15. Political Interference in Program Management

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In 1990 the tobacco industry had considered lobbying the Deukmejian administration to weaken the tobacco control program, particularly the media campaign, but it recognized that this strategy was unlikely to succeed.^[1] The industry quickly recognized that Governor George Deukmejian had a hands-off approach to day-to-day program management and that Ken Kizer, director of the Department of Health Services (DHS), was committed to the anti-smoking program. Thus it was more productive to concentrate on working with the Legislature and others such as the conservative California Medical Association (CMA) and the liberal Western Center for Law and Poverty to divert anti-tobacco education and research funds into medical services. This situation changed as soon as Pete Wilson was inaugurated governor in 1991. According to Kizer, who stayed on at DHS until a successor was named, things changed immediately: “There were some comments from…[Wilson's] office that they were unhappy and would like to see any subsequent ads toned down, and wanted to review any of them.”^[2] As the administration slowly strangled the program, it lost its effectiveness.^[3]

The battle over program content intensified over time, particularly after June 1996, when the Legislature stopped diverting money from the Health Education and Research Accounts into medical services. The health groups, which had become reasonably used to and proficient at fighting the tobacco industry directly and in the Legislature, had a much

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more difficult time engaging in administrative battles to insure that the Health Education money was spent effectively and not wasted on activities that the tobacco industry considered “acceptable.”^[4][5]

Squashing the Media Campaign

The media campaign had been a focal point for controversy ever since the tobacco industry tried to kill it off in 1989 in AB 75, Proposition 99's first implementing legislation (see chapter 5). In 1990 the industry recognized the power of paid counter-advertising and had conducted its own focus group testing of the California advertisements.^[6-8] As the implementation of Proposition 99 continued, the media campaign continued to be controversial, with California tobacco control advocates working to maintain a no-holds-barred tone and the tobacco industry and its allies seeking to soften the tone and limit the scope of the campaign to targeting children and pregnant women or else to presenting health messages. Assembly Speaker Curt Pringle (R-Garden Grove) had even attempted to write these restrictions into law in 1996 (see chapter 14).

In 1990 the media campaign got off to a strong start. The first wave of advertisements, launched in April of that year under AB 75, included thirteen television spots and twelve radio spots, supplemented with three more television spots in February 1991. The campaign also included supporting billboards and print advertising. In addition to its aggressive tone, the DHS Tobacco Control Section (TCS) tied the advertising to the needs of the local programs. TCS convened a large Media Advisory Committee, consisting of various stakeholders and representatives of local and ethnic programs, to review emerging advertising concepts and provide feedback.

In January 1992 Governor Wilson tried to eliminate the media campaign by refusing to sign the new contract with the advertising agency, Livingston and Keye (previously keye/donna/perlstein; see chapter 10). The broadcasting of anti-smoking advertisements ended immediately, as did the development of new advertisements. Although the American Lung Association (ALA) successfully sued to force the administration to sign the contract in May 1992, the governor's action significantly disrupted the campaign. Although DHS began running the old advertisements again, no new media was available until February 1993. This delay meant that two years elapsed between waves of new material. Once the

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campaign restarted, Livingston and Keye released eleven television spots in February, supplemented with four more in November, and a total of seven radio spots. Despite the delay, the new advertisements maintained the tone of the earlier campaign, which focused on discrediting the tobacco industry and highlighting the dangers of secondhand smoke.

In the fiscal years 1994-1995 and 1995-1996, the Legislature continued to allocate money—nearly $12 million annually—to the media campaign. The allocation, however, did not insure that a quality program would result or even that the money would necessarily be spent. Instead of continuing the Deukmejian administration's policy of treating the development and approval of the advertising spots as a matter to be dealt with by public health professionals inside DHS and its advertising agency, the Wilson administration required the advertisements to be approved by the secretary of health and welfare, Sandra Smoley, and the Governor's Office. As a member of the Sacramento County Board of Supervisors in 1990, Smoley was one of only two votes against the Sacramento Clean Indoor Air Ordinance. The rate of production of new material fell dramatically. Only five television spots were released in September 1994 and four in September 1995. These television spots were supplemented by eleven radio spots. The administration then stopped all production. There were no new advertisements between September 1995 and March 20, 1997. In 1995-1996 the Wilson administration spent only $6.5 million of the $12.2 million appropriated by the Legislature for the media campaign. This $5 million in unspent funds was the $5 million that Speaker Pringle succeeded in allocating to smoking cessation efforts in 1996, effectively cutting the media campaign in half.

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The efforts to squash the media campaign paid off for the tobacco industry. The weakening of the media campaign, in both content and intensity, was associated with an end to the drop in tobacco consumption in California (figure 20). The California Tobacco Survey, conducted in 1998 by John Pierce of the University of California, San Diego, under contract to DHS, demonstrated that smoking stopped falling in California in 1994, at the same time that the funding diversions accelerated and the media campaign and other programs were scaled back and toned down.^[3][9] The loss of program effectiveness after 1994 meant that Californians smoked 840 million packs of cigarettes (worth about $1.2 billion to the tobacco industry) between 1994 and 1998 that would not have been smoked had the program remained as effective as it was between 1989 and 1994 (figure 21).

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“Nicotine Soundbites”

The funding cuts and slowdowns in producing new media materials were only some of the problems faced by the media campaign. The controls placed on the content of the media campaign were even more harmful. In 1994 TCS, working with its new advertising agency, Asher/Gould, produced a thirty-second television advertisement, “Nicotine Soundbites” (figure 22), that used actual footage from the landmark April 14, 1994, congressional hearing conducted by Representative Henry Waxman (D-California) at which the chief executives of the major cigarette companies denied that nicotine was addictive. The advertisement began with an image of the executives standing with their right hands raised swearing to tell the truth. Four of the executives, William Campbell of Philip Morris, James Johnston of RJ Reynolds, Thomas Sandefur of Brown and Williamson, and Donald Johnston of American Tobacco, all deny, each in turn, that nicotine is addictive as their names and companies flash on the screen. The advertisement ends with the question “Do they think we're stupid?” Public health advocates loved the advertisement and the tobacco industry went berserk.

The advertisement was first aired on September 29, 1994. On October 6, lawyers for RJ Reynolds wrote DHS on behalf of the company's chief executive officer, James W. Johnston, claiming he was defamed and demanding an apology.^[10] They also wrote to television station KABC in Hollywood, alleging that the advertisement was false and defamatory and demanding that the broadcasts end immediately.^[11] They told Asher/Gould, “Your creation of an intentionally altered videotape is clearly outside the limits of legal or ethical behavior, and my client shall hold your agency, and everyone in this project, personally responsible.”^[12] The lawyers demanded that Asher/Gould “set aside and preserve every document…in your possession or custody and control relating to the development, production, and distribution of the offending commercial.”^[12] Finally, they demanded that DHS director S. Kimberly Belshé undertake “an immediate withdrawal of a television advertisement sponsored by your Department which contains a false and defamatory attack upon our client.”^[13]

By October 17, 1994, KABC and two other television stations had pulled the advertisement off the air. Bruce Silverman, the president of Asher/Gould, had offered to indemnify several stations, including the Los Angeles NBC affiliate, to keep the advertisements on the air. According

