Sunday, 18th of October 2009 |
CSU 61/2009: SMOKING IN GOVERNMENT BUILDINGS
Governments are sovereign. Tobacco manufacturers are not. Or are they?
This case study from the US, also available at
http://www.ajph.org/cgi/content/full/99/9/1588?ct documents how the
tobacco industry was able to delay, until the Clinton administration,
the implementation of a presidential order banning smoking in US
government buildings. One sordid aspect of this story is tobacco
industry funding of academic research to oppose restrictions on smoking
in federal buildings.
Since the health effects of second hand smoking are well documented,
Bill Clinton's executive order, with a stroke of the pen, freed 2
million federal workers from the risks of second hand smoking.
Good reading.
BD
'The Politics of Smoking in Federal Buildings: An Executive Order Case Study'
Daniel M. Cook, PhD and Lisa A. Bero, PhD
American Journal of Public Health, September 2009
At the time of this study, Daniel M. Cook was with the Institute for
Health Policy Studies, University of California, San Francisco. Lisa A.
Bero is with the Department of Clinical Pharmacy and the Institute for
Health Policy Studies, University of California, San Francisco.
Correspondence: Correspondence should be sent to Daniel M. Cook, PhD,
School of Community Health Sciences, University of Nevada, Mailstop 274,
Reno, NV 89557 (e-mail: dmcook@unr.edu ). Reprints can be ordered at
http://www.ajph.org by clicking the "Reprints/Eprints" link.
ABSTRACT
Executive orders are important presidential tools for health
policymaking that are subject to less public scrutiny than are
legislation and regulatory rulemaking. President Bill Clinton banned
smoking in federal government buildings by executive order in 1997,
after the administration of George H. W. Bush had twice considered and
abandoned a similar policy.
The 1991 and 1993 Bush proposals drew objections from agency heads and
labor unions, many coordinated by the tobacco industry. We analyzed
internal tobacco industry documents and found that the industry engaged
in extensive executive branch lobbying and other political activity
surrounding the Clinton smoking ban.
Whereas some level of stakeholder politics might have been expected,
this policy also featured jockeying among various agencies and the
participation of organized labor.
INTRODUCTION
THE US GOVERNMENT HAS acted to restrict indoor smoking in only 2 venues:
aircraft and federal buildings.1,2 The health risks of direct and
indirect smoking are now well documented,3–5 and a recent US surgeon
general's report declared that there is no safe exposure to secondhand
smoke.6 In 1997, President Bill Clinton issued an executive order
banning smoking in federal buildings, protecting nearly 2 million
workers and their patrons from exposure to secondhand smoke.
Tobacco control policy gained considerable national attention during the
Clinton administration, with the convergence of grassroots movements,
critiques from major health organizations, lawsuits, congressional
hearings, and journalistic accounts that described how the tobacco
companies knowingly marketed a deadly product while the government was
slow to respond.7,8 In 1994, the Food and Drug Administration (FDA)
began to regulate cigarettes as a drug delivery device. The authority of
the FDA was challenged by the tobacco industry at every step, until
finally the Supreme Court ruled that the agency lacked the proper legal
footing.9 After his administration had presided over several health
policy decisions favoring the tobacco industry,10,11 President Clinton,
as chief of the executive branch bureaucracy, finally banned smoking in
federal buildings with Executive Order 13058, signed in August 1997.2
POLICYMAKING BY EXECUTIVE ORDER
American presidents have several tools available to create unilateral
policies, including directives, memoranda, proclamations, signing
statements, and executive orders.12,13 Executive orders, the focus of
this study, are often used in the routine management of the executive
branch agencies, but they also may be used to effect dramatic policy
changes.14 For instance, in 1948 President Harry Truman desegregated the
military by executive order, beginning a series of civil rights–related
presidential actions.15 As another example, President Barack Obama
closed the controversial detention facilities at the Guantanamo Bay
Naval Base on his third day in office.
Presidential executive orders have the force of law unless or until they
are overturned by Congress or future presidents. The president will
usually cite an underlying legal authority to avoid challenges in court,
and judges have typically upheld presidential orders16 (e.g., current
faith-based initiative programs have never received congressional
approval but, rather, are based solely on executive orders17,18).
