Fighting Laws on Smoking With Proxies : Retailing: Tobacco companies quietly fund the battle against restrictions, opponents say.

When Rancho Mirage last December became the first California city to outlaw cigarette vending machines, a mom-and-pop firm called Bravo Vending filed suit to overturn the ban.

After voters in November, 1988, passed Proposition 99, raising the state cigarette tax by 25 cents a pack, it was another obscure family business--Kennedy Wholesale Inc. of Glendale--that challenged the initiative before the California Supreme Court.

Both firms had the kind of high-priced legal help that most small businesses can’t afford. Each was represented by the respected Los Angeles law firm of Munger, Tolles & Olson.

And in each case, the tobacco industry, its foes say, was quietly helping pay the bills.

Nowadays, America’s cigarette makers seem reticent about stepping out in public, except to take credit for sponsoring artistic and sporting events. Frequently pummeled in the press and painfully aware of their negative image, they have sought to avoid the spotlight in California’s smoking wars.

But that’s not to say they have given up the fight. They are heavily involved in the background, helping more sympathetic, neutral-sounding groups undertake the battles in which they have a common interest.

Cigarette companies “need to hide their face,” contended Julia Carol, associate director of the Berkeley-based Americans for Nonsmokers’ Rights, a nonprofit group that campaigns for restrictions on smoking in public places. “They would not have standing in a community to object to what a community is doing, so they have to hide behind reasonable-sounding groups.”

Industry officials say the tobacco companies are hardly hiding; the industry vigorously defends its product in the courts, Congress and state legislatures. Instead, they say, the big tobacco firms simply are overextended by an explosion in local smoking-control ordinances.

“We try to do everything we can,” said Brennan Dawson, a spokeswoman for the Tobacco Institute in Washington. Industry critics, she added, are “operating under the assumption that there are more of us than there are.”

Whatever the cigarette companies’ motives, they have scored successes from their low profile.

In April, the Long Beach City Council passed a tough anti-smoking ordinance that by 1994 would have banned lighting up in restaurants. But when a subsequent petition campaign left the council with the choice of repealing the ordinance or putting it before voters next year, the council suspended the law. Now council members are weighing a watered-down ordinance.

The petition drive succeeded with the help of paid signature-gatherers working for Californians for Fair Business Policy. According to records filed at the secretary of state’s office, the political action committee is “sponsored by tobacco manufacturers, wholesalers and restaurants.”

Representatives of the group did not respond to questions from The Times.

Similarly, the tobacco companies took a low profile last fall when the Los Angeles City Council voted down a proposed ban on restaurant smoking. The most prominent opponent, however--a group known as RSVP, or Restaurants for a Sensible Voluntary Policy--had heavy support from the cigarette makers.

“We’re an association fighting for restaurants,” said Rudy Cole, head of RSVP. But, he added, “We do receive support from the tobacco industry . . . and I would like to get more money from them, not less.”

Health activists rail against such alliances, contending that they distort what remains a David-and-Goliath fight against profitable industrial giants.

Dawson said it is ridiculous to accuse local business groups that fight smoking bans of being fronts for the “tobacco bogyman.”

“Why is it so very hard to believe that if you’re going to hurt somebody’s business, that they’re going to squawk about it?” she asked.

Though Dawson was talking about such local businesses as restaurant owners and vending machine companies, the stakes in the smoking battle are greatest for the $40-billion-a-year tobacco industry.

California remains by far the nation’s largest cigarette market, thanks to its booming population. During the fiscal year ended in June, 1990, Californians puffed their way through more than 2.2 billion packs of cigarettes--about 100 packs per adult.

Still, only 21.2% of Californians age 18 and older smoke, compared to about 27.3% nationally, according to a recent study by the state Department of Health Services.

Proposition 99 has cut into the tobacco makers’ market, the study found: The state has 750,000 fewer smokers than it would have if Proposition 99 had not passed. A nickel of the quarter-a-pack increase in the state’s tobacco tax--roughly $110 million a year--finances a broad-based campaign of advertising, education and smoking cessation programs.

