ALEC and the Tobacco Industry

The American Legislative Exchange Council (ALEC) is an influential, under-the-radar organization that facilitates collaboration between many of the most powerful corporations in America and state-level legislative representatives. Elected officials then introduce legislation approved by corporations in state houses across the U.S., without disclosing that the bills were pre-approved by corporations on ALEC task forces.

ALEC has had a long relationship with the tobacco industry. To explore this relationship, we studied publicly-available tobacco industry documents found in the Legacy Tobacco Documents Library (LTDL), an electronic archive created by the University of California San Francisco that contains 70+ million pages of previously-secret, internal tobacco industry documents obtained in the discovery phases of the 46 state attorneys general lawsuits against the tobacco industry. Those lawsuits were resolved in 1998. The documents were made public as a term of the 1998 Master Settlement Agreement between the states and the tobacco industry. Before now, ALEC documents in this database have not been a major focal point.

ALEC's relationship with the tobacco industry started after 1979, when ALEC Executive Director, Kathleen Teague, first wrote the Tobacco Institute seeking financial support. Shortly after, Institute members started participating in ALEC events. The industry's relationship with ALEC showed its worth quickly after ALEC provided Tobacco Institute members with face-to-face access to highest-level federal elected officials. In 1981, Tobacco Institute President Samuel Chilcote accepted an invitation to attend an ALEC "Exclusive White House and Cabinet Briefing" meeting with none other than the president of the United States, Ronald Reagan and his cabinet.

Public Relations Help for the Tobacco Industry

Beyond providing access to influential government officials, tobacco industry documents reveal that a relationship with ALEC benefits the industry in many other ways. ALEC has functioned both as a particularly potent front group and an ostensibly credible public relations conduit for the industry, by facilitating communication between the industry and legislators, and working to influence legislators' opinion in the industry's favor.

ALEC provides the tobacco industry with valuable services like drafting and circulating pro-industry editorials in specific states, creating and disseminating pro-industry reports to legislators, and serving as a credible third-party mouthpiece who helps "bring pressure to bear on targeted individuals" (lawmakers) to vote the industry's way on legislation.

ALEC has used its cachet and authoritative aura to convey Philip Morris' policy views to the upper echelons of government. In 1995, Jim Ramsay, a Philip Morris (PM) speechwriter, wrote in a weekly activity report that he had drafted a letter to be sent from ALEC to then-President Bill Clinton expressing ALEC's opposition to U.S. Food and Drug Administration (FDA) regulation of tobacco.

Similarly, a 2001 internal Philip Morris presentation titled "Legislators, Policy Makers and Allies 2001 Planning" discusses the company's need to expand alliances with public policy groups, and specifically mentions ALEC as a policy ally who could help PM "seize the initiative" (from consumer and health advocacy groups) and "reframe the debate" on the health hazards of secondhand smoke by changing the focus of the issue from health to one of "informed choice."

Pro-Industry, No Matter What

ALEC works to educate legislators about specific issues, but tobacco documents show ALEC offers legislators a sharply limited, and thus flawed view of the industry and its effects on the American populace. For example, to address the health issues around secondhand smoke in public places, ALEC distributed "info packs" to legislators not about secondhand smoke per se, but about the broader issue of "indoor air quality." The packets contained only information provided by the Tobacco Institute. They contained no information from government-funded public health agencies like the National Institutes of Health, the Centers for Disease Control or the U.S. Surgeon General's office, or from non-profit groups with decades of experience fighting tobacco-related illnesses, like the American Cancer Society, American Lung Association or American Heart Association. Instead, ALEC provided legislators with favorable articles about the economic impact of the tobacco industry, a Tobacco Institute-produced book about the tax burden imposed on tobacco by governments, and information about Philip Morris' Accommodation program, which started the decades-long trend of instituting smoking and non-smoking sections in restaurants. Years later, PM's "Accommodation Program" was discovered to be a PR strategy designed delay legislators' response to the increasing public clamor for clean air in shared indoor spaces, and to preserve the social acceptability of public smoking.

ALEC has taken the cigarette makers' side in virtually every debate between the industry and public health. A 1987-89 R.J. Reynolds strategic plan describes ALEC as an ally who could help "create an atmosphere of tolerance and fairness in the public's attitude toward smoking and smokers." RJR considered ALEC a friendly group of elected officials who would be willing "to tell our story in such a manner that it becomes their [other legislators'] position."

