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Monday, June 10, 2002

By Deborah Mendenhall, Post-Gazette Staff Writer

A bill that is moving through the Pennsylvania General Assembly would advance the tobacco industry's top legislative goal: Prevent local governments from enacting tough tobacco control laws.

The state Senate's Public Health and Welfare Committee could vote by tomorrow on House Bill 1501, which contains a pre-emption clause mandating that only the state may enact tobacco control legislation.

If pre-emption passes, Pennsylvania legislators would be playing into the hands of big tobacco, according to two national public health group reports.

"Pre-emption is the tobacco industry's top legislative goal," said an American Medical Association report, "Pre-emption: Taking the Local out of Tobacco Control."

The report, based on previously secret tobacco industry documents made public by the 1998 Master Settlement with states that had sued tobacco companies, reveals the industry's strategy to wipe out local control in favor of weak state laws that appear to safeguard public health, but actually benefit the industry. And the reason is money.

"Financial impact of smoking bans will be tremendous," the AMA report quotes a Philip Morris spokesman as saying. "Three-to-five fewer cigarettes per day per smoker will reduce annual manufacturer profits a billion dollars plus per year."

Tom Ryan, spokesman for Philip Morris USA, said he would let the tobacco documents speak for themselves. But he added that the company supports pre-emption because it provides uniform standards

According to the AMA report, 32 states have passed some form of pre-emption in the past 20 years, "gutting dozens of local tobacco control laws and preventing hundreds more from passing."

In May, the Pennsylvania House of Representatives passed House Bill 1501. After a heated floor debate, an amendment was made to allow Allegheny County's tough new tobacco control ordinance to remain in force, unaffected by the state pre-emption legislation. But that could change in the Senate.

Some local and national tobacco control advocates believe that Allegheny County's new law and the possibility that others would follow prompted the tobacco industry to push for pre-emption in Pennsylvania.

Speedy legislation

"I've never seen a bill run through this fast," said one legislative aide who asked not to be named.

It's a tactic the tobacco industry has used before, according to the two reports that were written by researchers who spent years poring over thousands of tobacco industry documents.

"We could never win at the local level," the AMA report quoted Victor Crawford, a Tobacco Institute lobbyist, as saying. "So, the Tobacco Institute and tobacco companies' first priority has always been to pre-empt the field ... the health advocates can't compete with me on a state level."

The same report quotes Tina Walls of Philip Morris saying, "While we're not married to any particular form of pre-emption language, we're dead serious about achieving pre-emption in all 50 states."

Many public health officials embraced pre-emption when it was first was introduced in the 1980s, believing the tobacco industry's assertions that a uniform state law was necessary to ensure local community compliance. Pre-emption was linked with keeping cigarettes out of the hands of children.

Laws were passed in many states before public health advocates realized that the state laws were weak and largely benefited the tobacco industry, said Robin Hobart, a public health consultant and the lead author of the AMA report.

"Pre-emption is a strategy the tobacco industry thought of in the late 1980s, aggressively pursued in the 1990s, and is pursuing with renewed vigor in the new millennium," said Hobart, who does work for the AMA and the Centers for Disease Controland Prevention's Office of Smoking and Health.

Public health groups have done an about-face on pre-emption. Those that oppose it now include the AMA, CDC, American Cancer Society, American Heart Association, American Lung Association, U.S. Department of Health and Human Services, National Academy of Sciences and the Working Group of State Attorneys General.

More commonly today, the tobacco industry pushes for pre-emption through third parties such as food, convenience store, beverage, restaurant and hotel member associations.

The covert process is detailed in another report, which was published in the June issue of the American Journal of Public Health.

A smoke screen?

Under the guise of keeping cigarettes out of the hands of children, the tobacco industry establishes youth anti-smoking programs, while their true intent is to pre-empt programs that work, improve their public relations image and further their legislative agenda, according to the report.

In one example, the tobacco industry fought a strong U.S. Food and Drug Administration youth anti-tobacco program, saying the industry's own "We Card" program was "making a measurable difference."

Anne Landman, lead author of the report, said researchers found no evidence that the tobacco industry evaluated its programs for effectiveness in reducing youth smoking, but rather measured them for how well they were doing as a public relations and legislative tool.

The tobacco industry also tries to influence legislators by paying honorariums, sponsoring trips, hosting parties and giving to the spouse's favorite charity, and sponsoring sporting events, Landman said.

Once enacted, pre-emption is difficult to remove. Only Maine has repealed pre-emption.

Among groups that support the House bill is the Pennsylvania Food Merchants Association, which worked with legislators to draft the bill.

In an interview in May, organization President David McCorkle said the merchants believe uniform statewide enforcement standards are necessary.

But others believe the bill will protect guilty merchants, while penalizing children and minimum-wage clerks.

Youths who buy tobacco can be fined from $100 to $1,000, have their driver's licenses suspended and face up to 75 hours of community service. Clerks who sell tobacco to children can be fined from $100 to $1,000.

While the bill provides fines from $100 to $5,000 for retailers who sell tobacco to underage youths, an "affirmative defense" provision lets them off the hook three times in two years if they can prove they've trained their clerks not to sell to children. After three fines, their license can be suspended for 30 days.

Those provisions make it nearly impossible for a retailer to be held responsible for illegal sales because compliance checks are conducted only three times a year, said Bill Godshall, executive director of Smokefree Pennsylvania.

Sen. Allyson Schwartz, D-Philadelphia, who is on the Public Health and Welfare Committee, calls the bill a "smokescreen for the tobacco industry" and said she would fight it "tooth-and-nail."

"It's presented as a way to reduce youth smoking, but would do just the opposite," she said.

Sen. Tim Murphy, R-Upper St. Clair, vice chairman of the Public Health and Welfare Committee, said he hasn't made up his mind about the bill.

Godshall and other health advocates had hoped to use Allegheny County's ordinance as a pattern for others.

"This bill is about the future," Godshall said. "It throws a bone to public health, but gives the next generation of Pennsylvania youth to the tobacco industry."