Retail stores were not included on the list of public breathing spaces and therefore, as “unprotected breathing spaces,” it was left up to the owner or manager to “develop a written policy for restricting smoking areas” and left the size of the no-smoking areas up to customer demand. Macfarlane’s SB 440 also considered restaurants to be unprotected breathing spaces, leaving no-smoking areas up to the discretion of the proprietor in contrast to HB 562 and SB 150, which required 40% of a restaurant’s seating capacity to be smoke-free. Macfarlane admitted to the press that he would not support retail restrictions at all, characterizing them as “an invasion of privacy rights.”His introduction of a weak bill, SB 440, was consistent with the industry strategy of enacting a weak bill to prevent the potential passage of a stronger one. With the Virginia affiliates of the voluntary health organizations supporting a different bill than their former allies Michie and Cohen, the health advocacy position was in disarray. It was in this environment that the tobacco industry decided to introduce its own bill, SB 486, sponsored by Sen. Virgil Goode . The bill was specifically represented to the public and press as a moderate bill compared to the GASP-supported bills, and was introduced by concerned industry-aligned elements, in order to head off what was feared to be a rout by tobacco control interests. Michie and Cohen felt that they had enough votes to pass their legislation, and these comments were exploited by the tobacco industry as an excuse to introduce Goode’s bill as a “moderate” alternative to the stronger Michie and Cohen bills.Soon after being introduced, Cohen’s SB 150 was referred to the Senate Education and Health Committee. There it survived an attempted amendment that sought to weaken the bill by adding preemption language. In reaction to this success, Macfarlane allowed industry lobbyists to draft the new provisions for SB 440 according to David Bailey, a VCIA lobbyist.These new provisions drew directly from the industry-supported SB 486 and eliminated the “protected breathing spaces” language that allowed more stringent local ordinances for “public breathing spaces,” hydroponic shelf and included instead standard industry preemption language that disallowed localities from passing local ordinances stronger than the statewide law.
Despite his willing adoption of the new language, some health advocates such as Lucy Blackford, associate director of the ALA, felt that Macfarlane was still making a good-faith attempt to move forward; however, the preemption language he had utilized did alienate the health groups.According to Blackford, Macfarlane may have adopted industry-supported preemption language to ensure passage of his bill, not realizing that the industry language would so damage the bill’s support from health advocates.Others, like David Bailey, questioned the need for such a move “when the votes were there” along with health groups’ support.After adopting the industry language, 11 out of the 13 co-sponsors of Macfarlane’s bill withdrew their support.The result was that any distinction between the Macfarlane and Goode bills was further eroded, as SB 440 had been amended with language derived from SB 486. SB 440 then became the leading bill for the industry and Goode lent his support to promoting it. This led the health groups to drop their support of SB 440, shifting their support behind Michie’s SB 150.Michie publically questioned Macfarlane’s decision, with Michie stating to the Roanoke Times “I’m astounded that the senator from Roanoke [Macfarlane] has the temerity to support this bill thrust upon him by the tobacco industry.”In early February, Macfarlane’s bill failed to pass its third reading in the Senate by a 21- 18 vote. Donley credited this to Sen. Michie, whose bill had passed the Senate a few days before, stood up and “put his personality, his reputation on the line” to kill the bill.Macfarlane’s bill was immediately reconsidered and defeated again, preventing it from being revived in the same year. While Goode’s bill was still alive in committee, it seemed unlikely to pass due to its similarity to Macfarlane’s bill.This situation left Michie’s bill the only one to have a reasonable prospect of success in the Senate. At this point, the Tri-Agency Council threw their support behind Michie’s bill, mobilizing grassroots support. Early in the 1990 session, Del. C. Richard Cranwell , chair of the powerful House Finance Committee, introduced HB 1055 which was promoted as a limited preemption repeal. But after the death of SB 440, HB 1055 was amended with a substitute bill, transforming it into a vehicle for tobacco industry language.The only statewide protection against smoking that HB 1055 provided was that government-owned buildings must provide reasonable no-smoking areas. Most importantly, the new substitute bill preempted local ordinances and presented mandatory provisions that local ordinances must include.
