by Tom Farley
Judge Rakoff wrote of high democratic principle. But I could only see the greater principle of the power of money in our democracy. The tobacco companies had persuaded a U.S. Congress hungry for campaign donations to pass laws prohibiting state and local governments from protecting their citizens from tobacco marketing. Then those same companies hired armies of brilliant lawyers to enforce the broadest possible interpretations of those prohibitions in court. Street-corner heroin dealers were also “merchants of morbidity,” whose product killed far fewer people than were killed by tobacco, but they didn’t get the “full protection of the law” that tobacco dealers did. The difference was not a democratic principle but rather simply that the heroin dealers hadn’t reinvested their profits in election campaigns and lobbyists to rewrite laws in their favor.
I had seen the warning signs as opening up retail stores as a new front in the war against R.J. Reynolds. We had lost the first battle. It wouldn’t be the last.
• • •
The health department’s media man Jeffrey Escoffier remembers calling advertiser Jose Bandujo about a problem. Escoffier had scheduled focus groups for the next week to test out some ideas for antismoking ads. Bandujo had been working on a concept that intrigued Escoffier, but the idea was still just words on a page. Escoffier needed something graphic—very graphic—to show this idea to the focus groups. He needed storyboards right away.
After seeing New Yorkers’ powerful response to Ronaldo and Marie, Escoffier and Beth Kilgore wanted to run a campaign centered specifically on how smoking-induced illness made people suffer. When Bandujo heard about it, he was convinced they were on the right track. When other ads told people that smoking kills, smokers reacted by saying, as he put it, “I could get hit by a cab. Or an air conditioner is gonna fall on my head. I’m going to die anyway.” Bandujo thought, “We gotta counteract that ‘die anyway.’” As a child he had heard his uncle, who was dying of lung cancer, awakening day after day with coughing fits. “No one’s talking about those ten years before you die,” Bandujo said. One of his staff knew someone who had been incapacitated from a stroke. “You read the obituary . . . ‘Died of a stroke.’ Well, she was paralyzed in her bed for four years before her stroke actually killed her. “ The suffering was so bad that, at the end, “death is a relief. Death is the easy part!”
Bandujo felt he couldn’t communicate that idea with a storyboard. So he called a video producer, who gathered a few actors he knew, and the group spent a weekend in a friend’s apartment. One actor played the part of a woman lying in bed incapacitated, another her husband. They used a handheld camera. “So this is your life,” Bandujo said. “This is your husband changing your diaper because you had a stroke from smoking.”
The ad Bandujo produced “was raw,” said Bob Brothers, who worked on it with him. “It really felt like watching somebody as a voyeur.”
What hurt most was the sound. There was no music and no voiceover. Just the sound of the woman’s breathing—slow, labored, and painful. Jeffrey Escoffier called it “the horrible sound of someone dying.” The ad’s thirty seconds felt like forever.
Bandujo shot a second ad, too, this one in the kitchen. A man with an oxygen tube under his nose sits at a small table, very much alone. He is struggling to breathe, loudly. Then he begins coughing, more and more. He struggles even more to catch his breath as he coughs. That sound “would just send chills through your body,” said Brothers. “You hear that cough, and you just cringe. It makes your hair stick up.”
The health department staff found the ads wrenching. “Even for us, who had been seeing hard-hitting ads all along,” said one, “we were like, that’s really tough! . . . Even if you watched them two or three times—even the fourth time—they’re still hard to watch.”
Escoffier and Kilgore showed the ads to the focus groups. After each ad ended, there was just prolonged “stunned silence.” It was awful for smokers to imagine, after a stroke, being helpless. And even more awful to imagine the indignity of having family members change their diapers. In one group, Bandujo remembers, the participants became so emotional that the moderator had to stop the conversation and give everyone a break. “I felt chills when I saw that,” said one focus group participant. “It really made me want to quit smoking for good.”
The stroke ad taught Escoffier and Kilgore something else about smokers. People who smoke can brush off thoughts of risk to themselves. But smokers are anguished to think that they might inflict suffering on their loved ones.
