Joint Appendix — Loveday v. Federal Communications Commission

Supreme Court brief1983

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Text

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et UNITED STATES COURT OF APPEALS

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; Paul Loveday and Californians for Smoking ) 4

a and No Smoking Sections, Petitioners No. 81-2061 +

Be ) ON PETITION FOR REVIEW

i v. ) OF ORDER OF FEDERAL

* ) COMMUNICATIONS COMMISSION

ts Federal Communications Commission )

a and the United States, Respondents.

s , ,

if ; Cal P. Saunders PAUL L. LOVEDAY a

as. Counsel -

‘Federal Communications Commission Two Embarcadero Center

Washington, D.C. 20554 24th Floor

San Franciseé, CA 94111

Attorney for Petitioners

tye = $s ° ’

h: seg Attorneys for Respondents Dated: March 31, 1982

“re :

a : este at Mervin Field

Relessed August 7, 1901"

Copy of Proposition 10

News Release from California's Fair

Political Practices Commission

Richard S. Woodward

Declaration

Yes on 10's Request for

Declaratory Ruling

Tobacco Institute’s Denial of

Knowledge or Part in No

on § Campaign as reported

in New York Times

March 16, 1978

Campaign finance disclosure

statement filed by Tobacco Institute

that before March 10, 1978

Tobacco Institute had (i) spent $61,688

Proposition 5, (ii) had

No on 5 ca

and (iii) hired Dobbs & Nielsen

Official Court Reporter's

Transcript of Vigo Neilsen's

apparent perjury

Declaration re John Greenagel's

misrepresentations that he was

volunteer spokesman for No on 5

Pages from campaign finance

disclosure statement of

No on §

showing «A

Greanagel for professional services

41A

42

45-50

51

vt

"1

52-54 i

- 4

‘ Me

¥ ¥

.

aaa

Relevant Pages of "A Study

of Public Attitudes Toward

Cigarette Smoking and the

Tobacco Industry" by the

Roper Organization

Pertinent page from campaign

finance disclosure statement of

No on 5 Campaign showing $20,000

paid by No on 5 Campaign to State

Senator Bill Greene

Copy of Greene Bill

Sacramento Bee editorial

April 15, 1980 against

Greene Bill

ASH Newsletter's July-

August 1980 report of Tobacco's

Industry's equivalent to Greene

bill in Dade County, Florida

Declaration re statement

by Joe Cerrell, political

consultant to Philip Morris, that

Tobacco Industry had decided in

June 1980 to run a campaign

against Proposition 10

57

58-70

71

72-79

81

et. SP ee Wy ot eee ho” Woe

Tab

Ww 86

x 87

additional contributions to No

on 10 (in excess of $340,000

(reported contributed as of

Sept. 30, 1980) would "be

very limited". Y 88

c Robert DeVries

Declaration Zz 89

LA Times Oct. 9, 1980

No on 10

advertising on 50

TV and 105 radio

stations A 90

Text of No on 10

radio ads B 90A-90B

te Ae

Copy of No on 10 ‘

y fundraising mailer Cc 91-100

“4 re No on 10 fundraising

a mailer D 101-102

$

A, Robert Nelson

% Declaration E 103-107

fer ;

a3 93! 93

161-162

163-176

177-178

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3 Adopted: July 30, 1981 Released: August 7, 1961

| By the Comission: .

. 1. The Commission has before it an Application for Review, filed oa

_ November 28, 1980, by Paul Loveday et al, of the Broadcast Bureau's ruling of

_ October 30, 1980. '#/

wmreasonably. The information before the Bureau did not show that there was

3. Except as modified above, we believe the Bureau's ruling was

/ correct, and the Application for Review does not contain sufficient grounds to

Warrant @ reversal of the ruling. Therefore; pursuant to Section 1.115(g) of

; Is °

William J. Tricarico

Secretary

A copy. of that ruling is appended (Attachment A).

. : ay

FEDE. «L COMMUNICATIONS COMMI- ON

WASHINGTON, OC. 20534

0cT 301970 ae

8330-H

10-1275

10-1264

10-997

C10-768

In re: Request for Declaratory Ruling

by "Californians for Smoking and No

Smoking Sections."

Dear Mr. Loveday

This is in reference to the Request for Declaratory Ruling that you filed @

October 17, 1980 cn behalf ot the "Californians for Smoking and No Smoking

Sectiwns" (the "“Committee") concerning advertisements opposing Propostion 10

by "Californians Against Regulatory Excess" ("CARE"). Tne Committee states

that Proposition 10 represents "a measure placed on the November 4, 1980 Cali-

fornia election ballot by the signature initiative process" which would "create

smoking and no smoking sectians in incoor public places." Te Committee supporss

the adoption of Proposition 10; CARE opposes its adoption.

BACKGROUND *

ilieed —1———

It is the Conmittee's contention that CARE is acting es the "agent and alter ego"

of the tobacco incustry Bgvew CARE derives substantially all or “virtually :

100%" of its funds from industry 2/ and has relinquished editorial control :

over its advertisements to the indus Essentially, the Committee's contentions i

are based on the following: (1) CARE and “Cali for Common Sense,

are based © oppose a simtilar ballot proposition in 1978, msvane Siian th

geganized °o Oera*eavertising fim and further involved sintlar Pe iy

and strategies; (2) the four largest cigarette manufacturers are "acting in

and stratedies) (7) ting finds to CARE according to their respective TTT

Shares in California, as was the case in 1978) (3) the tobacco industry took

persmal credi for defeating the 1978 ballot proposition; 3/ (4) the four cigarette

manufacturers "deferred massive spending on advertisements against Proposition 10

WHAS, Inc., 385 F

Trstunt case from VOTER,

On October 27, 19

that it is a bona fide nonprofit corporation and political

Board members ,9/ organized

station licensees

that [it] is the entity,

{CARE's] political spot annow

fairly

In support of its request, the Committee cites Amendment of the Commission's

« rship Identification" 89 76.221) ,

75); in re XOOL~IVv,

2a 784 (eth Cir. 1967). ‘The Committee distinguishes the

46 RR 24 350 (B/c. Bur. 1979) and Naticnal Welfare

Rights Orcanizaticn, 41 FCC 24 187 (1973), since here the tabasco industry allecedly {

ee control cver CAFE advertisements.

that time is of the essence, im licht of CARE's “media

L119 73.289 73.7 and

4 ; Uni tates Vv.

the election which has swayed voters to

80, by its attorney, CARE filed its response. 8/ CARE represents

“have Se ed properly and within their discretion in concluding

ced the only entity, they must identify as sponsor of

cements." CARE asserts that it has “wholly and

ts under California's campaign and

and although “the four tobacco es are the major contri-

has been "widely publicized,"10/ CARE “editorial

spot ads” and “it is not the tobacco companies."

————<—— oo ae ee

CARE added that it has not retained any current employee of the tobacco companies

or the Tebacco Institute, but for the voluntary work of two employees of Ene

Institute, who assist in the "distribution of literature throughout California."

CARE states that <he Commit=ee -s askina the Commissicn *° Gerermine whether cr

j . -—_=a_ .—*

not a political curccces 15 =ncspendent, cna tice orgamcatich. CARE Sur=er

prove

Gndustay directs the campaign strategy and exercises editorial control over tis

CARE advertisements, <nith it believes is essentially demonstrated by the following

Statements concerning Proposition 10, prior to any

Board meeting, indicative of the Board's lack of

control over camapign stratedy?

At

ies > SR

-

4.

On October 27, 1980, counsel for CARE responded to the Committee's reply, during

a phone conversation with a staff attorney of this office. CARE stated that,

due to an oversight, it neglected to mention the Board's first organizational

meting which was held on June 16, 1980. (In attendence were Mr. Bergland,

Mr. Dohr and Mr. Bens). CARE also explained that a political committee which

ments. CARE denies tiet =e cobacce industry exercises any control whatsoever

over the orcanizaticn's activities or stratecies.

DISCUSSION

The thrust of this request is that the sponsorship identification statements

S ncrtisements are inadequate and improper under Section 315

Wee Be: Se. Seas

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rule is contained in Section 73.1212 of the Commission's Rules

The corresponding

and Regulations and provides, nertinent part, that:

(b) ‘The Licefee of each broadcast station shall exercise

reasonable diligence to obtain from its employees, and

from other persons with whom it deals directly an coniny

tion with any matter for broadcast, information to enable

toe licensee to make the announcement required by this

* + *

DY te. Pelt. lovey 8 ptt an 6.

‘ ) ;

ghe beaic prenise of the sponsorship identification requirements is that the

Public is entitled to know by whom they are being persuaded. VOTER, supra at

352; National Welfare Richts Organization, suora at 195; Applicability of Sponsor-

, 40 FCC 141, 141 (1963).

_Sectic 317 and Section 73.1212 impose a duty upon licensees to exercise reasonable

diligence to ascertain the identity of the sponsor of broadcast material. The

, Gbligation to exercise reasonable diligence to ferret out the actual spomsor |

of broadcast material, of course, does not cast licensees in the role of "insurers" ;

@s to the complete accuracy of sponsorship identification statements; they have

an affirmative obligation to ascertain and identify the sponsor, no more - no less.

onal Welfare Richts zation, supra at 195. The Conmissicn's responsi-

EGRET matters is to not to substitute its judgment for that of the

licensees' or to pass on the bona fide nature of an organization; rather the .

Commission, as a government licensing agency, reviews its licensees’ decisions

é

:

eve that the Bureau ruling in VOTER, supra, is dispositive of this request.

The case of VOTER concerned a ballot proposition (involving the establishment

of a county public power system), in which advertisements opposing the ballot

were aired as being sponsored by a political conmittee ("Westchester Citizens").

The Conmittee was funded in substantial part or completely by the Consolidated

Edison Company. The complainant argued that Con Edison should have been substituted

or added to the sponsorship identification statement. The Conmittee admitted

that it received substantial financial assistance from Con Edison, but maintained

that it exercised editorial control over all of its advertisements.

After noting that “longstanding Commission policy has been that an entity paying

for advertising time and editorial control over the message must be identified

as the sponsor of the statement," the Bureau stated that:

(W)e camnot conclude that any licensee, in evaluating |

the facts before it recardinc the acvertisement,

failed to exercise reasqmacle cilicerce cv accertine

the revcresenssticns Cr ‘jastoes<3> :=.5853. 8

substan proportion of Con s role in West-

chester Citizens funding might suggest a basis for

further inquiry to save licensees. On the other hand

the Westchester Citizens by-laws, ted asserticn

of editorial control over these t,

weight of precedent suggest that those licensees who

accepted Westchester Citizens' advertisements as offered

did so in good faith and without closing their eyes to

any attempted misrepresentation. Indeed, same licensees

may conclude, either on the facts thus far provided by the

Westchester Citizens, or additional information not now

before us, that, in its view, "Con Edison” alone is the

appropriate identification. In such a case, we would have

no basis for finding that the licensee has acted wreascn-

ably (emphasis added). Id. at 352; see also, National

Welfare Rights zation, supra (announcements paid

for by a iete corporation, but controlled and directed

by the American Academy of Pediatrics, were properly

identified as “presented as a public service announcement

by the American Academy of Pediatrics).

oe eee ee +

Mr: Paul L. Loveday ps

In the same fashion, on the basis of all the information before us, we cannot

determine that all the California broadcast station licensees acted unreasonably

by failing to exercise reasonable diligence in accepting the representations of

CARE and ultimately airing the CARE advertisements as offered. On the other

hand, if some licensees substituted the sponsorship identifcation statements

with "Paid for by the Four Major Tobacco Companies," we would have no basis for

concluding that they acted unreasonably.

The Committee submitted a rather voluminous record (consisting of studies, polls,

newspaper articles and declarations) in a attempt to demonstrate that the

tobacco companies are controlling CARE. While it has been shown that substantially

all or "virtually 100%" of CARE's fiumds have come from the four major tobacco

companies, a fact that CARE readily admits in its response, there has not been

any conclusive evidence which establishes that the tobacco companies are exercising

editorial control over CARE advertisements, or for that matter CARE's entire

campaign efforts or any other drive aimed at defeating similar legislation like

that pending in California. More importantly, there has been no evidence that

the California broadcast station licensees have dismissed this matter ~:--

without exercising reasonable diligence to ascertain the trie

sponsor in compliance with their obligations under Section 317 and Section 73.1212.

CONCLUSION

Based on all of the foregoing, we cannot conclude that any broadcast station

licensee has violated the sponsorship identification provisions of the Commmi-

‘48 Act or the Commission's Rules and Regulations. To hold otherwise would

this agency to investigate the nature of political conmittees organized

rt or oppose an election matter (e.g., whether or not corporate formalities

adhered to), to second-quess broadcast Station licensees’

judgments, to rule on the basis of hindsight, rather than reviewing licensees’

decisions to determine if they acted reasonably and in good faith.

8

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In closing, "we continue urce caution and the exercise of reasonaple dilicence

on the part of our licensees to taxe appropriate steps to ascertain che Sullest

factual informatim as to the true identity of political and controversial issu

Sponsors." VOTER, sucra-.at 352.

Due to the inminence of the election, pertinent parts of this ruling were relayed

by phone conversation to the respective attorneys on October 30, 1980.

Staff action is taken here under delegated authority. Application for Review by

the full Commission may be requested within 30 days of the release date of this

letter by writing the Secretary, Federal Commmications Commission, Washington,

JA... 2 )

, ~ * © can 00°

a on ;

Mr. Paul L. Loveday oy = 8.

D. C. 20554, stating the factors warranting consideration and, if mailed, |

should be sent by certified mail. Copies must be sent to the parties to .

the complaint. See Code of Federal Regulations, Volume 47, Section 1.115.

Fz

cc: Counsel for care

ys contin semiay ft 2 oe Ee eee So

the country 4s canprising an “entity,” known as the "tobacco industry." Such

include Lorillard, R. J- Reynolds Tobacco, Brown and Williamson

manufacturers

Tobacco Co. and Phillip Morris. ir

ttee, approximately 99.6% of CARE'S financing comes ;

industry (the four major cigarette manufacturers and to a small

distributors; whereas approximately 99.4% of the funds came a

manufacturers). ‘The Committee's figures are derived from ‘

pufactureet that CARE filed in California pursuant 6 2

inancing osure statements coverting the per

through 9/23/80" (executed 9/29/80) and "9/24/80 through 10/20/80"

shows that the major cigarette manufacturers ’

CARE during the latter period, in the form of loans Or

’ to CARE arse does not dencnatrate that the cigarette

» ¢ oe Se oe | re 9 OR SS... ~™ )

. ’ 2.

, *

6/ The Committee atta.ued correspondence that it sent to all-the California broadcast

Station licensees, advising them of their obligation to exercise "reasonable

diligence” to ascertain the true identity of the entity on whose behalf adver-

tisements are purchased. The Committee proceeded to explain that virtually all

the funds received by CARE are from the out-of-state tobacco industry, and thus :

_ the tag line “Californians Against Regulatory Excess" is deceptive and should

be substituted with the "tobacco industry." In their response, CARE attached

correspondence that it sent to the licensees which denied allegations that it

was operating as a "front" for cny person, company or industry, admitted that

it received "tobacco" funds, but emphasized that it maintained control over CARE

advertisements and campaign strategies. The Committee forwarded letters received

by several stations which essentailly denied their request for substitution of ;

tag-lines on CARE advertisements. It should be noted that a sponsorship identi-

fication statement referring to the "tobacco industry” may be deceptive and

misleading, in that there is no particular entity known as such, and further

er ee ne

on its Board

7/ The Committee cites two studies, the Roper Poll of 1978 commissioned by the

Institute and the Fairbanks/Canapary/Maullin Poll commissioned by CARE,

which indicate that the tobacco industry's "credibility" is low. The Committee

further claims that the tobacco industry is cognizant of their low esteem, which

explains "their" desire to operate through a "front organization" like CARE.

8 ee aren 00 Sent te Soe ee & See ee

25, 1980, at her request.

9/ As mentioned before, Mr. Collins has denied that he was a member of CARE's Board

of Directors. By declaration of Eileen Padberg, of Robert Nelson and Associates

(Robert Nelson organized CARE), CARE represents that it was its understanding

that Mr. Collins was, in fact, serving on the Board and that all notices of meetings

and other informative data was forwarded to him, accordingly. Eileen Padberg

also stated that Mr. Kiker participated in one telephonic Board meeting, on

Mr. Collin's behalf and at his request.

10/ Both CARE and the Conmittee have furnished the Commission with newspapers

articles which report the influx of the tobacco industry's financial support.

YES ON 10

SMOKING AND

NO SMOKING SECTIONS ACT OF 1980

SECTION 1 Chapter 10.7 is added to the Health and Safety Code to read:

$25930

$2593)

‘Chapter 10.7 Smoking and No Smoking Sections

find

smoke for extended penods may cause disease in healthy

nonsmor.

(ats;

ee Sena hand atin ome egpantie Ge condten of mare Gan 8 1/8 alien

with heart or lung disease:

(c) Second-hand smoke, like ali tobacco smoke, contains more than 4,600 chemicais,

of which are to human health:

(d) poliunon above Federal standards can occur in enciosed places because of

1 Members, American Lung Assn of

Professor of Medicwre, UCSF)

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Jesse .. Steinteid, M.D.

U.S. Surgeon General, 1960-1979

Luther Terry, M.0.

U.S. Surgeon General, 1961-1966

Gien T. Seaborg, Pn.0.

Senator Diane E Watson

Vieechau, Senate Health Committee

Theodore A. Snyder, Jr

President, Sierra Ciud

Mayor Janet Gray Hayes

San Jose

Stanton A. Glantz, Pn.O

Asst. Professor of Medicine, UCSF

(Titles and organizations used for

identification purposes onty)

ENDORSING ORGANIZATIONS

American Assen. of Retired

Allan K Jonas $25937

Jack Kruschen 925938

Jonn Mathews §25939

Gary H. Spivey, M.0., M.P.H. $25939.1

$25939.2

$25939.3

SECTION 2:

provision of this subject to a fine of $15 per viciation

(b) Enforcement of this Chapter shail be by citation. No person may be taken into custody or

Go eubygct to search by peace oMcere solely because GF the victation or violation

It is Not intended that this Chapter preempt the field of smoking legisiation. The State

ure, local governing bodies and state and local administrative agencies may enact

legisiation and regulations to protect the health. comfort and environment of

nonsmokers. This Chapter does not permit smoking where otherwise restricted by law.

