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February 2, 1997
Section F
Suffer the
children
Maryland is doing
little to stop youths
from smoking
Marlboro
KOOL
BYTAYLOR BRANCH
Filter
Kings
AKE UP, Mary-
W
landi A miracle
remedy for our
state's long.
lamented can-
cer death rate
fourth highest in
the nation bes within reach.
While complex plagues
such as poor schools and job
loss may require solutions not
yet imagined, the scourge of
cancer will yield to a small
campaign led by children. A
mere handful will do. They can
arrest the long treadmill of
costly suffering and prema-
ture death without new Dud-
get investments or bureauora-
cy. All the children need is the
clear-headed support of vot-
ing citizens.
How? They have come
maddeningly close already.
Last summer, eight teen-
agera fanned out across Mary-
land like Joshua's scouts into
Cansan, Trained by state rev-
enue officers, they busily of
fered to buy cigarettes at 881
Maryland retail stores over a
two-work period. They met no
ASSOCIATED PERSO $ 1990
resistance at 110 or 110 vend-
ing machine attes (95 per-
cent), or at 371 of 766 clerk-
Today's teen-age smokers are
tended counters (48.8 per-
cent). Because Maryland, like
tomorrow's terminal patients, just as
every state, bans cigarette
sales to buyers under 18. the
yesteryear's new smokers produced
monitoring revenue officers
could have - should have -
nine new lung cancer patients in
followed right behind with a
citation for the vendor each
Maryland every day.
time . teen-age spot checker
obtained cigarettes. If they
had done nothing more than
no such cases brought in 1996
transactions. A unind of these
this the Mthal commerce of
and none yet reported for
new smokers eventually will
child addiction would be
1996. Zero. # is small comfort
die early of tobacco-related
flushed out toward extinction
that many states do no better.
heart or lung diseases
by now.
Virginia has not punished a
roughly 6,000 per year by the
But timed state authorities
single underage tobacco sale
mid-21st century. Their extra
stopped short. For fear of po-
since 1990, and an embar-
health care will cost Maryland
litical controveray, they made
rassed Gov. George K Pataki
roughly $170 million a year at
the two-week effort a "study"
is scrambling to and a solitary
today's prices.
instead of an enforcement dri-
example in New York
Similarly, Maryland troop-
ve, and even that was under-
Our dizzy priorities come
ers who rightly socur every Ju-
taken under mandate of fed-
straight out of Alloe in Won-
risdiction for highway speed-
eral law.
derland. In one of 186 work-
ers give no thought to state
The survey merely con-
place inspections last year,
laws on underage tobacco
firmed what every teen-ager
MOSH officers fined Presi-
sales. No one expects them to,
knows: Tobacco enforcement
dent Carolyn Manussak
even though:
is a joke. Although Maryland
$1,312 for smoking alone in the
9 Smoking kitls eight peo-
statutes more than a century
bathroom of her private office
ple for every traffle fatality.
old (dating back to 1886) de-
at Villa Julie College, thereby
. More than ao percent of
aree that those who sell tobac-
protecting from secondary
those who over smoke begin D.
co to minors shall pay fines
smoke anyone who might
legally before 18.
renging from $300 up to $3,000
have breathed tobacco furnes
. Youth smoking has risen
for repeat offenses, there were
that escaped her bathroom
60 percent in the 1990s, About
door or window. No such ef-
20 percent of eighth graders
Taylor Branch 14 the
fort protects the 60 Marytand
now qualify as regular amok.
Pulitser Prire-winning author
kids who become new smok-
ers. More than 30 yours after
or Farting the Waters: Ameri-
ers each day. supplied by the-
the tobacco companies
ca in the Xing Years, 1954-63."
gal but more or less open
grandly (Bee Tobacco, Brg
Saving Md. youth
the stakes
the relative
of federal polities are so high To
bacco also fears the myriad local
governments as unpredictable,
though puny, and has pushed
from big tobacco
through the legislatures of 27 states
recent bollerplate laws that curtan
or forbid local ordinances on ciga-
rettes.
Ironically, tobacco works hard to
stay in the hands of the very juris.