Christina Chang had to get approval from the City Hall communications staff, who routinely picked apart, and sometimes killed, ads that our team had crafted. They also found the ads painful to watch. But they objected to Bandujo’s tagline, “Dying is the easy part.” What would that do to viewers who were suicidal? The city should never say that dying is easy. Escoffier and Kilgore changed the wording. The final version reads “Dying from smoking is rarely quick . . . and never painless. When smoking leads to stroke, you can suffer every minute of every day.”
The City Hall staff were still anxious that the ads were too disturbing. They insisted that Deputy Mayor Howard Wolfson watch them. Wolfson approved the coughing man but thought the stroke ad was too much. He demanded that the diaper changing be less explicit. The ad went back and forth between his team and Bandujo’s. Wolfson kept asking for more changes to soften it, but afterward he still wasn’t willing to let the ad air.
Christina Chang told me she was frustrated that New Yorkers might never see the stroke ad because it was so powerful. I commented that I bet Bloomberg would like it. That gave her an idea. The next time she spotted the mayor at his desk in the Bull Pen, she appeared at his side holding a laptop and ran the stroke ad for him. “That’s great,” he told her. “Go with it.”
When the ads aired in March 2011, they hit viewers very hard. Beth Kilgore remembered, “We got so many complaints.” The raw, lonely scenes of suffering were deeply upsetting. They made people so anxious that they couldn’t sleep at night. Smokers didn’t want their children to see the ads; the kids worried that their parents would end up like that. The stroke ad reminded people of caring for their own ailing parents. “That’s terrible,” said Kilgore, “but it really drove people to have a real emotional connection to it.” And, she said, the ads provoked more calls to the Smokers’ Quitline than any similar-size campaign.
Jose Bandujo said later, “For us, the greatest compliment is when our friends say, ‘Oh my god! That is the most horrible ad! That is the worst ad ever! I can’t stand listening to it . . . I have to turn the TV off.’”
• • •
When I got the smoking number from the telephone surveys collected in 2010, I called Mayor Bloomberg right away. His aides quickly scheduled a press conference. We announced the number in a big, sunlit room on the fourteenth floor of our glassy new headquarters building, with panoramic views of Queens through its floor-to-ceiling windows. Bloomberg stood behind his mayoral podium, flanked by several video screens, facing rows of seated reporters and the news video cameras beyond them. He was ebullient. It was his “I told you so” moment. The smoking rate was now 14.0 percent, down another 100,000 smokers from the year before. New York City now had 450,000 fewer smokers than it had when he was elected, after a decade in which the number hadn’t budged.
“When we came into office, we decided that controlling smoking was the single most important thing we could do to make life in New York healthier,” Bloomberg told the reporters. And he rattled off the policies and programs that had worked: “our trailblazing Smoke-Free Air Act,” hard-hitting media campaigns, making smoking cessation programs more widely available, and cigarette taxes.
Michael Bloomberg—an engineer, bond trader, and techie—loved data. Even as mayor, he kept a Bloomberg Terminal on his desk, tracking the markets with numbers and colorful graphs. But the numbers he showed that morning were the best ever: pictures of how he was saving lives. He took the reporters through graphs, slide after s
lide. The smoking rate had fallen by 43 percent among young adults. It had fallen by 40 percent among blacks. It had fallen by 50 percent on Staten Island. Among teenagers it had dropped by more than half, to the lowest rate ever recorded.
A year earlier, when the smoking rate was 15.8 percent, I had wondered what effect that drop in smoking since 2002 would do for New Yorkers over the long term. I asked department epidemiologist Sharon Perlman to project how many deaths would be prevented by the decline in smoking since Tom Frieden began. She came back with an estimate: over the next fifty years, she told me, the fall would save 100,000 New Yorkers from smoking-caused deaths. Could it really that many? I asked. Then we realized that the number was high in part because the model gave us credit if we prevented smoking-caused lung cancer in an eighty-two-year-old, even if that person were bound to die at age eighty-three from unrelated causes. That didn’t feel like a great achievement.