Opposing FDA Regulation of Tobacco

In 1995, U.S. Food and Drug Administration (FDA) Commissioner David Kessler, M.D. asserted that nicotine was an addictive drug intended to affect the structure and function of the body. He proposed that, because of its pharmaceutical effects, FDA should regulate nicotine as a drug. Following this finding, FDA moved towards regulating nicotine.

ALEC staunchly opposed the effort.

ALEC wrote FDA opposing the agency's attempt to regulate nicotine, and submitted comments to the federal government opposing regulation of tobacco. Using the change-the-focus PR tactic, ALEC sent letters to its legislative members urging them to oppose FDA regulation of tobacco not on health grounds, but because the effort purportedly represented an unlawful attempt to seize power from the states. ALEC thus helped the industry by constructing a non-health related, pro-tobacco argument legislators could use as cover to oppose FDA's effort to regulate tobacco.

In a July, 1995 letter, Ray Powers, ALEC's National Chairman, wrote to then-president Bill Clinton calling Dr. Kessler's effort to regulate nicotine "a time-honored method used by empire-building administrators to expand their domain."

A 1999 legislative plan written by the big PR company Burson-Marsteller (B-M), which worked for Philip Morris, shows ALEC played additional roles in helping tobacco companies battle Dr. Kessler's efforts to regulate nicotine. The plan noted that the "tobacco industry cannot win a majority of the vote on the House or Senate Floor for anything it publicly supports," and strategized about ways B-M could "assemble 41 Senators to oppose all bad FDA bills." The plan included tactics like attacking FDA by compiling and circulating "disturbing" stories about the agency and its failures "to media outlets, spokespersons and third-party allies," portraying efforts to regulate tobacco as an attack on freedom of choice and to cast FDA regulation as government creating a "new, overzealous regulatory scheme in an area where the risks" are already "so well known." ALEC is well-established in industry documents as a third-party mouthpiece for conveying such messages to legislators. The plan also proposed using ALEC as a conduit through which the industry could promote its youth smoking prevention programs. Such programs have since been exposed as a massive PR scam to help the tobacco industry avoid regulation of its products.

Promoting Tobacco Industry "Youth Smoking Prevention" Programs

In December, 1991, the Journal of the American Medical Association published a study that showed that 91 percent of six year olds could identify both Mickey Mouse and Joe Camel. This led to a 1994 civil lawsuit, Mangini v. R.J. Reynolds Tobacco Company, which helped reveal how RJR had developed the Joe Camel advertising campaign to boost market share among young smokers. The public was appalled. Pressure increased on legislators to enact measures to restrict cigarette marketing and advertising to children. The industry reacted by implementing "youth smoking prevention" (YSP) programs to defuse public anger and give legislators cover to claim that "something was being done" to address the youth smoking problem. Industry "youth smoking prevention" programs were also part of a back room deal with the Clinton White House to get FDA regulation of tobacco off the table.

By 2002, tobacco industry YSP programs were finally outed as PR tools the industry was using to boost its image and give legislators cover to keep voting their way on legislation. YSP programs were very helpful to the industry on this count, and highly damaging to public health in myriad ways. YSP programs invariably portrayed smoking as an "adult choice," which only increased smoking's appeal to youth. YSP programs allowed tobacco companies to keep surveying youths about their marketing preferences, by doing it under the guise of needing the information to develop YSP programs. Youth access programs that instructed retailers to ask for ID before selling cigarettes gave Tobacco Institute representatives entree' to contact cigarette retailers across the country and instruct their employees to serve as the eyes and ears of the industry and report back to the Institute immediately when they detected any local efforts to enact smoking-related ordinances, like retail marketing restrictions, tax increases, clean indoor air laws, etc., so the Institute could organize opposition to them.

Tobacco companies measured YSP programs' success not by measuring the smoking rate among teens, but by counting how many impressions their YSP ads made on the public, and conducting surveys to detect improvement in the public's attitude toward the industry. The industry never produced reliable data showing that their own YSP programs actually worked to reduce youth smoking, yet ALEC helped the industry promote these highly damaging programs.

