The Industry and the Media Campaign
In the first authorizing legislation (AB 75), the tobacco industry tried to prevent any of the education money from being spent on an anti-tobacco media campaign. They hired dozens of lobbyists to kill off the media campaign, but failed because their effort was so obvious and heavy-handed. They would not make this mistake again; future efforts against the media campaign would be conducted through intermediaries.
After the media campaign hit the airwaves on April 10, 1990, the tobacco companies complained loudly in the press that the advertisements were tasteless and a waste of money and that they were “political” rather than “educational.” According to the Los Angeles Times,
“They pitched Prop. 99 as: `We want to reach under-aged children. We want to educate children to the purported health effects of smoking,'” said Thomas Lauria, a spokesman for the Tobacco Institute, a Washington-based industry group… .
He said he had not seen the state's anti-smoking ads and that industry leaders would view the ads before deciding whether to respond further.
But, he said: “These ads sound like they are trying to lay the groundwork for a next phase of a political agenda, which is to ban advertising from cigarette companies. These people are on a long march toward prohibition of tobacco.”[1]
The Tobacco Institute briefly considered a lawsuit to stop the media campaign and consulted with both Covington and Burling (its law firm in Washington, DC) and California legal counsel. But the institute decided that a lawsuit against the media campaign would be a tactical error and that “there is no basis for a suit which would have a realistic chance of success.”[2] Within RJ Reynolds, H. E. Osmon put it more bluntly: “I believe that we should take no overt legal action. It increases the rhetoric, sustains the story, and, if we lose, it would be a major embarrassment.”[3] The institute had also considered a counteradvertising campaign but rejected it: “If the industry attempts to meet the Department of Health Services head on in the media, the controversy is likely to shift from the advertisements to the industry.”[3]
On April 11, 1990, the day after the media campaign started in California, Samuel D. Chilcote, Jr., president of the Tobacco Institute in Washington, DC, sent a memo to his executive committee, with copies of the “Industry Spokesmen” ad and the other broadcast and print advertisements attached, describing the Tobacco Institute's three-pronged approach for dealing with the California campaign: “(1) Encourage California legislative leaders to intervene, (2) Through third party allies, attempt to convince Health Services head [Ken] Kizer to either pull or modify the current advertisements, (3) Encourage the Governor to intervene against the current advertisements” (emphasis added).[4] Using sympathetic legislators to attack the funding and content of the media campaign while pressuring the administration to channel the campaign into messages acceptable to the industry would remain the industry's strategy against the media campaign throughout the history of Proposition 99.
Chilcote went on to describe the tobacco industry's legislative efforts to eliminate the media campaign by putting the Proposition 99 funds to other “acceptable” uses. While acknowledging the loss on AB 75, he was clearly anticipating the next battle over authorization as another opportunity to shut down the media campaign, working with the industry's allies who wanted to see the money going to medical services:
Despite Herculean efforts [on AB 75], our goal of completely eliminating the media dedication was not met. But through our work, the media component was sliced to $14.3 million for fiscal year 1989-90. Another $14.3 million is allocated for fiscal year 1990-91, for a total to date of $28.6 million.
The industry has been approached by representatives of county governments, as well as physician groups, expressing an interest in working with us so that they may receive monies that are currently earmarked to the media “education” campaign. These avenues continue to be explored with the California State Association of Counties and the California Medical Association.[4] [emphasis added]
Chilcote described the tobacco industry's efforts to line up opposition to the advertisements in the minority community: “The black and Hispanic communities also are upset because very few Prop 99 dollars have found their way to the poor in the form of new health services. A substantial amount of the Prop 99 revenues are being use [sic] to `replace' previous state funding from other sources.”[4]
The industry was also planning to conduct its own focus group research “in order to support our position that the advertisements are more propaganda than information.”[4] There was, in fact, a chance that people would not consider the advertising as “education.” The innovative nature of the California media campaign was based on the recognition that merely providing information about health-compromising behaviors did little to reduce smoking. Heavily promoted by the industry as attractive, glamorous, and necessary for social acceptance, smoking had to be shown instead as a deadly, addictive habit foisted on people by a cynical industry with seemingly endless amounts of money to spend on lying about its product. The campaign was thus designed to “unmarket” smoking rather than inform people about the health effects of smoking, which traditional health educators thought an “education” campaign was supposed to do. If the industry could demonstrate that the public did not see the advertisements as “educational,” then it might have additional ammunition to take to the Legislature.
On April 18, 1990, Chilcote sent another, more detailed memo to members of his Executive Committee providing a “further update on
In the week between these two memos, the Tobacco Institute realized that Kizer of DHS would fight to protect the campaign and that Governor George Deukmejian, while not agreeing with the specifics of the campaign, would back him up:
After analysis from our California team, it is clear that our efforts should center on the first two strategies [the Legislature and other groups], with the hope that these efforts can have some effect on the other two strategies.
