In any event, Grzesiek felt that even a signed deal-breakers agreement would not have prevented some of the coalition members from walking away from the principles of the dealbreakers agreement to support the Kaine-Howell proposal.As noted above, by February 4 all the remaining tobacco control bills from both the House and the Senate were before the House General Laws committee. The following day the HGL committee conducted an unrecorded voice vote to incorporate all of the outstanding House bills into HB 1703. This maneuver meant that all of these bills ceased to exist, and only HB 1703 existed in the House moving forward. The following day, the Committee also incorporated all of the extant Senate bills into SB 1105, also by a voice vote. This meant that by February 6, there were only two clean indoor air bills before the General Assembly. On the same day, February 6, the Committee adopted substitute language for the two bills that embodied the Kaine-Howell compromise, so HB 1703 and SB 1105 were thereafter identical in language . The substitute language, which represented the compromise worked out between Kaine and Howell, partially restricted smoking in a number of places used by the general public, such as elevators, the common areas of public schools, and hospital emergency rooms. Smoking in restaurants was generally prohibited, with several important exceptions: If a restaurant constructed a smoking room that was structurally separated and contained a separate smoking area, that portion of the restaurant did not have to be smoke free. Outdoor areas not enclosed by walls, windows,industrial rack system or temporary enclosures were also exempted. Local preemption was maintained. The tobacco industry and its allies in the restaurants and hospitality associations were hostile to the Kaine-Howell compromise language. These groups repeatedly characterized the bill in the media as a political or business rights issue, not a health issue. They argued that business would be lost and restaurants closed by the measure, hurting the state’s economy.
Virginia Republicans generally espoused a view that individual businesses had rights that extended to choosing whether to allow smoking or not, a view that ignored the rights of employees or potential health concerns. These free-market leanings dovetailed with the restaurant and hospitality industries’ rhetoric. Health advocates also opposed the legislation, but for different reasons. Teresa Gregson, the AHA lobbyist, was credited by Amy Barkley in a 2009 interview as putting out the strongest statements opposing the compromise bill that encompassed the VFHF position that, as Barkley paraphrased, “[the bill] isn’t a huge victory or a big change. It shows that the industry is as powerful as ever because they got their way.”VFHF attempted to use statements such as Gregson’s as an educational tool to try to alter the march of the Kaine-Howell compromise bills towards passage. Barkley recalled a significant effort was expended by VFHF to also change the tenor of the press coverage of the compromise.With these floor amendments, the House passed HB 1703 on February 10 by a vote of 61-37. Editorial observers in the press and the health advocacy community noted that the Kilgore amendments represented a push by Republicans hostile to the bill, working alongside tobacco industry lobbyists, to intentionally weaken the bill to the point where either it would not pass at all, leaving the status quo in place or be weak enough to satisfy industry interests.VFHF members who supported comprehensive smoking restrictions were very displeased with Kilgore’s amendments, which were not only weaker than the bill they originally supported, SB 1057, but weaker even than the Kaine-Howell compromise. Health advocates feared that the amendments would make an already problematic bill worse and that it could possibly pass in a weakened form. However, according to Grzesiek, the amendments did help with getting the media to understand some of the problems with the Kaine-Howell proposal, but after a short time the media backed away from criticism of the proposal. Governor Kaine and Speaker Howell were also unhappy with the amendments, which disrupted their carefully negotiated compromise, so they planned to have Kaine strip the amendments from the bill if it were to reach his desk in the amended form.Kaine told the press, “We need to get the bill back to the deal.”Furthermore, he specifically disapproved of the minors-only provisions that were included in the amendment, saying that the “health of adults is important too … this was not a minor’s health bill … it was an all-Virginians health bill.”
SB 1105 passed the House with the amendments by a vote of 59-39 on February 9 and the following day HB 1703 passed the House by a vote of 61-37. After passing the House, SB 1105 returned to the Senate floor so that the Senate could vote on the House amendments that had been offered by Kilgore. The Senate rejected the House amendments by a vote of 11-28, and because of this the House requested a conference committee. The conference committee consisted of Senators Northam, Locke, and Quayle, and the Delegates were Cosgrove, Jones, and Eisenberg. The conference committee returned the bills after stripping Kilgore’s amendments, essentially returning the bills to a form that embodied the Kaine-Howell compromise language . In this form, both bills passed and were enrolled in both houses on March 4. Governor Kaine signed the bills on March 9. After passage, Kaine announced that he would sign the bill as quickly as possible, saying that he felt that “it will be signed quite swiftly – in the quickest-drying ink I can find.”VBRA member Laura Habr’s support of the restaurant legislation led to her restaurant being selected by Gov. Kaine as the location of the signing of the legislation into law. Habr said that Kaine “wanted to reward all of us in the restaurant industry, sliding shelf system especially in Virginia Beach.”At the signing, Kaine thanked the legislative supporters of the bill, specifically the bills’ patrons Northam and Cosgrove. The president of the Medical Society, Dr. Thomas Eppes, spoke of the bill as a “victory” for Virginians that represented a “giant step forward” and was achieved “through compromise, collaboration and patience.”Kaine’s victory in securing the passage of his restaurant smoking restriction bill can be seen as a significant accomplishment in an administration that had seen the Republicancontrolled House thwart nearly every measure that the governor backed. Additionally, having been chosen in 2009 to become the chairman of the Democratic National Committee, Kaine claimed the law as a large policy achievement on his resume.While this was a political victory for Kaine, it was not a victory for public health. GASP was outside of the political process from the start, so the organization had a different perspective from VFHF when the bill passed. Hilton Oliver, speaking to the press on behalf of GASP, said the compromise was “a pretty good bill under the circumstances.”VBRA members were mostly satisfied with the final language that passed. Laura Habr was “pleased with the outcome,” which she characterized as an “across-the-board ban, in all public places, and that included restaurants.”
