking in women. The total number of such cancers is 100 to 1000 times that caused by other forms of air pollution. Scientists at the EPA concluded that in a typical office workplace,

16 CHAPTER 2. SECOND-HAND SMOKE under average conditions of occupancy and ventilation, the lung can- cer risk to the nonsmoking office workers caused by tobacco smoke appears to be, depending on ventilation, 250 to 1000 times the level of acceptable risk using standard federal guidelines for carcinogens in air, water or food.13 Lung Function in Otherwise Healthy Nonsmokers. Studies in the United States on many thousands of children (av- erage age range 5-13) show that smoking by the mother is associ- ated with poorer lung function in young children and slower lung growth. Although the effect is not large, it is definite, and raises concern about how this may accelerate their decline in lung function as adults, especially if they later become active smokers.4 A 1980 U.S. study of more than 2,000 middle-aged adults showed that the small air passages had suffered significant damage in non- smokers who had been passively exposed to cigarette smoke at work. The degree of damage was similar to that found in light smokers. A French study found similar evidence of lung damage in middle-aged women married to smokers.14 Asthma, Bronchitis and Chest Illness in Nonsmokers. Many studies show that children of smoking parents, especially infants, have an increased risk of serious chest illnesses such as pneu- monia and bronchitis. The effect generally increases with the num- ber of cigarettes smoked by the parents and is related mainly to the mother's smoking, as expected from the greater degree of contact between mother and child 4 Asthmatics frequently report that they are more likely to experi- ence wheezing and tightness in the chest when passively exposed to tobacco smoke.4 These symptoms are important in themselves be- cause one out of five children up to the age of 12 and many adults have these symptoms,15 and asthma attacks can be life-threatening. Associated changes in lung function have been found in several, but not all, studies of the problem. A study in 1985 concluded that I i 17 passive smoking may directly trigger asthma attacks and lnng fUnc- tion changes, and also sensitize asthmatics to other envirolimental triggers.ls Adult Nonsmokers with Existing Heart and Chronic Lung Disease. Persons with poor blood supply to the heart muscle, which causes the chest-pain condition called angina, and those who have already had a heart attack, need all the oxygen they can get. So do peo- ple with lung diseases such as emphysema and chronic bronchitis. Tobacco smoke raises carbon monoxide levels in the air and absorp- tion of carbon monoxide into the blood reduces its capacity to carry oxygen. This occurs in passive smokers. Research has shown t,hat• persons with heart disease are more likely to experience chest pain if they are exposed to low levels of carbon monoxide in the air.2 Heart Disease in Nonsmokers. A 1985 study of nonsmoking American women found that those whose husbands were cigarette smokers were several times more likely to die of coronary heart disease than those whose husbands never smoked. This association could not be explained by differences in the known coronary risk factors or age. 17 Smoking in Pregnancy. The unborn child is a passive smoker in a different sense because it experiences the effects of tobacco by-products through its inotller's bloodstream. An overwhelming body of evidence shows that sinoking during pregnancy can lead to miscarriages, stillbirths and death and illness in early infancy. Other studies have shown that smoking dnr- ing pregnancy may effect the physical growth, mental developinent and behavior of children at least up to the age of eleven.2 II

18 CHAPTER 2. SECOND-HAND SMOKE How Big is the Risk? Where is it Encountered Most? As with active smoking, the risk from passive smoking depends ultimately on the total dose of tobacco smoke received. For active smokers, this depends on the age they started smoking, how many years they smoke and how many cigarettes they smoke daily. For passive smokers the dose depends on the age of first expo- sure to tobacco smoke; how much exposure occurs at a time and for how long; and how often they are exposed over their lifetime. Of course, the total dose for a passive smoker will never be large as that accumulated by a typical active smoker. For children, passive exposure to tobacco smoke is usually great- est in the home. This exposure is under the potential control of parents. For an adult nonsmoker who works, passive exposure is by far greatest in the workplace, since there is usually a greater concentra- tion of smokers in a given workplace than in a home. Physical Irritation and Discomfort: Who Wants It? Most nonsmokers suffer marked physical irritation, discomfort and annoyance from tobacco smoke in the air. In one study of peo- ple without allergies, almost seven out of 10 nonsmokers said that cigarette smoke irritated their eyes, more than three out of 10 said that it gave them a headache, and one out of four said it made them cough.2 Nonsmokers are likely to encounter smoking far more often in their daily lives than other potential sources of physical irritation or annoyance. A 1985 poll found that 80 percent of the population (including 75 percent of the smokers) felt that there should be legal restrictions on public smoking.18 How Strong is the Evidence? As long ago as 1982, the United States Surgeon General re- ported: 19 19 While the nature of [the association between second- hand smoking and lung cancer] is unresolved, it does raise the concern that involuntary smoking may pose a carcino- genic risk to the nonsmoker. Any health risk resulting from involuntary smoke ex- posure is a serious public health concern, because of the large numbers of nonsmokers in the population who are potentially exposed. Therefore, for the purpose of preventive medicine, prudence dictates that nonsmokers avoid exposure to second-hand tobacco smoke to the ex- tent possible. In 1984, the Surgeon General stated:4 Cigarette smoke can make a significant, measurable contribution to the level of indoor air pollution at levels of smoking and ventilation that are common in the indoor environment. And in 1986, he concluded:7 I There is all the medical evidence necessary to support reasonable and sensible protection for the non-smoker against the irritation and potential harm that comes from other people's smoke. In a similar vein, in its 1981 report, Indoor Pollutants, the Na- tional Academy of Sciences stated:5 Public policy should clearly articulate that involun- tary exposure to tobacco smoke has adverse health effects and ought to be minimized or avoided wherever possible. Because the evidence of the dangers of second-hand smoke is so overwhelming, the tobacco industry routinely distorts the supporting evidence and fabricates contrary evidence. Thus, it is not enough to know the medical evidence presented in this chapter; you must also be aware of the tactics used by the industry in discussing the health issue and the methods to counteract those tactics. This discussion is contained in Chapter 4.

20 CHAPTEIt 2. SECOND-HAND SMOKE References 1. Repace JL, Lowrey AH. Indoor air pollution, tobacco smoke and public health. Science 1980; 208: 4443: 464-72. 2. U.S. Department of Health, Education and Welfare. Smok- ing and health: A report of the Surgeon General. U.S. Department of Health, Education and Welfare, Public Health Service, Office of the Assistant Secretary for Health, Office on Smoking and Health, DHEW publication no. (PHS) 70-50066, 1979: 3. U.S. Department of Health and Human Services. The health consequences of smoking: Cardiovascular disease. A report of the Surgeon General, 1983. U.S. Department of Health and Human Ser- vices, Public Health Service, Office on Smoking and Health, DHHS publication no. (PHS) 84-50204, 1984. 4. U.S. Department of Health and Human Services. The health consequences of smoking: Chronic obstructive lung disease. A report of the Surgeon General. U.S. Department of Health and Human Ser- vices, Public Health Service, Office on Smoking and Health, DHHS publication no. (PHS) 84- 50205, 1984. 5. U.S. National Academy of Sciences and National Research Council. Indoor Pollutants. A report by the Committee on Indoor Pollutants, Board on Toxicology and Environmental Health Hazards, Assembly of Life Sciences and National Research Council. National Academy Press, Washington, 1981. 6. World Health Organization. Health aspects related to indoor air quality. EURO Reports and Studies 21. Regional Office for Europe. Copenhagen, 1979. 7. Koop, C.E., U.S. Surgeon General, letter dated Feb. 7, 1986 to Stanton Glantz, Americans for Nonsmokers' Rights (See Ap- pendix E). 8. Repace JL, Lowrey AH. A quantitative estimate of nonsmok- ers' lung cancer risk from passive smoking. Environment Interna- tional 1985; 11:3-22. 9. Stock, S. The perils of second-hand smoking. New Scientist Oct. 2, 1980. 10. Garfinkel L, Time Trends in lung cancer mortality among 21 nonsmokers and a note on passive smoking .1. Nat. Canccr Instit. 66:1061-1066, 1981. 11. Garfinkel L, Auerbach 0, Joubert. L, Involuntary Srnoking and Lung Cancer: A Case-Corrtrol Study J. Nat. Cancer Instit. 75:463-469, 1985. 12. Repace JL. Consistency of research data on passive smoking and lung cancer. Lancet 1984; 1:506. 13. Testimony of James L. Repace in the matter of Senate Bill 1440 before U.S. Senate Subcommittee on Civil Service, Post Office and General Services of the Committee on Governmental AfTairs, Washington, D.C., September 30, 1985 (Full text in Appendix C). 14. White JR, Froeb HF, Small-airways, dysfunction in nonsmok- ers chronically exposed to tobacco smoke. N Engl J Med 302:720 723, 1980. 15. Williams HE, McNicol KN. Prevalence, natural history ancl relationship of wheezy bronchitis and asthma in children. An epi- demiological study Br Med J 1969; iv:321 5. 16. Knight A, Breslin ABX. Passive smoking and patients with asthma. Med J. Aust 1985; 142:194-195. 17. Garland C, Barrett-Connor,E, Suarez L, Criqui MH, Wingard DL. Effects of passive smoking on ischaemic heart disease mortality of nonsmokers: a prospective study. Am J Epidemiol 1985; 121:645 50. 18. Harris Poll. The Prevention Index '85: A Report Card on the Nation's Health. Rodale Press, Inc. 1985. 19. The Health Consequences of Smoking: Cancer. A Report of the U.S. Surgeon General, 1982, U.S. Dept. of Health and Hu- man Services, Public Health Service, Office on Smoking and Ilealth, Rockville, Maryland 20857: p viii.

22 CHAPTER 2. SECOND-HAND SMOKE Chapter 3 Supporters and Opponents of Nonsmokers' Rights Legislation 23 One of the most striking features of the nonsmokers' rights move- ment is that it has always been completely nonideological and non- partisan. It has always been supported by conservatives and liberals alike - and everybody in between. Thus, for every conservative who supports nonsmokers' rights legislation because the government should combat drug abuse, there is a liberal who supports it be- cause it is the government's responsibility to protect public health. Conversely, for every conservative who opposes nonsmokers' rights legislation because it "amounts to excessive government intrusion in our lives" there is a liberal to oppose it because it "constitutes a violation of civil liberties." The transcendence of ideology and partisanship is even more pro- nounced at the grass roots level. Organizers of local groups should seek support from all segments of the community and studiously avoid discussion of partisan politics at group meetings. Remember that the nonsmokers' rights movement is primarily a social, and not I

24 CHAPTER3. SUPPORTERS AND OPPONENTS a political, movement. When people organize to pass nonsmokers' rights legislation they are essentially interested in one thing: pro- tecting their health and comfort, and that is a common sense goal having nothing to do with political ideology. In any campaign for nonsmokers' rights legislation there are cer- tain organizations and individuals who will naturally support or op- pose the legislation, and others whose position is difficult to predict. Natural Constituencies The most obvious place to find support for nonsmokers' rights is in the health community. Organizations such as the Cancer Society, Heart Association and Lung Association have been important sources of support in many communities where legislation has been passed. However, the level of support from such voluntary agencies will vary greatly from one place to another, and you should not be discouraged if, for whatever internal reasons, a particular agency does not offer much assistance. (See Chapter 7, "The Basics of Organizing," for a further discussion on working with the voluntary health agencies.) Individual doctors, particularly those specializing in respiratory dis- orders, cancer and heart disease, should be considered as very likely to be strong supporters. (But see Chapter 8 as to the precautions to take when enlisting medical people as spokespersons.) Environmental organizations such as the Sierra Club can almost always be counted on for support, usually in providing volunteer activists and in testifying at hearings. In recent years, environmen- talists have become increasingly concerned about indoor air pollution (most people spend about 90 percent of their time indoors) and this has coincided with several studies showing that tobacco smoke is the primary source of such pollution. (For examples of such studies,.see Appendix H.) These studies should be used to enlist the support of both environmental groups and legislators who are concerned about the environment. Other groups who can usually be counted on for support include so-called good government organizations such as Common Cause, consumer groups and parent-teacher associations. 0 I t , 25 Members of many religious denominations whose beliefs prohibit the use of tobacco can be looked to for support, but care imust be used to avoid any religious or moralistic overtones in efforts to pass legislation. Potential Allies Although the insurance industry has yet to lend organized sup- port for nonsmokers' rights, there is a natural affinity between the business interests of insurance companies and the effort to protect the health of nonsmokers. All insurers have for a long time recognized the health and other hazards of primary smoking and have conse- quently offered reduced premiums for nonsmokers in a wide range of insurance policies. Most insurers are now beginning to recognize the hazards of smoking to nonsmokers, and support for nonsmokers' rights legislation should be sought from insurance companies as well as individuals in the insurance business. Remember that one of the known side effects of restricting public smoking is a reduction in the consumption of cigarettes and an increase in the number of smokers who attempt to quit the habit, particularly when restrictions are atr plied in the workplace. These factors should be pointed out whenever discussing the issue with insurers. ; Although most business organizations such as the Chamber of Commerce have tended to oppose nonsmokers' rights legislation, for reasons discussed below, the intensity of their opposition has greatly diminished in recent years as many businesses have begun to real- ize the benefits of such legislation. It is now possible to enlist the support of a chamber of commerce, as dernonstrated by the action taken by the Greater Riverside (California) Chambers of Commerce in writing a letter to the County Board of Supervisors (see Appendix I) and paying for a newspaper advertisement endorsing a proposed ordinance. Regardless of what organized business groups do, many progressive business leaders, often high executives in major corpo- rations, can be looked to for support. Such support is enormously beneficial in countering the argument that proposed legislation will hurt business. Similarly, although unions are unlikely to support

26 CHAPTER 3. SUPPORTERS AND OPPONENTS legislation, individual union leaders may do so, thereby helping to counter arguments that the legislation is anti-labor. Many civic leaders and public officials are willing to support non- smokers' rights. Their support lends credibility to the effort and is valuable in countering arguments that legislation will be a burden on taxpayers or will be impossible to enforce. When cultivating the support of public officials, be sure to point out the finding of the 1978 Roper Report (discussed in Chapter 1) that more people will vote for than against a political candidate who favors nonsmokers' rights legislation. Many well-known athletes and entertainers have endorsed non- smokers' rights legislation and/or assisted in campaigns to reduce smoking. Since we live in a society where such figures are looked to as role models by many people, their support can be important in influencing public opinion and can also bring a great deal of pos- itive publicity to a legislative effort. (See Appendix J for a list of sports and entertainment personalities who have supported nonsmok= ers' rights or opposed smoking.) Another potential organizational ally is the local fire department. Most firefighters are aware that cigarettes are one of the leading causes of fires - indeed, the leading cause of fire-related deaths in this country (see Appendix K). It is fair to assume that if public smoking is reduced, fires in public buildings will decrease and that if the number of cigarette smokers declines, so will the incidence of residential fires. Lastly, local stop smoking organizations may be willing to sup- port legislation if for no other reason than it will be good for business. Of course, any such support should be as unofficial as possible so as to avoid the implication that the legislative effort is really an attempt I-3 to get people to stop smoking rather than to protect nonsmokers from the harmful effects of second-hand smoke. Certain Opponents The tobacco industry, for reasons discussed in Chapter 1, will oppose any nonsmokers' rights legislation and will provide the only 27 real opposition. They may send their own lobbyists from the To- bacco Institute, the industry's trade association, or they may hire a local attorney or public relations firm, depending on the size of the community and the nature of the proposed legislation. Also, the industry often works through its numerous subsidiary companies whose businesses on the surface have nothing to do with tobacco. It is not uncommon for a legislator to be lobbied by such a subsidiary and not even realize that he or she is really being pressured by the tobacco industry. You should become familiar with the list of com- panies that are owned by the tobacco industry (see Appendix L) and alert your legislators and the press as to just who is really behind the opposition. Remember too that local companies may be in the tobacco busi- ness even though their names don't indicate it. For example, the "XYZ Wholesale Distributors" is likely to distribute tobacco prod- ucts, among others. Probable Opponents Businesses generally oppose any form of regulation by the gov- ernment. For this reason alone, nonsmokers' rights legislation may be opposed by the local chamber bf commerce and, if the legislation affects restaurants, the local restaurant association. However, these organizations rarely view nonsmokers' rights as a crucial issue worth spending considerable money or political capital to oppose. In most cases, they will work behind the scenes with the tobacco industry and their public statements will show that they are merely acting as fronts for the tobacco industry. Nevertheless, it is always worth approaching these organizations to explain why restrictions on smoking can benenfit business rather than hurt it. For example, employees who smoke cost their employers considerable expense that nonsmoking employees do not incur (see Appendix M). Smoking in retail stores and other business establish- ments causes damage to merchandise and constitutes a fire hazard. With respect to restaurants, a Gallup Poll, conducted in 1984, indi- cates that 47 percent of people do not eat out because of the smoke

i 28 CHAPTER 3. SUPPORTERS AND OPPONENTS 29 pollution that is usually present in restaurants. Other polls show an overwhelming majority of both smokers and nonsmokers prefer to have separate sections in restaurants (see Appendix N). Although you may not be able to enlist the support of a chamber of commerce or a restaurant association, if you approach them early in the game and find a sympathetic person in a leadership position, you may well be able to persuade them at least not to oppose the legislation. This can be almost as fruitful as obtaining their support, because to the extent you can eliminate other active opponents, you will be able to isolate the tobacco industry as the only organized op- position. When this happens, local legislators quickly lose interest in opposing the legislation. A key point to consider here is that the restaurant associations have traditionally been much more vociferous in their opposition than have other business organizations. This is probably due to the unique problem in creating separate smoking and no smoking sections in restaurants and the fierce independence displayed by most restaurateurs. In some cases you may find that you can easily pass an ordinance if you greatly dilute or eliminate the restaurant provisions. For a further discussion on strategy with regard to restaurants, see Chapter 5, "Scope and Types of Ordinances." Many labor organizations have opposed nonsmokers' rights legis- lation for a variety of reasons. Some unions are fearful of the loss of jobs in the tobacco industry, which is heavily unionized. Ironically, this is a tacit admission that the principal reason for the tobacco industry's opposition is a loss of profits, rather than all the other reasons usually expressed. Unions also claim that workplace legisla- tion interferes with their right to bargain collectively over working conditions. And many unions are simply reluctant to take a stand on an issue that they see as extremely controversial within their mem- bership although, of course, supporting the status quo amounts to a stand in favor of smokers. Nevertheless, some local unions and union leaders have been supportive, and at a time when unions are partic- ularly concerned about toxic hazards in the workplace they should be approached, if for no other reason than to educate them on the health hazards presented to their members on the job. 1 I What About Smokers? There has never been any organized opposition to nonsmokers' rights legislation by smokers, despite at,tempt.s by the tobacco indus- try to organize grass roots pro-smoking organizations. Actually, as various public opinion polls have consistently shown, the vast major- ity of smokers favor restrictions on public smoking and smoking in the workplace (see Appendix N). You must bring this fact, home to legislators and the press, both of whom usually assume that, passing nonsmokers' rights legislation will be at the expense of smokers. That simply is not true - the only real losers are the tobacco companies, whose profits will fall as fewer people smoke. Role of the Media The media have generally had an enormous impact on attempts to enact nonsmokers' rights legislation. Although this impact was initially extremely negative, many newspapers and radio and tele- vision stations have come to support nonsmokers' rights editori- ally. Moreover, several nationally syndicated columnists and car- toonists have long supported the issue. And when legislative victo- ries have occured, the media have usually become quite interested 'in the nonsmokers' rights movement and the political clout it has demonstrated. Even if a media outlet opposes legislation editorially, individuals in the media can be of tremendous assistance. Thus, columnists, talk show hosts and political cartoonists all have great influence with the people they reach and in many instances are more influential than the editorial writers. A detailed analysis on dealing with the media is presented in Chapter 9; the point to remember here is that, the media can be a great ally, but they can also be an implacable foe. Because the tobacco industry has such enormous economic leverage, particularly with the print media, it has a running start. in gaining support for its position, at least on the editorial page. But this can be overcome with a resourceful effort to educate and cultivate the various facets of the media from the very out,set, of a legislative

