16. Lessons Learned

As the 1990s drew to a close, the landscape of tobacco control was worlds away from where it was when a few activists gathered in Berkeley with the odd idea that people should not have to breathe secondhand tobacco smoke. The voters of four states—California, Massachusetts, Arizona, and Oregon—had enacted large tobacco control programs funded through tobacco tax increases. The tobacco industry had been forced to promise to pay over $200 billion to states to settle lawsuits to recover the money smoking costs society in medical expenses, and many states were setting up tobacco control programs modeled on Proposition 99.

The California experience indicates that it is possible to reduce tobacco use rapidly through an aggressive anti-tobacco advertising campaign, combined with community-based programs that stress changes in the social norms around tobacco, so as to create a smoke-free society.^[1] A successful program is not simply directed at keeping kids from smoking but at protecting nonsmokers from secondhand smoke and creating environments that facilitate smokers' decisions to cut down or quit. Most important, a successful campaign de-legitimizes tobacco use and the tobacco industry. When the California program followed these principles, the rate of decline in tobacco consumption tripled and the rate of decline in smoking prevalence increased significantly.^[2-5] When the Wilson administration scaled back the program and shifted the focus to children, the progress slowed or stopped.^[4-6]

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Despite all the political problems, in its first eight years the California Tobacco Control Program prevented 2 billion packs of cigarettes (worth $3 billion to the tobacco industry) from being smoked. It also held teen smoking well below the rate that was occurring nationally. More important, the program saved lives. Because the risk of heart disease falls rapidly when someone quits smoking, during these eight years Proposition 99 prevented more than 14,000 heart attacks and strokes and saved over 2,500 lives.^[7] It prevented over 10,800 low-birthweight births.^[8] The $500 million in medical costs that were avoided from these causes of death alone amounted to more than the anti-smoking media and community programs cost. Proposition 99 also reduced deaths from lung and other cancers, asthma, sudden infant death, and other causes. These reductions are a stunning public health achievement.

The experience from California, however, shows that the tobacco industry does not give up easily. Indeed, the more effective the program, the more vigorously the tobacco industry and its allies will attack it. They fight to stop tobacco control programs from being enacted and, when that is not possible, they seek to subvert those programs by channeling them into unproductive areas, such as concentrating solely on children—the younger, the better.^[9] (Indeed, the national settlement of state tobacco control litigation approved by most attorneys general in November 1998 limits anti-tobacco education to instruction provided to children; and forbids attack on the industry, despite the fact that anti-industry messages are an effective way to combat smoking.)^[10] The tobacco industry is happy to see money disappear into the schools.

The Players

One of the early California anti-smoking television advertisements, “A Couple More Good Years,” captured the reality of battling the tobacco industry:

ANNOUNCER:

The cigarette business in America is a dying business. But it is still very profitable. Obscenely profitable. So the tobacco companies are able to employ an army of spokespersons to deny the evidence and stall for time.

MALE TOBACCO INDUSTRY SPOKESPERSON:

This is a very complex question. Statistics can't prove a causal relationship between smoking and disease. And there are Constitutional issues here.

FEMALE TOBACCO INDUSTRY SPOKESPERSON:

We're accused of trying to get people to start smoking. We don't. We try to get people to switch. And, it's always been our policy that young people shouldn't smoke.

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ANNOUNCER:

The tobacco companies know the game is up. All they want is a couple more good years.^[11]

The tobacco industry is highly motivated and unscrupulous. It has maintained its protected position in American and worldwide society by aggressively and single-mindedly defending its interests.^[12] It acts professionally and strategically and thinks in the long term. It has an “army of spokespersons” and analysts and lawyers and public relations experts and lobbyists to protect its profits. The industry skillfully uses these resources to seek out allies within the political, cultural, and even medical communities.

