Philippe Boucher's Rendez Vous
Rendez-vous with NAME
By Philippe Boucher
Rendez-vous with Christine Gregoire Attorney General of the State of Washington
This "rendez-vous" was not an electronical encounter like most others.
Since Christine Gregoire has her office in Olympia, not too far from where I live, I requested a traditional interview, along with my friend Bob Jaffe who has been active in tobacco control for 15 years (with Washington's Doctors Ought to Care, Kickbutt) and co-chaired the Attorney General's task force that produced "a comprehensive tobacco prevention and control plan for Washington State" in November 1998.
The meeting took place on Tuesday June 29, just before the launch of the American Legacy Foundation that was unknown to Bob and me so it does not appear in our questions.
I did not feel like re-engineering the interview to fit into the habitual six questions format, I mostly transcribed our discussion.
Instead of the "self-introduction" I copied the presentation given on The American Legacy Foundation's web site: www.americanlegacy.org You can also visit the Attorney General's site: www.wa.gov/ago
Here is how the ALF introduces Christine Gregoire:
Now serving her second term as Washington's 16th State Attorney General, Christine Gregoire is the first woman elected to the position in state history. Raised in Auburn, Washington, Ms. Gregoire graduated from the University of Washington in 1969 with a teaching certificate and Bachelor of Arts degree in speech and sociology. In 1977 she received a Juris Doctorate degree and, in 1995 an honorary Doctor of Laws degree from Gonzaga University. In 1996, on behalf of the state of Washington, Ms. Gregoire filed a multi-million dollar lawsuit against the tobacco industry for violations of the state's antitrust and consumer protection laws. The litigation and ensuing settlement negotiations between states attorneys general and tobacco industry moved Ms. Gregoire onto the national stage. In November 1998, as the lead negotiator for states, Ms. Gregoire announced the largest legal settlement in U.S. history which mandates tough, new restrictions on cigarette advertising and youth marketing, and establishes a new multi-state foundation, funded by the tobacco industry, to develop anti-smoking education and cessation programs nationwide. She now serves as Chair of the American Legacy Foundation.
Ms. Gregoire is President of the National Association of Attorneys General (NAAG). Ms. Gregoire and her husband reside in Olympia with their two daughters.
Philippe Boucher: Shortly after the settlement was announced, the Seattle Times published a story with the following headline:
"Gregoire vs.tobacco it's personal". Can you elaborate about that and tell us you found yourself at the center of the fight with the tobacco industry?
Christine Gregoire: First Mike Moore (The Attorney General for the State of Mississippi) approached me. We were the 9th state to file a lawsuit. I am a cautious litigator but when I file a lawsuit you better look out because I would not have filed it if I did not think I had it. We spent a year looking at whether we had a case. Undeniably there was some personal motivation: I have an 83 years old mother whose health is compromised because of her tobacco addiction since she was a teenager. She has tried to quit on numerous occasions and failed but the part I was probably most troubled with was having two teen age daughters. None of them smoke but I looked at their friends who do smoke and at the advertising practices of the industry. So my first motivation was not Medicaid reimbursement at all, It's totally stopping them from their marketing and advertising, In our language "unfair and deceptive advertising". Look at Rolling Stone magazine. Open it up here pops Joe Camel Offering concert tickets to the reader, then a booklet of caps, backpacks, whatever with Camel packs the whole nine yards Sitting down with my daughter's friends and looking at those ads with them, that's probably my major motivation.
I felt the evidence was there and when we were able to link it with the cost of treating smoking related diseases in Washington State we knew we had a major piece of litigation. We filed in June 1996 but we had spent over a year looking at the case.
Philippe Boucher: since you had such a good case, why did you decide, much later on, to settle?
Christine Gregoire: While I was in DC Mike Moore called me to ask me if I would go to a session to talk settlement with the industry. He would share with you the reason why he asked me. I was probably one of the 4 or 5 AGs who were the least willing to consider a settlement with the industry. Because I wanted to change the business practices and usually industries think they can buy off Attorney Generals by throwing money at the problem and that we'll grab the money and run and that we'll never get to the business practices to change. I thought it would be a terrible disservice, that we had to get fundamentally a change in business practices. So I said I would go to the meeting but I was a reluctant participant, I'd give it no more than a day and then I would be gone because I thought it was a waste of everybody's time. I went there and at the end of the first day they had agreed to get rid of Joe Camel and Marlboro Man. Once they did that I thought it was worth me staying at the table. I talked with my colleagues whether it was not in fact a golden opportunity for us to use the leverage of our lawsuits to bring about congressional action. We could not negotiate a settlement not subject to legislative approval because we literally had legislative proposals in it that would fundamentally change how the companies did business in the country. We all agreed that was a good course and we stayed at the table and negotiated, FDA, all of it subject to congressional approval and that we finished in June of 97.
