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Overview

Tobacco War charts the dramatic and complex history of tobacco politics in California over the past quarter century. Beginning with the activities of a small band of activists who, in the 1970s, put forward the radical notion that people should not have to breathe second-hand tobacco smoke, Stanton Glantz and Edith Balbach follow the movement through the 1980s, when activists created hundreds of city and county ordinances by working through their local officials, to the present—when tobacco is a highly visible issue in American politics and smoke-free restaurants and bars are a reality throughout the state. The authors show how these accomplishments rest on the groundwork laid over the past two decades by tobacco control activists who have worked across the U.S. to change how people view the tobacco industry and its behavior.

Tobacco War is accessibly written, balanced, and meticulously researched. The California experience provides a graphic demonstration of the successes and failures of both the tobacco industry and public health forces. It shows how public health advocates slowly learned to control the terms of the debate and how they discovered that simply establishing tobacco control programs was not enough, that constant vigilance was necessary to protect programs from a hostile legislature and governor.
In the end, the California experience proves that it is possible to dramatically change how people think about tobacco and the tobacco industry and to rapidly reduce tobacco consumption. But California's experience also demonstrates that it is possible to run such programs successfully only as long as the public health community exerts power effectively. With legal settlements bringing big dollars to tobacco control programs in every state, this book is must reading for anyone interested in battling and beating the tobacco industry.

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Product Details

  • ISBN-13: 9780520222861
  • Publisher: University of California Press
  • Publication date: 5/10/2000
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 486
  • Product dimensions: 6.00 (w) x 9.00 (h) x 1.25 (d)

Meet the Author

Stanton A. Glantz is Professor of Medicine at the University of California, San Francisco. Among his books are The Cigarette Papers (California, 1996), Tobacco: Biology and Politics (1999), and Primer of Biostatistics (1997). Edith D. Balbach is Director of the Community Health Program at Tufts University.

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Read an Excerpt

Tobacco War

Inside the California Battles


By Stanton A. Glantz, Edith D. Balbach

UNIVERSITY OF CALIFORNIA PRESS

Copyright © 2000 The Regents of the University of California
All rights reserved.
ISBN: 978-0-520-92468-0



CHAPTER 1

Introduction


New Year's Day 1998 was crisp and clear along the coast just north of San Francisco, a fine day for a hike. Stanton Glantz, a professor at the University of California, San Francisco, and longtime tobacco control advocate, joined a group of friends to hike from high on Mt. Tamalpais down to the ocean. At the end of the trail, the hikers would meet other friends at a bar in Stinson Beach for a drink and lunch. As they approached the bar, Glantz wondered what would happen there. On January 1, 1998, after all, every bar in California was to become smoke free. Glantz had actually opposed the state law making bars smoke free because he doubted that the state legislature would stand up to the tobacco industry and pass a strong law. He also believed that such matters were best left to local communities. The tobacco industry had already mounted a major campaign to encourage people to ignore the law. By then, however, most people thought Glantz was responsible for the law. He expected to walk into another smoky bar and hear comments from his friends that he had gone too far.

But he was pleasantly surprised. A couple of people stood outside the bar smoking cigarettes, but the air inside was smoke free. Bars, the last bastion of smoking, were smoke free. California had indeed come a long way since 1978, when attorneys Peter Hanauer and Paul Loveday had recruited Glantz for an ill-fated effort to pass a state law requiring non-smoking sections in restaurants. They did not even dare think about bars.


THE CHANGING ENVIRONMENT OF TOBACCO

The landscape surrounding tobacco was not changing merely in California. By New Year's Day 1998, tobacco was a highly visible issue in American politics. President Bill Clinton allowed his Food and Drug Administration to assert jurisdiction over tobacco products as drug delivery devices. Forty-one states had sued the tobacco industry for defrauding the public out of billions of dollars that taxpayers had spent to treat sick smokers; the states would soon force the tobacco industry to pay $200 billion to reimburse them for part of those costs. Thousands of individuals sued the industry and some won. The industry was being forced to accept controls—albeit limited—on its advertising practices. Millions of pages of previously secret tobacco industry documents were made public, first in print, then on the Internet and in a depository created from the documents that Attorney General Hubert Humphrey III of Minnesota forced the tobacco industry to make public. These documents showed that the tobacco industry had known for decades that nicotine is addictive and that smoking causes a wide variety of diseases. They also demonstrated how the tobacco industry used its considerable public relations, legal, and political muscle to hide this information from the public and the courts. Later in 1998 Congress had a rancorous debate over whether to enact national tobacco control legislation that put some restrictions on the tobacco industry in exchange for giving it legal immunity. In the end, Congress strengthened public health provisions of the proposed legislation to the point that the tobacco industry and its political allies killed it.

This burst of activity reflected the groundwork that had been laid over the previous two decades by tobacco control activists who had been working all over the United States to change how people viewed the tobacco industry and its behavior. Beginning in the 1980s, California activists, led by Hanauer and Loveday, created hundreds of city and county ordinances to protect nonsmokers from secondhand smoke and otherwise restrict the tobacco industry by working through their city and county officials. These local activists created strong public support for tobacco control policies. Even so, the tobacco industry continued to dominate the California Legislature, where tobacco control policies had scant support.

But in 1988 activists from the environmental movement and the American Lung Association and American Cancer Society reacted to this legislative impasse by creating the largest and most innovative program in the world through the initiative process, by which voters enact a law by popular vote. California voters enacted an initiative known as Proposition 99, which increased the tobacco tax by twenty-five cents a pack and devoted 20 percent of the money raised to fund a tobacco control program. Virtually overnight, California's investment in tobacco control went from almost nothing to over $100 million a year in schools, communities, and counties and at the state level. In addition, nearly $20 million a year was available to California researchers to conduct tobacco-related research. These programs dwarfed anything that any other state or the federal government had ever done on tobacco.

Far from running a traditional "smoking will kill you" campaign, the California effort viewed tobacco as a social and political problem and went after the tobacco industry directly and aggressively. The network of local tobacco control advocates that Proposition 99 created lit the afterburners on the nonsmokers' rights movement. Communities started passing clean indoor air and other tobacco control ordinances so fast that it was hard to keep track of them all. The culture around tobacco was changing. The initial results of the California campaign were nothing short of amazing: it tripled the rate of decline in tobacco use. Unfortunately for the public health, the tobacco industry appreciated that this campaign was costing it billions of dollars in lost sales and mobilized to divert the money from tobacco control and to constrain the program to ineffective strategies. Nevertheless, the California experience shows that it is possible to rapidly reduce tobacco consumption if the political will is there to do it.

The tobacco industry was not alone in its efforts to divert money from tobacco control programs. Organized medicine and other constituencies that wanted more money spent on medical services for the poor spearheaded the lobbying effort to redirect money into medical services. Politicians in both parties were happy to do the industry's bidding in exchange for campaign contributions or because of a common ideological position. In 1994, after several years of rapid reductions in tobacco use, the industry brought this progress to a halt.

For public health advocates, success in political arenas required that they set aside the conciliatory tactics they had relied on in the past and learn to be more confrontational in dealing directly with the tobacco industry. However, they were less willing to confront the industry's surrogates, especially organized medicine or powerful politicians.

While the story of tobacco control in California reflects the individuals and organizations who were involved, the story is relevant every-where. The tobacco industry's efforts to influence state and local programs are controlled nationally, and the patterns in California have reappeared wherever public health advocates try to clean the air or control the tobacco industry. As a new century begins, more and more states are implementing large-scale tobacco control programs, often through dedicated tobacco taxes or as parts of settlements of lawsuits with the tobacco industry. Massachusetts was the first state to follow California, when voters there passed Question i in 1992; Arizona was next in r994, followed by Oregon in 1996. Other states, including Wisconsin, Michigan, and Maine, created tobacco control programs through the legislative process, and Florida, Minnesota, Texas, and Mississippi, among others, did so through legal settlements with the tobacco industry.


RECURRING THEMES

The story of the battle over tobacco control in California has several recurring universal themes.

First, although health promotion and medical care have a logical connection, there has always been a tension between them in the allocation of tax dollars. In the battles over the Proposition 99 revenues, the existence of an a priori agreement between those involved in health promotion and those involved in medical care did little to curtail these battles. Moreover, the financial and political interests of organized medicine often had more in common with the tobacco industry than the public health groups, who had been marginal players in California politics before Proposition 99 passed. Despite the fact that these groups successfully defeated the tobacco industry in a major electoral contest to pass Proposition 99, it was hard for them to understand their power and wield it after the election.

