• 1993 U.S. Environmental Protection Agency (EPA) Report on Secondhand Smoke: The landmark 1993 EPA Report on Secondhand Smoke classified secondhand smoke as a Class A carcinogen - a cancer causing substance in humans. Opposition groups will sometimes claim that a federal judge, Judge William Osteen, threw out the report. It is important to note that Judge Osteen, who did invalidate parts of the EPA report, formerly worked for the tobacco industry and that, in any case, a federal appeals court vacated his decision in 2002, leaving the EPA report in full standing. Some of the most frequent and public challengers of the 1993 EPA Report and the science of secondhand smoke include Steven Milloy (a challenger to the science of secondhand smoke) John Luik (a former lobbyist for tobacco companies worldwide), and Richard Lerner (researcher and scientific advisor to Philip Morris).
  
  Since the 1993 EPA report, there have been even larger, more comprehensive studies by government agencies such as the California Environmental Protection Agency and the National Cancer Institute, all of which clearly validate the fact that secondhand smoke kills. In 2004, the U.S. Centers for Disease Control and Prevention issued a warning to the public, stating that persons with any risk of respiratory or heart problems should entirely avoid spaces where they may be exposed to secondhand smoke.
  
  
• Congressional Research Service (CRS) Report: Opposition representatives may mention the Congressional Research Service report from 1995, claiming that it too refutes the EPA's 1993 report on secondhand smoke. The tobacco industry has argued in the past that the CRS report "proves" that secondhand smoke poses no risk to nonsmokers. In truth, the CRS report does no such thing. The one aspect of the CRS report's findings that suggests secondhand smoke may not be as risky as indicated in the EPA report relies on a "threshold model," a method of analysis that assumes a hypothetical threshold below which exposure to secondhand smoke poses no risk. In fact, scientists and public health officials have never accepted the "threshold model" in regard to secondhand smoke, because there is no evidence that such a "safe" threshold exists. The CRS report affirms, rather than refutes, the EPA report's findings. Most importantly, one of the CRS study's authors, C. Stephen Redhead, told a Canadian newspaper that the tobacco industry has misrepresented the CRS report, and that it does not refute the EPA's report.¹
  
  
• Oak Ridge National Laboratory (ORNL): Local and state hospitality associations often mention studies conducted by the official sounding Oak Ridge National Laboratory that question the science of secondhand smoke. What they don't tell you is that these studies 1) are bought and paid for by the tobacco industry and 2) do not in any way reflect U.S. Government opinion. Oak Ridge National Laboratory is a Department of Energy lab that works on nuclear energy issues in its official capacity, but does private contracting work on the side. In the post-Cold War era of government downsizing, the U.S. government approved a plan to allow the National Laboratories to do private contracting work in order to help them cover costs. Big Tobacco took advantage of this opportunity to whitewash industry-funded science through an official sounding lab. Roger Jenkins, the lead tobacco industry-funded researcher at Oak Ridge, was even barred by a judge from testifying as an expert witness in a lawsuit in Florida, because he was considered not to be impartial because he had taken so much money from tobacco companies. Don't let policymakers and the media be fooled. Oak Ridge = Big Tobacco.
  
  
• World Health Organization (WHO): In 1998, the WHO released a report linking lung cancer to secondhand smoke exposure. However, local allies of Big Tobacco sometimes claim that this report concluded that secondhand smoke is not harmful. Nothing is further from the truth. Internal tobacco industry documents reveal plans to manipulate the findings of the WHO report out of fear that the report could have a significant impact on public opinion and smokefree policy efforts. The WHO issued a press release in 1998 informing the public that tobacco industry misinformation about the WHO's position on secondhand smoke should not be believed. Additionally, the International Agency on Cancer (IARC), the research division of WHO, issued an even more comprehensive report in 2002, which reaffirmed what we already know: secondhand smoke causes cancer in humans.
  
