Legal Weapon


U.S. cigarette makers, using open-records laws as a surveillance tool, have been engaged in a quiet but far-reaching campaign to investigate and discredit government-sponsored antismoking programs, a tactic health officials acknowledge has put them on the defensive and disrupted their work, interviews and public documents show.

From California to Minnesota, Massachusetts to Washington state, tobacco lawyers and consultants have swamped health departments with requests for thousands of pages of documents relating to their antismoking efforts. In some cases, information from the records has been used to charge health officials and antismoking groups with improperly using public funds to lobby.

Although the industry campaign has been going on for at least three years, it has intensified recently as state and local authorities have stepped up their efforts to combat smoking, which health authorities say kills more than 400,000 Americans annually and is the leading preventable cause of disease and death.

The industry’s counteroffensive reflects a strategic shift in the war on smoking. Where health officials once stuck to such tactics as lecturing pupils and running smoking-cessation clinics, they now advocate policy measures to discourage smoking--such as cigarette tax increases, curbs on smoking in public and crackdowns on illegal sales to minors.


Equally worrisome to tobacco firms is the growing clout of the antismoking movement, which now enjoys increasing financial support from public health agencies and private foundations. Once a small cadre of academics and volunteers churning out fliers in dim church basements, the movement is now a small but growing industry that helps support thousands of people.

Tobacco officials said they are concerned about public support for programs that go beyond mere persuasion to regulating smoking. When federal agencies give millions of dollars to the states “to attack tobacco--to pass tax increases, smoking bans and other restrictions--it gets our attention,” said Brennan Dawson, spokeswoman for the Tobacco Institute, the industry’s Washington-based lobbying and public relations arm.

“This is not anything but taxpayer money, and there are rules and regulations about how taxpayer money can be spent,” Dawson said.

The flood of records requests has proved a severe distraction for public health workers, who say they have been diverted from regular duties for days or even weeks to collect and reproduce mountains of paper.


In some cases, tobacco companies have worked behind the scenes, filing requests for records through allies or proxies with no obvious ties to the industry, interviews and documents show.

But Dawson said other requests have been filed by smokers'-rights advocates acting “of their own volition because they don’t like what they’re seeing.”

The cigarette makers are facing a wave of high-profile assaults, including litigation by seven state attorneys general to recover smoking-related health-care costs and the Food and Drug Administration’s proposal to regulate nicotine as a drug. However, the industry’s rear-guard campaign to bog down the antismoking forces has gone unpublicized.

Under the federal Freedom of Information Act and parallel state laws, residents have the right of access to public records. Journalists and citizens groups frequently use the laws to monitor government activities.

Although businesses have the same rights to public records, health authorities say the tobacco industry is abusing its rights.

Some examples they cite:

* In Colorado, health officials turned over 6,000 pages of documents and copied 7,000 more that industry lawyers requested but did not pick up, said Walter F. Young, former director of prevention programs for the state health department.

The cost in staff time to respond to the requests can “very safely” be put at $50,000 to $60,000, said Young, who recently left the agency for another job.


* In Washington, the state health department provided more than 5,000 pages of records to tobacco lawyers, said Kim Dalthorp, a state tobacco-control official, who said she and her colleagues spent about 360 hours retrieving and copying the records.

Now they are spending additional time responding to a complaint to the state Public Disclosure Commission that accuses the health department of allowing the use of federal funds for lobbying purposes, a charge agency officials have denied.

* In October, Indiana’s health department was asked by a law firm that lobbies for Philip Morris Cos. for “all documents that relate, in any way, to requests for--or expenditure of"--funds for tobacco control. And in Massachusetts, a Boston law firm that represents Philip Morris recently filed two sweeping requests for records.

“It’s clearly a harassment strategy that they’re using,” said Gregory Connolly, head of tobacco control for Massachusetts. The industry “has asked for everything,” Connolly said. “They’ve asked, basically, for our building.”

The industry is clearly responding to the growing support of the antismoking movement. As an example, four states--California, Massachusetts, Arizona and Michigan--have committed millions of dollars a year to fight smoking, by earmarking revenues from cigarette tax increases.

In the process, the tobacco companies have seen some of their most ardent critics getting public funds to carry on their work.

For example, state tobacco tax receipts in California have funded projects of Americans for Nonsmokers’ Rights. Stanton A. Glantz, a UC San Francisco medical professor and a prominent industry foe, is getting $600,000 over three years from the National Cancer Institute to study the effects of tobacco money on the political process. And the Tobacco Products Liability Project--a Boston-based group that runs how-to seminars on suing tobacco companies--has a four-year, $1.1-million grant from the institute to research legal approaches to tobacco control. One goal is to perfect legal theories for states to use in suing tobacco companies to recover smoking-related health-care costs.

