September 29, 2007

Behind the Freedom to Breathe Act: The Tobacco Law Center

by Joe Tougas

Six lawyers in a conference room smiled recently at the idea of what they’ll be doing Oct. 2. “Taking a two-week vacation,” one laughed.

More than likely, however, they’ll be fielding a load of legal questions, just as they did in their role helping shape the Freedom to Breathe Act, a sweeping new law that basically eliminates smoking in all Minnesota workplaces, including bars and restaurants. It takes effect Oct. 1.

This small group works at William Mitchell College of Law for the Tobacco Law Center, the legal brains behind the legislation that became Freedom to Breathe. Technically, the act is a series of amendments to the 32-year-old Minnesota Clean Indoor Air Act. In its time, that law was a first-of-its kind measure that limited the types of buildings and businesses where smoking could take place. The new law, as center attorney Susan Weisman puts it, replaces limitation with elimination.

Features of the new law eliminate exceptions for private workplaces and even provide a new definition of “workplace” – which covers everything from home offices to work vehicles. The act also contains new, legal definitions of what “indoor” means (essentially any space with a ceiling and walls).

With each step toward the new law – and those steps included a staggering 19 committee hearings and debates – the Tobacco Law Center was the go-to legal resource for the lawmakers and public health officials who needed expert advice and often needed it quick. The center accomplished this without lobbying (the center is not a lobbying group) or even meeting with the lawmakers face to face.

“In the session itself, things move very rapidly,” said Kathy Sheran, the Minnesota Senate’s chief author of Freedom to Breathe. “You could not anticipate what might happen in the next committee or the next meeting or what question someone might raise or challenge. You’re moving so fast that in order to get good data to confirm or disaffirm something that’s happening, you need a fast response.

“And the Tobacco Law Center was very responsive – they were able to do the research and give the consultation in a timely way, and that’s what made the difference. I mean, it’s great if they’re doing the work, but if you can’t get it there when it’s needed, it’s not very helpful. Their timeliness, the speed with which they responded, was very helpful and impressive.”

They’ve had practice.

The Tobacco Law Center was created in 2000 as the result of the state’s settlement with Big Tobacco. It never had a formal mission statement, yet its mission was clear from the start – to provide legal expertise to local communities seeking to enact non-smoking laws. And to date, nearly every local non-smoking ordinance enacted in Minnesota has had representatives of the center in its corner, providing legal expertise behind the often volatile scenes.

In its seven years, the growth of the center has been remarkable. When it began at William Mitchell, the center consisted of one attorney, Doug Blanke, and one support staff person. It had an initial budget of about $150,000. Today, with funding coming through charitable and foundation grants, the center has seven attorneys – led by Blanke – and a budget of more than $1 million.

The center also advises other states, as headquarters for the Tobacco Control Legal Consortium, a network of services similar to the Tobacco Law Center around the country. Blanke is also director of the consortium. Logistically, the center can’t provide other states with the intense level of hands-on help it does in Minnesota communities (hearing appearances and meetings).

Instead, it advises state, county, and city attorneys on drafting solid ordinances, as well as updating them on any developments or pertinent information from other cases in the United States and other countries. Blanke and crew have developed a database of smoking laws – their challenges, outcomes, and any unique arguments that arose.

In advance of the last legislative session, the Tobacco Law Center was approached by a coalition of health groups, including the American Lung Association, Blue Cross/Blue Shield, and the American Cancer Society to draft the Freedom to Breathe Act. The proposal endured a legislative workout like few others – 109 amendments debated in the course of 19 legislative hearings, some of which lasted longer than eight hours.

“In theory, every one of those hearings is a sudden death playoff,” Blanke said. “You have to get a majority vote in every committee to pass out of that committee and get to the next one. For four or five months, it was like sudden death to get to the next committee.”

Center attorney Mike Freiberg ’05 said that with the exception of a few amendments that allow for smoking in certain circumstances – such as actors on stage or subjects of a scientific study – the initial proposal survived intact. “We’re pretty satisfied,” he said.

As is Sheran, who credits the center with invaluable help in advising – rapidly – on myriad questions in the course of those hearings.

“Whenever I needed something,” she said, “if there was research that would be coming out that would appear to be challenging or contradictory…when I asked for research assistance to determine where the articles were coming from, whether or not the research was valid or legitimate, stuff like that, the Tobacco Law Center was always very helpful to me. I relied on them for their ability to present very sound information that was reliable.”

Now that the Act is law, the center is bracing for the inevitable legal challenges, most likely from the hospitality industry. But members say their work is on solid ground both legally and socially.

Unlike 1975, when Minnesota was in front of nonsmoking laws, the state is now the 20th to establish a statewide indoor ban, indicating a social momentum that keeps growing.

The general approach of the center, based on plenty of case study, is that public health ranks higher than private interests.

“Protecting public health is part of the police powers that local governments have,” said center attorney Julie Ralston Aoki. “The job of government is not to put personal benefit over health and safety of the public. And so I think that’s a clear principal in the law that we draw for these [arguments].”

Blanke said it’s a misnomer to say that the center’s work goes against notions of personal freedom, “as though there’s a right to smoke cigarettes.”

“What those arguments don’t really want to come to grips with,” Blanke says, “is that it’s not about the impact on the smoker, it’s about the people around them who are being hurt. And in most of the places we’re talking about, there are workers, for example, that don’t really have a choice but to breathe the air in the place where they work. We feel their freedom not to be endangered or killed in their working environment trumps the argument that ‘we have the right to smoke.’

“And we know that it’s going to save lives, and that’s the bottom line.”

» Tobacco Law Center on the Web