  
• Enstrom and Kabat Study: In May 2003, the British Medical Journal published a study by James Enstrom and Geoffrey Kabat that claims to find only a weak association between secondhand smoke exposure and heart disease and lung cancer. The study was funded by the now-defunct Center for Indoor Air Research, which was created by several tobacco companies for the stated purpose of perpetuating the idea that there is a controversy about the dangers of secondhand smoke. The American Cancer Society, whose data was used in the study, immediately spoke out against the study, reporting that their data had been misused and that the researchers used flawed methodology. The study looked at mortality from heart disease or lung cancer in nonsmokers who were married to smokers and covered a time period from 1959 to 1998. Some of the critical flaws that resulted in the false conclusion include not measuring for secondhand smoke exposure from any source other than the spouse; including the workplace (where smoking was extremely prevalent at the time); not taking into account either spouse's smoking status after 1972, though the study continued for 26 more years; and classifying the nonsmoking spouse as still exposed to secondhand smoke in that 26 year period, during which time the "smoking spouse" could have quit smoking or died, not to mention that they could have divorced or separated.

• "Oppression. We Have the Right to Choose. Using worker health as a reason is just plain dishonest. There are thousands of nonsmoking places to work in Pueblo and hundreds of those are bars and restaurants."
  
  
• "Thinkers, Beware! Some members of the Dallas City Council think that they should make our personal choices for us." "The Dallas City Council is considering legislation that would TOTALLY BAN smoking in ALL restaurants, and perhaps even ALL BARS and on OUTDOOR PATIOS because they think they know better than us."

• My Smokers' Rights, http://mysmokersrights.rjrt.com/SGRHome.jsp, is an R.J. Reynolds smoker recruitment program that sends out action alerts to mobilize opposition to smokefree air laws. These action alerts encourage smokers to write letters to the editor of their local newspaper and attend public hearings to create the appearance that there is vast opposition to going smokefree within a community.
  
  
• FORCES International, www.forces.org, often sends action alerts to generate noise in opposition to smokefree laws. They typically cite tobacco industry-funded research or messages. Although there is no direct evidence showing that FORCES is supported financially by the tobacco industry, it frequently parrots industry arguments and material.
  
  
• National Smokers Alliance (NSA) is a defunct front group originally created and funded by Philip Morris.⁴

It is important to note that legitimate, healthy public debate about the issue of secondhand smoke is a vital part of the public education process. Smokefree opponents in a community often have legitimate concerns about the impact of a smokefree law on their lives, and most of them are not affiliated with the tobacco industry. Not all smokers will support a smokefree law, but many will after becoming more educated about the health basis for such a law. After implementation, most smokefree opponents agree that the sky didn't fall and that stepping outside for a smoke wasn't the end of the world. Indeed, polls consistently show that smokers support smokefree laws and that their support increases the longer the laws are in effect. According to a 2004 survey of Maine residents, 54% of smokers polled supported the state's smokefree law, which includes bars and pool halls. This marked a 14-point increase in smoker support from before the smokefree law went into effect.⁵ Remember: We are not against smokers, just against smoking in ways that harm other people.

Front Groups

Front groups are generally business coalitions or associations funded by the tobacco industry, which appear in opposition shortly after a proposed law becomes public knowledge. These groups approach the local business community, predicting dire consequences from enactment of the law, such as by citing undocumented figures of loss of business in cities that have already passed laws.

The groups often hold meetings with local businesses, encouraging them to organize against the proposed law and providing assistance, such as posting flyers, circulating petitions, and sponsoring mail-in postcard campaigns. Representatives may testify at public hearings, but more often will attend without speaking, avoiding lawmakers' questions about their local membership, length of existence, and funding sources.

These groups have names like "Committee to Preserve Property Rights" (in Montrose, CO); "Valley Business Owners Inc." (in Mesa, AZ); and "Citizens Against Government Interference" (in Texas). Search the ANR Foundation's Tobacco Industry Tracking Database© at www.tidatabase.org for possible relationships between the tobacco industry and a new front group in your community.