’ ; those

and areas which may be designated in thew entirety as smoking areas pursuant to Section

Geeignelion of emahing and ne emoting seotene end areas in places of

(¢)

ary Chapter

No special bureaucracy shail be created within the State t of Health Services or

within any other governmental agency for the admurustration of this Chapter or the Stan-

dards

Definitions

(a) “Place of Employment” means any area under the contro! of a public or private

which employees normaily frequent during the course of employment, inciuding,

Dut not limited to, work areas, employee lounges. meeting rooms, and employee

cafeterias. A private residence is not a “place of employment.

(b) “Public Place” means any area to which the public is invited or in which the pubiic is

permitted, including, Dut Not limited to, restaurants, theatres, wailing rooms, reception

areas and instrumentaiities of public transportation. A private residence is not a “public

place”

g

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Fi

R carrying or holding of a lighted

cigarette, cigar, pipe or any other lighted smoking equipment used for the practice com-

monty known as smoking, or the intentional inhalation or exhalation of smoke from any

such ed smok '

fon“ Baae Dasasunees ot Tsai Services means such Department or any successor

or area which qualifies as both a “Place of Employment” and as a “Public

oot ona treated for purposes of this Chapter as a “Public Place.”

(g) The Standards adopted pursuant to Section 25939 shail contain such other definitions

as the State Department of Health Services shail deem appropriate.

See Ro cemeamen et tan Soston, Gaston S006) andSp prpsee and Weer onprneces

Sections Re we nee Way re eames by Ce See Sane:

provided, however, that any amendment to thus Chapter shail

If any provision of this Chapter or the thereot to any person or circumstance is

held invalid, any such invalidity shail not affect other provisions or applications of this

Cap ONES CON 08 OD EN INS TERANE POTLEA Ot OREFERIAR, OS 10 OND

end, the provisions of Chapter are severable”

Effective Date

Chapter 10.7 of the Health and Safety Code shail become effective 120 after approval

by the elnctorate: provided. Nowevee, at fe duty of tee Sinie Deperrone of tisann

Seniese the process of promuigating Standards thereunder shail become eftec-

Exhbit E

PAIR POLITICAL PRACTICES ComMsSICN

Contact: JCEN KEPLINGER FOR IMMEDIATE RELEASE

916/322-5662 Saturday, November 4

$5.6 MILLION CONTRIBUTED TO NO CN 5 CAMPAIGN

Cepenents cf Proposition 5, the smoking regulation initiative

cn Tuesday's ballot, have contributed a record $5.6 million to the campaicn to

persuade Californians to defeat the measure.

More than $700,000 was contributed to the anti-Proposition 5 effort

in the past week alone by opponents who already have spent more money than

Governor Brown and Attorney General Evelle Younger combined.

In an analysis of the most recent campaign disclosure reports, the

Pair Political Practices Comission said today that a new campaign contribution

and speriing record apparently has been established by the Propositicn 5 foes.

Frsal mports About 97 per cent of the money has been contributed by the naticn's

major tobacco companies, and they are cutspending supporters of the initiative

7.7% by a 10 to 1 ratio.

toad

In their last campaign reports, filed an Cctober 23, copmments of

ag | Propositicn 5 reported receiving $4,947,462 in contributions and spending

$4,918,370. Since then, they have filed telegrams as required by law repcrt-

ing an additional $701,000 in late contributions, for a total of $5,648,462.

Supporters of Proposizicn 5 reported receiving $578,761 in contri>ct-

ions and sperding $512,650. They received $17,030 in additional late contcribut-

ions during the past week.

J.A. 14

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4 fae bf Snr oe, he % 8 ys OO a <N a oie

$5.6 MILLICN—2

_ The previous record for spending by cme side in any California

campaign was the $4,033,590 spent by copmments of Proposition 15, the molear

safeguards initiative on the 1976 ballot. Combined spending by both sides in

the Proposition 15 contest amounted to $5.2 million. When final post-election

reports are examined, they are likely to show that spending by the anti-Propo-

sition 5 forces will exceed the $5.2 million figure, the FPPC said. |

The FPPC report also showed that from July 1 to October 23, the -

Brown campaign raised $2,974,238 and spent $2,296,606, and had $731,960 in

cash cn hard left over. The Younger campaign raisec $1,800,753, spent

$1,751,346 and had $55,830 left over.

In late contributions received since October 23, Brown got $146,510

and Younger received $99,903.

In the lieutenant governcr's race, Republican Mike Curb was well cut

in front of incumbent Democrat Mervyn Dymally. Curb had received $1,041,765

and spent $1,016,897, while Dymally had raised $295,607 and spent $219,344.

In ancther hotly contested campaign, Proposition 6, the school

employees homoseaality initiative, supporters had raised $937,121 and spent

$956,459, while oppanents had raised $901,918 and spent $783,738.

Figures for the major candidate and balict initiative campaigns

are attached.

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DECLARATION OF

RICHARD S$. WOODWARD

I, RICHARD S. WOODWARD, declare:

I am a partner of Woodward, McDowell & Larson, a San

Francisco based campaign management, public relations and consult-

ing firn.

I have read the letter from Paul L. Loveday, Esq. dated

October 16, 1980, to the Federal Communications Commission and

i have been asked to comment about statements made therein about

which I am knowledgeable.

In 1977, my firm was retained by the Tobacco Institute,

and later that year my firm was retained by Californians for Common

Sense to manage a campaign to oppose Proposition 5 on the 1978

ballot. In 1979, this firm was retained as a media consultant,

not the campaign manager, to create and produce some of the broad-

cast advertising in a campaign to oppose an anti-smoking ordinance

in Dade County, Florida. My firm has not participated in any

other campaigns involving smoking and has not received any other

fees from any tobacco companies or the Tobacco Institute after

' Our activity relating to Proposition 5 (1978) and the 1979 Dade

i er oe

County campaign. This firm is not involved at all in the 1980

anti-smoking initiative in Dade County, Florida.

This firm was the campaign manager for the Yes on Propo-

sition 10 (Rent Control) and the No on Proposition 11 (Oil) cam-

paigns on the June 3, 1980 statewide ballot, which campaign work

concluded in August after Californians Against Regulatory Excess

was formed and operational. This fall, this firm was retained

for two United States senate races in Illinois and Alabama, and

we undertook a major corporate account. We had no plans at that

time to participate in the opposition campaign to Proposition 10.

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In September we agreed to assist the No on 10 Committee

and signed a written contract that requires us to draft scripts,

submit them to the Board of Californians Against Regulatory Excess

and their legal counsel for clearance, and upon receiving approved

copy, to produce and place the advertising. Robert Nelson was

on-site most of the time during casting, shooting and post produc-

tion of this advertising.

On page 12(a) of Mr. Lovedays letter, he states that

the spots produced by this firm for Californians Against Regulatory

Excess are similar to those produced this year in Dade County, ;

Florida, to oppose an anti-smoking measure. I have no personal

knowledge about any spots produced in Dade County for the 1980

campaign. I do not even know who is running either side of that

, Campaign. What Mr. Loveday submitted in his Exhibits as the Dade

=

Os et a ee Re eee i ee

County spots were spots produced by this firm in 1978 for Califor-

nians For Common Sense. The same four partners who managed the

Californians for Common Sense campaign two years ago are still

the firm's partners and the similarity between the 1978 California

spots and the present California ones are not coincidental or

without design. The spots for Californians Against Regulatory

Excess were planned to remind the voters that a similar measure

had already been defeated. (Exhibit L)

This firm contracted with a placement service to purchase

media time. At no time was anyone ever told that no tobacco compa

nies had contributed to the campaign. There has been considerable —

publicity throughout California that tobacco companies now are e

making substantial contributions to Californians Against :

Excess. The participation of this firm in the No on Propoastion

10 campaign is recent and has only involved the creation, pr

and placement of certain advertising. Consequently, I

comment on other™facts stated in Mr. Loveday's letter; n

+ eee

a 1 | conspiracy as alleged. I have no reason to believe that the cati=* 4

| s | cornians against Regulatory Excess Comittes is aot e bene <iée | ap

3 ' citizens' committee.

* I declare under penalty of perjury that the foregoing

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6 October 24, 1980.

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PAUL L. LOVEDAY

Attorney At Law

One Embarcadero Center. 28th Floor

San Francisco. CA 94111 (415) 955-0203

October 16, 1980

Federal Communications Commission

1919 M Street, N.W.

Washington, D. C. 20554

Attn: Mr. William Trigarico, Secretary

Re: Request by Paul Loveday and "Californians for Smoking and No Smoking

Sections" for Declaratory Ruling Regarding Deceptive and Unlawful

rship Identification Statements With Respect to Paid Radio and

Television Advertisements by The Tobacco Industry Against California's

Proposition 10

EXPEDITED RELIEF REQUESTED

November 4, 1980 Election

Gentlemen:

This letter is a request for a Declaratory Ruling regarding the unlawful

participation of California broadcast stations with the Tobacco Industry in acts of

affirmative deception in violation of Section 317(c) of the Federal Communications

Act (the "Act") with respect to Proposition 10, a measure placed on the November 4,

1980 California election ballot by the signature initiative process. Due to the imminence

of the election, and in light of the extraordinary facts set forth below, immediate

ed action is requested. We request that a schedule be established by the Federal

Communications Commission ("FCC") so that a ruling can be issued within seven days

of the date of this letter.

1. PARTIES

Paul Loveday is a listener of California broadcast stations and the Chairman of

Californians for Smoking and No Smoking Sections ("Yes on 10"). Yes on 10 is a

coalition of the California Divisions of the American Cancer Society, the American

Heart Association and American Lung Association, the California Medica] and Nurses

Associations, and other health organizations. Yes on 10 is funced by those organizations

and by many thousands of individual contributors.

wl. PROPOSITION 10

Proposition 10 (a copy of which is attached hereto as Exhibit A) would create

smoking and no smoking sections in Indoor public place Wt Tp states its intent

U-A. 19

SERRA Rc ony) ns

oa TT ean

Proposition 10 has an extraordinary broad and bi-partisan base of support. It

has been endorsed by the Speaker of the California Assembly, Leo McCarthy, by the

President Pro Tempore of the California Senate, James Mills, by the State Senate

Majority and Minority Leaders, and by the Chairpersons of the Health Committees of

both the State Assembly and Senate, by numerous other California legislators, mayors,

an em rygnnne: labor and business leaders. o Fropostuen 10 has the support of every

sign icant statewide health organization in ornia.

On September 11, 1980, two weeks before the Tobacco Industry commenced a

massive television, radio and billboard advertising campeign against Proposition 10,

Mervin Field's highly respected California Poll showed 59% of California smokers and

70% of the State's nonsmokers favored the measure. (See Exhibit A-2)

™. RELIEF REQUESTED

The Tobacco Industry has caused its agent and alter ego, deceptively named

Californians Against Regulatory Excess, (hereinafter sometimes called "Excess"), to

massive amounts of air time from California radio and television stations for

advertisements urging a "no" vote on Proposition 10. Virtually one hundred percent of

such air time has been paid for by moneys transferred to Excess from the four largest

cigarette manufacturers, each contributing according to its share of the tobacco sales

market. All four cigarette manufacturers are located outside of California. Because

these four largest cigarette manufacturers (representing almost 90% of total cigarette

sales) are acting in concert and contributing a to their market shares, the

campaign to defeat Proposition 10 is being inane = tre Tobacco Industry operating

in unison through its agent and alter ego Excess.

The Tobacco Industry exercises editorial control over the No on 10 advertising.

Yes on 10, by two letters from its counsel dated September 26, 1980 and October

3, 1980 (attached hereto as Exhibits B-1 and B-2), has notified al) California broadcast

stations of their duties under the FCC Sponsorship Identification Rules both (i) to use

reasonable diligence to discover the persons OF entities who are actually paying for

and controlling such advertisements, and (ii) to announce before or immediately after

the broadcast of each such advertisement that such advertisement was "paid for by

the Tobacco Industry".

The stations have refused to do 80. The response by Mr. Dan Leonard, Vice

President of Forest Broadcasting Company, Inc. (attached hereto as Exhibit B-3) is

fairly typical:

"In response to your request that we investigate the funds for Californians

Against Regulatory Excess, we have made several inquiries. Mr. Bob Hoffman

of our national rep firm, Catz radio, Los Angeles office, spoke with the agency

for No on 10, Western International Media, and he has received assurances that

no tobacco industry money was involved."

Because it can be easily ascertained that only Tobacco Industry money is mse

to pay for No on 10 broadcast advertizing, and that the Tobacco Industry is exercising

editorial control over the advertising, Forest Broadcasting Company, Inc. and all] other

broadcastors running such advertising are violating their obligations under the FCC

Instead of adequately fulfilling their obligations of reasonable diligence, the

stations have participated with the Tobacco Industry in acts of affirmative deception

by running a sponsorship identification statement ("Tag-line") stating that such

advertisements were "Paid for by Californians Against Regulatory Excess" when in fact

(i) the money to pay for such advertisements has come from outside of Californie,

and (ii) Excess is merely the alter ego of the Tobacco Industry operating on an industry

basis to influence the California electorate.

Yes on 10 hereby requests the FCC to declare (i) such a misleading Tag-line is

a violation of Section 317(c) of the Act and 47 CFR 73.1212, and (ii) that the Federal

Communications law requires each advertisement placed by Excess to contain the

Tag-line "Paid for by the Tobacco Industry”.

IV. THE FACTS DEMONSTRATE THAT EXCESS IS THE AGENT AND ALTER EGO

OF THE TOBACCO INDUSTRY

The following facts demonstrate (i) that Californians Against Regulatory Excess

is a mere conduit for the funds of the out-of-state Tobacco Industry for purchasing

air time against Proposition 10, and (ii) that the Tobacco Industry exercises editorial

control over the advertising:

A. THE 1978 PROPOSITION 5 CAMPAIGN

During the 1978 campaign on a similar California ballot measure

(Proposition 5), fully 99.7% of the almost $64 million spent against Proposition

5 7 from one source: The Tobecco Industry. (See Exhibits C-1, C-2 and

C-3.

Cognizant that widespread public knowledge of the fact that the No on

5 Campaign was financed and controlled by the Tobacco Industry would severely

damage the credibility of its campaign, the Tobacco Industry took the following

steps to disguise its involvement and to give the erroneous impression that the

No on 5 Campaign was a groundswell citizens movement by a coalition of

Californians:

(a) The Tobacco Institute, the trade association of the Tobacco

Industry, told the New York Times that it had "no direct knowledge or

part in the anti-initiative effort.” (See Exhibit D-1) However, the campaign

financing disclosure statements required by the California Fair Political

Practices Act later demonstrated that, at the time of the denial, the

Tobacco Institute had already spent $61,000 to set up the campaign against

Proposition 5. (See Exhibit D-1a)

(b) The Tobacco Institute hired Woodward, McDowell and Larson,**

a professional campaign management firm, to manage the No on 5

Campaign and to ereate "Californians for Common Sense" as the front

— and agent for the out-of-state Tobacco Industry. (See Exhibit

D-1b

° Exactly $6,413,041 was spent against Proposition 5.

= Woodward, McDowell & Larson was known only as Woodward & McDowell in

1978. The two partners promoted Larson to partnership upon the conclusion of

the No on 5 Campaign. In this Request the firm is consistently referred to as

Woodward, McDowell & Larson.

3

aa J.-A. 2)

(c) Vigo Nielsen is the Senior Partner of Dobbs and Nielsen who

personally incorporated Californians for Common Sense and who personally

prepared the campaign financing disclosure statement required by the

California Fair Political Practices Act. Such disclosure statement revealed

that virtually all moneys transferred to Californians for Common Sense

came from the out-of-state Tobacco Industry. Subsequent to the filing

of such disclosure statement, Mr. Nielsen declared under oath as a witness

in a California court of law that he did not remember who it was who

asked him to incorporate and to represent Californians for Common Sense

and that he did not know whether his client was "represented or in any

way associated with the tobacco industry." (See Exhibit D-2)

(4d) All paid advertisements against Proposition 5 contained the

deceptive Tag-line "Paid for by Californians for Common Sense".

(e) John Greenagel is a public relations professional who represented

the Tobacco Industry in six of the television and radio debates on

Proposition 5 and whose $4,500 in fees were paid by Tobacco Industry

moneys through its agent Californians for Common Sense. Greenagel

represented publicly on several occasions that he was merely a concerned

small businessman speaking against Proposition 5 as a volunteer. However,

only a few days before election day he admitted he was being paid for

his appearances. (See Exhibits D-3 and D-4)

In the 1978 No on 5 Campaign, the Tobacco Industry took the unprecedented

step of beginning its broadcast media advertising against Proposition 5 in July

of 1978 and continued its massive advertising efforts every day from then until

election day. The almost $6% million the Tobacco Industry spent against

Proposition 5 set a new record for spending in e California election that still

has not been surpassed. Indeed, the Tobacco Industry's campaign spending exceeded

the combined spending by both candidates for California Governor in the same

election. (See Exhibit E.)

Shortly after the media blitz against Proposition 5 began, Mervin Field's

California Poll demonstrated Californians favored the measure 58% to 38%. (See

Exhibit F-1.) Despite the fact that most of the newspaper, radio and television

news coverage was generally favorable to the measure, the media barrage against

it slowly eroded support among voters. Proposition 5 was ultimately defeated.

N

Research published by Mervin Field after the 1978 election found, in

t, that public knowledge of the Tobacco Industry's involvement in the No

on uced the credibility of the No on 5 Campaign. (See Exhibit G.)