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to Silverman, “We don't see this as a horrible risk because we don't believe that KNBC or anyone, for that matter, including us, will really be sued by Johnston.”^[14] The threat to sue and the knuckling under by three stations to the threat, however, attracted broad media coverage.^[15-19] The Minneapolis Star Tribune had this to say in an editorial of October 17: “Under the circumstances, a tobacco executive threatening to sue for libel should be funny—if his threat hadn't worked. Incredibly, the TV stations—in San Francisco, Oakland and Los Angeles—caved in to the pressure and took the commercial off the air.…Given all the jibes aimed at the tobacco industry, it's amazing its leaders would choose to fight this one. These ads simply underscored the oft-repeated fact that tobacco industry executives are expert prevaricators. Why should they be sensitive about that? After all, if you already make a profit from causing death, the charge of lying about it shouldn't be too hard to live with.”^[20]

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Belshé publicly defended “Nicotine Soundbites” in a letter replying to Johnston's attorneys. She wrote,

This is to inform you that the Department of Health Services will not withdraw or alter the advertisement in question. Further, we adamantly deny any allegation of defamation resulting from this advertisement.…The point made by the ad, we believe, is that while individual industry executives may be able to make certain statements which are literally true in a narrow legal context, these statements do nothing to give credibility to the overall industry position that tobacco is not a harmful product.

Furthermore, I would like to take this opportunity to express my grave concerns regarding recent attempts which have been made to intervene in the airing of these ads by local television stations.^[21]

“Nicotine Soundbites” remained on the air. But after DHS's public display of support, the administration quietly shelved it in early 1995.^[22]

Beginning in 1995, the Wilson administration refused to air the spot, despite repeated requests to do so by public health advocates, including a formal request by the Tobacco Education and Research Oversight Committee (TEROC).^[23] The administration's repeated excuse was a desire to avoid litigation (something it had no aversion to if the plaintiffs were the public health groups).^[24] TEROC countered with a specific recommendation that it would endorse use of Health Education Account money to defend the advertisement in court, if necessary. Since “Nicotine Soundbites” was made up entirely of footage of the Waxman hearing, edited down to fit a thirty-second spot, and since truth is a defense, such litigation was extremely unlikely. Other states later aired the advertisement with no legal repercussions.

The content controls were not restricted to “Nicotine Soundbites.” In September 1994 Sandra Smoley personally intervened to remove 190 billboards bearing the message “Secondhand Smoke Kills: Are You Choking on Tobacco Industry Lies?” (figure 23). Smoley ordered that the billboards be papered over at a cost exceeding $10,000, even though Belshé had approved them. When her role became public because of materials that Americans for Nonsmokers' Rights (ANR) had obtained from DHS under the California Public Records Act, Smoley defended her position to the American Cancer Society (ACS), ANR, and the American Heart Association (AHA), saying that she ordered the billboard pulled because “it was found to be offensive for government to use taxpayer funds to call a private industry a liar” (emphasis added).^[24] Smoley, a registered nurse, did not approve of accusing the tobacco industry of lying, despite the fact that accelerating litigation against the tobacco industry was revealing,

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almost daily, new disclosures of the tobacco industry's lies to the public about nicotine addiction, cancer, and marketing to kids over the last half century.^[25][26]

Smoley also killed the television advertisement “Insurance,” which pointed out that insurance companies owned by tobacco companies gave nonsmoker discounts and then asked the question “What do the tobacco guys know that they're not telling us?” She objected to an image of tobacco executives shredding documents. When the advertising agency offered to remove the few seconds of video showing the shredding, she still refused to allow the advertisement to be aired. In response to complaints by the public health groups about the administration's action, Smoley blamed them for raising the issue: “Your organizations have given unwarranted emphasis to the decision not to air an ad known as `Insurance.'…While the ad had much potential, and could have been aired with further work, DHS dropped the ad immediately after your press conference” (emphasis in original).^[26] The state spent over $250,000 producing “Insurance,” only to leave the finished ad gathering dust on the shelf because the public health groups had asked where it was.

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Implementing Pringle's Pro-Tobacco Policies

In June 1996 Speaker Pringle had tried to insert language into the budget that would have eliminated the media campaign's attacks on the tobacco industry, meeting a long-standing objective of the tobacco industry. While Pringle lost in the Legislature, the Wilson administration quietly used administrative procedures to accomplish the same thing.

DHS used contracting procedures in an effort to slow down the media campaign. At the time the 1996-1997 budget was signed, the contract to administer the media account was held by the advertising agency Asher/Gould, which had won it in May 1994. This contract contained an option for DHS to renew it for two years, beginning July 1, 1996. As early as June 1996, Asher/Gould had delivered storyboards (pen and ink versions of the proposed advertisements) to TCS for a new media campaign scheduled to begin that fall. Based on the past successes of the campaign, several of these proposed advertisements featured attacks on the tobacco industry.

Rather than simply exercising its option to extend Asher/Gould's contract for two years so that the agency could move ahead with the work, DHS issued a new Request for Proposals for the media campaign on August 2, 1996 (for the period from January 1, 1997, through December 31, 1999). This action set in motion a protracted process of submitting bids, judging proposals, and handling appeals for the agencies that were not selected. Some people in TCS, as well as in the public health community, were concerned that the entire process was designed as an attempt to replace Asher/Gould, since the administration distrusted the agency's president, Bruce Silverman, for consistently pressing for strong anti-industry advertisements. In the end, Asher/Gould won the new contract, but the process delayed the development of the planned advertisements. In a great show of circular logic, the time required for this process became one of the administration's excuses as it came under increasingly strong criticism from TEROC and public health organizations for delays in releasing new advertising.

One of these new advertisements was “Cattle,” which showed cowboys—portrayed as Marlboro Man types—rounding up children as a metaphor for the tobacco industry's efforts to hook kids on cigarettes (figure 24). “Cattle” began with the words “This is how the Tobacco Industry wants you to see them” and was originally to feature one of the cowboys lassoing a kid and dragging him to where another cowboy was waiting with a branding iron labeled “Tobacco Industry.” The final line

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was, “The Tobacco Industry. If you knew what they thought of you, you'd think twice.” Another advertisement, “Thank You,” a television advertisement that eventually became a radio spot, was a sarcastic “thank you” letter from the tobacco industry to kids in appreciation for their loyalty in spite of overwhelming evidence that tobacco kills. It began with the words “The Tobacco Industry would like to thank…” and ended with “Sincerely, the Tobacco Industry.” These anti-tobacco industry advertisements soon hit a brick wall.

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During the summer of 1996, it was reported that Mike Genest, the assistant deputy director for prevention services at DHS and someone who was widely viewed as the governor's political watchdog in the department, and Dr. James Stratton, the state health officer and DHS deputy director for prevention services, summoned Silverman to a closed-door meeting in Sacramento to discuss what would be acceptable and what would not be acceptable in the advertisements that were under development. When Silverman walked into the room, he found four terms written on a blackboard: “tobacco industry,” “profit,” “nicotine addiction,” and “lies.” The DHS managers reportedly stood up and drew a line through each of these terms; they were not to appear in any of the advertisements.

In July 1996 Genest said that everything that Asher/Gould had presented for youth was controversial and would need to be approved several layers up the chain of command.^[27] He questioned the efficacy of attacking the tobacco industry, prompting Silverman to write Dileep Bal, head of the Cancer Control Branch (which includes TCS), that “the only effective method I know of to achieve that [a reduction in tobacco use] via advertising is with the `Manipulation' strategy that we just tested.”^[28] In addition to expressing general concerns about attacking the industry, Genest wanted the phrase “Tobacco Industry” changed to “Big Tobacco.”^[27] Nothing was approved to go into production.