Advocates should carefully study local campaign laws and seek to shine the light on the funding of these groups and their connections to the tobacco industry. However, we don't always have a "smoking gun" linking the tobacco industry to these groups, either due to lax local campaign finance laws, or money getting funneled through third parties. In any case, showing that the suspicious groups are pulling out all the familiar tricks will encourage people to take the Big Tobacco message delivered by these groups with a grain of salt.

Once your smokefree campaign has achieved some momentum, opposition groups will seek to distort the issue and divert the energy of the smokefree air coalition and lawmakers into policy debates which avoid the main point of creating smokefree enclosed public places and workplaces. These policy diversions are smoke screens that, at best, would merely give the appearance that something has been done to address the problem of secondhand smoke without actually doing so. Middle of the road lawmakers sometimes find these flawed alternatives appealing as a way for them to take some public credit for addressing the issue without requiring them to go against the will of the tobacco and hospitality industries.

Below are some of the highlights to anticipate. By educating others about these diversions ahead of time, you can take some of the surprise out of them. They are not new ideas and they are not community-specific ideas. They are tobacco industry fabrications for the purpose of undermining smokefree laws. You should educate others about these diversions, because the opposition will be actively promoting them.

Diversion Tactic: Introduce Other Issues

The opposition will often introduce other issues in a smokefree air campaign to imply that the real problem is something other than secondhand smoke, and/or that the creation of smokefree air is a "slippery slope" of government regulation. Smokefree opponents will often exclaim, "What's next? Cheeseburgers?" Cheeseburgers do not cause disease and death in non-cheeseburger eaters. The issue isn't about cheeseburgers, or even about smoking, per se. It's about smoking in ways that harm other people. It's about protecting innocent people who are being exposed to a leading cause of preventable death and disease. All relevant public health authorities have already clearly established the scientific basis for the need to protect nonsmokers from secondhand smoke, and the solution to that problem is already identified - smokefree air laws.

Diversion Tactic: Intimidation

The tobacco industry may try to intimidate public health departments from taking action by making false accusations of illegal lobbying and misuse of public funds. The tobacco companies seek to create the appearance of controversy in order to take the focus away from the real issue, which is the health impact of secondhand smoke. Once-secret tobacco industry documents outline this strategy of intimidation as a way to deter health departments from educating the community about the health hazards of secondhand smoke, because their effective public education programs create the desire to enact smokefree indoor air laws. In one document, tobacco industry officials planned to "Advocate the elimination or cutting of ASSIST funds by exposing the wasteful and inefficient use of ASSIST funds."⁶ Several states, including California, Washington, and Minnesota, were subjected to endless requests from individuals and organizations aligned with Big Tobacco. These allegations are always proven false, but succeed in interfering with program efforts and sometimes prevent health departments from carrying out their mandate to protect public health regarding the hazards of secondhand smoke.

Individuals connected with the tobacco industry may also attempt to use Freedom of Information Act (FOIA) requests to access public documents, including a health department's budget or policy plans. Health department staff and smokefree coalitions need to be familiar with local, state, and federal laws regarding document disclosure. Make sure all requests are in writing and get the inquirer's contact information. Contact your state program staff and ANR if you suspect an industry connection.

Diversion Tactic: Create a Task Force

Tobacco industry allies have in recent years sought to market the tobacco industry's ventilation agenda by encouraging the creation of study committees or task forces to review potential "mechanical barriers" and ventilation technology as a part of the consideration of smokefree air laws. Traditional tobacco industry allies in the hospitality industry use the public relations opportunities created by these task forces to divert attention away from the health issues relating to smokefree air laws and to focus attention instead on bogus ventilation technology. Even though ventilation, as a method of protecting people from the health risks attributable to secondhand smoke, has been rejected by every major, reputable scientific authority, the publicity stemming from these ventilation task forces creates the perception that there is a continuing controversy relating to the issue, when, in fact, no controversy really exists.