[Tobacco, from Page IF)
ers prefer education campaigns to
dictions that have the acknowl-
enforcement. which they reject as
edged power to enforce laws
pledged to end marketing to those
"anti-business." In fact, spot-check
against underage smoking - the
under 21, the high school smoking
fines are the most economical, least
states. Why? Maryland and sister
rate of 35 percent now exceeds the
intrusive tool against underage
states have proven to be docile
legal, adult rate of 25 percent.
smoking. They avoid cumbersome
pushovers for scofflaws in the ciga-
Today's teen-age. smokers are
regulations and paperwork. The
rette business.
tomorrow's terminal patients, just
method does not interfere with
The General Assembly now
as yesteryear's new smokers pro-
adult smokers, and leaves propri-
meets in Annapolis. Rumors try of
duced nine new lung cancer pa-
etors free to decide for themselves
bank-shot deals that might use
tients in Maryland every day. Their
how to make sure no underage
profits of one crassly addictive new
chances of surviving five years after
smokers buy cigarettes on their
vice (slot machines) to shore up
detection are stuck at a chilling 13
premises. It pinpoints irresponsible
percent, because lung cancer re-
vendors with fines heavy enough to
sists new treatments that have
make youth sales lose money. Hon-
horse racing purses, cut income
cured or retarded other cancers,
est, diligent vendors (roughly half
taxes, and scuttle Gov. Parris N.
such as those of the stomach, cervix
the stores in last summer's study)
Glendening's proposal to raise ciga-
and liver. Lung tumors now kill
not only escape fines but enjoy relief
rette taxes. A jingle of hard cash
more Marylanders than breast and
echoes from the background.
from urifair competition.
prostate cancers combined. A lag
Punishment for children in-
This is our legislature. Plenty of
time of decades means that the
stead of vendors. In 1994, lobbyist
good people serve in it, but voters
death rate among women has
Bruce Bereano and tobacco forces
are responsible for the outcome and
the tone of debate. Whatever hap-
grown fivefold since 1960, in the era
deftly reshaped an enforcement bill
of tobacco-marketed liberation.
to focus new penalties on the young
pens in the gambling-and-tax think-
et, a strong resolution on youth
Why do we put up with this?
buyers of cigarettes. Their maneu-
How can the epidemic of youth
ver subverts the entire rationale for
smoking would shine with the
smoking continue when all parties,
courage of proper adults.
underage tobacco law, of course,
Instead of averting our eyes from
including the tobacco companies,
which holds adults accountable for
proclaim their dedication to stop it?
fateful smoking decisions by mi-
garish sales to puffing kids, we
could work a revolution of leader-
A smokescreen of arm-waving
nors.
ship against cancer and cynicism at
gestures leaves us apathetic and
Blaming middle-schoolers and
once. We could restore faith with
blindly misguided. Suppose for a
high-schoolers is ineffective, un-
moment that we tried to enforce
new geserations that yearn liter-
principled, and downright ghouldsh,
because nicotine addiction fastens
ally breathe free. The enforce-
highway laws the way we control
ment issue stands alone. It touches
nicotine traffic. Troopers who chase
even harder upon children than
down mad motorists would be au-
adults. Half of Maryland's eighth-
nothing but the self-respect of citi-
and the health of our children.
thorized only to hand out "Speed
grade smokers say they have tried
kills" bumper stickers and recom-
to quit already and failed. Ninety-
mend safe driving classes. Judges
five percent of new teen-age smok-
might allow lawyers to argue in the
ers say they intend to quit within a
abstract how fast one might "in-
year, but only 25 percent succeed
tend" to go, but courts would never
within a decade.
act upon or even consider any dri-
In a pinch, tobacco interests win
Personname
ver's actual speed.
say that enforceable spot checks by
The obvious vulnerable spot of
a few deputized teen-agers would
youth smoking is the illegal flow of
"corrupt" our youth in tattletale
conous
money at the point of sales. Tobac-
crime - never mind the compara-
co smoke is nasty and unpleasant
ble effect of routine sales welcoming
25
even for the "coolest" beginners,
thousands to the big Dlicit ashtray.
and experimental smokers require
Or they object that the economy
Fe
cines
convenient nurturing to develop an
cannot stand a serious drive against
addiction that demands constant
illegal smoking - as though Mary-
inwon
supply. This "hooking" phase is not
land's prosperity really depended
a pretty part of the business, which
on turning a fresh supply of pink
makes cigarette defenders ex-
lungs into soot-seared crusts.