In addition to slowing the approval process, the Wilson administration made other changes designed to tone down and slow up the media campaign. Under previous policy, once an anti-tobacco advertisement was approved, TCS and the media contractor used their professional judgment in deciding when to run it. In August 1996, when Asher/Gould suggested again running “Industry Spokesmen,” the very first Proposition 99 anti-tobacco advertisement (which had not been aired for several years), Genest announced a new policy: every advertisement was to be cleared for each use, even if it had been approved in the past.^[29] The approval process included not only DHS management but also the

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personal stamp of approval of Secretary Smoley. This new policy effectively shelved forty existing television and thirty radio advertisements that had been produced at a cost of millions of dollars to the taxpayers. It also ensured that advertisements such as “Industry Spokesmen,” “Nicotine Soundbites,” and others that the industry found so objectionable

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would not be put into the advertising rotation by TCS or the media contractor. Bal protested this new policy as “a fundamental change that I for one was unaware of until now.”^[30] Between the delay over the new spots and the need for reapproval of the old, there was clearly no intention of getting the media campaign up and running in a hurry.

The administration continued to impose tighter political controls on the media campaign. On September 16, 1996, Joe Munso, chief deputy director of the DHS Office of Public Affairs (OPA), the agency's public relations office, distributed a memo announcing that he would “review advertising concepts before they are focus group tested or shared with stakeholders/interested parties” (emphasis in original).^[31] Thus, an official charged with protecting the administration's political and public relations positions would review proposed advertisements for political acceptability before any formal evaluation of the advertisements for quality or effectiveness as public health messages could take place. As these delays gradually ground the media campaign to a halt, with nothing but the old, “acceptable” advertisements being run, departmental staff began informing the administration that the advertisements were so overexposed that they had likely lost their effectiveness.^[32]

Finally, Belshé wanted TCS to justify not only the attacks on the tobacco industry but also the entire strategy of “countering pro-tobacco influences in the community.” This strategy, along with “reducing exposure to environmental tobacco smoke” and “reducing youth access to tobacco,” was one of the three main themes in all of DHS's programming, including media, local programs, and the competitive grants. Robin Shimizu, a staff member at TCS who was helping with the media campaign, warned Dileep Bal that “these priorities were developed and renewed with the assistance of the tobacco control communities throughout California and do not simply belong to DHS/TCS. To back away from, or to have to justify the use of, any one of them, or to eliminate one of the priorities would be viewed harshly by everyone involved in tobacco control in the state as well as other states, unless there were a very strong rationale for doing so.”^[33] Bal forwarded Shimizu's comments to his boss, Don Lyman, head of the Chronic Injury and Disease Control Division, with a comment of his own: “`Countering pro-tobacco influences in the community' is the very signature piece of our efforts to date, as any of the cognoscenti within or without the state will attest to. To have that questioned in an issue memo you or I have not seen is beyond anything. Any fundamental shift of these proportions without community

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input will produce quite a mushroom-cloud, besides being ill-conceived. Caveat emptor.”^[34] Bal further offered to host “a full-scale consensus conference of the national cognoscenti” to discuss the issue, implying that those who were requesting the justification did not really want this level of public discussion of the issue. He also suggested that the “countering” strategy was being held to a higher standard of proof of its efficacy than other DHS interventions.^[35] The strategy remained intact.

Shutting Out the Public Health Community

During the first years of the California anti-tobacco media campaign, both DHS and the advertising agency had actively involved members of the public health community, including TEROC, in the development of the advertising campaign with the aim of coordinating the media campaign with the community-based tobacco control activities and receiving expert advice on the content of the campaign.^[36] Recognizing that efforts to slow down and weaken the media campaign would spark controversy within the public health community, the administration shut this group out of the review process.

As the legislatively constituted oversight committee for the Proposition 99 program, TEROC had a particular interest in the development and implementation of the advertising campaign. TCS had routinely, if informally, involved TEROC in the development of the advertising campaign by asking its members to review storyboards for advertisements that were under development. The administration quit involving TEROC in the review of the storyboards. The administration argued that TEROC was a “security risk” and that sharing the advertisements with TEROC would increase the likelihood that the tobacco industry would gain access to them. To this, Cook responded, “The TEROC is not an outside party; it is to be part of the process; and it is being deprived of the tools necessary to function.”^[37] One of the other TEROC members wryly observed that DHS apparently considered twelve-year-olds in a focus group less of a security risk than the TEROC members.^[37]

At the December 10, 1996, meeting of TEROC, the committee discussed the delays in the media campaign and the new closed review process used for approving new media. Stratton announced that decision making about the media campaign had been removed from TCS. He also claimed that he had the final say over the content of the advertisements. No one believed him, but he was the first of a long line of officials

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who claimed to have the final say (in order to provide political cover for Smoley and the governor). TEROC formally requested to be allowed back into the process, specifically asking for the opportunity to see and comment on the storyboards for planned advertisements; Stratton refused.^[38][39]

The veil of secrecy extended to the advertising firm as well. The new Asher/Gould contract issued on December 1, 1996, contained a new clause, nicknamed the “Silverman Clause,” barring the advertising agency from discussing the media campaign with anyone without prior written approval from DHS management.^[40]

The administration had a good reason for wanting to keep TEROC and the other members of the public health community out of the process. They had secretly weakened the June advertisements, just as public health advocates had feared.

By the December 1996 TEROC meeting, all the storyboards submitted by Asher/Gould in June had been modified to remove the prohibited words “the tobacco industry” and “addiction.” “Cattle” now began with “This is how the guys who make cigarettes…,” and the final line was simply “If you knew what they thought of you, you'd think twice” (figure 25). The text of the advertisement “Thank You” had also been changed, from “The Tobacco Industry would like to thank…” to “Those of us who make cigarettes would like to thank you.” The final line, “Sincerely, the Tobacco Industry,” was still included in the December 5 presentation attended by TCS staff, Lynda Frost (deputy director of the Office of Public Affairs), Genest, and Stratton, but it was later deleted.^[41]

Another new advertisement, “Rain,” which featured cigarettes raining down on a playground, was based on the theme of hooking kids, but it never mentioned the tobacco industry by name. The opening line was “We have to sell cigarettes to your kids,” and the final line was “How low will they go to make a profit?” Viewers were left with the impression that the advertisement was about retailers.^[42]

Another proposed new advertisement, “Voicebox” (later known as “Debi”), was to attack the industry for lying about nicotine addiction. It featured a woman smoking through a tracheostomy opening, stating that the tobacco industry had lied to her about the addictive nature of its products. At the December meeting, the industry attack approach was deleted, and the advertisement instead promoted the state's “800” quit line. In the revised December version neither of the prohibited terms “addiction” or the “tobacco industry” was used. The advertisement instead

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featured a smoker who could not quit in spite of undergoing a tracheotomy, urging others to give quitting a try. An anti-industry advertisement had been converted into a cessation spot, one that implied quitting was impossible—a strange message from a public health department.