The bill also stated that any local ordinance must provide that where smoking was permissible, a building’s owner or manager would be exclusively responsible for designating no-smoking areas. The changes to HB 1055 satisfied no one, causing an immediate uproar from most tobacco control advocates and industry representatives alike. HB 562 was considered by the tobacco industry to be the most threatening of the bills being carried in the General Assembly because it did not include preemption and encouraged local ordinances to exceed the standards it set. It was aggressively opposed by the industry. RJ Reynolds , in response to HB 562 being reported out of the House General Laws Committee to the House floor on February 12, made phone calls to smokers and local smokers’ groups as well as industry allies such as outdoor billboard advertisers, customers, tobacco growers, and hospitality groups. All were asked to make phone calls to legislators in opposition of HB 562. The bill was subsequently defeated on the House floor by a vote of 57-40 in the face of significant industry pressure.After the defeat of HB 562, Cohen and Michie tried to block Cranwell’s bill, but in the end both sides felt the need to compromise, so Cranwell agreed to meet with Cohen in an attempt to work out a bill agreeable to both sides. One of the main points of contention involved which part of the code the bill would be part of. Cohen and Michie wanted the bills to be part of the health code , meaning that if the law were ever modified, it would first have to go through the health committees, generally favorable to tobacco control legislation, and bypass the hostile local government committees in both the House and the Senate. Cranwell sought to house the bill in the local government section of the code , ensuring it would end up in those committees.Cranwell ultimately prevailed, and both SB 105 and HB 1055 added new language in the local government section of the code. On February 14, 1990, Cranwell’s bill passed the House by an overwhelming majority of 92-5. With no health-group-supported bills left, Del. Cohen endorsed the bill, stating, “It’s better to have half a loaf than no loaf at all.”Part of Cohen’s support for Cranwell’s bill was an agreement by health advocates and their legislative allies not to pursue stronger language or revisions to the bill for two years.This tendency for legislative allies of the health groups to compromise in order to pass a bill would foreshadow legislative attitudes about tobacco control in the future,mobile shelving system hampering advocates of strong bills and setting the stage for future half-measures and compromises.
A similar situation played out in another tobacco-growing state, South Carolina, during the same year.South Carolina’s tobacco industry lobbyists convinced health advocates to support a weak statewide law, which resulted in a lopsided compromise that strongly benefitted the tobacco industry. The health groups were motivated by a feeling that statewide support for a clean indoor air law was strong, and that they had to capitalize on this positive sentiment or lose their opportunity to get anything passed . The tobacco industry was in a position of strength in South Carolina, losing nothing if a statewide law did not pass, but being in a strong position to dictate the terms of any compromise agreement. This was also true of the tobacco industry in Virginia. Ultimately, with the support of both the tobacco industry and the health groups, the South Carolina “compromise” language embodied in H 3303 and S 138 passed both houses in May 1990 and took effect in August of the same year. Opinions among the health advocates on the Cranwell bill were mixed. On one hand, some coalition advocates like the League of Women Voters and the VCIA supported the bill, with the VCIA’s lobbyist, David Bailey, stating that the coalition was “delighted” with Cranwell’s proposal, explaining that while the agency preferred the Cohen/Michie proposal, they felt positively about Cranwell’s bill.On the other hand, Anne Donley of GASP complained about the bill’s weak language.On March 2, SB 150 was amended to be identical to HB 1055. Both bills passed both houses by strong majorities on March 9, forming the basis for the final version of the Virginia Indoor Clean Air Act . On March 10, however, Gov. Douglas Wilder made two amendments to the bill and sent it back to the Legislature for final approval.The other amendment was substantive, and exempted prisons from the purview of the VICAA: “The provisions of this chapter shall not apply to office, work or other areas of the Department of Corrections which are not entered by the general public in the normal course of business or use of the premises.” On April 18, the Legislature approved Gov. Wilder’s amendments, and Wilder signed the bill into law on April 25th. . The law went into effect July 1, 1990. Almost immediately after passage, both health advocates and industry representatives sought to define the provisions of the bill as favorable to their interests as well as set the tone for enforcement. In April 1990, the Tobacco Institute opened the debate by observing to reporters that the 1990 bill was a boon for the tobacco industry and that “Virginia’s sensible level of accommodation is a model for the rest of the country.”The Tobacco Institute also took credit for the VICAA. For example, Page Sutherland, a regional director for the Tobacco Institute, accurately stated to the press that “Most of the provisions of the law we enacted are taken from pieces of legislation that we introduced.”Tobacco Institute representatives also took the initiative to produce interpretive guidelines for the public and proprietors of venues covered by the new law. Health advocates responded defensively about the Tobacco Institute’s moves by referring to them as public relations ploys serving as “damage control,” and, inaccurately, pointing to the new law as a strong one. Jane Roberts, a spokesperson for the VCIA, said to the press that “This is the strongest measure among the top tobacco-producing states in the nation,” a statement that was true in a technical sense but ignored the weak provisions of the bill, such as preemption.Early in the 1991 legislative session, Del. Cohen and Sen. Michie introduced legislation, HB 1796 and SB 815, to clarify the enforcement provisions of the VICAA. The industry responded strongly, claiming that instead of the minor technical revision that the proponents claimed, the bills represented a violation of the agreement between health advocates and the tobacco industry not to amend the law for two years. Originally, both bills sought to declare that the penalty for violating the VICAA was civil in nature, allowing the private citizen complainants to go to a civil court to file the complaint. In addition, the Commonwealth Attorney could participate in the enforcement action. The aim was to continue to allow private citizens to take direct action through the court system, as Anne Donley had previously done.Soon afterwards, the House version was amended so that city and county attorneys and not Commonwealth attorneys enforce the law. Eventually, the Legislature adjourned before the bill could pass, effectively killing it. The companion bill, SB 815, had died in the Senate Education and Health Committee almost a month earlier.We were unable to locate any actions by the health groups to support either of these bills. The tobacco industry put significant pressure on the Legislature during this period.