Against this seemingly invincible army is a force made up primarily of well-meaning volunteers with limited experience and resources. While some of these people work in small activist organizations like Americans for Nonsmokers' Rights (ANR) and its predecessors, most are affiliated with the large voluntary health agencies: the American Lung Association (ALA), American Cancer Society (ACS), and American Heart Association (AHA). The large voluntary health agencies have tremendous public credibility and substantial resources, but historically they have been cautious and slow to act. Tobacco is but one priority for these agencies, and the tobacco industry is highly skilled at generating controversy about the political involvement of health groups to limit industry profits. Because the tobacco industry often works through intermediaries, these groups must be willing to confront not only the tobacco industry but also its partners and agents. Doing so is particularly difficult when the industry allies itself with powerful politicians or with groups, such as medical providers, who normally work with the voluntary health agencies. In many ways, the California story is about how the voluntary health agencies gradually developed the courage to enter the fray of hardball politics and do battle with not only the tobacco industry but also its allies.

The effort to pass Proposition 99 attracted a wide variety of players, including public health groups, environmental groups, and medical interests. The voluntary health agencies were willing to work with this mixed bag of partners in what they thought was a straightforward trade—support for the initiative in exchange for some of the money that the tobacco tax would generate. To attract the doctors and hospitals, the voluntary health agencies had dropped their claims on the new tax revenues from 47.5 percent to 20 percent for health education and from 15 percent to 5 percent for research. Naively believing that a deal was a deal, the health groups

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thought they could count on the medical players to support their goals once the initiative passed. Carolyn Martin, a volunteer with the ALA and the first chair of the Tobacco Education Oversight Committee, later summed up the hard lesson learned: “This was the first time money was set aside for tobacco education, and `nice' non-profit voluntaries were not prepared for the vicious, powerball politics that money and tobacco create.”^[13]

The California Medical Association (CMA) was ready for the Proposition 99 legislative battle. The CMA was simultaneously working for and against Proposition 99, so it was well positioned regardless of the electoral outcome.^[14] The CMA could claim credit for helping with the initiative campaign, thereby securing a seat at the bargaining table when the revenues were divided. The CMA could also claim credit for its efforts to subvert the initiative to avoid alienating the tobacco industry. By the time the tobacco industry was hatching its postelection strategy to counter the effects of Proposition 99, it was talking with the CMA about how to eliminate the Health Education Account money by moving it into medical care.^[15], ^[16] These needs trumped the CMA's concern for public health interventions to prevent and stop tobacco use. Within the legislative process, in fact, the medical groups had more in common with the tobacco industry than with the weaker public health groups.^[17], ^[18] They became even more dangerous when they were joined by the Western Center for Law and Poverty, a liberal group that advocated for health care programs for the poor. It took years for the health groups to accept this fact and recognize that the medical service providers needed to be watched and countered just as the tobacco industry did.

The Keys to Success: Ideas, Power, and Leadership

Health policy entrepreneurs are most likely to be successful when they are solving a problem that the legislative leadership recognizes as important.^[19] Unfortunately for tobacco control advocates in California in 1988, tobacco was not on the Legislature's agenda prior to Proposition 99. In fact, it was being kept off the agenda by powerful tobacco interests.

In contrast, health care for children was actively on the agenda, in particular the need for additional funding for the popular Child Health and Disability Prevention Program (CHDP). By funding CHDP with Proposition 99 Health Education Account money, the legislative leadership

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got money for CHDP, the CMA got money for doctors, and the tobacco industry kept money away from programs that reduced tobacco use.

To be successful in overcoming these legislative roadblocks and in securing implementing legislation that reflects public health priorities, tobacco control advocates had to exploit three factors: ideas (ways of framing the problem and creative approaches to solving it), power (generation of resources to translate ideas into action), and leadership (recognition of opportunity and commitment to challenge the status quo).^[19] The public health advocates were weak in all three areas from 1989 until 1996, when advocates made a concerted effort to return to tobacco control's key power base—public awareness and involvement. The result in 1996 was funding for tobacco control programs in the way the voters had mandated.

After the funds were restored, however, the field of conflict simply shifted to the administration, where tobacco control advocates had to face the same problems all over again.