Second, it is easiest to make policy in areas where there is a clear consensus on how to achieve the program's goals. Before Proposition 99, no one had ever run a large-scale tobacco control program and no one knew exactly how to do it. In contrast, everyone knew how to spend money on direct medical services. This difference, combined with the lack of precedent for mounting a prevention program of the magnitude of the one created by Proposition 99, complicated the health advocates' task. The absence of a proven approach to reduce tobacco use could have been mitigated with a long time frame to develop and implement the program and a careful evaluation process. Politicians, however, who tend to rely on short schedules and temporary settlements, did not allow enough time for such a process, even though Proposition 99's tobacco control program was breaking new ground. This situation led anti-tobacco advocates to make early compromises that would come back to haunt them.

Third, programs tend to remain in place once established. Temporary agreements or one-time diversions of funds, as happened when tobacco control proponents agreed to allow some anti-tobacco education money to be used for medical services, become precedents in subsequent budget years because operating programs build their own constituencies.

Fourth, and finally, informed and activated public opinion is a powerful weapon in health policy generally and on tobacco policy specifically. When tobacco policy is left to the inside game played in back rooms, the outcome will favor the existing power structure. The tobacco industry is a tough, experienced inside player who has benefited from the existing power structure. In contrast, the public health groups' power is amplified in public arenas, where tobacco industry's power is sharply curtailed.


CONCLUSION

The California experience shows that it is possible to dramatically change how people think about tobacco and the tobacco industry and rapidly reduce tobacco consumption. Based on the initial results of the program, the state was on its way to reducing tobacco consumption by 75 percent in just ten years. The California story shows that it is possible to run such programs successfully as long as the public health community exerts power effectively. It also shows that it is possible for the tobacco industry and its political allies to weaken or destroy these programs when the public health community is timid. The tobacco industry, faced with losing billions of dollars in sales, is highly motivated and aggressive. The controlling factor in the outcome is whether the public health community is willing to directly confront this reality and devote the organizational resources—both financial and political—to beating the tobacco industry. Victory is possible but not easy, and it requires constant, determined vigilance.

While Proposition 99 passed in 1988, it had its origins over a decade earlier, in the emergence of the nonsmokers' rights movement. In contrast to the large voluntary health organizations, the grassroots advocates of nonsmokers' rights saw political and policy interventions as the key to doing something about tobacco. Rather than convincing one person at a time to stop smoking, they fought to enact laws requiring smoke-free workplaces, public places, and restaurants. Their efforts brought about systemic, environmental changes that had an impact on how citizens viewed the tobacco industry and their rights as nonsmokers. They made smoke-free bars not only possible but reasonable.

The California story begins with them.

CHAPTER 2

Beginnings: The Nonsmokers' Rights Movement


In the early 1970s a few people had the radical idea that nonsmokers should not have to breathe secondhand tobacco smoke. At that time it was considered impolite to ask people not to smoke. Smoking was not only acceptable; it was the norm. The executive director of the California division of the American Lung Association was a chain-smoker, and the American Heart Association distributed ashtrays and packs of cigarettes at its board meetings. Offering someone a cigarette was a way to open social discourse. Even the most ardent nonsmokers' rights advocates were only seeking nonsmoking sections in public places. No one dared even think of a smoke-free society.

Finding little support from the mainstream health organizations like the American Cancer Society, American Heart Association, and American Lung Association, nonsmokers' rights activists formed a loose network of grassroots organizations with various names, the most common being Group Against Smoking Pollution or GASP. The nonsmokers' rights activists viewed smoking and the tobacco industry as a social, environmental, and political problem; in contrast, the medical establishment—including most of the voluntary health organizations—viewed smoking as a medical problem in which individual patients (smokers) were to be treated (by telling them to stop smoking). The establishment's approach did not mesh easily with the tobacco control advocates' policy-oriented approach.

While the medical and health establishments did not take the non-smokers' rights movement seriously, the tobacco industry did. The industry recognized the issue of secondhand smoke as a major threat to the social support network that it had spent decades building around tobacco use. As early as 1973, the tobacco industry clearly identified the emerging nonsmokers' rights movement as a problem: "More and more, smoking is being pictured as socially unacceptable. The goal seems [to be] the involvement of others—non-smokers, children, etc.—in addition to health and government organizations. The main thrust of these zealots seems to be that 'smoking is not a personal right because it hurts others; that smoking harms non-smoking adults, children, and even the yet unborn.'"

By r978, the industry recognized the full dimensions of the threat represented by the nonsmokers' rights movement. A research report prepared by the Roper Organization for the Tobacco Institute (the tobacco industry's political arm) concluded:

The original Surgeon General's report, followed by this first "hazard" warning on cigarette packages, the subsequent "danger" warning on cigarette packages, the removal of cigarette advertising from television and the inclusion of the "danger" warning in cigarette advertising, were all "blows" of sorts for the tobacco industry. They were, however, blows that the cigarette industry could successfully weather because they were all directed against the smoker himself.

The anti-smoking forces' latest tack, however—on the passive smoking issue—is another matter. What the smoker does to himself may be his business, but what the smoker does to the non-smoker is quite a different matter. ... Nearly six out of ten believe that smoking is hazardous to the non-smokers' health, up sharply over the last four years. More than two-thirds of nonsmokers believe it; nearly half of all smokers believe it.

This we see as the most dangerous development to the viability of the tobacco industry that has yet occurred. [emphasis added]


The nonsmokers' rights movement was growing and having some significant legislative successes. In 1973 the Arizona Legislature ended smoking in elevators, libraries, theaters, museums, concert halls, and buses. In 1975 Minnesota mandated separate smoking areas in restaurants, meeting rooms, and workplaces, in addition to the types of restrictions put in place in Arizona. The Minnesota law was the last time that clean indoor air legislation would pass without vigorous opposition from the tobacco industry.


THE BERKELEY ORDINANCE

In the spring of 1973, lawyer and legal editor Peter Hanauer went to a meeting of Berkeley GASP after his wife saw a meeting notice on a community bulletin board. Hanauer recalled, "It was a fairly ineffective group at the time. I mean, we were busy grinding out leaflets and trying to get a few new members here and there." While there were thoughts about some greater level of activism—two of the founders, Irene and Dave Peterson, had created a foundation to provide legal representation to people who were affected by secondhand smoke in the workplace—not much happened until they were joined by Paul Loveday, a former professional basketball player turned lawyer. Loveday brought a clear vision and strong leadership to the group and soon became president of GASP. The aggressive Loveday and studious Hanauer, who was elected treasurer, were the "odd couple" that became the backbone of the non-smokers' rights movement in California.


(Continues...)

Excerpted from Tobacco War by Stanton A. Glantz, Edith D. Balbach. Copyright © 2000 The Regents of the University of California. Excerpted by permission of UNIVERSITY OF CALIFORNIA PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

