Two years ago, the affluent Memphis suburb of Germantown was poised to take a step that might appear to be folly in a state where tobacco was the No. 1 cash crop as recently as 1999. Germantown’s board of aldermen, led by Gary Pruitt, a now-retired FedEx executive considered a progressive on the five-member board, was prepared to vote on an ordinance banning smoking in restaurants and bars, which, if passed, would have been the first legislation of its kind in Tennessee.
The daily newspaper, The Commercial Appeal, wrote a 560-word story for the occasion, debating the pros and cons of the measure by focusing on the impact on restaurants and nicotine addicts. Following the rhetoric of similar debates in hundreds of other cities deciding to go smoke-free—including Chicago, most recently—restaurant owners opposed Pruitt’s ordinance, preferring the freedom to set their own rules. Smokers were outraged that their “right” to smoke as they pleased was threatened. Pruitt, meanwhile, declared he was moving forward because smoke-free restaurants were “an issue whose time had come.”
A day later, almost everyone had to retract their comments. Turned out the time hadn’t yet arrived to go smoke-free. Germantown’s city attorney discovered at the last minute that a state law passed in April 1994 superceded Pruitt’s attempt to ban smoking. Germantown aldermen were reduced to groveling, signing a resolution asking legislators for so-called “home rule” on the smoking issue.
That 1994 law, pernicious to the state’s anti-smoking crowd, was an interesting piece of legislation. Introduced by longtime legislators and tobacco growers Eugene Davidson and Ned Givens, the latter now the state agriculture commissioner, the bill followed a template that tobacco executives themselves crafted. Davidson and Given’s draft was what’s known as a caption bill, legislation with essentially meaningless, non-controversial language replaced with amendments as the bill goes through the legislative process. In this case, former state Rep. Joe Bell of Lebanon, who died of pancreatic cancer in 1999, filled it with a 13-part amendment that ostensibly cracked down on juvenile access to tobacco, but was so loaded with loopholes that teenagers were hardly affected by the version eventually signed into law.
Instead, municipalities across the state bore the brunt. It was section nine, which some legislators tried feverishly to dilute with amendments, that caused the damage, reading in part that the Prevention of Youth to Tobacco Act “occupied and preempted the entire field of legislation concerning the regulation of tobacco products.” All tobacco-related laws passed after March 15, 1994, were considered null and void, except for cities and counties that wanted to regulate smoking in buildings they owned or leased.
Similar “preemption laws” were enacted in some 20 other states in the early 1990s—with Illinois, earlier this year, the only state thus far to repeal the legislation. Tobacco executives, of course, were hoping to go much further. In documents released as part of the 1998 landmark $206 billion settlement between state attorneys general and the five largest tobacco companies, Philip Morris executives, in particular, mapped out a strategy explained at a 1994 tobacco conference. “We’re dead serious about achieving preemption in all 50 states,” Tina Walls, then a Philip Morris vice president of state government affairs, said in a prepared speech. “Ultimately, the fight to preserve a place for our customers to smoke must be in each individual restaurant and workplace.” The anti-smoking lobby, Walls said, had adopted a “Pac-Man” strategy, by which they were “gobbling up” one community at a time, turning businesses into smoke-free zones, which wasn’t bad just for the cravings of smokers, but for future profits. “The immediate implications for our business are clear,” Walls said. “ If our consumers have fewer opportunities to enjoy our products, they will use them less frequently and the result will be an adverse impact on our bottom line. On the other hand, if we live in a society that accommodates smokers and non-smokers alike, it sends the message that smoking is a viable lifestyle choice and adults’ decision to use a legal product should be respected.”
Walls is still employed at Philip Morris, though her title has changed to senior vice president for external affairs, a position from which she announces the philanthropic ventures of America’s No. 1 cigarette manufacturer. Through a spokesman, she declined to say whether or how tobacco lobbyists worked with Bell to draft the 1994 bill.
Gene Davidson, the Robertson County farmer who introduced the placeholder bill, says he doesn’t remember the tobacco lobby taking part in the legislation, but he does remember a vocal contingent from the restaurant association.
As chair of the House agriculture committee, Davidson has been one of the obstacles preventing a repeal of the preemption law, as most tobacco-related bills come through his committee. Last session, Rep. Paul Stanley, whose district includes Germantown, introduced a bill that would make Tennessee’s restaurants, but not its bars, smoke-free. The bill didn’t make it out of Davidson’s committee, in part because Davidson prefers not to give “mandates” to businesses.
Normally a pro-market legislator, Stanley suggests that by assigning his bill to agriculture instead of a more suitable committee, such as state and local government, the House leadership means to bury his legislation from the view of the rest of the House membership. At the same time, nine of the 14 agriculture committee members are, like Stanley, Republicans. It’s just as likely that if his persuasive skills are sharp enough, the smoke-free bill he introduces next month should sail out of committee and make it to the House floor.
At the heart of the smoke-free debate is to what extent second-hand smoke causes disease, especially after prolonged exposure. Anti-smoking groups normally try to frame their arguments in terms of protecting bartenders, waitresses and other hospitality workers. Dozens of reports target second-hand smoke, also called environmental tobacco smoke, as the culprit exacerbating maladies as varied as sinusitis and low birth weight. The latest round of debates began last month after a study showed that heart attacks declined by 30 percent in Pueblo, Colo., in the 18 months after that city passed a smoke-free ordinance.
Restaurateurs say they can better judge public opinion than legislators when it comes to their restaurants and that smoking and non-smoking sections offer a nice compromise.
But James Repace, an asthmatic and retired biophysicist, showed last year that cigarette smoke in venues he tested—five taverns, a tap room, a casino and a pool hall—contained alarming levels of aromatic hydrocarbons and respirable particle even though one of the eight offered a non-smoking area. All of them contained more pollutants than car-filled streets—even the entrance to the Baltimore Harbor Tunnel.
Repace says he can’t understand why restaurant owners aren’t more concerned about losing nonsmoking customers since they outnumber smokers by more than two-to-one. In Nashville, about 400 restaurants of the 1,500 surveyed were voluntarily smoke-free. “What restaurant owners are saying is that air pollution is good for business,” Repace says.
Still, it’s almost universally agreed that Tennessee’s preemption law won’t be overturned anytime soon. The tobacco industry continues to stymie the state’s political system, though it isn’t as mighty as it once was. Forty-five cities and counties, including Metro Nashville, have signed resolutions asking the legislature to overturn the preemption law. This year, farmers planted 23,600 acres of tobacco, the second smallest acreage size in 139 years. Many planters are taking a wait-and-see approach because market conditions have made it difficult to profit from tobacco, a sticky, labor-intensive plant to harvest. If the old tobacco guard isn’t replaced quickly enough, and with renewed pressure at the local level, who knows? The Pac-Man strategy might yet prevail.