Ideas: Knowing What You Want

The way an issue gets framed often determines the solutions that will be pursued and who will be included in discussions of the issue.^[20] So people make an effort to frame the issue so that their preferred solution becomes the chosen course of action.^[21] Good tobacco legislation, from a public health standpoint, results when the tobacco use is framed as a public health issue and bad legislation results when it is instead framed as an issue of personal freedom.^[22]

In the various California electoral campaigns, the tobacco industry tried to frame tobacco control as excessive government regulation, unfair taxation, or a violation of personal choice, while the public health groups tried to frame it as a health issue in which the tobacco industry was interfering with local decision making. In 1979, in analyzing the failure of Proposition 5, both proponent Paul Loveday and his opponents in the tobacco industry noted that the tobacco control side did not do a good job of staying on its issues.^[23-25] By 1988, when they passed Proposition 99, public health groups had learned how to stick with their own messages and avoid discussing the industry's messages. By the time of Proposition 188 in 1994, tobacco control activists had done their polling and knew that calling Proposition 188 “the Philip Morris initiative” could kill it. They stayed on that message and won big.

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While they had learned how to frame issues in electoral campaigns by 1988, the public health groups still had to learn the same lesson in legislative battles. They got off to a good start on framing the issue in the initial budget skirmishes in 1989. In January 1989, when Governor George Deukmejian proposed the first Proposition 99 budget, he did not touch the money in the Health Education and Research Accounts but used money from the medical service accounts in a way that violated the intent of the initiative. The voluntary health agencies joined the CMA in protesting this violation of the will of the voters. The voluntary health agencies also used this argument to force the CMA and tobacco industry to back down on the Project 90 effort to divert funds out of anti-tobacco education into medical services in the summer of 1989.

The health groups then made a key error at the end of June 1989 when they agreed to use Health Education Account money to fund CHDP. By doing so, they compromised their ability to frame the issue as “following the will of the voters.” Giving up some money for CHDP in exchange for a decent bill, viewed from an insider perspective, was a reasonable and appropriate action. As strategy, from an outsider's standpoint, it was not. The health groups could no longer mobilize public support behind the integrity of the initiative since they themselves had violated it. They cleared the way for medical groups and others to frame the fight over Proposition 99 revenues as sick children versus a silly anti-smoking campaign or as just another budget fight. In 1998, looking back on that first year, Carolyn Martin recognized, “I think inexperience led to the first CHDP diversions and we did abandon the moral high ground. We did not understand or know how to use our newfound power.”^[13]

Even with the lawsuits in 1994 and 1995, when the courts ruled that the diversions were illegal, the voluntary health agencies did not reframe the issue as following the will of the voters. By not putting effort and resources into publicizing the victory, the health groups allowed Governor Pete Wilson to frame the issue as one in which the courts encroached on the Legislature's prerogative and disrupted medical care for the poor. By resisting the compromises of 1994 and 1995, both in the Legislature and in court, however, the health groups started to reclaim the issue of “following the will of the voter,” which paved the way for the fight in 1996 to restore the Health Education and Research Accounts.

But getting the issue framed in a way that helps public health is only part of the battle. Tobacco control advocates also need to know what they want the money for. In 1989, when Proposition 99 passed, they were not ready. Although the dangers of tobacco use were well defined, with

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over 60,000 studies documenting the toll of tobacco use, in 1989 the methods for preventing tobacco use and for encouraging cessation were not as well defined.^[26] The problem for the public health advocates was that, in the words of Cliff Allenby, Deukmejian's secretary of health and welfare, “They had no act.”^[27] Without an “act” in the form of a firm idea of what should be done with the money, the voluntaries were in a weak bargaining position.^[28]

From the beginning, the CMA, Assembly Speaker Willie Brown (assisted by Steve Thompson), and the other health providers did “have an act.” CHDP was in place and could readily be expanded. All it lacked was money. If part of the object was to prevent youth from starting to smoke, then all the health providers needed to do was to present a plausible argument that advice from a doctor was one route to achieving this goal. Looked at carefully, it was not really plausible that advising infants and toddlers not to smoke would be very effective. But no one challenged the plausibility of the program. The health groups deferred to the medical groups because they thought they had no choice.

