July 14, 2017

Stanton A. Glantz, PhD

Big tobacco is terrified of SF law ending sale of flavored and menthol tobacco products; the Empire Strikes Back

When I testified in support of Supervisor Malia Cohen’s ordinance ending the sale of flavored and menthol tobacco products in San Francisco, I talked about how it had the same feeling as in 1983 when I testified for San Francisco’s new smoking restriction law.  While laws restricting flavored tobacco product sales already existed, the San Francisco ordinance, now signed into law to take effect in April 2018, is the strongest to date and will serve as a model for other local governments looking to adopt legislation.
When I made the comparison I didn’t realize how closely history would be repeating itself.
As with Supervisor Cohen’s flavor/menthol law, back in 1983 the Francisco passed clean indoor air ordinance (which was not even 100% smokefree) attracted national attention, the tobacco companies knew that it could become the model for others around the country and world.  In a last-ditch effort to stop the law they forced a referendum (popular vote) on the law.
At the time, I saw this as an act of desperation.  After all, as today, the tobacco industry was dominating national politics and had state politics under control in California and elsewhere.  But at the local level, where legislators constituents can actually show up and counter the effects of lobbyists and big money, the industry was losing.  By forcing a referendum, the industry was trying to shift the field of play back to big money (for advertsing campaigns) in the hopes that they could overwhelm the grass-roots public health advoactes.
Well, it is happening again.
Almost immediately after Mayor Ed Lee signed the flavor/menthol ban into law, the San Francisco Chronicle reported that on July 10, 2017, a group of “concerned citizens” and local grocers, including Altria (Philip Morris) and RJ Reynolds were going to force a referendum on the new law. 
“Let’s Be Real San Francisco” filed notice with the City of San Francisco that it was gathering signatures to secure a referendum on the ordinance.  In their press release and statement to the news media, “Let’s Be Real” announced that is was composed of local citizens and businesses that oppose government overreach and want to protect freedom of choice.
The new committee looks just like the committee that Big Tobacco formed back in 1983 to try and repeal the clean indoor air law.  Back in 1983, the tobacco industry allocated $1,046,000 to repeal the ordinance, funneling the money through  local-sounding  San Franciscans Against Government Intrusion (SFAGI) campaign.
One thing that has changed since 1983 is a California law that requires that the money behind a political campaign needs to be disclosed to voters.  That’s why the legal name of “Let’s Be Real” is “Let’s Be Real San Francisco, A Coalition of Concerned Citizens Supporting Freedom of Choice, Adult Consumers, Community Leaders, and Neighborhood Small Businesses with Major Funding by R.J. Reynolds”.   
At least this time we won’t have to convince the public that it is really Big Tobacco behind the effort.
Far from a group of concerned locals, “Let’s Be Real” is composed of a tobacco industry official and attorneys from a law firm with longstanding ties to the industry. According to official filings the principal officer of the Committee is David Spross, not of San Francisco but of Winston-Salem, North Carolina. Spross is Vice President of State Government Relations at tobacco company RJ Reynolds. Attorneys from the well-connected law film Nielsen Merksamer (that represents RJ Reynolds and Altria) are serving as Treasurer and Assistant Treasurer of the campaign.   
Treasurer of “Let’s be Real” is Attorney Jason Kaune.  Kaune is not a San Francisco resident, and is working to repeal a flavor ban that protects minors while serving as Vice President of the Board of Trustees at the Orinda Union School District. Serving as Assistant Treasurer is Attorney Joel Aurora.
Nielsen Merksamer has helped the tobacco industry run political campaigns for decades at least our first attempt to create at a statewide-smoke-free law in 1978 with Proposition 5.
The e-cigarette advocacy groups are also tagging along, even though the politics is increasingly dominated by Big Tobacco. The nationwide Smoke-Free Alternatives Trade Association (SFATA) has endorsed “Let’s Be Real” and called for businesses to officially support the committee to “demonstrat[e] it is not just ‘big tobacco’ that wants this [ordinance] repealed in San Francisco.” Although wanting to show big tobacco is not the only supporter of repealing the ordinance,  members of the SFATA Board of Directors had previously worked in the tobacco industry.  In addition, the e-cigarette advocacy group Not Blowing Smoke has branded a portion its website to AdultsLikeFlavors.org and circulated information on the “Let’s Be Real” Committee and referendum campaign.
There are several important lessons from the 1983 referendum, which was called Proposition P.
The tobacco industry has vast resources and funding it will use to attack the flavors ordinance, making the strategy used by health advocates critical to successfully defending the law.  To fight back against the tobacco industry during the 1983 smoke-free referendum, advocates alerted the local news media to the tobacco industry’s role behind Proposition P.  (Thanks to the better campaign disclosure laws today, that’s already happened.)   
The “Let’s Be Real San Francisco” committee will need approximately 20,000 people to sign their petition by August 7 to place its repeal referendum on the ballot, which it will likely obtain because the tobacco companies can mobilize an army of paid signature gatherers.   These employees, however, don’t really care about the issue and, because they are paid by the signature, can be very sloppy.  Health advocates would do well to mobilize volunteers to show up where paid signature gatherers are collecting signatures and pass out information to people about who is behind the referendum and what the law really does. 
Even after the signatures are turned in, health advocates should make sure the City carefully checks that the signatures are valid, because paid gatherers collect lots of signatures from people who don’t actually live in San Francisco (sort of like the “concerned citizens” running the referendum). 
That’s will require resources by health advocates, but that will be a lot cheaper than fighting a multimillion dollar advertising campaign next June when the election fight  when it is on the ballot in June 2018. 
In any event, the mobilization and expenditure of resources by the tobacco industry to pursue a referendum proves it views this flavors ordinance as another turning point in local tobacco control legislation, that similar to 1983, will lead to the spread of similar laws across the country.
In the meantime, other communities should press ahead with their own laws modeled on San Francisco.
Tanner Wakefield on my staff assisted with preparing this blog post.

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