31 30 CHAPTER 3. SUPPORTERS AND OPPONENTS Chapter 4 campaign. (For illustrations of media support for nonsmokers' rights, see Appendices O(editorials), P (columnists), Q (cartoonists).) The Issues At the heart of any campaign for nonsmokers' rights legislation is the effort to persuade the right people that legislation is needed to protect the health and comfort of nonsmokers. This one central point is not really an "issue" in the true sense of the word, because all the evidence is to the effect that second-hand smoke is a health hazard and a discomfort to nonsmokers. However, the tobacco industry uses various deceptive tactics to make the health hazards appear to be controversial and subject to debate. You must be prepared for these tactics and know how to counteract them. The attempt to pass legislation will also spawn numerous secondary issues, most of which will put nonsmokers on the defensive if they are not totally familiar with the facts. An important part of the process in combatting the tobacco in- dustry is to learn the symbolism of debate ---- the "catchwords" the industry employs in denouncing laws restricting smoking while wrap- ping itself in motherhood and the flag. You must learn not only to recognize these symbols but also to develop a set of counter symbols. In some cases, you might use the same words, but in an obviously more appropriate context. The following are examples of such sym- bols and countersymbols. • Symbol: Scientific uncertainty, as in "there is no real evidence that second-hand smoke is harmful to nonsmokers," or "the

32 CHAPTER 4. THE ISSUES scientific community is split on the question of whether passive smoking is harmful." • Countersymbol: The medical evidence is established or settled, as in "the overwhelming body of scientific evidence shows that second-hand smoke poses numerous health hazards to non- smokers," or "every recognized medical organization in the country dealing with the hazards of smoking now recognizes that the hazards extend to nonsmokers." Avoid debates with trained quibblers on the scientific evidence and stress that only paid spokespersons for the tobacco industry challenge the overall medical conclusions. • Symbol: Rights, as in "smokers have a right to smoke." • Countersymbol: Rights, as in "nonsmokers have a right to breathe clean air." Stress more specific rights of nonsmokers that are threatened by second-hand smoke, such as the right to work, the right to travel, the right to participate in public affairs and the right to go about your daily business without encountering unnecessary health risks. Conversely, point out that there is no right to pollute the air and endanger other people's health. • Symbol: Freedom, as in "smokers should have freedom of choice," or "it's a free country; I can smoke anywhere I want to. ,) • Count.ersymbol: Freedom, as in "freedom from toxic chem- icals," "freedom from involuntary smoking," or "freedom of choice not to smoke." Note that rights and freedom, like justice, are two-edged swords. No one can take away your rights and freedom by polluting the air you breathe. 33 • Symbol: Common Sense, as in "common sens(,, not, legislation, is the answer." • Countersymbol: Common Sense, as in "c'onllnon sense tells us that people should not be forced to breathe toxic chemicals against their will." Almost any discussion involving tobacco industry arguments will lend itself to use of the term "common sense" in rebuttal. Tbr ex- ample, the industry will say that the cost of no smoking signs will be too much for some retail stores to bear. Common sense tells you that one 49-cent sign will not drive any business into bankruptcy. • Symbol: Legitimacy of the tobacco industry, as in "it's a legal product; why can't people use it when they want to?" • Countersymbol: Greed; prof t motive, as in "the tobacco indus- try is opposed to the legislation solely because it fears a loss of profits." • Symbol: Ineffectiveness of legislation, as in "this kind of leg- islation just won't work," or "it is social engineering" or °Rlt breeds disrespect for the law.") • Countersymbol: Self-enforcing law, as in "most citizens are law abiding," or "most people obey stop signs and they will also obey no smoking signs." Point out that the common experience of all the places where nonsmokers' rights laws have been enacted is that they are working well. • Symbol: Floodgates, as in "this kind of law jnstt leads to all sorts of repressive legislation and attitudes; first, public sinok- ing, then something else plea.surable will be rcgulat.ccl." • Countersymbol: Uniqueness and pervasiveness of the problem, as in "unlike other personal and pleasurable hahits, smoking in public creates. a serious health hazard that affects the lives of everyone in the community."

I I 34 CHAPTER 4. THE ISSUES Do not let the industry preempt the use of these important sym- bols. If they do, you will forever be on the defensive, trying to explain why the proposed legislation will not deprive someone of precious rights. The Health "Issue" The medical evidence on the hazards of second-hand smoke is set forth in Chapter 2. When discussing the evidence, you should stress the fact that second-hand smoke is the major source of toxic chem- ical exposure and indoor air pollution for most people, and that it should be viewed as a serious public health hazard in the same way that society views outdoor air pollution. In fact, indoor air pollution caused by tobacco smoke is often more significant, in terms of objec- tive measures, such as particulate concentrations or concentrations of carbon monoxide, than outdoor air pollution. The real issue is not whether there is a health hazard, but rather what to do about the hazard known to exist. To quote U.S. Surgeon General C. Everett Koop, "There is all the medical evidence necessary to support reasonable and sensible pro- tection for the nonsmoker against the irritation and potential harm that comes from other people's smoke." When discussing the health effects of second-hand smoke, stress the fact that certain segments of the population, namely the elderly, children and persons with existing illnesses, are particularly suscep- tible to the dangers. Obviously all nonsmokers have the right to breathe clean air, but these categories of persons are likely to engen- der special sympathy from legislators. Since the tobacco industry knows that it cannot win a legitimate debate on the public health issue, it has developed a set of tactics designed to confuse people and make them believe there is a real controversy. For example, although only a few of the hundreds of studies on the effects of second-hand smoke conclude that there are no health hazards to nonsmokers, the industry is fond of citing them in claiming that there is no real proof that second-hand smoke is detrimental to nonsmokers. The industry also will often cite medical 35 authorities in support of its argument that there are no real dangers from second-hand smoke. There are several things to bear in mind about tobacco industry pronouncements on the health issue: 1) The studies they cite are invariably outdated or unrepresentative of general scientific knowl- edge. 2) The quotations from medical experts are usually distorted or out of context; when they are accurate, the expert is likely to be in the pay of the industry. 3) The same industry which still denies that cigarette smoking is harmful to the smoker, despite incontrovertible evidence to the contrary, cannot and should not be given any cre- dence in discussing the health effects of smoking on nonsmokers. The following are illustrationss of how the tobacco industry has used out-of- date material or has quoted leading medical authorities out of context to make it appear as if they did not believe second- hand smoke to be harmful when, in fact, the opposite was true. The U.S. Surgeon General. The tobacco industry often quotes from the U.S. Surgeon General's report of 1979 to the effect that responses of individuals to second-hand smoke "may be due to psy- chological factors." Aside from the fact that the quote related only to certain specific health effects, it was written before most of the important studies on second-hand srnoke were published. A far more accurate assessment of the SurgeonI General's current opinion can be made from the quote at the beginning of this subsection, which came in 1985. Dr. Claude Lenfant, Director of the National Heart, Lung and Blood Institute. During the 1980 initiative compaign for a nonsmokers' rights measure in California, the tobacco industry quoted from an editorial Dr. Lenfant had written analyzing an im- portant study showing that nonsmokers who were exposed to second- hand smoke in the workplace had reduced function of small airways in the lungs, compared to nonsmokers who were not exposed, as fol- lows: "The evidence that passive smoking in a general atmosphere has health effects remains sparse, incomplete and sometimes uncon- vincing." The industry ignored a subsequent, part of the editorial,

- 36 CHAPTER 4. THE ISSUES which stated "The article by White and Froeb [authors of the study] ... brings a new dimension that will clearly have considerable impact; they faultlessly demonstrate a reduction in measures of small airways of healthy nonsmokers exposed to cigarette smoke in the workplace ... now, for the first time, we have a quantitative measurement of physical change - a fact that may tip the scales in favor of the non- smoker." [Emphasis added.] Dr. Lenfant was so incensed by the industry's misuse of his remarks that he sent a telegram to the spon- sors of the initiative, in which he endorsed the measure and accused the industry of misquoting him. Lawrence Garfinkel, Vice President for epidemiology and statistics, of the American Cancer Society. In 1981, two stud- ies from Japan and Greece showed a link between involuntary smok- ing and lung cancer. At about the same time, an American Cancer Society study, conducted by Lawrence Garfinkel, showed that there was an excess of lung cancer deaths among nonsmoking women mar- ried to smokers but concluded that the finding was not statistically significant. Since the study was not originally designed to investi- gate the effects of passive smoking, any conclusions on that subject would not be noteworthy. Moreover, the study stipulated that it may be misleading to classify a woman as a passive smoker or not on the basis of her husband's smoking habit because some wives of nonsmokers may be more exposed to cigarette smoke of others than wives of smoking men. Nevertheless, in an attempt to discredit the other two studies, which were beginning to draw a great deal of attention, the tobacco industry began running a series of ads in major newspapers and magazines throughout the country, citing the Cancer Society study as evidence that there was no connection between passive smoking and lung cancer. Worse yet, the ads quoted Garfinkel out of context in such a way as to make it appear that he did not consider passive smoking to be any kind of a health risk even though the quotations came from a statement having to do solely with cancer risks. After numerous ads distorting his views and the significance of his study, Garfinkle was finally constrained to write to the New York Times to 37 declare that he had been misquotquoted and to rrallirin his belief that there are serious health hazards associateil with second-hand smoke. He concluded: "It is irresponsible of [R...1.] R.eynolcls to at,- tempt to create a false sense of security about. the pot.ential clanger5 of passive smoking, especially at a time when incriminating evidence continues to accumulate." (See New York Times, June 5, 1984.) Any further attempt by the industry to use the Garfinkle study to its advantage would be even more deceptive now, because lie pub- lished a new study in 1985 which concluded, as (lid the .lapanese and Greek studies, that there is a link between second-hand smoke and lung cancer. See Chapter 2 for a discussion of that study. Whenever a medical study is cited by the opposition, find out. who authored the study, when it was published and who commis- sioned it, and have a medical expert explain why the study is not damaging. There is no study with adverse conclusions which cannot be explained away because of its age, the self-interest of the authors, defective methodology or sheer weight of numbers of contradictory studies. Whenever a member of the opposition quotes a medical ex- pert in support of his position, trace the quoted statement to uncover whatever inaccuracy or out-of-context meaning there might be. If possible, contact the person quoted to obtain a statement clarifying his or her actual position on the issi}e and denouncing the use of his or her r.ame in opposition to the legislation. Incidentally, this may not always be possible, simply because the tobacco indust,ry has been known to quote deceased scientists in support of its position. (See Appendix R for correspondence relating to falsification of opinions of medical experts by the tobacco industry.) One of the industry's favorite arguments is to claim that there is insufficient and conflicting evidence as to the health problem of second- hand smoke, and there should be no restrictions on pub- lic smoking until there is "absolute" proof that second-hand smoke is dangerous to nonsmokers. Although this argument is patently ridiculous, it has been used with surprising success and it should be effectively rebutted before it takes hold. It makes a perfect. excuse for a legislator to say "I would vote for this if there were just. more

38 CHAPTER 4. THE ISSUES definitive proof about the health problems." First, the hundreds of studies showing the hazards of second-hand smoke comprise a much larger body of evidence than is usually required to act on a public health matter. Many toxic substances are strictly regulated on the strength of merely a few studies. Moreover, when 98 or 99 percent of the studies show adverse health effects (as they do), that is over- whelming evidence that literally cries out for action. There is almost nothing we do in our daily lives that demands 100 percent certainty before we act, and surely we should not ask for that level of cer- tainty before acting to protect the public health. In fact, if public officials accepted the same argument with respect to other health and safety matters and refused to take preventive action, they would be considered irresponsible. Actually, given the known dangers of tobacco smoke to the smoker, far from asking nonsmokers for 100 percent proof of the dan- gers to nonsmokers, the burden should be on the tobacco industry to prove that second-hand smoke is not dangerous. Another important tactic that the industry has begun to use is the convening of various scientists in meetings, called "workshops," for the purpose of developing evidence that second-hand smoke is not a health hazard. Generally, the industry will attempt to obtain a co- sponsor, such as the World Health Organization, to lend credibility to the meeting, even though such co-sponsorship does not mean that the meeting speaks for the organization. The industry will quote from press releases issued by one individual at the meeting, or perhaps from one scientific paper, although there will also be evidence pre- sented at the meetings supporting the view that second-hand smoke is harmful. This represents another example of the industry using selective and out-of-context quotes to distort the medical evidence. The reason nonsmokers have to fight so hard to protect their rights is not because there is really any doubt that tobacco smoke is harmful, but rather because we are attempting to change a long- standing and widely held social custom. We are trying to destroy a myth built up by some 40 to 50 years of relentless advertising, and that is not an easy task. In this connection, one thought stands out: if the cigarette were invented tomorrow and presented to the Food I 39 and Drug Administration for marketing approval, there is no chance that it would see the light of day. (See Appendix S for two tobacco industry analyses on passive smoking and the.rebuttals thereto.) Is Legislation Necessary? Since most people would agree that legislation should be avoided if a problem can be solved without it, a favorite tactic of the opposi- tion is to claim that even if second-hand smoke creates a problem for nonsmokers, laws are unnecessary. "Common courtesy" and "mutual respect between smokers and nonsmokers" will be put forth as the panacea. As previously noted, "common sense" is another shop-worn remedy. A corollary of this position is that if nonsmoking sections are to be established at all, they should be implemented on a vol- untary basis. Thus, the argument runs, if nonsmoking sections are such a good idea, let the marketplace decide where they should go. Obviously, nonsmokers must be able to demonstrate the need for leg- islation or it will not be enacted. There are various answers to the above arguments. "Common sense" and "common courtesy," while nice phrases, are totally impractical solutions. This is so not because smokers lack courtesy or good sense, but rather because there is no basis for the operation of those solutions without the establishment of ground rules as to where smoking is or is not permitted. Nonsmoking legis- lation works primarily through the posting of signs which establish those necessary ground rules, thereby allowing smokers to demon- strate that they are courteous and law-abiding. The need for laws requiring the posting of signs can be compared with the need for traffic lights and stop signs. Most drivers are courteous and law- abiding, but if there were no lights or stop signs, drivers would not know where they should stop. Just as drivers do not usually stop at an unmarked intersection, smokers do not usually refrain from smoking unless there is a sign indicating that smoking is not permit- ted. Again, 50 years of advertising the virtues of smoking has led most smokers to believe that they may light up almost anywhere. Readers who are old enough may remember the Benson and Hedges I

40- CHAPTER 4. THE ISSUES ads showing a person having his extra long cigarette caught in an elevator door! The "common courtesy" argument presupposes that the burden is on the nonsmoker in every social situation to ask others --- most often total strangers - to refrain from engaging in a personal habit. This turns logic on its head because it puts the burden on the in- nocent party to take action while allowing the party who is creating the problem to engage in offensive conduct unless requested to stop. "Common sense" suggests that nonsmokers should not have to spend their day asking numerous strangers to stop hurting them. For ex- ample, a person in a restaurant in the course of a meal may have as many as six or eight different people smoke at surrounding tables. Should the nonsmoker really be expected to interrupt his meal that often to ask people to stop smoking? The tobacco industry thrives on the "big lie" technique, which includes the use of arguments that the industry knows are the exact opposite of the truth. This is one area in which that technique is used. Thus, while the industry claims that "common sense" and "common courtesy" will solve the problem, it also claims that legislation will lead to confrontations and fights between smokers and nonsmokers. But it is precisely the lack of legislation - and the lack of signs to establish ground rules - that lead to confrontation. In fact, the common courtesy "solution" is a recipe for confrontation because it pits smokers against nonsmokers, with no rules to govern their conduct. An important point to remember is that smokers also prefer to avoid the confrontations that currently arise when there are no ground rules. That is one reason that a majority of smokers con- sistently support the creation of separate smoking and nonsmoking sections. There are numerous arguments you can make to show that vol- untary programs to protect nonsmokers are inappropriate. First, point out that when other public health matters arise, we pass laws to protect the public. We don't have "voluntary" programs to re- duce outdoor air pollution, to provide for proper storage of toxic wastes or to insure sanitary conditions in restaurants. You can point i I t I 41 out that nonsmokers have been expressing a desire to linnit, srnoking in the workplace for many years, and yet, mo5t, companies have not responded at all to their requests. If companies have not, done so before, why would they now voluntarily limit smoking? Yoi,r alrnost certainly can find employees who will testify Ehat they have sought., without success, to have their companies act on this problem, and you probably can locate some who have been fired or demoted be- cause they complained too much about smoking at, their workplaces. There is also the question of motives. The tobacco inclust,ry is intent on protecting its profits and it has no real interest, in the success of any program to limit smoking. If the industry thought, that voluntary programs really work, it would never support them. Conversely, if nonsmokers' rights advocates, who have already tried voluntary programs, believed they were useftil, they would be the first to advocate their adoption. Similarly, why would the Chamber of Commerce, which is typically asked to oversee voluntary programs, have any real interest in their success when it is fundamentally op- posed to regulations of any kind and has no experience in health matters? Finally, you can point out that a resolution by a legisla- tive body urging adoption of a voluntary program is a waste of time and money since it is merely declarative of existing law and has no binding effect. In every place voluntary programs have been attempted, they have been miserable failures. One example of a failed program oc- curred in San Jose, California, where the Chamber of Commerce persuaded the City Council to foiego a mandatory workplace smok- ing law in favor of a voluntary program. This program included the mailing of an explanatory brochure to 2,900 Chamber of Commerce member businesses. Only 10 percent of t.he recipients responded in a positive fashion indicating that they already had or would insti- tute smoking policies in the workplace. When voluntary efforts have been attempted with restaurants, typically only 5 to 10 percent will provide no smoking sections. See Chapter 5 as to the strategy to use when it appears that you cannot pass anything stronger than a voluntary law.