Accordingly, Tobacco Industry concealed to the extent it could its involvement

in the 1978 No on 5 Campaign. In its 1980 No on 10 Campaign the Tobacco

Industry is even stronger steps to conceal from the public in California

that it is the sole source of funding for the broadcast advertising campaign

against Proposition 10.

- B. THE TOBACCO INDUSTRY'S 1980 CAMPAIGN - A MORE SOPHISTICATED

ke ml

In 1978 the Tobacco Industry's advertising campaign of unprecedented

length and market saturation resulted in a September 23, 1978 campaign finan

disclosure statement (required by the California Fair Political Practices Act

showing that more than $3 million had already been transferred to Californians

for Common Sense and that 99.6% of such money came from the Tobacco

Industry. Such revelation created a minor sensation and was widely reported.

In the 1980 Proposition 10 Campaign, the Tobacco Industry has implemented

a far more sophisticated scheme to conceal from the California voters both the

fact and the extent of the Tobacco Industry's involvement in the No on 10

Campaign. This scheme includes the following:

(a) Operating through a front organization with the deceptive name

Californians Against Regulatory Excess;

(b) Causing its professionally managed campaign to make numerous

public and private statements either to the effect that (i) the Tobacco

Industry would not be involved in the Proposition 10 Campaign or that

(ii) it was uncertain whether the Tobacco Industry would be involved, or

that (iii) if the Tobacco Industry were not involved, Californians Against

Regulatory Excess could run a viable campaign without tobacco money.

(See the Declaration, the letter from Excess and the Los Angeles Times

interview with Excess Campaign managers attached hereto as Exhibits

H-1 through H-3);

(c) Causing Woodward, McDowell and Larson to write and produce

advertisements against Proposition 10 containing a tag-line of "Paid for

by Californians Against Regulatory Excess" (See enclosed cassette tape

of No on 10 radio advertisements);

(4) Deferring massive spending on advertising against Proposition

10 until September 24, 1980, the day after the cutoff date for disclosing

campaign expenditures as required by the California Fair Political Practices

Act. On September 23, 1980, the No on 10 Campaign (i) reported receipts

of $389,099 (ii) reported that most of that money had already been spent,

and (iii) reported no expenditures for television, radio or billboard

(e) Blanketing the State promptly after September 23, 1980 with

billboards stating "No on 10. This Time It's Even Sneakier"; and

(f) Refusing to disclose further transfers from the Tobacco Industry,

stating only that they would "be very limited". Gee Exhibit H-5.)

J.-A. az

Californians are now being bombarded by broadcast advertisements against

Proposition 10 almost as frequently as they were with almost identical

calculated policy of deception, there is very little public awareness that the

advertisements against Proposition 10 are paid for by the Tobacco Industry.

©. 100% OF NO ON 10 ADVERTISING IS_ PAID FOR BY THE TOBACCO

INDUSTRY

The campaign financing disclosure statement filed by Californians Against

Regulatory Excess for the period ending September 23, 1980 (attached hereto

as Exhibit 1) disclosed that 98% of the money transferred to Excess ($381,262

of a total of $389,099) came directly from the Tobacco Industry.

The exercise of reasonable diligence by broadcast stations would determ ine

that all moneys transferred to Excess after September 23, 1980 came from the

Tobacco Industry.

The Excess Campaign spending disclosure statement as of September 23,

1980 together with the copy of the Excess mailing (attached hereto as Exhibit

J-1) reveal that the $7,837 transferred to Excess from non-tobacco sources

resulted from a mailing financed by the Tcbacco Industry. The mailing requested

each recipient to make @& contribution of only $3.00 to Excess. Direct mail

fundraising experts have advised Yes on 10 that, given the economics of direct

mail, such a mailing would cost many times more to prepare and distribute than

it raised in contributions, and that such a mailing could not be used to help

finance a campaign but could only be for the political purpose of enabling Excess

to claim it has received numerous small contributions. (See Declaration of Larry

Levine attached hereto as Exhibit J-2.)

Since the $7,837 received by Excess from small contributors is dwarfed

the moneys spent to raise that sum, it cannot be claimed that any part of

that $7,837 has been used for the purchase of air time. Thus 100% of the moneys

used for the purchase of air time has quite literally been "Paid for by the

Tobacco Industry".

THE NO ON 10 ADVERTISEMENTS _ ARE PAID FOR BY CIGARETTE

D.

The No on § advertisements were paid for and the No on 10 advertisements

are being paid for by @ distinct entity called the Tobacco Industry. The cigarette

manufacturers are acting in concert as a single entity to attempt to defeat

Propositions 5 and 10. This is evidenced by the decisions of the cigarette

manufacturers to contribute to the "No" campaigns in proportion to each

company's relative share of the tobacco market:

1980 No on 10 Campsign*

Relative 1979 Market % of Cash

Share Among Contributions Among

Company Contributing Companies Contributing Companies

Lorillard 11.4% 11.0%

R. J. Reynolds Tobacco 38.1% 40.1%

Brown & Williamson Tobacco Co. 16.8% 17.4%

Philip Morris 33.6% 31.5%

1978 No on 5 Campaign**

Relative 1977 Market % of Cash

Share Among Contributions Among

Company Contributing Companies Contributing Companies

Lorillard 10.0% 10.0%

R. J. Reynolds Tobacco 37.7% 39.9%

Liggett & Myers 4.0% 0.5%

Brown & Williamson Tobacco 18.0% 19.8%

Philip Morris 30.3% 29.8%

Stanton A. Glantz, Ph.D., the author of two books on statistics and mathematics

and who teaches statistics and mathematics at the University of California at San

Francisco has concluded that there is less than 1 chance in 10,000 that the relative

sizes of the tobacco companies monetary contributions are not in proportion to their

relative shares of the tobacco market. His thorough statistical analysis is attached

hereto as Exhibit K-1.

e See No on 10 campaign financing disclosure statement as of September 23, 1980

and market share report in the March 1980 issue of the Tobacco Reporter

attached hereto as Exhibit K-2.

oe See No on 5's final campaign financing disclosure statement and market share

report in the April 5, 1979 issue of the United States Tobacco Journal attached

hereto as Exhibit K-3.

7 -* eee

wad be Sel

The relative market shares were computed as follows:

In 1977 the five cigarette manufacturers which contributed to No on 5

accounted for 87.6% of the tobacco market. R.J. Reynolds accounted for 33.0%

of the total market, so its relative market share among the contributing companies

was 33.0% divided by 87.6% equaling 37.7%. The relative market shares of the

other companies in 1977 and 1979 was computed in the same way.

E. TAG-LINES INFLUENCE VOTERS AND ARE CRUCIAL TO THE ELECTION

ge a dene, ee eT ee hy ee

The elaborate steps taken by the Tobacco Industry in an attempt to hide

its involvement are testimony to the importance of the Tag-line issue. Two

professional public opinion polls document with precision how adversely the

credibility of the No on 10 advertisements would be affected if the Tag-lines

identified the Tobacco Industry as the sponsor.

The Roper Poll, commissioned by the Tobacco Institute in 1978, found

that "favorable attitudes toward the tobacco industry are at their lowest ebb.”

(See Exhibit L-1)

A September 1980 poll executed by Fairbanks/Canapary/Maullin (the

relevant part of which is summarized in the Declaration attached hereto as

Exhibit L-2) is even more precise. Together with 50 other questions, respondents

were asked: "If you knew very little about a California ballot proposition, would

you be more inclined or less inclined to vote for a proposition that was endorsed

by:

(a) American Cancer Society

(b) American Heart Association

(c) Lloyd Bridges

(4) The Tobacco Industry

(e) California Lung Association

(f) Nobel Prize Winners

(g) Bar Owners

(h) Doctors and Medical Associations

(i) Californians Against Regulatory Excess

(j) Chamber of Commerce

(k) National Association of Senior Citizens

Q) Local Chiefs of Police and Sheriffs

(m) United States Surgeon General

The polling firm found that 67.2% of the respondents would be less likel

to vote fan a: puepenition endoreed tar Ga Selaier Gebietes Cale CU Gaal

be more likely to vote for a Tobacco Industry endorsed measure.

On the other hand 70.9% would either be more inclined to vote for or be

indifferent to a measure endorsed by Californians Against Regulatory Excess.

Only 28.9% would be less likely to vote for an Excess endorsed measure.

° JA Qb

ee

Ri.

F. TOBACCO INDUSTRY HAS EDITO 2] L E NO ON

The Tobacco Industry and its agent a.d alter ego Excess, as part of their

calculated stra to deceive, have denied that the Tobacco Industry

editorial content of No on 10 advertising. However, the existence of such Tobacco

Industry editorial control is demonstrated by the following facts and

circumstances:

1. The Tobacco Industry Had Editorial Control Over the No on 5 Campaign

Before the 1978 election the Tobacco Industry and its alter ego,

Calif For Common Sense, vigorously denied that the Tobacco

Industry controlled the No on 5 campaign. However, immediately after

the 1978 election the Tobacco Industry readily admitted its control of

the No on 5 Campaign at a meeting in Washington D.C. of the American

Association of Political Consultants.

At that meeting Ed Grefe, Vice President for Public Affairs of

Philip Morris, disclosed the t the Tobacco Industry used to defeat

Proposition §. Richard Woe Hal Larson 0 ard, McDowell

& Larson, appeared at the side of Philip Morris' Vice President. Hal

Larson, the person who wrote the No on 5 advertising copy, was introduced

as a “campaign strategist for the industry."

The comments of Ed Grefe made it very clear whose campaign it

was. The Philip Morris Vice President said: "When we shifted the

battleground from smoking to government involvement, we were able to

use the Prop. 13 environment to our advantage.” Reports of the meeting

make it clear that the discussion focused on "the tobacco indus

ae ee a Oe ee ome, +» + conve c on

surveys, and on how "the separated its advertising campaign into

three phases." (See Exhib

2. The Prope pa ign rely One Part In The Continuation

. JN pal ing the Tobacco industry Begui

on 3

It is crucia) for the FCC to understand that tion 10 is

merely a part of a national campaign involving the Tobacco try which

was begun in September 1977 when citizens began collecting signatures

to qualify Proposition 5 and when the Tobacco Institute hired Woodward,

tion § was narrowly defeated on November 7, 1980. Promptly

Proposi

thereafter the United States Tobacco Journal, the official organ of the

Tobacco Industry, ran an a as Exhibit N congratulating

the Tobacco Industry for defeated Proposition 5 but warning that

the proponents of Proposition are likely to try again:

"The cigarette industry can breathe a sigh of relief now that

the vote is in on California's Proposition 5... .

But while the industry can breathe its sigh of relief, it is

very much aware that it cannot relax its guard. A very important

battle has been won, but the war is still on. The makers of the

so-called Clean Indoor Air Act may be disappointed with their

failure to achieve their election day objective, but there’s no reason

to suspect that they'll abandon or lessen their crusade. Not when

the margin of their defeat was so narrow. They'll be back

propositioning the electorate - if, in fact, they've ever stopped.

The entire tobacco industry . . . has an important stake in

what happens in California. What happens in the nation's most

populous state - a state which incidentally accounts for more than

9% of the nation's cigarette consumption - impacts nationally. The

nation, as was so impressively demonstrated by the aftermath of

Proposition 13, follows California's lead. So, while the defeat of

Proposition 5 was a victory for the California tobacco trade and

the cigarette manufacturers, it was also a victory for everyone in

the tobacco industry in this country and by the same token, if the

anti-bacs are successful with their next initiative in California, it

will be a defeat for everyone in the tobacco business.

It would not be ate in the least if eve in the

ind took a partici oe it In the deleat of Waornta’s

ure

Tuture Proposition 5." (Em supp

Two things are noteworthy about the editorial:

(a) The editorial congratulated the Tobacco Industry for having

defeated Proposition 5. Neither Californians For Common Sense nor

any California citizens group was even mentioned in the editorial.

The editorial correctly identified the real party in interest.

(b) The editorial insisted that the Tobacco Industry must be prepared

to go forth and actively do battle against any new California

initiatives. The editorial did not that the Tobacco Industry

should be prepared to assist Calif citizens' if and when

Oe t new proposed

ws.

In 1979 in Dade County, Florida the Tobacco Industry fought an

initiative modeled after Proposition § which was voted upon on May 8,

1979. In just one county the Tobacco Industry t $995,000 to fight

that measure. Tobacco Industry money comprised 99.4% of the $1,001,000

spent to defeat the no smoking sections initiative. Despite being outspent

ailmost“100 - 1, the citizens lost their battle against the Tobacco Industry

by only 820 votes.

10 6 JA. QF

The Dade County, Florida citizens have placed another initiative

on the November 1980 ballot. The Tobacco Industry has already spent

$321,000 against the new Dade County initiative. Every penny spent

against the 1980 Dade County initiative has come from the Tobacco

Industry.

3. The Tobacco Indust Retained the Same Agents In Its No on 5

bacco indu Hes Run ntial ; : e npal Fac

If the Tobacco Industry did not have policy making control in each

of its campaigns and if each of the "no" campaigns were truly controlled

by local citizens, the same political operatives would not work in all

campaigns nor would the campaign techniques utilized in all "no" campaigns

be virtually identical. However:

Woodward, McDowell and Larson did all the media and

billboard advertising work for the No on 5 campaign and the Dade

County campaign, and is doing the media and billboard advertising

the Tobacco Industry controls advertising policy. —

V. Lance Tarrance did the public opinion polling for No on

5 and the Dade County campaign, and is doing the polling for No

on 10. (See Exhibit P-1.)

Dobbs & Nielson did all the legal work for No on § and is

doing all the legal work for No on 10. (See Exhibits D-2 and P-2.)

The Tobacco Industry in the Proposition 10 Campaign has attempted

to obtain political benefit from the acronym of its agent's name -

Californians inst Regulatory Excess (CARE). If one is to believe the

Tobacco claim that the 1980 California and Dade County "no"

campaign's are both independent citizens’ campaigns which are free from

the Tobacco Industry's editorial control, one must be a great believer in

unusual coincidences. For in Dade County the 1980 "no" campaign calls

itself Floridians Against Increased Regulation (FAIR). It strains credulity

to belfeve that two citizens’ groups at both ends of the continent would

simultaneously and independently conceive of names that stress

Woodward, McDowell and Larson were not hired until after September

23, 1980, long after the acronyms CARE and FAIR were put into use.

il

The names CARE and FAIR, however, ere not the only similarities.

Each of the "no" campaigns has been an almost exact replica of each of

"no" campaigns:

other

(a) The "no" television and radio advertisements are almost identical

in all campaigns. They are identical in terms of themes as well as

techniques (See Exhibit P-3.);

(b) The No on 10 matchbooks distributed all over California have

the same color and typeface as the No on 5 matchbooks;

(c) Similar grapic art work has been used in all campaigns;

(4) Both the No on 5 and No on 10 campaigns sent out a phony |

"fund-losing" mailer at a net loss solely for the political purpose

of enabling the "no" campaigns to state they had some non-tobacco

money;

(e) Houston Flournoy and Peter Pitchess were the figureheads who

signed the ballot arguments against both Propositions 5 and 10 in

the California Secretary of State's Voters Pamphlet;

(g) All "no" campaigns relied on demonstratively false taxpayer cost

"studies". The Tobacco Industry produced a "study" alleging that

Proposition 5 would cost. taxpayers $20 million for signs (despite

the fact that the neutral California Legislative Analyst stated that

the study's methodology was faulty and despite the fact that the

study contained a crucial arithmetic error. When the error was

corrected, the study concluded that the taxpayer sign cost would

only be $20,000.) California Superior Court Judge Irving Perluss

held that the No on 10 governmental cost studies were "false and

org In Dade County a similar taxpayer cost" study was

(g) No on 5 continued radio and television "spots" alleging a $20

million taxpayer cost for signs even after the arithmetic error was

discovered. No on 10 produced and is now running radio

advertisements making the same taxpayer cost statements @

California court found to be “false and misleading";

(h) All campaigns spent incredibly large amounts of money and all

have been more than 99% funded by the Tobacco Industry; and

(i) All campaigns misrepresented Tobacco Industry Involvement.

S655

Excess has claimed that the fight against Proposition

10 began on July 8, 1980, the day Excess was incorporated. Excess

claims the decision by the Tobacco Industry to contribute to No on 10

was made after Excess was formed and only because of the entreaties

made by Excess. (See Exhibit P-4)

Such a claim is legally irrelevant to the instant request for

declaratory relief. The authorities cited below clearly demonstrate that

a committee which is independent of another party at the time of the

committee's formation can subsequently become the agent of the other

party. Nevertheless, evidence that the Tobacco Industry began fighting

Proposition 10 long before July 8, 1980 is also evidence of the Tobacco

Industry’ editorial control over the No on 10 campaign:

(a) Joe Cerrell, a paid political consultant to Philip Morris openly

admitted in June of 1980 before Californians Against Regulatory

Excess was ostensibly “organized” that the Tobacco Industry had

decided to "come into the Proposition 10 Campaign." (Gee

Declaration attached as Exhibit Q-1.);

(b) During the winter of 1980 the Chairman of Yes on 10 had a

conversation with an employee of Dobbs and Nielson (the law firm

which represents the Tobacco Industry's agents). The employee

informed the Yes on 10 Chairman that Dobbs and Nielson was doing

a lot of work with respect to the Yes on 10 organization and that

pepers on which the Yes on 10 Chairman's name appeared were

strewn all over the office. (See Exhibit Q-2.) Unless one is prepared

to believe that Dobbs and Nielson was doing unsolicited pro bono

work for the Tobacco Industry, one must conclude that Dobbs and

Nielson was being paid to advise the Tobacco Industry on how to

implement the Industry's plan to deceive voters regarding its No

on 10 involvement without violating California's Fair Political

Practices Act.