List of Figures and Tables xiii
Preface xv
1. Introduction 1
The Changing Environment of Tobacco 2
Recurring Themes 4
Conclusion 5
2. Beginnings: The Nonsmokers' Rights Movement 7
The Berkeley Ordinance 9
Proposition 5 9
The Tobacco Industry Joins the Battle 11
The $43 Million Claim 14
The Postmortem 16
Proposition 10 18
Going Local 21
The San Francisco Ordinance 22
The Tobacco Industry's Counterattack 23
Tobacco Control Advocates Mobilize 25
The Proposition P Campaign 26
Lessons from the Proposition P Campaign 29
Conclusion 31
3. Proposition 99 Emerges 33
The Idea 34
The Coalition for a Healthy California 35
The Legislative Effort 39
The CMA and the Tobacco Industry 46
The Napkin Deal 47
Conclusion 49
4. Beating the Tobacco Industry at the Polls 50
Locking in Money for Prevention 50
Organizing the Campaign 52
The Industry Campaign 54
Getting the Medical Providers to Buy In 55
Collecting the Signatures 57
Launching the Election Campaign 60
Putting the Issue before the Voters 64
The CMA's Quiet Withdrawal 66
The Fake Cop Fiasco 68
Reflections on the Industry's Defeat 73
Conclusion 74
5. Moving to the Legislature 76
The Tobacco Industry's Pricing Strategy 77
Conflicting Views of Health Education 79
A Hostile Legislative Environment 82
California's Fiscal Problems 84
Down the Legislative Path 85
The Coalition's Disintegration 86
The Governor's Budget 90
The Tobacco Industry's Legislative Strategies 93
Conclusion 96
6. Proposition 99's First Implementing Legislation 97
The Voluntary Health Agencies' Legislation 97
Other Significant Tobacco Education Legislation 100
The Child Health and Disability Prevention Program 102
Negotiations and Agreements 103
Project 90 108
The Battle over the Media Campaign 112
The Research Account 114
The Outcome 115
Conclusion 117
7. Implementing the Tobacco Control Program 120
Two Different Models 121
Leadership at DHS 124
The Media Campaign 126
The Local Lead Agencies 130
Encouraging Diversity 133
The Schools: A Different Approach 137
Early Leadership Problems 141
Monitoring and Accountability 142
Formalizing Noncooperation between DHS and the Schools 143
Conclusion 144
8. The Tobacco Industry's Response 147
The Industry and the Media Campaign 147
"It's the Law" 153
The Industry and the Schools 154
Conclusion 156
9. The Battle over Local Tobacco Control Ordinances 157
Beverly Hills 159
Lodi 160
Sacramento 163
The Escalating Fight over Local Ordinances 166
Long Beach 170
Placer County 172
The Sacramento Battle over Measure G 174
The Tobacco Industry's Plan: "California's Negative Environment" 176
The Tobacco Industry and the California Public Records Act 177
Conclusion 180
10. Continued Erosion of the Health Education Account: 1990-1994 182
Early Postures 184
The CMA Position 185
Governor Wilson's Budget Cuts 188
The Tobacco Industry's Strategy 189
The Final Negotiations 190
AB 99 Emerges 192
The Governor Tries to Kill the Media Campaign 194
The First Litigation: ALA's Lawsuit 197
The 1992-1993 Budget Fight 201
Positioning for 1994 204
The Governor Kills the Research Account 207
Conclusion 209
11. Battles over Preemption 212
SB 376: The First Threat of Preemption 213
The Voluntary Health Agencies Accept Preemption 215
The Birth of AB 13 217
The Tobacco Industry's Response: AB 996 218
The View from outside Sacramento 220
AB 13 and AB 996 on the Assembly Floor 221
On to the Senate 222
The Philip Morris Plan 224
The Philip Morris Initiative 226
The Continuing Fight over AB 13 229
The Philip Morris Signature Drive 231
The Legislature Passes AB 13 232
AB 13 and Proposition 188 233
The Stealth Campaign 234
The "No" Campaign 237
The Wellness Foundation 240
The Federal Communications Commission 242
Conclusion 244
12. The End of Acquiescence 246
The Governor's 1994-1995 Budget 247
The Creation of AB 816 249
Objections to CHDP 250
The Hit List 255
The ANR-SAYNO Lawsuit 257
The Conference Committee Hearing 258
The CMA 260
Last-Minute Efforts to Stop AB 816 263
The Floor Fight 265
The Final Bill 266
Conclusion 269
13. The Lawsuits 270
Child Health and Disability Prevention 271
Comprehensive Perinatal Outreach 273
The Health Groups' Victory 274
The Lawsuit's Aftermath: SB 493 in 1995 278
The SB 493 Lawsuits 282
Conclusion 283
14. Doing It Differently 284
The Need for a Change 285
The December Meeting 289
The CMA 293
The Governor's Budget 295
Changes in the Legislature 296
The Coalitions Form 299
The "Hall of Shame" Advertisement 302
The Wellness Grant 306
The CMA House of Delegates Meeting 308
The Philip Morris Memo 311
The Governor's May Revision 314
Reaction to the Governor's New Budget 315
Attempted Restrictions on the Media Campaign 318
The Research Account 319
The Final Budget Negotiation 321
Engaging the Media 324
The End of the Diversions 327
Conclusion 328
15. Political Interference in Program Management 330
Squashing the Media Campaign 331
"Nicotine Soundbites" 334
Implementing Pringle's Pro-Tobacco Policies 338
Shutting Out the Public Health Community 343
The TEROC Purge 348
The Strengthened Advertisements 350
The 1998 Hearings 353
Trying to Control TEROC 354
Delayed Implementation of the Smoke-free Workplace Law 357
Pulling the Advertisements for Smoke-free Bars 359
The California Tobacco Survey: TCS "Fires" John Pierce 362
Conclusion 365
16. Lessons Learned 367
The Players 368
The Keys to Success: Ideas, Power, and Leadership 370
Ideas: Knowing What You Want 371
Power: Turning Ideas into Action 374
Leadership: Seizing Opportunities and Challenging the Status Quo 376
Conclusion 378
Appendix A. Organizations, Programs, and People Involved in Tobacco Control in California 381
Appendix B. Important California Tobacco Control Events 384
References 387
About the Authors 427
Index 429
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First Chapter

Chapter 5

Moving to the Legislature

Proposition 99 raised over $600 million a year in new tobacco taxes, over $125 million of which was allocated by the voters to anti-tobacco education and research, creating the largest tobacco control program in the world. The public health groups turned to the initiative process to secure the tax increase because the tobacco lobby had successfully blocked at least thirty-six attempts to pass a tax increase in the Legislature since 1967.1 Unfortunately, after winning at the polls, the health advocates had to return to the same Legislature to pass implementing legislation to turn the promise of Proposition 99 into a reality.

Proposition 99 specifically assigned the money raised by the new tax to six accounts: Physician Services (35 percent), Health Education (20 percent of revenues), Hospital Services (10 percent), Research (5 percent), Public Resources (5 percent), and Unallocated (25 percent). Curt Mekemson wrote these allocations into the initiative to shield the prevention (Health Education and Research) programs from the Legislature and the powerful special-interest groups that dominated it. Protecting the integrity of the initiative in the Legislature would not be easy. As the Los Angeles Times editorialized on November 10, two days after the election, "Now comes the really hard part: negotiating the Legislature's special-interest steeplechase to make sure that the estimated $600 million to be raised annually by the tobacco tax increase is allocated as the sponsors intended and spent as they promised voters it would be spent."2

Proposition 99 went into effect on January 1, 1989. Since the state's fiscal year begins in July, the first state budget to appropriate Proposition 99 revenues would be the 1989-1990 budget. As a result, there would be eighteen months of revenues to spend in the first budget year--about $900 million--which began on July 1, 1989. Of this amount, $180 million was to go toward health education. This money attracted a lot of attention and many new "friends" for the Coalition for a Healthy California.

The Tobacco Industry's Pricing Strategy

Following its defeat at the polls on November 8, 1988, the tobacco industry immediately adopted marketing, political, and legal strategies to counter the effects of Proposition 99 on its sales. It developed marketing strategies to blunt the tax's effect of a price increase so that people would not quit smoking. It also intervened politically to try to get the Board of Equalization, the state agency that collects the tobacco tax, to set a low tax rate on tobacco products other than cigarettes. It also sued to try to overturn Proposition 99.

The tobacco companies knew that smokers were sensitive to the price of cigarettes. (Indeed, the fact that price increases reduce consumption was one of the arguments that the ALA and others used to justify creating Proposition 99 in the first place.) After losing the election, RJ Reynolds decided to push its lower-priced brands, especially Doral and Magna, because "we do plan to capitalize aggressively on business shifts that will undoubtedly occur as a result of the California tax increase."3 The company's marketers told management, "We will be developing and recommending programs on DORAL that include newspaper advertising, direct mail, on-carton coupons, and pack purchase incentives. On MAGNA, we will be looking at additional pack purchase incentives to help generate trail for this brand."4 Philip Morris planned strategies to protect all of its brands, including such premium-price brands as Marlboro, along with its less expensive brands.5 Specific promotions consisted of packaging lighters with Marlboro two-packs at the beginning of January, coupons to reduce the effective price for cartons of Marlboros at the end of December and for Benson & Hedges, Merit, and Virginia Slims, a two-for-one promotion for Merit Ultra Lights at the end of December, coupons to reduce the effective price of Cambridge cigarettes during January, and the launch of Alpine cigarettes, a lower-priced brand, at the beginning of January 1989.

