previous chapter
Battles over Preemption
next sub-section

SB 376: The First Threat of Preemption

The tobacco industry recognized that it had a serious problem in California because the advocates of local tobacco control were well aware of the industry's strategy of preemption, and they were watching the Legislature carefully. To get advice on how to deal with this problem, Philip Morris flew Assembly Speaker Willie Brown and several other legislators (and their escorts) to New York for a secret meeting in November 1990.[9-11] Brown suggested a three-part strategy. First, the proposed legislation should preempt local tobacco control efforts. Second, since tobacco


214
control was popular in California, the “perception” of a comprehensive regulatory scheme would be essential for preemption of smoking restrictions to pass. Third, the tobacco industry should give the impression of opposing the bill.[9]

The speaker's approach was spelled out in a June 28, 1991, memo from Michael Kerrigan, the head of the Smokeless Tobacco Council (the Tobacco Institute's counterpart for spit tobacco), to his management committee summarizing his conference call with representatives of Philip Morris, RJ Reynolds, the Tobacco Institute, and their lawyers and lobbyists to discuss a proposed Comprehensive Tobacco Control Act in California:

Kurt opened the call stating the purpose was to have a dialogue on policy questions that have arisen from the Philip Morris/Reynolds approach to seek preemption of public smoking restrictions within the state of California. Kurt positioned this issue by stating the 45 local battles that the T.I. [Tobacco Institute] is fighting concerning smoking restrictions in California, and that they have dealt with them by compromise, not by killing them. Therefore, he was trying to establish the need for preemption of smoking restrictions in the state of California and position, at least his concurrence, with the need for a preemptive strike in the state legislature… .

Joe Lange reported on “where they are” and stated that while there were some technicalities still open for discussion, he had done a great deal of work on this matter. He stated Speaker [Willie] Brown and Assemblyman [Dick] Floyd visited a cigarette company in New York City last fall and met with the key executives of that company. At that time the Speaker made clear a significantly more proactive tobacco control effort would be needed to secure preemption. Out of those discussions the notion of a comprehensive Tobacco Control Act (that would provide preemption) evolved. In order to gain preemption, the Speaker wanted “a Comprehensive Tobacco Control Act along the lines of the alcohol model.” The Speaker believes the trick to doing this would be that such an act would have to have the “appearance” of a comprehensive scheme. Joe stated that leadership in both chambers are aware of and support this effort. Joe stated that the chances for success, in his judgment are very good because the key players have all been involved. However, the chances of success depended upon the “perception” that the act was comprehensive.

The conversation shifted to Joe stating Speaker Brown and Chairman Floyd would attempt to make the Tobacco Control Act as close as possible in “appearance” to the concepts that the anti-tobacco groups were fostering. Amazingly, that shuddering thought had no discussion.[9] [emphasis added]

Whatever the Smokeless Tobacco Council ultimately decided about Brown's proposal, it is clear that the cigarette companies worked to implement it. On July 11 SB 376 was amended to propose weak preemptive


215
smoking restrictions following a Tobacco Institute draft. Brown was delivering for the tobacco industry. SB 376 cleared the Assembly Government Organization Committee, a committee that had been historically friendly to the tobacco industry.

The industry's effort was derailed when the Smokeless Tobacco Council memo appeared mysteriously at the offices of the voluntary health agencies and several media outlets. The resulting storm of media criticism killed SB 376.[12-14]


previous chapter
Battles over Preemption
next sub-section