Even in 1991, as it was becoming clear that the California Tobacco Control Program was working and tobacco use was dropping, the voluntary health agencies' lobbyists in Sacramento did not protect what the tobacco industry realized was a major strength of the tobacco control program: the local lead agencies. The lobbyists were willing to let the industry curb the local programs, apparently not realizing the degree to which cutting the local programs was an industry priority. Between reducing local funding outright, implementing Section 43 reductions, and diverting local money into Comprehensive Perinatal Outreach, Assembly Bill 99 served the tobacco industry's interests. The local programs were not fully restored until the fight of 1996 restored all funding to the California Tobacco Control Program.

From the start, the public health groups understood the value of the media campaign. While the lobbying effort was able to protect funding for the media campaign, including through such measures as the ALA lawsuit filed to protect the media campaign funds in 1992, the media campaign needed protection in addition to funding. The industry, if it could not kill the media campaign, wanted to limit its messages. By 1996-1997, the health groups were forced to learn how to pressure the administration for a high-quality media campaign.

By 1996, the tobacco control activists had an “act.” They knew what they wanted; the issue was how to get it from the political process.

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Power: Turning Ideas into Action

To get their “act” through the political process, tobacco control activists needed political power, and the primary source of their power was public sentiment. To activate public sentiment, they had to keep the process as public as possible. Between 1989 and 1996, however, the health lobbyists did not exploit this resource. Until 1996, tobacco control advocates supported having the Proposition 99 programs designed by a conference committee, not by the policy committees of the Senate and Assembly. By sending the bill to a conference committee, tobacco control advocates lost the advantage of public debate and review. A conference committee is very much an insider forum in which the public is generally excluded from knowing what is going on or being given a chance to influence the process.^[29] The public health groups have not been as successful at the inside game as the tobacco industry or the medical groups. Unlike the tobacco industry and medical groups, which are major sources of campaign contributions, public health groups do not make campaign contributions.^[6][30-32] After the voluntary health agencies agreed to major cuts in AB 99 in 1991 in exchange for three years of program stability, the more powerful insider players simply ignored the deal. Even so, the voluntary health agencies continued to play the insider game, while not increasing resources for their lobbying efforts.

The agencies do, however, enjoy high name recognition and credibility with the public.^[33] By contrast, the tobacco industry has very low public credibility. This difference in public standing means that outside strategies are likely to be the public health community's best means to achieve good tobacco policy, because the skills and resources of the voluntary health agencies tend to be amplified in public arenas while those of the tobacco industry are muted. But outsider strategies require a commitment of resources to a continuous public information effort. Equally important, they require a willingness to anger powerful politicians and interest groups by publicizing their misdeeds.

With nearly exclusive reliance on the insider strategy between 1989 and 1996, another problem for the public health groups was that the media and thus the public were kept uninformed and disengaged. To raise an issue in the insider circle is not the same as raising it with the media, which is an outsider strategy. The first major move outside the Capitol—when ALA filed a lawsuit in 1992 over the media funding—generated some publicity and protection for the media account budget. But when

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the later lawsuits over AB 816 successfully challenged the diversion of funds from Health Education and Research into health care, the voluntary health agencies did not use publicity about their victory to bring public pressure to bear on the governor or the Legislature. The legal victories, although clearly a successful use of outsider strategies, were not further amplified in the outsider forum. The court victory was instead viewed as a new piece of ammunition to bring into the insider game, not as a way to involve the public and get the media to frame the issue as “following the will of the voter.”

