Tobacco Politics

BRUCE M. BORTZ

November 10, 1993|By BRUCE M. BORTZ

When the state licensing secretary, Bill Fogle, popped into State House press offices two weeks ago and dropped his bombshell prediction of an imminent smoking ban in all Maryland workplaces, reporters must have thought at first that it a pre-Halloween prank.

With one notable exception -- an unsuccessful attempt to keep the state insurance commissioner within his department -- Mr. Fogle hasn't willingly entered the media lion's den since 1988, when he was in the headlines daily for one controversy after another.

Now, apparently without the governor's blessings or advance knowledge, Mr. Fogle says the Maryland Occupational Safety and Health agency, by regulation, will declare smoking a hazard to all workers' health, and prohibit it.

The battle over Mr. Fogle's daring new step -- unprecedented in the nation -- could come to naught. But if it ultimately turns in the secretary's favor, the state's cancer rate, now ranked second-highest in the nation, could come down. Its enforcement could limit Marylanders' legal smoking to areas truly private, if there are such places.

The proposed ban is one of at least two hotly contested smoking issues likely to come before the legislature in 1994. The other, a carry-over from previous sessions, would authorize the cities, towns and counties of Maryland to limit youth access to cigarette vending machines.

To best understand and handicap the coming debates over the two proposals, the key players and the major factors must be carefully examined.

Start with the person at the top, because if he's passionately on your side, you're halfway home. Two years ago, Governor Schaefer fell under the sway of state health secretary (and ex-smoker) Nelson Sabatini. The governor got out front, ultimately persuading a reluctant legislature to raise the state's tobacco tax substantially.

Since then, as a direct result, the number of adults smoking has markedly declined. But Mr. Schaefer, while still ardently opposed to smoking, has ruled out a second increase in the cigarette tax. Though not running for office himself, he has apparently bought into the prevailing legislative wisdom: Don't enact new taxes just before a statewide election.

Besides, it's best to not get in the way of President Clinton, who pro- poses to finance his health-care reform package partly through substantial increases in federal cigarette taxes.

The governor hasn't yet signed on, either, as a supporter of the vending-machine-access bill, despite concerted lobbying by anti-smoking and health-advocacy groups. Mr. Schaefer clearly

cares for children, and cares about the state's notorious cancer rate. But he seems reluctant to champion legislation that will unduly affect Giant Food, which he regards as one of the state's biggest and most responsible employers. And Giant apparently derives a lot of income from cigarette vending machines.

After the governor, the next most powerful player in the coming tobacco debates will be the tobacco industry itself, led by super lobbyist Bruce Bereano. Cigarette-manufacturing giants, vending-machine owners and tobacco farmers in Southern Maryland all coordinate their defensive strategies and their public statements through Mr. Bereano and the Tobacco Institute. Mr. Bereano remains in the governor's good graces, has access to the legislature's top leaders and assiduously cultivates many legislators.

Members of the legislature's joint regulatory review committee will be Mr. Bereano's initial umpires on the proposed workplace ban. To them, he'll argue that express legislative authorization is needed; a ban imposed instead by the Maryland Occupational Safety and Health agency, he'll contend, is executive rule-making run amok.

Does the agency have the legal authority to move on its own? The regulatory-review committee's decision will turn on the answer, so Attorney General J. Joseph Curran Jr. may well jump in personally to supply it.

He has said that, as a matter of policy, he favors attempts to get people to stop smoking. As a legal matter, he'll need to persuade a wary regulatory-review committee that the federal Occupational Safety and Health Administration hasn't pre-empted any workplace regulation undertaken by the states.

If Mr. Curran says an administrative ruling, without legislative approval, is permissible, look for Mr. Bereano to head straight for the courts, where he's had stunning success on just this sort of issue, or to the full legislature (and especially the House) for a bill nullifying the ban.

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