by Tom Farley
My first interview was with Adam Lisberg, a reporter for the Daily News. We talked about my approach to public health for about fifteen minutes, during which I was proud of how closely I kept to my script. My goal, I told Lisberg, was to prevent the leading causes of death in New York City by making the city a healthier place in which to live. The indoor smoking ban, the tough TV antismoking ads, and the trans fat ban had been part of that effort, and New Yorkers were benefiting from them. “I don’t think anybody feels a great loss in not having trans fat in their foods,” I said.
Toward the end, Lisberg said he understood that I liked to exercise and even had ridden my bike to work in New Orleans. Yes, I told him, I liked to run and ride a bike. Would I be biking to work in New York City? he asked.
Sure, I said.
Even in Manhattan?
“At the moment in Manhattan, no,” I said, because I was a little uncomfortable with the safety in traffic.
He smiled faintly and left.
Gotcha. The story ran the next day under the massive headline “NEW YORK HEALTH BOSS SCARED TO CYCLE ON OUR STREETS.” “The man in charge of making New Yorkers healthier says riding your bike is a great way to do it—but he’s not sure he’s ready to try it on city streets,” it opened. I’m sure it infuriated Janette Sadik-Khan, the transportation commissioner who was enduring her own hazing by the tabloids for painting bike lanes on city streets. She was restrained, though, telling the Daily News, “I certainly look forward to riding around the streets of New York with the new health commissioner.”
I thought the story was silly, but the press office took it dead seriously. And sure enough, for the next three months, in nearly every interview I did, even if it was about the influenza pandemic, at some point the reporter would get around to asking me a variation of “So, Commissioner, are you finally ready to ride your bike in New York?” The only way I could kill the story was to ride my bike to work in Manhattan, bringing a Daily News reporter along with me.
The day the story first appeared, the Daily News even pressed Bloomberg about it. The mayor said, “When I saw it in the paper . . . all I could think of was, welcome to New York.”
11
“They can’t even be bothered to sue us?”
When I started at the health department, the tobacco team was waiting eagerly for me. They had an idea ready to launch.
New York City was already doing everything that most smoking prevention experts around the country were calling for: high cigarette taxes, a smoke-free air law, a Smokers’ Quitline, and tough television ads. Nonetheless one in six adults in New York City still smoked, and the agency still counted smoking as the city’s biggest killer. We needed to do more, but we no longer had a trail to follow.
At Tom Frieden’s prodding, the tobacco team had spawned many ideas. Sarah Perl, who now ran tobacco control, considered expanding the Smoke-Free Air Act. It now banned smoking in public places indoors, but people still smoked in crowded places outdoors, giving others a small but daily dose of hazardous secondhand smoke and—more important—broadcasting that smoking was normal and even cool. Perl considered smoke-free train platforms, bus shelters, college dormitories, college campuses, parks, beaches, and building entrances.
Perl and her staff also believed that smoking rates would fall faster if the city had fewer stores selling cigarettes. Eleven thousand grocery stores, pharmacies, and bodegas with tobacco licenses packed the city, with many neighborhoods having several in a single block. Perl considered asking the City Council to cut the number of licenses by half. Or to restrict cigarette sales to stores that sold tobacco only, just as New York State restricts sales of wine and spirits to liquor stores. Frieden had devoured the ideas but hadn’t taken them to City Hall because he wasn’t convinced that the health payoffs were worth the political battles and legal risks.
In 2002 Donna Shelley had told him, “Keep your eye on the enemy. It’s the tobacco industry.” The problem the department faced was not tobacco itself but instead the marketing of smoking. Philip Morris, R.J. Reynolds, and Lorillard did everything they legally could to get more people to smoke more. It’s what the executives were paid to do. Over the decades, as society tightened the rules on cigarettes, the tobacco companies had answered by rechanneling their marketing dollars. When I was in grade school in the 1960s, they ran relentless ads in newspapers, in magazines, on billboards, and on television. I can still sing the “Come up to the Kool taste!” jingle. From then through the early 2000s federal regulations and a state attorneys general lawsuit had eliminated television, billboard, and most print ads.
Nonetheless, from 1986 to 2011 the tobacco companies quadrupled the money they spent on advertising and promotion, to nearly $10 billion a year. The companies poured nearly 95 percent of that fortune into retail stores, buying point-of-sale ads, discount coupons, price reductions, buy-one-get-one-free promotions, and payoffs to stores for displaying packs in enticing ways or hitting sales targets. Those shiny packs, ads, and discount signs stood immediately behind the stores’ cash registers in what public health people called “power walls,” which attracted the eyes of children and lured smokers who were trying to quit to buy on impulse. All those grocery stores, pharmacies, and bodegas in New York City were now the hyperaggressive marketing arm of the tobacco industry. Tobacco executives were experts in how to sell smoking. If they were spending billions on discounts and power walls in retail stores, it must be worth it.