(c) The Greene Bill and Its Dade County Equivalent

In 1978 the Tobacco Institute commissioned the Roper

Organization to conduct a public opinion poll (the relevant parts

of which are attached as Exhibit R-1) to assist it with its political

problems. The poll found that:

(i) fears of nonsmokers about inhaling second-hand smoke

have risen sharply in recent years - a fact that"...

represents the most dangerous development to the viability

of the tobacco industry that has yet occurred";

(ii) "there is already majority sentiment for providing separate

facilities for smokers and nonsmokers"; and

(iii) in the future, "the pressure for segregated facilities will

change from a ripple to a tide."

In its analysis, the Roper Organization suggested to the Tobacco

Industry ". .. some short term tactical approaches that may slow the

efforts of the anti-smoking forces." Chief among those tactical approaches

was that whenever meaningful separate sections legislation is proposed

and seems likely to be enacted, the Tobacco Industry should lobby for

watered down legislation that appears to protect nonsmokers but in reality

does not. (See Exhibit R-1)

In 1980 the Tobacco Industry implemented the Roper Organization's

"tactical approach” in California and in Dade County.

In March of 1980 (while signatures were still being collected to

qualify Proposition 10 for the ballot and long before Excess was organized)

the Tobacco Industry caused California State Senator Bill Greene (to whom

$20,000 had been transferred by the No on 5 campaign in 1978 as shown

by Exhibit R-2) to introduce SB 2026 (the "Greene Bill"). Most of the

Greene Bill (a copy of which is attached as Exhibit R-3) was word for

word identical to Proposition 10. The Greene Bill, using language identical

to Proposition 10, provided for smoking and no smoking sections in indoor

public places and indoor places of employment, but also permitted any

place to be designated in its entirety as a smoking area, thereby taking

away with the right hand what the left hand had given. The Sacramento

Bee editorial page correctly pointed out that the Greene Bill was:

"an attempt at a pre-emptive strike, a diversionary measure which,

though worded in part precisely like the proposed initiative, is so

full of exemptions and loopholes that its net effect would be worse

than no new legislation at all." (See Exhibit R-4.)

Meanwhile in Dade County, the Tobacco Industry implemented identical

tactics by causing a “look-alike” bill to be introduced before the Board

of County Commissioners which, if passed, will cause many Dade County

citizens to vote against the 1980 initiative because falsely think the

bill hes already accomplished the same objective. Exhibit R-5.)

This evidence from Joe Cerrell, from Dobbs and Nielson, from the

Roper Poll and the identical and almost simultaneous pre-emptive strikes

both and only that the Tobacco

me J.-A. 32

5. Excess Misrepresented the Membership of Its "Board of Directors".

In its October 2, 1980 letter to Station Managers and Legal Counsel

attached hereto as Exhibit S, Excess misrepresented the membership on

its "Board of Directors" by untruthfully stating that the President of the

California Restaurant Association was an Excess Board member. On

Friday October 10, 1980 Mr. James Collins, the President of the California

Restaurant Association, stated that he was not a Board member of

Californians Against Regulatory Excess, that he had never received any

notice of any Excess Board meeting, that he had never attended an Excess

Board meeting, and that he has avoided any discussion of No on 10

strategy. Mr. Collins stated that he did allow Excess to use his name in

an Excess — to California Restaurant Association members. (See

Exhibit T-2.

Only an examination of the files and records of Excess can disclose

how many other misrepresentations there are in Excess' October 2, 1980

letter to Station Managers.

6. The Excess Board Does Not Control Advertising Policy

It is noteworthy that Excess' October 2, 1980 letter to Station

Managers did not claim that its Board of Directors controlled campaign

policy. The letter merely claimed that the "Board meets regularly to

discuss campaign activities" There is a vast difference between "discussing

campaign activities" and controlling policy.

While the October 2, 1980 letter does state that the Board of

Directors has not delegated editorial control to anyone, it does not claim

that the so-called Board ever had any such control. A transcript of a

KNXT Los Angeles television interview with Ms. Karen Peters, purportedly

fundamental issue facing campaign policymakers - campaign finance - Ms.

Peters responded that she was only a volunteer and knew little or nothing

Due diligence by broadcast stations would determine that Woodward,

McDowell and Larson, "campaign strategists for the industry", together

with Ed Grefe of Philip Morris and Ed Grefe's counterparts at R. J.

Reynolds, Brown & Williamson, Lorillard and the Tobacco Institute prepare

based on the public opinion polling of V. Lance

Tarrance, that the Board gives no direction to Woodward, McDowell and

Larson, and that the Board has made no changes in advertising copy

prepared by "the campaign strategists for the industry."

Ae ea

The Tobacco Industry can obviously afford to hire lawyers capable

of ensuring that legal formalities are followed. There is no doubl the!

oF nos is troperly incorporated or that Tobacco Industry checks go thravgh

Excess payment is made to broadeast stations. However, the FCC

Exoe™ utilize the IRS “step transaction doctrine” to ensure that form is

7. The Tobacco Institute Is Interchangeable With the No on 10 Campaign

Tobacco Institute personnel, propaganda, materials and themes are

interchangeable with No on 10 and No on 5 personnel,materials and themes.

Until a few months ago Bill Dwyer and Connie Drath were two of

the four official spokespersons for thi Tobacco Institute (See Exhibit U-1.)

These two photogenic and articulate people travelled continuously

throughout the country debating ~ advocates of smoking and no

smoking sections legislation and de ending the interests of the Tobacco

on local and national radio and television programs. Now they

neuteing paid by Excess to debate Yes on 10 spokespersons on local and

national television and radio programs. (See Exhibit V-1.)

James McKinney, @ paid staffperson of Excess, quoted extensively

from the Tobacco Institute brochure attached as Exhibit V-2 during a

KNBR radio debate in San Francisco with Yes on 10 spokespersons on

October 7, 1980.

Stu Spencer, the national political adviser to the Tobacco Institute,

is also a consultant to Excess (See Exhibit V-3)

The graphic artwork attached as Exhibit W comes from the Tobacco

Observer, the propaganda outlet for the Tobacco Institute. The {dentical

graphic artwork was displayed as & convention booth paid for by No on

S. The same graphic artwork appeared on the face of a No on § brochure

(See Exhibit X.)

While the fungibility of artwork, advertising themes and personnel

does not prove Tobacco Industry involvement, it raises a serious question

Jes aed by itself shift the burden to Excess to prove that it is not

the alter ego of the Tobacco Industry.

Vv. LEGAL DISCUSSION

———

A. THE SPONSORSHIP IDENTIFICATION RULE

ipel that "listeners are entitled to know by whom they are Den

The

persuaded” is an integral part of federal communications law. In Re Applicability

of Sponsorship Identification Rules, 40 FCC 141 (1963).

ey

The relevant perts of 47 CFR 73.1212 (the "Identification Rule") reads:

(a) when @ broadcast station transmits any matter for which money. .

is paid or promised to . . . such station, the station, at the time of

the broadcast, shall announce (1) that the matter is sponsored, paid for

or furnished . - . , and (2) by whom or on whose behalf such consideration

was supplied ....

(e) The announcement shall . . . fully and fairly disclose the true identity

of the person or persons, or corporation, comittee, association or other

unincorporated group, or other entity by whom or on whose behalf such

payment is made or promised. . . . Where an agent or other perso’ Of

entity contracts or otherwise makes arrangements with a station on behalf

of another, and such fact is known or by the exercise of reasonable

diligence .. . could be known by the station, the announcement shat

disclose the identity of the person or persons or entity on whose behalf

such agent is acting instead of the name of such agent.”

The facts set forth above make it clear that Excess, acting as the Tobacco

Indutry's alter ego, is acting as the agent for that Industry. The intent behind

the law, the clear words of the Identification Rule and case law require the

Industry's advertisements to be identified as "paid for by the Tobacco Industry"

so that listeners can know by whom they are being persuaded.

B. THE WHAS-TV_ DECISION

The Sixth Circuit's decision in United States v. WHAS-TV, Inc., 385 F 2d

784 (6th Cir. 1967) is crucial to the Instant Request since the facts of that

case are so close to the instant facts and since the FCC's Identification Rule

was amended in 1975 for the express purpose of changing the Sixth Circuit's

interpretation of the then existing rule.

Kentucky, the two leading candidates were former Governor Chandler and a

certain Mr. Breathitt. Television station WHAS-TV in Louisville carried a program

entitled "The Chandler Years in Review" critical of the former Governor's record

me eS Se are poy fw Sg ain age rah te

was no e or mittee

for Good Government", and was Sn eS WHAS-TV.

When the Committee for Good Government was formed, all legal

formalities were observed. Indeed, the Committee for Good Government was

» «6 A. STS

The FCC attempted to fine WHAS-TV ‘for violation of the

Identification Rule, but was frustrated by Sixth Circuit which held that

the then existing Sponsorship Identification Rule was too ambiguous to

permit such a fine. The Court, however, added:

announcement.”

The Court concluded:

nwhatever the difficulties may be (in promulgating such &

Regulation), it seems obvious to us that the Commission should

seek to face and resolve them in a published Regulation rather

than relying on the intuition of its licensees”

(385 F. 2d 784, 788)

C. The 1975 Amendment of the Identification Rule

In 1975 the FCC amended its Identification Rule specifically

"because of the WHAS decision." Federal R ter, Vol. 40, No. 82, 18395

(Monday, April 28, 1975) (hereinafter cometines referred to as the "1975

Notice” and attached hereto as Exhibit T.)

The purpose of the amendment was:

" to clear up any misunderstanding about whether the statute and

rules require a licensee, who knows, or has reason to know the

facts, to adequately identify the person or persons paying for. .

. the material broadcast... - Where a political broadcast is

presented . . - by & committee which is really & campaign

instrumentality for a candidate or @ political organization, the

lie be made aware of the latter fact."

34 FCC 2d at 1105)

The breadth of the FCC's requirement is indicated by its rejection

of NBC's argument against the new amendment. NBC argued that the

amendment would place an impossible burden on licensees, and asked

rhetorically how far a licensee must penetrate the political fund-raising

to ferret out the person or group whom the Commission will deem

process

to be the "principal" of the "agent".

The FCC, in reply, admitted that the new amendment would place

some administrative burdens on stations, but:

» Sh Bs

Given that the new amended rule was adopted specifically to

overrule the WHAS-TV decision, there should be little question that the

Tag-line of Excess' No on 10 spots must, in the words of the FCC

Identification Rule:

"fully and fairly disclose the true identity of the ... entity..

. on whose behalf such payment (for air time) is made or promised.

Where an agent (i.e. Californians Against Regulatory Excess)

contracts with a station on behall of another (i.e. the Tobacco

Industry), . . . the announcement shall disclose the identity of the

entity on whose behalf such agent is acting instead of the name

of such agent.”

D. Whether Or Not Excess Was Formed Before Or After The Tobacco Industry

Took Control Is Irrelevant

Excess claimed in its October 2, 1980 letter to Station Managers

that it was formed independently of the Tobacco Industry. Although the

evidence indicates this is untrue, it is irrelevant whether or not it is

true. In WHAS-TV the Committee for Good Government was originally

formed independently of the Breathitt campaign, but later became

controlled by the Breathitt organization.

The editorial control of Excess’ advertisements is now clearly

controlled by Woodward, McDowell and Larson, "the campaign strategists

for the industry", (See Exhibit M) and by Ed Grefe and his counterparts.

Whether Excess was tainted at birth is irrelevant. What is relevant is

that today, in waging @ massive media effort to influence the outcome

of an election in California, Excess is the alter ego and agent of the

Tobacco Industry.

E. Legal Formalities Are Irrelevant

The WHAS-TV case and In Re KOOL-TV, 26 FCC 2d 42 (October 15,

1970) make clear the irrelevance of the facts that:

" The Committee (Excess) is properly organized as & non-profit corporation,

(sic) we have received tax exempt status from the IRS and Californie

Franchise Tax Board, and we follow all the formal and prudent operating

procedures required of California Corporations.”

F. In Re KOOL-TV

In Re KOOL-TV, 26 FCC 2d 42 (October 15, 1970) attached hereto as

Exhibit Z is Turther authority for the Yes on 10 position. In that case television

advertisements favoring the U.S. Senate candidacy of Sam Grossman had the

Tag-line "Paid For By A Lot Of People Who Would Like To See Sam Grossman

Elected To The U. 8. Senate (hereinafter called "Lot of People”). In the course

of a FCC iveatigation, the Sam, Gross, eaDeW ert grommans candies

one of the cam organizations formed to support Mr. Grossman's candidacy

was formally named "A Lot Of People Who Would Like To See Sam

Elected To The U. S. Senate". It is clear from such response that

19 J. A. 37

the legal formalities were carefully observed. However, it was

to the FCC that the Lot of People committee was comprised of

good-hearted and honest people who had no control over advertising policy, that

all such decisions came from the Sam Grossman campaign, and that all the

The FCC held, therefore, that the use of such a name as the Tag-line

for television spots:

"does not achieve the basic purpose underlying the sponsorship

identification requirements . . . namely, that the ublic is entitled to

know za whom it is being persuaded. The language here employed for

spo ) ntification was so general that it did not convey to listeners

and viewers the fact that the announcements were sponsored by a specific

res i.e., a committee supporting Mr. Grossman's candidacy." (Emphasis

added

The FCC clearly knew that use of a Tag-line such as Lot of People would

conjure up in the minds of viewers @ false impression that a group of concerned

citizens without connection to Sam Grossman felt so strongly about his candidacy

that they independently raised the money and produced the advertisements in

question.

Use of the Tag-line "Paid for by Californians Against Regulatory Excess"

in No on 10 Advertisements similarly creates a false impression in viewers' and

listeners' minds that irate groups of Californians have organized and raised money

from California sources to combat what they as Californians perceive as being

a law which is undesirable for Californians. The contrary is of course true.

Californians have not paid for the spots. The spots, are paid for and controlled

By eastern tobacco companies.

G. V.O.T.E.R. AND NATIONAL WELFARE RIGHTS ORGANIZATION

The instant case is easily distinguishable from the complaint of V.O.T.E.R.

against fifteen New York City area broadcast stations reported in Pike and

Fisher, 46 RR 2d 350. V.O.T.E.R. alleged that Westchester Citizens Against

Government Takeover obtained "all or a a very substantial part of its funds

directly or indirectly from Consolidated edison and fail allege that

Consolidated Edison Fad editorial control of Westchester Citizens' advertising.

In the instant case Yes on 10 has demonstrated the Tobacco Industry's editorial

control of No on 10 advertising and has shown that 100%* of the cost of No

on 10 air time has been paid for by the Tobacco Industry.

*As in 1978 the Tobacco Industry may obtain some nominal additional funding

from non-tobacco sources. To date, however, as demonstrated above, non-tobacco

money is not sufficient even to pay the actual cost of raising the funds. Excess’

real operating capital, including money to pay for broadcast advertising, comes

in its entirety from the Tobacco Industry.

20

U-A. 33

National Welfare Rights nization v. Gilmore Broadcasting C

- al. 41 F early e from tant

case. In the National Welfare Rights case the American Academy of Pediatrics

pr vane initia c service message concept, drafted the copy itself and

sent it to CIBA Pharmaceutical as a method of raising production funds in the

same manner that Yes on 10 volunteer fundraisers show Yes on 10 advertisements

to potential contributors. A contributor likes to know how his or her contribution

will be expended. No CIBA Pharmaceutical control over the advertising copy

was demonstrated.

In the instant case, however, advertising copy is drafted by the "campaign

strategists for the industry." Other evidence of editorial control by the Tobacco

Industry has been presented as completely as is possible without subpoena power.

The whole story of Tobacco Industry involvement lies in the files and records

of Excess, the Tobacco Institute and the members of the Tobacco Industry.

Moreover, the National Welfare Rights case involved small sums of money

only for production of a public service message. The costs of conceiving and

writing copy and the costs of arranging for production and placement of the

message were paid for by the Americna Academy of Pediatrics. The instant

case involves millions of dollars of purchased air time for political messages,

100% of which is paid for by the Tobacco Industry.

H. EXCESS IS THE ALTER EGO OF THE TOBACCO INDUSTRY. THE FCC

SHOULD PIERCE THE CORPORATE VEIL

Professor Warner Fuller's statement in the Harvard Law Review is

particularly applicable to the instant request: Where ". . . the corporate devise

has been used to defraud creditors, to evade existing obligations, to circumvent

a statute, ... or to protect knavery... ," the courts will pierce the corporate

veil. Warner Fuller, The Incorporate Individual: A Study of the One-Man Company,

51 Harvard Law Review 1373, at 401 (1938).

The Tobacco Industry is trying to use the incorporation of Excess as a

device to circumvent a statute - Section 317 (c) of the Act - and to protect

the knavery and deceit described in these pages.

The other classic characteristics of an alter ego are present and

documented above. Although the Tobacco Industry has been very diligent in

observing legal formalities in structuring Excess, in the words of Mr. Justice

Stone, "those familiar with present day methods of corporate control will not

be so naive as to suppose that the complete domination in fact of its subsidiaries

by a holding company owning all their stock is in any way inconsistent with

scrupulous recognition of their separate corporate entities, or with the

maintenance of separate accounts and distinct personalities of officers and

directors."

21

J.A. 39

The Tobacco Industry has complete domination in fact cf its alter ego.

One of Excess' purported Board members is completely unaware of his place on

the Board and has never received a notice of any Board meeting. Another

ed Board member, when asked by a television show moderator about the

most fundamental issue facing campaign policymakers - campaign finance -

responded that she is only a volunteer and knows little or nothing about such

things.

The FCC's duty to protect the public interest requires it to pierce this

corporate veil which shrouds listener and viewer awareness of who is paying for

the Tobacco Industry advertisements.

I. U. S. SUPREME COURT DICTA Dicta

Dicta in a recent U. S. Supreme Court opinion indicate that our highest

court agrees with the Yes on 10 position in this application.

In First National Bank of Boston v. Belloti, 435 US 765 (1978) the Court struck

down a state law Limiting the amount that corporation may spend on bellot measures

such as Proposition 10. In doing so, the court expressed its belief in the people's ability

to judge and evaluate "the relative merits of conflicting arguments” even though one

set of arguments are advanced by wealthy corporations. The Court then pointed out

that the people:

"may consider in making their judgements, the source and credibility of the

advocate.” 435 US at 791.