tremely sensitive about point-of-
These evasions should surprise
sale enforcement. They stave the
no one. It is their practice to blow
whole idea with their favored alter-
smoke rings and our choking task
natives:
to see through them. What galls in
Sticker displays, warnings,
that big tobacco regards states like
"mandatory" ID checks, training
Maryland so lightly.
programs for clerks, rules on the
Although the Clinton adminis-
placement of vending machines.
tration's pending regulations on
Such plans sound vigorous and
youth marketing are limited, and
push EO' forward wasses
promising, but they always skirt the
subject to lengthy constitutional
central question of enforcement.
appeal, the Tobacco Institute is
push
Education. Cigarette promot-
fighting them desperately because
California, ESQ.
American Heart Association. They accuse state offi-
Seque
cials of trying to usurp the power of the voters and,
in the process, do the bidding of the tobacco indus-
try. "At stake is the people's constitutional right to
adopt laws through initiatives and whether those laws
Want a Bonus, Too? Don't Make Me Laugh
will be fully implemented by the Legislature and the
courts," says George Waters, of Sacramento's Olson,
Hagel, Fong, Leidigh, Waters & Fishburn, the lead
At the Los Angeles district attorney's office, where pros-
attorney challenging the diversions. In suits filed in
1994 and again last year, Sacramento judges declared
ecutors are still livid over the $43,000 in bonuses given last
the diversions illegal. But the Wilson administration
fall to Marcia Clark, Christopher Darden, and Bill Hodgman
has appealed; with the 1996-1997 budget again call-
for their work on the O. J. Simpson
ing for tobacco-control funds to be shifted to indi-
trial, wags have posted this "Application
gent care, yet another legislative and court battle
for 11% Bonus" on bulletin boards
seems likely. Meanwhile, $160 million in disputed
throughout the building.
funds are frozen in the State Treasury.
Like most ballot measures, Prop. 99 contains provi-
1. Case title for which the bonus is
sions allowing for amendment-but only if the amend-
requested: (Note: If the case does not
ment is "consistent with the initiative's purposes." The
have the potential for political impact, you
main legal issue in the appeal is whether the diversions
do not qualify.)
meet that test. Last December, in Amwest Surety Insur-
2. How was the case assigned to you?
ance Co. v Wilson (1995) 11 C4th 1243, the state
(Note: Unless you actively pursued it
Supreme Court handed nonsmoking groups some
from the inception, you do not qualify.)
ammunition, setting forth some standards of review for
Jarden's bonus: $10,747
3. Will handling the case cause you to
be more concerned about your appear-
Prop. 99 is the only time
ance and public speaking than your courtroom
presentation? [Yes] [No] [Not Sure]
Californians have voted to
4. Does your involvement in the case cause you to believe
tax themselves.
you are in need of a public relations manager? [Yes] [No]
[Not Sure] [Hopefully]
answering whether an amendment furthers an initia-
5. Will the case cause the office to provide a support staff and
tive's purpose and ruling that the Legislature's amend-
trial lawyers to handle any of the following types of witnesses: Evi-
ment of Prop. 103, the insurance reform initiative, did
dence collection; coroner; domestic violence; DNA; glove
not. But Prop. 103 did not try to tell lawmakers how to
experts (for cases where sizing deci-
spend money. The Prop. 99 case sets the stage for the
sions exist)?
first appellate ruling on the Legislature's right to divert
6. Will the case require a case
funds after special restrictions have been imposed on
manager to assist in the day-to-
their use by voters. "The essential issue is to what
day trial decisions most deputy
extent the Legislature is to be acceded a certain defer-
district attorneys handle them-
ence by the courts in its ability to enact laws and make
selves on a daily basis? [Yes] [No]
changes in initiatives passed by the people," says
[Can't Decide]
Christopher Waddell, the state Department of Finance's
7. In handling the case, will you be
chief counsel. A hearing before the Third District
able to confidently and consistently
Court of Appeal is expected to be set for this summer.
write unjustified accrued over-
Anti-smoking groups warn that if the state pre-
time without shame? [Yes] [No]
vails, future drafters may write ballot initiatives bar-
[Define "Shame"]
8. What was the result of the
Clark's reward: $14,330
ring the possibility of any legislative amendment-a
potential disaster, since amendments act as safety
trial? (Note: Unless you lost the
valves to correct mistakes and ensure future flexibility.