In 2009 Congress had passed a law giving the FDA the authority to regulate tobacco but it left to states and cities the power to regulate the “time, place, and manner” of cigarette sales. That opened a chink in the armor that health department lawyer Anne Pearson spotted. A cigarette pack in the United States carried a puny warning label, using text only, which smokers could see only after they bought the pack. Other countries were covering nearly half of the pack with ugly pictures showing diseased lungs or stained teeth. When the pictures appeared, smokers were more likely to notice the warnings and consider quitting.
Pearson’s idea was to force the cigarette retailers to post pictures like that, not on the packs but on warning signs alongside the cigarette racks. There smokers would see the images before they bought cigarettes, and some might reconsider. The Board of Health could pass the rule, Pearson thought, so it wouldn’t require rounding up votes from City Council members who were lobbied by Philip Morris and the convenience stores. Pearson had pitched the idea to Tom Frieden just before he left. “His face kind of lit up,” she said later. And he asked, “Really, we could do this!?”
When I heard the idea in my first meeting with the tobacco team, I practically jumped out of my chair. To me, the idea was bigger than just warning signs; going into retail stores meant opening up a new front in the war against the nation’s biggest killer.
The Board of Health, which as health commissioner I now chaired, met just a week later, on my third week on the job. The board immediately warmed to the idea, too. We hadn’t yet decided what the pictures on the warning signs would look like, and I wanted to downplay the ugliness of the images in the press, but reporters caught Sarah Perl while I was still running the board meeting, and she held forth with just the opposite. “You’re going to see the grim realities of what it means to smoke,” she told them. “You’re going to see what a blackened lung looks like. You’re going to see what mouth cancer looks like. You’re going to see what it looks like when you have throat cancer.”
Early the next morning I was stepping out of the shower when my BlackBerry rang with a call from Linda Gibbs, furious. The tabloid coverage was awful. We were going to force everyone to see “grisly” pictures, as big as three feet by three feet, whenever they went to a bodega to buy a carton of milk? The Post editorialized, “So what’s next? Mandatory autopsy attendance?” Later that day, I had another conversation with her, and Gibbs was in bright spirits. She had shown Mayor Bloomberg the Daily News story, and he had shrugged. That’s just the health department doing its job
, he’d said.
We learned later that the type of pictures mattered a lot. Sarah Perl sent her researcher Beth Kilgore to learn what kind of images would work in bodegas. They mocked up six warning signs, ranging from just words to pictures of bloody, cancerous growths, and held focus groups with people who bought cigarettes at bodegas and with young people. Kilgore quickly learned that any warning sign had to pass the “sandwich test.” In every group someone would say, “When I’m going in and buying a sandwich, I don’t want to see this.” The “gross” images failed the test. The text-only signs were far too easy to ignore.
But three pictures that she labeled “clinical” hit the sweet spot. They were a chest X-ray showing a blotchy lung cancer, a brain scan diagramming damage from a stroke, and an extracted tooth with smoking-related decay. Each sign said “Quit Smoking Today” and included the city’s 311 Smokers’ Quitline. “It grabs your attention,” a younger smoker said. “And it’s not gross, so it doesn’t make you turn away. It does make you want to read more.”
We expected that the tobacco companies would hate the warning sign rule. What company wants stores telling customers at the cash register not to buy its product? And at first, it looked like we were dead right. When the proposed rule was posted for public comment, we got an ominous memo from Arnold & Porter, the law firm that had fought us over restaurant calorie labeling and that now represented Altria (Philip Morris). The FDA now had the power to require pictorial warnings on cigarette packs, they wrote, so New York City should “refrain in the interim from issuing graphic health warning requirements on its own.” The threat was that the federal law would preempt our local rule. And the Board of Health “would be exceeding its administrative authority by regulating in areas reserved for legislative policy judgment.”
Altria was joined in criticizing the rule by the Food Industry Alliance (a trade group of grocery stores), the NYC Newsstand Operators Association, and the New York Association of Convenience Stores. The groups took offense that we wanted to warn people about the deadly drug they were selling. The signs would be too big, they wrote. The grocery stores argued that displaying the signs “is distasteful and runs counter to the positive shopping experience that a retailer seeks to create.” The convenience stores followed: “If ghoulish pictures of black lungs dominate the view of our counter, they will be seen not only by adult tobacco smokers, but by non-smokers entering the store to buy milk, produce, candy, beverages, newspapers, lottery, and everything else we sell.”