42 CHAPTER 4. THE ISSUES Is Legislation Wanted? Closely related to the question of whether legislation is needed, is the question, who wants it? Will the law be popular or is it only a vocal minority that is advocating it? The answer is that every major public opinion poll since the mid 1970's has shown that the vast majority of both smokers and non- smokers want either a total ban on smoking or separate smoking and no smoking sections in every type of facility, including the workplace, restaurants and public transportation. Unfortunately, most people do not realize that this consensus exists, and one of the first things you need to do in any legislative campaign is to publicize the consen- sus, as shown in the polls. (For samples of such polls, see Appendix N.) As discussed in Chapter 8, you might try to have your legislators send out their own surveys on the issue. Unfortunately, you also need to be on the lookout for bogus pub- lic opinion polls commissioned by the tobacco industry. The industry has started to use these polls for the specific purpose of persuading legislators that the public does not want nonsmokers' rights legisla- tion. Not surprisingly, they show results diametrically opposed to those of reputable independant polling organizations, and they are noted for the biased phrasing of the questions, which accounts for the results. Alert your supporters to the possibility that they may be called to participate in such a poll and have them try to find out who is sponsoring the poll. If questioned, some pollsters will divulge the name of their employer. The employer will be a public relations firm, which you can usually confirm to be connected with the in- dustry. Specifically, you should watch for V. Lance Tarrance and Associates, a Texas firm which does much of the industry's polling. As soon as you suspect such a poll is being conducted you should alert the media and point out why the poll is not valid. (See Ap- penclix T for two industry-sponsored polls and an analysis of one of them, as well as newspaper stories on two other polls.) Once a few laws have been passed in part of a county or state, the popularity question will feed on itself and you will find legislators in ot her parts of the county or state falling over themselves to sponsor 43 similar laws. See Chapter 5 as to the importance of establishing early victories. It is surprising to many that a majority of smokers strongly sup- port smoking restrictions but there are three very clear reasons why they do. First, 90 percent of all smokers want to quit and many of them see restrictions as one of the best methods of helping them to quit or cut down on their smoking. Indeed, the tobacco industry is so fearful of smokers quitting that they spend millions of dollars trying to prevent restrictions from.being implemented. The second reason is that smoking regulations insure smokers that when they do want to smoke, they can do so knowing they will not be bothering nonsmokers, and that nonsmokers will not be asking them to stop. Third, many smokers find it annoying to be around other people who are smoking! Although smoking restrictions should always be predicated on the protection of basic rights and not the fact that nonsmokers out- number smokers, it does not hurt to point out to legislators that approximately 75 percent of the population does not smoke and that the percentage of smokers is steadily declining. The 75 percent fig- ure takes into account the total population, including children, and it is important to use this figure rather than the more commonly referred to ratio of nonsmokers to smokers among the adult popu- lation, which is roughly two to one. Remember that the legislation will affect children in many places, including health facilities, schools, places of entertainment and restaurants. ; Scope of Legislation The strategy for determining the scope of the legislation to be sought will be discussed in Chapter 5, but it should be pointed out here that the scope of the law itself will become an issue. If it is coin- prehensive, the opposition will claim it is too sweeping and repressive, and opponents will argue for more limited restrictions. On the other hand, if the proposed law is limited to begin with, or if it provides for certain exemptions for practical reasons, the argument will be made that it is discriminatory because it does not apply equally to

44 CHAPTER 4. THE ISSUES all businesses. The answer to the first argument is simply that the law should apply to all places where nonsmokers need protection. If it is sensible to pass a law to solve a problem, then it is sensible to rnake it appli- cable wherever the problem exists. In fact, whenever comprehensive legislation is proposed, the opposition inevitably proposes that the most important provisions, those covering the workplace and restau- rants, be excised. The answer to the second argument is that many governmental regulations are limited by exceptions and exemptions which are included for various reasons. Courts have long recognized the right of the legislature to make reasonable classifications in leg- islation as long as they are not enacted for discriminatory reasons. Whatever the tobacco industry might say about the "unfairness" of the legislation, no law restricting public smoking has ever been successfully challenged in court. Civil Liberties The tobacco industry regularly denounces legislative restrictions on smoking as an infringement on the right of people to smoke. This is variously referred to as a "constitutional right" or "inherent right" and, of course, it is neither. Technically, smoking is a privilege which a person may excercise within limitations set by the government to protect public health. But nonsmokers should be wary of getting trapped into a sterile debate on that distinction since it only serves to focus attention on the "plight" of the smoker. When the opposition waves the civil liberties flag at you, wave it right back. Talk about the constitutional or inherent right of a nonsmoker to breathe clean air in public places. Talk about the long-recognized common-law right of a person to a safe and healthy work environment and the right of a nonsmoker to attend meetings of governmental bodies or to serve on a jury without endangering his or her health. After pointing out all the rights of the non-smoker which have been trampled for so many years, you may then magnanimously recognize the "right" of a person to smoke but with one important proviso: when the right of a nonsmoker to breathe clean air conflicts with the "right" of 45 a person to smoke, the right of the nonsmoker inust prevail. ThiS simple and irrefutable piece of logic has been the cornerstone of the nonsmokers'rights movement since its inception, and no one has ever seriously suggested that it is not a fair st,at,ement.. The folow-up argument is that smokers have a choice whether or rrot, to srnoke at, any given time, but nonsmokers do not have a choice on whether or not to breathe. The tobacco industry often suggests that smoking restrictions turn smokers into second-class citizens, and compares the estahlish- ment of separate smoking and no smoking sections to segregation. You can easily refute this by pointing out that unlike segregation laws, which separated people on the basis of who they were, smoking laws separate people on the basis of what they are doing. A smoker does not have to go to the smoking section if he is not smoking, and a nonsmoker may go to a smoking section if he wants to. Tlre signs in a nonsmoking section say "No Smoking," rrot "Nonsmokers Only." There are countless human activities which are restricted by law in terms of time and place -- the consumption of alcoholic bever- ages being the most obvious. There is no reason to exempt smoking from such restrictions other than to protect tlre profits of t,lre tobacco industry. Another favorite industry argument is the notion that the legisla- tion creates a "victimless crime," and punishes smokers for engaging in conduct which does not affect others. The industry is often able to use this argument effectively because many people confuse the effort to protect nonsmokers' rights with the effort to get people to quit smoking. To people who don't understand this fundamental distinc- tion, nonsmokers seeking legislative action are made to appear as moralists or bluenoses --- modern- day Carrie Nations attempting to impose their morality on others. Even people who work ardently to help people stop smoking do not generally believe that the govern- ment should prohibit smoking. The reply to this, of course, is that. when people smoke in private, it is their business, but when they smoke in public they most certainly do affect other people by forcing them against their will to ingest toxic chemicals. An analogy is easily drawn between the right of a person to drink

46 CHAPTER 4. THE ISSUES in private compared to the interest the government must take when the drinker gets behind the wheel of an automobile or engages in anti-social conduct in public. Because this issue is certain to arise, it is imperative that your nonsmokers' rights group not allow anyone to speak on its behalf who does not clearly understand the distinction between getting people to stop smoking and protecting the health of nonsmokers, and who does not fully understand that the latter is the sole purpose of any proposed legislation. You must bear in mind that although the legislation may well have the desirable side effect of helping smokers to quit, you should never discuss that in terms of the purpose of the law. The tobacco industry has had great success in duping some proniinent civil libertarians into opposing nonsmokers' rights legis- lation and you must be prepared to debate the civil liberties issue if it arises. The industry has also often found allies among Liber- tarian Party members, who are primarily swayed by the "victimless crime" idea. It is quite common to find oneself debating a Libertar- ian whose only perspective on the proposed legislation is that it will prevent people from doing what they want to do. Some Libertarians will argue that a smoker should be able to smoke whenever he wants to, even though the smoke is harmful to others. This is a variation of the "if you don't like it here, go somewhere else" argument, which is difficult to debate because it is so outlandish. Usually, unless you have your own Libertarian to do battle, the best tactic to use is ridicule, not only of the specific arguments dealing with legislation but also of sonie of the positions of the Libertarian Party, which. are seen by most people as totally out of touch with reality. Point out that if the Libertarian argument is followed to its logical conclusion, there would be no public health and safety laws, surely a minimal requirement in any civilized society. You can also suggest that the person is simply a shill for the tobacco industry. Opponents of nonsmokers' rights legislation will sometimes make the assertion thatt it is "unconstitutional." This is usually based on t he notion that such legislation denies smokers equal protection or due process of law. This is a completely spurious idea inasmuch as such legislation is clearly within the police power of the state i I 47 to protect the public health. The industry keeps trotting out this idea even though, with all of its legal resources, it has never even attempted to challenge any of the dozens of statutes and ordinances now on the books. The argument has been fully addressed and put to rest in the opinions of the City Attorneys of San Francisco, Los Angeles and Sacramento (see Appendix U. For your amusement, see also Appendix V for a "legal" opinion by a private attorney employed by the Tobacco Institute, to determine the constitutionality of a proposed ordinance in Sacramento County, California.) Government Regulation While trying to persuade liberals that nonsmokers' rights laws deprive people of their civil liberties, opponents will be trying to persuade conservatives that such laws constitute unwarranted gov- ernment intrusion into the lives of people and the conduct of busi- nesses. Regulation of smoking will be ridiculed as "Big Brotherism," and people who seek legislation.will be likened to "shower regula- tors," that is, people who will next want to regulate how everyone takes a shower. Note that this argument is very closely related to the attempt to label nonsmokers' rights activists as moralists and pro- hibitionists. Many business people will simply argue that they have the right to run their businesses any way they see fit; that they may permit smoking on their premises in any manner, notwithstanding the concerns of employees or customers. This is the original "if you don't like it here, go somewhere else" argument. Given the general mood of the country in recent years, this ar- gument is perhaps the opposition's most powerful weapon. It is, by , and large, a philosophical argurnent which is difficult to assess in concrete terms. Thus, it must be answered largely in philosophical terms. Fortunately, we have a long history of regulating both per- sonal and business conduct to protect the public health and welfare, and numerous analogies can be drawn between existing regulations that are universally accepted and proposed legislation. In fact, when discussing this issue, you should forcefully assert that the govern- ment does not merely have the right to pass this type of regulation

48 49 CHAPTER 4. THE ISSUES but that it has the duty to do so, given the clear and widespread dan- ger to public health. This duty is incumbent on the legislature even though regulation may interfere somewhat in people's lives, because it is for the greater public good. While it is fashionable to denounce government regulations and government bureaucrats, practically no one would seriously suggest that we abandon the myriad of laws we have to protect public health and safety. Since the proposed legislation is designed to reduce indoor air pollution, you might well ask the critics if they are also opposed to the Federal Clean Air Act, one of the most popular laws ever passed by Congress. Legislation, insofar as it applies to the workplace, may also be compared to the Occupational Safety and Health Acts which have been enacted at both the Federal and state levels. Although these acts are unpopular in the business comcommunity they have had broad support among the general population which views them as necessary to protect workers. Unlike OSHA and other regulatory laws, however, nonsmokers' rights legislation does not burden busi- nesses with paperwork or expense. The posting of inexpensive signs is usually the only "burden" imposed on businesses, and it is minor compared with the savings which will be realized from the reduction or elimination of smoking on the business premises. You should use great discretion in making the OSHA comparison, however. Discuss it only with those legislators who you are sure will be sympathetic to it. Sooner or later, someone will suggest that the proposed legisla- tion is another attempt at Prohibition. You should point out that whereas Prohibition banned all drinking (even in private), this leg- islation would not prohibit smoking, but would simply place reason- able limits on it and would actually allow smoking wherever it does not infringe on the rights of nonsmokers. You can also point out that although the Prohibition law was repealed fifty years ago, there are still numerous laws that regulate and limit the consumption of alcoholic beverages. Thus, the Prohibition argument can be neatly turned to your advantage by making the analogy between nonsmok- ers' rights laws and laws limiting public drinking, not to mention the I , , . almost universal ban on drinking in the workplace. You might also compare the proposecl legislation to the laws en- acted at the turn of the century against public sli t,ting, wheu it was discovered that spitting spread tuberculosis. Public spitting wws quite popular at the time and the attempt to legislate against it, was met with the same kinds of arguments used against public smoking laws. Nevertheless, it was generally outlawed and the Republic survived. The government regulation issue will essentially boil down to a question of how necessary the legislation is and how reasonably it, can be implemented. If you can persuade a legislator of the need for the law (see discussion above, in this Chapter), and that, similar laws have worked well elsewhere with a rninimuni of interference or disruption of businesses (see Chapter 6 as to experience with existing legislation) this issue will usually be resolved favorably. Costs The cost issue has two distinct (although obviously related) as- pects: what will legislation cost private industry and what will it cost government? Actually, the cost issue is one that can be turned quickly to nonsmokers' advantage since it, is easy to demonstrate thatt any actual costs to business will be greatly outweighed by eventual savings. Because the suggested model legislation (see Chapter 5) is de- signed to avoid any structural changes in places of business, the cost to private industry really involves only signs. However, the tobacco industry is likely to claim that the law will not only disrupt business operations but will actually force some businesses to close or relocate. They will also suggest that the'law will create such a bad business climate that businesses will be reluctant to move to the area. Insofar as the law applies to retail stores, restaurants and the like, the cost of a few signs can be shown to be negligible, simply by pricing them at a local sign store. You can point out that many retail stores already have numerous signs informing their customers of var- ious policies and that all those other signs hardly created a financial

50 CHAPTER 4. THE ISSUES 51 ~ ~ ~ burden. You can also point out that for decades places of business have provided ash trays and urns for smokers at their own expense. If they can do that for smokers, surely they can afford a few signs for nonsmokers. The savings to retail stores will come in the form of reduced smoke and burn damage to merchandise and carpeting, lower maintenance costs and a more pleasant shopping atmosphere. Since a 1984 Gallup Poll shows that a significant number of people dine out less often because of smoking pollution (see Appendix N), restaurants can expect more business if they provide no smoking sec- tions. There is also anecdotal evidence that nonsmokers dine faster, so there is a greater turnover of patrons in the nonsmoking section, thus allowing a restaurant to serve more people. Insofar as the law applies to the workplace, the cost of signs may be a somewhat more serious factor, depending on the size of the busi- ness, but that cost will be greatly overshadowed by potential savings. The savings will be realized directly by increasing the productivity of the nonsmoking employees, and by avoiding the loss of nonsmok- ing eniployees who are forced to quit because of smoking pollution. Many such employees have successfully won unemployment bene- fits or workers' compensation awards, both of which lead to higher costs for employers. (For an analysis of nonsmokers' legal rights in the workplace, see Appendix W.) But employers can actually expect to reap far greater savings indirectly due to the many employees who may decide to quit smoking because of smoking restrictions. It is well-documented that smoking costs employers billions of dollars each year in the form of added insurance costs, absenteeism and sick- ness benefits, reduced productivity and the increased likelihood that smokers will contract occupational diseases. When the San Fran- cisco Workplace smoking ordinance went into effect, the San Fran- cisco Lung Association reported a startling increase in the number of requests to participate in its smoking cessation programs. This experience is typical, and the potential savings to employers is enor- nious. It is also anot.her indication of why the tobacco industry is so frightened of nonsmokers' rights legislation. (For a detailed anal- ysis of the cost savings to employers from reducing smoking in the workplace, see Appendix M.) i I , r The contention that the proposed law will disrupt businesses and force them to close or leave town is so preposterous that, it, hardly should be dignified with an answer. The idea that the law will create friction in the workplace belweeen smokers and nonsmokers is absurd on its face since the friction is already there. The law is designed to reduce or eliminate that friction and that has been the experience everywhere workplace laws have been enacted. While pointing out all the examples of successful implementation of laws, you should challenge the opposition to name a single business anywhere in the country that has ever closed or relocated because of a nonsmokers' rights law in the decade or more that such laws have been in ef- fect. Since the tobacco industry has never documented a single such instance, you can rest assured that it has never occurred. As dis- ussed in Chapter 6, the experience with existing legislation has been completely positive. With respect to governmental costs, the arguments relating to signs and potential savings are essentially the same as for private in- dustry. There is an added issue, however, with regard to the cost of enforcement. The opposition will claim that extra police and health department personnel will be necessary to enforce the law. Again, experience demonstrates that this is simply not true. Since these laws have been universally self-enforcing (see discussion below on the enforcement issue), extra police have never been considered by any community. Although sonie health departments have felt they would need extra personnel to monitor compliance and to handle complaints, particularly with regard to workplace regulations, expe- rience in most places has shown that added personnel is not neces- sary. The San Francisco workplace ordinance provides an interesting illustration. When the law was proposed to the city's Board of Su- pervisors it contained an appropriation to cover the cost of two ad- ditional health inspectors, but the mayor, who strongly supported the ordinance, insisted that the appropriation be deleted and that the Health Department report back six months after the ordinance went into effect on its personnel needs. Sure enough, the Health Department found it could easily respond to all complaints with no a;=

52 CHAPTER 4. THE ISSUES additional personnel. Incidentally, many local voluntary health agencies will volunteer to provide a quantity of "no smoking" signs free of charge to busi- nesses and governmental entities if a law is passed. Such an offer could virtually eliminate the cost of signs as an issue. Enforcement The opposition will usually raise two major enforcement issues: will the law divert limited police resources from the prevention and detection of serious crimes, and should someone be fined merely for smoking? The arguments relating to the first issue are made be- low, although most recent laws have provided for enforcement by the health department rather than the police. The most important thing to remember about the way in which nonsmokers' rights laws work is that they are almost entirely self- enforcing. As pointed out above, the primary object of the law is to require the posting of signs to establish where people may or may not smoke. Once those signs are posted, the vast majority of people obey them. You should ask any representative of the tobacco industry who claims the law will be unenforceable and will result in massive use of police power why the industry has such a low opinion of its customers as to think that so many of them will disobey the law. Note also that there is a glaring inconsistency between the fact that the industry opposes these laws so vigorously, and their con- tention that they are unenforcable. If no one obeyed them, the industry would not have to worry about them. But it is precisely because they work so well that the industry works so hard to de- feat feat them. Again, experience in communities where such laws have been in effect is directly contrary to the industry's claims. The laws have had broad public acceptance, which in itself alleviates any real enforcement problems. Large-scale arrests or citations of smokers have never taken place and no police officer has ever been diverted from serious tasks to respond to a smoking-related complaint in any community. Police departments have broad discretion in allocating their resources and it is an insult to any police force to suggest that 53 it would put enforcement of smoking regulations oci a high priority basis. When really pushed on the enforcement, issue, the opposition will suggest the law won't work because not, everybody will obey it. Of course, there has never been a law in the history of civilization that was universally obeyed and thus the logical extension of t.liat argument is simply to stop passing laws altogether. To be effective, any law must have some sanction behind it,, even if compliance is expected to be good. There is no reason for ex- cepting smoking regulations from sanctions, although it is best, to make them relatively mild. The main reason the tobacco industry has been able to make sanctions, however mild, seem repressive is that smoking has been an accepted social custom for so long. But here another analogy can be drawn between smoking and drinking. For years, drunk driving was considered a relatively minor offense, barely deserving of a slap on the wrist, even when it caused death or injury. Now public opinion has changed radically and people are viewing drunk driving as a serious criminal offense deserving of se- vere fines and jail sentences. The point is not that smoking in public is comparable to drunk driving but that public attitudes and mores change. Because the vast majority of people now view smoking in public to be unpleasant and even dangerous to the health of non- smokers, there must be some small sanction for violating a smoking regulation. Note that it is possible, as discussed in Chapter 5, to avoid criminal sanctions by providing for civil penalties instead. Proponents and Opponents At the beginning of any legislative campaign you should assume that the only real opposition will come from the tobacco industry. Thus, from the beginning, the question of who supports and who opposes the legislation will become an issue in itself one that. can only benefit the proponents. You`will be able to contrast the various medical authorities and public health advocates with a profit, hungry industry with no interest or credibility in health concerns. Assuming you live in a non-tobacco state, you should immediately attack the industry as a carpetbagger. All communities resent having