In late November 1988, the tobacco distributors mounted an effort to establish a low tax rate on non-cigarette tobacco products. The initiative had established a tax of twenty-five cents on each pack of cigarettes (.0125 cent per cigarette), but had left other tobacco products to be taxed "equivalent to the combined rate of tax imposed on cigarettes" at a rate established by the State Board of Equalization. Proposition 99 proponents wanted a high rate while the tobacco industry and tobacco distributors wanted a low rate, based on weight rather than wholesale price.

On November 30 the Coalition presented its case to the board, which decided to establish a tax rate of 42 percent on the wholesale price of tobacco products, calculated by dividing the per pack tax on cigarettes (thirty-five cents) by the average wholesale price of cigarettes (eighty-four cents). Tobacco distributors had lobbied for 19 percent, using a complex formula that Assembly Member Lloyd Connelly (D-Sacramento) said would "befuddle Albert Einstein."6 The Board of Equalization agreed with the Coalition and established the higher rate.

The tobacco industry then took its case to the Legislature, and in February 1989 Senator William Campbell (R-Industry) introduced a resolution urging the Board of Equalization to adopt an alternative method of computing the tax rate on tobacco products, one favorable to the tobacco industry, whereby one cigarette "is the equivalent of one cigar, one-twentieth of a can of snuff, or one bowl of pipe tobacco." The bill died in the Senate Revenue and Taxation Committee, representing a victory for the Coalition.

The tobacco industry sued to void Proposition 99 after it passed. On January 17, 1989, Kennedy Wholesalers, Inc., a tobacco distributor, filed a lawsuit claiming that Proposition 99 was unconstitutional. The distributor claimed that Proposition 99 violated Proposition 13, needed approval by a two-thirds vote of both houses of the legislature, restricted the appropriations power of future legislatures, burdened one class of persons with a tax that benefited the public generally where no rational relationship exists, and violated the single subject rule that required initiatives to cover only one subject. The arguments were identical to the suit filed by the tobacco industry in July 1988 in their failed effort to keep the initiative off the November ballot. The Coalition opposed the industry in court and on March 17, 1989, Sacramento Superior Court Judge Anthony DeCristoforo denied the motion to declare Proposition 99 unconstitutional.

The industry appealed, and the suit eventually went to the state Supreme Court, which in 1991 upheld the lower court and unanimously rejected the claim that Proposition 13 required any new tax, including one passed by citizen initiative, to be approved by two-thirds of the legislature. The court found that Proposition 13 was designed to limit the power of the legislature but not the public's power. The court also rejected claims that the initiative violated the single subject rule.7 All the industry's legal maneuvering, although unsuccessful, hurt the Coalition, which had to raise money to pay the legal fees incurred in fighting the tobacco industry in court.8

Conflicting Views of Health Education

The wording of Proposition 99 creating the Health Education Account stated only that funds were to be available "for appropriation for programs for the prevention and reduction of tobacco use, primarily among children, through school and community health education programs." No agency was given responsibility for the Health Education program, and one of the important questions to be addressed was how much money would go to health departments and how much would be given to schools.

A broad outline for tobacco education was available. At the urging of public health activists, in February 1988, prior to the Proposition 99 election, Senator Diane Watson (D-Los Angeles) had introduced Senate Bill 2133, the Tobacco Use Prevention Act, to begin planning the implementation of Proposition 99 tobacco education programs. The bill required that the Department of Health Services (DHS) develop a program to reduce tobacco use in California through a multifaceted approach that, for the first time, combined mass media advertising with community-based interventions on a large scale. John Miller, Watson's primary staffer on the bill, was particularly committed to an anti-smoking media campaign. Miller "wanted to hire the same guys who sold cigarettes to unsell them."9

The voluntary health agencies and ANR supported the bill. Proponents clearly did not understand the tobacco industry's well-developed strategy of working through intermediaries. Miller even wrote Watson, "It does not appear that the tobacco lobby will try to kill 2133."10 The tobacco industry maintained a low profile, preferring to let the California Chamber of Commerce, California Manufacturers' Association, and the California Taxpayers Association lead the formal opposition, although the Tobacco Institute formally opposed the bill late in the legislative process.

Although Governor George Deukmejian vetoed the bill after the Legislature passed it, SB 2133 provided health groups with an early opportunity to assert their vision of what the state's anti-tobacco education program should look like if Proposition 99 passed. Had it been signed into law, a program to implement Proposition 99 would have been in place when the initiative passed, which might have avoided the problems that arose when its proponents returned to the Legislature to seek implementing legislation after they passed Proposition 99 at the polls. As it was, several different organizations advanced competing plans for how to spend this money after the election.

The ALA wanted to see the Health Education Account spent in accordance with the basic elements of SB 2133 but with three changes: (1) at least 50 percent of the Health Education Account should target students eighteen or younger, (2) there should be no "sunset clause," which ended the spending authority for the current provisions on July 1, 1999, and required further legislative action, and (3) a provision should be added to make anti-tobacco education a mandated program, meaning that the Legislature would require local public agencies to participate and they would receive money for doing so.12

The California Department of Education (CDE) wanted to broaden the focus of the program beyond direct anti-tobacco education, arguing that "the same pressures and reasons which cause young people to smoke are those which cause them to use drugs and alcohol, become sexually active, consider suicide or adopt obsessive eating habits. The skills needed to prevent drug abuse, improve nutritional selections, abstain from sexual activities, and engage in lifelong physical activity are the same skills needed to prevent tobacco use."12 CDE's specific plan was to have the funds administered by the new Office of Healthy Kids, Healthy California, which had been set up to concentrate health education programs within CDE. CDE wanted the money distributed in five ways: (1) award grants to all districts on an entitlement basis to implement comprehensive health education programs with a smoking prevention component, (2) make available effective smoking prevention curricula and materials, (3) provide training on implementing smoking prevention education in the context of a comprehensive health education program, (4) design and implement a media campaign for the classroom and public media, and (5) establish an Advisory Committee.

DHS, on the other hand, proposed a program completely inside DHS, with grants going to local agencies, including schools, to implement programs for the target populations.

The California Association of School Health Educators (CASHE) suggested aprogram that was prepared by Ric Loya, executive secretary of CASHE, and Alan Henderson, board member of CASHE. The program had six major components: (1) an independent commission to oversee program implementation with its own staff and budget appointed by the governor, Legislature, and CDE, (2) funding based on applications for school and agency programs run by credentialed health educators, (3) training support, (4) demonstration projects, (5) educational research, and (6) an incentive program to encourage smoke-free schools.12

ACS, in conjunction with CASHE, proposed that $30 million of the Health Education Account go toward funding mandatory health education. The remaining money was to fund block grants to the County Offices of Education to carry out education programs.

AHA recommended that at least half of the money go to mandating and implementing comprehensive school health programs in public and private schools. The remainder of the money was to go to other education outreach programs. AHA made no recommendations about program administration.13

Those outside the education establishment worried that money given to schools might not be used for tobacco education, and the early proposals advanced CDE and CASHE, the school health educators, did little to alleviate this concern. When he was interviewed in 1995, Steve Thompson, who was head of the Assembly Office of Research in 1989 and a key agent for Speaker Willie Brown in the Proposition 99 negotiations, remembered that "there was a great deal of skepticism, based on previous performance, that putting money into the school systems was going to have much impact."14 Miller and Najera were similarly disenchanted with the CDE proposal, advanced by Robert Ryan, head of the Office of Healthy Kids, Healthy California, and Bill White, his deputy, to put the money into "healthy kids, healthy this, healthy everything." Miller recalled, "We kept saying, 'How are you going to account for what the hell you're doing with tobacco?' And that became a real sore subject and concern of those of us who wanted to make sure that that money bought tobacco control programs in school systems in California."15

By submitting different proposals on how to implement the Health Education Account, the three voluntary health agencies were clearly not cooperating on implementation of the initiative. Tensions between the three agencies continued to build over the next several months and weakened their political position in the coming legislative debates.

A Hostile Legislative Environment

Proposition 99 arrived at the Legislature with some controls in the form of specific accounts, each with a percentage allocation. Even so, the Legislature was still responsible for deciding which agencies would run the programs, the forms those programs would take, and the allocations to those programs. The text of Proposition 99 had been worded as simply as possible to build support with the voting public. This brevity and simplicity, while keeping the initiative clear for the voters, meant that the initiative was not written to withstand the special-interest lobbying and legislative manipulation that would greet it at the Legislature.

Five realities about the California Legislature were particularly relevant to Proposition 99.