The effort to tone down the attacks on the tobacco industry flew in the face of the research on message effectiveness that Asher/Gould had conducted for TCS. In response to requests from administration officials for more and more justification for the anti-industry strategy, Asher/Gould hired an outside evaluator to study the question. In a November 1996 summary of its focus group research on different advertising messages and in a December 1996 memo to Colleen Stevens, head of the media campaign at TCS, Christine Steele, the Asher/Gould senior vice president responsible for the campaign, reported the results.^[43][44] Five advertising strategies were tested on youths between the ages of twelve and eighteen in focus groups in Sacramento and Los Angeles. The messages tested were: (1) manipulation of kids by the tobacco industry, (2) the dangers of secondhand smoke, (3) the short-term health effects of smoking, (4) the risk of romantic rejection, and (5) the elimination of risks to the environment caused by smoking, with results including cleaner beaches, fewer trees destroyed to produce cigarettes, and fewer animals harmed by eating butts. Of the five, manipulation by the industry was the strongest message in the groups. According to Steele, “The body language of kids clearly revealed that this [anti-industry] strategy provided kids with an emotional wake up call. They sat up straight, they grimaced, they shook their heads, they became riled up and vocal—they at least became concerned about this formerly `low interest' topic.”^[44] The administration was unmoved.

The ACS, which had been passive through the battles with the administration, started to take more proactive positions in 1996. One reason may have been that the administration was ignoring TEROC chair Cook, a longtime and high-level volunteer in ACS. Another reason may have been to recover from an embarrassment that occurred when the ACS's San Francisco unit awarded tobacco industry ally Willie Brown its “Humanitarian of the Year” award.^[45-48]

On February 4, 1997, the presidents of the ACS, AHA, and ANR wrote Smoley to express their frustration with the “administration's ostensible defense of an industry responsible for the deaths of more than 42,000 Californians each year—the tobacco industry.”^[49] The three organizations protested the long delay in the production of new media

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output and urged Smoley to release a campaign that featured the original campaign themes: “the tobacco industry lies,” “nicotine is addictive,” and “secondhand smoke kills.”^[49] Meanwhile, John Miller, chief of staff to Senator Diane Watson (D-Los Angeles), chair of the Senate Health

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Committee, was threatening to hold hearings on the way the media campaign was being conducted. It would take Smoley until March 7, over a month, to respond that nothing would change.^[25] In response, AHA, ACS, and ANR took out a full-page advertisement in the West Coast edition of the New York Times featuring the infamous Philip Morris memo about Wilson and accusing the Wilson administration of refusing to release

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hard-hitting television spots and removing billboards to protect the tobacco industry.

On April 15, 1997, the ACS, AHA, and ANR presidents wrote the governor requesting a meeting to discuss their concerns about the performance of his secretary of health and welfare.^[50] The letter went unanswered for a month. On May 16, the governor's deputy chief of staff and cabinet secretary wrote saying, “I am aware of your previous communications with the Health and Welfare Agency and the Department of Health Services. Both Secretary Smoley and Director Belshé have forthrightly represented the Governor's position to you.”^[51] Smoley, with Governor Wilson's explicit approval, was implementing Pringle's policy of refusing to attack the tobacco industry, even though the Legislature had rejected his language. The health groups accepted this rebuff quietly.

The TEROC Purge

Cook called an emergency meeting of TEROC for Monday, February 10, 1997, to follow up on Stratton's refusal to share information about the media campaign with TEROC and to decide what action TEROC should take in response. For Cook, as an ACS volunteer, it was hard to have to engage in political fights over the program. ACS had stayed out of the 1992 lawsuit over the media campaign filed by ALA, preferring to try to work things out with the governor. In the 1996 reauthorization fight, ACS had distanced itself from the aggressive strategies used by ANR and AHA. But Cook, as chair of TEROC, realized that the assault on the media campaign had to end. When asked about the changing ACS role, she explained,

It's very hard, very hard. Within the Cancer Society, we have a lot of divisions that are doing tobacco programs and are fighting their legislators and fighting their governors to make sure the money is spent. But we have some that won't do it still. They will not get into the fray that way. They don't understand that. To them, it's just getting into the legal system and they don't think we should be in the legal system. And I think we have become better advocates for the patient and for the prospective patients because we are in the legal system now. We are willing to speak up and say these things just cannot occur.^[52]

Cook's strong action in calling the emergency meeting could pose trouble for the administration by attracting public attention and energizing the ACS and other health groups, even though eight of TEROC's thirteen members are appointed by the governor (two are appointed by the

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speaker of the Assembly, two by the Senate Rules Committee, and one by the superintendent of public instruction).

On the Friday before the TEROC meeting, Stratton announced a major shakeup of TEROC. Three physicians on TEROC who had been strong advocates for the anti-tobacco education campaign were replaced with individuals closely allied with the Wilson administration. Breslow and Dr. Reed Tuckson, president of Drew University of Medicine and Science in Los Angeles, were told that they had been replaced in an action allegedly taken three months earlier by Speaker Pringle, a Republican, the day before the Democrats took over the Assembly. Neither Pringle nor DHS had given any previous indication of these changes, even though TEROC had met in December, after the date on which Pringle supposedly made the appointments; and the associated paperwork had ostensibly been “lost.”^[53] In addition, the governor removed Paul Torrens, a professor of public health at UCLA who had been another outspoken advocate for a strong program.

In the physicians' places, Pringle had allegedly appointed Hal Massey, a retired Rockwell Executive who had been active in ACS, and Doug Cavanaugh, the president of Ruby's Restaurants, an opponent of smoke-free restaurants and bars who was, according to Pringle, “familiar with the tobacco debate, balancing regulations with people's right to smoke.”^[53] Wilson replaced Torrens with Dr. George Rutherford, who had been the state health officer in the Wilson administration and responsible for the Proposition 99 program until he left to join the faculty at the University of California. Wilson also appointed Stratton to TEROC, making him a member of his own oversight committee.

The TEROC purge, combined with a dismantled media campaign, made news.^[53-59] Well over a hundred people came to the TEROC meeting on the afternoon of February 10, compared with the ten to fifteen nonmembers who usually attended. Audience members included the heads of a number of county tobacco use prevention programs who emphasized the key role the media campaign played in their efforts. Without the “air cover” created by the media, the impact of their local programs was more limited. Steve Hansen, a member of the board of the California Medical Association, suggested Stratton was guilty of “public health malpractice.”^[39]

TEROC eventually agreed that Cook should write to Belshé, informing her of the committee's unanimous vote (even including Stratton's) to request a meeting to review the storyboards for the current and future media spots; Belshé rebuffed the request.^[37][60]

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The Strengthened Advertisements

In February 1997 the administration responded to pressure about the advertisements by again revising the televised advertisements, although this fact was not made public at the time. On February 28, 1997, Lynda

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Frost okayed the restoration of the phrase “the tobacco industry” in the “Cattle” advertisement, changing the revised version, “If you knew what they thought of you, you'd think twice,” back to “The Tobacco Industry. If you knew what they thought of you,…” (figure 26). In “Rain,” the voiceover comment at the end was changed to “The tobacco industry.

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How low will they go to make a profit?” In addition, “Thank You,” which had become a radio spot, now had the words “Tobacco Industry” both in the opening sentence and in the last line.

By the time Asher/Gould prepared the final storyboards on March 3, 1997, two versions of “Voicebox” were planned. In addition to the cessation advertisement, a version was recreated that emphasized addiction and the behavior of the tobacco industry. In it, the actor says, “They say nicotine is not addictive. How can they say that?”; the tag line at the end was “The tobacco industry denies that nicotine is addictive.”