In 1996 the tobacco control groups made a decision to engage the public and shift the focus away from Sacramento. Although AHA and ANR, on one hand, and ALA and ACS, on the other, engaged in different campaigns to restore the voter-approved funding levels to Proposition 99, there were some common themes in their approaches. Leaders in both coalitions sought to expand the scope of the conflict in 1996 to involve more than just the Legislature and the Sacramento insiders.^[34] In particular, they worked to involve the media and the public more and to involve local level activists and agencies in the fight to restore the anti-tobacco programs. They committed time and money to the effort. Shifting the venue out of the Legislature into a more public arena meant that the debate over the future of Proposition 99 would occur in a venue in which the public health groups were more powerful and the tobacco industry and its medical allies were weaker. This more favorable venue contributed to the health groups' victory.

In the years following 1996, the Legislature continued to vote for full funding of the Proposition 99 Health Education and Research Accounts, even without a massive campaign to protect them. These votes were achieved even though the Court of Appeal had overturned the Superior Court's decision that SB 493 violated Proposition 99, leaving open the issue of whether or not the diversions were legal. Tobacco control activists had demonstrated that they could create the kind of public pressure it takes to leverage legislative behavior and, over time, impaired the ability of the tobacco industry to control the Legislature.

In 1998, after the smoke-free bar law went into effect, the Legislature withstood several attempts to overturn the ban, in spite of the tobacco industry's all-out attack on it. Tobacco control activists had, over the course of two decades, convinced the Legislature that people cared about tobacco control issues and had learned how to make it painful to ignore the public will on tobacco issues.

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Leadership: Seizing Opportunities and Challenging the Status Quo

The ability to construct an “act” and to mobilize the power to implement it requires leadership that can both seize opportunities and challenge the status quo. Strong leadership means having people in place who are willing to pursue a tough and sometimes confrontational strategy. The voluntary health agencies are generally far less confrontational and much more willing to compromise than their advocacy group counterparts because the voluntary health agencies have multiple legislative issues and competing demands. Thus, historically the voluntary health agencies have rarely been effective advocates for tobacco control in the face of concerted opposition from the tobacco industry and its political allies.

The environmentalists continued their successes with Proposition 99 throughout its course. While the voluntary health agencies were having to justify their programs over child health programs, environmentalists successfully avoided having the issue framed as “mountain lions versus sick children” and kept more than their original allotment of 5 percent of the tax revenues. The fact that no one touched the environmentalists was a tribute to the environmental movement's combination of strong inside leadership and ability to use tough outsider strategies when needed.

Once Proposition 99 passed, rather than following the environmentalists' model and assuming a strong, unified, confrontational leadership posture to protect the anti-tobacco education and research programs, the health groups' lobbyists worked within the established power structure. They accepted the kind of legislative compromises that would have been expected within that system before Proposition 99 passed. They failed to capitalize on the power that they had just demonstrated by defeating the tobacco industry in the election.

During the fight over AB 75, the first implementing legislation, the reliance on the insider game by the voluntary agencies led to only modest compromises. With the election less than a year in the past, the Legislature was conscious of what the public wanted. Steve Scott, political editor of the California Journal, observed: “Their [the tobacco industry's] most important ally at the time was Speaker [Willie] Brown, but with the election still fresh in memory, even Brown's muscle couldn't pull enough votes for the industry to get its way in this battle. It was one of the first major losses suffered by the industry in the Legislature until that time.”^[35]

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With the exception of the CHDP diversion, AB 75 was reasonably close to the voter mandate, and it is possible that those who were lobbying for the legislation believed it was due to the quality of their leadership. It is more likely that, as Scott observed, the Legislature was unwilling to thwart the public. But as the election faded in memory, the public health groups opted not to work to keep public sentiment activated and the media involved.

The voluntary health agencies' decision to compromise on AB 75 and allow funding of CHDP from the Health Education Account helped the CMA, CAHHS, and the tobacco industry and put the health groups in a difficult position. They began to protest the diversions in 1994. By 1995, Steve Thompson, who had become the CMA's chief lobbyist, could use the voluntary health agencies' previous actions to counter their emerging claim that the diversions were illegal; “Overall revenue,” he said, “was diminished and what might have been, depending on one's point of view, a legal or illegal transaction initially has certainly become an illegal transaction today.”^[36] Having agreed to the diversions in the past, it was difficult for the health groups to claim the moral high ground about the illegality of those same diversions as money got tighter.