President Ronald Reagan's executive order on domestic surveillance for
intelligence purposes, which included specific guidelines regarding the
conduct of the intelligence community, was changed in 2001 under secret
instructions from President George W. Bush, who altered the order to
allow more covert surveillance.19 Because modifications of older orders
are not necessarily published, a bill intended to increase public
notification of executive orders was introduced in the US Senate in July
2008; however, the bill did not pass.20
Executive orders can result in important health policies. In a milestone
for health and safety regulation, the Environmental Protection Agency
(EPA) was created in 1970 through an executive order of President
Richard Nixon. Another example of unilateral executive action for health
policy purposes is the "Mexico City policy," often called the "global
gag rule." This policy, announced by President Reagan in a 1984
memorandum, was formulated to prevent foreign nongovernmental
organizations that received money from the United States from advocating
or performing abortions. After later being reversed by President
Clinton, the policy was reinstated by President George W. Bush in his
first days in office,21 and then rescinded by President Obama on January
23, 2009. Executive orders are also used to alter structures and
political processes to the president's political benefit.22–24 For
example, the Obama administration has reportedly examined potential uses
of executive authority to reverse or supersede current policies.25
The process of developing executive orders is not public; orders take
effect upon the president's signature, without the scrutiny, comment, or
hearings required of most other public policies. For the most part,
outsiders are unaware of the internal White House proceedings
surrounding the development of executive orders, although presidents may
also attempt to legitimize and safeguard their orders with related
political maneuvers after a policy change.26 Orders can "wither on the
vine" without implementation resources. For instance, after Clinton's
1994 environmental justice order, explicitly designed to identify and
address disproportionate environmental effects on minority and
low-income populations, the intended benefits of Superfund cleanup for
vulnerable groups decreased over the ensuing decade.27 Little is known
about the role of the bureaucracy and interest groups in executive order
development or how interest groups gain access to the process.26
A unique source of data—the tobacco industry document archive—allowed us
to conduct a case study of one interest group's involvement in the
development of an executive order. Because the tobacco industry monitors
national tobacco-related policies and attempts to influence the
decision-making process,28 we suspected that internal tobacco industry
documents would reveal new information about President Clinton's policy
on smoke-free federal buildings. Previous studies of the document
archive, which includes internal memoranda and other records of industry
participation in the health policy process, have revealed that the
industry uses political and other strategies to influence the decisions
of executive branch agencies.29
METHODS
The tobacco company papers were made public after litigation brought by
the state of Minnesota and Minnesota Blue Cross Blue Shield. The Master
Settlement Agreement of 1998 required that they be made electronically
available.30 An archive of nearly 50 million pages, now containing
several document collections, is maintained electronically at the
University of California, San Francisco (http://legacy.library.ucsf.edu
).
Taking an interpretive approach, we used the document archive to conduct
a specific case study of an executive order policy decision.31 Using
historical methods, we searched documents in 2005 and evaluated and
organized them chronologically.32 We employed a snowball technique with
keywords such as "federal buildings," "executive order," and other
relevant terms to search the collection. The information was
supplemented with other public documents such as government Web site
materials and news accounts.
RESULTS
The tobacco industry documents revealed the history and politics of
banning smoking in federal buildings (Table 1). Tobacco control
activists suggested the policy as early as 1971.33 In 1974, the US
General Services Administration (GSA), which manages the operations of
federal buildings and issues regulatory rules and guidelines
accordingly, issued new guidelines that banned smoking in conference
rooms, elevators, auditoriums, and shuttle vehicles and provided for
nonsmoking areas in cafeterias, work areas, and medical care facilities.
