Local Tobacco Control Efforts
Overview:
Historically, the greatest deterrents to local tobacco control efforts have been 1) lack of policy guidance; and 2) tobacco industry legal intimidation. To overcome these obstacles, in 1995, the Massachusetts Tobacco Control Program brought together the Community Assistance Statewide Team ("CAST"), a group of public health professionals and municipal trade associations working in partnership with attorneys. The central purpose of CAST has been to provide policy guidance and legal education support to boards of health and community-based tobacco control programs. Meeting as a sub-group of CAST, the attorney members of CAST analyze local tobacco control initiatives to make sure that they are 1) enacted in a legally valid manner, and 2) drafted so as to withstand probable tobacco industry challenge.
Collaborative efforts between the public health professionals, municipal trade associations and attorneys who work on CAST have been enormously successful in building the capacity of municipalities and local health agencies to work in tobacco control. In 1992, a mere 6 percent of the Commonwealth's population was covered by local youth access measures, and local smoking restrictions covered 17 percent. By providing legal education and policy guidance, CAST empowered local officials and tobacco control networks to draft and enact high-quality tobacco control measures. CAST's coordinating function and educational efforts paid huge dividends. By mid-1998, more than 80 percent of the population was covered by youth access measures, and smoking restrictions covered 66 percent. Many of these measures are among the strongest in the country. Legal challenges by the tobacco industry and its surrogates to this tidal wave of tough laws have been few, far between, and unsuccessful.
Background
Documents uncovered in the Minnesota Attorney General's lawsuit show that, in 1992, the tobacco industry specifically targeted community-based tobacco control efforts in Massachusetts. Unfortunately, the tobacco industry and its allies executed this once secret plan. During the last five years, the tobacco industry has coordinated a well-orchestrated campaign against community-based tobacco control efforts in Massachusetts, using campaign contributions to state and local politicians, and acting through industry proxies/astro-turf roots groups like the New England Convenience Store Association and the Massachusetts Restaurant Association.
The tobacco industry targeted Massachusetts, in all likelihood, because of the passage of Question One in 1992. In November, 1992, the American Cancer Society, the Massachusetts Medical Society, the Massachusetts Association of HMOs, and others, including the Massachusetts Group Against Smoking Pollution ("GASP"), an ally of the Tobacco Control Resource Center ("TCRC"), were instrumental in passing Question One, the ballot initiative that funds the Massachusetts Tobacco Control Program ("MTCP") each year. From its inception, the MTCP has operated on a community-based model. For example, the program has funded numerous local agencies, primarily boards of health and health departments to undertake tobacco control activities. CAST has served as a coordinating body and support center for these local programs, which have worked 1) to reduce youth access to tobacco products by various means including through the promulgation and enforcement of regulations and ordinances; and 2) to reduce ETS through the passage and enforcement of regulations and ordinances.
Passage of Question One and the Early Years of Local Tobacco Control
Tobacco law is not a well-known specialty. It requires knowledge in three primary areas: 1) federal tobacco control laws; 2) state tobacco control law; and 3) local government law. Specifically, the helpful attorney needs to understand what local government bodies have the power to enact tobacco control laws and needs to understand what limits federal and state law may place on that local authority. Most attorneys, even city solicitors or town counsel, do not possess expertise in all three areas. That left many local advocates and policy makers on their own. Although there were some courageous and successful local efforts, many other local officials were either intimidated by legal threats from the tobacco industry or sued after enacting local laws that were vulnerable to a court challenge.
In 1994, for example, the Attleboro Health Department passed a tobacco control regulation that included restrictions on advertising. Passage of the regulation involved the mobilization of the community and the resources and time of dedicated tobacco control professionals at the state and local level. Local merchants and the New England Wholesale Marketers Association sued the board of health. The problem with the regulation was that it was preempted by the Federal Cigarette Labeling and Advertising Act ("FCLAA") and also violated the state Constitution. The FCLAA prohibits any entity other than Congress from enacting restrictions on tobacco advertising that are based on smoking and health. A federal judge ultimately struck down the Attleboro regulation on state constitutional grounds. Other communities were passing laws with a number of legal and drafting flaws. Because any local measure that violated state or federal law would, in the end, be a nullity, it was clear that the community organizing and education that were the promise of the new MTCP also needed to be supported by legal and policy guidance. To overcome these problems, the Massachusetts Tobacco Control Program pursued a graduated technical assistance strategy.
