Tobacco Institute lobbyist Anthony Troy described the bill to the press as legalizing “vigilantism,” stating that he had never heard of a situation where “private citizens are deputized and allowed to go out and collect fines on behalf of the state.”Industry allies were also upset because Cohen’s introduction of HB 1796 was viewed as a reneging on the verbal agreement that there would be a “two year cooling off period” after the passage of the VICAA, in which no further legislation would be introduced on the subject. Anne Donley argued that the industry had broken their promise first, by allowing Del. Willard R. Finney and Del. Charles R. Hawkins to introduce a bill that sought to exclude open elevators from the VICAA, a move that Donley characterized as “a vehicle for weakening the act.”Industry lobbyists countered that they had not noticed the bill, and when they were made aware of it, they attempted to get it withdrawn. The attempt was not successful, as Finney’s bill, HB 1980 was adopted to exclude any “open hoist elevator, not intended for use by the public” from the provisions of the VICAA.In 1993, Cohen again attempted to strengthen the VICAA, introducing HB 2431 to remove preemption language. It also allowed any workplace to become completely smoke free and prohibited smoking completely in more public places and required that at least half of any restaurant be non-smoking. Several groups supported Cohen’s 1993 bill,mobile racking system including the TriAgency Council, the Medical Society of Virginia, the Virginia Nurses Association and GASP.
The Tri-Agency Council released a statement through their spokesperson, Dr. Richard Brandt, pointing to the 1992 US Environmental Protection Agency Report that found secondhand smoke was a Class A carcinogen, as a main reason to push for the amendment at that time.HB 2431 was referred to the House General Laws committee and reported out of committee without amendment. However, when it reached the House Counties, Cities & Towns Committee, the bill was amended to reinstate preemption and remove language that permitted public places to become completely smoke free. In addition, the amendment would have allowed smoking in employee areas of day care facilities, nursery schools and kindergartens. HB 2431, as amended, passed in the House 63-36. The Senate General Laws Committee added private schools and daycare centers to the list of venues where smoking was restricted. The Senate rejected the Committee Substitute bill and passed the House version 39-0. As a result of the changes Del. Cohen requested that the bill be recalled and the Senate voted 27-9 to strike it from the calendar.The smoker’s rights movement sprung out of an alliance between the American Civil Liberties Union and the tobacco industry in the wake of a 1988 survey by the Administrative Management Society that showed that 6% of companies in the United States were refusing to hire smokers.This prompted the ACLU, with undisclosed financial support from the tobacco industry,172 to work with the industry to seek the implementation of so-called “smokers’-rights” laws in many states in the 1980s and early 1990s. The ACLU justified their actions by claiming that they were working to protect Americans from employment discrimination, or as they referred to it, “lifestyle discrimination,” due to an activity done off duty.
The push for smokers’ rights legislation coincided with a tobacco industry campaign to create smokers’ rights groups. These groups were intended to have the appearance of spontaneous public support against “discrimination” against smokers, but their true purpose was to provide a local focal point for tobacco industry resources to fight local tobacco control legislation. They were also intended to be a credible voice for the tobacco industry, as industry conducted polling showed the public did not feel that the tobacco industry was credible.In 1988, the Tobacco Institute was unhappy with the three localities that had disallowed the employment of police or firefighters who smoked, something the Institute viewed as employment discrimination.After a planning period, Philip Morris, R.J. Reynolds and American Tobacco developed legislation to prohibit workplace discrimination based on smoking status.The industry’s bill, HB 1000, was carried by Del. Franklin Hall , which also sought to prohibit employer smoking restrictions on employees during nonworking hours unless there was a bonafide occupational requirement or a collective bargaining agreement.The bill was introduced during the 1990 session but never acted upon, and died when the legislature adjourned without carrying it over.The next attempt at smokers’ rights legislation came during the 1993 session, when Sen. Virgil Goode, introduced SB 859 to prohibit job discrimination based on the use of tobacco products by potential employees outside of the scope of their employment.Goode’s bill would have also exempted law enforcement officers, firefighters, religious organizations, and nonprofits working on health or policy issues related to cancer, lung disease, air pollution, or smoking. In this original form of the bill, it broadly defined discrimination, but it was amended in the House to limit the application of the bill to hiring, firing, and compensation situations. Goode introduced the bill in order to protect people who, in his words, want to leave work “to go home, close the door and take a puff” without needing to fear that they would lose their jobs.
