The Philip Morris Initiative

As Merlo had alerted Bible, on January 17 Philip Morris and a group of restaurant owners submitted an initiative statute, the California Uniform Tobacco Control Act (essentially identical to AB 996) to the California

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Attorney General with the intention of qualifying it for the November election. The initiative stated that “current regulation of smoking in public in California is inadequate” and that “there is a clear need for uniform statewide regulation of smoking in public to assure those interested in avoiding secondhand smoke have the same protection wherever they go in the state and that those who do smoke have fair notice of where smoking is prohibited.”^[76] The smoking regulations in the initiative were simply worded as broad prohibitions; the even broader exceptions appeared near the end of the initiative, couched in technical terms. The language that preempted all local ordinances regulating any aspect of tobacco consumption, distribution, or promotion was buried on the last line of page 9.

The initiative would have overturned eighty-five local ordinances that mandated smoke-free workplaces and ninety-six ordinances that mandated smoke-free restaurants (as of January 1994). In addition, because strict workplace smoking restrictions encourage some smokers to quit and others to reduce the number of cigarettes smoked,^[77] a trend that is reversed when restrictions are relaxed,^[2][79] passage of the initiative would have actually increased smoking and exposure to secondhand smoke.^[80] While Philip Morris's public statements did not emphasize the potential of the initiative to protect tobacco profits, the company explicitly presented the initiative as a way for tobacco retailers to protect their business: “The adverse impact on retail cigarette sales would be immediate [without the initiative]. Your cigarette sales, along with your profits, could drop.”^[81]

Organized opposition to the initiative, which was eventually placed on the ballot as Proposition 188, developed slowly. When Philip Morris first proposed the initiative in January 1994, only Carolyn Martin, an ALA volunteer and former chair of the Coalition for a Healthy California and TEOC, and ALA lobbyist Tony Najera, expressed strong concern about it. Most people viewed the Philip Morris initiative as a sure failure because the California public had been educated about the health dangers of tobacco and did not trust the tobacco industry.^[82][83]

Martin and Najera hired Jack Nicholl, who had been campaign manager for the Yes on Proposition 99 campaign. The three contacted former Coalition members to alert them to Philip Morris's actions and to mobilize local groups to publicly denounce the initiative as an attack on their local tobacco control ordinances, local autonomy, and public health and to contact editorial boards and secure their opposition. Martin also

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asked for contributions for a three-month campaign to defeat the petition drive (table 2) and convened former members of the Coalition on February 17, 1994.^[84][85]

Meanwhile, ACS funded a poll of California voters asking how would they vote if they knew Philip Morris was behind an initiative that would decrease smoking restrictions in California, overturn local laws, and prohibit cities and counties from making their own smoking laws.^[86] This poll also tested various messages that could be used to oppose the initiative, so it provided important marketing research for the public health campaign. The results revealed that 70 percent of those polled would vote against such a law, 24 percent would vote for it, and 6 percent were undecided.

While the proponents of an initiative write the text of the proposed law, the California Attorney General provides the official title and summary, which appear on the ballot. This wording is important because it may be the only material that a voter reads about the measure before voting. The title and summary also appear at the top of all copies of the petitions used to gather signatures to qualify the initiative for the ballot. Given their experience in the Proposition 99 campaign, Martin and Najera realized the importance of not only the initiative's title and summary but also the Legislative Analyst's analysis and ballot arguments, which appear in the Voter Pamphlet. Philip Morris had submitted proposed language emphasizing that the initiative “bans smoking,” “restricts…vending machines and billboards,” and “increases penalties for tobacco sale to and purchase by minors” while downplaying the exceptions.^[87] The Coalition hired an attorney who presented a title and summary to the Attorney General that emphasized preemption of local ordinances, relaxation of current restrictions on smoking, and the increase in smoking that the initiative would cause.^[88][89] The final title and summary that the Attorney General released on March 9, 1994, reflected the Coalition's concerns; it highlighted the preemption of existing laws and significant exceptions to smoking restrictions.^[90] The Coalition's timely and assertive intervention would prove very important as the battle over the initiative unfolded.