In addition, however, the guidelines affirmed "a person's right to
smoke."34
In 1985, Senator Ted Stevens (R, AK) introduced legislation that would
have required separate smoking areas for buildings in all 3 branches.35
The legislative hearings on the Stevens bill were widely reported, but
the legislation did not proceed any further.36 Economists from George
Mason University, who had received funding and support from the tobacco
industry,37 prepared an analysis of the Stevens smoking restrictions
that estimated the cost to taxpayers would be more than $500 million.38
In 1986, reports from the National Academy of Sciences and the surgeon
general concluded that secondhand smoke is harmful to health.39,40 That
year, the GSA requested comments on stronger rules that were similar to
the Stevens proposal, with smoking banned in many public areas of
buildings and restricted to smoking areas.41 The Tobacco Institute
responded with its own comments in opposition, as well as by organizing
letters to be sent to the GSA from representatives of trade associations
and unions; these individuals were told by the Tobacco Institute that
"the ‘letter count’ is almost 10-1 in favor of the regulations."42
Apparently the tobacco lobby was aware of the content of the letters
being received by the agency during the open comment period, prompting
it to mobilize opposition letters. An internal Tobacco Institute
memorandum reported that at least 12 labor unions and organizations were
"encouraged to file comments. To the extent that we can, we will assist
them in drafting their comments."43 Both the National Federation of
Federal Employees and the American Federation of Government Employees
sent comment letters opposing smoking restrictions and favoring a more
voluntary or ad hoc policy.44,45
In announcing its new rules in December 1986, the GSA reported that the
policy had been redrafted in response to these comments, as follows:
the major distinctions between the regulations released today and the
earlier version are the sections that allow for corridors, lobbies and
restrooms to be designated as smoking areas.46
The policy did not reflect the surgeon general's recommendations that
separate smoking areas could not adequately protect nonsmokers from
harm.40 Other tobacco document research has shown that the tobacco
industry influenced ventilation standards, arguing for "accommodation"
of smokers in the workplace.47
In a memorandum, the president of the Tobacco Institute reported great
success in influencing the GSA restrictions, claiming that 59% of the
comments opposed the proposals, that the opposition of 3 unions and 19
economists was important, and that one union representative met
personally with the GSA administrator and was promised concessions.48
The same memo claimed the Tobacco Institute mobilized most of the public
comment letters in opposition. Another document explained that tobacco
company interests worked closely with the labor unions.49
Once the new rule was enacted, labor unions claimed full collective
bargaining rights over how this rule, similar to any management work
rule, would be enforced given the discretion provisions of the agency in
question.50 In fact, when the US Department of Health and Human Services
attempted to entirely ban smoking from its buildings in 1987, the labor
unions challenged and overturned the policy because it neglected their
rights to negotiate working conditions. The judge sided with the labor
unions, citing the provisions of the 1986 GSA regulation and its
statement on collective bargaining rights.51
In 1991, President Bush's health secretary, Louis Sullivan, drafted a
proposed executive order making all federal government–controlled space
smoke free. The draft order was circulated by the director of the Office
of Management and Budget (OMB) to 22 federal agencies and offices for
comment.52 The RJ Reynolds and Philip Morris tobacco companies also
received drafts of the executive order from an unknown source. Memos
revealed that the tobacco executives were alarmed; in one memo, the
director of government affairs at RJ Reynolds mentioned that the
president was "receptive" and that the proposal was a "real problem."53
His counterpart at Philip Morris asked members of Congress for help
because this serious development would "have tremendous implications for
our future Hill battles and indoor air regulatory problem."54
In February and March 1991, the OMB received letters opposing the order
from the Agriculture,55 Defense,56 and Interior57 departments; the GSA58
; Senator Wendell Ford of (D, KY)59; and the Public Employees Division
of the AFL-CIO.60 In addition, the Public Employees Division was itself
the recipient of a letter-writing campaign from its member unions. We
found letters in the tobacco industry archive sent to the Public
Employees Division from 7 member unions, suggesting that industry
lobbyists coordinated the effort. The letters were sent from the Bakery,
Confectionery and Tobacco Workers61; the Sheet Metal Occupational Health
Institute62; the Laborers' International Union of North America63; the
International Association of Machinists and Aerospace Workers64; the
United Brotherhood of Carpenters and Joiners65; the National Association
of Letter Carriers66; and the International Brotherhood of Firemen and
Oilers.67
The comments were shown to the Department of Health and Human Services,
which sent a detailed response to the OMB.68 At least one news account
described the heightened involvement by interest groups such as tobacco
companies and labor organizations, as well as the infighting among
competing agencies.69–71
The executive order was never signed nor issued. According to one news
story, Labor Secretary Lynn Martin opposed the order, claiming it would
confuse, replicate, and jeopardize the simultaneous efforts of the
Occupational Safety and Health Administration (OSHA) to develop a rule
about secondhand smoke in the workplace.72
In January 1993 the Bush administration, having failed in its bid for
reelection, had 1 month remaining under "lame-duck" conditions. On
January 7, the EPA released its report on the health risks of exposure
to secondhand smoke, and so health groups called upon the administration
to reconsider the smoking policy in federal buildings.73 On January 8, a
proposed executive order again began to circulate.74 The American Farm
Bureau Federation sent a strong letter of opposition to the Agriculture
Department.75 William Reilly, Secretary of the EPA, was expected to urge
the president to sign the order.76 The Tobacco Institute gave the
executive order a "40 percent chance" because the Department of Justice
would not sign off.77 Again the executive order was never signed.
