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Iowa update: great victory against Tobacco Control

17th October 2008
Rules Review Committee Meeting October 14, 2008. Commentary on events.

Officers and directors of Iowans for Equal Rights attended a meeting of the state legislature’s Administrative Rules Review Committee (ARRC). The committee’s function is to assure that rules adopted by state agencies, such as the Iowa Department of Public Health, are consistent with legislative purposes and intent and that the rules conform to state code. One could view ARRC as part of checks and balances between executive and legislative branches of government: the legislature passes a law, an agency writes compliance and procedural rules, and the legislature conducts a final check to assure the rules are consistent with what elected representatives intended. In this case, ARRC was to approve the smoking ban enforcement rules required for House File 2212, the Smokefree Air Act. The Act was passed by the legislature April 8, 2008 and signed into law by Governor Culver April 15, 2008. Review of the source legislation and current rules by persons from state other than Iowa is important; the rules provide a clear roadmap of where U.S. tobacco control is going with smoking bans.

Iowans for Equal Rights has expressed its appreciation to the committee for the opportunity to present its views to legislative oversight members. Based on what is reported below, small business owners in Iowa should be thankful they have a rules review committee that is on the job. Rather than receiving a perfunctory rubber stamp for its enforcement rules, the health department confronted strong questions from committee members. One profoundly hopes that many committee members continue to display similar diligence at its December 10, 2008 meeting when the rules will be revisited once again.

Ordinarily, the ARRC review is a routine process because the intent and purposes of the new or amended law are clear, the language is quite precise, and the agency’s vested interest is to provide competent regulations to support implementing the law. When special-interest social marketing agendas are mixed with public law and policy, as in the Iowa health department’s smoking ban enforcement rules for House File 2212, unanticipated consequences often emerge. In the case of Iowa’s smoking ban enforcement rules the influence of pharmaceutical special-interests was so great that the health department wrote what can only be described as the most draconian and self-serving smoking ban rules that have ever been crafted to date. Consequently, the bovine droppings hit the wind machine Tuesday afternoon, October 14, 2008, in an ARRC hearing room that was packed to capacity with angry small business owners. Attendees at the meeting represented widely diverse business groups and were not limited to a few dozen angry bar owners.

Contrary to Des Moines Register October 15, 2008 mainstream press reports that “Rules were adopted before the law took effect on July 1 but lawmakers continued to hold public hearings and solicit public input,” the purpose of the health department’s smoking ban enforcement rules being on the agenda was to secure ARRC approval for the rules. The purpose of the October 14, 2008 ARRC meeting was to rubber-stamp the department’s rules and not to solicit public input. ARRC meetings must be open to the public and must provide an opportunity for public comment on any rule the committee is reviewing or considering. So public comments were part of the statutory requirements for any meeting of ARRC and were not the purpose of the meeting.

During the ARRC meeting several of the ten committee members (five from the House and five from the Senate) asked pointed questions of health department representatives. The questions were asked by elected representatives who were members of both parties (six Democrats and four Republicans). Some committee members expressed concern that information provided to legislators by the American Cancer Society and American Lung Association when House File 2212 was voted on was false and that they wound up passing legislation that would up passing legislation that hurt their constituents rather than helping them. Others questioned the accuracy of statements in the health department’s regulatory analysis. Another member directly asked health department representatives why the department had not responded to the eight letters from IER submitted in early August. It became clear from an inquiry by a member of the House (the inquiry was not during the meeting) that the health department reportedly did not intend to respond to IER’s letters until after the ARRC meeting, on recommendation by the attorney general’s office. As the meeting progressed it became clear that neither ARRC legislative members nor the public attending supported the health department or its current smoking ban enforcement rules.

In a decisive and unmistakable loss, the health department failed to receive a committee vote to approve their rules. In short, the health department’s enforcement rules were so ill-conceived and manipulative that ARRC could not vote to approve them in the face of strong opposition from a standing-room-only crowd of small business owners who objected. In fact, the ARRC Chair asked questions that were a veiled straw poll of how members were likely to vote on approval and he came up short to approve the rules. Two committee members left the hearing room shortly thereafter, which prevented a vote the health department would have lost. An objection to the rules was raised by a senate member of the committee, which was an objective that Iowans for Equal Rights achieved. The objection was merely noted, however, because with two members have left the hearing room a vote could not be held to sustain the objection.

Proper Staff Work, Able Advocacy 

Iowa Department of Public Health’s failure to receive ARRC legislative approval of their enforcement rules was the product of committed opposition by a rapidly-growing number of small business owners who belong to several organizations. Much credit is properly due every person who attended the ARRC meeting on October 14, 2008. Not only did they participate in the democratic process to support their legitimate interests, but they also presented a daunting face of opposition from diverse groups that committee members could not ignore. At the least it is clear Democracy through public participation is alive, well and thriving in Iowa. Kudos to the good folks in that state!