trial, held a press conference claiming you performed admirably,
Fed-up voters could take matters even further, warns
lauded the performance of your "staff," and put your public image
Fredric Woocher, of Strumwasser & Woocher in Los
above all else, you do not qualify.) [Guilty] [Not Guilty] [Jury
Angeles, who represents Americans for Nonsmokers'
Deadlocked] [Don't Care]
Rights in the suits. "If the people can't trust the
9. Are you willing to take an eight-month paid vacation at
courts to enforce [their mandate] and the Legislature
county expense while enduring the rigors and anxiety of book and
proceeds to gut new measures
the people not only
movie negotiations? [Yes] [No]
won't allow amendments, they won't approve bond
DARDEN: AP PHOTO/ELISE AMENDOLA; CLARK: AP PHOTO/NICK UT
(Final note: "No" responses to queries 6, 7, or 9 are cause for
measures, initiatives, or taxes, and Sacramento won't
automatic disqualification.)
have the money to provide government services."
-LOREN STEIN
MAY
1996 22 CALIFORNIA LAWYER
UT
fornia,
ESQ.
STATE
Smoke
and
Mirrors
California's groundbreaking anti-tobacco program
is caught in a constitutional battle over budgetary rights
n other states, 1996 is turning out to be a terrible year for
research and education to indigent medical care. Lawmakers
tobacco companies, with at least six governors suing the
argue, essentially, that the anti-tobacco program has been too
industry to recover medical costs for smokers and the Liggett
effective for its own good. As cigarette sales have dropped, so
Group becoming the first cigarette maker ever to settle a smoking-
has revenue from the surcharge, from $573 million in 1988-
related lawsuit. But in California, lawmakers-with the blessing
1989 to an estimated $444 million for 1995-1996. According
of the tobacco lobby and a powerful doctors group-are
to pro-diversion forces, this shows that the anti-tobacco pro-
expected to try for the third time to divert money from the
gram is no longer as critical as it used to be; meanwhile, indi-
state's anti-tobacco program, widely considered to be the most
gent health care programs funded by Prop. 99 are in jeopardy.
effective in the U.S. The battle has far-reaching implications for
The amendments would cut education funds in half and vir-
public health-and for the integrity of the state initiative process.
tually eliminate research-total program funds would be
Proposition 99, aka the Tobacco Tax Initiative, established a
slashed to $50 million for the current fiscal year. The diversion
25-cent-per-pack surcharge on cigarettes and set aside 25 per-
has overwhelming backing in the Legislature (a four-fifths
cent of that revenue for anti-smoking media, research, and edu-
majority is required to amend the initiative). It also has the
cation (another 70 percent went toward health care, mostly for
support of some strange political bedfellows: the California
the poor). The measure, passed in 1988, is the only time
Medical Association, which says health care for the poor is
Californians have ever agreed to tax themselves, motivated
more important than anti-tobacco programs, and the tobacco
by the goal of reducing addiction and the long-term costs asso-
industry, which spent $22 million trying to defeat Prop. 99
ciated with tobacco-related disease. In that regard, the initiative
and is one of the biggest financial contributors in Sacramento.
has been a resounding success, according to state and federal
The funding shift is vehemently opposed by Prop. 99's
studies. Adult per capita smoking has fallen more than three
sponsors, including the American Lung Association and the
times faster in Cali-
fornia than in the rest
of the country, ciga-
rette sales have plum-
Recession Alert: Bankruptcies Are Booming Again
meted 41 percent,
and 300 communities
have adopted no-
M
ore proof that the economy is less rosy than some would have us believe: After a
two-year decline, bankruptcies jumped 11.3 percent last year nationwide. More
smoking ordinances.
proof that the pain is not being felt equally: While personal bankruptcies (Chapter 7
But over the same
and Chapter 13) rose 11.7 percent, business bankruptcies (Chapter 11) fell 12.7 percent. In
period, the state has
California, bankruptcies edged up 2.8 percent, with filings almost unchanged in the Central
become increasingly
District (although in absolute terms, the Los Angeles area remains the bankruptcy capital of
desperate for money.
the universe). But filings were up 11.2 percent in the Eastern District (based in Sacramento),
Thus, twice in the
6.1 percent in the Southern District (San Diego area), and 4.2 percent in the Northern Dis-
past two years, Gov-
trict (based in San Francisco). While Wall Street romps and executives' salaries soar, "[most]
ernor Pete Wilson
people's take-home pay is declining," explains Daniel G. Bath, a bankruptcy attorney and com-
has requested-and
mercial litigator at Cummins & White in Los Angeles. "There's not a lot of cash out there, but
the Legislature has
consumer credit is very easy to obtain, and people have taken advantage of that." The Ameri-
ED RACHLES
passed-bills amend-
can Bankruptcy Institute echoes this view: It says credit card delinquency rates are at their
ing Prop. 99 to shift
highest level since the 1991 recession.