The Dawn of CAST
In 1995, the MTCP formed the Community Assistance Statewide Team ("CAST’). The central purpose of CAST is to provide policy guidance and legal education support to community based tobacco control programs in our state. CAST began as one group with a number of participants from the following organizations: 1) the Department of Public Health/Massachusetts Tobacco Control Program; 2) Tobacco Control Resource Center, Inc.; 3) Massachusetts Association of Health Boards; and 4) Massachusetts Municipal Association.
Since its inception, CAST has evolved into two groups—the original group known simply as CAST or "Full CAST" and a subgroup of attorneys from "Full CAST" which is known as the "CAST attorneys." "Full CAST" meets twice per month to coordinate tobacco control policy. The CAST attorneys meet twice per month to coordinate legal education support to community based tobacco control programs.
CAST Plays Offense
For the past three years, CAST has worked, through the following process, to support community-based efforts to pass numerous regulations, ordinances and by-laws regulating the sale, distribution and use of tobacco in Massachusetts. Community-based programs – including local boards of health, community-based coalitions and local governments – draft regulations, ordinances, and/or by-laws. Dealing with each community in turn, attorneys from the Tobacco Control Resource Center at Northeastern University and two trade associations – the Massachusetts Association of Health Boards and the Massachusetts Municipal Association – then work with the MTCP's Regional Field Directors and community-based programs to educate local governmental bodies and the community for consideration of the proposed local measure. This draft local measure is also distributed to CAST's team of attorneys. CAST attorneys review each draft measure individually. They then meet as a group to discuss their suggested changes. Individual CAST attorneys take turns getting back to community-based tobacco control programs with suggested changes. Three of CAST's six attorneys also attend local public hearings to provide on-site technical assistance during the enactment phase of passing a local measure. For instance, at some hearings, board members seek to amend certain provisions of proposed regulations. Attorneys present at the hearing can quickly review the proposed change to determine whether it creates a legal problem.
In addition to this regulation review work, CAST attorneys regularly provide trainings to local programs on legal and policy issues.
The Role of the Tobacco Control Resource Center, Inc.
In addition to participating in the full CAST and Cast attorney processes, attorneys at the Tobacco Control Resource Center – national experts who have published widely in the fields of tobacco litigation and tobacco control law – build and enrich the capacity of community-based tobacco control programs to discover and pursue the unique tobacco control strategies that are best adapted to the needs of the communities and constituencies they serve. TCRC performs local policy research in an ever-changing legal environment so that community-based tobacco control programs can make fully informed decisions about how to handle new tobacco control situations and problems as they arise. TCRC attorneys also closely follow the progress of all innovative tobacco control policies around the nation and report on them in Tobacco Control Update, TCRC's quarterly magazine. Finally, TCRC attorneys build connections to national, state and local decision makers in government, other nonprofit groups (such as the National Center for Tobacco-Free Kids, the American Cancer Society, and Americans for Nonsmokers' Rights) and this nation's various public health communities so that these groups can achieve the mutual understanding necessary for the pursuit of effective and coordinated tobacco control strategies.
CAST Plays Defense
That the tobacco industry and its allies would make every attempt to block the passage of strong local laws was not a surprise. Indeed, this is the industry’s classic strategy, and has been confirmed by disclosure of documents in the Minnesota AG case. CAST undertook to meet this opposition and has done so. In 1997 and 1998, CAST attorneys worked to educate state and local policymakers to avoid the passage of a state law that would have seriously undermined the local regulation of the sale of tobacco products in Massachusetts. For example, CAST attorneys spoke out at state coalition meetings, made extensive written and oral comments on drafts of the legislation, and worked with the state coalition to devise a policy statement that made clear that the coalition was generally opposed to the passage of comprehensive statewide youth access legislation, especially preemptive or weak legislation.
Recent Activities
TCRC attorneys recently produced an analysis of the Multistate Master Settlement Agreement with funding from the American Cancer Society. This analysis may be viewed in full at http://www.tobacco.neu.edu/msa/index.html
TCRC attorneys have also played a pivotal role in the debate over how settlement dollars will be spent in Massachusetts. A plan unveiled by the Massachusetts Senate in early June will dedicate approximately 24% of annual expenditures from tobacco settlement proceeds toward tobacco control programs. The plan specifically
- Targets $26 million in annual expenditures for tobacco control initiatives in the first year, and $33.5 million in future years.