Few organizations have been more committed to and productive about opposition to the current smoking ban enforcement rules than Iowans for Equal Rights (IER). Starting in June 2008 the group committed to deep-background research to support their advocacy. At the same time IER began to reach out to other groups and legislators to coordinate opposition efforts. As a result of their efforts the group’s officers and directors were able to present strong testimony, as supported by comprehensive materials that were submitted to ARRC in advance of the October 14 meeting.

A visit to IER’s Web site, www.iowansforequalrights.org, is strongly recommended. “About Us,” linked on the home page of the site, describes the group’s policy and objectives. The “Legislators, Committees and Votes” section provides a complete list of every member of the Iowa legislature and how they voted on House File 2212. Additional legislator lists were sorted, such as by alpha order, to provide readers with a quick way to look up their elected representatives. That section also provides background information about ARRC and the rule making process. The site’s “Public Communications” section includes a summary of eight letters that IER wrote to the Iowa Department of Public Health in early August 2008, as well as individual links for each document. Also included in that section are links to several talk show appearances by IER’s officers and directors, as well as press releases. The “Policy Analysis” section for the site includes several research and analysis works, including proposed objections to the health department’s enforcement rules, research about Environmental Tobacco Smoke (ETS), a .PDF of the health department’s regulatory analysis, and comments concerning implications of the current rules in terms of eminent domain.

Prior to the October 14, 2008 ARRC meeting IER engaged in active communications with the public and legislators. The group also met in person with the Iowa Director of Public Health, Thomas Newton. Officers and directors made numerous talk show appearances, including an October 9, 2008 talks show discussion of the meeting with director Newton. Those activities culminated with IER’s October 9, 2008 press release shortly before the ARRC meeting. 

Mainstream Press Attempts Damage Control

Women may be from Venus and men from Mars, but in the case of mainstream press reporting about Iowa’s smoking ban media has been beamed up by a UFO and transported to another dimension. The press and new reports cited below are so far removed from reality that they can only be described as spin-miester dogma.

Few news organizations have more staunchly supported – many would say creatively spun – tobacco control’s mercantile agenda than the Associated Press. The AP was true to form in its report about the ARRC hearing. From Backers, critics squabble over Iowa smoking ban Associated Press - October 14, 2008 5:34 PM ET
 

DES MOINES, Iowa (AP) - More than three months after it became law, people are still arguing about whether Iowa's indoor smoking ban is putting bars out of business. A lawyer for bar owners told a legislative panel Tuesday that the ban is keeping potential customers away and could ruin some businesses. But a member of the American Cancer Society says studies have shown that in virtually every state that has passed an indoor smoking ban, there has been no impact on businesses. Lawmakers held the meeting to consider minor revisions to the law. (Underline added.)

The problems with this press report are abundant. To begin with, one Iowans for Equal Rights director clearly testified at the ARRC meeting to the effect that claims about no adverse economic impact are necessarily false because the Iowa Legislative Service Agency (LSA) published reports that projected fiscal impact of tax losses to the state ranging from $10 million to $40 million per year. The testimony of that director was:

In its analysis the health department states, “Smokefree workplace policies reduce operating costs and do not negatively impact revenues.” That statement is contradicted by at least four Fiscal Notes published by the Legislative Services Agency for House File 2212. Those fiscal notes identify about $10 million in lost cigarette taxes as well as $30 million in lost gaming taxes if the smoking ban were to apply to casino gaming floors. LSA estimated the greater total loss in revenues to businesses, then calculated the related, smaller tax losses to the state.  

In addition, several other factors point to the deceptive nature of claims concerning no adverse economic impact, as promoted by the American Cancer Society and Iowa’s Tobacco Use Prevention and Control Commission, which includes staff form the Iowa Department of Public Health:

 First, there is no credible argument about adverse economic impact from the smoking ban for Iowa bars and many other businesses. Reports about revenue declines of twenty to forty percent coincident with the date of the ban are flooding in from small business owners across the state.

Second, officers and directors of Iowans for Equal Rights pointed out several inaccuracies in the health department’s economic impact analysis during their meeting with director Newton on October 9, 2008.

Third, media representatives were provided with advance copy of information concerning economic impact by IER prior to the ARRC meeting.

Fourth, data from state after state that has endured a smoking ban now consistently show adverse economic impact, including at least Washington, Colorado and Ohio.

Fifth, the meeting ARRC was not held for lawmakers to consider minor revisions to the enforcement rules but approve the health department’s rules, which did not occur. The fact of negative financial impact form the smoking ban on Iowa small businesses was a material part of the reasons why approval of the rules was withheld.

The short analysis of the AP report is that they struck out on every material fact reported in the above article.

