Swimming Upstream: Tobacco Policy Making in Nevada Gregory Tung M.P.H. Stanton A. Glantz Ph.D. Center for Tobacco Control Research and Education School of Medicine University of California, San Francisco San Francisco, CA 94143 Swimming Upstream: Tobacco Policy Making in Nevada Gregory Tung M.P.H. Stanton A. Glantz Ph.D. Center for Tobacco Control Research and Education School of Medicine University of California, San Francisco San Francisco, CA 94143 This paper is posted at the eScholarship Repository, University of California. http://repositories.cdlib.org/ctcre/tcpmus/Nevada2008. A complete set of our reports on state tobacco policymaking is available at http://repositories.cdlib.org/ctcre. This research was funded in part by National Cancer Institute Grant CA-61021. The funding agency played no role in the conduct of the research or preparation of the report. Copyright 2008 by the authors. 1 2 EXECUTIVE SUMMARY The tobacco industry is a major political force in Nevada. The industry dominated state politics through a combination of strategic alliances with the hospitality and gaming industries and campaign contributions. From 1990-2006 the tobacco industry contributed $552,111 to the state political parties and individuals running for state office. In 1975, health groups in Nevada attempted to pass a legislative proposal, AB 17, that would have required smoking and non-smoking sections in all indoor public places. Although weak by today’s standards, the proposed law was progressive for its time. The health group’s proposal was opposed by the Tobacco Institute, which organized the hospitality and gaming industries and law enforcement agencies into an alliance to oppose the law. The Tobacco Institute successfully weakened AB 17, which, as passed, only required smoking sections in state government workplaces and a limited number of indoor public places. In 1991, preemption was introduced in the state when Nevadans for Non-smokers’ Rights, a group seeking smoking and non-smoking sections in restaurants made a curious compromise with the tobacco industry in the form of SB 313. SB 313 required restaurants with a seating capacity of 50 or more to have non-smoking sections but the law also explicitly preempted local government from passing stricter laws then the state related to clean indoor air. In 1995, super preemption (preemption of all aspects of tobacco regulation) was introduced in legislation backed by the tobacco industry that was intended to comply with requirements of the Synar Amendment (federal requirement to pass laws restricting the sale of tobacco to minor and report compliance). The tobacco industry convinced the legislature that super preemption was necessary to comply with the Synar Amendment. Preemption was not necessary to comply with Synar but health groups in Nevada were not able to convince the legislature of this fact or garner the legislature’s support for an alternative legislative proposal to comply with Synar that did not include preemption. In 1994 the US Occupational Safety and Health Administration (OSHA) proposed Indoor Air Quality (IAQ) rules that would have mandated smokefree workplaces nationally. As part of its successful effort to block OSHA, the tobacco industry promoted ventilation as the “solution” to IAQ concerns. As part of this effort, the tobacco industry built partnerships with the gaming industry which representing pro-tobacco interests vigorously on the issue and remained allies in subsequent years. In November 1998, the Attorneys General of 46 states, including the Attorney General of Nevada, signed the Master Settlement Agreement (MSA) with the five largest tobacco companies. The MSA ended litigation brought by the state Attorney Generals, including Frankie Sue Del Pappa (D) of Nevada, to recover monies spent by the states to treat tobacco related disease as well as obtain some modest restrictions on cigarette marketing. The MSA put Nevada in a situation where the state expected to receive approximately $374 million through 2008, with continuing money into the indefinite future. In 1999, Governor Kenny Guinn and Assembly Democrats agreed on a compromise proposals for the how Nevada would spend its MSA money, with 40% of the money to college 3 scholarships (Millennium scholarship program), 10% for tobacco control, and the remaining for a mix of health related issues. As a result, Nevada spent $4 million a year on tobacco control programming between 2001 and 2008 (30% of the Centers for Disease Control recommended minimum). To oversee MSA money spent on various health issues, including tobacco control, the Task Force for the Fund for a Health Nevada was formed, with members appointed by the Governor and legislative leadership, and included legislators and health experts. The Task Force distributed tobacco control funds through competitive grants. The formation of the Task Force increased Nevada’s spending on tobacco control significantly, and coincided with a dramatic decrease in adult smoking prevalence in the state from 31% in 1999 to 21% in 2008. In the 1990's and 2000's tobacco control advocates made numerous unsuccessful attempts to repeal state preemption. The tobacco industry was successful and increasing its political influence and power in the state through campaign contributions and through aligning itself politically with the hospitality and gaming industry. Legislative proposals introduced by health advocates in an effort to advance tobacco control rarely made it out of committee. In 2003, health advocates were successful at increasing Nevada’s cigarette tax by 45 cents to a total of 80 cents per pack. The proposal to increase the cigarette tax came at a time when the state was struggling with a significant budget shortfall. Health advocates did not to push for any of the tax revenue to be devoted to tobacco control programs. In November 2006, Nevada became the 17th state to pass a strong statewide clean indoor air law through a voter initiative sponsored primarily by the American Cancer Society. The initiative was opposed by a competing voter initiative sponsored by a segment of the gaming industry called the slot route operators. While the law included exemptions for bars and the gaming floors of casinos, it represented a significant step forward for tobacco control because it made all other public places including restaurants smokefree and repealed preemption. Challenges with the implementation of Nevada’s new statewide clean indoor air law highlighted the fact that campaigns to introduce smokefree laws via ballot initiative need to coordinate with the state agencies responsible for implementation of the law. The health group initiative campaign did not coordinate with the state health divisions and as a result there were some avoidable implementation challenges. In addition, there were significant legal challenges that escalated to the state supreme court that as of July 2008 were not resolved. Despite the challenges, as of July 2008, Nevada’s clean indoor air law was generally experiencing good compliance and increasing public support. 4 TABLE OF CONTENTS INTRODUCTION .............................................................7 CAMPAIGN FINANCE ........................................................8 Total Campaign Contributions..............................................8 Contributions to Candidates...............................................10 Tobacco Policy Scores ...................................................12 NEVADA’S FIRST ATTEMPT AT CLEAN INDOOR AIR (ASSEMBLY BILL 17) IN 1975 AND THE TOBACCO INSTITUTE ..............................................14 Tobacco Control Before 1975 .............................................14 Assembly Bill 17 .......................................................14 The Tobacco Institute and AB 17 ..........................................15 The Expansion of the Tobacco Institute's Local Strategy ........................16 PREEMPTION: SENATE BILLS 25, 82 AND 313 ..................................17 1988 Reno-Sparks Convention and Visitors Authority Survey ....................17 The Nevada Health Issues Coalition ........................................17 Senate Bill 25 ..........................................................18 Senate Bill 82 ..........................................................19 Attempt to Include Preemption ............................................19 Nevadans for Nonsmokers' Rights..........................................20 Draft Ordinance and the Board of County Commissioners .......................20 The Tobacco Industry and Preemption ......................................21 Surveys on Non-smoking Sections in Restaurants .............................22 Senate Bill 313 .........................................................22 THE SYNAR AMENDMENT AND SUPER-PREEMPTION ..........................23 The Synar Amendment ..................................................23 The Tobacco Industry, Synar, and Preemption ................................23 The Synar Amendment and Nevada ........................................24 Senate Bills 622 and 637 .................................................25 SELLING VENTILATION AS THE “SOLUTION” TO SECONDHAND SMOKE ........29 OSHA's Proposed Rule ..................................................29 Securing the Gaming Industry's Support .....................................29 Recruiting the American Gaming Association ................................31 ASHRAE's Indoor Air Quality Standard .....................................32 THE MASTER