However, acknowledging that there was disagreement among VFHF members, especially the Virginia chapters American Heart Association, American Lung Association, and the American Cancer Society which were the most active and involved in VFHF, Habr expressed “a lot of confidence that fractured groups in [sic] this issue would reconvene and work together, for the best interests of our industry and the public health.”VFHF was disappointed that the Kaine-Howell language was ultimately passed, rather than the comprehensive language they supported. Co-chair Grzesiek felt that the coalition leadership had worked hard to provide information to legislators about the ineffectiveness of smoking rooms and the lack of clear implementation and enforcement.However, unlike in previous years, VFHF was unable to implement an effective education campaign for the general public, because they did not allocate or raise money for paid radio and print advertising to counter the Kaine-Howell proposal. Grzesiek felt that “by the time [the Kaine-Howell proposal] was announced, it was a done deal and legislators already knew how they were going to vote. There was nothing we could do to change that” in the limited period of time VFHF had to react.Ultimately, it was a combination of factors that allowed the compromise language drafted by Kaine and Howell to proceed through the legislature to the Governor’s desk fundamentally unchanged. The political situation that confronted both Howell and Kaine caused them both to agree to a course of action that once started was not easily diverted. Acting together they wielded great political strength. This is in stark contrast to the limited influence that VFHF was able to bring to bear on the political situation as a whole. Despite the successful campaign in Howell’s district, VFHF did not have the resources or political connections, especially to the governor’s office, to effectively influence the political situation in Virginia in 2009. In part, VFHF’s problems in influencing the 2009 legislative session were a lack of funding to create an impactful media campaign, in order to garner public opinion and generate pressure on legislators. Lack of funding was the primary reason that the successful campaign against Howell could not be broadened further to influence other legislators. With more funding to influence legislators and closer contacts with the governor, VFHF might have been successful in at least stopping the passage of the Kaine-Howell compromise legislation.
Another issue is an aversion among Virginia advocates from using arguments about the tobacco industry to defeat bad legislation. In discussions with VFHF co-chair Cathleen Grzesiek, she articulated the reasons why VFHF avoids confronting industry tactics directly. Virginia is different, she noted, because “big tobacco isn’t this evil other in another state … everybody knows someone who works at Altria.”She pointed to a strong feeling among Virginia advocates that because tobacco represents “an economic driver for our economy,” that the public in Virginia would not find such arguments persuasive.However, she also admitted that the strategy has not been tried on any sort of scale in Virginia.Because the role of tobacco manufacturing is diminishing in Virginia, with tobacco growing dramatically declining, VFHF could have explored anti-industry messaging to begin to level the playing field against a well-funded and organized tobacco lobby. Finally, since 2002, VFHF has focused on statewide tobacco control measures while neglecting the possibility for local action. Virginia localities, notably Norfolk, had seriously contemplated acting to strengthen their local smoking restrictions, felt restrained by preemptive state law and also held themselves back from action in order to see what came out of the 2009 push for statewide restaurant smoking restrictions. While VFHF provided some assistance to these localities, they were unable to devote the resources necessary to fight preemption in the courts. Because the tobacco industry is most effective at fighting tobacco control at the state level, repealing preemption and focusing on local smoking restriction measures would allow advocates to more effectively combat the tobacco industry. South Carolina provides an example of a Southern tobacco-growing state that has successfully enacted local clean indoor air ordinances despite apparently South Carolina’s apparently preemptive statewide law. Virginia’s tobacco control advocates should consider what lessons can be drawn from South Carolina’s experiences and push for local tobacco control activity, using the model of police power developed in Norfolk. Almand did not include PM’s language regarding retailer licensing, which was opposed by many tobacco industry allies, such as convenience store operator Southland Corporation and the Virginia Retail Merchant’s Association, despite PM’s promotion of the idea.The issue was also a divisive one among tobacco manufacturers; PM employees tracking the AAA legislation were concerned with the media portraying the licensing issue as “fan[ing] the flames of industry disharmony,” and providing help to detractors of PM’s AAA agenda.298 The bill failed to report out of the House Committee on Counties, Cities, and Towns during the 1996 session. The bill was continued to the 1997 session, but in December 1996 was struck from the docket just before the 1997 session began, killing the bill. Jay Poole, a PM regional coordinator, expressed relief in an internal PM memo because it meant that PM could spend the next year building consensus among allies about the licensing issue that had proved so contentious in the 1996 session.