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CSU 61/2009: SMOKING IN GOVERNMENT BUILDINGS

Sunday, 18th of October 2009 Print

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
 

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