54 CHAPTER 4. THE ISSUES outsiders tell them how to run their affairs. When the industry lobbies against the legislation, nonsmokers should make local control an important issue, and demand an explanation as to why an outside interest is attempting to influence the community's health and safety regulations. Even though tobacco industry lobbyists may be able to show a local address, the fact remains that their employer is an organization headquartered in Washington, D.C. It should be obvious to almost everyone that the tobacco industry is against the legislation because it wants to protect its profits. As noted in Chapter 1, an industry spokesperson has forecasted sharp sales drops if legislation is passed. For all of the pious pronounce- nients the industry might make about the freedom to smoke and government intrusion, it should be evident that from a purely busi- ness standpoint it would not spend millions of dollars to defeat leg- islative restrictions on smoking just to support philosophical tenets. Remember, the industry does not care when or where people smoke, but rather how much people smoke. Once it is clear to legislators and the public that the motives of the industry are less than pristine, nonsmokers can draw a dramatic distinction between the profit motive of the industry and their own health motives. Although these two goals often conflict in the legisla- tive process, this particular confrontation is unlike any other because the tobacco industry does not produce a socially useful or beneficial product. On the contrary, it produces a product that kills almost 500,000 Americans every year (see Appendix X), and, aside from the states where tobacco is a key to the economy, it has a very unsavory reputation. The industry will often point to the "benefits" it brings to the national economy and the number of people it employs, but even if someone were to believe those "benefits" were worth 500,000 deaths a year, it is easy to minimize the impact of the industry's figures by demonstrating the enormous economic and social costs associated with smoking (see Appendix Y). Thus it should not be difficult to persuade most legislators outside tobacco states that the health vs. profits equation is greatly unbalanced in this case. Whenever the industry speaks on the issue of nonsmokers' rights, you should be quick to point out its general lack of credibility. Why , 0 55 should anyone believe anything the industry says on this issue wheti the industry still denies that smoking is harmful to the smoker despite 30,000 studies demonstrating that harm? If the industry continues to maintain a position equivalent to stating the earth is flat in order to protect its profits, then any statement relating to its business interests should be suspect. Once you can destroy the industry's credibility and rationale for being involved, you will go a long way toward destroying the argu- ments it makes. (See Appendix Z for sample questions likely to be raised by leg- islators or the media and suggested answers.) ' ,

56 CHAPTER 4. THE, ISSUES Chapter 5 57 Scope and Types of Legislation , x , 0 I This chapter discusses what kind of law you should work for and what you should avoid. A closely related matter draft,ing legisla- tion and working with the author -is discussed in Chapter 8. Before dealing with the specific provisions of a proposecl law you should be aware of several general considerations. State vs. Local Legislation Whether to "shoot the works" and seek statewide legislation or introduce laws city by city is essentially a political consideration. There are several things that will influence your decision. First of all you need to be sure that you have the organizational strength to work at the state level (see the discussion on this in Chapter 7). As pointed out in Chapter 1, the tobacco industry is a much more formidable opponent at the state level than at the local level. If you have a governor who is antagonistic to nonsmokers' rights, it is probably not worth working at the state level, even for relatively minor legislation. Although it may appear that working at the local level will take forever, if you choose your early targets carefully and gain some quick victories, other localities may soon jump on the bandwagon, and you can have practically an entire state covered by

58 CHAPTER. 5. SCOPE AND TYPES OF LEGISLATION legislation much earlier than you may expect. This was certainly the case in California. All that aside, if you have a strong organization, a sympathetic governor and a good feel for the legislature, by all means push for a state law. However, there is one legal matter which is of no concern at the local level but which may arise at the state level. If your legislation appears headed for passage, an opposition legislator may attempt to tack on a preemption provision which would invalidate any existing local nonsmokers' rights legislation and prevent future local legislation from being enacted. This is particularly dangerous if the state legislation is relatively weak, but in any case you should strongly resist such a provision. In fact, any state legislation that you support should contain a "No Preemption" clause which speci- fies that the law does not prevent any city or county from enacting legislation on nonsmokers' rights which is not inconsistent with the state law. Such a provision will allow local entities to pass stronger laws, but not laws which weaken the state law. Comprehensive vs. Specific Legislation Early on you will need to determine whether to seek a compre- hensive measure that will regulate smoking in all public places and the workplace, or specific legislation which will be limited to a single major area such as the workplace or restaurants, or perhaps a combi- nation of public places such as retail stores and theatres. One option with respect to the workplace is to first pass legislation governing- public employees and then extend it by subsequent legislation to the private sector. !~] Your decision will be based on such factors as your organizational strength, your assessment of the legislators, and the desires of your author (see Chapter 8, as to the last point). Also, as a proposed law becomes more comprehensive, it will engender more opposition and be that much harder to pass. But the overriding consideration should be that it is better to win a little than to lose a lot. Even if a law is not everything you hoped it would be, it is always possible to come back at a later (late to improve it. When you return to broaden I , I I 59 the scope of the law, you will be able to show that it has worked well (as such laws always do) and that none of the (lire consequences predicted by the tobacco industry have taken place. On the other hand, if you seek a comprehensive measure that fails, you will have gained nothing and will find it difficult to come back in a short time, even for a weaker measure. Most Important Targets If you have to settle for piecemeal rather than comprehensive legislation, your most important target is the workplace. People have to work for a living, and usually spend eight hours or more per day at work. According to a study done at the Environmental Protection Agency (see Appendix AA), 80 percent of the average person's exposure to second-hand smoke occurs at the workplace. The second most important, area to target is health facilities. There you are dealing with people who are already ill and for whom exposure to second-hand smoke may be particularly dangerous. On the other hand, most nonsmokers will view restaurants as more im- portant in terms of their day-to-day exposure to second-hand smoke. Ineffective Legislation Just as you should avoid being overly ambitious, you also should be wary of settling for too little. At some point, any piece of legis- lation can become so watered down or meaningless that it becomes worthless. This can happen either with respect to the scope of the law, as, for example, when it covers only elevators, or with respect to the implementation of the law, as, for example, when there are no requirements for signs or sanctions. It is possible that you may reach a point at which a bad law is worse than no law at all. The principal danger is that the law will do no good, but the legislature will be able to claim that it already has acted. A good example of 'this occured when the California Legislature passed a law that prohibited smoking in grocery stores but did not require signs or provide for sanctions. The result was a

60 CHAPTEIZ 5. SCOPE AND TYPES OF LEGISLATION law that was largely ignored. Voluntary or Look-Alike Legislation When the tobacco industry senses that a legislative effort may succeed, there are two ploys they sometimes use to avoid passage of an effective law. The first of these is to suggest that the legislation be "voluntary." Instead of an ordinance with enforcement provisions and sanctions, you would have a resolution, "urging" people to adopt programs to protect nonsmokers. As discussed in Chapter 4, voluntary programs are both inappropriate and worthless, and you should strongly resist any attempt at voluntary legislation. If it appears that you do not have the votes for anything stronger, you may want to pass a voluntary law - but you must insist on cer- tain safeguards. A voluntary program will be completely useless un- less there is some way to measure how well it is working. You should insist on formal adoption of the program by a legislative resolution so the legislators are forced to go on record and so there is a semblance of official backing. There should also be a requirement that a brochure explaining the program be sent to all affected businesses and that a survey be conducted to determine the level of compliance. Public disclosure of the survey results should be mandated within three to six months after passage of the resolution. Most important, there • should also be a mandatory legislative review of the program at the end of that time to determine if it is working to protect the rights of nonsmokers. In other words, the legislative body should give the voluntary program a reasonable, but limited, time to work with the clear un- derstanding that if it does not work, mandatory legislation will be passed. This is precisely what happened in San Jose, California, which now has a strong workplace smoking law, after discovering that a voluntary program did not work. A final safeguard is the establishment of a "hotline" for employ- ees to report problems of smoking in the workplace, and to help judge the effectiveness of the voluntary program. Employees should I , , I 61 be able to remain anonymous when using the "hotlinc," ancl there should be a system for following up on c•omhlaints. There should be wide publicity of the "hotline" so employees will be aware of it and it should be run independently of the agency implenienting the voluntary program, unless the program is run by a governmental agency. (For examples of brochures explaining how nonsmoking laws work, which can also be adapted for voluntary programs, see Ap- pendix BB. For a sample brochure for businesses explaining a volun- tary workplace smoking program, and including a survey to mea,5ure the program's success, see Appendix CC.:.) The other ploy used by the industry is to introduce look-alike legislation, with a different author in the hope of having its legis- lation passed first. Such legislation will have all the trappings of a true nonsmokers' rights law, but when you read it carefully, you will discover that it really protects the rights of smokers. This is more likely to be tried at the state rather than t.he local level. Note that both of these ploys fit with the strategy recommended to the industry by the 1978 Roper Report, which is discussed in Chapter 1. Legislation By Referendum Legislators like to avoid controversy, and one way is to enact nonsmoking legislation contingent on voter approval. This maneuver allows legislators to claim support of nonsmokers' rights while giving the tobacco industry the opportunity to defeat the measure by a massive advertising campaign. To counter the claim that the voters should have the right to decide this important issue, point out the tremendous waste of tax- payers' money involved in putting issues on the ballot, particularly if a special election is called. A referendum is also a waste of money in view of all the public opinion polls showing the overwhelming public support for nonsmokers' rights (see Chapter 4). In a sense, these make a referendum redundant. A-lso point, out that public health measures are almost never put on the ballot, and that this mea.5ure

62 CIIAPTER 5. SCOPE AND TYPES OF LEGISLATION should not be treated differently. Provisions Protecting "Rights" of Smokers An opposing legislator, or even a sympathetic legislator who is trying to be "fair," may attempt to append a provision recognizing the rights of smokers. This is most likely to be done in conjunction with a workplace law, as, for example, by providing that an employer must provide a smoking area or may not refuse to hire smokers. Al- though smoking is legal, the privilege to smoke (see the discussion on this in Chapter 4) should not be enshrined in legislation. That might adversely affect the right of an employer to have a totally smoke free workplace or to hire only nonsmokers. (See Appendix DD for a legal opinion on the right of an employer to hire only nonsmokers.) Rec- ognizing smokers' rights.in a law might also lead to an undesireable judicial ruling when interpreting the law. Specific Wording of Legislation: A Model Ordinance Americans for Nonsmokers' Rights has prepared a Model Ordi- nance which reflects the extent of coverage in the best comprehensive laws that have been enacted. The following material sets forth the provisions of the ordinance and a section-by-section explanation of them. (For the complete, unannotated text of the Model Ordinance, see Appendix EE.) You should also examine ordinances which have been enacted (see examples in Appendix FF) to see some of the vari- ations in language. Note that the Model Ordinance is not in the form that would ~ likely meet the technical specifications for an ordinance in most cities ~ and counties. But since there are so many methods of handling those technical details, we felt it best to avoid trying to include them and to make sure that the substantive matters were fully covered. Your city or county attorney can easily put the ordinance into the necessary final form. , f Section 1000. Title. This article shall be known as the Smoking Pollution Con- trol Ordinance. Section. 1001. Findings and Purpose. The City Council does hereby find that: Numerous studies have found that, tobacco smoke is a major contributor to indoor air pollution; and Reliable studies have shown that breathing second-hand smoke is a significant health hazard for several population groups, including elderly people, individuals with cardio- vascular disease, and individuals with impaired respira- tory function, including asthmatics and those with ob- structive airway disease; and Health Hazards induced by breathing second-hand smoke include lung cancer, respiratory infection, decreased ex- ercise tolerance, decreased respiratory function, bron- choconstriction, and bronchQspasm; and Nonsmokers who suffer allergies, respiratory diseases and other ill effects of breathing second-hand smoke may ex- perience a loss of job productivity or may be forced to take periodic sick leave because of such adverse reactions; and Numerous studies have shown that, a majority of both nonsmokers and smokers desire to have restrictions on smoking in public places and places of employment; and Smoking is a potential cause of fires, and cigarette and cigar burns and ash stains on merchandise and fixtures cause losses to businesses. Accordingly, the City Council finds and declares that the purposes of this ordinance are (1) to protect the pub- lic health and welfare by prohibiting smoking in public places except in designated smoking areas, and by regu- lating smoking in places of employment; and (2) to strike 63

64 CHAPTER 5. SCOPE AND TYPES OF LEGISLATION a reasonable balance between the needs of persons who smoke and the need of nonsmokers to breathe smoke free air, and to recognize that, where these needs conflict, the need to breathe smoke free air shall have priority. This is an important provision to include in any law, regardless of its scope, because if the law is interpreted by a court, the judges will look to this section for the intent of the governmental body adopting the law. If there are new medical studies that can strengthen the legisla- tive findings beyond those in the model ordinance, be sure to include appropriate new language. Section 1002. Definitions. The following words and phrases, whenever used in this article, shall be construed as defined in this section: 1. "Bar" means an area which is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only inci- dental to the consumption of such beverages. Although a restaurant may contain a bar, the term "bar" shall not include the restaurant dining area. 2. "Business" means any sole proprietorship, partner- ship, joint venture, corporation or other business entity formed for profit-making purposes, including retail es- tablishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other pro- fessional services are delivered. 3. "Dining Area" means any enclosed area containing a counter or tables upon which meals are served. 4. "Employee" means any person who is employed by any employer in the consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a non-profit entity. . 5. "Employer" means any person, partnership, corpo- ration, including a municipal corporation, or nou-profit entity, who employs the services of one or more individual persons. 6. "Enclosed Area" means all space between a floor and ceiling which is enclosed'on all sides by solid walls or windows (exclusive of door or passage ways) which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid, "office landscaping" or similar structures. 7. "Motion Picture Theatre" means any theater engaged in the business of exhibiting motion pictures. 8. "Non-Profit Entity" means any corporation, unincor- porated association or other entity created for charitable, philanthropic, educational, character building, political, social or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objects or purposes of the organization and not to private financial gain. A public agency is not a "non- profit entity" within the meaning of this section. 9. "Place of Employment" means any enclosed area un- der the control of a public or private employer which em- ployees normally frequent during the course of employ- ment, including, but not limited to, work areas, employee lounges and restrooms, conference and class rooms, em- ployee cafeterias and hallways. a. A private residence is not a "place of employment" unless it is used as a child care or health care facility. b. The dining area of a restaurant is not a "place of employment." 10. "Public Place" means any enclosed area to which the public is invited or in which the public is permit, ted, including but not limited to, banks, educational fa- 6 5

66 CHAPTER 5. SCOPE AND TYPES OF LEGISLATION cilities, health facilities, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theatres and waiting rooms. A private resi- dence is not a "public place." 11. "Restaurant" means any coffee shop, cafeteria, lun- cheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private and public school cafeteria or eating es-. tablishment, and any other eating establishment, organ- ization, club, including veterans' club, boardinghouse, or guesthouse, which gives or offers for sale food to the pub- lic, guests, patrons or employees as well as kitchens in which food is prepared on the premises for serving else- where, including catering facilities, except that the term "restaurant" shall not include a cocktail lounge or tavern if said cocktail lounge or tavern is a "bar" as defined in Section 1002 (1). 12. "Retail Tobacco Store" means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely inciden- tal. 13. "Service Line" means any indoor line at which one (1) or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money. 14. "Smoking" means inhaling, exhaling, burning or car- rying any lighted cigar, cigarette, weed, plant or other combustible substance in any manner or in any form. 15. "Sports Arena" means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical excercise, participate in athletic competition or witness sports events. 0 67 The definitions section is critical for the successful nnplenlenta- tion of the law, since all of the operative provisions will be interpreted in light of the definitions. They also are the key to establishing the scope of the law. Well-written definitions also serve to avoid loop- holes in the law. For example, since most laws exempt bars from coverage, some restaurants have declared the entire premises to be a bar and thus exempt from the law. The Model Ordinance solves this problem by clarifying that the term "bar" does not include a restaurant dining area. Note that "Employer" is defined to include anyone who hires even one person, and that both "Place of Employment" and "Public Place" are broadly-defined to ensure the greatest protection possible for nonsmokers. However, there are two key exceptions to the latter two definitions. In both cases, a private residence is excluded unless it is used as a child care or health care facility. This is to make it clear that there is no intent to regulate smoking in private homes, unless they are being used to care for children or people who are ill. Also, a restaurant dining area is excluded from the definition of a place of employment to avoid the conflict that would develop if a waiter wanted a nonsmoking work area, but was forced to work in the smoking section of a restaurant. This is the kind of compromise that must sometimes be made to 'get around problems that affect relatively few people but that might threaten passage of a law if not resolved. On the other hand, the definitions section provides that nonprofit organizations are covered by workplace regulations. Many local entities have failed to include nonprofits in their laws, thus causing volunteers to spend their work day in a smoky environment. Section 1003. Application of Article to City- Owned Facilities. All enclosed facilities owned by the City of XYZ shall be subject to the provisions of this article. Although a reading of other provisions would lead to the same conclusion, this provision resolves any doubt that the law is applica- ble to publicly-owned as well as privately-owned facilities.