At the TEROC meeting on March 25, John Pierce, director of the California Tobacco Survey, presented the latest California smoking prevalence data, which showed that smoking rates for both youth and adults appeared to be going up. Overall, youth smoking, which had been as low as 8.7 percent in 1992, rose to 11.9 percent in 1995 and remained flat in 1996 at 11.6 percent. The annual Behavioral Risk Factors Survey conducted in house at DHS showed that adult smoking prevalence had increased from 16.7 percent to 18.6 percent between 1995 and 1996,^[61] reversing a downward trend that had existed for nearly a decade.^[24][62] The increase in smoking rates received wide media coverage.^[62-64] Public health groups blamed the increase on the fact that the administration had not fully funded Proposition 99's anti-tobacco education programs and on its reluctance to attack the tobacco industry. Sean Walsh, the governor's press secretary, commented that he was frustrated because Wilson was being blamed for everything—“including [the comet] Hale-Bopp.”^[62] He referred to the public health groups' criticisms as “Chicken Little-like comments made by zealots in the anti-smoking community.”^[64]

TEROC finally saw the new advertisements at its March 25 meeting, after they were released to the public, and Cook indicated that the members' reactions were mixed.^[37] The advertisements as released, nine months after Asher/Gould originally proposed them, were similar to those originally conceived by the advertising agency.

While the health groups did manage to get the 1997 advertisements strengthened, the administration's reluctance to go after the tobacco industry remained. On February 10, 1998, Christine Steele of Asher & Partners (the new name for Asher/Gould) was once again having to justify to Genest the strategy of countering tobacco industry influence, commenting that “this approach is important, relevant and, without question, necessary.”^[65]

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The 1998 Hearings

By 1998, the Legislature had become sufficiently concerned about the conduct of the media campaign that it held several oversight hearings to investigate the matter. Senator Mike Thompson (D-Santa Rosa) held three hearings of the Budget and Fiscal Review Committee. After two unsatisfactory appearances by DHS officials, Thompson demanded that the advertising agency appear before the committee. In preparation for the hearing, Stratton called Hal Asher of Asher & Partners to coach him about what they were to say at the hearing. According to a memo Asher wrote to his coworkers, “They [Stratton, on behalf of the administration] want us to say…with all clients we present a lot of ideas…some stay…some go. They want us to say…the state is not stalling. (He initiated this—not his exact words.) They rejected some ideas. Had input…and then accepted many of the new commercials. In other words…they help in the process…and this is like any client!…That the state added value to the campaign” (emphasis in original).^[66] Stratton emphasized the need not to air dirty laundry in public and for everyone “to be on the same page.” According to Asher, Stratton wanted them to say, “We are extremely excited about the new commercials that we are in the process of producing…and we think they will be the most effective yet.”^[66] By May, DHS had, in fact, killed virtually every idea that Asher & Partners had presented for countering tobacco industry influence.

Responding to the administration's stated concern that they would have to release materials to the tobacco industry if they showed them to TEROC, the Senate Budget and Fiscal Review Committee approved, in a bipartisan 5-0 vote, language to protect DHS in this regard. The language was designed “to ensure that the materials shared with the statutorily created group [TEROC] not constitute putting this into the public domain.” The governor vetoed the language in the budget, although the new language corrected the nominal security problem that the administration was citing to lock TEROC out of the process.^[67] Senator Watson's September 16 hearing of the Senate Health Committee featured extensive questioning of Stratton, who finally admitted publicly that Smoley forbade the use of certain words in the anti-tobacco advertisements, such as “lies” and “profits.”

The full truth about the administration's efforts to weaken the media campaign finally came out at an October 16, 1998, Senate Judiciary Committee

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hearing because Senator Adam Schiff (D-Pasadena) subpoenaed Asher & Partners to allow them to testify fully, despite the “gag clause” in their contract with DHS. In response to written questions, Asher & Partners wrote,

Campaigns which exposed the tobacco industry's marketing tactics have been approved. Campaigns which take on the tobacco industry in a more universal manner have generally been disapproved for being “anti-business” and because they did not focus narrowly on the tobacco industry's “marketing tactics.” All commercials which “personified” the tobacco industry were disapproved for “showing executives in a negative light.” …

In our best professional judgment, California…is not getting the most effective advertising campaign we can produce in the area of “counter advertising” for all of the reasons previously discussed.

Bottom line: effectiveness could be improved if:

1. Creative decisions were based on which messages would be most impactful against consumers as opposed to politics.
2. All creative decisions were left to the Tobacco Control Section. They get the job done quicker than the multiple approval levels which exist in the administration. They also tend to focus more on a given message's effectiveness rather than its political implications.^[68] [emphasis in original]

Asher & Partners also confirmed that, in 1997, “after intense pressure from tobacco control activists, the Administration finally allowed us to use the phrase `the tobacco industry' and asked us to quickly redo all of our creative materials to reflect the reneging of this restriction.”^[68]

Trying to Control TEROC

As TEROC became an advocate for the media campaign, the political appointees at DHS started to investigate how they could increase their control over this nominally independent oversight committee. In addition to replacing outspoken members, DHS also tried to exercise control over the meeting minutes, the Master Plan that TEROC was required to prepare for the Legislature, and the meeting agendas.

In 1997 Jennie Cook, chair of TEROC, became aware that the DHS administration had issued instructions for it to edit the TEROC minutes. Cook explained, “I mean, when they got to the point where they were reviewing the minutes before I ever saw them and taking stuff out, I really blew my stack. Those are our minutes, they're not the department's minutes, those are our minutes. I want everything in it.”^[52] The review process affected more than just the minutes. On March 4, 1997, Genest

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sent an e-mail to TCS specifying, “In no event, should TCS TEROC staff simply distribute an agenda or other materials to TEROC without first consulting with TCS management.”^[69] Bill Ruppert, the TCS member who staffed TEROC, wrote to Bal to inquire about the procedure for approving minutes:

In the past, we FAXed the draft minutes to the chairperson of TEROC, made any corrections requested by the chair, and then mailed the final out to the members.…

For the December 10 [1996] and February 10 [1997] TEROC meetings, there was [a] great deal of confusion and delay over approval of the minutes. There were requests from the Deputy Director level and Division level for review of drafts even before these drafts went to the Chairperson. It is unclear what the role of these levels was at the time, whether it was approval or not. The chairperson told me that she did not want anyone changing the minutes.^[70] [emphasis added]

Bal forwarded the note on to Lyman, who responded, “The rule is, `no surprises.' If the minutes are acerbic the front office wants to know before they appear in front of them from some other source.” He claimed that otherwise the review was just for quality control purposes.^[71]

The agenda for the June 17, 1997, meeting also caused controversy when Stratton demanded that Pierce be removed from the agenda, probably anticipating that Pierce would present results from the California Tobacco Survey showing that the program was being compromised by the funding diversions and the hindrances to the media campaign. According to Lyman, Stratton “does not want to see his face!…Tell them Pierce is in San Diego busilly [sic] working away to get data for September.”^[72] Lyman also said that Stratton wanted the report from the University of California to be longer and for the university to be put on the “hot seat.” He also wanted the report from CDE to “talk longer and invite more questions on their productivity.”^[72] Cook was furious when Ruppert conveyed these suggested changes, especially the order that she “un-invite” Pierce.^[73]

The political leadership at DHS was particularly worried that a presentation by Pierce at TEROC could put embarrassing results on the program's loss of effectiveness before the public. Stratton responded on May 30 that “with respect to Dr. Pierce, it has always been our policy to share data when it is ready for release. In the case of his contract, that means after he had conducted the analysis, put it in writing, and shared with the contract management and technical staff in TCS for approval and release. At the last TEROC meeting, this process was not followed.