The Supreme Court continued by stating:

"Corporate advertising, unlike some methods of participation in politica]

campaigns, is likely to be highly visible. Identification of the source of

advertising may be required as a means of disclosure, so that the people

will be able to evaluate the arguments to which they are being subjected."

435 US at 791, f.n. 32.

If the Tobacco Industry were allowed to hide behind the front "Californians

Against Regulatory Excess", the major assumption underlying the Bellotti decision wuld

be untrue. The people would not be able to judge and evaluate the relative merits of

conflicting opinions on Proscsition 10 if they are unable to consider "the source and

identity of the advocate" because of a calculated campaign strategy by the tobacco

industry to hide the involvement of the Tobacco Industry from the people of California.

Requiring the Tobacco Industry to be identified as the sponsor of No on 10 spots

will be consistent with former Justice Lewis Brandeis' advice:

22 J. A. 40

"Publicity is justly commended as a remedy for social and industrial diseases.

Sunlight is said to be the best of disinfectants; electric light the most effective

policeman."

Very truly yours,

Californians for Smoking and

No Smoking Sections

Q

by

» JA A

Exhidit D-]}

i" THE NEW YORK Times, THURSDAY MARCH ii, tine *

*S @ te. ae.

Californians Will Vote on Whether to

By GLADWIN FILL

Los ANcEeLrs

“" ALIFORNIA may decome the

al first state to restrict omaising te

: indoor pubbe laces ‘ave

1 ber et other’ lecsles Uscough

iter action,

Frevtrated by irgittative reverses,

Tpa gers fcr evoking restrictions

‘e with the Secretary of State

tative sons bearing more thea

5.0 renatures—e twice the

The todacce industry le mounting &

rge-scale compsign te defeat the

tasure, contending that it Is an en-

oachment oa personal ‘iberties and

oid 1, tmerdinately expensive te la-

clooed eread is detrimental te noe.

emokers’ health, welfare, comfort and

environment.” the proposed statute

would make it Wegel te smoke “in any

sed public place, enclosed place

employment, enclosed educational .

feciiny “— tm any enclosed health (a+ |

cdnty. enders would be subject to

& $50 fine for each violation. ‘

Eavmpted from the ben would be

ssloens, tobacce shops, prveteny teat

ed hotel fectiities, gambling and bi-

Mord — and yee gly -

ofessional sports events

e concerts,

muelc

Ld exempied would be lobbies

of publ sietes on lounges where the

management provided «@ partit

amoking area covering ne more than

SO percent of the ¢. Reasteurants

would have no-smoking areas of sizes

@ocretionary with the management

.

Recent indicete that about

A os Rational population

Some 30 states, and many cities,

have laws of some sort restricting

emeoking, but enly two states, Minneso-

te and tien, are belicved te have siat-

In both the

were bnstinuted through ee equier

legislative process.

The Calsfornia initiative campaign is

being conducted joietly by the Group

Aguinst Smoking Pollution (GASP) in

porthern California and Californians

for Cleen Indoor Ale in southern Call-

GASP |s headed by two San Prancis-

ceo lawyers, Peul Lovedsy end Peter

The southern California cam-

ls heate Les Angeles |e

bbws tem nee ew

clei |

Restrict Smoking in Publid

The clean indoor ale committee's

honorary chairman le Dr. Linus Paul-

Ing, the Nobel Prize ecientist, and the

eee = —_ 48 & supporter Dr,

nn Seaborg, former chairmen ef the

Atomic Energy Commission,

The twe groups reised and spent

about $40,000 on the 150-dey petition

campaign and estimate that 300,000

to $1 million will be im the

Coming election campaign.

Opponents of the sal have held

their fire untd now, they have set

UP & Campaign committee, Californians

for Common Sense, and engeged & Sen

Frencisce gemiteet Management con-

cern, Woodward & McDowell, which

acknowledges thet (ts principal sponser

Is tobacco manufacturers.

eS. ie industiys pri

Wace Aiiocli on Ald ieskeim

al ail to ry Devid-end-Coltery

." Mr, Love of GA

wee po “fis tabscee ndvairy i 6

advertis i"

te spend millions, Vere going te'hene

to rely o@ talent and voluateers.”

.

Apart from interpersonal anno

8nd hezerds of cmoking. Mr. Loveday

seid, experience of business operations

where amoking was senregated hed ine

— et productivity end re.

absente

pe tlm from respwatery

Woodward & McDowell's init! '

le the current circulation of aw Ag

Mation™ it lo saws Orgeatzaiions de.

sang @ections of the propos

“An economic impact survey foun

that the Iritial cost to businesses

aut with this law would be uy

boy ef 3200 million,” Jack McDowe!

4 ‘

“i woul { put big companies la his’

rise buildings im a bind.” he saic

‘They'd have te partition every Non

ba illogical ways: You can't segrege

smoking ard nonsmcking employeca n

different Noors with discegard (or nor

Mal operating arrangements. And ho:

Can you partition coin leundries, ba

bershops or bowling alleys? !

“There's we'rd inconsistency in U

prepeees he continued. “If aa aver

ed & prcfessional sports event yo

could emecke, But if you went te ti

srene the next night and tere «

On emateur contest, you coulda't.”

sada \

oom oe Og eee eee Oars © Met Bae FREE HTH ee me

. ( AMITTEE CAMPAIGN STATEMER Js 43929 = oe

7 (Government Code Section 33209-82215)

Giut Pe Fer cre by: (1) persons whe have made eapendinurm or contribusions totale; is

S3.020 or mors in 2 @iencar yeor Cuectty 19 of at the Benen of 2 Eondics, ,

eltictnoic # or commirery: 07, (7) periens whe have Male increendent eaaendi- Ae

tures on beh wl of 2 concicss, oft:crnoiée or ballot mraurs in the amount of $$ $$ $_—_____

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(Type or Print in ink)

REGIST!’ AN CF » veo

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CO INSTITUTE

SSaass: NO. ano aT acer civv met ATE Zit coo rere eta Pee

Street, N. W. Washington, D. C. 20006 (202) 457-4800

SaAaa:

ra Nielsen, Jr. ‘

"“SDaAiSS OF TALASUAGA: NO. ANO STASET Gtr STATE aivtooL AAD ee”S”*~*C oe

-500, One Maritime Plaza San Francisco, CA 94111 ° (415) 362-1940 ~—

“ELECTION (Circe ome ff appiemeney: CincLs iF APLICASLE: DATE OF ELECTION ING. DAY VAJ:] TOrAL PAS

—y Genre) Soot = Real - a. __ 11/7/78 - 2

@: post qualification :

31TURES AND CONTRIBUTIONS MADE TO: (Amount may be rounded off to whol dollars)

~ O=ESCAIPTION OF Name, OF CANOIOATE & OF FICE| ASACUNT * CusMU-

LL NAMZ AND ACORESS~ EXPENDITURE OA De Rae OF Oe Mia TAINS LATIV:

TION MAGS —"

7 uTIO? 's) . wncx Qael PERIOD AMOUR

Su>j Cr+

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| ‘22 Battery Street, Suite 404 Air Act : X|27,000°| 27,006

- San Francisco, CA 94111 > ; |

a“

- Dobbs & Nielsen™ posneees ae Ss a " x] 24,400 | 24,400

i me ee St: 2500 |< e500. , 680 Beach

: ¥ CA" 94109

t/Dobbs & Nielsen

Qe Maritice Plaza, Ste. 2590

"San Francis=o, CA 94111

a em | 7 ‘ oe 23

me ex

Me

A Seen D. Kelly Reimbursement for :

@| Tne Tobacco Institute travel expenses x Ff x 705 70S

11776 K Street, N.W. (meals, lodging, .

ead LAPQIR TI N.2F IE DILDR TITY Led ITI APER STO ® : o* ;

N SUDTOTAL (Cary with any sddicomal sstrotls t Lime 1,Part(v) $|.61,668

get, 1977

i Seretare wen onde wa eouwiene, tin Do

“Ass YOU ¢aUST COMPLETE THE SUMMARY

n

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ae. - ~ ee <=.

~ pon 4 te ST

Numrver lor the Ast norm ond

ANO VERIFICATION ON PAGE 2

sais : gc’ ;

: Ln «>. -<1flinlie, ok 4 ee Oe ere:

es ee |) (lL Pe rere) oe ow Perel

po

wenn

ee

ae 1 qu THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

>

2 IN AND FOR THE COUNTY OF SACRAMENTO

3 DEPARTMENT NUMBER ONE HON. ROTHWELL G. MASON, JUDGE

. CAMPAIGN FOR CLEAN INDOOR AIR, )

an unincorporated association; )

6 PAUL LOVEDAY; EDDIE TABASH; )

PETER HANAUER; SUSAN KENNEDY ; )

~T and JAMES WHITE,

g Petitioners, )

)

9 vs. ; No: 275588

10 MARCH FONG EU, SECRETARY OF STATE, }

11 Respondent,

12 CALIFORNIANS FOR COMMON SENSE, )

a nonprofit corporation; HOUSTON I.

3 FLOURNOY; KATHERINE DUNLAP ;

13] prrer J. PITCHESS; and VINCENT } Sec f*

14 TOOLAN, State Printer, )

; sxe

15 eS SSSSSS SSS CO SSS x

16 ---000---

, 17 FRIDAY, AUGUST 11, 1978

| 18 ---000---

) 19 REPORTER'S EXCERPT TRANSCRIPT

| 20 TESTIMONY OF

: 2 VIRGO G. NIELSEN, JR.

“ 2 @--000---

| 23 | APPEARANCES:

24 For Petitioners: ROGER JON DIAMOND, Esq.,

15415 Sunset Boulevard

s Pacific Palisades, California

ya For Respondents: VIRGO G. NIELSEN, Esq.,

Suite 2500, The Alcoa Bldg.

rai 1 Maritime Plaza

San Francisco, California

zB eee

' Reported by: STEPHEN M. ROCHE, CSR €3429

|

-—-—— oe —— eo . 6& ——— -_—— errr _-. .

’

a2 ww =

oeoew8wWe

ea

So

FRIDAY, AUGUST 11, 1978

=---000---

The matter of the Campaign For Clean Indoor Air, et al.,

Petitioners, versus March Fong Eu, Secretary of State, et al.,

Respondent, Number 275588, commenced on this day before Honorable

Rothwell G. Mason, Judge of the Superior Court, in ané for the

County of Sacramento, State of California, sitting in the said

Superior Court, in Department One thereof.

The said Petitioners were represented by Roger Jon Diamond,

Esq., acting as their counsel.

The said Respondents were represented by Vigo G. Nielsen,

Jr., Esq., acting as their counsel.

The following partial proceedings were had, to wit:

MR. DIAMOND: He does have two other attorneys here to

represent him, and -- Mr. Hodgson and --

WITNESS: Mr. Hodgson, would you like to represent us in

my absence, please?

THE COURT: Will you take a seat, please?

He is being called under 776 of the Evidence Code.

THE CLERK: Do you solemnly swear that the testimony you

are about to give shall be the truth, 8° help you God?

WITNESS: Yes, I do.

THE CLERK: Please state your full name.

WITNESS: Vigo G. Wielsen, Jr-, & resident of Marin

County, California.

TESTIMONY OF

VIGO G. NIELSEN, JR.- witness called on behalf of the Petitioners

herein:

Petitioners herein:

Q Mr. Nielsen, were you retained by the petitioners in this

action to file @ lawsuit on their behalf?

a I was retained by & =~ Californians For Common Sense

to file an action on behalf of the three authors.

Q So Dunlap, Flournoy, and Pitchess have not retained your

firm to represent them in this action?

A Other than in their official capacity as opponent

signatories -- 1 don't understand your question.

Q Californians For Common Sense and not the three petitioners

have retained you ~~ oO has retained your firm to file the :

lawsuit; correct?

B The Election Code requires that persons submitting an

argument shall do it as an organization and for the -~- that

organization submit not more than three human beings to appear

as the authors in the official ballot pamphiet.

Californians For Common Sense submitted the argument and

rebuttal and had three human beings serve as their authors just

as your campaign aid and your three authors dic.

Q Now, yes or nO, Dunlap, Flournoy, pitchess -- 4id they

retain you to file a lawsuit for them? Yes OF no?

a Individually, separate from their individual capacity

within the context of being signatories, no.

As being representatives of Californians For Common Sense,

yes.

nl

F

2 am x .

oot.

’

Q are they paying you anything to represent them in this |

armen ——— a

qnseeenre severmoves y sit

ee — . ..

rs ' bon ~

Par: rR SAG ee ee Ee Th Somer

y 7 : oe -. - r - : . ob Boe ~e

‘ar ae 4 y a > a : i ee

OM ey - ‘~ ‘ a ian 4 - eee! ¢

. - igs pp Pte 2 Ny alg sae Tie cae a

» SC) \

-

a

i action?

2) * Separate from Californians For Common Sense, HO°-

Q Okay. The study that you refer to, this economic study --

who did that study?

a I believe it's done by an organization called Economic

3

4

5

~g | Research associates.

71 @ And where are they based?

8 os According to the campaign report, San Francisco.

9} @ And when was that firm retained to prepare the study?

30} * I do not know. I am the attorney for the committee. I am

11 not the campaign management firn. I am not the person that

12 | makes those decisions. I represent the committee, Mr. Diamond.

13 | @ You have no information at all upon which to make &

14 | decision or an estimate as to when approximately the firm was

15 retained?

#2} * The firm had to be yetained after -- whatever ~~ it was

17 | October, 1977, since there was no organization to retain it,

it was retained sometime before the statement to Your Honor's

Payment List, because they would have probably been paid either

a progress payment or at the completion of their study.

Q And when were they paid for their study?

aA Between May 10, 1977 and June 30 -~ excuse me ~~ 1978 and

June 30, 1978.

Q and how much was that firm paid for the study?

WITNESS: If your Honor would let me see that statement.

ghey were paid at least $3000.00.

THE COURT: Would Z interpret -- you made a previous

and similar report from earlier reporting, but you don't have tha

esxsxeees 2 8 Ss

-5-

€. 3 *

oomownw aoweweeTe *:,

here today or don't know if there was any additional payment?

WITNESS: Correct. The law requires that both sides

file a report in mid-May going through the 10th of May -- or is

it March 10th of -- March, that report was filed, and that would

have all previous income and expenditures.

THE COURT: So our record is correct, you said May 8,

May 10 a while ago. You probably meant March 107

WITNESS: I stand corrected. It was between March 10, 1978;

Mr. Diamond, and June 30, 1978, in which the $3000.00 payment

was made.

Q [MR. DIAMOND] And when was the study completed?

A I have no idea.

I assume during that same period. It was made -- it was

comple.2d prior to the submission of the opponent's official

argument.

Q You mentioned -~-

THE COURT: Prior to the submission -~-

WITNESS: <-- of the opponent's -~

THE COURT: =~ opponent's being -~

WITNESS: The Californians For Common Sense submitted &

statement based on & research document. The research document

I believe, must have been in existence by that time, or they

could not have ‘quoted it.

Q How 4id Californians For Common Sense get started?

é I am not sure I am aware.

Q All right. bid you participets in the drafting of their

articles of incorporation?

OO

ee A OO

16

eXSRRUERBE SSS S

C | . aa

Q All right. And who retained 7 to Graft the articles

ration for Sense?

xu The organization that I was about to form.

Q And who were those individuals?

a Who was the single person that made the phone call, or who

was the person who said they will be the committee?

\e Both.

a Mr. Diamond, our firm practices a specialty in Prop 9

law. We represented the “yes on 3," “Yes on 10," "No on 13"

committee.

We represent @ number of ballot measure committees. We

get called for our expertise and are asked to create campaign

committees.

Q Who contacted your office?

a i gon't semember..

Someone who was going to be part of the "No on Proposition

5" campaign.

Q Do _ you know whether they are represented or in any way

ated w tobacco industry?

a If I could remember who it is, I could answer, but since

I can't remember who it is, I don't know.

Q You mentioned this was your client, that one who hired

you to form the corporation.

a“ We're -- we're contacted regularly by people that say,

*we would like to form a campaign committee and engender support

or opposition to & measure.”

9 Okay. And who contacted yOu?

JASO

eR

: , p>) SY,

PAS ik hee 4

4 <4

' ; 4 : « 7 ba” . 4

RI tera 1” ee ae oy

Exhidie DS

DECLARATION OF PAUL LOVEDAY

J ZI, Paul Loveday, declare

1. I am an attorney licensed to practice law in all the courts of the State of

California. My business address is Two Embarcadero Center, San Prancisco,

California 94111.

1 know of my own knowledge that the facts contained in this Declaration are

true and would be willing to so testify under oath if called upon to do so.

2. I was @ supporter of Proposition 5 and as such I matched wits against. John

; Greenagel in television debates four times “uring the 1978 campaign on

Proposition 5. Ta the first two debates John Greenagel represented that:

a. he was opposing Proposition 5 merely because he as 2 small businessman 8

felt that Proposition 5 would harm small businessmen;

b. he was a volunteer and was not being paid for speaking against Proposition

5; and

c. he had no affiliation or connection whatsoever with the tobacco industry.

3. tn # debate in Fresno only a few days before election day, John Greenagel did

admit he was being paid for his appearances, but vehemently denied any

affiliation or connection whatsoever with the tobacco industry. :

a I declare under penalty of perjury that the foregoing is true and correct and

that this Declaration was executed on October VP , 1980.

’ , his xis ai

PERIOD AMOUNT

120.00

$

fey y 110000 .00

'

ie,

750.00

972.88

840.00

FIAT ASSOCIATES RENT —

46 Ratkovicn Associates

7 South Olive Street

Angeles, CA 90014

‘: — 1000 .00

West Century Blvd., Suite 618

Angeles, CA 90045

18.58

SROOKS CAMERA SHOP STAFF & REIMBURSED EXPENSES

Kearny

an Francisco, CA

by

L. REYNOLDs

Py

a

.

