#188 Smoking and Tobacco Products. Local
Preemption. Statewide Regulation.

by Steve Scott
Copyright 1994, California Journal

An initiative statute that pre empts local smoking ordinances and
replaces them with a single, limited statewide ban that allows regulated
smoking in most public places Background: Local governments have been
wrestling for years with the question of how to regulate smoking in the
workplace and in public areas. Several have adopted individual local
ordinances with varying degrees of stringency. Some allow several exemptions,
while others, such as those in Davis and Berkeley, are virtually complete
indoor smoking bans. Tobacco companies, restaurant owners and many in the
tourism industry dislike these ordinances, and have urged states to pre empt
them by either banning them altogether or by imposing their own standards.
Last year, legislation was introduced, with the support of the state's
restaurant association, that would essentially ban smoking in the workplace.
While several exemptions were added by the Legislature, AB 13, which was
signed into law in July of this year, is considered the strongest indoor
smoking law in the country. It also retains the right of local governments to
enact even stricter anti smoking laws. Tobacco companies and some restaurant
and hotel owners tried to block the law in the Legislature by offering a
counter measure that included the local pre emption provision. Failing that,
they formed a coalition and, with financial support from tobacco giant Philip
Morris, circulated petitions to qualify what became Proposition 188. After
signatures had been gathered, however, the petitions themselves were
challenged as misleading, and among the challengers was Acting Secretary of
State Anthony Miller the Democratic nominee for secretary of state. Once
Proposition 188 qualified for the ballot, Miller went to court to have it
removed, charging that many of those who signed petitions were not informed
about Philip Morris' involvement. Miller's petition was thrown out of court.

Proposal: This initiative would supersede and repeal all local smoking
ordinances, as well as the new statewide indoor smoking law signed this July.
In their places would be one statewide standard that permits smoking in bars,
gambling and sports facilities. Smoking sections would be permitted in
restaurants, private offices, and business conference rooms with modest
conditions. The location of tobacco vending machines and billboards would be
regulated and the penalty for selling tobacco to minors would increase. The
measure could be amended by a two thirds vote of the Legislature. The
legislative analyst predicts likely, but unknown, increases on state and
local health care costs and also increases in state tobacco tax revenues.

Arguments For: Proponents include the tobacco company Philip Morris, the
San Francisco Hotel Association, the International Hispanic Chamber of
Commerce, numerous individual restaurants, hotels and labor organizations.
They argue that Proposition 188 offers a balanced approach to indoor smoking
by allowing smoking in restaurants and other workplace locations that are
properly ventilated. They maintain the current system of local ordinances
creates a patchwork that harms businesses in areas where stricter ordinances
are enforced. They also argue that stricter laws, such as the newly signed
law, go too far, infringing on the rights of businesses that have smokers or
want to allow smoking. They contend anti smoking advocates opposing the
measure are zealots, and won't be truly happy until smoking is banned

Arguments Against: Opponents include former Surgeon General C. Everett
Koop, the American Lung Association, the American Heart Association, the
American Cancer Society, the California State PTA, the California Nurses
Association, the California Medical Association, various public health
officers, consumer senior and law enforcement organizations. They argue that
Proposition 188 is being misrepresented by its supporters as an anti smoking
law. In truth, argue opponents, the initiative will make it impossible to
pass any law restricting access to secondhand smoke, as the law virtually
guarantees that some smoking areas will be present in all workplaces. They
argue that the proposed ventilation standards are ineffective. The local
pre emption clause, they argue, has been a tobacco industry goal for a
decade, and the fact that Philip Morris, the nation's largest tobacco
company, is bankrolling the initiative proves that it is a "Trojan Horse."


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