Before Proposition 99, only a handful of people nationwide worked day in, day out in tobacco control. Now, more than 300 people are employed in California alone to fight smoking, according to Jacquie Duerr, media coordinator for the tobacco control section of the state health department, which administers Proposition 99 funds.

The tobacco industry spent more than $20 million in the losing effort to defeat Proposition 99. Afterward--without fanfare--it helped pay Munger, Tolles’ bills for the Glendale wholesale firm’s unsuccessful legal challenge of the initiative, acknowledged Dennis Loper, a lobbyist for the California Coin Machine Assn. and the California Assn. of Tobacco & Candy Distributors.

Loper, who helped arrange the law firm’s involvement in the suit, would not discuss the amount paid by tobacco companies. “It was very expensive, and a lot of people paid a lot,” he said.

Despite the Proposition 99 setback, tobacco industry lobbyists have kept the state Legislature a black hole for anti-smoking bills. But the cigarette makers have had a harder time fighting guerrilla attacks in the form of local anti-smoking ordinances.

In recent months, cigarette vending machines have become one of the major battlegrounds.

Vending machines account for less than 4% of cigarette sales, according to industry figures. But because they typically are accessible to minors, health groups have argued for banning the machines or restricting them to bars or other places where youngsters aren’t allowed. Tobacco officials say such measures are unnecessarily restrictive, arguing that it would be enough to require that the machines be placed where their use can be supervised.

Until recently, vending machine bans were limited almost exclusively to about 20 cities in Minnesota. In December, Rancho Mirage became the first California city to adopt a ban.

Three years before, officials of the desert resort had a celebrated run-in with R. J. Reynolds Tobacco Co. After the City Council gave preliminary approval to a tough public smoking law in 1987, Reynolds’ parent, RJR Nabisco Inc., threatened to pull the annual Nabisco Dinah Shore Golf Tournament from the town. The council amended the ordinance, the tournament stayed--and Reynolds’ strong-arm approach made headlines.

When the vending ban was adopted, cigarette makers did not utter a peep. But industry opponents say the tobacco companies were close by when Bravo Vending’s lawyers from Munger, Tolles filed suit to overturn the ordinance.

Jean L. Harris, city attorney of Rancho Mirage, said Munger, Tolles attorney Mark B. Helm acknowledged early in the proceedings that tobacco firms bankrolled the suit. Harris said he asked Helm, “This is really funded by the Tobacco Institute, isn’t it?” Helm, he said, replied, “Yes.”

Helm would neither confirm nor deny Harris’ account; he declined to say who paid the bills.

Actually, said Loper--who helped bring Munger, Tolles into the Rancho Mirage case too--the law firm’s bills have not been paid. But Loper said he was “sure that my members will encourage me to ask the manufacturers to help.”

A Riverside County judge ruled in the city’s favor in the case; Bravo has appealed the decision.

Tobacco and vending groups have used the Rancho Mirage case to warn other communities away from vending machine bans.

Last spring, Helm and Loper separately sent letters to city attorneys in communities around the state that were considering vending machine ordinances. The letters advised them to hold off, arguing that the Rancho Mirage ordinance would probably be overturned.

What Communities Are Doing

Efforts to keep youths from smoking have prompted some cities to ban cigarette vending machines or restrict them to places where minors aren’t allowed. Following are some California communities that ban or restrict cigarette machines or are considering such measures:

Total ban: Rancho Mirage, Santa Monica (enforcement delayed pending outcome of Rancho Mirage lawsuit), Solano County (county-owned or county-leased buildings in unincorporated county areas), Vallejo and Watsonville.

Restricted access: Duarte, Manteca, Paradise, San Francisco, San Marcos, Santa Cruz County (unincorporated county areas only) and Walnut Creek.

Ordinances pending: Berkeley, Long Beach (An ordinance passed, but enforcement has been suspended while the City Council reconsiders the measure), Los Angeles, Sacramento, the city of Santa Cruz, Santa Rosa, Scotts Valley and Whittier.