Despite this rhetoric, other legislators felt that it was misleading to describe discrimination in these terms when, as Sen. Richard Saslaw noted, smokers cause a disproportionate amount of productivity loss through missed days of work and also cost more to insure, both serious considerations for an employer and the state in general.This debate played out in the media, with various legislators adopting variations of these respective positions. Possibly the strongest argument against the bill was made by Del. Jerrauld Jones who worried that it would make smokers a “protected class” under Virginia law. Jones and other lawmakers were wary of elevating the class of “smokers” to a similar level as classes based on race, gender, or religion.In April, the bill passed both the House and Senate. Virginia ASSIST, the Tri-Agency Council, and GASP all opposed the measure and urged Gov. Wilder to veto the bill.Wilder did veto it, although it was ostensibly because he was concerned about creating a protected class under Virginia law, as Del. Jones had argued. Wilder’s action drew immediate condemnation from Philip Morris, whose President and CEO William Campbell wrote Wilder an angry letter. Wilder’s concern about creating a new protected class was singled out for particular criticism. Campbell described the bill as one about “privacy and personal liberties … not about creating a new constitutionally protected class.” Campbell was also very clear that his letter reflected the position of his “11,000 colleagues at Philip Morris USA,” and obliquely claimed that the veto would put jobs at risk. Despite strong and successful efforts by all-volunteer GASP to attract and sustain media attention to the issue of clean indoor air,industrial shelving system the VICAA was ultimately a victory for the tobacco industry and their affiliates. Preemptive and relatively weak, the VICAA would hamper future tobacco control efforts by forestalling local clean indoor air measures. Considering the relative success of local clean indoor air measures before the enactment of the VICAA despite Dillon’s Rule, and the success of local cigarette excise taxes before and after the VICAA, local action was an effective tobacco control technique in Virginia as it was and has been nationally. Preemption forced tobacco control advocates to focus on statewide tobacco control measures that the tobacco industry had been more successful at countering. In addition, tobacco control advocates failed to capitalize on strong indicators of support for tobacco control measures. Polling of the public and of legislators prior to the enactment of the VICAA showed favorable attitudes towards tobacco control, but this information was not effectively leveraged to inform legislators of the opinions of their constituents. Thus, even strong legislative champions of the advocates, like Del. Cohen, supported the relatively weak provisions of the VICAA. Cohen said of the VICAA “half a loaf is better than nothing,” but despite Cohen’s good intentions the VICAA harmed future tobacco control efforts by preventing local action and despite attempts to strengthen its terms. Divisions among advocates, particularly between GASP and the Tri-Agency Council, also harmed tobacco control efforts. Concerns by the voluntary health organizations about alienating their donor base hampered the Tri-Agency Council’s willingness to support strong, comprehensive clean indoor air laws. Tri-Agency Council, favoring milder measures, naively supported Sen. Macfarlane despite his well-known antipathy towards tobacco control measures , while GASP supported legislation introduced by Del. Cohen and Sen.
Michie that were considerably more comprehensive. Because of this, the tobacco advocates were split in the face of unified tobacco industry opposition, and the tobacco industry was able to guide the legislative process to an arrangement that was satisfactory to them. Additionally, Virginia advocates faced strong and well-organized opposition from the tobacco industry, which formed the VTC with the purpose of enacting “proactive legislation” favorable to the tobacco industry. With legislative allies heading powerful legislative committees, and with well-funded lobbying efforts, the VTC was successful in their mission of minimizing the negative effects of the VICAA on the industry. The American Stop Smoking Intervention Study was a research program of the National Cancer Institute designed to test the effectiveness of state-level public policy interventions to reduce tobacco use. ASSIST sought to evaluate the effects of policies in four areas: eliminating secondhand smoke exposure; promoting higher tobacco taxes; reducing and restricting tobacco advertising; and reducing minors’ access to tobacco.In early 1990, the NCI issued requests for proposals to all the states that wished to compete to be part of ASSIST. Thirty-five states responded, and Virginia was one of the 17 states selected.The contracts were awarded to the state health departments who were required to partner with the local chapter of the American Cancer Society and other state and local groups to form a coalition to define and implement policies consistent with the ASSIST design.In Virginia, the ASSIST program was awarded to a partnership of the Virginia Department of Health’s Division of Health Education in Richmond and the Virginia Division of the American Cancer Society.By coincidence, the ASSIST program was created almost contemporaneously with the passage of the VICAA. ASSIST was active from 1991 through 1999 and was the first large-scale project aiming to use a broad coalition with specific policy goals to change tobacco use in Virginia.The first two years were primarily devoted to planning and coalition-building; by 1992 there were six local coalitions active in Virginia. The program picked up momentum and by 1998 Virginia’s ASSIST coalition included one state-wide and 17 local coalitions, formed under the auspices of the Virginia Department of Health’s Tobacco Use Control Program .The ASSIST coalition included numerous groups and organizations, some of whom were already active in tobacco control in Virginia. The mainstays of the Virginia ASSIST coalition were the Virginia chapters of the ALA, AHA, and ACS, which had the largest volunteer bases and the greatest ideological commitment to tobacco control. Other groups, such as the Virginia Pediatric Association and the Virginia Medical Society, signed the ASSIST coalition mission statement, but did little to help with grassroots advocacy or legislator education. Other smaller groups, such as nursing associations and medical schools, were also involved as signatory members. The Virginia Department of Health’s Tobacco Use Control Program was formed as a result of the ASSIST grant, and provided ASSIST with access to the VDH’s group of local coalitions. Table 34 provides a typical example of how ASSIST funding was allocated in 1995 . Carter Steger, who was working with ASSIST in her capacity as a campaign director at ACS, noted in a 2009 interview that during the ASSIST planning phase the coalition had success in forming local coalitions. However, as time passed these local coalitions deteriorated and their effectiveness was degraded. Carter Steger recalled that it was difficult to get coalition members actively involved in tobacco control advocacy because of their unwillingness to cross the tobacco industry.ASSIST drew the attention of the tobacco industry soon after it was announced.Most of these tactics, such as claiming that ASSIST was conducting “illegal lobbying activities,” focused on disrupting the ASSIST capacity to effectively influence policy development. As early as 1992, Philip Morris’s Vice President of Corporate Affairs, Jack Nelson, called for federal restrictions on ASSIST funding, especially concerning lobbying expenditures.