A confidential Philip Morris (PM) report from July, 2000 about promoting the company's YSP programs describes ALEC as one of several "'Outside' credible groups that could 'go to bat' for" the company. ALEC was also listed in a Philip Morris presentation about using YSP programs to gain respect and credibility, and to help "shape the paradigm" of the approach the company would use with legislators. Philip Morris' "paradigm" was to portray the company as an expert in the field of youth smoking prevention, and to demonstrate that the company was "constructively engaging" youth groups, like 4-H clubs, with "positive youth development" programs. At the same time, PM portrayed public health groups as Prohibitionists who used a negative approach -- banning cigarette marketing and advertising, pushing for smoking bans, raising taxes, etc.

ALEC helped Philip Morris in its endeavors. ALEC's name even appears jointly with Philip Morris' on a PM Youth Smoking Prevention (YSP) presentation, and ALEC provided legislative speaking engagements where Philip Morris could promote its YSP programs.

Promoting Tobacco Industry "Proactive" Legislation

In 1994, PM joined with ALEC to promote what the company calls "proactive programs," a corporate euphemism for efforts to block anti-tobacco laws before they start. A classic example of tobacco industry-sponsored proactive legislation is getting a weak, permissive state smoking law passed that prevents cities and towns in the state from enacting stricter smoking laws, even if citizens want them. The laws are called "preemptive" because they block truly effective smoking laws from being enacted around the state. The industry also pushed for proactive bills that would, for example, set standards for ventilation instead of requiring businesses to be smoke-free, and employment laws that would effectively prevent businesses from prohibiting employees from smoking. It was difficult to trace the origin of these bills back to the tobacco industry because the broad and diverse subject matter they addressed seemed so distant and unrelated to tobacco.

Philip Morris worked to get ALEC to advance a resolution in favor of the company's "Accommodation Program," a program PM promoted nationally to restaurants and bars to delay legislated smoking restrictions. Through its Accommodation Program, PM essentially invented the construct of smoking and non-smoking sections in restaurants as a way to block smoking bans in these establishments. Smoking sections were rarely physically separated from non-smoking sections, so smoke would still pervade the entire establishment. Thus the Accommodation Program made little or no progress towards eliminating unwanted tobacco smoke in public places, and didn't hinder people's ability to consume tobacco products in public -- exactly the outcome the industry wanted.

"ALEC focus groups" figured in PM's plans to "defeat smoking bans" and "promote accommodation as an alternative." The messages to be conveyed were that the 1993 "EPA report [which listed secondhand smoke as a Group A Human carcinogen] is unfounded," and "focus on [environmental tobacco smoke] obscures larger [indoor air quality] issue."

As noted above, a 2001 internal Philip Morris presentation titled "Legislators, Policy Makers and Allies 2001 Planning" discusses the company's need to expand alliances with public policy groups. It specifically mentions ALEC as a potential ally to help PM "seize the initiative" from health groups and "reframe the debate" about the health hazards of secondhand smoke by changing the focus of the issue from health to "informed choice."

Drafting Novel Bills to Benefit Big Tobacco

In the mid-1990s, right-wing foundations were funding groups to launch "educational" campaigns to push novel theories of private property rights, including claims that regulations could or should constitute a taking of private property requiring compensation to businesses and other property owners. Suddenly, seemingly from out of nowhere, the argument surfaced that smoking was a business owner's private property right and smoking restrictions unlawfully infringed upon this property right. Tobacco lobbyists deployed this argument to help block smoking restrictions. ALEC helped the industry by developing model legislation called the Private Property Protection Act, which mandated that states compensate property owners for the diminished value of their property if the state enacted public smoking restrictions. ALEC's model legislation read, in part:

(A) Regulatory takings. Whenever implementation by the State or any of its political subdivisions of any regulatory program operates to reduce the fair market value of real property for the uses permitted at the time the owner acquired the title, or (insert date), whichever is later, the property shall be deemed to have been taken for the use of the public...(B) Compensation Required. The owner or user shall have the right to require condemnation by and just compensation from the governmental unit, or units, when more than one governmental unit is involved, imposing the regulation resulting in decreased value, or to receive compensation for the reduction in value caused by government action, and in either case to have such compensation determined by a jury.