Philippe Boucher: But you did not get the congressional approval?
Christine Gregoire: No.
P.B: and that changed the whole picture again?
Christine Gregoire: Right. That failed May of 98. Despite our best efforts. The attitude I experienced in Congress is "if the Attorney Generals can get this much, we then of course can get a whole lot more because they are just the AGs". So they added one thing and another until they failed with in my estimation no prospect of bringing it back up. Considerable lack of leadership. So we would have a trial. We had a September 14 date and we had mandatory mediation. It is required by our courts. I said I was not about to participate in mediation unless certain lawyers were on the other side because I knew if it was serious or not. Ultimately they came to us and said they would be willing to consider mediation, settlement but only if it was done outside that forum, very quietly and they would settle only if enough states signed on it. They did not want to go state by state any more. So again I went to the table with the understanding that "I don't know that we are going to get there because they are probably going to throw money at it again and we cannot get the business practices to change". That was June 98. We negotiated until November.
Philippe Boucher: and that's your feeling now that they have been changing their business practices?
Beside the billboards that are gone and that we can see, do you think that there is a big change because of the settlement?
Christine Gregoire: I did not say there is a big change. In think we are "en route". The Tobacco Institute is gone, they actually had three such organizations, they are gone. This is already a significant accomplishment. The average citizen does not understand the significance of that accomplishment but that was the instrument they used to play games with the medical research, to conspire on reduced tar products, to conspire on how to deal with kids, etc, etc. Those instruments are gone and that I think is important. The billboard is symbolic. Symbolic to a cultural change I think you do need symbols. We'll not be able to grapple with this issue until we have a significant cultural change in this country. So you need symbols showing there is a cultural change. We need to get rid of them now, the next step is getting rid of the walking billboards, the kids with their backpacks and their T-shirts and all that sort of stuff, that's coming up. We need to reduce the sponsorships that's almost ready to kick in place, we need a number of other things.
Philippe Boucher: you said in an interview, "it is a first step"
and obviously it will require a long commitment, are you committed to do that on a long period of time?
Christine Gregoire: I am but I'll say that the other piece of it is the money that we secured in the settlement was supposed to be an opportunity. It was not a windfall. It was supposed to be an opportunity to address the problem. And that is not necessarily how state's legislatures and Governors around the country are viewing it. Some are viewing it like a tax or a windfall so that they can use it, put in the general fund and do whatever they want to do with it: highways, waterprograms, taxcuts, whatever
Bob Jaffe: Is there a legal recourse for people in those States where the money has not been used in relation to tobacco control? Or is it something that the legislature has total legal responsibility for?
Christine Gregoire: We left it to the legislatures to make the decisions. But you need to know some of the ramifications:
When the Attorney General in Texas attempted to spend some of the money for research's purposes:
he got sued by the Governor and the legislature for exceeding his boundaries. That was a legislative decision as how the money should be spent. We knew that was going to happen everywhere in the country if we spent the money. Could AGs have gone to court to order the money be spent on tobacco control? Absolutely. But it would have simply invited further litigation so the Attorney General in Texas gave up and said "fine it's your decision". In Utah the legislature has stripped the Attorney General of authority to bring and settle lawsuits. The National Association of Attorney Generals is being called before the conference of state legislators to say "did not we exceed our bounds?",
weren't we setting policy as opposed to just doing a lawsuit. We have not seen the end of the backlash from governors and legislators on this. Meanwhile, the real backlash that one may very well could see in this country, and I think Arizona might be the leader, is when legislators are not spending the money like it should be spent. In the State of Arizona there is a lot of discontent among the citizenry for their legislature not doing anything yet and working at things other than healthcare and tobacco control, prevention.