First, the tobacco industry was a major political player in the Legislature. There had been no tax increase on tobacco for over twenty years, reflecting the power of the industry and the weakness of the voluntary health groups. The tobacco industry had spent $21 million in its unsuccessful bid to defeat Proposition 99 and was not likely to turn a blind eye to its implementing legislation. The industry responded to Proposition 99 by increasing its already substantial lobbying presence and campaign contributions to members of the California Legislature. In the 1985-1986 election cycle, before Proposition 99 passed, the industry had spent only $274,394 on campaign contributions and lobbying in California. In 1987-1988, when ACA 14 (Proposition 99's legislative predecessor) was being considered by the Legislature and when Proposition 99 passed, expenditures for industry lobbying and campaign contributions increased to $2,818,534 (excluding the $21 million the industry spent trying to defeat Proposition 99 at the polls); in 1989-1990, when the Legislature was considering the legislation to implement Proposition 99, they jumped to $4,077,264.16

Second, no health organization with a California lobbying presence was dedicated solely to tobacco issues, which meant that every organization lobbying for Proposition 99 programs had to consider how its stance on Proposition 99 might affect its relationship with the governor and the Legislature on other matters. The primary organizations with an interest in tobacco control (ALA, ACS, and AHA) had only a limited lobbying presence in Sacramento, consisting of one or two full-time lobbyists, and these organizations had not traditionally been willing to adopt strong positions or risk making enemies.17,18

Third, the California Medical Association (CMA) and the California Association of Hospitals and Health Systems (CAHHS) were powerful players in Sacramento as a result of their large campaign contributions and extensive information resources. While these organizations gave lip service to anti-tobacco activities, these activities were of minor importance compared to economic issues affecting their members. The dominance of economic issues over public health issues was starkly illustrated by the CMA's collaboration with the tobacco industry in 1987 to pass the Napkin Deal, with the attendant "tokenizing" of support for Proposition 99.

Fourth, within the Legislature, led by Assembly Speaker Willie Brown (D-San Francisco) and his longtime aide, Steve Thompson, there was a core of liberal Democrats who were committed to funding health care for children and who were likely to see new monies as a route to doing this.19 As of 1988, the tobacco industry had given Willie Brown $124,900 in campaign contributions, more than any member of a state legislature in the United States and more than the tobacco industry had given many members of Congress. Moreover, Brown's contributions from the industry increased rapidly after Proposition 99 passed; by the time he left the Legislature in 1996, Brown had accepted $635,472 in tobacco industry campaign contributions.16,20 There was a natural confluence of interests between Brown, Thompson, the CMA (another major source of campaign contributions to Brown), and the tobacco industry in shifting anti-tobacco education money into paying for medical services for poor children. This axis was continued after Thompson left Brown's staff in 1985 to become the head of the Assembly Office of Research. According to Thompson, in 1989 he "basically was representing the position of the Speaker's office. . . . I did most of the health advising for their office. So I was basically speaking for them on this issue [Proposition 99]."14The ties between Brown, Thompson, and the CMA became even stronger in 1992, when Thompson left the Legislature to become vice president and chief lobbyist for the CMA.19,21

Joining the CMA, CAHHS, and Brown in their interest in health care for children was the highly regarded lobbyist Peter Schilla, of the liberal advocacy group Western Center for Law and Poverty, whose priority was to increase health care for poor people. Although the Western Center was not involved in the initiative campaign, Schilla was very influential with liberal members of the Legislature, particularly on issues related to health care for the poor. John Miller, chief of staff for Senator Diane Watson (D-Los Angeles), and Mary Adams, the AHA's lobbyist, shared the opinion that Schilla was one of the major forces behind Proposition 99's implementing legislation. Miller later recalled that Schilla "never cared much about health education, but he did care about funding the other programs. And he was putting it all together and knew we needed to be placated and so he did some of that." Adams agreed, saying, "I recall personal conversations that I had with John Vasconcellos [D-San Jose, a prominent liberal member of the Assembly] about the overarching Prop 99 accounts. I was really surprised at the information that he had and asked him where he got it. And he said from Peter Schilla . . . it was already very clearly thought out, not just that but then one step more."15

Fifth, the Legislature was hostile toward Proposition 99 because it earmarked money; it represented voters' restrictions on legislative decisions concerning the funds and thus limited the Legislature's fiscal prerogatives. As John Miller commented, "They despise it. And it is a built-in antagonism. A serious one."22

Within this hostile environment, the answers to three key questions would determine the fate of Proposition 99 in the Legislature.23 First, would Proposition 99 advocates be able to maintain the source of their power--public opinion? Second, would they be able to advocate sound proposals for spending the tax revenues and to keep the issue framed as "following the will of the voter"? Third, would program advocates find a leader for their cause, an "entrepreneur" who could recognize opportunities to act and who had a commitment to challenge the status quo? Without an entrepreneur to identify opportunities to act, to guide legislation, and to be confrontational within the process, Proposition 99 was likely to have difficulties surviving in the Legislature.24

California's Fiscal Problems

California's fiscal situation had become increasingly grim since the passage of Proposition 13 in 1978, which limited local government's ability to raise property taxes and forced the state to take over funding for many locally provided services, and of the Gann Limit (Proposition 4) in 1979, which limited yearly increases in government spending. The two measures passed during a period when the state had built up a substantial financial surplus, which buffered their effects. By the time Proposition 99 was before the Legislature in early 1989, the situation had changed: the state was facing a deficit. Elizabeth Hill, the Legislative Analyst, said that she expected the state to end the 1988-1989 fiscal year as much as $126 million in the red and that the subsequent year's budget problems might be "even worse."25 The Legislative Analyst is a widely respected nonpartisan official who has a reputation for objectivity and is charged with preparing an analysis of the governor's budget for the Legislature.

Proposition 99 brought in new money whose expenditure was not restricted by the Gann Limit, and there was nothing requiring that the money be used only for the programs that the Coalition wanted. The CMA, CHHS, and the Western Center wanted more money for medical services for poor people. The Service Employers International Union (SEIU), a labor union representing county employees, particularly in the health care field, and the County Supervisors Association of California (CSAC), an organization representing California county governments, saw Proposition 99 as a new source of jobs and money for their constituents. Governor Deukmejian, acting through his administration's Health and Welfare Agency, had many cash-starved programs. So did the CDE, which reported to the State Superintendent of Public Instruction, not the governor. The Research Account initially attracted the attention of California's research universities, especially the University of Southern California, Stanford University, and the University of California, which saw it as a new source of money. None of these new players had any particular commitment to tobacco control.

Down the Legislative Path

The primary challenge faced by the voluntary health agencies was that the tobacco education program would be the first and largest of its kind, and no one knew a sure way to reduce smoking. In the absence of a proven model, the public health groups had to argue their case as a task in trying something new and in carrying out the will of the people.

The voluntary health agencies recognized their vulnerability. When he was asked about the effort to implement Proposition 99, ALA lobbyist Tony Najera commented, "We were vulnerable for two reasons. We didn't know what the heck was needed. . . . and second, we had so much money. We had accumulated so much money before any action plan was even looked at."15 Thompson also recognized the vulnerability of the new program: "There were some [existing] programs being defunded or not fully funded competing against things that didn't exist. So, in a traditional budgetary context, it's not as difficult to take money from something that hasn't happened and give it to something that's being reduced."14 The existing health care programs with established constituencies also provided a clear mechanism by which the money could be spent. According to the Senate Health Committee's John Miller, "The hospitals and the doctors and the others who got big lump sums of money from this tax had a system in place to just plug it in and spend it. I mean, it was gone within minutes of arriving, because their distribution network was already there. We didn't have that."15 The voluntary health agencies were thus arguing for a new program for which there was no existing bureaucracy, no proven approaches, and no constituency to defend it against established programs with well-developed financial and political infrastructures.

The CMA, after extracting as much money as possible from Proposition 99, had walked away from anything but token participation in the initiative, even before it qualified for the ballot. After Proposition 99 passed, the CMA struck out on its own almost immediately. At a Coalition meeting on December 28, 1988, the CMA told the other members present of its intent to go after the entire Unallocated Account to fund health insurance for workers who lacked health insurance.