The next step was to argue that smoking restrictions constituted a government "taking" of a private property right that required compensation by the state. A brief but telltale 1996 Philip Morris email from the company Colorado lobbyist that shows PM parlayed the "property rights" argument about smoking into legislation to try and block further regulation of smoking statewide. PM's lobbyist, Pam Inmann, emailed company executives in 1996 about a ["takings" bill] that had been introduced in the Colorado legislature. Inmann wrote: "Tomorrow barb will fax you a [copy] of SB 69 [a private property 'takings' bill] ... I think this will work on smoking bans in the future..."

Helping Big Tobacco Fight Consumers and the Courts

ALEC adopts resolutions and model legislation that aid the tobacco industry by reducing barriers to tobacco sales and hampering efforts by people harmed by its products to seek redress in the courts. Often ALEC's model bills do the opposite of what the names imply.

For example, a model bill titled the "Class Actions Improvement Act" seeks to greatly limit class action lawsuits against corporations that cause injury. A model bill titled the "Joint and Several Liability Act" is described deeper into the Act's text as the "Joint and Several Liability Abolition Act." The "Full and Fair Noneconomic Damages Act" actually places strict limits on awards for pain and suffering.

Another model bill, the "Product Liability Act," would help the tobacco industry by protecting its corporate retail allies. Major U.S. drug store chains often portray themselves in advertising and promotions as health care companies, while at the same time continuing to sell cigarettes. Despite knowing that cigarettes harm and kill consumers, operators of these national chain drug stores continue to sell them. For example, in 2006 Rite Aid entered into a joint health promotion with the American Heart Association called "Go Red For Women," in which Rite Aid said it was "taking a stand against heart disease in women." The partnership enabled Rite Aid to place large posters touting its "healthy heart" campaign in the windows of its stores, often immediately adjacent to its cigarette displays, and allowed Rite Aid to claim to be concerned for their customers' cardiac health while simultaneously marketing cigarettes. Rite Aid knew cigarettes cause heart disease in both men and women, but was inoculated against legal claims arising from that fact, because cigarette makers sign indemnification contracts that protect drug chains against legal action for damages, illness, or personal injury arising from their selling cigarettes. Such contracts promise to pay the drug chain's defense in court if they should be sued for selling cigarettes.

ALEC's solution, in the form of model legislation titled the "Product Liability Act," would "limit the liability of nonmanufacturing sellers," thus protecting retailers who sell cigarettes from people seeking justice against purveyors of cigarettes -- the only product that, when used as intended, maims and kills with great regularity.

A Mutually Beneficial, Enduring Relationship

For years, chewing tobacco manufacturer U.S. Tobacco has sought to change the way tobacco is taxed from a per-unit basis or a percentage of cost to a weight-based tax. The change would effectively lower the price of oral tobacco products like Skoal, Copenhagen and a new product that is gaining popularity in the U.S. called "Snus." In May, 2011, Wisconsin State Senator and ALEC member Alberta Darling quietly inserted an amendment into a state budget bill that was identical to an ALEC model bill titled "Resolution on the Enhancement of Economic Neutrality, Commercial Efficiency, and Fairness in the Taxation of Moist Smokeless Tobacco (MST) Products." The bill specifically promoted the weight-based tax break UST has long sought. Always the unwavering cheerleader for tobacco interests, ALEC sent a letter to Wisconsin Governor Scott Walker supporting the amendment, but Walker vetoed it.

Among the fun activities ALEC has put on at its annual meetings at first-class resorts, are legislative golf and tennis tournaments which served as a fundraising vehicles for ALEC's legislative scholarship fund. In 1987, ALEC sought funding for the golf tournament from the Tobacco Institute. Not long after that request, by 1989, R.J. Reynolds was sponsoring the golf tournament and Philip Morris was sponsoring the tennis tournament. Registration fees were only charged to non-legislators. The state legislators' entrance fees were picked up by the golf and tennis tournaments' tobacco hosts. Golf tournament entrants received greens and cart fees, a golf skills clinic, transportation to the golf course, a golf favor bag, souvenir photograph, continental breakfast, box lunch refreshments and club rental, if needed. Tennis tournament participants were provided with court fees, a tennis skills clinic, a tennis favor bag, a souvenir photograph, refreshments and tennis racket rental, if needed. By 1997, RJR was still sponsoring the golf tournament. (Pfizer had taken over the tennis tournament).