“3/0 Californians' for Common Sense

$151 West Century Blvd., Suite 614

: 08 Angeles, CA 90045

~ ZLEGANT FARn&R REIMBURSED EXPENSES 18.35

22 Battery Street

- San Francisco, CA 94111

: MYATT HOUSE HOTEL (LAX) REIMBURSED EXPENSES 24.98

»8s Angeles Airport

6225 West Century Boulevard

Los Angeles,, Ca 95602

San Francisco, CA 94111

. BEATt REUENCY HOTEL (SF) REIMBURSED EXPENSES 151.04

ae <yo pinenons Sales

“San Francisco, canek, ca 94111

paid by

JACK S. MCDOWELL

_ -@/0 Woodward & McDowell

22 Battery Street

Francisco, CA 94111

“SER Oy EXPENDITUKES THIS PAGE: . SUBTOTAL: 2627.91

‘im additional payee in excess of $50. '

weecl

, Greenagel & Peterson, Inc.

Street

Francisco, CA 94111

, Greenagel & Peterson, Inc.

45 Washington Street

gan Francisco, CA 94111

DLrricx & COMPANY

+0. Box 7831

jam Francisco, CA 94120

,

san FRANCISCO ALRPORT HILTON

jan Francisco, CA 94126

DELIVERY SERVICES

4 Clementina Street

Francisco, CA 94103 -

DIO VIDEO REPORTING SERVICE (SF)

« Box 31517

STAFF & REIMBURSED EXPENSES *

OFFICE SUPPLIES

CAMPAIGN PROGRAMS

OFFICE SUPPLIES

TRAVEL

OFFICE SUPPLIES

143.35

64.59

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we 2 Be be.

By GRACE- MARIE ARNETT

Copley News Service

WASHINGTON —

The tobacco ie .

aus has disclosed its reci for

Selearing the anil seoeking Toliienve ta

Califurma.

First, take the hatUeground and shift

it to your advantage. Add union sup

port, and pour in big bucks. Stir public

awareness vigorously, ard spice with «

dash of humer.

Ed Grefe, vice ent for

Winning rec members of the

American Association of Political

cessful campaign techniques.

million la aa — the most expensive

a ory — by gathering

extensive survey data.

“We found this was a low-intensity

issue, but that everyone had an opinion

on secondhand smoke,” said Hichard

Woodward, a manager of the “anti-

five” campaign.

Proposition $ would have banned

smoking ia most public places and

would have required smoking and non-

smoking areas to be partitioned.

The tobacce industry began mapping

The strategy: take advantage of the’

post-Pro» 13 environment and the

language @ the ¢nU-smoking initiative

to form the basis for a campaign to

defeat the referendum.

The technique: shift the bat-

Ucground. “This was not an ise

between smokers and non-sinokers,”

Grefe said. “But it went to the heart of

how much government involvement we

want in our lives.

“When we shifted the battleground

from smoking to government in-

volvement, we were able to use the

Prop. 13 environment te our ad-

vantage.”

The advertising: the industry '

Separated its advertising campaign

into Unree phases. “Find the enemy,

focus on the — Wd and read the

fine print,”

WKiah CA

(mendeaino Ce)

The tobacco industry: How it

snuffed out Proposition 5

“In phase one, we hed te show the

enemy was no’ smoke bul government

intervention in ovr lives. We used the

catch phrase, ‘They're at it again,’ te

bring this home to voters,” Larson said,

“In phas® two, we focused on the

donger of regulation. We were asking

the voters to think what Uhe government

will try to regulate next. “Today it's

smoking; tomorrow will it be a free

preset” z

“We already have enough ua-

necessary laws,” one ad said.

Finally, the ads focused on the

wording of the initiative itself in an

effort to show it was discriminatory,

asking voters to read the fine print. A

boss can smoke in his private office, but

his secretary in the lyping pool could be

fined $50 for smoking In the common

area. A black wonen asks the

television viewer, “Can you tell me this

isn't discriminatory?” " t's tough

enough being @ secretary without this,”

another ed says.

In cond ting public opiniun surveys,

the Industry found that although vie-

tually everyone had an opinion on

secondhand smoke, thuse emotions

were not strongly held. * “Koowing Unis,

we decided not iv take the campaign too

striously,”” Larson said

One radio ad carried the effects of

Prop. $ to @ barber shop where one

chair would have to be walled off for.

smokers. Whoever heard of a barber

shop duet?” “Stupid,” the quarter

chimes,

The Intensive media campaign raised

public awareness of Prop. 5 well above

| Ure70 percent goal te nearly 9 percent, -

and eventually defeated the initiative.

by 700,000 votes out of 6.7 mulion cast.”

Grele said alliance’ ts solidifying:

between management and labor on,

such issues as smoking ordinaces and

nuclear power disputes,

| “Union lobbyists have more In

Common with corporate lobbyists (jobs

and profits) than with public interest

wd consumer groups,” Crefe .aid,'

‘and | expect to sce more and mere!

pace ‘labor alliances, ;

“We could not have won on $ in|

alifornla without union support,” he

‘ded. ,

‘<

.

*

a

we J. A. S6

Tournal :

. (Cac. oxW. 2,330

ZO UNITED STATES TOBACCO JOURNAL

CURT BROWN

Midwew Advertinung Manager

(312) 44-304

HARRY S. TRALGOTT

Presadent

Ce en a A i ee ed

Set 8) al oe enees meer ee.

ee ee

DM Dew Sh treet Nee Fe 8

Sahat 0 « hee Oe Gee ew sib tem et +

Pm eng eer ee wee tr ee

eo

Nm re

els eee BRE ee)

Fe

ah

Hil

whacco The people of the Golden Siste voted 2.5

million to 2.1 million ugninet the propose! to restrict smoking in

yar s Still On.

the backer. of the s-calle: fornia C Indoor Air

ma dinappointed with their 10 ac! Election

yay omective, Mul there s SON 10 SUSHeC t they |i

Paine their ade. Not when the marpin of their

cul Was SO Rurnn. ‘ k “pro kon t

Hectorutie= i. mm fact. ihe. ve ever stopped.

Right mow. the guspers are most likely analyzing every

axpect of their effort - Ww determine what concessions they have

to give in order to make their desired wnoking restraints pulatuble

to more Californians. Only a relatively small percentage of the

electorste has to he won over to tip the scales the other way.

Perhaps all that is required is to remove from their neu proposi-

tion the han on smoking in how ling alleys. harber shop. and

heauts parbors. Or may he the antibacs only have to say it will be

okays © smoke at 177 Concerts as well as at rock concerts. or

that it will he all night to smoke ut amateur boxing and wrestling

matches us well as at professional Routs.

What we're saving is that California's voters did not kill the

anti-smoking monster on Election Duy: they simply stunned him

and that he'll recuperate quickly. develop a modified strategy

and attack anew: perhaps with greater force.

. j seco indusin - grower. manufacturer. «hole:

important siuke in whal'’s going on in

<

suler and retailer — Pi:

Ration, us Was so eHpTressis cls msirat {

Proposition Thincen- filhws California's lead. So. while the

defeat of Propenition Five was a victor for the California

tohucco trade und the cigaretic manufacturers. it was alo a

victors for everyone im the tohuccu business in this country

And. hy the sume token. if the antihues are successful with their

neXt initiative in California. it will be a defeat for everyone in the

twhucco husiness.

“Howe really want to mancer the taterc, then bets cma

ethers tes pun ue — sherchedder, complnce, amd cuter = hem and

heiping America pein it. iemaer ay the work! . het cxample of

beoth coven canal itadit wdbecer! treed ven

**Teday will rash inte temernem aacwer. het with ingot trem

cack of as. it can he a heticr mere - hetict bot as, hottie bow

eur cmplivecs, keticr ter eocerament. amd heticr hw the dis-

advantuged ererewherr

Harr Ko Weth chesrman and prewar

McCormick & Co.

J.-A. ST

Thteves of executive time

yw

w you

chm’! renlly kee where your day

re

your

153

$f

1

c

i

Ht

t

ty

t

The real fee wesc.

© Atiomping te: mach at once

@ Unrculistiy terme estimates

A seston that Mua henzie vewersts

Dell) time tog (but mot the way

atl keep them). Commun

mistakes: (1) Filling im sheet at end

of day when memon can play tncks

(2) Listing what was done without

analy 7ing time spent im term. of

work accomplished. (2) Using log us

record af achievement insicad of

self-imprnn ement tins

Right wav: Enter everthing done

as veut as Vent ep even fon a brnef

imtierrupin = Alkw room on shect

fu comment on things done un-

Revessanh. work that could Rave

been beft te sahrdinates. things

dome poor throagh lack of prep

raton. time spent on din dicuming

feb. that tok more of less terme than

expected

“Advance” thme tog. Spend the

bast SY minutes of dav filling im a

sheet for tomers What sou plain

ter ukes How home ct stank tke Téen

compete what ateall happens

when fomernem comes. How mach

Wf plan vou Cun folkew What goes

wrong with the rest identity sour

wan “theses of time.” then muke

diols plans vou can stick te (Dent

ship thes step nist Recess tomorrom

wont Reo “inpel” diaw Most

Managers Waste time m the same

wutsecren dant

Fighting absenteeism

Comialer trving some of thew

Buls Le IMpune empknee alien:

ame

@ beset that worker talk tee super:

Vix when culling in ck Don't per-

frit beans ing Mes wuges wth Co BOrket

oF seureturs

© Chme munity atic: suring time.

havc sapersis Collect atl Medd all

time cats tha aren't punched vet.

wat the kate wewher Cunt avon com

froming tres Perse

@ When a worker is bored tell him

attendance 1s the first thing sou hak

at when it's rane um *

*

OE EY gE

fee a ee ae es 5 p

te? eet Oey ie. Oe

oe ae

A STUDY OF

PUBLIC ATTITUDES TOWARD

_ CIGARETTE SMOKING AND

THE TOBACCO INDUSTRY

IN 1978

VOLUME |

MAY 1978

— eee

Tuc ROPE® SREAWZATION bre

tp oS ESB. -

ete “

. . li

ie tee

@ te

Re aad 4

am * pt Tbs eas Lane.

. . 4; vs Sor Pao =m fae a Ys -

z (fe ae 3

ee Salo) i~ 4

° 4

‘

“Hy .

re ot.

Wee at -

Wee,

, @nis is the sixth biennial national opinion survey we have conducted

for The Tobuceo Institute. Like all its predecessors it deals with public atti-

tudes ¢overds the sucking and health issue and attitudes tovards both the tobacco

industry and government regulation of it. In the more recent surveys in the

series, 8 eeco>’ focus of the studies has been on the passive smoking/non-sxcker's

rights issue.

| This survey updates all major csi areas and breaks significant nev

ground in the passive smoking/non-smoker's rights area.

A complete description of the survey methodology, sample size, inter-

viewing dates, etc., as well as copies of the questionnaires used, may be found

in the "Methodology" section following this “Analysis” section.

-

e+ een 88 ee ee meen

THE TOBACCO oNDUSTRY

tT 1978

Z

May 1978

O | O

' RIGELICITS OF THE STUDY

Approximately forty percent of this sixth study of public attitudes

> toward cigarette s..sking consists of new questions which have never. before been

asked for The Tobacco Institute. For this reason alone, many of the research

findings contained in this report are of special interest. The study also con-

4 tains 8 systezatic review of trend data for questions which have been asked in

the past. Taken together, the large body of new material and the comprehensive :

wiew of changing attitudes over the las= ten years highlight resulis that we con- 7

: sider to be of extraordinary importance to the iidistey. |

Wot all of these findings are encouraging. In fact, the major high- |

> Lights of this report divide themselves into results which are sometimes promis- :

ing but mostly foreboding as regards the very future of the tobacco industry.

(To put it another way there are a certain number of “silver linings” to the

7 many “cleuds.") For this reason, we have decided to present the highlights of

this report in the form of a balance sheet, measuring the optimistic and pessi-

mistic entries, as it were, on opposite sides of the ledger.

: These balance sheet “entries” are presented without documentation in

the interest of conciseness. They are, however, “auditec" in the "Detaile2

Analysis" that follows.

4 _ a «-*

ae ~—

4

~ 5 >

smoking.

a =

3t-6y

<>

e

*ASSETS" : . SLIABILITIES"

1. The overall saliency of the . 1. More than nine out of every ten

*cigarette issue" is low, Compared Americans believe that smoking

x to crime, drugs, pollution, and a is hazardous to s smoker's

balf a dozen other items, smoking health.

is at the botto= of the list of

personal concerns. 2. A majority of Americans believes

that it is probably hazardous to

* 2. There is little sentiment for a be around people who smoke even

a total ban on cigarette smoking in- if they are not smoking themselves.

i, public places (but see #3 under

“Liabilities"). 3. There is majority sentiment for

separate smoking sections in all

__—s3 ‘There is overwhelming approval of public places we asked about.

Be, Placing notices outside places that

UA,

Eat “ke wal ears

‘es I . eg we al a ~ SZ

Re so eee

=

ae aad.

Fe oe tet

ie ate = wee

. 4

. oO

®ASSETS" (continved)

Tew people favor job discrimination

based on cigarette sroking.

The percentage of smokers in the 17

to 24 year old age group is up, an4

the amount smoked per day per young

emoker is also up (but see #5 under

"Liabilities").

There is broad support for FIC regu-

lation of “public service” adver-

tising sponsored by nen-profit

groups like the Cancer Society and

Ralph Nader.

There is less than majority senti-

ment in favor of a graduated tar

cigarette tax.

id

4,

10.

11.

*LIARILITIES”

(eontinue2)

There is majority acceptance

of the idea that the cisarette

warning label should be nade

stronger end more specific.

The percentage of people who

smoke cigarettes is at the low

cst level measured in the past

ten years.

A steadily increasing majority

of Americans believes that the

tobacco industry knows that the

case against cigarettes is true.

avor

Favorable attitudes toward the

tobacco industry are at their

dowest ebb.

There is widespread support for

anti-smoking education in the

schools--and at the very early

years.

Two-thirds of smokers would

like to give up smoking.

Nearly half the public thinks

that smoking is an addiction.

More people say they would vote

for than against a political can-

G@idate who takes a position

favoring a ban on smoking in pub-

lic places. -

Vw ee =

IMPLICATIONS OF THE FINOINGS

The original Surgeon General's report, followed by the first “hazard” warn-

dng on cigarette packages, the subsequent “danger” warning on packages, the removal

of cigarette advertising from television and the inclusion of the danger warning in

_ @igarette advertising were all “blows” of sorts for the tobacco industry. They

e were, however, blows that the cigarette industry could successfully weather because

they were all directed against the smoker himself. While the overwhelming majority

‘ of the public has been convinced by the anti-smoking forces that smoking is dangerous

to the smoker's health, this has not perssaded very many cuckers to give up smokin;.

The anti-smoking forces’ latest tack, however--on the passive smoking

dssue--is ancther matter. What the smoker does to himself may be his business, but

i what the smoker does to the non-smoker is quite a different matter, The anti-smoking

forces have not yet convinced anything like as many nities diel smoking harms the

health of the non-smoker as they have convinced people that smoking harms the health

‘J of the smoker. But this study shows that they are well on the way to making the

Same sale about the effects of smoking on the non-smoker as they have already made

with respect to the effects on the smoker. Nearly six out of ten believe that smok-

: ing is hazardous to the non-smoker's health, up sharply over the last four years.

More than two-thirds of non-smokers believe it, nearly half of all smokers believe

it.

This we see as the most dangerous development to the viability of the

tobacco industry that has yet occurre¢. While there is little sentiment for an out-

tight ban on smoking in public gathering places, there is already majority sentiment

for providing separate facilities for smokers ané non-smokers. As the anti-smoking

_ forces succeed in their efforts to convince non-smokers that their health is at

stake too, ated facilities will e

‘ as ve see it.

It is, of course, possible that once smokers and non-smokers alike ex-

S.A. $3.

oO o dials oe

with the restrictions as they di¢ with the Volstead Act. Smokers who wart to dine,

work or travel with non-smokers may become fed up with having to fcrego snoking.

Bon-smckers who want to dine, work or travel with smokers may become fed up with

having to endure the extra smoke that exists in pegregated cnstilng facilities. Both

coulé say “to hell with it 211" and go back to a smoking anywhere sentinent.

But if the anti-smoking forces are successful in convincing non-srokers

that their health is in dancer, it's at least as likely that the sentirent for

sesregated facilities will be strengthened. And if segregated facilities do rot

accomplish the anti-sxcking forces’ desire of making segregated smoking so untenable

that srokers will give it up, the next step could be an outright ban. If non-

gmokers are by then convinced that it's their health that is at stake, the present

sentiment for separate facilities could become support for a total ban.

The strategic and long run antidote to the passive smoking issce is, as

we see it, developing and widely publicizing clear-cut, credible, nedical evidence

that passive guckirg is not harmful to the non-smoker's health.

While that should be the fundamental objective of the tobacco industry in

our opinion, this study suggests that there are some short term tactical approaches

that may slow the «forts of the anti-smoking forces and buy the industry the

necessary time to develop what we see as the fundamental evidence needed to reverse

the trend. But they are tactical and short term in character. Among these short

Tange tactics are the following: °

2. Where Mew Jersey-tyee lecislation appears to bes.real

possibility, the inéustry might propose that operators of restaurarts,

cabs other c “institutions” be tted to estab tever

qnehheg policy they csi sen ee ee See. eee

J- A. eee

2 ae A. aa ee Po ee a Te Pa Ph Ma eae cae ee

: - Se ee Se Oe ae

permittes," "Separate facilities for emckers,“ or "Separate facilities

for non-smckers"=-but with the requirement that the smoking conditions

that apply be posted outside the premises for the convenience and pro-

tection of smokers and non-smokers alike. : °

3. In view of the widesrread public belief that public ser-

wice advertising by non-profit organizations should be subject to the sane

FTC scrutiny as commercial advertising, we think it might be desirable

to noisily file an action with the FIC the next time public service

ac¢vertising misquotes the facts about smoking and health, and to further

Genané that the FIC require the offending organization to run “corrective”

advertising as Listerine has been required to do.