Such projects are consistent with NCI’s mission, said Marc Manley, chief of the agency’s public health applications branch. With “everything we do here, the goal is to reduce cancer,” Manley said. Because “the leading cause of cancer is tobacco use . . , we’re out to reduce tobacco use in this country.”


Another NCI-funded program, Project ASSIST, which stands for American Stop Smoking Intervention Study, has triggered many of the requests for state records.

Under the program, NCI is providing $135 million over seven years to 17 states for tobacco-control projects, ranging from publishing lists of smoke-free restaurants to advocating enforcement of bans on sales to minors.

Much of the money flows through state health departments to volunteer health and antismoking groups--some of which have been accused by the industry of using the money illegally for lobbying. Recipients deny the charge, saying that when they have pushed for specific bills or ordinances, they have been careful not to use public funds.

But the industry is keeping a careful watch. In the fall, for example, Fiscal Planning Services Inc., a Bethesda, Md., consulting firm, filed requests with all 17 ASSIST states, seeking lists of all groups the states are funding through the project. Although the firm did not disclose in the letters whom it represented, its president, Stuart Rabinowitz, acknowledged in an interview that “one of my clients is a tobacco company.”

In Minnesota, the Minnesota Candy & Tobacco Assn. and a second trade group filed a string of requests for Project ASSIST records. State health officials estimated that they spent more than 300 hours responding.

Then last fall, a third association filed a complaint with the Minnesota Ethical Practices Board accusing 16 antismoking groups of misusing ASSIST funds and violating state lobbying disclosure rules.

Tom Briant, a Minneapolis lawyer who filed the requests for the first two associations and furnished the complaint to the third, declined to discuss his links to the industry. But in a February memo obtained by The Times in which Briant discusses his work on tobacco matters, the distribution list included 13 officials of the Tobacco Institute, Philip Morris, R.J. Reynolds Tobacco Co. and other tobacco firms.

Earlier this year, the Minnesota ethics board exonerated 14 of the groups and cited the two others for minor infractions. According to the board, one group that expended $15 worth of staff time to prepare a newspaper op-ed piece had failed to report that as a lobbying expense. The other group had failed to report a $40 expense.

The complaint was “nothing but a smear campaign to divert the energies of those trying to keep tobacco away from kids,” said Minnesota Atty. Gen. Hubert H. Humphrey III, who is one of attorneys general suing tobacco companies seeking to recover the health-care costs.

But the complaint still had an impact, said Jeanne Weigum of the Assn. for Nonsmokers-Minnesota, one of the groups cleared of the charges. “They wanted people such as myself to be intimidated and fearful and confused--and at least to some extent they succeeded.

“Truly, we did almost nothing in the way of tobacco control for about three months,” she said.

As the nation’s biggest cigarette market and top spender on tobacco control, California has long been under close scrutiny.

Writing last year in the British journal Tobacco Control, Stanton Glantz and co-author Stella Aguinaga reported that the California Health Department’s tobacco-control section received 59 requests for records from 1991 to 1993--at least 49 of them linked to the tobacco industry or smokers-rights groups. Those figures do not include a flood of similar requests to county health agencies that also receive tobacco-tax funds.

And requests have continued to pour in since then. Last year, for example, Barnes & Associates--a Los Angeles detective agency that works extensively for tobacco companies and industry law firms--filed requests for records with more than 15 California cities and counties. Without saying why it wanted to know, the Barnes agency sought information on their efforts to enforce the state law that took effect last year restricting workplace smoking.

In January, Nielsen, Merksamer, Parrinello, Mueller & Naylor, a Sacramento law firm whose clients include Philip Morris, R.J. Reynolds and the Tobacco Institute, filed a request for all records back to 1988 on broadcast advertising against smoking.

Colleen Stevens, an official with the state tobacco-control section, said she and a colleague spent a minimum of 20 hours responding to the request.

In California and elsewhere, smokers-rights groups have joined the industry counterattack. Despite claims by smoking foes that they are industry fronts, many of these groups disavow any ties to the cigarette makers, saying their concern is the rights of abused smokers. Often, their underdog rhetoric echoes that of the antismoking movement.

One such group, FORCES (Fight Ordinances and Restrictions to Control and Eliminate Smoking), during a recent two-week period filed eight requests for records with the state and San Francisco health departments.

“I’d say that each letter that they sent us will generate a good eight hours of work,” said Alyonik Hrushow, head of tobacco control for San Francisco.

But FORCES has no sympathy for health officials, or for those who would appease them. When cigarette maker Liggett Group last month settled smoking-related litigation, FORCES turned to the Internet to denounce the Liggett “traitors” and urge a boycott of its brands.

Florida activist Wanda Hamilton, in a recent smokers-rights newsletter, offers to help smokers file requests for records, describing the process as therapeutic.

“It’s a matter of civil liberties . . . [and] how our tax monies are being used against us,” Hamilton said in an interview.

“We’re idealists, I suppose,” she said. “It really is . . . David and Goliath.”