Thus, in 1994, in the face of their changed position and a tough budget year, the voluntary health agencies had a hard fight before them, again being fought with no more resources than they had before Proposition 99 passed. To complicate matters further, however, they were also trying to pass AB 13 in the midst of a rancorous debate within the health community over whether AB 13 was a good idea. At the same time, the tobacco industry qualified its own initiative, Proposition 188, for the ballot, which further drained resources and energy away from the Proposition 99 battles. Not surprisingly, 1994 was the worst year yet for Proposition 99 in the Legislature, with AB 816 diverting $301 million of the Health Education and Research revenues—34 percent of the money the voters had allocated to tobacco control—into medical programs.

If the absence of leadership from public health had been a problem in the first eight years of Proposition 99, the entry of strong leaders in 1996 was key to restoring the voter-mandated funding levels. In 1996, under the leadership of AHA executive vice president Roman Bowser, AHA joined ANR and Stanton Glantz and confronted the CMA in a successful effort to separate it from the tobacco industry. The ACS leadership became more involved in the legislative process instead of merely deferring to their lobbyists. The CMA leadership, too, took a more active

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role in setting policy on Proposition 99 rather than simply following its lobbyists' advice. Within the Legislature, the Democratic minority leader, Richard Katz (D-Panaroma City), a longtime supporter of tobacco control efforts, took a personal interest in Proposition 99, which changed the dynamic within the Legislature.

In addition to changing their behavior in Sacramento, the health groups involved their grassroots membership. All these actions shifted the control over the legislation away from the lobbyists and to the organizational leaders, who were more concerned with designing an effective tobacco control program than maintaining relationships within the Legislature.

Conclusion

Difficult as it may be for tobacco control advocates to demand accountability, tobacco control programs will not survive if the nongovernmental organizations that care about the program will not protect it. The preservation of the intent and spirit of these programs will not occur simply because an initiative is approved by the voters. This approval is a powerful force, but it must be used effectively by those who accept the responsibility for defending the public interest. Exercising oversight over the elected and appointed officials who had authority over the tobacco control program was even more challenging for the public health groups than getting the program enacted.

In the years immediately following an election or legislative action to create a tobacco control program, the effort to keep the will of the voters before the Legislature is not difficult, since both the press and the public are likely to be paying attention. But voter approval is likely to become less obvious and thus less powerful over time, and tobacco control advocates need to seek ways to keep the public informed and involved on the tobacco issue. If advocates instead retreat to playing only the insider political game, they will probably fail. They must be willing to withstand and embrace the controversy that the tobacco industry and its allies will generate.

The California story illustrates a few simple rules for beating the tobacco industry:

1. The public is public health's best asset. Keep the fight public and the public engaged.

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2. The tobacco industry will try to work in the shadows and through intermediaries. Confront these groups and force them apart from the tobacco industry.
3. The early implementing phases of tobacco control legislation are very important. Bad precedents, once set, are exceptionally hard to reverse. Avoid compromises early in the process.
4. Do not be afraid of controversy; use it.
5. Press for and defend high-quality programs. Beware of reasonable-sounding compromises in the anti-tobacco program (such as concentrating on kids or avoiding attacks on the tobacco industry), even when these suggestions come from “friends” in the health department.
6. The battle does not end when a tobacco control initiative is passed.
7. The battle does not end when the Legislature enacts implementing legislation, even if it is a good bill.
8. The battle does not end when the health department or schools implement a good program.
9. The battle never ends.

When the health groups are willing to take the risks and make the financial and other commitments necessary to confront the tobacco industry and its allies, the health groups can win despite the industry's superior economic resources. One only needs to visit a smoke-free bar in California to understand how dramatically reality has changed since a small group of activists met in Peter Hanauer's living room with the odd idea that people had a right to breathe clean indoor air.

They have shown over and over again that you can beat the tobacco industry.

Notes