The interest of the voluntary health agencies in continuing a relationship with the CMA, in spite of CMA's increasingly adversarial actions against prevention programs, would prove to be characteristic of their behavior throughout the Proposition 99 funding discussions. ANR co-director Julia Carol observed: "I think [the voluntaries] view the CMA as somebody they have to have. All three agencies work with the CMA on issues other than tobacco. Their boards are made up of doctors who are also members of the CMA. The CMA has tremendous clout in the Legislature and they see them as allies that they cannot have a permanent rift with. . . . they see the CMA as indispensable to who they are and how they have to work."26 Despite the CMA's failure to deliver its promised support for the initiative (creating debate over removing it from the Coalition before the initiative passed) and the CMA's repeated raids on the Health Education Account and then the Research Account, the voluntary health agencies would cling to the CMA.

The Coalition's Disintegration

In contrast to its clear and consistent strategy during the two-year effort to develop and pass Proposition 99, the Coalition had not developed a coordinated plan to implement Proposition 99 after the election victory. On December 15, 1988, in its first meeting after the election, the Coalition met and briefly discussed whether it should be the lead organization to secure the legislation to implement Proposition 99. Jack Nicholl, who had managed the election campaign, sent a memo to the Coalition Executive Committee arguing that the Coalition should remain together and proposing a budget to do so: "The Coalition is the guardian of Proposition 99 as it was written. Individual organizations will use their quite substantial lobbying resources to pursue implementing legislation. The Coalition's mission is to preserve the framework of Prop 99 which the voters passed by a margin of 58%-42%. If we don't do it, no one else will. . . . Our principle [sic] objective will be to generate grass roots pressure on the Governor and the Legislature to head off attempts to change the direction or intent of Proposition 99."27 Nicholl proposed a budget of $8,000 per month to insure that over $100 million a year was spent wisely on new tobacco control programs.

The Coalition said no. Instead of maintaining a budget and staff for the Coalition, the Executive Committee decided that "each member agency could rely upon its own staff and resources from this point on, and that a core staff from key agencies (especially related to legislative activity) could provide a focus."28 The Coalition would be a mechanism for cooperation among the individual agencies. Money for an ongoing effort was an obstacle for the voluntary health agencies. According to Carolyn Martin, a volunteer with ALA who was active in the campaign to pass Proposition 99, "Money was a big problem. The non-profit agencies, ACS and ALA, had spent an astronomical amount of money on the Proposition 99 campaign. Obviously, CMA and CAHHS would not contribute to this effort."29 The Coalition met to discuss issues during the legislative session, and it was listed as a supporting organization for several bills. But it ceased to function as an effective body. Each organization pursued its own strategy and lobbied for its own bills with its principal legislators.

On January 5, 1989, the now-resourceless Coalition hosted a press conference to present its Program for a Healthy California, which outlined its plans for implementing the various accounts of Proposition 99. The program recommended that at least 70 percent of the Health Education Account go toward school-based programs, with grantees to include not only school districts but also clinics, community-based organizations, local health departments, colleges and universities, voluntary health agencies, and hospitals. The remainder of the account was to be used for an Oversight Committee, which would be responsible for program planning, implementation, and evaluation and for the media campaign, which would be designed to reinforce the school-based program. The Research Account was to be administered using the federal National Institutes of Health model and was to include biomedical, behavioral, social, and epidemiologic research. The Unallocated Account was to be used to fund a fire prevention program and other funding categories.30

The CMA was already moving to gain control of as much of the money as possible. The day before the Coalition's press conference, CMA executive vice president Robert H. Elsner sent a letter to Coalition chair Jim Nethery asking the Coalition to refrain from making statements about the Unallocated Account. He specifically urged that the press conference and the supporting materials "not include any specific recommendations or proposals for use of the unallocated funds. In the press conferences it should be made clear the Coalition has not adopted any policy on specific proposals for implementing Proposition 99. . . . However, if after the various proposals have been discussed by the Coalition and a consensus cannot be reached, various organizations ultimately may have to go their own way."31 Nethery and the Coalition ignored him. The press conference was the last major coordinated effort of the Coalition for a Healthy California as it was constituted during the election.

The decision not to stay together formally with a paid staff meant that there would be no changes in the existing institutional patterns that might disrupt the existing legislative patterns related to tobacco policy making. In particular, it meant that there would be no lobbying presence in Sacramento dedicated solely to the tobacco debate or to maintaining the integrity of the Proposition 99 programs. Ken Kizer, the director of DHS and a strong supporter of the Proposition 99 program, described the problem created by the lack of a unified coalition:

Passage of [Proposition 99] really came about because everybody worked together. It was one of the few instances where the health constituencies actually got together on the same team and worked in a coordinated way. But that Coalition seemed to unravel relatively quickly, being superseded by self-interest. . . . In the absence of a concerted pressure driving it in one direction, then it reverted back to the Legislature to arbitrate the disparate views of the folks who wanted to get more for themselves. . . . Everybody in the Legislature knows how easy it is to fracture the health community and how they are largely their own worst enemy and how they can capitalize on that.32 [emphasis added]

Kizer understood that with each organization following its own insider strategy in the Legislature, consensus was going to be difficult to achieve in implementing Proposition 99.

Nicholl was not the only person who felt the need for a continuing organizational presence focused on implementing Proposition 99. In 1989 the federal Centers for Disease Control and Prevention in Atlanta offered to give the Coalition $9,000 to help with public relations activities, and the money was eventually given to the Western Consortium for Public Health through Lester Breslow. (The Western Consortium was a nonprofit organization that allowed the schools of public health in California to cooperate on grants and contracts.) Breslow, a professor at UCLA, was a former director of health services and the former dean of the UCLA School of Public Health.

The Western Consortium wanted to use the money to hire Betsy Hite, who had recently left ACS, apparently at Nethery's request.33 According to Nethery, who continued to chair the Coalition, "I got a little heavy-handed. I didn't have a staff, and they put me in a position which I shouldn't have agreed to in the first place of operating the Coalition without a staff. And so at one point in time the public health people came along and offered me this money, and I was going to use it to hire Betsy. And I made a really dumb statement. I said, 'Now I have my lobbyist' . . . I could have thought that and it would have been okay. But you know, keep your stupid mouth shut."34 Other members of the Coalition did not trust Hite because they felt she put her personal views ahead of the consensus position. ALA opposed the decision to hire Hite;35 ALA executive director Williams wrote a strong letter to Nethery, saying, "Surely you understand that Betsy is thought controversial by some members of the Coalition. To bring her back into the fray at this date without careful preparation was I think insensitive. . . . why does the Western Consortium want to hire her and then expect the coalition to take her on as a partner. The three lobbyists for the voluntaries are working well; what would the addition of Betsy contribute?"36 In the end, Hite was not hired to work with the Coalition. Instead, the Western Consortium prepared a case study of the effort to implement Proposition 99.37

Nethery was in the minority in believing that a campaign-style effort would be necessary to see that the Legislature properly implemented Proposition 99. For most of those who were involved in passing Proposition 99, the degree to which the political fight would continue in the Legislature came as a surprise. David Langness, who worked for CAHHS but represented the American Heart Association on the Coalition, commented, "The 99 Commission was a little fractious at times before the election. But after the election, we didn't anticipate the necessity for long-term post-election work. And that was one of the big lessons that I learned during that campaign. And it's one of the lessons that I'm trying to transmit to the other people I'm consulting with, like the Arizona [Heart] Association. [Arizona passed a Proposition 99 clone in 1994.] And that is: The campaign doesn't stop on election day."38 When asked if she was surprised at how fast the Coalition split apart, Jennie Cook, a longtime ACS volunteer and, in 1989, immediate past chair of the board of ACS California, replied, "As soon as it was passed, we figured, 'Okay, we walk away and do something else.' What a joke! . . . We all figured that there was no more to do, it was done. It was a law. What more could we do? . . . We had spent months coming up with how we wanted the money designated and we figured that that was in the initiative, so that would make it law."39 The voluntary health agencies assumed that because the voters passed Proposition 99, the Legislature would simply implement it as the voters wanted.

They were wrong.