4. While the public widely supports goverment programs to

Giscourage cigarette smoking, a majority opposes spending tax dollars

for such a program--which suggests such programs might be wulnerable if

people were made aware of their costs.

S. Several questions in this study suggest that where there is

substantial support for government action against cigarette smoking, there

is a discernible decline of such support when people are made aware of

the other goverrment intrusions that might follow. °Where will it all

end?" might be effective in blunting anti-smoking regulation.

6. Another short range tactic is suggested by the question

concerning “fumaphobes." The findings suggest that there is the possi-

bility of dividing those who are relatively unexcited about the passive

, smoking issue from the anti-smoking zealots, by portraying these zealots

as people with an unreasonable fear of cigarette smoking.

we. * e e } .

But we would repeat that since the anti-smoking forces have now gone a long

way in convincing the non-smoker that his health, too, is at stake, the number one

ob:

as we see it, is no lo

O Oo

ective in our opinion is to develop authoritative and credible evidence with ©

pect to the effects of passive smoking on the non-smoker's health. The issue,

nger what the gmoker does to himself, but what he does to

7

others.

_ 4

The original Surgeon General's report, fol: - g the first “hazard” warn-

dng on cigarette packages, the subsequent “danger” wa ag On packages, the removal

e of cigarette advertising fro= television ané the incl -ion of the danger warning in

cigarette advertising were all "blows" of sorts for the tobacco industry. They

were, however, blows that the cigarette industry could successfully weather because

they were all directed against the smoker himself. While the overwhelming majority

of the public has been convinced by the anti-smoking forces that smoking is dangerous

to the smoker's health, this has not persuaded very many cmokers to give up smoking.

. The anti-smoking forces’ latest tack, however--on the passive smoking

dssue--is ancther mattez. What the gnoker does to himself may be his business, Dut

e what the smoker Goes to the non-smoker is quite a Gitferent matter. The anti-smoking

forces have not yet convinced anything like as many people that smoking harms the

health of the non-smoker as they have convinced people that gmoking harms the health

ry of the smoker. But this study shows that they are well on the way to making the

game sale about the effects of smoking on the non-smoker as they have already made

with respect to the effects on the smoker. Nearly six out of ten believe that smok-

@ ing is hazardous to the non-snoker's health, up sharply over the last four years.

More than two-thirds of non-smokers believe it, nearly half of all smokers believe

at.

id This we see as the most dangerous development to the viability of the

tobacco industry that has yet occurrec. While there is little sentiment for an out~-

right ban on smoking in public gethering places, there is already majority sentiment

ad for providing separate facilities for smokers ané non-smokers. As the anti-smoking

forces succeed in their efforts to convince non-smokers that their health is at

stake too, the pressure for segregated facilities will change from a ripple to 4 tide

as we see it.

It is, of course, possible that once smokers and non-smokers alike ex-

perience all the inconveniences of separate facilities, people will become fed up

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with the restrictions as they did with the Volstead Act. Smokers who want to dine,

work or travel with non-smokers may become fed up with having to ferego snoking.

Mon-smokers who want to dine, work or travel with smokers may become fed up with

having to endure the extra smoke that exists in eogregated .encking facilities. Bott

could say “to hell with it all” and go back to a smoking anywhere sentinent.

But if the anti-sncking forces are successful in convincing non-smokers

that their health is in danger, it's at least as likely that the sentirent for

sesregated facilities will be strengthened. And if segregated facilities do rot

accomplish the anti-smoking forces' desire of making segregated smoking so untenable

that scokers w/1l give it up, the next step could be an outright ban. If non-

smokers are by then convinced that it's their health that is at stake, the present

sentiment for separate facilities could become support for a total ban.

The strategic and long run antidote to the passive smking issce is, as

we see it, developing and widely publicizing clear-cut, credible, nedical evidence

that passive smoking is not harmful to the non-smoker's health. “

While that should be the fundamental objective of the tobacco industry in

our opinion, this study suggests that there are sone short term tactical approaches

that may slow the efforts of the anti-smoking forces and buy the industry the

necessary time to develop what we see as the fundamental evidence needed to reverse

the trend. But they are tactical and short term in character. Among these short

Tange tactics are the following: :

1. Where outright mien on smoking are proposed and appear

likely of passage, the industry could propose separate facilities (as the

lesser of two evils).

2. Where New Jersey-type legislation appears to be a real

possibility, the industry might propose that operators of restaurants,

cabs and other public “institutions” be perai to establish whatever

smoking policy they desire--"Smoking permitted re," “%» smoking

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* *

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permitted,” “Separate facilities for emckers," or “Separate facilities

Zor non-emokers"--but with the requirement that the smoking conditions

that apply be posted outside the premises for the convenience ané pro-

e ; tection of smokers and non-smokers alike. : .

3. In view of the widespread public belief that public ser-

wice advertising by non-profit organizations should be subject to the same

FTC scrutiny as commercial advertising, we think it might be desirable

to noisily file an action with the FIC the next time public service

advertising misquotes the facts about smoking and health, and to further

Genand that the FTC require the offending organization to run “corrective"

advertising as Listerine has been required to do. ‘

4. While the public widely supports goverment programs to

discourage cigarette smoking, a majority opposes spending tax dollars

for such a program--which suggests such programs might be wulnerable if

people were made aware of their costs.

S. Several questions in this study suggest that where there is

substantial support for government ae against cigarette smoking, qhate

> is a discernible decline of such support when people are made aware of

the other goverment intrusions that might follow, “Where will it all

end?" might be effective in blunting anti-smoking regulation.

7 6. Another short range tactic is suggested by the sabtittans

concerning “fumaphobes." The findings suggest that there is the possi-

bility of dividing those who are relatively unexcited about the passive

smoking issue from the anti-smoking zealots, by portraying these zealots

as people with an unreasonable fear of cigarette smoking.

o . e e : .

But we would repeat that since the anti-smoking forces have now gone a long

way in convincing the non-smoker that his health, too, is at stake, the number one

JA. 69 - ere

—_— CO o

-

objective in our opinion is to develop suthoritative and credible evidence with ©

“ — gespect to the effects of passive

as we see it, ds no longer what the smoker Goes to himself, but what he does to

groking on the nor-smoker’s health. The issue,

ethers.

4 NT ge eee Ce ey, a he

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Exhibit K- 2

PPC SCHEOULZ £-2 Californians for Cssz0n Sense 10/24/78 TO 12/31/78 Pace 13

‘AME AND ADDAESS DESCRIPTION OF PAYMENT ° PERIOD AMOUNT

THE SUM REPORTER - METRO REPORTER GROUP MISCELLANOUS ADVERTISING 2400.90

+366 Turk Street

. an Francisco, CA 94115

J _ —

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e ; -NITED DEMOCRATIC CAMPAIGN COMMITTEE DIRECT MAIL 20990 .39

=D #76-1367 Atta: Williara Murray, .

a 2/0 Senator 3111 Greene

5514 South Brcacway

-38 Angeles, CA 96903

-3 POSTMASTER DIRECT MAIL 9000 .90

-/0 Don Harris

rignal Data Corporation

1350 East Spring Street

ong Beacn, CA 95800

* $S POSTMASTER ° DIRECT MAIL 9000.00

-/0 Don Harris ;

“sgmal Data Corporation

+59 East Spring Street

2Mg Beacn, CA 90806

3 POSTMASTER DIRECT MAIL 9090.90

e ‘O Don Harris

? ~gnal Data Corporation

-50 East Spring Street

ng Beacn, CA 90806

5 POSTMASTER DIRECT MAIL 14009 .00

9 Don Harris

eg -gnal Data Corporation

-50 East Spring Street

7Ag Beach, CA 90806

- POSTMASTER DIRECT MAIL 9240.00

2 Don darris

gMal Data Corporation

* 50 East Spring Street

2g Beach, CA 90806

“BER OF EXPENDITURES THIS PAGE: 7 SUBTOTAL : 72730 .00

Echt R-3 es

AMENDED IN SENATE JUNE 12, 1980

AMENDED IN SENATE MAY 13, 1980

AMENDED IN SENATE APRIL 28, 1980

SENATE BILL No. 2026

Introduced by Senator Greene

March 19, 1980

An act to add Article 3 (commencing with Section 1401) to

Part 4 of Division 2 of the Labor Code, relating to smoking,

making an appropriation therefor, and declaring the urgency

thereof, to take effect immediately.

LEGISLATIVE COUNSEL'S DIGEST

SB 2026, as amended, Greene. Smoking.

(1) Existing law prohibits smoking in specified indoor

laces of public assembly in public Buildings. in specified

ocations in health facilities and clinics, and other public

buildings, and in food preparation portions of restaurants and

in retail food marketing establishments.

This bill would require the establishment of smoking and no

smoking sections or areas in enclosed public places, enclosed

places of employment, enclosed health facilities, and enclosed ~

clinics and would prohibit tobacco smoking in no smoking

sections or areas, as specified.

The bill would require posting with signs in no smokin

sections and areas, to be enforced by the Department of °

Industrial Relations. The department would be required to

adopt standards to implement the bill, as specified. The bill

would expressly preempt the field of smoking legislation after

specified pepitiultons adopted pursuant to the bill become

effective, excepting other state law existing on the effective

date of this bill which specifically affects tobacco smoking,

state or local law or regulations restricting smoking for fire

SB 2026 —2—

prevention, end local ordinances controlling smoking in

theaters, as and specified provisions of the Health and Safety

Code, as contained in SB 1108

Knowing violations of the provisions of the bill would be an

infraction with specified penalties,

(2) The bill would appropriate $750,000 to the

Department of Industrial Relations for the purpose of

administering the provisions of the bill

(3) Section 2231 of the Revenue and Taxation Code

requires the state to reimburse local agencies and school

districts for costs mandated by the state. The section also

specifies the manner for’ ying the reimbursement and

requires any statute man ating the costs to contain an

appropriation to pay for the costs in the initial fiscal year. This

statutory provision will be supplemented by a constitutional

requirement of reimbursement effective for statutes enacted

on or after July 1, 1980.

This bill appropriates an unspecified sum to the Controller

for allocation and disbursement to local a encies and school

districts for costs mandated by the state aad incurred by them

pursuant to this act.

(4) The bill would take effect immediately as an urgency

statute.

Vote: *4. Appropriation: yes. Fiscal committee: yes.

State-mandated loca] program: yes.

The people of the State of California do enact as follows:

1 SECTION 1. The Legislature finds and declares that

2 smoking in certain enclosed areas may annoy or irritate

3 nonsmokers, that regulation of smoking in certain areas

4 is desirable to protect the comfort aa environment of

S nonsmokers, and that it is not the intent of the

6 Legislature to deny persons the right tosmoke, but rather

7 to recognize the rights of all individuals regardless of

8 their use of tobacco products.

9 SEC. 2 The Legislature further declares that:

10 (a) The purpose of this act is to protect the health,

11 comfort, and environment of nonsmokers in certain

12 enclosed places.

JA. 73 ww

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- nae we re

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a= 3=— SB 2026

(b) The intent of this act is to strike a reasonable

balance between the needs of persons who smoke

tobacco and the needs of nonsmokers.

SEC. 3. Article 3 (commencing with Section 1401) is

added to Part 4 of Division 2 of the Labor Code, to read:

Article 3. Smoking and No Smoking Sections

1401. This article shall be known and may be cited as.

the “Smoking and No Smoking Sections Act of 1980.”

1402. (a) Subject to the criteria set forth in Section

1403, smoking and no smoking sections or areas shall be

established and designated in every enclosed public

place, enclesed place of employment, enclosed heath

facility, and euclosed clinic. Any such place, facility, or

clinic may be designated in its entirety as a smoking or no

smoking area. No person shall smoke tobacco in a no

smoking section or area.

(b) The provisions of this article shall not limit

smoking in outdoor areas, in private residences, or in any

place not established pursuant to the provisions of this

article as a no smoking section or area, nor prohibit the

sale of tobacco products.

1403. Smoking and no smoking sections or areas

established and designated pursuant to this article shall

be consistent with the purpose and intent of this article

and shall conform with the following criteria:

(a) Smoking and no smoking sections need not be

separated by walls, partitions, or other barriers. No

construction or erection of ventilation devices, walls,

partitions, or other barriers shall be required to comply

with this article.

(b) Facilities and areas_in which ii would be

inappropriate _or impractical. to limit smoking may be

designated in their entirety as smo ing areas. Impractical

Tacilities and areas may include, but not be limited to, the

following:

(1) An enclosed room normally occupied exclusively

by persons who smoke tobacco. .

(2) Hotel or motel rooms designed and used for rental

J.A. 77 +?

SB 2026 —4—

|

]

2

a

SlmMAMUN AC

to transient guests.

(3) Areas used for Private social or business functions.

(4) Vehicles and other mobile workplaces.

(S) Areas wherein employee Workstations are

transient or mobile.

(6) Any other area in which it is determined it would

be inappropriate to restrict smoking of tohacco

~~ However. the listing of impractical facilities and areas

of this subdivision shall be deemed to be illustrative only

and shall not be considered as restrictive, by an2‘ogy or

otherwise. The Le islature intends that impracticality be

a__function of com liance difficulty. economics,

cost-benefit, and similar factors.

(c) (1) Smoking sha prohibited in patient Care

areas, waiting rooms, and visiting rooms of a health

facility, except those areas specifically designated as

smoking areas, and in patient rooms as specified in

Paragraph (2).

(2) Smoking shall not be permitted in a patient room

unless all persons assigned to such room have requested

) Smoking shall be Prohibited in any elevator.

(e) Notwithstanding any other provision of this

article, any facility or area may be designated in its

entirety as a no smoking area by the owner or manager

thereof, ,

1404. (a) In any facilities subject to this article,

clearly legible signs shall be conspicuously Posted in

every no smoking section or no smoking area established

oe ee 6

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RLXSP SRENCEKCRECeeuibiws occ

SREBSESBRNY

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19

—5— SB 2026

of premises which are not leased may adopt signs adapted

to their business needs, decor, and the nature of clientele

or other members of the public frequenting such

premises, the number, quality, type, and size of the signs

required pursuant to this article shall not be specified by

the Department of Industrial Relations by order or

regulation, except when an alleged violation of the

Provisions of this section has occurred at the facility

which is subject to such an order or regulation, any such

order or regulation shall be issued after notice and

hearing

(b) Notwithstanding any other provision of this

section, the standards adopted pursuant to Section 1408

shall designate areas and facilities where the posting of no

smoking signs is unnecessary to fulfill the purpose of this

article. No signs shall be requii 2d to be posted in such a

designated area or facility.

(c) Notwithstanding any other provision of this

section, in any no smoking section or area in which signs

indicating that smoking is not permitted are already

conspicuously posted, signs otherwise required by this

section are not required to be posted until such

Preexisting signs are worn out or removed.

1405. (a) Knowing violation of any provision of this

article is an infraction. Any person who violates any

Provision of this article shall be subject to a fine of not

more than fifteen dollars ($15) for each violation.

(b) Enforcement of this article shall be by citation. No

person may be taken into custody or be subject to search

by peace officers solely because of the violation or

suspected violation of a provision of this article.

(c) Each day on which a knowing violation of the

sign-posting requirements provided in this article occurs

shall be a distinct and separate’ violation.

(d) The Department of Industrial Relations and local

law enforcement departments shall enforce the

sign-posting requirements provided in this article. Local

law enforcement departments shall enforce the other

Provisions of this article.

1406. No person shall discharge or refuse to hire any

% 110

J.A. 7b

>

SB 2026 —6—

Oo BMn haonwre

SSESSRLESSSBRBNERESB

employee or applicant for employment because such om

employee or applicant exercises any rights afforded in

this article.

140,. (a)° Except as provided in subdivision (b), and

notwithstanding the provisions of Section 1408, it is

intended that this article shall preempt and wholly

occupy the field of legislation, or other regulatior, of

smoking in enclosed areas. However, legislation and

other regulation of smoking in effect on the effective date

of this section shall not be preempted by this article until

the effective date of the regulations adopted pursuant to

~ Section 1408.

(b) (1) The provisions of this section shall not

invalidate any orher state law specifically affecting

tobacco smoking in effect on the effective date of this

section.

(2) The provisions of this section shall not invalidate

any state or local law or regulation which restricts

smoking for the purpose of preventing fires.

(3) The provisions of this section shall not invalidate

any local ordinance controlling smoking in any premises

devoted primarily to the production or display of motion

pictures or the performing arts.

(4) The provisions of this section shall not invalidate

Sections 1234, 1235, 1286, 1290, and 25942 of the Health

and Safety Code, as amended or added by Senate Bill No.

1108 in the 1979-80 Regular Session of the Legislature.

1408. (a) On or before July 1, 1981, the Department

of Industrial Relations shall adopt, and may therecfter

amend, revise, or repeal standards in accordance with

Chapter 3.5 (commencing with Section 11340) of Part 1

of Division 3 of Title 2 of the Government Code to

implement the provisions of this article. The standards

shall, among oe things, specify those facilities and

areas which may be designated in their entirety as

smoking areas pursuant to subdivision (b) of Section

1408, provided no such standard shall be founded upon

workplace safety.

(b) The Department of Industrial Relations shall have

exclusive administrative jurisdiction under the provisions

J.-A. 7)

CMSA Rees © ae oe ee

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f

'

OOnNDUA ON =

31

SSERGERLEE

a )

ow Fox SB 2026

of this article with respect to the issuance of standards for

the establishment and designation of smoking and no

smoking sections and areas.

(c) Nospecial bureaucracy shall be created within the

Department of Industrial Relations or within any other

governmental agency for the administration of the

provisions of this article or the standards adopted

pursuant thereto.

14€¢9. Unless the. context otherwise requires, the

following definitions shall govern the provisions of this

article:

(a) “Place of employment” means any fully enclo.ed

area under the control of a public or private employer

which employees normally frequent during the course of

employment, including, but not limited to, work areas,

employee lounges, meeting rooms, and employee

cafeterias. A private residence is not a “place of

employment.”