Philippe Boucher: you are describing the very typical difficulty of the legislatures to deal with tobacco control. Then the issue goes to the courts and sort of bypasses the regular legislative process. Or the citizens go for a referendum with an initiativeÖ
Christine Gregoire: I think that is what is going to happen in Arizona: ultimately they'll have an initiative by the people. I don't see anything wrong with that.
Philippe Boucher: What about the new association created by some Republican Attorney Generals, their declaration that they are not in favor of tobacco control litigation or settlement by attorney generals?
Christine Gregoire: They took the money!
I am the new President of the National Association of Attorney Generals so this is a little touchy but I' ll still make a few comments in this regard. We set up a strategic contribution fund April 6, and it was intended to be given to those states who were the most active in the settlement because those states took us further, worked harder than any other. Washington State came out first and we got 100 million dollars . The state or the couple of states to which you refer argued that they were entitled to more money than what the panel had given them as though as they had contributed significantly to this. So to say on the one hand "I did not agree with this, the suits should never have been brought" and to say on the other hand "yes I want my allocation and I also want more money because I really played an important in bringing this about"Ö That's all politics. The fear now that has been generated out there with the business community that started with the tobacco industry. The day I announced the lawsuit, Dr Jaffe remembers that, they sent their public information folks saying "beware of an attorney General who will take your cigarette because tomorrow she'll take your gun, your Big Mac and your bottle of beer". This was their line. Now it has been taken up by others who say we don't like trial lawyers and those Ags are going to do all this terrible stuff when in fact I cannot liken beer, guns or Big Macs to tobacco. No similarity. This was a document based lawsuit, this was a lawsuit based on the conduct of those who market and sell cigarettes, it was not based on their products. True it is a deadly product, so too are guns that is not why the lawsuit was brought. It was brought because those who manufacture and sold it were violating the law: antitrust, consumer protection, othersÖ So this makes me a nice political football at the end of the day but it has no basis in why this lawsuit was brought. And the other thing, partnering with trial lawyers: all the Ags partnered with trial lawyers and the bottom line is the suits could not have been brought without it because in this state for document production we had to produce 200 million documents. Well, it was a wonderful tactic to take us to our knees and trying to have the lawsuit continued because we had to redact . These were patients files, patient's names, doctor's names that we could not turn over. We did not have the resources to do it. We had to partner with trial lawyers and they could have come out with nothing at the end of the day. instead they came out with a lot. Now is it more than I could even agree with? Of course. But I also know we could not have done it without them.
Philippe Boucher: now you are in charge of this big amount of money. I wrote a column about that:
"imagine you have a $250 million budget". How do you make sure it is used wisely?
Christine Gregoire:
I am concerned with that too and that is why in part we came up with the concept of a national foundation. Because it seemed to me if you leave it to every single state to come up with how do you develop a good program on cessation, it is complex: I don't think what works for an adult male works for an adult female, works for a child, works for a person of color, I think you have to tailor the program to the person you are trying to reachÖ Imagine how much money that would cost how much resources you would need for each single state, so the National Foundation is to come up with those kinds of model programs, deliver them to the states so they can take the money they got from the settlement and put them on the ground and make it work rather than do the research and so on and so forth. We'll do some testing and risk taking, we may use the states as laboratory with the National Foundation dollars. The idea is that the States can use the settlement money and prove they get results instead of putting their money into research and development. That is the marriage that I envisioned at the table that we could make work. If they do not appropriate any money, it's hard.
Bob Jaffe: it is one of the challenges. There are about a dozen states that appropriated money that way. As for the restÖ
Christine Gregoire: the problem we -the board of the national foundation- are dealing with now is who gets the money? As for me as one board member it would be a match. Those who have decided they are going to do it are going to get more money. Those who decided they aren't going to do anything aren't going to get any money. On the one hand I say to myself, "gee, that's just wrong", on the other hand to those who are not willing to put up any money after we have gotten millions of dollars to every single state, money for tobacco control prevention I am sorry. Those dollars are going to be set aside for those who are ready to step up and invest, make it happen.
Philippe Boucher: How much money are we talking about? There is $ 250 million for the campaign and also $25 million for "research"?
Christine Gregoire: There are 25 millions each year for 10 years for the Foundation for the model programs for cessation, etc. Then there is 300 million per year for at least the first five years, that can go on for ever, solely for education purposes. What we intend to do is have a national campaign and also give money to the "locals" so that they take that national campaign "localize" it.