I asked Perlman to try again, but this time to only count a “smoking death prevented” if the cancer or heart disease death were to happen before age seventy-five, when most people still have several good years of life left. She came back saying the health department’s actions would prevent 50,000 deaths—much lower but still enough to make me dizzy: an average of one thousand lives saved per year, even if smoking rates in New York City didn’t fall any further. Most of those deaths would be prevented years in the future, but some people were already living longer and healthier because of our efforts. At the press conference, Bloomberg showed a graph with Perlman’s projections, pointing out the 50,000 New Yorkers who were to avoid “premature, and usually painful, smoking-related deaths.”
And then he dropped another statistic on the reporters. Of all the thousands of numbers he reviewed as mayor, Bloomberg’s favorite was life expectancy. He believed it measured everything his administration cared about, from crime fighting to fire prevention to cleaner air. He once said life expectancy was the only number he wanted on his tombstone. And life expectancy at birth in New York City was growing surprisingly fast: between 2001 and 2008, it increased by 2.3 years, from 77.9 to 80.2. New York was also fast outpacing the rest of the country—it had opened up a gap in life expectancy with the rest of the United States of 2.1 years, greater than any in history. We couldn’t prove that the plummeting smoking rate contributed to New York’s surging life expectancy, but it was the best explanation we had.
By then, news of New York City’s antismoking work was rippling across the world. The global tobacco control program, now run by Kelly Henning at Bloomberg’s foundation, reached deeply into the fifteen low-income countries with the most smokers and helped another sixty smaller countries. Poor nations in which tobacco companies had been aggressively marketing were now passing smoke-free air laws, raising cigarette taxes, and banning cigarette advertising, following Tom Frieden’s MPOWER model and using Bloomberg’s money. And the ads New York City had created traveled too. Focus groups nearly everywhere were shaken by Cigarettes Are Eating You Alive, the gruesome ad with close-ups of cancers of the lip and neck that the agency developed in 2006, and a related ad Cigarettes Are Eating Your Baby Alive, which emphasized the effect of secondhand smoke on children. By the end of 2011, one or the other ad had played in China, India, Russia, Ukraine, Poland, Mexico, the Philippines, Vietnam, and Indonesia. For Mayor Bloomberg in New York City that day, it was a moment of triumph over death and suffering, the likes of which few others could ever claim.
“I remember that everyone was so happy,” said Christina Chang, who watched from the wings. “It was one of the few moments when everyone was buoyant and felt victorious.” Even Stu Loeser, Bloomberg’s brooding press secretary, was smiling.
But as the mayor reveled in the graphs and numbers, showing slide after slide, Chang looked out at the crowd of battle-hardened reporters and saw something different. She thought, “God, they are so bored.”
• • •
In 2010, after Sarah Perl took a job in another part of the health department, I asked Susan Kansagra to run its antitobacco program. That meant it fell to her to try again in retail stores. With our court loss over the warning sign rule still a raw wound, she hired a lawyer to work within her office to push the agenda while avoiding future losses.
Kevin Schroth, a tall, broad-shouldered triathlete, speaks in slow, careful, lawyerly phrases. His first job after law school was in a firm that represented the tobacco giant Lorillard. His experience taught him the “immense power that these law firms have and how much money and resources they can throw at a problem.” When his father, a long-term ex-smoker, died of tongue and esophageal cancer, Schroth began searching for a job on the other side. On his first day at the health department, Susan Kansagra asked him to review a pair of policy ideas that he would stay with for the next two and a half years.
On his first day, Schroth met Vicki Grimshaw, an intense but soft-spoken member of the antitobacco program. Grimshaw had been immersing herself in the world of tobacco products and the tobacco companies’ marketing tricks. She and Schroth became the team—practical and legal—that drove the antitobacco program’s policy agenda for the rest of Bloomberg’s third term.
The tobacco control staff at the New York State health department had pressed on Grimshaw an idea for retail stores: to mount a direct attack on the power walls. Back when we were surveying smokers about the warning signs, we had asked those who bought cigarettes on impulse what had prompted their purchase. The three most common triggers were the sight of the packs themselves, the price promotions, and the ads, in that order. Another study showed how much the displays affected children. A group of researchers asked more than a thousand middle-school students who had never tried smoking to list the convenience stores they visited. The researchers then went to those stores to count the cigarette packs and ads. A year later, when the researchers surveyed the children again, they found that those who had seen the most cigarette packs and ads were more than twice as likely to have tried smoking as those who saw the least. That made the ads a more powerful influence on children’s starting to smoke than having a parent who smoked.