The Governor's Budget

In January 1989 Governor Deukmejian issued his budget for the 1989-1990 fiscal year, the first budget to include the Proposition 99 revenues. He recommended that the Health Education and Research Accounts be funded in accordance with the initiative. The Health Education programs received their full 20 percent--$175.6 million--for a new smoking prevention program administered by DHS. The Research Account received its full 5 percent--$43.9 million--for a research program administered by the University of California. The voluntary health agencies did not want to have the entire Health Education Account within DHS or have the university administer the Research Account, but the funding allocations at least followed the initiative.40

The controversial part of the governor's budget lay in his proposal to use Proposition 99's Hospital Services and Physician Services Accounts to pay for county medical services. His budget called for a $358 million reduction in state revenues to fund county programs to treat the medically indigent (a General Fund obligation) and then allocated $331.3 million of Proposition 99's tobacco tax revenues back to the counties for a supposedly new program, the California Health Indigent Program. Several individuals saw the governor's plan as supplanting already existing levels of service, a violation of the "maintenance of effort" requirement in the initiative.

The governor also proposed using Proposition 99 funds to finance $54 million in unavoidable state obligations, such as health care costs associated with caseload increases, $14 million for various state prison programs, $18 million for capital outlay improvements in state mental hospitals, and $7 million for caseload increases in several categorical health programs. He also proposed expanding community mental health and drug treatment programs for female drug addicts. Some of these expenditures, such as those for prisons and for capital improvements in the state mental hospitals, were not consistent with Proposition 99, which required increases in medical services.

The governor's budget drew an immediate negative response from the press, the Coalition members, the Legislative Analyst's Office, and members of the Legislature. The CMA described the governor's proposal as a "shell game."41 A Los Angeles Times editorial labeled the Governor's action as "The Big Raid," stating, "This is not a pie for the health-care sponsors of that successful proposition to carve up for the benefit of each and every health-care provider. It must be used to address the priorities for which it was intended, to supplement and not to replace the existing resources. To do otherwise would betray the trust of the voters and violate the rule of law" (emphasis added).42

CMA president Laurens P. White loudly protested the fact that the governor was not using Proposition 99's medical service accounts to create new programs, as the initiative specified, expanding the pool of funds available for medical services. He emphasized the CMA's commitment to seeing that the politicians honored the will of the voters: "We are fearful that the administration's budget planners are using the proceeds from the cigarette tax increase approved last November to offset cuts made in the state's health programs. The CMA will work with members of the Prop. 99 Coalition to make sure that does not happen. When they approved the tax, voters believed they were increasing the amount of money available. We must keep faith with them" (emphasis added).41 Although the governor had honored the terms of the initiative by fully funding the Health Education and Research Accounts (the top-priority activities for the voluntary health agencies), the agencies were willing to expend political capital over the supplanting issue--a priority for the CMA--because of the importance of protecting the integrity of the initiative. Nethery, chair of the Coalition, announced, "The voters will be very disappointed that the bureaucrats are trying to raid the revenues from Proposition 99. In approving Proposition 99, the voters clearly sent a message to Sacramento that they wanted new money for new programs to mitigate the effects of tobacco and teach children about the dangers of smoking. The Coalition will work to educate the Governor and the Legislature to make sure that the funds are spent consistent with the voter mandate to protect public health and the environment" (emphasis added).40 Nethery threatened legal action if the governor persisted in violating Proposition 99's stricture against supplanting existing programs because the "proposed budget did not comply with the letter or the spirit of Proposition 99" and the budget would "use the new revenues created by Proposition 99 to replace existing county health services funding eliminated in another portion of the budget."40

Assembly Member Lloyd Connelly (D-Sacramento), who had played a major role in creating Proposition 99, immediately requested a formal opinion from the Legislative Counsel (the Legislature's legal expert). He asked, "May revenues derived from taxes imposed pursuant to Proposition 99 be used to fund existing levels of service for these purposes authorized by Proposition 99 with a four-fifths vote of the Legislature?" The Legislative Counsel's February 24 opinion concluded that the Legislature could not legally fund existing services and said that only the voters could change Proposition 99: "Unless an initiative statute grants the Legislature the power to amend or repeal the statute, the Legislature may amend or repeal the statute only by another statute that becomes effective when approved by the electors."43 Unified opposition forced the governor to back down.

In the end, the governor's initial proposal may not have been a significant threat to the program because Deukmejian, unlike his successor, fellow Republican Pete Wilson, felt bound to implement laws passed by the voters, even if he did not personally agree with them. According to Steve Scott, political editor of the California Journal, a widely respected nonpartisan monthly on California politics, "Deukmejian had an interesting attitude about initiatives. He got involved a lot in initiative campaigns. In fact, his staff would sort of get on him for getting involved . . . but by and large, his attitude was if the voters passed it, then the obligation of his administration was to implement it to the best extent possible. And so basically what I've been told recently is that Deukmejian pretty much let Kizer [director of DHS] do it his way."44

The first challenge to the integrity of Proposition 99 was thwarted, protecting an important principle for the CMA and other medical service providers. Unfortunately, the CMA would not reciprocate and work with equal vigor to protect the Health Education and Research Accounts.

The Tobacco Industry's Legislative Strategies

On January 17, 1989, the tobacco industry and its consultants met to discuss their short- and long-term strategies for dealing with Proposition 99. In the short term, they hired Sacramento lobbyist Kathleen Snodgrass as the lead "offensive" lobbyist and Paul Kinney from A-K Associates as the lead "defensive" lobbyist. They hired Nielsen, Merksamer, the law firm that had done theindustry's political legal work in California at least since Proposition 5, to analyze the budget for the industry and to serve as political consultants.45 Steve Merksamer was a former chief of staff to Governor Deukmejian and helped put together the Napkin Deal.19 Jack Kelly, the Tobacco Institute's regional vice president in Sacramento, was to coordinate these efforts, working with the company representatives.

The "major trouble spots" of the governor's budget were the anti-smoking health education program of $175.5 million and the University of California research grants of $43.9 million.4545 The Health Education Account was a greater concern: "Our efforts will have to be very concentrated in this area. The defensive lobbying program will concentrate on the defeat of the dozens of bills that have been or will be introduced to reallocate the Proposition 99 monies to areas unacceptable to our interests."45

The long-term strategy was to gut Proposition 99 entirely by putting the revenue into the General Fund and eliminating Proposition 99's requirements that money be spent on anti-tobacco activities. This strategy would be implemented by participation in the Gann Coalition, which was forming to consider modifying some of the state spending rules:

The long term strategy was developed by our political consultants for two purposes. One purpose was to make the industry "players" in a coalition created to restructure the method of state government finances through an initiative. The discussion motivating such a coalition involves possible repeal or modification of the Gann spending limit, the constraints on the budget process imposed by Proposition 98 [which required that a specified fraction of state revenues be spent on education], and other constraints such as entitlement programs and automatic cost of living adjustments.

The second purpose was to develop possible goals to mitigate the impact of Proposition 99 on the industry and to strengthen the industry against future excise tax increases.

Our consultant [Nielsen, Merksamer] believes it is possible to fashion a strategy and an implementation plan designed to abolish Proposition 99 earmarking by placing the monies in the general fund instead of the six special funds. . . .

In order for the tobacco industry to be part of this process, which is essential if we are to capitalize on this opportunity, we must be able to offer to the other leaders of the coalition our resources, namely leadership, strategy, and money.

In turn we would want from the coalition a change in the law to abolish earmarking of excise taxes and to direct all revenues into the general fund.

We would also strive to change the law making it more difficult to raise excise taxes by the initiative process and/or a commitment from our coalition partners (doctors and hospitals) not to sponsor or support any further increase in excise taxes.

Major players in the coalition are the health care industry, the California Chamber of Commerce, the California Taxpayers Association, public employee groups, and Paul Gann. . . .

The coalition will help strengthen our ties with many groups including the health care industry, and it will also remove tobacco from the major target role. . . .

