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line and went a different direction.”[87] It was common knowledge that the tobacco industry was trying to get the law repealed and that DHS had long-standing regulations against “lobbying” with Proposition 99 money: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.
― 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
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
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]