68 CHAPTER 5. SCOPE AND TYPES OT LEGISLATION Section 1004. Prohibition of Smoking in Public Places. A. Smoking shall be prohibited in all enclosed public places within the City of XYZ, including, but not -lim- ited to, the following places, and with the following ex- ceptions: 1. Elevators 2. Buses, taxicabs, and other means of public transit under the authority of the City of XYZ, and ticket, boarding, and waiting areas of public transit depots; provided, however, that this prohibition does not prevent (a) the establishment of separate waiting areas for smokers and nonsmokers of equal size, or (b) the establishment of a maximum of fifty (50) percent of a given waiting room as a smoking area. 3. Restrooms. 4. Service lines. 5. Retail stores, except areas in said stores not open to the public and all areas within retail tobacco stores. 6. All areas available to and customarily used by the general public in all businesses and non-profit enti- ties patronized by the public, including but not lim- ited to, attorneys offices and other offices, banks, hotels and motels. 7. Restaurants provided, however, that this prohibi- tion does not prevent (a) the designation of a con- tiguous area within a restaurant that contains a maximum of fifty (50) percent of the seating capac- ity of the restaurant as a smoking area or (b) the providing of separate rooms for smokers and non- smokers so long as the rooms designated for smok- ing do not contain more than fifty (50) percent of the seating capacity of the restaurant. 8. Public. areas of aquariums, galleries, libraries and museums when open to the public; provided, how- ever, that this prohibition does not prevent the des- ignation of a separate room for smoking in such ar- eas. 9. Any building not open to the sky which is primar- ily used for, or designed for the primary purpose of exhibiting any motion picture, stage, drama, lec- ture, musical recital or other similar performance, except when smoking is part of a stage production; provided, however, that this prohibition does not prevent the designation of a contiguous area con- taining a maximum of fifty (50) percent of any area commonly called a lobby as a smoking area. 10. Sports arenas and convention halls, except in desig- nated smoking areas. 11. Every room, chamber, place of meeting or public assembly, including school buildings under the con- trol of any board, council, commission, committee, including joint committees, or agencies of the City or any political subdivision of the State during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the City. 12. Waiting rooms, hallways, wards and semiprivate rooms of health facilities, including, but not lim- ited to, hospitals, clinics, physical therapy facilities, doctors' offices, and dentists' offices. In bed space areas of health facilities used for two or more pa- tients, smoking shall be prohibited unless all pa- tients within the room are smokers and request in writing upon the health care facility's admission forms to be placed in a room where smoking is per- mitted. 13. Polling places. 69

70 CHAPTER 5. SCOPE AND TYPES OF LEGISLATION B. Notwithstanding any other provision of this section, any owner, operator, manager or other person who con- trols any establishment or facility described in this sec- tion may declare that entire establishment or facility as a nonsmoking establishment. This is the provision that governs smoking in public places. As noted above, the term "public place" is broadly-defined in the def- initions section with respect to what makes a place public rather than private. At this point, all the types of public places in which smoking is regulated are enumerated. (For a specific disucssion on restaurants, see separate heading below.) The key to this provision is that it prohibits smoking in all public places unless there is a specific exception allowing the establishment of a smoking section. Until recently, most laws had been written the opposite way. That is, they assumed that smoking was allowed except where the law specifically required the establishment of non- smoking sections. This is a subtle but important change in the philo- sophical basis of the law. In the past, the laws were designed to accommodate nonsmokers, but there was the tacit assumption that smoking was the norm. The new approach assumes nonsmoking to be the norm but makes accommodations for smokers when possible. This is as it should be considering that we are dealing with harmful and socially unacceptable conduct. When this new approach takes hold, smokers will understand that they should assume public places are off limits to smoking unless a sign tells them otherwise. The final part of this provision makes it clear that regardless of any exceptions in the regulation of public places, the owner or operator of any public place may prohibit smoking altogether in his or her establishment. Restaurants (See Section 1004(A)(7) and Section 1007(C)). The restaurant provisions probably will be the most controversial part of a comprehensive ordinance. Restaurants are unlike any other public place and must be treated in special ways. See, for example, I 71 the discussion above relating to the need to carefully define a "bar" so as not to include restaurant dining areas. The most important part of any restaurant provision is to estab- lish a minimum size of the nonsmoking area or, more properly, the maximum size of the smoking area. Because of the extraordinary power of the restaurant associations, early laws usually provided only that a restauranaside some indeterminate amount of seating for nonsmokers. Wherever this has been tried, it has failed. Many restaurants have been known to set aside one table and call it their "nonsmoking section." On the other hand, whenever a significant minimum percentage of seating for nonsmokers has been required, the law has worked well. In many cases, restaurants have expanded their nonsmoking areas after starting with the minimum, because the public demand for nonsmoking areas increased when there was a serious attempt to provide them. The Model Ordinance provides that the maximum seating for smokers is 50 percent of the restaurant. This is quite reasonable considering two-thirds of adults and three-fourths of the total popu- lation do not smoke. This should be your basic bargaining position and you certainly should not settle for anything less than one-third of the area for nonsmokers. It is important that restaurants not only post signs in the respec- tive sections, but also at each entrance, informing customers before they are seated that a nonsmoking section is available. (See the discussion below as to the posting of signs,generally.) It is also important that customers be asked if they prefer a non- smoking or smoking section. When customers are asked their pref- erence, 50 percent of them ask for the nonsmoking section. When patrons are not asked, only 20 percent request the nonsmoking sec- tion. In some cases, an exemption has been made for small restau- rants. Generally, the exemption has applied to restaurants seating 50 or fewer people, but it has also been limited to restaurants seat- ing 20 or fewer. Whether to include such an exemption is a question of strategy. If a very small restaurant allows smoking at all, most nonsmokers might not want to patronize it anyway. Thus, if you

' 72 CHAPTER 5. SCOPE AND TYPES OF LEGISLATION have an exemption that applies only to the smallest restaurants, you will be able to make a concession to show how reasonable you are, without actually giving up much. Of course, an alternative would be to prohibit smoking altogether in restaurants seating less than a specified number of persons, but that may not be politically feasible. Section 1005. Regulation of Smoking In Places of Employment. A. It shall be the responsibility of employers to provide smoke free areas for nonsmoking employees within exist- ing facilities to the maximum extent possible, but em- ployers are not required to incur any expense to make structural or other physical modifications in providing these areas. B. Within 90 days of the effective date of this article, each employer having an enclosed place of employment located within the city shall adopt, implement, make known and maintain a written smoking policy which shall contain at a minimum the following requirements: 1. Any employee in a place of employment shall have the right to designate his or her work area as a non- smoking area and to post the same with an appro- priate sign or signs, to be provided by the employer. If, due to the proximity of smokers, size of the work area, poor ventilation or other factors, such designa- tion does not reduce the effects of smoke to the sat- isfaction of the employee, the employer shall make ~ additional accommodation by reassigning the em- ployee ployee to a different work area, expanding the size I~Z1 of the work area subject to the prohibition against smoking or implementing other measures reason- w ably designed to minimize or eliminate the effects C! of smoke on the employee. 1-r ~ 2. Prohibition of smoking in auditoriums, classrooms, 73 conference and meeting rooms, elevators, hallways, medical facilities and restroonis. 3. Provision and maintenance of separate and contigu- ous nonsmoking areas of not less than fifty (50) per- cent of the seating capacity and floor space in cafete- rias, lunchrooms and employee lounges or provision and maintenance of separate and equal sized cafete- rias, lunchrooms and employee lounges for smokers and nonsmokers. 4. In any dispute arising under the smoking policy, the health concerns of the nonsmoker shall be given precedence. C. The smoking policy shall be communicated to all em- ployees within three (3) weeks of its adoption. D. All employers shall supply a written copy of the smok- ing policy upon request to any existing or prospective employee. E. Notwithstanding any other provision of this section, every employer shall have the right to designate any place of employment, or any portion thereof, as a nonsmoking area. The basic premise of the workplace provision, which was tried first in San Francisco and then, upon its success, in other localities, is that each employer must provide nonsmoking employees with a smoke free work area to the maximum extent possible, and must es- tablish a written smoking policy. This approach has the benefit of guaranteeing that nonsmokers have the right to a smoke free work area while at the same time giving employers flexibility in determin- ing how to accomplish that, given the nature of their physical plants and employees. To defuse a potential cost issue, the ordinance provides that em- ployers are not required to incur any expense by making physical changes in the workplace. In practice, this means that employers often will have to ban smoking altogether in certain places.

74 ('HAPTER 5. SCOPE AND TYPES OF LEGISLATION 1 75 Nevertheless, the law provides that every workplace smoking pol- icy must contain certain minimum elements: • Employees have the right to designate their work areas as non- smoking areas and to post appropriate signs. Don't write an ordinance that allows the employee to designate his or her "im- mediate" work area as a nonsmoking area. Without further definition, the term "immediate" work area is vague. On the other hand, trying to specify a certain size may not provide suf- ficient protection. Minnesota defined work area.as 200 square ~ feet around the employee, which is not adequate. The law spec- ifies further that if the employee's designation of his work area as nonsmoking does not provide sufficient protection, the em- ployer must take measures reasonably designed to minimize or eliminate the effects of smoke on the employee. • Smoking is prohibited in many common areas frequented by nonsmokers. However, don't be too rigid and prohibit smok- ing in all parts of the workplace. A little flexibility will go a long way toward showing the proposal is reasonable. Thus, the Model Ordinance provides in Section 1006(A)(6) that an enclosed workplace occupied exclusively by smokers may be a smoking area even if it is visited by nonsmokers. (See also the discussion above relating to the definition of "Place of Employ- ment." ) • At least 50 percent of the eating and lounge areas must be nonsmoking. • In any dispute, the health concerns of the nonsmoker must take precedence. This is the heart of the workplace provision and failure to include it would leave the provision open to misinter- pretation. The term "health concerns" rather than "rights" is used to defuse any debate over whose rights are more important and to focus on the health issue. This is important because if employees do not know what their rights are, they will not be able to assert them. Lastly, any employer may designate the entire work area as a nonsmoking area. A law is not needed to allow employers to declare their work areas smoke free, but this provision makes it absolutely clear. Employers also may refuse to hire smokers. No court has ruled that refusing to hire smokers is a violation of a smoker's constitu- tional rights. (See Appendix DD for a legal opinion on the right of an employer to hire only nonsmokers.) Section 1006. Where Smoking Not Regulated. A. Notwithstanding airy other provision of this article to the contrary, the following areas shall not be subject to the smoking restrictions of this article: 1. Bars. 2. Private residences, except when used as a child care or health care facility. 3. Hotel and motel rooms rented to guests. 4. Retail tobacco stores. 5. Restaurants, hotel and motel conference or meeting rooms and public and private assembly rooms while these places are being used for private functions. 6. A private enclosed office workplace occupied exclu- sively by smokers, even though such an office work- place may be visited by nonsmokers. B. Notwithstanding any other provision of this section, any owner, operator, manager or other person who con- trols any establishment described in this section may de- clare that entire establishment as a nonsmoking estab- lishment. The ordinance provides that the smoking policy must be effec- tively communicated to both existing and prospective employees. There are many places where nonsmokers have no interest in regulating smoking or where to do so would be impractical. Some

i s 76 CHAPTER 5. SCOPE AND TYPES OF LEGISLATION of these places are excluded from coverage to ensure the right of privacy, which is important to everybody in our society and should be recognized in any nonsmokers' rights legislation. Note, however, that this section also allows the owner or operator of any of the excluded places to establish his or her facility as a nonsmoking establishment. This is an important reaffirmation of the right of anyone to ban smoking on his or her property. (See also Section 1011 as to the right to apply for an exemption.) Section 1007. Posting of Signs. A. "Smoking" or "No Smoking" signs, whichever are ap- propriate, with letters of not less than one (1) inch in height or the international "No Smoking" symbol (con- sisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly, sufficiently and conspicuously posted in every building or other place where smoking is regulated by this article, by the owner, operator, manager or other person having control of such building or other place. B. Every theatre owner, manager or operator shall con- spicuously post signs in the lobby stating that smoking is prohibited within the theatre or auditorium, and in the case of motion picture theaters, such information shall be shown upon the screen for at least five (5) seconds prior to the showing of each feature motion picture. C. Every restaurant shall have posted at every entrance a conspicuous sign clearly stating that a nonsmoking sec- tion is available, and every patron shall be asked as to his or her preference. As. discussed in Chapter 4, the posting of adequate signs is the key to making nonsmokers' rights laws work. And, as pointed out earlier in this Chapter, when a law does not require the posting of signs, it is essentially useless. This section, therefore, takes on special significance. Make sure that signs are required in every place , 77 where smoking is regulated, and that they are required to be clearly readable. (See the discussion above as to the posting of signs in restaurants.) Section 1008. Enforcement. A. Enforcement of this article shall be implemented by the Department of Health and Human Services [or the City Manager]. B. Any citizen who desires to register a complaint under this chapter may initiate enforcement with the Depart- ment of Health and Human Services [or the City Man- ager]. C. The Fire Department br the Health and Human Ser- vices Department shall require, while an establishment is undergoing otherwise mandated inspections, a "self- certification" from the owner, manager, operator or other person having control of such establishment that all re- quirements of this article have been complied with. D. Any owner, manager, operator or employee of any es- tablishment regulated by this article may inform persons violating this article of the appropriate provisions thereof. E. Notwithstanding any other provision of this article, a private citizen may bring legal action to enforce this article. You can enforce the provisions of the law in a number of ways. Cities and counties which have adopted tough ordinances have found that the threat of enforcement is enough to ensure compliance. The Model Ordinance provides for enforcement by the Department of Health and Human Services or City Manager. Early legislation often provided for enforcement by police or other law enforcement agen- cies, but it is best to avoid this, since it only opens up the proposed law to criticism by the tobacco industry that it will divert police resources (see the discussion in Chapter 4). In any event, adminis- trative officials and health departments are better equipped to deal with health matters.

78 CHAPTER 5. SCOPE AND TYPES OF LEGISLATION Having the fire or health department obtain certificates of com- pliance while on routine inspections is a useful device for ensuring periodic inspections at no significant cost. The Model Ordinance provides a complaint mechanism for pri- vate citizens. This is an essential provision, particularly for nonsmok- ing employees. There is also a provision authorizing an individual to bring legal action. This will rarely be used, but it is still valuable as a deterrent. Section 1009. Violations and Penalties. A. It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this article to fail to comply with any of its provisions. The owner, manager or opera- tor of a restaurant shall not be deemed in violation of Sec. 1007(C) if the host or hostess of the restaurant fails to ask the seating preference of patrons, but shall be deemed in violation thereof if the restaurant has no stated policy requiring that patrons be asked their preference. B. It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this article. C. Any person who violates any provision of this article shall be guilty of an infraction, punishable by: 1. A fine not exceeding one hundred dollars ($100) for a first violation. 2. A fine not exceeding two hundred dollars ($200) for a second violation of this article within one (1) year. 3. A fine not exceeding five hundred dollars ($500) for each additional violation of this article within one (1) year. As discussed above, a nonsmokers' rights law is virtually useless ~ without some sanction for violating it. Since these laws always have J , f 79 been self-enforcing (see the discussion in Chapter 6), the fines pro- vided for will seldom be imposed, but they are necessary for the law to be taken seriously. The amount of the fine for a violation is not as important as the existence of the fine, although it should be large enough to be an effective deterrent. Make sure you hold owners and nianagers of regulated estab- lishments, and not merely smokers, responsible for violations. This is particularly important with respect to the workplace. Nonsmok- ing employees cannot be protected by fining fellow employees who smoke in the wrong place. They can only be protected by holding the employer responsible for implementing and enforcing the smoking policy. Violation of the law should be made an infraction, the least se- rious category of crime, generally including such minor offenses as traffic violations. You may choose to avoid criminal sanctions alto- gether by providing for a civil penalty instead of a fine. This was done in San Francisco and eliminated any debate as tt) whether violations of the law should be considered criminal. Section 1010. Nonretaliation. No person or employer shall discharge, refuse to hire or in any manner retaliate against any employee or appli- cant for employment because such employee or applicant excercises any rights afforded by this article. This provision protects nonsmoking employees from being fired or discriminated against by employers after asserting their rights. Since many employers actually have done so, this provision is an essential ingredient in establishing the rights of nonsmokers in the workplace. It is similar to many labor law provisions prohibiting employers from taking action against employees who report health and safety violations. (See Appendix GG for a legal opinion on the justification and validity of a nonretaliation provision.) Section 1011. Exemptions. A. Any owner, operator or manager of a business or other establishment subject to this article may apply to the

• 80 CHAPTER 5. SCOPE AND TYPES OF LEGISLATION City of XYZ for an exemption or modification to any provision of this article due to unusual circumstances or conditions. Exemptions may be granted on a showing of financial impracticability. B. Such exemption shall be granted only if the City Man- ager finds from the evidence presented by the applicant for exemption at a public hearing that it is financially im- practicable for the applicant to comply with this article. C. The applicant.for an exemption shall be required to pay a reasonable fee to cover the costs of the hearing. Since it is impossible to foresee every conceivable business situa- tion which might be affected by the law, this provision is included to give a business the opportunity to apply for an exemption due to un- usual circumstances. It is a way to show that the law is reasonable, and it will rarely be used. Section 1012. Public Education. The City Manager shall engage in a continuing program to explain and clarify the purposes of this article to cit- izens affected by it, and to guide owners, operators and managers in their compliance with it. The City Manager shall leave the responsibility of con- ducting a public education campaign regarding the health consequences of smoking to other governmental and health agencies equipped with the need to conduct such campaigns. This is useful for providing public education on the need for the law and how it works. It squares with the long-held notion that non- smokers' rights will be realized only through a combination of legis- lation and education. Because of the governmental expense involved, your organization may have to offer to assist in the preparation of any brochures or literature involved. (See Appendix BB for examples of brochures that have been used to explain new nonsmokers' rights laws.) 81 Section 1013. Governmental Agency Coopera- tion. The City Manager shall annually request other govern- mental and educational agencies having facilities within the City of XYZ establish local operating procedures in cooperation and compliance with this article. Since laws of local governing bodies generally are not enforceable on the property of higher governmental bodies, a city ordinance will probably not be applicable at a county court house or federal post, office. This provision helps to alleviate this problern by requiring a local official to seek voluntary compliance from the governmental entities within the jurisdiction. Such requests are often honored. Section 1014. Other Applicable Laws. This article shall not be interpreted or constrned to per- mit smoking where it is otherwise restricted by otlrer ap- plicable laws. This provision guarantees that the law will not "rob Peter to pay Paul" by inadvertently permitting smoking where it had previously been prohibited by another law. Section 1015. Severability. If any provision, clause, sentence or paragraph of this article or the application thereof to any person or cir- cumstances shall be held invalid, such invalidity shall not affect the other provisions of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are declared to be severable. This is a standard provision used in most, laws to ensure t,hat if a court strikes down part of the law, the. remainder still will be valid. i

I 82 CHAPTER 5. SCOPE AND TYPES OF LEGISLATION Section 1016. Effective Date. This article shall be effective thirty (30) days from and af- ter the date of its adoption, and shall be reviewed within one year of its effective date. You should establish a date for the law to become effective as close to its passage as practical, taking into account the need for businesses to become aware of the requirements and to take appropriate action. Note that whereas this general provision is for 30 days, Section 1005 allows employers 90 days to develop workplace policies. The provision for review can be very useful in assuring a chance to strengthen the law at a later date. Since these laws have never been weakened but often have been strengthened, you have everything to gain and nothing to lose by providing for a review. ; Chapter 6 83 Experience With Existing Legislation When nonsmokers' rights legislation is introduced, the tobacco industry and other opponents will inevitably trot out their predic- tions of dire consequences to follow if a law is passed. It is typical for the industry to warn of violent confrontations between smokers and nonsmokers, a wasteful use of police resources, enormous costs to government and business, displacement of businesses, loss of jobs and excessive intrusion of government into people's private lives. This is, of course, all fantasy (see the discussion of these matters in Chap- ter 4), but you should be prepared to demonstrate as much both by logic and by what the record shows about existing nonsmokers' rights laws. (See Appendix HH for newspaper articles discussing how well specific laws have worked.) The first significant nonsmokers' rights law in this country was passed in Minnesota in 1975. It was a comprehensive measure cover- ing all public places and places of employment throughout the state. Since then, comprehensive statewide legislation has also been en- acted in Nebraska and Utah, and dozens of laws with varying cover- age have been enacted throughout the country at state, county, and city levels. In California alone, more than 60 cities and counties have passed workplace laws and a similar number have passed restaurant