This second strategy of developing a permanent coalition will be much more visible than the first strategy which is aimed at abolishing Proposition 99 earmarking and sending the tobacco tax revenue from Proposition 99 to the general fund. The first strategy clearly has to remain an invisible one.45 [emphasis different from original]

By February 21, 1989, the State Activities Division of the Tobacco Institute had issued its Project California Proposal, together with a detailed budget, amounting to $611,000 on top of the institute's existing lobbying budget for California. Of this money, $545,000 was to pay Nielsen, Merksamer to analyze the budget and work for diversion of anti-tobacco funds to other purposes and to strengthen ties with the CMA, CAHHS, and other health care interests in order to build a coalition that would restructure state finances in a way that would eliminate Proposition 99's earmarked money for tobacco control programs.46

The report analyzed the governor's budget to determine what were "acceptable" and "unacceptable" uses of the Proposition 99 revenues:

The Anti-Smoking Health Education program ($176 million) is an "unacceptable" program to receive funds. As currently structured, these funds could be distributed to state anti-tobacco groups for their use in anti-smoking advertising and other campaigns. This budget item was recently amended by the Department of Health to award contracts to private firms to conduct smoking prevention education programs (Attachment C). We must do everything possible to prevent these revenues from being used in a vigorous anti-smoking public relations or media campaign.46 [emphasis different from original]

By February 21, 1989, the long-term strategy was on its way to being implemented: the Tobacco Institute's consultants had already started meeting with the Gann Coalition. The Project California Proposal was very specific about the industry's goals in participating in the Gann Coalition. Although they were willing to support modifying the Gann Limit and Proposition 98, which required at least 40 percent of the state budget to go to education, they emphasized that "the industry's key goals are to eliminate earmarking or dedication to Prop 99 revenues, and, if possible, also to prevent future excise tax increases through the initiative process" (emphasis in original).46 While the industry was willing to help the Gann Coalition with "leadership, strategy, and money," this help was conditional, as the February 21 plan made explicit: "It is our firm thought at this juncture that the tobacco industry would withdraw from active participation in the Gann coalition should the industry's goal--eliminate earmarking of Prop 99 revenues--not be included in the coalition's ultimate objective."46 The long-term strategy would eventually be reflected in an effort subsequently known as Project 90, which remained secret until the summer of 1989.

Nielsen, Merksamer had already begun to study "appropriate" budget items for the Proposition 99 funds to supplement. The firm's recommendation was for all the Health Education money to go to the California Department of Education to be put into the "Program elements" category, which includes bilingual programs, adult education, and vocational programs, among others. Nielsen, Merksamer warned, "There may be some pressure to allocate some of the educational money to the Department of Health Services."47 If DHS was to receive the money, Nielsen, Merksamer recommended that the money be put into either Maternal and Child Health Care or the Child Health and Disability Prevention (CHDP) program. Both schools and CHDP would eventually receive Health Education money in 1989; by 1994, Maternal and Child Health would also be added to the mix. For the Research Account, Nielsen, Merksamer recommended a requirement that research be performed at all nine University of California campuses, presumably to dilute the effect of the program. Nielsen, Merksamer made no recommendations and expressed no concerns about the Hospital, Physicians, or Public Resources Accounts. The law firm recommended spending the monies in the Unallocated Account on hospitals and physicians.47

Conclusion

Until Proposition 99 passed, the voluntary health agencies had been peripheral players in Sacramento power politics. This situation changed with the passage of Proposition 99, when they suddenly became key players in a fight over how to allocate $600 million a year in new tobacco tax money, in l uding $120 million for tobacco use prevention programs and $30 million for research. Despite the fact that they were designing the largest tobacco prevention program in the world at a time when state resources were declining, they did not expand their lobbying staffs or enlist the support of outside technical experts. They were entering the world of hardball politics with a popular mandate but had not committed the resources necessary to protect that mandate.

In contrast, the tobacco industry had already developed a strategic plan to undo Proposition 99, with specific plans to divert funds into "acceptable" medical services for children and pregnant women. The industry had started to enlist other powerful players interested in changing the way California government was financed, including the CMA, the Western Center for Law and Poverty, and other medical interests that the voluntary health agencies hoped would work with them.

Notes to Chapter 5

1. Waters G. Petition for Review. Sacramento: Supreme Court of the State of California, January 23, 1997.

2. Stein MA. Those who backed cigarette tax face tougher job: Seeing that it's spent right. Los Angeles Times 1988 November 10.

3. Winebrenner JT. Memo to P. J. Hoult re: California tax increase. November 21, 1988. Bates No. 50677 9941/.

4. Herson MB. Memo to Mr. Ralph Angiuoli re: California marketing program. January 12, 1989. Bates No. 507740 3093/3094.

5. Degener P. Memo to Distribution re: California retail promotion 12/88-1/89. November 18, 1988. Bates No. 2044195177/5180.

6. Connelly LG. Letter to Ernest J. Dronenburg, Jr. November 15, 1988.

7. Hager P. Justices declare tobacco tax constitutional. Los Angeles Times 1991 April 2;A3.

8. Kuzins M. Letter to Corey Brown. February 10, 1989.

9. Miller J. Interview with Stanton A. Glantz. July 12, 1998.

10. Miller J. Memo to Senator [Watson]. September 1988.

11. American Lung Association of California. Proposition 99 implementation recommendations: Policy statement. Sacramento, December 3, 1988.

12. Najera T. Memo to ALAC, Prop 99 oversight. December 13, 1988.

13. American Heart Association. Recommendations for implementation of Proposition 99: Policy statement. December 22, 1988.

14. Thompson S. Interview with Michael Traynor. June 30, 1995.

15. Miller J, Najera T, Adams M. Interview with Michael Traynor. June 20, 1995.

16. Begay ME, Glantz SA. Political expenditures by the tobacco industry in California state politics from 1976 to 1991. San Francisco: Institute for Health Policy Studies, School of Medicine, University of California at San Francisco, 1991 September.

17. Jacobson PD, Wasserman J, Raube K. The politics of anti-smoking legislation. J Health Policy, Politics, and Law 1993;18(4):787-819.

18. Kluger R. Ashes to ashes: America's hundred-year cigarette war, the public health, and the unabashed triumph of Philip Morris. New York: Vintage Books, 1996.

19. Richardson J. Willie Brown. Berkeley: University of California Press, 1996.

20. Monardi FM, Balbach ED, Aquinaga S, Glantz SA. Shifting allegiances: Tobacco industry political expenditures in California January 1995-March 1996. San Francisco: Institute for Health Policy Studies, School of Medicine, University of California San Francisco, 1996 April. (http://www.library.ucsf.edu/tobacco/sa/)

21. CMA's new chief lobbying calls MDs to action. California Physician 1992 April;22.

22. Najera T, Miller J. Interview with Michael Begay. July 22, 1994.

23. Oliver TR, Paul-Shaheen P. Translating ideas into actions: Entrepreneurial leadership in state health care reforms. J Health Policy, Politics, and Law 1997;22(3):721-788.

24. Kingdon JW. Agendas, alternatives, and public policies. 2d ed. New York: Harper Collins, 1995.

25. State of California, Legislative Analyst's Office. Analysis of the 1989-1990 budget bill. Sacramento, 1989 February.

26. Carol J. Interview with Edith Balbach. August 8 and September 5, 1996.

27. Nicholl J. Memorandum to Executive Committee. December 8, 1988.

28. American Cancer Society. Proposition 99 Follow-up meeting--meeting notes. Oakland, December 15, 1988.

29. Martin C. Comments on manuscript. 1998 October.

30. Coalition for a Healthy California. Tobacco tax coalition unveils "Program for a Healthy California." Press release, January 5, 1989.

31. Elsner RH. Letter to W. James Nethery. January 4, 1989.

32. Kizer K. Interview with Michael Traynor. June 15, 1995.

33. Hafey JM. Letter to James Nethery. May 4, 1989.

34. Nethery WJ. Interview with Michael Traynor. May 11, 1994.

35. Coalition for a Healthy California. Minutes. May 15, 1989.

36. Williams G. Letter to W. James Netherly [sic]. May 15, 1989.

37. Marr M. Proposition 99: The California tobacco tax initiative: A case study. Berkeley, CA: Western Consortium for Public Health, 1990 April.

38. Langness D. Interview with Michael Traynor. January 19, 1993.

39. Cook J. Interview with Edith Balbach. March 19, 1998.

40. Hite B, Brown C. Tobacco tax initiative sponsors criticize governor's budget. Press release, January 10, 1989.

41. California Medical Association. News. Press release, January 10, 1989.

42. The Big Raid [editorial]. Los Angeles Times 1989 January 24; p. II.2.

43. Gregory B. Letter to Lloyd G. Connelly. February 24, 1989.

44. Scott S. Interview with Edith Balbach. September 18, 1996.

45. RJ Reynolds Tobacco. California short and long-range plans. 1989. Bates No. 50760 3756/3760.

46. Tobacco Institute, State Activities Division. Project California proposal. Washington, DC, February 21, 1989. Bates No. 2025848159/48192.

47. Nielsen, Merksamer. Memorandum to Executive Committee re: California state budget. December 15, 1988. Bates No. 50763 7136/7160.

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