The relationship with the tobacco industry has been an enduring and lucrative one for ALEC. A 1995 Mother Jones article reported that Philip Morris and RJR each sat on ALEC's boards. At that time, PM was giving ALEC about $50,000 per year, RJR about $25,000 and U.S. Tobacco about $15,000. In 2000, Roger Mozingo, formerly of the Tobacco Institute, and then Vice President of State Government Relations for R.J. Reynolds, and Scott Fisher, then Director of State Government Affairs at Philip Morris Management Corporation, both sat on ALEC's joint Board of Directors. Fast-forward to 2011, and we find the current chairman of ALEC's corporate board is W. Preston Baldwin III, who until recently was the lobbyist for and Vice President of State Government Affairs at U.S. Tobacco, Inc., a major purveyor of oral tobacco which is now owned by Altria, the parent company of Philip Morris.

Altria is still a member of ALEC in 2011. Altria's Western Regional Director of Client Services, Daniel Smith, sits on ALEC's Private Enterprise or "corporate board." Toby Spangler, a lobbyist for Altria Client Services, was the company's previous representative to ALEC's corporate board.

Conclusion

Decades of denying the health hazards of smoking left the tobacco industry with little or no credibility. ALEC helped the industry by serving as a credible front for pushing pro-tobacco policies. The alliance with ALEC allowed the industry to leverage the credibility, ostensible authority and infrastructure of the "largest free enterprise State legislative organization in America" to advance its own interests, and delay regulation to the great detriment of public health. How many more lives could have been saved if FDA were allowed to start regulating tobacco in 1999 instead of 2009? How many cases of cancer and heart disease could have been prevented if workplaces became smoke-free two decades earlier than they have? In turn, ALEC benefitted substantially from the financial largesse the industry had to offer.

The industry also benefitted from ALEC's track record of enacting policies that boost corporate power. A 1995 ALEC business plan titled "Meeting the Challenge: Ideas + Action = Results. A Business Plan for the American Legislative Exchange Council" brags that,

Since its founding in 1973, ALEC has amassed an unmatched record of accomplishing ground breaking changes in public policy. Why? Because unlike most other think tanks and public policy institutes, which are largely academic in nature, ALEC members are the decision makers in their respective states. When ALEC develops policy proposals and model bills, those bills are introduced by ALEC members, laws are passed or repealed, and real reform occurs. ... Today, ALEC is the most effective delivery mechanism for conservative policy alternatives at the state level. The number of bills consistent with ALEC models introduced in state legislatures has increased during every two-year legislative cycle. During the last two years, nearly 1700 pieces of legislation based on ALEC model bills were introduced in state legislatures. At least one ALEC inspired bill was introduced in every state, and eight states introduced more than 30. In bellwether states, such as Illinois (72 introductions), California (81 introductions), and New York (82 introductions), ALEC model legislation was a principle element influencing the states' legislative agenda. During the 1995-96 legislative cycle ALEC model legislation achieved a passage rate of approximately 23 percent.[Italicized emphasis added.]

The alliance between Big Tobacco and the American Legislative Exchange Council has long and close, and one that has set back public health efforts to regulate tobacco by decades, at a great cost to American lives. ALEC has supported industry at every turn, regardless of the consequences to the American people, and at a dire cost to public health. The resulting burden of disease has cost governments greatly. ALEC has opposed FDA regulation of tobacco. ALEC opposed the U.S. government's 1999 lawsuit against the tobacco industry, which ultimately found the industry guilty of perpetrating 50 years of fraud against the American people about the health hazards of smoking -- and the state Attorneys General lawsuits that resulted in a $246 billion settlement to the states. ALEC promoted model legislation to benefit Big Tobacco, whether it was fake youth smoking prevention programs or contrived property rights arguments to preserve public smoking. Throughout all this, ALEC showed no concern whatsoever for the health of Americans -- only concern about advancing their paymasters' policies.

The only conclusion is that ALEC has been tremendously detrimental to Americans when it comes to public health and tobacco.

(This article has been updated, 07-17-11.)