The reasons for this approach are (1) Dr. Kizer is not likely to pull or modify the advertisements without strong pressure from the Administration; (2) as a “lame duck,” the Governor is not likely to get into a public sparring match with Dr. Kizer, even though he disagrees with the Department of Health Services' attack approach with the anti-tobacco advertisement.[2]
Seeing little chance of success with the Deukmejian administration, the industry decided to concentrate its efforts on getting the Legislature to eliminate funding for the media campaign.
By April 18, the industry had made more than one hundred contacts about diverting money away from the media campaign and was already working to create a “focused coalition willing to take the lead in an effort to end funding for media from Prop 99 taxes and redirect it elsewhere.”[2] In addition to the county supervisors and the California Medical Association (CMA), this coalition was to include the black and Hispanic communities, the Western Center for Law and Poverty, the Asian community, hospital groups, and business groups. According to Malmgren,
Intelligence to date shows a range of reasons why these groups are ill at ease and concerned with the advertising campaign. Black concerns, for example, vary from resentment at the denigrating nature of the advertisements, to concern that Prop 99 dollars are not being channeled to pressing health care needs for minority groups, to the fact that Prop 99 media dollars are not being funneled to black-owned media. …
The doctor and hospital segment appears to believe the media funds would be better spent to pay medical costs.[2] [emphasis added]
On May 3, New York-based KRC Research delivered a public opinion survey regarding the media campaign to Covington and Burling,
To engage in a public debate over this advertising campaign (i.e., whether it is an appropriate use of state funds, and whether it will actually be an effective deterrent to smoking) will most likely serve only to escalate the controversy.
We believe it will be more effective for the Tobacco Institute not to engage in this battle, but rather to attempt to focus attention on the ways that people would prefer to see state money spent in the pursuit of improved public health.
To this end, we believe that the questions we develop for use in Field's California Poll should be designed to identify the types of health care and educational programs that people believe will be more effective and that they would prefer to see funded.[5]
The Field California Poll is a widely regarded survey whose results are always made public, regardless of who commissions the survey. The fact that the industry did not pursue a Field California Poll suggests that it was uncertain of getting the answers it wanted.
The qualitative analysis of the advertisements was based on a series of eight focus groups. The report concluded,
The atmosphere in California appears to be rapidly evolving into an anti-smoking environment. This “reality” is accepted by smokers and advocated by non-smokers. Smokers believed that smoking is potentially harmful, yet they cannot quit and cannot be forced to do so. However, they want their children to be smoke free.
Neither smokers nor non-smokers voiced strong opposition to Proposition 99. They all empathized with people who could not afford healthcare, and supported making it more accessible to the poor. There was general support for the $221 million education campaign, and a mixed reaction (though
― 152 ―only one or two respondents were strongly opposed) to $28 million being spent on an anti-smoking media campaign.As for the five commercials, they were perceived to have slight to no impact on the marketplace. These ads will not change smokers' behavior. The ads do, however, add to the general anti-smoking environment.
It is important to understand that the commercials' lack of appeal was not based on the idea that government infringed on the rights of smokers. Rather, opposition was based on the perception that these ads were not strong enough.
Respondents generally agreed that an effective non-smoking ad campaign should be more “medically” informative and visually explicit.[6] [emphasis in original]
The report was not encouraging to the tobacco industry, since it suggested that the public wanted an even stronger anti-tobacco campaign.[4]
On May 14 Walter N. Woodson, the Tobacco Institute's vice president of state activities, wrote to Chilcote advising him that the industry was moving ahead with efforts to shift the media money to specific service providers:
We are working with several groups who share our interest in having the funds targeted to real health care concerns. Among them:
- California Health Foundation
- Black Health Network
- California Rural Counties Association
- California Hospital Association
- California Medical Association
- A just-formed, and as yet unnamed, confederation of most state minority health organizations[7]
By November, the Tobacco Institute seemed to be making some progress in this strategy. A report noted that “prompted by minority health groups such as the Watts Health Foundation and the Black Health Network,” two Democratic legislators “attempted to reopen the funding of the media program and dedicate the funds to other programs benefitting their communities.”[8] The effort was stopped in a conference committee by Republicans who would not support the effort without a promise of support to amend Proposition 98, which required that 40 percent of the state budget go to education. The Democrats refused to reopen Proposition 98, so this effort to divert the media campaign money died.[8]
The industry strategy then focused on the 1991-1992 legislative session, when a new piece of implementing legislation would be needed for