V 84 CHAPTER 6. EXPERIENCE WITH LEGISLATION laws. (For charts showing the places and types of major legislation, nationally and in California, see Appendix C.) As discussed in Chapter 4, nonsmokers' rights legislation is de- signed to be self-enforcing, and this has proved to be the case wher- ever such legislation has been enacted. This is largely due to the overwhelming support for such legislation by both smokers and non- smokers, which is shown in every public opinion poll on the subject. (For samples of opinion polls, see Appendix N.) In the 10 years since nonsmokers' rights legislation was first en- acted, there have been only a handful of citations or fines levied in all the jurisdictions combined. As with any new law governing the con- duct of large numbers of people, there will be some initial problems in adjusting to new- circumstances. But in almost every case, even when a complaint has been lodged with an enforcing agency, the situ- ation has been resolved amicably through education and negotiation, without the need of any formal enforcement action. Because the workplace is of vital concern to nonsmokers, work- place regulations have engendered the most complaints. But even here, the number of complaints generally has been significantly lower than anticipated. And, as with other provisions, the complaints come mostly in the first few months after the law goes into effect. In San Francisco, despite the warnings from the tobacco industry that regulation of smoking in the workplace would lead to chaos, the workplace ordinance, which went into effect on March 1, 1984, has worked so well that the health inspector in charge of enforcement was able to report in May, 1985: "Response to enforcement of the ordi- nance has been excellent. Only 143 complaints have been received from March 1, 1984 to May 14, 1985. Eleven complaints are cur- rently under investigation, and the remainder have been abated. In only one instance has it been necessary to hold an abatement hearing for non-compliance, and no cases have had to be referred to the office of the City Attorney for further action." (Emphasis added.) Several other enforcement officials have gone on record to state how well the laws have worked in their jurisdictions. (See Appendix II for examples of testimonials by such officials, as well as state- ments by several local chamber of commerce officials attesting to the 85 ease with which laws have been implemented.) You not only should cite these documents to legislators, but, seek similar statements from enforcement officials in cities or counties in your own state which already have laws. Such statements by officials close-to-home will be more effective. In this connection, there is a specific strategy you should use. We have compiled a list of officials responsible for enforcing existing laws in California (see Appendix J.l). Take this list as well as t,he en- forcement letters to the legislator who is sponsoring the proposed law and have him or her request the appropriate agency (( - *ity Manager's office or whatever) to review the letters and write to all the other enforcement officials on the list for information on how t,he laws are working in their jurisdictions. The requested information from the enforcement officials could include costs to government and business and how well the law is working generally, in addition to specific enforcement experience. When the public hearing on your proposed legislation is held and the tobacco industry claims that such laws don't work, your sponsoring legislator can then call for the report on what the enforcement officials have stated. This procedure has the advantage of letting the government do most of the work. Also, the report by a neutral government agency will carry more weight than if you just show up at the hearing with what; might appear to be some self-serving letters. Few things demonstrate the success of nonsmokers' rights laws as well as the public opinion polls that have been taken in places where such laws have been passed. The best example of this is a poll taken in Minnesota in 1980, several years after the comprehensive statewide law had been enacted. An astounding 92 percent of the people indicated approval of the law! (For a'summary of the poll, see Appendix N.) Another excellent example of a popular expression of support came in Berkeley, California in 1978. A strict law regulating smok- ing in public places had been passed there in 1977. The next year, there was a statewide initiative to enact a comprehensive measure. Despite a $6.5 million campaign by the tobacco industry to defeat. the initiative, 61 percent of the voters in Berkeley, the only city in

86 CHAPTER 6. EXPERIENCE WITH LEGISLATION the state which already had a significant law, supported it. These demonstrations of support for existing legislation are all the more impressive when you consider the dire consequences pre- dicted by the tobacco industry. In fact, the only accurate industry prediction about the effects of nonsmokers' rights legislation has been the forecast of a reduction in cigarette smoking. One final point about existing legislation: No nonsmokers' rights law has ever been repealed, but many such laws have been strength- ened by amendment. I I Chapter 7 87 The Basics of Organizing Whatever kind of nonsmokers' rights legislation you work for, there is one crucial element of success: good organization. You must have leaders who are respected both by supporters and the legislators you seek to influence. You must build a core of key people and organizations who can be counted on to do crucial tasks in a hurry. You must also develop a large grass roots following. Last, but not least, you must have some money. At State or Local Level As pointed out in Chapter 1, the tobacco industry is a much more formidable opponent at the state level than at the local level. Thus, this book has been prepared primarily for people working at the local level. However, as noted in Chapter 5, there may be a good reason to seek statewide legislation. In that case, the type of organizing you do will vary somewhat from that suggested in the ensuing discussion. To work at the state level, you will need a much stronger and more formal organization, with key people in several parts of the state rather than in one location. You will need con- siderably more money for communication arid transportation. And, even more so than at the local level, you will need a well-paid and dedicated staff. Notwithstanding these basic concerns, most of the following suggestions can be adopted for statewide organizations.

R CHAPTE It 7. BASICS OF OIIGANIZING 89 88 Leadership Any movement starts with a leader, or a small group of leaders. If you have the time and necessary skills, and if the cause is important enough to you, you can fill that role. Before any nonsmokers' rights movement can succeed, it must have leadership. Crucial to the success of a movement is the avail- ability of a core of two or three leaders who are willing and able to set aside other duties to work almost full-time and very hard - to get the organization underway. They must not only have the time, but they must also have the personal attributes to make the best use of their time. They must have the skills to motivate, inform and persuade people. Qualities vital to the achievement of these ends include energy and determina- tion, perisistence, diplomacy, a working knowledge of both the health evidence against passive smoking and the mechanics of a proposed law and an even temperament that carries no overtones of fanaticism or intolerance toward smokers. A good leader must also be willing to listen to and learn from other people, including experienced persons in organizations such as Americans for Nonsmokers' Rights. Where are such leaders found? It may sound flip, but like gold they are where you find them. You will not find the kind of person you need by placing an ad in the classified section of your local paper. You will find this leader, or leaders, through personal contacts with others in the nonsmokers' rights field. It is surprising how often others know people who can help. Forming An Organization Once someone has agreed to shoulder the burden of organizing the local movement, he or she must assemble a team whose goal is the passage of an ordinance. This should be done as quickly as possible, so that the fire and enthusiasm so typical of incipient movements is not lost. Organization must be a first priority. The key to a smoothly functioning and effective organization is the formation of a small independent working group, called an ex- ecutive committee or steering committee. Preferably, the committee should have between five and nine memhers, aud an odd munber of members to avoid tie votes. The committee should include a slate of officers. Someone must serve as president, someone must keep miu- utes and write letters, and someone must handle the money. The executive committee should be both small and informal because it must be able to make critical decisions quickly, without having to consult a larger body. rormal organizations tend to act only hy written resolutions, which are approved only at regularly scheduled (and usually infrequent) general meetings. The executive commit,- tee must be ready to move quickly and adapt swiftly to changing conditions, and must not be tied down to inflexible procedures. It is important to have persons with the necessary skills on your executive committee. It should include lawyers and other detail- oriented persons who are competent to develop, explain and defend the technical details of proposed ordinances. In addition, volunteer experts in media and public relations can be extremely valuable in carrying the campaign to the public via the news media. If possible, the committee should include a competent medical or scientific au- thority who can educate both the group and the public at large on the health hazards of second-hand smoke. It is also helpful to have individuals on the committee who are leaders of other community organizations, such as voluntary health organizations (Cancer Society, Heart Association and Lung Associa- tion) and environmental organizations. These people can lend pres- tige to the group while at the same time acting as liaisons with their own organizations. However, it is crucial that these people serve on your executive committee only in an individual capacity and riott as representatives of their organizations. If they serve in the latter manner, they probably will not be able to act without approval from their organizations, and their usefulness will be severely restricted, particularly when quick decisions aree nceded. . Building a Coalition As soon as you have formed your executive comniittce, you mn51, start to form a coalition of like-minded organizations and individu-

90 CHAPTER 7. BASICS OF ORGANIZING als throughout the community. Having respected organizations and individuals supporting your cause will give it credibility and clout with the public, the legislative body and the media. A broad-based coalition also will be extremely important in building grass roots support, and it will serve as a resource of people to lobby and testify on behalf of your proposed legislation. In building a coalition, you should take into account two im- portant considerations: 1) Any affiliations with other organizations must be strictly informal. Your organization must be able to act quickly and independently, without waiting for approval from other organizations. This, of course, does not mean that you should not keep coalition members well-informed and ask for their input on cru- cial decisions. 2) You must get as many organizations and people as possible in on the ground floor. Enlist the help of every prominent health or environmental activist to whom you are likely to turn for support and line up all the groups you will ask for aid. If they are on board early, before you make any crucial decisions or draft an ordinance, they will not feel alienated or left out, and they will be there when you most need their support. Building Grass Roots Support When the leadership has been selected and the organization fash- ioned, its first task is to build grass roots support. Chapter 9 deals with using the news media to inform people of an organization's ac- tivities, but a separate review of specific facts to be used in building public support is useful here. Just how does your organization build grass roots support? What do you say? What materials do you provide? What facts do you 6-1 emphasize to best get your message across? Z Two excellent tools are petitions and mailers. Petitions serve several purposes in addition to the obvious one of showing the leg- islative V islative body that there is broad public support for a law. First, ~ they collect information about future supporters. Petitions should C11 W have space for addresses and phone numbers of signers, as well as space for signers to list their special skills, which you may want to 91 / use later, and to indicate their willingness to help in a volunteer ca- pacity (stuffing envelopes, calling legislators, etc.). Second, petitions can make a dramatic prop for media purposes. Taped together, pe- titions can form a roll many feet long, which can be unrolled for the benefit of television cameras (see Chapter 9). Third, petitions can be an excellent reason for calling a press conference. If, for example, the organization has collected 5,000 signatures in a city of moder- ate size, that will be news. Petitions may also form the basis for a fundraising mailing list. However, such use of petitions has had mixed results, and you should probably avoid using them for this purpose unless you have no other way to raise funds. (See Appendix KK for a sample petition.) Mailers can be useful in building your organization's membership and in raising money if you can find the right mailing lists. Aside from having the petition signers in reserve, try to get membership lists of local voluntary health agencies or environmental organiza- tions. Those organizations which are part of your coalition should be willing to help in this regard. Such organizations, in turn, might be able to suggest other organizations whose members might be sym- pathetic. Another membership-building idea is to ask each of your members to submit the names of five or ten friends and associates who would be receptive to a mailing. Before you do any mailings, however, be sure to obtain a bulk mailing permit from the post office so you can mail at reduced postage rates. If you live in a large city or county and have suf- ficient funds, you may find it worthwhile to contact a direct mail marketing consultant, who can help you build a list and plan your mailing campaigns. Mailers are also a great way of communicating your message and keeping your supporters informed. You should mail often enough to let your supporters know what you are accomplishing and to assure them that they are important to the cause. Of course, when a crucial hearing or vote comes, a mailing is essential to prime them for action. (See Chapter 8 as to the use of mailers for the purpose of getting your supporters to lobby and testify.)

V 92 CHAPTER 7. BASICS OF ORGANIZING There are many other ways to build grass roots support: . Write letters to the editor with the organization's name and address included so that interested readers can obtain further information. . Distribute leaflets and brochures wherever there are public events with large numbers of people. . Post notices on community bulletin boards. • Obtain speaking engagements at clubs and campus organiza- tions. Try to speak before high school classes, where you prob- . ably will find energetic volunteers. . Place an ad in the newsletter of a local health or environmental organization or even your local newspaper if the cost is not prohibitive. In short, your ability to build grass roots support will be limited only by your imagination and resourcefulness. Telephone Trees Telephone trees can help you communicate quickly, effectively and accurately, without postage costs, in both normal times and when speed is required. Sometime early in your organizing process you should establish a quick way for the entire organization to be alerted to breaking developments in one evening. If the leader calls three people, each one calls three more, and so on, everyone will know what's happening in a short time. Of course, someone is bound not to be at home. In such cases, the unsuccessful caller, using his copy of the tree, should make the calls that would have been made by the person he couldn't reach. The Need for Paid Staff Using the right informational tools, having the right leaders and a strong organizing board and having mountains of medical evidence 93 , on your side still may not be enough to prevail if you depend on volunteers to carry the ball the whole way. Dedicated as they are, volunteers do have more in their lives than the fight for nonsmokers' rights. They have families, financial obligations and finite amounts of energy. In short, the leaders iu your movement must clearly identify which tasks cau be done by volunteers (in other words, which tasks, if left undone, will rrot stop the movement) and which need to be done by paid staff. With this understood, you should be prepared to hire good, ex- perienced and motivated staff people. They will carry out the day- to-day chores and follow-up so necessary to success, and help to structure the work done by the volunteers, whose only compensation will be the enjoyment that comes with success. Funding As the saying goes, "money is the mother's milk of politics." No matter how small your area or your organization, you will need some money to run a successful legislative campaign. Although the amount needed obviously will vary depending on such factors as the size of your area and your organization, you will almost certainly incur significant costs for staff salaries, rent, phone, postage and printing. You must face this fact from the beginning. Try to determine just how much money you will need, and then plan to raise it. The leaders of your organization also should realize that they will almost certainly spend a significant amount of their own money as well as their time. There are numerous means of raising money; mailings, garage sales, bake sales, raffles, wine and chcese parties, arm twisting and so on. But if you sit back waiting for the money to appear before you do anything, you will never get off the ground. Grass roots organizers often find out the hard way tlratt it takes money to make money. To put it bluntly, if your organization. is not somewhat in debt at an early stage of development, it will probably never develop at all. Unless, of course, you have a financial angel who is willing to bankroll your early expenses. If that is the case, count your blessings I

94 CHAPTER 7. BASICS OF ORGANIZING -- you are among the chosen few. Using External Resources To be effective, a local organization must make use of external resources. For example, you can obtain technical, medical and le- gal assistance from other nonsmokers' rights organizations around the country such as Americans for Nonsmokers' Rights. ANR has several years' experience in helping to pass nonsmokers' rights leg- islation at both the local and state level and also has fought two statewide initiative campaigns and one city referendum campaign against the tobacco industry. It has a national - and even interna- tional -- reputation as a successful organization in the forefront of the nonsmokers' rights movement. ANR is both able and willing to serve as a primary resource for local groups and to provide expertise and authoritative support in health and legal matters, organizational and strategic guidance and fundraising counsel. r Chapter 8 Legislative 8trategy 95 A solid legislative strategy is critical to passage of nonsmokers' rights laws. A well-planned and executed strategy is really the aim of all of your organizational efforts. This chapter focuses on the elements of a legislative strategy including the following: • Knowing your local political and legislative process; • Writing a nonsmokers' rights law; • Selecting a legislative sponsor; • Lobbying legislators; • Testifying and choosing spokespersons; • Organizing grass roots pressure. Knowing Your Local Political and Legislative Process Although there are always identifiable patterns, customs, and procedures of political activity in any community, there are two key questions you need answered with respect to your particular locality: who wields the power and influence, and what are the mechanics of getting a law passed? The answer to the first question will tell you whom you should approach first for support and who will be able to C!1 ~-+ ~ ~

96 CHAPTER 8. LEGISLATIVE STRATEGY help you to persuade others. The answer to the second question will tell you where and when you will need to rally your supporters and demonstrate the popularity of your cause. The best way to learn about the political and legislative process is to ask questions of knowledgeable people. For example, ask media people who are covering nonsmokers' rights activities for their assess- ment of the political situation and the personalities involved. Good political reporters know the political scene and they are often willing to share information. Ask a health agency person about the influ- ence and internal politics of the Chamber of Commerce, or ask the Chamber executive which doctors or health agencies are politically influential. Above all, if you meet with a legislator (or a full-time aide), ask him or her to explain how the political and legislative process works. Who are the influential legislators? Who are the swing votes? What are the "buttons" (key issues) for each? Who follows whom? Are any government staff persons influential? Remember that the only reason a person becomes a legislator is because he or she loves the job, and these topics are its very fabric. If they are not busy or hostile to your cause they will probably give you all the information you are willing to listen to. H ~ legislation even with your help. They will appreciate your asking, 'Z but you will be free to write the draft on your own as you were Writing Your Legislation When it is time to begin writing your ordinance, you should work with the legislator who will carry your bill (see below as to choosing your author). By giving the lawmaker the chance to offer input at the beginning of the process you will short-circuit any possibility of an injured ego, which could haunt your cause later. prepared to do, without having to worry about whether you nave offended your champion. Once you are in this position, you should be sure to write your own ordinance rather than attempting to rely on your city attorney Most legislators are busy, and probably won't want to write the 97 or county counsel. There are several reasons for this: When you write your own ordinance, you have much more control over its contents. You know all the various nuances of each phrase. When arnenclrrrent.s are necessary, you will know where to putt t}rem arul what their con- sequences likely will be. Government attorneys, while capable, are far too busy to spend the time needed to write the best possihle ordinance. Moreover, they do not know the subject matter as well as you do and they may not be sympathetic to the cause. Finally, they may unintentionally insert phrases that confuse or weaken the ordinance. However, once you write your own ordinance, take your draftft to the government attorney for assistance in ensuring that it conforms to the style and language of the city or county laws. In any event., at. some point early in the lobbying process, you should get acquainted with the City Attorney and City Manager, or comparable officials, and let them know you have a certain amount of expertise in the area of nonsmokers' rights. Show thenr such things as the Model Or- dinance (Appendix EE), copies of ordinances that have alread,y been enacted elsewhere (Appendix FF), letters from enforcement officials (Appendix II) and so on. This will assure them that you are making a serious effort to pass important legislation and that they can rely on your advice when they have questions. In some instances, legislation has been formulated by citizens advisory committees, usually appointed on an ad hoc basis by the legislative body. The theory is that such a committee, representing various interest groups, can hammer out the basic framework of an ordinance through a series of hearings and bargaining sessions that would be too cumbersome for the legislative body to handle. The one great advantage to this process is that if a consensus forms around a satisfactory piece of legislation, it is very difficult for the legislative body to turn it down or weaken it significanl.ly. If the committee was fairly constituted and did a con5cientious joh, most legislators will avoid angering the committee members by throwing out their work. On the other hand, such committees are somet.imes appointed by legislators who really want to avoid having to vote on the issue and who hope the committee will fail in its mission. T}re