(b) “Public place” means any area to which the public

is invited or in which the public is permitted, including,

but not limited to, restaurants, theaters, waiting rooms,

reception areas, and instrumentalities of public

oo A private residence is not a “public

piace.”

(c) “Smoking” or to “smoke” means and includes the

carrying or holding of a lighted cigarette, cigar, pipe or

any other lighted smoking equipment used for the

practice commonly known as smoking, or the intentional

inhalation or exhalation of tobacco smoke from any such

lighted smoking equipment.

(d) “The Department of Industrial Relations” means .

the Department of Industrial Relations or any successor

thereof.

(e) The standards adopted pursuant to Section 1408

shall contain such other definitions as the Department of |

Industrial Relations shall deem appropriate to carry out

the purposes of this article.

1409.5. If any provision of this article or the

application thereof to any person or circumstance is held

invalid, any such invalidity shall not affect other

J.-A. 79

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2026 a

provisions or applications of this article which can be *)

given effect without the invalid provision or applicction,

and to this end, the provisions of this article are severable.

SEC. 4. The sum of dollars ($__mm) is

hereby appropriated from the General Fund as follows:

(a) Seven hundred fifty thousand dollars ($750,000) to

the Department of Industrial Relations for the purpose of

administering the provisions of this act.

(b) ___. dollars ($_) to the Controller for

allocation and disbursement to loca] agencies and school

districts to reimburse them for costs mandated by the ~

state and incurred by them pursuant to this act.

SEC. 5. This act is an urgency statute necessary for

the immediate preservation of the public peace, health,

or safety within the meaning of Article IV of the

Constitution and shall go into immediate effect. The facts

constituting such necesvity are:

Breathing of second-hand tobacco smoke for extended

periods may cause disease in healthy nonsmokers or

aggrevate the condition of the millions of Californians

with heart or lung disease. Second-hand tobacco smoke

can cause irritation of eyes, nasal passages, lungs, and skin

of allergic persons and causes unnecessary discomfort to

nonsmokers. In order to protect the public health and

safety and in order to reduce the disease of healthy

persons and eliminate aggrevation of the condition of sick

persons at the earliest possible time, it is necessary that

this act take immediate effect.

J.A. 79

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Allen's 9. C. @. Est. 1888

=. .'; Another Smo

t first glance, SB 2026 looks like a good

step in the right direction. The bill

being carried by Sen. Bill Greene of Los

‘Angeles, would establish smoking and non- .

smoking sections in enclosed public places

‘and private places of employment. It thus

appears to be trying to accomplish by leg-

islation what Proposition 5, the smoking

initiative defeated in 1978, sought to

achieve and what the backers of Prop. 5,

who are now circulating petitions for a new

initiative, are trying to accomplish again.

. But SB 2026 is not what it seems. On clos-

er inspection, it turns out to be an attempt

at a pre-emptive strike, a diversionary

smeasure which, though worded in part .

recisely like the proposed initiative, is so

ull of exemptions and loopholes that its

‘net effect would be worse than no new leg-

islation at all. . ides

* Although the bill resembles the proposed |

initiative in establishing smoking and no-

smoking areas, it also provides that “‘facil-

ities and areas in which it would be inap-

propriate or impractical to limit smoking

may be designated in their entirety as

areas.” That provision would not

only exempt like bars — where it

may indeed “ina te” to ban

smoking — but any place whose owner

Exritit R- u

"SACRAMENTO BEE - APRIL 15, 1980"

OT eee ee nT «

king Hazard =...

doesn’t want to bother segregating smok-

ers or where management is unwilling to

ban smoking altogether. .~

There are other flaws. The bill pre-empts

all local smoking control ordinances, thus

repealing a number of local laws that are

far more stringent, fails to give adequate

protection to non-smokers in hospital

rooms, and, in general, provides that

where there is a conflict, there should be a

“reasonable balance” between the rights

of. smokers and non-smokers, a balance

which, in the light of recent medical data,

is a choice of neutrality between health

_ and sickness. If passed, SB 2026 could easi-

ly be used by the tobacco industry to prove

that the Legislature had already provided

the smoking regulations that the initiative

calls for. ef a ee

} |! would be nice if that were true, All

things considered, it would be far better

if control of smoking could be accom-

plished through legislation rather than

through the more cumbersome initiative

ess. SB 2026, however, isn't it. Unless

can be substantially amended when it

comes up before the Senaie Industria!

Relations Committee this week, it ought t

-‘bedefeated. ..

J.A FQ

Miami Initiative

Backers Charge Fraud

| Backers of a strong nonsmokers’.

rights initiative that will be pre-

sented to the voters of Miami in

November believe that a bill just

introduced before the Board of

County Commissioners (Metro

Commission) is ‘a deliberate device

to trick and confuse the voters.”

Although the bill and the initia-

tive have very similar names and

both would regulate smoking,

mitiative backers feel that the bill

was deliberately made much

weaker. If the bill is adopted by

the Metro Commission before

November, as expected, they are

afraid that citizens wil! fail to

vote for the initiative because

they think that the bill has accom-

plished the same objective or be-

cause they confuse the two.

_ Sponsors of the initiative say

that the bill is far too weak and

cite the following inadequacies:

@ The bill would permit unlimited

smoking in facilities that meet

certain minimum ventilation re-

quirements, although it has not

been shown that such systems

would eliminate the problems

experienced by nonsmokers.

The bill would permit unlimited

smoking in most facilities of

1,500 square feet or less, thus

wiping out protections that non-

smokers already have under

existing law.

The bill provides that restaurants

seating 50 or fewer people would

Mot have to provide no-smoking

sections.

The bill permits al! facilities to

establish smoking areas and does

Not limit their size.

The introduction of the bill

to some people one of the

recommendations the Roper Or-

made to the tobacco

was lesked to the public as a result

ASH. investigation of

she tobacco ir . Roper sug-

that when confronted by a

+

Exnwr Re- Ss

major

industry could promote weaker

protective legislation and thus avoid

restrictions that might really hurt.

Backers of the initiative, who are

furious about th's latest develop-

ment, urge Miami residents not to

be confused and to learn the facts

before voting in November. Fe-

more information call (305) 448-

2433 or 858-1809.

Californians To Vote on

Nonsmoker Referendum

Because proponents were able to

gather more than 500,000 valid

voter signatures in support,

Californians will have a second

chance this November to vote on

a referendum that would require

no-smoking sections in most public

areas, including places of employ-

ment. Proposition 5, a similar

proposal, was defeated in 1978,

when the tobacco industry out-

spent proponents by more than

10 to 1: $6,400,000 to $600,000.

The tobacco industry admits that it

is sensitive to charges that they

“cynically bought the election two

years ago” and reportedly is now

“studying the new proposal.”

Perhaps a more serious threat to

the initiative is a proposed law —

SB 2026, calied the “Greene

bill” after its sponsor — that is

now being considered by the

California legislature. This bill,

like the initiative, recognizes that

nonsmokers should be protected,

but proponents of the initiative

point to the following important

differences:

e@ The initiative specifies nat when

the needs of smokers and non.

smokers conflict, the needs of

nonsmokers must take priority.

The bill does not.

threat to its interests, the —

A Tale of Two Initiatives

area becomes nonsmoking, while

the bill would allow smoking.

@ The initiative guarantees to every

person who works indoors a non-

smoking work section; the bill

offers no such protection.

@ The initiative applies to educa.

tional facilities; the bill does

not.

@ The initiative permits toca!

governments to enact further

legislation to protect nonsmok.

ers, The bill preempts that

right and would -invalidate all

local legislation now in effect,

some of which is very far-

reaching.

An editorial in the Sacramento

Bee called the Greene bill “ a di-

versionary measure that, though

worded in part precisely like the

proposed initiative, is so full of

exemptions and loopholes that its

net effect would be worse than no

legislation at all.”

The initiative is sponsored by

Californians for Smoking and No

Smoking Sections, which has

offices in both Northern and

Southern California: P.O. Box

1061, Berkeley, CA 94701, (415)

841-3032; and P.O. Box 45876,

Los Angeles, CA 90045, (213)

671-1492.

* * *

Chip off the old block? President

Carter has six tobacco-grower caps,

which he often wears for photo-

graphs, and he has made state-

ments minimizing the effect of

tobacco on the health of smokers

and nonsmokers. He also fired

Joseph Califano, the antismoking

head of the old Department of

Health, Education, and Welfare.

His son Chip recently heiped

organize @ firm to defeat the

Clean indoor Air Ordinance in

Miami; a sizable chunk of the

bankroll came from the tobacco

industry.

*- * *&*

Exner Q- )

Declaration of Paul Loveday

I, Paul Loveday, declare:

I am an attorney licensed to practice law in al’ the courts of the State of

California. My business address is Two Embarcadero Center, 24th Floor, San Francisco,

California 94111. I know of my own personal knowledge that the facts contained in

this Declaration are true, and I will so testify under oath if called upon to do so.

Shortly after sufficient signatures were filed with the applicable county clerks

to guarantee that the Smoking and No Smoking Section Initiative would qualify for the

November 4, 1980 ballot, I had lunch with Don Bradley, a professional campaign

manager. We discussed the possibility of Mr. Bradley's managing the campaign favoring

such initiative. Among other things, we discussed the potential opposition to the

initiative and whether or not the Tobacco Industry would oppose th.. Initiative as

strongly as they opposed Proposition 5. Mr. Bradley told me he would speak with Mr.

Joe Cerrell to determine what the plans of the Tobacco Industry were. Mr. Bradley

informed me ‘hat Joe Cerrel] was a paid political consultant for Philip Morris.

On Tuesday July 1, 1980, I spoke with Mr. Don Bradley to inform him that the

Yes on 10 Board of Directors had selected another person as campaign manager and

to express my gratitude to him for the time he had given to me and my associates.

Mr. Bradley told me during that conversation that he had spoken with Mr. Cerrel| who

had informed him that the Tobacco Industry had decided to run a campaign in opposition

to Proposition 10.

I declare under penalty of perjury that the foregoing is true and correct and

that this Declaration was executed on October 16, 1980.

Vy te

OF

al tere,

-——e eee =

ahi os ENDORSED |

ARTICLES OF INCORPORATION JUN 12 1880

OF MARCH FONG EU, Secretary of State

Phyllis E Biaggi

CALIFORNIANS AGAINST REGULATORY EXCESS Deputy

. I

&

The name of this corporation is CALIFORNIANS

ST REGULATORY EXCESS.

Ii

bd A. This corporation is a nonprofit mutual denetit

Brporaticon orcanizecé under the Nonprofit Mutual Benefit

beperation Law. The purpose of this corporation is to

ngace in any lawful act or activity for which a corporation

y be organizec under such law.

B. The specific purpose of this corporation is to

ote the social welfare. In furtherance of this objective,

corporation shall have the following purposes:

(1) The corporation shall promote civic

terment and social improvement by attempting to lessen

he burdens of covernment. The corporation will seek to

emote these cbiectives throucsh direct communication with

public concerning ballot measures, legislation, aéminis-

tive regulations ané judicial decisions. All such communi-

tions shall be limitecé by the laws ané reculations pertainine

Organizaticns with tax-exempt status uncer Internal Revenue

pde Section 50l(c) (4).

(2) The corporation shall seek to ecucate the

blic concerning subjects which relate to covernment ané the

pmmunity. In order to accomplish this objective, the corpora-

m shall sponsor educational programs throuch public foruns,

mel lectures, radio, television, direct mail and other

lar activities.

Iii

The name ané adcéress in the State ct California of

S corporation's initial acent for service ct srocess is:

Robert Nelson

1€33 East 4th Street, Suite 144

Santa Ana, California $2702

EXEIBIT A

J. A. 33

"

» : ov . Iv “so.

A. This corporation is organized and operated

exclusively for social welfare purposes within the meaning

of Section 501(c) (4) of the Internal Revenue Code.

> B. Notwithstanding any other provision of these

Articles, the corporation shall not carry on eny other

activities not permitted to be carried on by a corporation

exempt from federal income tax under Secticn 50l(c) (4) of

the Int:xsnal Revenue Code.

. v

The property of this corporation is irrevocably

cecicated to social welfare purposes ané no part of the net

income or assets of this corporation shall ever inure to

the benefit of any director, officer of mexber thereot, or

7 te the benefiz of any private person.

vi

Upon the Gissolution or windine up of the corpora-

tion, its assets remaining after payment, cr provision for

= payment, of all debts ané liabilities of this corporation,

shail be distributed to a nonprofit funé, founéation or

corporation which has established its tax exempt status under

Section 50l1(c)(4) of the Internal Revenue Code.

ee Dateé: June ll, 1980

KENNETE SCENCLL, INCOFPORATOR

S

I hereby céeclare that I am the person whe executec

the foregoine Articles of Incorporation, which execution is

my act and deec. 4

° Kann Arban tl

KENNETH SCHNOLL, INCORPORATOR

ol

&

-_ 2-

ie Se ee

‘ ee f 4

. . urs y oe A a f 7

SES, . = aes ai eo ee: ee ee ree ee Te ee er +a

( (

- RECIPIENT COMMITTEE

CAMPAIGN STATEMENT

(Government Code Section 86200-84216)

For use by recipient committees which receive a cumulative

contribution of $100 or more from a single source.

(Type or Print in ink)

A tau .

Statement covers period from__1/1/80* through _9/23/80

Wane er commirvee a

~~ CALIFORNIANS AGAINST REGULATORY EXCESS we

ry ry ee

CA___9270) 214. S58-8100

MAME OF TREASURER:

PERMANENT =; £53 OF TREASURER: 0. an0 eTeGET ‘ivy “arate rrorryy) ase Coe8 §6Pmenes BUaeee

—202=142 Opal Balboa Island 22662 214_SS8=210

TYPE OF ELECTION (CIRCLE ONE IF APPLICABLE): j CIRCLE IF APPLICABLE: DATE OF ELECTION (me.. sar, va)! yet}

Pemaay erecias eecart SEerannvar CAmFaree STATENWERT Noverher é ‘a 1°R9 67 .

ALLOCATION OF EXPENDITURES BY CANDIDATES, OFFICEHOLDERS AND MEASURES

(Allocate expenditures from Schedules E & F bv candidates, officeholders and measures: amounts may be rounded off to whoie doilars.)

OFFICIAL NAME OF CANDIDATE OR O77!CEHOLDER AND OFFICE OR CHECK CNE | ¢ SLOUNT OF | CUMULATIVE

USE GNLY MEASURE AND 34/97 NUMSEA OR LETTER Susport_Ospose | THIS PERIOD TO OATE

Smoking and Non-Smoking Sections,

Proposition 1° x 304.252. 80.394.252 2°

*Committee formec July &, 1989

m4

Attach additional information on aporopriete/y lsoeied continuation sheets.

VERIFICATION

| deciare uncer penalty of perjury that to the best of my knowledge this statement anc its schedules are true, correc: ¢

complete and that | have used all reasonable diligence in their preparation.

Executed on 9/29/80 __ gx _Los Angeles, CA wy

TEx¥aT (ater ane we DANA, PSSS ASEISEENE Treasure:

E A candidate or officehoider who controls a committee must aiso erity the Stenebtan statula 2 > ya

1 deciare under penalty of perjury that to the best of my knowledge this statement and its schedules are true, correc: 2

complete and the treasurer of this commitzee has used all reasonabie diligence in the preparation of this statement <

F Wee sahecutes. not applicable

Executed on at by

Ld (eoare) (erty ane starve) [SSR ATURE OF CANSIOATE OF OF FE RH OLDE)

For intormetion required to be provided to you pursuant to the information Prectices Act of 1977, see “information Manual on Campaign Disciosure Provis:

ee. ee | J. A. aS

ee 25% wleip: w whi, giana iat i aes ee

th de OE fs “ Ra tae ah 7: ie sy

* x 2 2s ‘ eke | > gee ey RE ae a, ca «ieee

The campaign against Proposition 10 -- the anti-smoking initiative --

is well underway. Once again, the private sector is being subjected to

a devastating blow that would impose stringent government regulations

for compliance with this measure.

The irony is that many companies are presently dealing with the smoker/

@ non-smoker problem on a voluntary basis. You may already have expended

great effort and expense to set up segregated areas to handle this issue.

_ No matter; you are now faced with mandatory regulations and the problem

of meeting some very ambiguous bureaucratic standards.

from using media; therefore we are

ho need to express

their displeasure with more government. This becomes an education process

and, in order to achieve this, we need informed speakers who are leaders

in the community, willing to speak out against this poorly-conceived

measure.

os bits the No on 10 ‘campai

@ While we realize it is difficult for you to devote a lot of time outside

your primary work effort, we are requesting your help in one of two ways:

that you be available upon occasion to speak on this vital issue, or

that you provide us with at least two names of potential speakers with

high credibility.

s Voluntary private sector vs. mandatory public sector: the differences

are clear. Industry is known for solving problems - government is

known for perpetuating them. Help keep the control of our internal

business operations in the hands of private sector management.

m olny be contacting you in the very near future. Thank you for your

elp.

Sincerely, ;

4; D2tex/ Ferg land Y,

@ A

Jere Gilmour David Bergland Houston Flournoy

Director, Chairman, C.A.R.E. Former State Controller

Speakers Bureau

J. A. &6

Age . i a PE xe . oh Jes: et . 5 eS Ga Tiabe @ age 4

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26 all TAL 4 F Ba ee i Ll ihe HU | afd tall a | is bi wie ©.

J2 yp pul ifs al flrs isa ual Hag , | |

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Palo Alto, Ca

en Clara Co.)

eninsula

—

(Cir. 6xW. 62,677)

i Ife9

’

Allen's G8 vec 1ARK

supporters of anti-smoking proposal challenge

»pponents to disclose source of contributions

3y John Stanton “| -.

fimes Tribune statt , i] O

SACRAMENTO — Supporters of an

anti-smoking initiative on the No-

vember ballot Tuesday challenged op-

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Joint Appendix — Loveday v. Federal Communications Commission · 464 U.S. 1008 | Frix