- Dedicates $7 million for enforcement grants.
- Funds tobacco cessation programs at $9 million.
- Appropriates $4 million specifically for scientific and policy research grants to evaluate current anti-tobacco efforts and develop new ones. (Northeastern was specifically mentioned by Senator Montigny as a likely recipient of some of these research funds.)
- Appropriates $6 million to combat the industry’s successful media campaigns targeted at minority communities.
This tobacco control spending mirrors the spending called for in An Action Plan to Protect the Health of Massachusetts Citizens and Their Children: Using Tobacco Settlement Funds to Reduce the Health/Economic Costs of Tobacco-Related Disease in the Commonwealth ("MCHF Tobacco Settlement Blueprint"), a document prepared by the Tobacco Control Resource Center, Inc. ("TCRC"), at Northeastern University School of Law. Graham Kelder, TCRC's Managing Attorney, and Laura Hermer, a staff attorney at TCRC, drafted the MCHF Tobacco Settlement Blueprint, which was commissioned by Lori Fresina, the Director of Government Affairs for the American Cancer Society, New England Division. Some of the language in the Senate budget is lifted directly from the Blueprint.
Lessons Learned
Garner resources: There are low-cost or no-cost ways to forge partnerships between attorneys and public health professionals through the use of pro bono attorneys, law professors, law school legal clinics, or partnerships with state attorneys general. Tobacco control law is an interesting and morally-gratifying field and these alone can often serve as sufficient inducement to get attorneys to work on the issue. The best approach, however, is to find at least limited funding to create and maintain a team of attorneys who can then partner with public health professionals and/or tobacco control advocates. This funding can be obtained through the passage of a tobacco excise tax, an influx of state settlement money from state tobacco medical cost reimbursement suits or by any other suitable means of fundraising. Unify: The people of the Iroquois Confederacy used to demonstrate the value of unity by breaking a single arrow over their knee. They would then bundle five arrows together representing the five nations of the Confederacy and show how this bundle of arrows could not be broken. This sort of unity is absolutely essential to the success of the partnership proposed here. State tobacco control programs, relevant statewide trade associations, and attorneys with expertise in tobacco control legal issues must unify around common issues and work together toward common goals. For example, CAST attorneys were instrumental in unifying the Massachusetts Coalition for a Healthy Future and the MTCP. Set up procedures and criteria: Attorneys and public health professionals must work together to develop procedures for and conduct regular meetings of the policy/legal team. They must also 1) establish criteria for evaluating the legal and policy merits of any state or local tobacco control initiative on which the team can agree; and 2) implement a system to provide prompt policy and legal education guidance to the state tobacco control program, state legislators, and local tobacco control policy makers; Pass strong measures and use them as examples: Attorneys and public health professionals must make good use of their collective expertise to support the passage of strong local tobacco control measures that are immune to industry challenge. Once this legal and public health partnership has supported the passage of a few excellent local measures, these measures can be used as models and/or examples for other communities. This was done when CAST attorneys published a deskbook on ETS in July 1998 that contained several sample regulations based on "best practice" regulations garnered from a variety of communities. These strong, legally sound local laws can also be used as an example of why weak, preemptive state laws supported by the tobacco industry and its surrogates are unnecessary and counterproductive. Focus expertise on the common opponent: the tobacco industry: Tobacco control professionals and lawyers can help each other to understand their common opponent: the tobacco industry. The tobacco industry and its surrogates are well-funded, well-organized and quite willing to challenge in court any tobacco control law that is in any way vulnerable to attack. Public health professionals often bring a wealth of community-organizing experience to the process of community-based tobacco control. Attorneys can provide a crucial missing element by bringing a knowledge of state, federal local and tobacco control law to the table. Establish and maintain connections to experts: Finally, it's important for local officials and tobacco control professionals to establish and maintain connections with recognized experts in the fields of tobacco control law and policy such as the Tobacco Control Resource Center, Inc., the American Cancer Society, Americans for Nonsmokers' Rights, the National Center for Tobacco-Free Kids; and the Advocacy Institute.