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I expect our usual procedures to be followed this time.”^[74] Pierce could come to the meeting, but only after DHS reviewed his presentation. Michael Johnson, the head of evaluation at TCS, wrote to Bal to assure him that he would get advance data from Pierce: “I will forward to you and up through the appropriate channels.”^[75] Lyman also noted, “We will `read him the riot act' and place a `heavy' on each side of him at TEROC to assure he does not open a new bag of unexpected tricks for them.”^[76]

The administration had succeeded in purging TEROC before the February 10 meeting, leaving no strong voices on the committee beyond Cook's. She was joined on May 19, however, by Professor Stanton Glantz of the University of California, San Francisco, when Senator Bill Lockyer (D-Hayward) appointed Glantz to TEROC. Given Glantz's strong opposition to the tobacco industry and politicians who supported industry interests, many observers were surprised to see Lockyer—author of the 1987 Napkin Deal, which gave the tobacco industry immunity from product liability in California—appoint Glantz to TEROC.^[77] Lockyer's decision seemed to reflect the continuing shift in overall Democratic policy away from its staunch pro-tobacco position during Willie Brown's tenure as speaker. Glantz provided Cook with an important ally on the committee.

At the time Glantz joined TEROC, he found it in the process of finalizing its Master Plan for the next two years of the California Tobacco Control Program. He considered the recommendations diffuse and not clearly focused on program implementation, and he worked with Cook to strengthen and focus them. In July TEROC issued its new Master Plan, with the following recommendations for future program direction:

1. Vigorously expose tobacco industry tactics.
2. Press for smoke-free workplaces and homes.
3. Accelerate cessation of smoking in persons between the ages of 20 and 39.
4. Strengthen school-based tobacco use prevention education programs consistent with emerging research.
5. Implement more effective control of tobacco sales to minors.
6. Generate and adopt additional smoking prevention and cessation strategies that are relevant to the many racial and ethnic populations in California.
7. Link Proposition 99-financed research and evaluation efforts closely with Tobacco Control Program activities.
8. Increase the surtax on tobacco products by at least $1.00 per pack.

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― 357 ―
9. Oppose any settlement of tobacco litigation that benefits the tobacco industry.
10. Coordinate Proposition 99-financed programs with other State and Federal tobacco control initiatives.^[23]

Lyman described Stratton's reaction to the final draft: “The good Dr. Stratton is unhappy.…Stratton sees stuff in the recommendations that he still has trouble with and other TEROC members had trouble with too. He also remembers that this was to be referred to the writers to come back next time with another try at language. So, how come the rush-rush?”^[78] TEROC had actually agreed to let Cook make corrections in accordance with feedback from members and then send the final version to the printer. DHS took its time printing the report and quietly released it during the doldrums of late August when most people were more interested in finishing up their summer vacation than debating tobacco control policy. While the University of California and CDE took steps to implement the TEROC Master Plan, DHS ignored them.

Delayed Implementation of the Smoke-free Workplace Law

When Governor Wilson signed California's smoke-free workplace law, AB 13, on July 21, 1994, it was scheduled to go into effect on January 1, 1995. Experience with similar laws passed at the local level had demonstrated the need for a period of several months of public education to achieve effective compliance. Despite several recommendations from TCS and other public health advocates, Smoley prohibited use of the advertising campaign to publicize California's then-new smoke-free workplace law.^[79] At the time, Philip Morris was mounting its initiative campaign for Proposition 188 to overturn California's workplace smoking restrictions, and the tobacco industry was worried that the state would use the advertising campaign to educate people about AB 13 (see chapter 11).^[80] Even after the health groups defeated Proposition 188, however, there was still no advertising to educate the public that virtually all workers had a right to a smoke-free workplace.

While the tobacco industry was unhappy about the smoke-free workplace law, it was apoplectic about the smoke-free bar provisions scheduled to go into effect on January 1, 1998. The industry made several unsuccessful attempts to get the law overturned in the Legislature, and by mid-1997 there was evidence that it would mount a major campaign to

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encourage people to ignore the law. This situation made an adequate period of public education, using the media campaign, particularly important. Indeed, TEROC specifically called for such a campaign in its 1997 Master Plan.^[23]

In fact, TCS had started preparing for the January 1 implementation of the smoke-free bar law during the previous summer when it surveyed the local lead agencies to find out what information, materials, and approaches would be the best way to educate bar workers about the new law.^[81] Philip Morris, through its public relations firm, Burson Marsteller, and its National Smokers Alliance, had been sending mailings to bar owners warning of severe economic ramifications if the smoke-free bar provisions of AB 13 were implemented.^[82] Using Proposition 99 funds, TCS funded the ALA Contra Costa-Solano to manage a statewide program known as BREATH (which originally stood for Bar and Restaurant Employees Against Tobacco Hazards) to educate bar owners and employees about the law. BREATH created posters, handbooks, mailings, and a compendium of ideas that the LLAs could use to educate bar owners and dispel tobacco industry myths about the economic chaos that the law would allegedly trigger.

A 1996 DHS-commissioned Gallup poll found that more than three times as many bar patrons preferred a smoke-free bar as were happy with the current unregulated situation.^[83] A 1997 poll by the nonpartisan Field Institute showed that 86 percent of bar patrons in California would stay in a bar the same amount of time or longer if it were smoke free, and 76 percent of California bar patrons were bothered by secondhand smoke in bars, restaurants, and other public places.^[84] Even so, based on the experience of implementing the early smoke-free workplace laws, TCS wanted to educate both bar owners and employees, as well as patrons, about the new law well in advance of the effective date of January 1.

TCS asked its advertising agency, Asher & Partners, to present ideas and a time line for using the media campaign to fill this need in the spring of 1997 and expected to have radio spots and television ads running by June 1997. Despite the strong evidence that such an educational effort would help the law go into effect more smoothly, the administration put the media campaign on hold. DHS postponed the educational advertisements so as not to appear to lobby the Legislature to vote against the exemption.^[85] ANR's Cynthia Hallett, who was working on implementing AB 13, rejected this argument: “Let's say they are trying to repeal the law that says you have to stop at a stop sign. Does that mean while this law

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is in debate, you don't have to stop at the stop sign? That the law will not be enforced because there is debate surrounding it?”^[86] But the Wilson administration refused to prepare the public for the new law as long as the tobacco industry was trying to get it repealed. Smoley ignored the Master Plan and TCS and delayed approval of advertisements about the existing law, first proposed in May 1997, until October, a month after the legislative session ended. (Part of the delay was due to waiting for Smoley's return from a two-week vacation in China so that she could personally approve the advertisements.) It was not until late November of 1997 that DHS began running two advertisements promoting smoke-free bars—one on the radio and one on television.