-KELLY FLAHERTY
money from tobacco
CALIFORNIA LAWYER
21
MAY 1996
Clinton Presidential Records
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marker by the William J. Clinton Presidential Library Staff.
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of digitization. To see the full publication please search online or
visit the Clinton Presidential Library's Research Room.
HEALTH
POLICY
Child Health
PROMOTING AWARENESS OF MOTHERS AND CHILDREN IN STATE AND NATIONAL HEALTH POLICIES AND PROGRAMS
Lawmakers Debate Strategies to Reduce
Tobacco Use Among Youth
Every day, 3,000 Americans under
516 million packs of cigarettes and 26
The
the age of 18 become regular smok-
million containers of chewing tobacco a
George
ers-a statistic with enormous implica-
year, according to a 1994 report from the
Vashington
tions for the nation's health. The leading
Surgeon General. More than three mil-
University WASHINGTON DC
cause of premature death, tobacco use is
lion of those teens smoke cigarettes,
MEDICAL CENTER
responsible for more than 400,000 deaths
while one million use smokeless tobacco
CENTER FOR
each year. And as experts in the field
products. The mean ages for trying a first
HEALTH POLICY RESEARCH
point out, adolescence is the key period
cigarette and for initiating smoking on a
in the decision to start smoking: the vast
daily basis are 14.5 years and 17.7 years,
Center for the Future of Children
majority of adult smokers had started by
respectively. By age 18, about two-thirds
The David and Lucile Packard
their 18th birthday and more than half
of adolescents in the U.S. have experi-
Foundation
smoked regularlyby that age. On the other
mented with tobacco.
hand, people who do not begin to smoke
Teen smokers are fairly evenly divided
Spring 1996
as minors are unlikely to ever do SO.
between males and females, while smoke-
Volume 3 Number 2
In view of those facts, state and federal
less tobacco users are almost exclusively
policymakers continue to explore a range
male. Smoking is much more common
YOUTH AND TOBACCO
1
of strategies designed to reduce tobacco
among white youth than black youth
States apply a variety of
use among youth. Some of the initiatives
(22.9 percent vs. 4.4 percent). According
approaches to reverse trends in
target easy access to tobacco products by
to a report released in February by the
tobacco use among adolescents
teenagers and even younger children,
Centers for Disease Control and Preven-
and even younger children.
while others aim to limit the appeal of
tion (CDC), the percentage of youth who
SPOTLIGHT ON
6
tobacco to young people. But while ap-
reported smoking in the last 30 days var-
HIV testing of newborns Immuni-
proaches such as health education enjoy
ies from 16.7 percent in Washington, DC
zations in Missouri Arkansas
widespread support, others, including re-
to 38.9 percent in West Virginia.
and managed mental health care
strictions on advertising and sanctions for
Most alarming to the health com-
New rule on lead poisoning
young users, are being sharply debated.
munity is that after a sharp decline in
RESOURCES
7
Disagreements among lawmakers on the
smoking in the 1970s and a continued
Publications, reports, etc.
best approach in part reflect different be-
slow-down in the 1980s, smoking is
FOR THE RECORD
8
liefs about who bears the major respon-
again increasing among American youth.
Some of the striking statistics from
sibility for youth smoking: tobacco
Among both eighth- and tenth-graders,
CDC's report on tobacco and teens
companies, retailers or young people
the proportion who report smoking in the
in the 1990s.
themselves.
past 30 days has risen by a third since
SPECIAL REPORT
Pullout
1991, according to a December 1995 re-
A special commentary looks at the
Young Smokers: A Profile
port from the University of Michigan,
links between children's health,
Almost 1 in 3 young people under age
while the proportion of high school se-
poverty, and welfare reform
18 uses tobacco, consuming a cumulative
niors who smoke has increased by
>