Clinton-Era Legislative Proposals
In 1993, Representative James Traficant of Ohio, chairman of the Public
Buildings and Grounds Subcommittee of the Committee on Public Works,
convened hearings on proposed legislation to completely ban smoking from
federal buildings.78 In response, Philip Morris planned to testify and
brief its friends in Congress.79 The issue was featured on the
television program Good Morning America.80 The Tobacco Institute
prepared a memo regarding OSHA officials' testimony at the hearings.81
OSHA supported the bill.72 Tobacco industry law firm Covington & Burling
provided the Tobacco Institute with draft alternative legislation that
essentially codified the existing GSA rules on separate smoking areas.82
The Traficant committee approved the stronger smoking restrictions by
voice vote. The House passed the bill that year by acclamation.83 It was
sent to the Senate, which took no major action, and the proposal died
there.
Some members of Congress continued to show interest in the legislation.
In 1997, the office of Senator Frank Lautenberg (D, NJ) conducted a
survey on smoking policies in federal buildings. They found that
legislative buildings had minimal limits, many executive branch
buildings had bans and limits, independent agencies had some limits but
were mostly nonresponsive, and the judicial buildings had minimal
limits.84 Congressman Traficant reintroduced his legislation in July
1997, but there were no hearings in the then-Republican Congress, and no
further action was taken.
Clinton's Executive Order
The tobacco documents contain few clues regarding expectations of an
executive order on smoking in federal buildings developing under
President Clinton. One policy item that may have contributed to the
development of an executive order was hazardous duty pay for Department
of Veterans Affairs (VA) personnel exposed to secondhand smoke. A 1994
unlabeled summary memorandum included in the tobacco industry files
revealed that, after a dispute with labor unions, the VA paid
environmental differentials to workers at residential facilities that
allowed smoking.85
The settlement with the unions was temporary, however, and the VA asked
the Office of Personnel Management for a government-wide decision on
hazardous pay for secondhand smoke exposure. According to this same
memo, the Office of Personnel Management preferred an "outright ban on
smoking in federal facilities,"85 and the Department of Health and Human
Services was exploring drafting an executive order. Previous tobacco
document research demonstrates that the tobacco industry closely follows
and collects comprehensive materials on any issue or policy proposal
that could be a threat to business.86 The failure of our archival search
to detect documents in the tobacco industry files on a Clinton executive
order aside from the VA issue suggests that the 1997 executive order
banning smoking in federal buildings was developed without input from
the industry, unlike the previous proposals.
In fact, a search of newspaper accounts during the Clinton
administration was more fruitful than a search of the tobacco document
archive. In 1993, the idea of an executive order on federal buildings
was mentioned in the press.87,88 Approximately 4 years later, in August
1997, news of an imminent executive order from Clinton appeared in the
press. The August 5 edition of the Washington Post reported that the
administration planned to ban smoking inside all federal buildings as
well as in courtyards and within 50 ft (15 m) of doorways.89 The tobacco
industry documents contain a copy of an August 5 e-mail quoting the
following Associated Press report:
President Clinton is preparing to sign a long-awaited executive order
banning smoking in federal executive branch buildings, say anti-tobacco
groups told to be on standby for the ceremony.90
Are three drugs for malaria better than two?
Friday, 24th of April 2020 |
Public health Interventions and epidemic intensity during the 1918 influenza pandemic
Thursday, 16th of April 2020 |
Chloroquine and hydroxychloroquine as available weapons to fight COVID-19
Tuesday, 17th of March 2020 |
Using models to shape measles control and elimination strategies in low- and middle-income countries: A review of recent applications
Monday, 17th of February 2020 |
Immunization Agenda 2030
Tuesday, 11th of February 2020 |
41136754 |
www.measlesinitiative.org www.technet21.org www.polioeradication.org www.globalhealthlearning.org www.who.int/bulletin allianceformalariaprevention.com www.malariaworld.org http://www.panafrican-med-journal.com/ |