Pulling the Advertisements for Smoke-Free Bars

The controversy over advertisements about smoke-free bars extended beyond the state level. In the summer of 1997, in anticipation of the implementation of smoke-free bars, the Gold Country Coalition, based at ALA of Sacramento-Emigrant Trails (ALA-SET), created its own smoke-free bar radio advertisements as part of its approved work plan with TCS. The group knew that a public education campaign was going to be necessary for effective implementation of the law. No official enforcement mechanism is as effective as voluntary compliance and public demand.

Gold Country was also contractually obligated to do a “Save a Waitress” campaign, as project director Sue Smith explained: “In the contract it says clearly…if AB 13 bar phase-in seems to be in jeopardy, the region will create a campaign called “Save a Waitress.” We created the campaign.…We sent scripts back and forth to TCS for approval, had one teleconference in which myself and two of my staff sat in with some TCS staff and people from Rogers [TCS's public relations firm], and they had a concern about a certain line that they thought might be potentially lobbying, so we dropped that line and went a different direction.”^[87] It was common knowledge that the tobacco industry was trying to get the law repealed and that DHS had long-standing regulations against “lobbying” with Proposition 99 money:

Lobbying is communicating with a member or staff of a legislative body, a government official or employee who may participate in the formulation of the legislation, or the general public with the specific intention of promoting a yes or no vote on a particular piece of legislation. Such communication is considered lobbying only if its principal purpose is to influence legislation.

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― 360 ―

Educating legislators, their staff, government employees, or the general public about your program or about tobacco-related issues in NOT lobbying.^[88]

The planned text of the advertisement was reviewed on a teleconference with TCS on August 18. Some revisions were made, even though the advertisement did not appear to violate the lobbying rules. It did not include a call to action, address a particular piece of legislation, or express an opinion on a vote.

Gold Country's radio advertisement began airing on August 25, using the following script:

BARTENDER:

Hi, I've been a bartender for a long time. When I worked in a smoky bar, it was like smoking a pack of cigarettes a day. Did you know that bar workers are the only employees not protected from secondhand smoke in the workplace?

SINGER:

Hi. I'm David Mendenhall. Sometimes my throat is so sore from the poison in secondhand smoke that it hurts to sing with my band, Thicker Than Water. When all other workplaces went smoke free, I thought bars were next. Now it may not happen in January.

WAITRESS:

I'm Laura Bass and I've been a cocktail waitress for years. When I feel sick and complain about cigarette and cigar smoke, some say to work someplace else. Where I work is not the issue. Staying healthy is.

BARTENDER:

We've listened to your stories and sympathized with your problems. It's our job to serve you. Breathing secondhand smoke, though, should not be a condition of employment…even for those of us who work in bars.

SINGER:

January 1st.

WAITRESS:

Smoke-free bars for California.

BARTENDER:

Sponsored by the Gold Country Tobacco Prevention Coalition through Proposition 99 funds.^[89]

At the time, there was no pending legislation to modify AB 13. On August 28, 1997, the Assembly adopted language delaying smoke-free bars, which was sent to committee for a September 2 hearing. If no legislation passed by September 12, the deadline for the Legislature to act would pass.^[90] Gold Country believed that the advertisement met the terms of the contract and the rules about lobbying; TCS did not.

On September 5, April Roeseler, chief of the Local Programs Unit at TCS, wrote Smith informing her that she had violated the contract rule prohibiting the use of TCS funds to support lobbying activities. Roeseler also informed Smith that “TCS is not to be billed for any costs related to producing or placing this radio ad.”^[91] Smith called Crocker Communications, Gold Country's media subcontractor, with instructions to

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pull the advertisement, but she was not happy with the decision. According to Smith, “I'm not a legal expert. But there's not a piece of the ad that meets any definition of lobbying.”^[87]

Because the company had already purchased the air time, Crocker asked Smith if she wanted to substitute an existing advertisement that had already cleared DHS review. She told them to do so, then went on a weekend bicycle trip. Crocker picked what was called the “Mahannah” advertisement, after the LLA director in Mono County. The text of the Mahannah advertisement consisted of the following:

MALE VOICE:

Violent coughing, heavy breathing and hacking becoming softer.

FEMALE ANNOUNCER:

We're doing so much to keep California's indoor public areas smoke-free. Now you can breathe easy in buildings, offices, restaurants and more. You should be proud of yourselves for taking such good care of each other. Now we need to work on the bars and nightclubs. Wouldn't you think?

(One single cough, male voice)

I thought so.

Smith came back to work on Monday to find a crisis. As she later recalled,

I'm off on a three-day bike trek and I come back and Jane [Hagedorn, executive director of the Sacramento ALA] comes running over and says she just got a call from DHS and that we were to report there in thirty minutes and to show how we had pulled this from the airwaves “or we pull your contract.” Somebody apparently heard that ad on Monday, made a number of phone calls. That's why we got pulled in there. We were thinking we were getting pulled in for the “Save a Waitress.” So we go to “Save a Waitress” and show the documentation from Crocker that says, “We pulled these advertisements.”…However, these other advertisements are still running and that's when things got really worse. After that meeting a DHS representative (not from TCS) told me, “You're history.”^[87]

Both advertisements were pulled, but ALA-SET continued to be concerned about two aspects of the TCS letter. One was its broad definition of lobbying and the dangerous precedent it would set. The other was the request to revise the contract to remove the “Save a Waitress” piece. According to Smith, “That was considered by our local management team to be a cover-up by DHS and the Governor's Office. Compromises were made on both sides, but the one thing that the ALA-SET management refused to do would be to take it out of the contract. We were willing to concede the cost of the ad initially, but were not willing to `make it go away.'”^[87]

On November 25, 1997, ALA-SET decided to go with the status quo

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and accept a financial loss on the waitress ad, which meant that any expenses incurred after August 18 could not be billed.^[92] Smith had this observation: “TCS was probably looking at the bigger picture. They were fearful that if we spoke out about this issue, the state would look at every piece of media that was ever distributed through Prop 99. I understood that fear. But I also think that politically, that we could have played some more trump cards that I didn't get to play. If I wasn't planning on staying around in this, I would have made a really big deal about this.”^[87]

On December 16, 1997, Smith received a final follow-up letter from Shimizu concerning “an inappropriate use of Proposition 99 funds in the production and placement of the radio ad, `Save a Waitress.'”^[93] Shimizu warned Smith about her action: “As you are aware, on August 18, 1997 staff at TCS advised you not to run the radio ad as you had drafted. However, you chose to produce and run a version of the radio ad without any further contact with TCS staff which resulted in the production of an ad deemed inappropriate for funding by Proposition 99. For the record, this is to notify you that if inappropriate advertisements are produced and placed in the future, your contract would be subject to termination.”^[93] Whether TCS was merely echoing orders from above and making the best of a bad situation or was independently asserting control over the field mattered little in terms of effect on the program. According to Smith, “I think it hurt all the regional efforts in terms of media.…I think what bothered me the most was the lack of support by a system that you've counted on being part of the solution with you.”^[87] Far from being insulated from the politics of the program, the field was heavily buffeted, and this buffeting extended to more than just local media programs. In Smith's view, this buffeting came as a surprise: “And I've heard different stories of who made the phone calls…about whether they were tobacco lobbyists or particular legislators, but there were two phone calls that were made.…That somebody can reach their fingers down into a localized media campaign that's created via contract by local people, and could make that go away.…And the intimidation was there at all times.”^[87]