98 CHAPTER 8. LEGISLATIVE STRATEGY committee members may find it The committee members may find it difficult to arrange adequate meeting times and unless there is a mechanism for ensuring a speedy process, things can get bogged down and the legislation can simply die from inaction. You also need to be careful that the committee does not produce something so weak that it is worse than no legislation at all. (For a general discussion of this problem, see Chapter 5.) If the committee begins to act as about protecting nonsmokers and votes for mean- ingless provisions, it may be time for you to withdraw. Above all, don't allow anyone from the tobacco industry to sit on the commit- tee. The industry has no business being involved in a local public health matter. Choosing Your Author Be sure to choose a legislator whom you can trust. You must have someone who will not abandon the proposal or change it without con- sulting with you. Obtain a verbal agreement from your author that all changes will be agreed to mutually. Be sure to choose someone who has the clout or power to persuade his or her colleagues that the proposed law is worth voting for. A veteran legislator who has a track record is ideal. Ask the veterans of city hall or journalists which legislator has the best reputation. When you approach a legislator, let him or her know that you and your organization will do as much of the work as possible. You will write press releases if needed; you will draft the legislation; you will write the legislator's statements; you will lobby all the legislators; you will contact editorial boards, and so on. Most legislators will appreciate the offer even if you are not requested to do any of these things. Ask the legislator to assign a specific staff person to the proposal. Introduce yourself to this person and explain what you are trying to accomplish. Good staff people will save you enormous amounts of time. Poor staff people on the other hand are best avoided in favor of direct contact with legislators. There are two other points to remember when choosing an author. 99 First, you may face a difficult choice between a person who has the ability and influence to get the legislation through but who does not want as strong a law as you do, and a person who wants the same law but whose ability to get it passed is suspect. The choice is often difficult, but the best thing to keep in mind in this situation is the old aphorism, "a bird in the hand is worth two in the bush." Second, once you have started to work with an author, you probably are stuck with him for the duration :--- for better or worse, and often it can really be for worse! Keep in mind that the media will always identify the proposed legislation with the author. Although you may think the legislator is a genius, the media and public may think he is a fool. Do your homework to avoid such a situation. Once you have chosen your author, a good way to start the pro- cess of gathering support is to have him or her write to the Office of the Surgeon General for a letter endorsing the legislation. The Surgeon General will respond to such requests with a letter pointing out the health hazards of second-hand smoke and why legislation is needed to protect nonsmokers. You can then use that letter in all your lobbying activities. The address is: United States Surgeon General, Park Lawn Bldg. 18-57, 5600 Fishers Lane, R.ockville, MD 20857. Many legislators send questionnaires to their constituents asking their opinions on various issues. If your author and other legislators who will vote on the proposed law use this device, ask them to include a question on the regulation of public smoking, making sure that the question is properly phrased so as not to engender a biased response. Since public opinion polls invariably find an overwhelming majority in favor of regulations, such a question will almost certainly bring a positive response. This can be particularly helpful in persuading an uncommitted legislator to support the proposed law. Countering the Opposition's Strategy To lobby successfully for a nonsmokers' rights law, you must be aware of what the tobacco industry and other potential opponents will do to defeat it, and be able to counteract those measures. Most

100 CHAPTER 8. LEGISLATIVE STRATEGY of this information is contained in other chapters. Thus, Chapter 3 discusses the likely opponents other than the industry, and the use by the industry of subsidiary companies to do its lobbying. Chap- ter 4 discusses the arguments generally raised by opponents and the responses that should be made. (See Appendix LL for sample tes- timony by a tobacco industry representative.) Chapter 6 discusses the use of experience with existing legislation to defeat arguments about enforcement problems. You should also be aware that the in- dustry sometimes brings its own "medical experts" to testify at hear- ings. These people usually can be discredited by your own medical witnesses if your witnesses have sufficient knowledge of the medical evidence. See Chapter 2 for a discussion of that evidence. Lobbying Individual Legislators Once the proposed legislation has been introduced, you should have someone meet with each person on the legislative body to ex- plain why the legislation is necessary and to secure a commitment to vote for it. If you cannot get an appointment with a legislator, the next best thing is to talk with one of his aides. You can then make a follow-up phone call to the aide to ask how the legislator reacted to the information relayed to him. You should bring key pieces of literature with you to such meetings. Take enough to impart the most vital information - the medical evidence, public opinion polls, testimonials by enforcement officials, etc. - but not so much that you overwhelm the reader. Keep in mind that legislators have many things to think about, and nonsmokers' rights may not be a high priority for them. It is important to choose the right person to visit a legislator, and it will probably not be the same person for every legislator. Different legislators have different temperaments and different interests, and will be influenced by different types of people. The most important consideration, of course, is to have spokesper- sons who know the issues well enough to discuss them on a one-to- one basis and who present a pleasant appearance. If there is someone who fits that description and who knows a legislator personally, he 101 or she should visit that legislator. Beyond those choices, it is usually a matter of matching your people to the legislators with whom they are most likely to have good rapport. If you have a paid staff person, it is appropriate to have him or her arrange appointments and attend meetings, but whenever possible it is best to have a volunteer attend, instead of or in addition to the staff , person. You should impress on legislators that their constituents, and not merely paid public relations people (such as the tobacco industry uses), are vitally interested in the legislation. You should start with the legislators whose support you expect, in order to bolster that support and let them know how much you appreciate it. You may also be able to garner a great deal of infor- mation from such meetings that will be useful when you meet with other legislators. For example, ask your friendly legislators to keep an eye out for the arrival of the tobacco industry lobbyists. Since they often lobby behind the scenes and do not testify at hearings, the only way to prove to the media and the public that they are in town may be to have a friendly legislator announce their presence. Next, you should visit the legislators who have indicated they are unsure of their position and try to win them over. Try to find out what their main concerns are and address them. It is common for a legislator to have a terrible misconception about the proposal which is the only thing preventing him or her from supporting it. Be persuasive and factual, but never overbearing or threatening. Just because you don't get a commitment at the meeting to support the proposed law does not mean you won't get the vote. Some legislators really do want to hear all the arguments before deciding how to vote. Lastly, try to visit even those legislators who have publicly op- posed the legislation. You may be able to change their minds or at least persuade them not to oppose the legislation as vigorously as they might have. If you soften their opposition sufficiently, they may become more sensitive to pressure from their constituents to pass the legislation. If nothing else, if you make a good impression as someone supporting a reasonable cause, it will stand you in good stead the next time the issue arises.

i 102 CHAPTER 8. LEGISLATIVE STRATEGY Testifying and Choosing Spokespersons Your testimony at legislative hearings is critical. This will prob- ably be your last chance to persuade uncommitted legislators. Also, since most hearings receive media coverage, this is your best chance to persuade the public. You must choose spokespersons who can take the verbal heat which may be generated by your proposal. You and your witnesses must stay cool. The content of your testimony is sometimes not as important as the impression you make on the legislators. If you and your witnesses threaten legislators or become angry at opponents, your job will be much tougher. Be reasonable and be informed. In addition to having spokespersons who are qualified by temper- ament, make sure your speakers understand the issues. There likely will be questions after their testimony. Anyone can read a state- inent, but you must be sure your representatives can also respond accurately and succinctly to questions without offending anyone in the legislative body. Moreover, it is advantageous to have spokespersons who are prominent in the community. Whether a person is a noted com- munity leader, business person, medical expert or celebrity, a com- bination of notoriety and experience is hard to beat. In any case, such people are certainly more attractive than tobacco industry hired hacks from out of town. There is one important caveat to the above, however: the most famous person or most reputable doctor in town will damage your cause if he or she does not understand all the ramifications of the nonsmokers' rights cause. It is often the case that medical people who testify have not been sufficiently briefed on all the issues and on the tactics of the tobacco industry (See Chapter 4). They will be hopelessly outmatched by an unfriendly legislator or a hostile witness. It is not sufficient merely to persuade the legislators that second-hand smoke is a health hazard; you must also persuade them that the proposed legislation is the proper remedy. Just as it is helpful to have prominent people testify, you also should have "average citizens" explain why the legislation is impor- u 103 tant to them personally. After the "experts" have given all the in- tellectual reasons for the law, have other people give the emotional ones. Find a secretary or office clerk who may have to quit a job if not given a smoke free work area, or an elderly person with asthma who can't dine out in restaurants because of all the smoke. In addition to lining up your most important spokespersons, you should organize their testimony. Make sure that all important issues are covered, but also avoid too much duplication. If possible, have key spokespersons testify in a prearranged order so you can present your case in a logical fashion. Start with your medical experts in order to establish that you are dealing with a serious public health problem. Then have your legal experts discuss the draft legislation, the reasons why it will solve the problem and why it is workable. You should then progress to a discussion of the political issues: the popularity of such laws as shown by the public opinion polls; the reasons the tobacco industry opposes the law; the experience in other places where such legislation already exists; why the legislation will be an advantage to business and so on. Whenever opposition speakers give misinformation, your speakers should challenge it, but don't make the opponents' case for them by giving answers to arguments that have yet to be made. Keep your prepared testimony positive. You should inform spokespersons in advance of any time limita- tions on speakers and make sure they are prepared to discuss the most important issues first. (See Appendix G for sample testimony.) Organizing Grass -Roots Pressure Constituent pressure is the key to passing nonsmokers' rights leg- islation. It will embolden your legislative supporters and may per- suade your opponents that a "no" vote will be politically damaging. It is not uncomnion for legislators to switch to a "yes" vote at the last minute because of well-organized constituent pressure. As soon as you are certain of the (late and place of a hearing, contact all your local supporters, by letter and follow-up phone calls. Urge them to do two things: 1) write or call the legislators to ask for

104 CHAPTER 8. LEGISLATIVE STRATEGY their support; and 2) attend the hearing. (See Appendix MM for a sample mailing to alert supporters of a hearing or vote.) Letters and calls make an impression on legislators, especially when they come from people in their districts and most especially from constitutents they know. Do not have the same form letter sent by hundreds of people.. Ask each person to send a handwritten letter of just a few lines in his or her own words. Postcards are very useful. They are short and more likely to be read than are letters. Legislative aides, who read and respond to all the mail, appreciate brevity, and you should be concerned about not turning these people off right away. All your communications to legislators whose support you seek should be short, concise, pleasant and factual. They should not be insulting or threatening. When you contact your supporters to generate letters to legisla- tors, give them ample time to respond. Remember, no matter how supportive people are, they probably will not drop everything to write a letter for you. Letters are a great strategy but there are others at your dis- posal. Someone once said a legislator is a person you elect and then can never see in person, but may be able to talk to on the phone. Take your cue from this and use the telephone. Phone calls, both within and outside of your organization, are quicker than mail and often cheaper. (See Chapter 7 for information on the usefulness of telephone trees.) Calls to legislators are very useful. If a legislator, particularly at the local level, receives more than a handful of calls on a single issue, that issue takes on a life of its own. In Los Angeles, each of the 15 members of the City Council received dozens of calls on the proposed workplace ordinance which eventually passed. The calls certainly had an effect, and turned one week's defeat into the next week's stunning victory. The timing of calls is important. They are most effective when they are received shortly before the key vote. If you call weeks ahead, the legislator's memory will fade and you will have wasted your time. Arrange for large numbers of your supporters to attend the hear- 105 ing. Ask your supporting legislhtors how many people should show up, and make sure you get at least that, many there. If possible, ar- range for transportation and parking. If demonstration5 are allowed _ in the hearing room, you might consider some bright, catc•hy signs. Check on the rules with the sergeant-at-arms or the city clerk. In any event, provide all your supporters with buttons, which you can obtain from local health agencies. This will help to show how many people are there in support of the proposed law, even if they doii't all have a chance to speak. Both t;he legislators and the media will respond to a "packed" hearing room full of ardent, supporters. If you are certain you will have a "packed" house, you can have one of your supporting legislators ask those who have come about the smoking law to raise their hands. When only a few speak in opposition, it will be obvious that all the remaining people are there to support the law. Second Readings: Keeping Up the Pressure In most cities and counties, ordinances require a second reading for passage. Even if things look good after the first vote, don't quit. Keep up the pressure. Call those legislators who supported you to thank them for their vote and to tell them you appreciate their con- tinuing support. Call those who opposed you to ask them politely about their objections and how they can be o-vercome. R.emember that the tobacco industry has millions of dollars at stake and will be using every possible tactic to change the vote. In this connection, you should alert ttie media to be on the lookout for "backroom deals" by the tobacco industry. Another reason to keep up the pressure is to secure even more votes on the second reading so that, the ordinance will have that much more credibility with the media and the public. Lobbying the Chief Executive Once the proposed law has been passed by the legislative body, get your people to write letters and make phone calls again this

106 CHAPTER 8. LEGISLATIVE STRATEGY time to the governor, mayor or other chief executive officer who must sign the measure into law. Tell the executive you will appreciate his or her support, and stress how important the law is to you. If you call, you may only speak to an aide, but imagine the effect if everyone who called only his or her legislator now calls the chief executive! Letters to the Editor Letters to the editor of your local paper are good before and after the vote. Before, they can focus attention on the issue, and can help persuade reluctant legislators. After, they can focus credit on those who supported you, or keep them in the fold if a second vote is needed. Amending Existing Legislation If you already have a law, but you want to broaden its coverage, there are several factors that you should take into account. You are more likely to be successful if the existing law has been in effect for a significant length of time (at least a year), legislators who opposed the existing law have been replaced by ones who are more supportive, the existing law has worked well, and you have evidence to present which was not available when the existing law was passed. If these factors are favorable, you should lobby for an amendment in the same way you would lobby for a new law. Of course, if the existing law has worked well for a relatively long time, you will have the advantage of being able to point to that as an indication that the proposed amendments will not present enforcement or other problems. It is helpful too if you can demonstrate that there are successful laws in nearby communities which are broader in scope than your existing law and that your proposed amendments will merely bring your law in line with the others. A Case Study: The Los Angeles Ordinance The Los Angeles press faithfully followed the evolution of the Los Angeles workplace smoking ordinance from the time it was first pro- 107 posed in July, 1983, until it was signed into law in November, 1984. The news stories (collected in Appendix NN) provide a useful insight into the actual process of passing the ordinance and, in particular, the tobbaco industry's unsuccessful lobbying effort to stop it.

Chapter 9 Dealing With the Media 109 As a nonsmokers' rights activist, you likely have several legislative goals, but your central focus probably is to get your city to adopt an ordinance protecting the rights of nonsmokers. If you live in a small town where you know everyone in govern- ment on a first-name basis and where you and other nonsmokers' rights activists have influence with your elected officials, you can probably skip this chapter, as you may be able to get a law adopted easily by simply asking for it. But that is the case for only a few people. The rest of us have to rely on the political process, which, without some good, solid weapons in our arsenal, may or may not serve us as we'd like. One of the best "weapons" at our disposal is the news media. In small towns that will likely mean the local newspaper, which may be a daily or a weekly and may cover more than one town in its circu- lation area. In large cities it will mean a complex system including newspapers, radio and television stations, cable outlets, magazines, corporate house organs and even college newspapers. Importance of the Media The importance of the media is twofold. First, media are effective in setting the community "agenda" of important issues. Second, media provide effective feedback to legislators on the wants and needs

~~ d,l 110 CHAPTER 9. THE MEDIA of various community interestt groups, and public opinion lll general. Itt has been said that although the media are not very effective in telling people what to think, they may be very effective in telling people what to think about. The "agenda setting" function of the media is important to nonsmokers' rights activists especially in the early stages of alerting the public to a serious public health problem, and informing them about specific legislative solutions. Most local nonsmokers' rights groups have sorely limited budgets and do not have the cash for mass mailings or for purchasing newspaper, radio or television advertising. News stories - which are based on an editor's or reporter's belief that what you are doing or advocating is newsworthy (that is, deserving of space or airtime) -- can help assure that your message gets out through channels to which most of the public are likely to be exposed. Using the mass media iu this way helps to coalesce public opinion that nonsmokers' rights is an important issue, and deserving of action by the legislative body. That leads to the second important function of the media -- providing public opinion "feedback" to the lawmaking process. Even though there is overwhelming public support for nonsmok- ers' rights (see Chapter 4), many legislators still perceive nonsmok- ers' rights laws as inherently controversial and they will need strong public support before adopting them. The news media --- through publication of news stories, feature articles, opinion pieces on the editorial or op-ed pages and letters to the editor -- can help uneasy legislators make up their minds to vote "yes" on nonsmokers' rights. This kind of help can be crucial. In all but the largest cities and counties the legislators are only part-time public servants. The rest of the time they are real estate brokers, bankers, insurance salesmen, car dealers, lawyers or any of hundreds of other occupations. Mostly, though, they are conservative. Their ideas, especially on social issues, may be less progressive than yours. They are more likely to be part of what political columnists like to call the "good old boy network," meaning that they tend to support the status quo. They need to be convinced that change is wise and necessary before they will support it. This is where the news media can help, not only by presenting your ideas in straightforward, reportorial style or in opinion pieces, llt but also by inspiring citizens to tell their legislators t.o support you. Getting the Media to Work for You With this as background, we come to a key question: how do I get the news media to work in my corner? First, reporters, editors and news directors have to know you want to deal with them. This means you have to establish a rela- tionship with them to give them information. That information may be in the form of a press release or media "packet," tips orl events that deserve coverage or even interviews if you have the time. The first step, then, is to establish contact. What's the best way? Pick up the telephone and call the newspa- per, radio station or whatever. If you know a particular reporter, and if he or she is careful, competent and accurate, ask for that person. Try to avoid calling at deadline time. If you do not know what time a newspaper's deadline is, just call and ask the switchboard operator. It is usually mid-morning for an evening paper and late afternoon for a morning paper. Radio stations with news departments are always on deadline if they broadcast hourly news, and television stations usually should be contacted in the early to mid morning if the event is to be covered that evening. If you do not have contact with a particular reporter just call the city editor or news director. Saying "I've got. a story for you" or "I have some information on something you might want to cover," is usually enough to pique interest, partic- ularly if the editor knows you are giving it exclusively to him or her. Once you have established a relationship, keep it going by giving t.he reporter, editor or news director regular updates on your activities - but don't overdo it. Press Releases If you are a bit shy about making the initial contact, in person, the next best way is to prepare a press release and mail it in or, better still, hand-carry it to the city editor. The release should be typed on standard 8-1/2-by-11 white paper. If your organization has

112 CHAPTER 9. THE MEDIA letterhead, use it. The release should be at least double spaced, if not triple. Many small newspapers will not re-type releases but use them as they come in. Since this saves them time, they like it, and so you should cater to them here if possible. Medium to large size dailies or weeklies, however, often rewrite news releases, or build their own stories using the releases only as background. A release should bear a date, the name of someone knowledgeable as a contact (spokesperson) and a phone number where the contact can be reached. It should be written in a "news style," that is, it should emphasize the most important information in the first or "lead" paragraph, followed by explanatory information fleshing out the lead in succeeding paragraphs. (See Appendix 00 for a sample press release.) This is done for two reasons. First, it enhances your credibility with the media. If an editor sees that you know how to write a release, and that you know what is important and what is not, his job will be easier and he will trust you more and give greater credence to what you are saying and doing. Second, if your article gets shortened prior to printing, it probably will be cut from the bottom. If this happens, you will have ensured that crucial elements of your story do not end up in the waste basket. Most newspapers use a particular "style." A newspaper's style is a formal, consistent way the paper has of expressing things. For example, most papers use a consistent policy about what gets cap- italized, what numbers appear in numeral form and which ones get spelled out, how sentences are punctuated and the like. As a non- professional you are not expected to know a paper's style intimately, but most papers base their own style on the Associated Press Style Book. Copies are usually available in college bookstores alongside the,journali5m texts. It is an excellent idea to get one and look it over before writing a release. Also, you might want to examine a paper's news columns to get a feel for its particular style. Following Up Your Initial Contact Now that you have made contact, what next? In a word, follow- ~ ~ . ~ I i I I 113 up. If you have merely mailed or dropped by with a release, yrnl will want to know whether the paper wants to usc your story, particularly if you do not hear from the editor or a reporter fairly soon. It is not at all a breach of journalistic etiquette to call to make sure your release arrived, and to ask if there are questions. If they are not interested, be sure to ask why. Maybe you "missed the lead" in writing your release. In journalese, this means your first, paragraphs did not tell the editor something he did not already know, or which he had not already used in a previous story. Or it may mean you just did not excite him with what you wrote in the release. Many editors --- if they remember the release (they gett hundreds) will tell you why they did not use it. This can give you a valuable chie on how to write a better one. If they are interested, make sure you or some other knowledgeable person is available for a follow-up interview. If this is the first time a nonsmokers' rights ordinance has been suggested in your town, it, will be big news. Try to make a big splash on your first try. If you have ideas for "good art" (a catchy, relevant news photo) be sure to suggest it, but never in a way that suggests you are trying to do the paper's job. Reporters, editors and photographers have egos too. Don't step on them and don't imply that they are not sufficiently professional. But do be helpful, knowledgeable, enthusiastic and polite. Don't. ramble on, and don't waste their time. Common sense will take you a long way in dealing with news people. Once you have made contact with the person who is going to write the article you should develop a close working relationship with the reporter. Just as in any human relationship, personal contacts, ancl the trust that grows from them, are important. Fventuually you may even get to the point where you can say t.hings'"off the record" with confidence, knowing that they will not be used. But be careful here: not all reporters are as ethical, or as careful, in this area as they should be. It only takes one time "being burned" by a reporter to teach you this lesson, but that one burning may seriously hurt your cause. Until you have established really good rapport and trust with a reporter, use your good friends or family as confidantes, and not, someone with a printing press at his disposal.