When it goes out local the issue for us is: is it going to be matched or is it "play money"? Speaking as one board member I want a commitment: my commitment is not words, money. So you don't get any money unless you decide to set aside some, and I want a decent match.
I want a real showing of commitment by the state to be entitled to those funds.
Philippe Boucher: the Foundation is based in DC.
You are going to deal with the states, the health departments, what about the tobacco control activists? Are they going to have any input?
Christine Gregoire: we haven't got far enough yet but we are talking about some sort of partnership so that we are talking not only to government people but more importantly to the folks that I relied on throughout this whole thing which is, for Washington State it is the folks like Dr Jaffe, it's Cancer, it's Heart, it's all those folks I think we have to partner with. We had a meeting recently in Chicago with the NGO's and we do want a partnership. The idea is we want to set up a fairly significant structure where we are all working together. In some states, like here there is a perfect partnership emerging -I think-
between public health government, public health non profit, state, local. This issue has cemented us more than any other single issue. That's not true around the country.
Bob Jaffe: in a recent meeting of about sixty people there were 8 representatives of various states and the rest were advertising people looking at the potential of new contracts.
From the public health stand point we worry about the type of partnership with them. There is a lot of funding out there and it is easy to spend it if you are buying TV timeÖ
Christine Gregoire: over the last several months there were stacks every single day of T-shirts and what have you from advertising companies saying "we are the one for you". I turned them all over to the national foundation telling them if you come here knocking at my door you'll be disqualified Boum! They were gone!
LaughsÖ
Bob Jaffe: in the early days of Washington's Doc we had a partnership with a big local advertising firm, they were doing pro bono work for us, wonderful public TV announcements and they were bought by Ogilvy and Mather that had a big tobacco account. They forced the local agency to break up with us. I happened to meet again some people of Ogilvy and Mather at this meeting in Chicago and I asked them if things had changed. They said they were not doing any work for a tobacco account, "at least not in the US; now internationally we are doing a lot of work with tobacco"ÖSo I wonder how the national board will judge these advertising companies: which are considered "clean"?
Christine Gregoire: we devised a clause dealing with this conflict of interest. When is it too close for comfort? It started when we tried to select the CEO. To get the right headhunter. Finally we came up with two and one had an absolute conflict while the other had none: the board picked up the one with no conflict whatsoever but it was hard to find a headhunting firm of national reputation that was not involved with tobacco.
Philippe Boucher: there was the same problem in France. The firm in charge of the antitobacco campaign belongs to a big corporation and another subsidiary within this same advertising group has a tobacco account.
Christine Gregoire: What about accounts with Kraft Food (that belongs to Philip Morris), is that a conflict?
We are grappling with all those issues now.
Philippe Boucher: I wanted to mention to you the importance of negotiating a "non-copyright" clause for the use abroad of the clips that you are going to produce. The production of TV clips can be very expansive but we were able to reuse many clips produced in Massachusetts for instance because Greg Connolly had such a clause so we were able to get them for free or for a very small fee for public service announcements. If you have such a provision the national campaign will also eventually have an international impact because other people abroad will be able to "recycle" it. I mention that because I read you were also in favor of recycling the already existing good materials. I read that you have one daughter in college and it is my impression than more and more college students are smoking.
Christine Gregoire: I know. We talked about that. What will the industry do:
two things, they 'll go international and they'll go at the college level. No sooner were we back here that at the University of Washington every student, that's a lot of kids, got a tobacco advertisement package, glossy, very expensive, every student got one.
Philippe Boucher: how is it going for enforcement? How are you going to make sure the industry is respecting the terms of the agreement?
Christine Gregoire: the attorney generals have a committee that is dedicated to tobacco and we have one subcommittee for enforcement. We have 3 attorney generals on it, we are going to expand the number of AGs and they have staff from a large number of states that are on it. They have 9 lawyers in California that are dedicated to the enforcement issue. So we are going to use California.
I know the industry is going to try to test us at least during the next two years because they probably think that we'll be satisfied with the money and that enforcement will not be a priority. My intention is to go after each violation. We already went after various companies in several occasions.
Philippe Boucher: I think it is time for your next appointmentÖ Thank you very much for taking the time to meet with us today. Prepared by Philippe Boucher mailto:IslandErsk@aol.com
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