Health advocates should be vocal and unified on this subject: there is no reason to create a politically appointed body to investigate issues that have been answered already by science. Local governing bodies and state legislatures would be naïve to believe they could assemble a more qualified and better informed body of experts to review the issue than the U.S. Surgeon General, Centers of Disease Control and Prevention, EPA, National Institute for Occupational Safety and Health (NIOSH), American Society of Heating, Refrigeration, and Air-Conditioning Engineers (ASHRAE) and the other scientific and technical bodies that have analyzed the issues and reached the same conclusion.

Diversion Tactic: Suggest "Accommodation" Alternatives

Accommodation is the tobacco industry's policy goal of allowing people to smoke when nonsmokers are in the same place, ideally (from their perspective) at the same time, particularly in social settings such as bars, restaurants, and casinos. This goal serves to maintain an environment of social acceptability of smoking and to enable product consumption. The industry goal is for smokers to be able to light up anytime, anywhere to consume tobacco products and build Big Tobacco profits. Contact ANR for more information or assistance if any of the following provisions arise within your community:

• Red Light-Green Light: A "Red Light-Green Light" law merely requires the posting of signs that say whether or not smoking is allowed in an establishment. It does nothing to create smokefree indoor areas and it ties into the idea that workers and nonsmokers give their "informed consent" to be in a place where smoking is allowed. If a "Red Light-Green Light" law is proposed in your town, you should point out that it is merely a diversion away from effective policy. The program was pilot-tested as the once secret "Pittsburgh Project," created by Philip Morris and its public relations firm Burson-Marsteller. The name is "Red Light-Green Light" because the sign for smokefree air is red and phrased in the negative, e.g., "Smoking Banned," whereas the sign for establishments that permit smoking is green, giving a subtle cue that allowing smoking is the more acceptable alternative.
  
  
• Minors Only/Hours Provisions: Advocates can expect to hear calls for a "reasonable compromise," and proposals for regulating smoking only when children are present or during certain hours. The problem is that these types of laws do not protect people's health. Everyone is harmed by secondhand smoke, not just children. Also, these provisions do not take into account that smoke lingers in a room for as long as two weeks. Just because active smoking is not occurring in an enclosed area at a given moment does not mean that people in the room are not being exposed to secondhand smoke. A portion of smoke is absorbed by the surfaces within a room and is later off-gassed, or released back into the air, as toxic chemical compounds, many of which are odorless. Additionally, these types of laws are practically impossible to enforce, which is exactly why the tobacco industry likes them as alternatives to meaningful smokefree air laws.

Diversion Tactic: Propose Ventilation as a Solution

The bottom line is that ventilation does not work. There is no safe level of exposure to secondhand smoke, and ventilation systems address only odor, not the health risks caused by secondhand smoke exposure. Despite this fact, tobacco companies and their allies have an organized effort to promote ventilation systems as an alternative to smokefree air laws.

For the tobacco industry, there are several significant benefits to promoting ventilation: 1) ventilation reduces the odor of smoke and can reduce the public demand for smokefree air (out of sight, out of mind); 2) smokers and nonsmokers are kept in close proximity, which helps to maintain the social acceptability of smoking; and 3) once installed, these systems effectively institutionalize smoking sections and create a significant financial barrier to enacting a more comprehensive smokefree air law in the future because business owners are invested in maintaining that status quo and protecting their investment in an expensive ventilation system.

Compromises in laws that allow smoking in "fully enclosed, separately ventilated smoking rooms" are problematic. Even if a room is separate from the rest of an establishment, ventilation does not eliminate the health hazards of secondhand smoke. Smoking rooms present a particular risk to the people inside the smoking rooms and the workers who have to serve in and clean the rooms. Numerous air filtration companies (including The Sharper Image and Brookstone) have publicly stated that no ventilation system can protect people from the death and disease caused by secondhand smoke exposure, and many such companies now post health disclaimers on their product packaging. See The Sharper Image's secondhand smoke disclaimer at http://www.no-smoke.org/images/ionicbreezead.jpg.