! t §: 114 CHAPTER 9. THE MEDIA Establishing good rapport with reporters, editors, and others in the media cannot be overemphasized. Don't be shy about doing favors for them such as developing materials and finding sources --- even with regard to stories not specifically related to nonsmokers' rights. When you have done this, you will have a person ready to listen to your story when the right time comes. By the same token, don't expect to be given credit by a reporter for everything you feed him. Sometimes pride of authorship or plain forgetfulness will mean that a reporter will take your information and„then write a story as if he developed it himself. This may be frustrating, but you should keep in mind that the most important thing is to get good coverage of the issue and not publicity for an individual, or even an organization. Press Conferences Maybe your story is best told by a press conference, and not by a release or an interview. Maybe you want to announce that a certain legislator plans to introduce legislation protecting nonsmokers, and you want the public to know (but make sure you are not "scooping" your friendly legislator, or he may get miffed and change his mind). In such a case, a press conference is ideal, and you may want to hold it jointly with the lawmaker. Other appropriate topics for a press conference are the release of a new public opinion poll which shows support for nonsmokers' rights; a new scientific finding on the dangers of tobacco smoke (these now come out with tremendous frequency!); the implementation of new smoking controls in private industry in a way which sets a precedent for your area; a court ruling favorable to your side or any other topic you feel it is important for the public to know. The idea is to get stories published and broadcast and to get your point of view across. If you are going to call a press conference, your first questions are when it will be held, where it should be held, who will participate, what they will say and what kinds of materials you will need, both written and visual. In larger media markets, where television stations carry evening 1 115 news broadcasts, late morning is a good hour for a press conference. This gives the station enough time to process the tape and work it into the "film chain" of tape stories which make up that evening's news broadcast. It also gives the assignment editor enough time in the morning to look over the day's events in town and assign a crew to cover yours. An 8 a.m. press conference, for example, will probably draw only scant coverage. Now you need to choose the site. If possible, pick a dramatic . locale. If you are talking about health effects, a lung cancer or em- physema ward in a hospital is dramatic, if you can get permission and if you can do it without inconveniencing the patients. If your proposed ordinance deals with the workplace or restaurants, see if you can use a place of employment or a restaurant that has already provided protection for nonsmokers, and let the media (particularly television) see firsthand how well the nonsmoking policy is working. In larger media markets there are press clubs which have facilities for press conferences. The advantages are that they are accustomed to staging press conferences, and can provide refreshments, ample seating, good sound systems and good visual backdrops. The disad- vantages are that they are often staid and stodgy, they are frequently not visually exciting and, finally, they cost money. Outdoors is often a good place for a press conference. TV crews usually have their own power packs to operate their equipment, and will bring them along if they know they will need them. If you have a good spot in mind outdoors can be refreshing, and the subtlety of fresh air in a smoking-related story is appropriate. The way to get the press to attend is to have something to say or to show that they deem to be worth their attendance. A word of caution is appropriate here: while your goal is to get coverage that is as extensive as possible, you do not want to be like the little boy who cried "wolf." Don't call a press conference every other day. Don't call a press conference to announce that one more citizen has endorsed your efforts. Have something to say that is substantial. Say it crisply, accurately and forcefully. Don't develop the reputation with the news media as someone who is either a pest or who cannot tell the difference between a story and puff.

116 CHAPTER 9. THE MEDIA Make sure that you get the word out to the media well in advance of the conference. In a small town, where there is not much media, a call the day before to a reporter you know and trust may be sufficient. For additional protection, prepare a one-or two-paragraph advisory for the editor, telling the time, day, location and purpose of the press conference. Also include a list of the participants, particularly if they are well known. If you have experienced reluctance, or if you suspect you will encounter it, you can be a little cryptic about the purpose of the conference. For example, instead of saying you want to announce the results of a public opinion poll showing a sharp rise in support for nonsmokers' rights, you might say you want to describe a dramatic shift in public health attitudes. But even this tactic can be overused; don't be coy unless you have to. (See Appendix 00 for a sample release announcing a press conference.) Who should attend on behalf of your organization? The most important thing is that the principal spokesperson be both credible and competent. He or she should be well versed in all the issues surrounding nonsmokers' rights and not merely the one issue which is the focus of the press conference. Once your spokesperson has given the presentation, the media people will want to ask tough questions and they will not feel constrained to limit their inquiry to one subject. Of course, it is so much the better if your spokesperson also has good credentials such as being a noted medical or scientific authority, or the president of a respected organization. But do not put a well- known doctor in front of the microphones and cameras if he does not understand the political and social issues as well as the medical issues. See also Chapter 8 for a discussion of this problem as it relates to lobbying and testifying. Celebrities can be useful at press conferences if they are identified as persons with a social conscience. Local politicians can be good, too - anyone who is a good speaker, is sincere and is accustomed to appearing on camera. You should provide copies of a prepared statement in neat, typed form and photocopied in sufficient number for all the media people who show up. If your subject lends itself to graphs, get them made by someone who is neat. Have them done in contrasting, vivid colors (it is good for TV). Other props might be good, too, like red balloons to 117 simulate healthy lungs and grey ones for unhealthy lungs. Use your imagination, but also use good taste. If you establish good contacts with editors and reporters, coop- erate with them in their quest for details (be patient; you know this subject far better than they do), write clear, hard-hitting and literate press releases and stage visual, interesting and informative press con- ferences on truly newsworthy topics, you should succeed in getting good coverage in news columns and on the air. You can apply these same principles to regional magazines (their deadlines come less fre- quently and their formats are usually a little more casual), college newspapers and corporate house publications. In the latter case, you will have to suggest angles of interest to the company's bottom line, its product or its work force, or all three. Media Events * Press conferences are not the only media event you can use, how- ever. Even your testimony before a legislative body can be made more dramatic than you might think. In Los Angeles, members of Americans for Nonsmokers' Rights gathered thousands of signatures on petitions supporting a tough ordinance. Had the situation called for it (fortunately it did not), they were prepared to unroll the pe- titions, which had been taped together in a long, continuous roll, down the City Council chamber's long center aisle. With several news cameras poised to photograph it, this would have been quite a dramatic depiction of support. You can probably think of other such events to dramatize your cause. Editorial Support Now that you have gotten your story across, how do you get the media outlets to express an opinion on it --- namely, how do you go about getting editorial support? Although some newspapers, radio stations and television stations will editorialize on their own, this is not a dependable approach. You will have a much better chance if you seek editorial support. In

118 CHAPTER 9. THE MEDIA the case of a newspaper, this means requesting a meeting with the editorial board and presenting your case before it. When you do, remember that you are seeking something that can be a real help to you. Don't go into the meeting unprepared. Be ready to rebut the same kinds of objections you are likely to meet anywhere else. Don't be lulled into thinking that just because editors read the news and understand it, they necessarily support you. They are human, too, and many will resist social change. But even though you have to be direct and firm, do not become belligerent. Even if the board decides not to support you, it still might not oppose you. Further, you stand to lose future good and t imely coverage of your legitimate news activities if you get angry or pushy. Remember, you want the paper or station's endorsement, not its enmity. The key in getting that support is being factual. Treat editors just like anyone else you are trying to persuade. Tell them why it is in the community's best interests to have protective legislation. Tell them the state of the medical evidence, how popular nonsmokers' rights legislation is and how well it has worked elsewhere. Tell them that the only real opposition comes from the tobacco industry, which is worried about profits. Look for a good angle, such as why support for nonsmokers' rights would be consistent with their recent editorial policy on other, related matters. For example, they may have just editorialized in support of stronger outdoor air pollution controls. If you can, draw the analogy between indoor and outdoor air pollution and point out that indoor air pollution is the more dangerous of the two. (See the discussion of this analogy in Chapter 2.) Another example, if your proposed law covers the workplace, would be to remind them that they, have consistently supported strong health and safety regulations for the benefit of employees. Lastly, show them editorials from major newspapers which have endorsed nonsmokers' rights legislation (see Appendix 0). t i 119 , Editorial Replies Even if a media outlet editorializes against you, that should not be the end of the matter. Most radio and television stations will give you the right to respond, and some newspapers may give you a chance to write a rebuttal either in the form of an article on the "op-ed" (opinion-editorial) page or a letter to the editor. Have your supporters alert you to any negative editorials so you can quickly respond to them. How do you handle an editorial reply, whether broadcast or writ- ten? Do: treat it as a free advertisement. Pretend someone has handed you one minute (or whatever) of broadcast time, or 500 words of print space. (Find out beforehand just how much time or space you do have. Some TV stations allow only a fixed amount of time re- gardless of the length of the editorial; others allow the same amount of time for the rebuttal as the editorial took.) Use it to convey your message. Be brief and punchy. Write it down, and then, especially for broadcast media, go back over it and cut out everything you can without losing the punch. You might ask a respected local politician or civic leader to record a TV rebuttal. Such a person is likely to be better on camera than any of your volunteers, and the station may be willing to relax its time limit slightly for him. Don't: reply point by point to the original editorial. If you must, refer to it as briefly as possible at the beginning and then get on with your message. If you say "KXYZ said. a smoking law would be another prohibition, but they are wrong...", you are just using your time to broadcast the opposition's view (again). Instead, say "KXYZ missed the point about the proposed smok- ing law. It would be a fair way to insure both smokers and nonsrnok- ers a choice in the air they breathe..." Ways to Have Your Viewpoint Heard Whether or not you receive editorial support, try to use news columns, radio talk shows, TV call-in shows and whatever other fo- rum is open to you to solicit public support. Get. mailing lists from local health groups, and urge people to write letters to the editor.

120 CHAPTER 9. THE MEDIA Use contacts you establish through the publication of news stories; any source of support will be useful. If the papers get enough letters, they will almost surely publish a representative sampling, and often will state how many they received in total. Finally, radio and television stations are under a Federal Com- munications Commission requirement to provide periodic evidence of how they served the public with their programming. In many cases, stations will attempt to meet this requirement by airing public ser- vice announcements ("PSA's" ), which are free spots lasting from 10 to 30 seconds. You can supply the copy to get your message used. Write it carefully and factually. Get your group mentioned. If it is for radio, the copy is all you need. If it is for TV, you will have to supply something visual - most often a card with pertinent in- formation which may be used on camera. Check with the• station for detailed requirements. However, keep in mind that "PSA's" are time-consuming and expensive to produce, and that they are often used during "graveyard" broadcast time, when few people see them. Debates If the campaign to pass a law generates enough publicity and ex- citement, you may be asked to debate the opposition on radio and television. Assuming you have spokespersons who are knowledgeable and articulate and who think fast on their feet, you should welcome these opportunities. However, you should tell the producer of the debate that you object to debating representatives of the tobacco industry. The people who do most of the public speaking and de- bating on behalf of the industry are from the Tobacco Institute, the industry's trade association, and their hired public relations firms. You should take this position on the grounds that the industry has no business debating a health issue, since its sole business is the pro- duction of a deadly product and since it will not even admit the health hazards of primary smoking which are universally recognized. Thus, you can point out, the industry obviously has a vested interest in misrepresenting the medical evidence on the dangers of second- hand smoke. Also, point out that the tobacco industry generally I 121 engages in confrontation tactics and will try to t,wist the debate into a "smoker vs. nonsmoker" argument, ignoriug the fact that, a major- ity of smokers, as well as nonsmokers, supports nonsmokers' rights. (See public opinion polls in Appendix N.) Of course, under no circumstances should you forfeit a debate by refusing to appear if the sponsor insists on having an industry representative. If you must debate an industry representative, you should make the most of the fact that your opponent is a paid public relations person who specializes in confusing the issues and mislead- ing the public for the sole purpose of protecting industry profits. If applicable, be sure to point out that the industry representative is from out-of-town (most likely from out-of-state) and that his or her presence only serves to dramatize the fact that there is no local oppo- sition to the proposed law. Often, TV and radio stations will resort to long distance links to Washington to tie in a Tobacco Industry representative. If this happens, make the most of it. See the discus- sion in Chapter 4 on making the presence of the tobacco industry an issue in your campaign. When debating an industry person, remember that because he. has no evidence to support his position, he will always be forced to fabricate arguments and misrepresent facts. Industry spokespersons are past masters at the Big Lie technique, and you should be pre- pared to respond to outrageous claims, both by stating the facts, with supporting documentation, and by challenging your opponent to document his position. See the discussion in Chapter 4, on how the industry will distort the medical evidence by such tactics as quoting out of context, and how they will warn of various (lire consequences if a law is passed. The tobacco industry representatives are highly-paid, skilled pul)- lic relations experts. They are smooth-talking and can be intimidat, ing. Do not be intimidated by them. Remember thatt you have all the facts and logic on your side. You can put them on t,he defensive by talking about the industry's deadly product and general lack of credibility, and by pointing out just how ridiculous their specific ar- guments are. But be sure you know your facts and be sure not to be personally offensive in what you say. Above all, don't, let t,he indus-

122 CHAPTDR 9. THD MPDIA try set the parameters of the discussion. Be aggressive; take the high ground early and don't give it up; don't be defensive. Remember, most of your listeners are already on your side. (For a transcript of a debate between a nonsmokers' rights activist and a tobacco industry executive, see Appendix PP.) If you debate a local person who disclaims any connection with the industry, listen carefully to the exact language of his arguments. If you notice a striking similarity to arguments the industry uses, point it out and suggest that the person you are debating is merely parroting the industry line. If the person is there as an individual, object on the grounds that you are representing a local organization fighting the tobacco companies, who were afraid to appear. Use the fact that your opponent is there as an individual as evidence that there is no real local opposition. Keeping Records You will find it useful to keep records of all the media contacts with your organization. When a person from the media calls or visits, get his or her full name, media affiliation, telephone number and address. This information will come in handy when compiling a list of media people who should receive press releases. If you keep a few notes along with the names, you will be able to refresh your memory as to who in the media is particularly friendly and might be disposed to write a good story. Keep tapes of all radio and television appearances made by your representatives. These can be useful in spotting the strengths and weaknesses of your spokespersons and in the arguments made. They can also be used to train new spokespersons. Also, maintain a file of all stories which appear in the print media. When there is a particularly good story, you can use it for publicity purposes and to influence other media people. What to Tell the Media 123 tion: what can you say and what should you leave unsaid in dealings with the media? The simple answer is, say everything that will help you and avoid that which will hurt. Talk about the positive aspects of protecting the health of nonsmokers. Stress how nonsmokers constitute a grow- ing majority and how serious to nonsmokers the consequences of prolonged exposure to smoke can be. Talk about health and the environment. Be pro-health, pro-clean air and pro-nonsmokers' rights. Don't be anti-smoking. Don't be hard line. Acknowledge that smoking is legal and that many people like to smoke, but firmly state that the right to breathe is more important than the privilege to smoke. Don't talk about weaknesses in your case. Don't be willing to compromise without getting something for it - something of equal or greater value. If you are in doubt, and circumstances will not allow you to check with someone with more experience, it is best not to say whatever it is that you are unsure of. If you cannot answer a question, refer your interviewer to someone who can, preferably within the community, but, if necessary, someone else, such as Americans for Nonsmokers' Rights, or other organizations active in the field. The news media can be a useful tool. Often it can be your friend. Used wisely, it can be a key to a successful campaign for nonsmokers' rights legislation. With all this in place, there still remains one fundamental ques-

About the Authors 125 Peter Hanauer has been a leader in the nonsmokers' rights movement since 1976, and helped to write and pass the first non- smokers' rights law in California. He served as Treasurer and a ma- jor political strategist for the two state-wide initiative campaigns in California and was also a key strategist for the successful defense of the San Francisco workplace smoking ordinance when the tobacco industry attempted to repeal it by a referendum (Proposition P). Iie was founding President of Americans for Nonsmokers' Rights and is a member of the ANR Board of Directors. He edits law books for Bancroft Whitney Company in San Francisco. Glenn Barr, a journalist by profession and an ANR Board mem- ber, is press secretary and legislative aide to Los Angeles City Coun- cilman Marvin Braude. He assembled the first draft of the Los An- geles workplace smoking ordinance and assisted in its passage. Prior to working for Councilman Braude, he covered Los Angeles city and county government and civil and criminal courts for the Santa Mon- ica Evening Outlook daily newspaper. Stanton A. Glantz is President of Americans for Nonsmokers' Rights and was the person responsible for reviving the television documentary Death in the West after Philip Morris had suppressed it. He worked in both state-wide initiative campaigns in California and the Proposition P campaign, and served as the first IYeasurer of Americans for Nonsmokers' Rights. He is an Associate Professor of Medicine, Member of the Cardiovascular Research Institute and Chairman of the Bioengineering Graduate Program at the University of California, San Francisco.