In fighting the power walls, New York City and the rest of the country lagged behind. Iceland led the world in 2001 when it passed a law requiring stores to keep cigarette packs out of view. Stores there kept cigarettes hidden in plain cabinets or behind curtains. Several provinces in Canada followed with their own bans on displaying tobacco products; then the idea spread to Australia, Ireland, and the U.K. After Ontario passed its law, smoking among teens dropped by 30 percent in a year.
The frustrating question for Kevin Schroth was whether U.S. courts would decide that the display of cigarette packs was “speech” that was protected by Bill of Rights. The U.S. Supreme Court hadn’t viewed advertising—or “commercial speech”—as protected by the First Amendment until 1976, but since then the court had kept throwing more into the definition of what was protected. In 2007, in a frightening decision, the court said that a Vermont law prohibiting pharmacies from selling data to drug manufacturers on doctors’ prescriptions was an unconstitutional restriction on speech. If selling private information was protected speech, then what wasn’t?
The New York State health department hired lawyer Micah Berman to analyze how the court would handle a ban on displays of cigarette packs (but not the ads next to them). Berman thought such a ban would withstand a court challenge if the government could show that it would “advance the government’s interest” in preventing kids from smoking but was “no more extensive than necessary.” Or as Kevin Schroth put it, “You have to show that it works, but doesn’t work too well.”
“I was always nervous about it,” health department general counsel Tom Merrill said of the pack display ban. It could too easily get squashed in the courts. He thought New York City’s success in the calorie-labeling case had overly whetted the appetite of public health people for big policy victories. After that the Robert Wood Johnson Foundation had started funding lawyers to come up with mo
re public health policy ideas. Merrill thought Berman’s optimistic opinion on the cigarette display ban was just “a Robert Wood Johnson deliverable.”
It was that. But if the tobacco companies paid many millions for power walls, those power walls must be driving sales, and if they were driving sales, we wanted them to disappear. A tobacco display ban in New York City would look different from one in Iceland or Canada, though. In the United States, the courts would force us to allow point-of-sale advertising, even if they permitted a ban on displaying the packs themselves. But later a study appeared suggesting that it was the packs that mattered. Researchers invited 1,200 teenagers to an online virtual-reality experiment. They randomly assigned the teens to different digital convenience stores that displayed cigarette packs, ads, both, or neither, and then asked the teens to “purchase” four items. When the packs were hidden, the teens were only one-third as likely to try to buy cigarettes, regardless of whether the virtual store had cigarette ads.
I didn’t know if we would win in court or not, but I wanted to try. If we passed the rule, we at least had a chance to get rid of the power walls. If we didn’t try, we would just concede the loss.
In late 2011 I took the idea to Mayor Bloomberg, showing him pictures of a pack-filled power wall in New York City and the plain cabinets in Canada. The tobacco companies would sue us, I told him, and we might not win. He liked the idea anyway and approved it on the spot. Unlike the earlier ideas that he had turned down, this one wouldn’t prohibit stores from selling cigarettes. He felt any inconvenience to stores was worth it to prevent kids from smoking.
The city’s Law Department, though, wanted to wait. The city had appealed our loss on the warning sign rule, and the lawyers wanted to first see how the court of appeals would define cigarette “promotion.”
One other marketing ploy that the tobacco companies used in retail stores was manipulating prices. The companies kept prices (and profits) high for fully addicted smokers, but then tempted those trying to quit with discounts. They had three kinds of discounts: coupons (“$2 off!”), value-added incentives (“Buy 2 Packs, Get 1 Free!”), and specials (“Only $9.59!”). By 2010, 80 percent of the $8 billion in promotions from the tobacco companies were discounts. Our team found that one-quarter of smokers in the city had used some kind of discount—averaging $1.25 off—the last time they bought a pack. A pack-a-day smoker using discounts like these every day would see them as “saving” him or her over $400 a year.