In June 2005, the ASHRAE Board of Directors unanimously adopted a position document on secondhand smoke that reaffirms that there is no safe level of exposure to secondhand smoke; that ventilation and other air cleaning systems cannot eliminate all the health risks caused by secondhand smoke exposure; and that secondhand smoke does not belong indoors. Additionally, its ventilation standard for "acceptable indoor air quality" specifies ventilation rates and procedures for 100% smokefree environments only.

Health advocates should inform the public, lawmakers, and the media that ventilation systems and smoking rooms do not protect people from secondhand smoke; otherwise they may not understand why it is not an acceptable policy compromise.

Just because local lawmakers enact a smokefree law does not mean that the work is over. The tobacco industry will continue to seek ways to undermine a smokefree law as long as the opportunity exists. The opposition's tricks for post-enactment are usually planned well in advance and health advocates must be prepared to anticipate these after-school antics.

Attempt to Delay or Prevent Implementation

The tobacco industry knows that once smokefree air laws have been in effect for a few months, the public quickly adapts and does not want to revert to the smoke-filled days of the past. Bottom line: Smokefree environments are popular. The industry's number one goal is to keep the law from going into effect and opposition groups will seek to convince lawmakers to repeal the law before it goes into effect.

Although some time is needed after enactment to prepare for implementation, a delay of more than 30 days can increase the probability of dirty tricks. These include the threat of lawsuits and petitions to repeal the law. The industry's emphasis is on creating a feeling of uncertainty within the enacting body, so it will reconsider its own decision.

Create a Sense of Controversy

After implementation of a smokefree air law, tobacco industry allies often pursue an earned media campaign that seeks to create the impression that the new law is highly controversial and is dividing the community. The truth is that such laws are typically popular, and it's the tobacco industry, not the new law, that is stirring up a sense of division. Smokefree advocates and health department staff can expect to see the media focus on isolated cases of noncompliance. If the opposition plans to collect signatures and seeks to overturn the new law via the ballot, the negative media generated by the opposition can set the stage for a campaign to defeat the measure on the ballot by reducing support among likely voters or reducing voter turnout. This is why it is important to plan an organized campaign after the law is in effect to generate favorable media and maintain strong public support for the law.

Claim Economic Loss

About 30-60 days after a law is in effect, advocates can expect to hear unsubstantiated, dire claims of economic loss, usually by restaurant and bar owners. Because it takes a full business cycle (at least one year) to assess the economic impact of a law, after which it will be shown that there were no adverse consequences, the opposition's goal is to create a sense of "emergency," urging lawmakers to repeal the law immediately before every business owner in town is out of business. These tobacco industry-fueled claims can also "poison the well" in neighboring communities that may be considering similar smokefree air legislation.

Negative media is often the result of an organized and coordinated effort by the tobacco industry through its public relations firms and campaign consultants and is a major campaign step that should be anticipated by health advocates. Coalitions must plan for a sustained campaign to remind the public that the law is popular, compliance is high, and the majority of hospitality establishment owners are pleased with the new smokefree environment. This will help remind people to take any negative claims with a healthy grain of salt.

Initiate Litigation

The tobacco industry has access to hundreds of lawyers and litigation is frequently used to challenge smokefree air laws. Usually, the industry seeks an injunction to prevent implementation of the law during the course of a lawsuit, which could last for months or even years. Communities almost always win these legal challenges, but there are issues that coalitions should plan for well in advance, including identifying funding for an amicus brief and providing information to the city attorney's office about the likely types of challenges and the results of litigation elsewhere.

Propose Ballot Measures

Depending on your local and state law, opposition groups and the tobacco industry may have the option of seeking to repeal the law via the ballot. Referendum challenges usually accompany the first strong smokefree air law in a state, but more and more, smokefree air measures are appearing on the ballot. For the tobacco industry, it is worth doing everything possible to keep a strong smokefree law from going into effect, because of the domino effect that one law will eventually have on other communities in the state. If lawmakers are considering sending a proposed law to the ballot, send a steadfast message to them that they are abdicating their responsibilities to the public. Lawmakers are elected to and swear to protect the public health and well-being, so they must follow through with that responsibility.