WHO TV13 published the Associated Press’ inaccurate report on its Web site. The station also produced its own report which broadcast on the 5:00 news on October 14th. See Smoking Ban Concerns Continue. If that link dies not work listen to audio .MP3 for that broadcast. The man who speaks about ABCs in the early portion of that news report is Randy Stanford, Secretary and a director of Iowans for Equal Rights. The woman who spoke about the health department providing more time for public for comments than required by law is Bonnie Mapes, director of the health department’s division of tobacco control. Ms. Mapes expediently failed to mention that the department forbade public questions during its public meetings, refused to respond to thirty-one questions about the rules included in eight letters sent by certified mail from IER, and failed to notify organizations that requested a regulatory analysis that the report had been completed a month before the ARRC meeting. Ms. Mapes also did not discuss the fact that by adopting its rules under emergency declaration it excluded the opportunity for oral presentation to the health department by organizations that represent interested business owners. Through its emergency adoption the health department deliberately excluded any public comments that it had a statutory duty to “consider fully” and/or respond to under the Iowa Administrative Procedure Act. The material point is that the health department set about arranging the pretense of public participation in a crafty legal way that it knew it could get away with completely ignoring. Finally, Ms. Mapes neglected to disclose that amendments to its enforcement rules were only disclosed during the ARRC meeting on October 14, 2008 and any opportunity for public comment on those changes was intentionally circumvented. Based on that information alone, WHO TV13’s report is more notable for what is fails to report than any worthwhile information it did present.

By Wednesday the 15th news articles were circulating in major daily newspapers about the ARRC meeting on the previous day. On October 15, 2008 The Des Moines Register published Proposed Rule Change: Smoking Objections Would Be Secret, by Jason Clayworth:

Iowans would no longer have to provide their names when making complaints about public smoking under a proposed rule change unveiled Tuesday by the Iowa Department of Public Health. The department also released a finding that the new law has had no negative financial impact on businesses. That and some of the proposed rule changes brought about strong disagreement from dozens of bar owners who jammed into the Legislature's Administrative Rules Review Committee meeting. (Underline added.) 

Iowans for Equal Rights directors brought director Newton’s attention severe due process problems that the current rules created by not requiring that the health department confirm the identity of persons filing smoking ban complaints against a business. The current form requires a name and address of the individual entering a complaint. The health department apparently thumbed its nose at that public input because it “solved” those problems by authorizing anonymous complaints and dispensing with the basic requirement that those filing complaints identify themselves at all. Such being an apparent shining example of the department’s policy to advance the cause of regressive progress.

One can often discern where they have had an impact by the damage control press anti-tobacco spiels following a significant loss. In this case false claims about no adverse economic impact, the department’s suppression of meaningful public participation during the rule making process, and the self-serving use of an emergency adoption of the rules to cut the public out of the rule making process are emerging as strong issues. The register’s October 15, 2008 article amounts to spin-control in a desperate attempt to maintain tobacco control dogma in the face of increasing opposition.

We leave press reports about smoking ban rules where they should be, in the mode of spin. Then again, spin is a notable characteristic of the Kfump Bird: the species reportedly flies in circles of ever smaller radius at increasingly higher velocities, until it flies through its own belly button with a “kfump” sound. We leave it to readers’ imagination where the bird emerges from after doing so. 

Victory in Perspective

The victory in Iowa is at least four-fold

First, what IER has been campaigning for over the past two months – that committee objections to the health rules be raised – did in fact occur and the objection was on-point with subjects that IER has raised.

Second, there was a large and vocal group attending that raised many important issues and those issues were in large part supportive of or consistent with subjects IER has raised in its public advocacy.

Third, the IDPH rules were not approved by ARRC. The bottom line is that the health department’s momentum to secure ARRC approval of their enforcement rules has been shattered, perhaps permanently.

Fourth: the ARRC meeting outcomes have energized several organizations that represent small businesses in Iowa. IER and other groups are already in discussions about how to coordinate their efforts for the December 10, 2008 ARRC meeting and the next legislative session.

Those victories must be considered in light of recent history concerning the IDPH enforcement rules. Approval was to be voted by ARRC in the September 9, 2008 committee meeting. In early August IER submitted eight letters to IDPH that outlined serious issues concerning the rules and posed thirty-one questions for the department. A week before the September meeting the health department asked that the portion concerning its rules be deferred to October. The alleged reason has they had not been able to complete their regulatory analysis. Interestingly, the department published its regulatory analysis on September 10, 2008, so they clearly could have had it complete for the September 9 ARRC meeting. The transparent purpose of the delay was to handle increasing objections to their rules and to attempt to maneuver opponents such as IER into an unfavorable position. It should be clear from both the ARRC results yesterday and the most recent streaming audio posted to forces about IER’s meeting with the health department (see A Talk With Public Health) that the department’s manipulations blew up in their face. The net result is that a senator who attended the meeting said to other attendees to the effect that, “This pig (House File 2212) will certainly be brought up for revisions during the next session in January.”

A good time was had by all on October 14, 2008! IER looks forward to aggressive public discourse after the elections, during the next ARRC meeting and on to the next legislative session.



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