The California Tobacco Survey: TCS “Fires” John Pierce

From the inception of the Proposition 99 programs, the Legislature had funded a statewide prevalence survey, the California Tobacco Survey, to monitor the program's impact on smoking and to identify which elements

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of the program seemed to be most effective. The survey was conducted for DHS by the University of California, San Diego, and directed by Professor John Pierce. Pierce and his colleagues had a record of finding politically unacceptable results beginning in 1991, when they reported that the media campaign contributed to a 17 percent drop in smoking when Governor Wilson was trying to eliminate the campaign on the grounds that it did not work. Nevertheless, on December 8, 1997, TCS wrote Pierce and his co-investigator, Elizabeth Gilpin, to inform them that TCS was amending their contract “in order to extend the time period through June 30, 2000 and to augment the contract by $3,052,332.…Essentially, the contract extension is for: the conduct of, analyses of, and reporting on the 1999 California Tobacco Survey; the conduct of, analyses of, and reporting on the longitudinal assessment of adolescent smoking initiation study; and the completion of reports and additional analysis of the 1996 California Tobacco Survey.”^[94]

Six months later, TCS reversed itself. On June 15, 1998, TCS wrote the UCSD investigators to tell them that TCS “will not be renewing your contract to conduct the 1999 California Tobacco Control Survey nor do we plan to fund your proposed longitudinal study of adolescent smoking initiation.”^[95]

In the intervening months, Pierce and his coworkers had submitted a draft report on the California Tobacco Survey concluding that, after 1994, the California Tobacco Control Program had lost its effectiveness. TCS pressured the research group to make changes to the report. Over time, the working relationship between Pierce's group and TCS deteriorated. After TCS abruptly notified Pierce that the contract would not be renewed, Pierce observed:

As I reflect on our experience with the State over the past year, I can only conclude that the decision to terminate our contract was politically motivated. Our difficulties with the Department of Health Services staff began when we did two things:

• a) Identified the coincidence between the halting of the decline in smoking behavior and the diversion of money from the specific health education accounts mandated by the Tobacco Tax Initiative.
• b) Based on probabilities obtained from previous national and California research, we projected that smoking rates in 15-17 year old adolescents in California were likely to increase by 14% between 1996 and 1999.^[96]

Pierce's report concluded that the initial success of the program, between 1989 and 1993, did not persist into the late period, 1994-1996. The

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report suggested that a combination of reduced program funding, increased industry advertising and promotion expenditures, decreases in tobacco prices, and increased political activity contributed to the shift.^[3]

DHS asserted that Pierce's contract was not canceled because of the work's quality but because Pierce was “too difficult to work with.”^[97] Members of DHS's own Evaluation Advisory Committee, who supported the quality of Pierce's work, also questioned the decision to terminate the contract but received no better explanation.^[98][99] Mike Cummings, a cancer researcher from New York and chair of the Evaluation Advisory Committee, wrote Bal and Johnson on June 22, 1998:

Finally, as co-chair of the Evaluation Advisory Task Force, I would like to express my deep dissatisfaction with the way the situation with Dr. Pierce was handled. First, it became apparent at the June Evaluation Advisory Task Force meeting that not all Task Force members were briefed on this situation and the concerns raised about Dr. Pierce's report. This situation was unfair both to Dr. Pierce and to our task force. Second, it is apparent that the decision to terminate Dr. Pierce's contract was made before the task force meeting for reasons unrelated to the scientific issues that were brought before the task force for discussion. It is an embarrassment that task force members first learned about the contract termination from Dr. Pierce and not from CDHS. The task force should have been notified of this decision before the meeting so that our time could have been used more productively to advise CDHS about future plans for the California Tobacco Survey. Third, it appears that you were attempting to use our task force to raise concerns about the UCSD report in an effort to strengthen your case to terminate Dr. Pierce's contract. Our task force members, who volunteer their time to your program, should never have been put in this position.^[99] [emphasis added]

An editorial in the San Diego Union-Tribune captured the general outrage that greeted Pierce's firing:

Earlier this month, a report by UCSD researchers came to light which concludes that California's anti-smoking campaign is coughing and wheezing for want of state support. This prompted the state agency that commissioned the report to start taking potshots at the messenger. Welcome to the world of power politics, where special interests generally prevail against the public interest… .

What we have here is not a failure to communicate, but a refusal to capitulate. This report is scientifically sound while politically embarrassing to the folks in Sacramento looking to undermine the anti-smoking campaign. They and their tobacco buddies are doing whatever it takes, including attacking the integrity of respected scientists, to gut a program approved by the voters. And that is despicable.^[97]

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Cook, the chair of TEROC, however, refused to put the issue on the TEROC agenda when Glantz requested that she do so. She responded, “I have considered the various facts and assertions that have been made and have studied the responsibilities of TEROC, and have concluded that it is an internal administrative matter which the Committee should not get involved in.”^[100] Cook's decision to ignore Pierce's termination was all the more remarkable in light of an article by Pierce and his colleagues that appeared in the Journal of the American Medical Association the day before TEROC met; the article confirmed that the California Tobacco Control Program had declined in its effectiveness beginning in 1994.^[3] These findings were widely publicized in the press on the morning of the TEROC meeting, but no one at the meeting mentioned the news coverage or Pierce's termination.^[101-104] The courage to challenge the politicization of the media campaign did not extend to the evaluation process, even though TEROC's central purpose was to evaluate the campaign and report back to the Legislature on how to improve it.

Conclusion

At a project directors' meeting held in Palm Springs in June 1998, TCS staffer April Roeseler, in a speech to the directors, commented that TCS's unspoken motto was “we hire people who believe you can never have too much stress.” That probably described the jobs of most project directors as well. For tobacco control advocates, Proposition 99 was to be their opportunity to put in place a model program, with its own funding source, that assured tobacco control advocates would be in the field as continuously as the tobacco industry. That the political process would not give them the freedom to produce that program was frustrating. One LLA director summed it up this way: “We had a pretty clear idea of what we need to do.…I think if the campaign had been allowed to work the way it was designed to work, I think we would be in pretty good shape. If we had a strong media campaign continuously and we had the counties and schools funded continuously, if everybody had been able to work the way it was supposed to, I think it would have been a lot more successful.”^[105] The successes in California were instead achieved only in the face of a hostile tobacco industry, an equally hostile political system, and a body of advocates at the state level who were often slow to act.

The long periods with no advertisements or no new advertisements in the media and the shift away from a hard-hitting campaign to softer,

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youth-focused messages reduced the effectiveness of the California Tobacco Control Program.^[3] The failure to implement a timely educational campaign about California's smoke-free workplace law, particularly the bar provisions, has made it more difficult to implement the law and, indirectly, supported tobacco industry efforts to neutralize the law.

For the campaign to succeed in the long run, it is necessary for the nongovernmental organizations, especially the voluntary health agencies, to be willing to hold those charged with implementing the program accountable. This is often difficult for them to do, since it requires acting against established political powers, not just the tobacco industry. What is clear from the California experience, however, is that there are as many opportunities for political interference with the anti-tobacco education program through administrative actions as there are through the legislative process. Strong action by outside groups is capable of influencing legislation and program content for the better. Lacking such intervention, it is likely that in the long run the tobacco industry will counter the program just as effectively through administrative controls as by stealing the money.

Notes