Such challenges rarely succeed, but they can set a negative example for other communities in a state or even in other states and make them more reluctant to tackle the issue. Before enactment of a smokefree air law, advocates should clearly think through how a ballot challenge would work: What are the local election laws? How much time would the opposition have to gather signatures? Who determines the wording of ballot questions? When would the vote occur-at a special election or the next regularly scheduled one? What financial and other resources are available to support the law?

If polling shows weak support for a smokefree air law, or if the tobacco industry perceives that a coalition does not have strong grassroots capacity among voters, the balance of power can shift to the opposition because it has unlimited access to unrestricted money.

In Central Point, Oregon and in Pueblo, Colorado, opponents sought not only to repeal smokefree air laws, but also to recall the elected officials who voted for the laws. Before enactment of a smokefree air law, it is important for the coalition to assess the level of public support and the organized grassroots capacity for defending both the law and the supportive officials on the ballot. The greatest strength of a smokefree air coalition is high public support and the ability to mobilize its people power.

Attempt To Unseat Supportive Lawmakers

If you do not like the way an elected official votes, try to vote him or her out of office in the next election. This happens in any policy advocacy area and forms the basis of officeholder accountability to voters. If the tobacco industry and its allies do not like the way certain lawmakers voted on smokefree air legislation, they may seek to run a slate of candidates against them in the next election. It is important for a coalition to have the ability to uphold lawmakers who support smokefree air and to hold others accountable. This is how democracy works.

Seek Preemption

Yes…they will try it again. Back to the top!

It is important to develop a healthy skepticism toward information and its sources, and to ask for documentation of any claims. Always consider the source of the information. Who is more credible on health information - an industry protecting its profits or the medical community? Are the anecdotal claims of informal surveys more compelling than the scientific analysis of Board of Equalizations tax receipt data? Look carefully at any opposition activity. Who is local and who is new to the scene? Ask groups about their local membership and funding sources.

Make good use of local media to expose tobacco industry activity in your community. Often, a local reporter will be interested in doing an investigative journalism piece on an out-of-state corporation's attempts to subvert local efforts to enact a smokefree air law. Letters to the editor, editorials, human-interest stories, and investigative pieces are all very effective tools to engage the public in the local debate and campaign.

The tobacco industry will be sure to learn all that they can about your community and campaign plans, and it is very important that you do the same. Although the tobacco industry will put up strong opposition, a local smokefree air law has an excellent chance of succeeding if the coalition is informed, organized, strategic, and diligent in its efforts to engage the community in the fight to protect the public health.

© Americans for Nonsmokers' Rights, 1996. Revised 2003, 2004, 2006.

REFERENCES

1. Jalsevac, P., "Second-hand smoke study misused, scientist says," Kitchener-Waterloo Record: B1, February 8, 1996.
2. Alamar, B.; Glantz, SA. "Smoke-Free Ordinances Increase Restaurant Profit and Value." Contemporary Economic Policy, 22(4): 520-525, October 2004.
3. Behan, D.F.; Eriksen, M.P.; Lin, Y., "Economic Effects of Environmental Tobacco Smoke," Society of Actuaries, March 31, 2005. Download at http://www.soa.org/ccm/content/areas-of-practice/life-insurance/research/economic-effects-of-environmental-tobacco-smoke-SOA/?printerFriendly=1. Accessed on August 17, 2005.
4. [n.a.], "National Smoker's Alliance Exposed: A Report on the Activities of Philip Morris' #1 Front Group," ANR, January 1999.
5. [n.a.], "A Snapshot of Perspectives on Second-Hand Smoke in the Workplace," Critical Insights, September 2004.
6. Hays; Hays; Wilson. "Analysis and Recommendations Concerning Selected State ASSIST Projects," Tobacco Institute, Bates TI13850258-0300. Accessed on November 16, 2004. Download at http://legacy.library.ucsf.edu/tid/zqk86d00.