None of this surprised us, but it did serve notice for a battle. We shrank the warning signs to 12 by 12 inches at cash registers and 24 by 24 inches at tobacco displays but otherwise left the rule intact, and the Board of Health approved it. We started mailing out the “clinical” signs to tobacco sellers in the fall of 2009 and promised that the city would start enforcing the rule in January 2010.
Shortly before Christmas, Anne Pearson walked into a bodega and was excited to finally see the pictures posted at the counter. With so many cigarette sellers in the city, she realized that “the city was plastered with these really powerful images.” But strangely, she was also embarrassed. It had been months since the rule passed, and the tobacco companies still hadn’t filed a lawsuit. “I remember thinking, ‘Oh my god, is this so unimportant, so ineffective that they can’t even be bothered to sue us?’”
• • •
On November 3, 2009, Michael Bloomberg was elected mayor of New York City for the third time. He won by 51 to 46 percent over city comptroller Bill Thompson, who hadn’t campaigned very hard. I was struck by the difference between Bloomberg’s 63 percent approval rating and his 51 percent vote count. New Yorkers liked how he was running the city, but voters were angry that he had changed the law to run for a third term. He had four more years, but they might be rougher than the first eight.
I naïvely thought that, with no more elections in Bloomberg’s future, his aides would be less resistant to ideas that were good for New Yorkers but bad in the press. In the summer of 2010, still thinking about the retail stores, I tried out two of the ideas that the tobacco team had worked on.
New York’s City Hall is a graceful white structure, built in the early 1800s to serve as the center of government for the feverishly growing port city. It sits amid a small triangular park, a short walk from the health department. With steps leading to a portico in front, the building inside has two wings flanking a white marble rotunda. The mayor and his staff occupy one wing, and a large City Council chamber fills most of the other.
On the first floor of mayor’s side is the Blue Room, used for decades for mayoral press conferences. On the second floor is a giant hearing room that Bloomberg had filled with cubicles and turned into his “Bull Pen”—a Wall Street trader–like office for him and his aides, with his desk dead center among them. Across the hall from the Bull Pen was the committee-of-the-whole room, known as the Cow, once capable of holding the entire City Council but now used for meetings with the mayor and his staff. The room contains a marble fireplace and is trimmed with green carpeting and gold drapes. In this room, next to a large, round mahogany table and under an ancient chandelier, I took Mayor Bloomberg through a slide presentation about cigarette marketing, pharmacies, and children.
San Francisco and Boston had just passed laws prohibiting the sale of cigarettes in pharmacies. Most independent pharmacies, managed by individual pharmacists, didn’t sell cigarettes. But the corporate-run pharmacies—CVS, Rite Aid, Walgreens, and the local chain Duane Reade (which was soon bought by Walgreens)—were close friends of the tobacco companies, selling about 10 percent of the cigarettes in the city. I had three arguments in favor of banning cigarette sales there. First, pharmacies got a huge amount of foot traffic; it was wrong that smokers trying to quit should be tempted by power walls every time they bought medicine. Second, pharmacists are licensed health care professionals, like nurses and doctors; their selling cigarettes implied a tragic medical endorsement. Third, there was a weird and troubling conflict of interest in pharmacists selling cigarettes and then selling the antibiotics and inhalers to treat smoking-caused diseases.
I also proposed to prohibit sales of cigarettes within 500 feet of the city’s middle and high schools. It seemed the most defensible way to cut the number of cigarette retailers. Nearly all smokers start as teenagers, and despite the law prohibiting sales to minors, nearly a third of high school kids in New York City who smoked said that they bought cigarettes from stores. Studies showed that teens living in neighborhoods with more stores selling cigarettes were more likely to smoke—maybe from the greater opportunity to buy cigarettes or maybe from the power walls’ advertising. A sales ban near schools would least prevent kids from buying cigarettes or seeing ads when they dropped into bodegas during their lunch breaks. A 500-foot tobacco-free buffer around schools would cut the number of cigarette sellers by about 1,900—or 16 percent—which we would phase out when their two-year licenses came up for renewal.
The mayor was intrigued but skeptical. He felt that government had a duty to protect its citizens’ health, but he was also a wildly successful businessman who bristled at government interference with private enterprise. My ideas straddled the fault line of those beliefs. He thought the sales buffer around schools would be overreaching—the government already banned sales of cigarettes to children under age eighteen, and he didn’t accept the argument that the power walls themselves caused kids to smoke. The pharmacy ban also troubled him. What would be the financial impact on pharmacies? Were there any other examples of legal products that only certain businesses weren’t allowed to sell? And would the sales ban really make any difference in smoking rates?
In the same meeting, I floated a third idea. The summer before, I had fumbled a press event and—without clearing it with City Hall—put a story on the front page of the Times endorsing a ban on smoking in parks and on beaches. We killed the story until after the election, but now I proposed to resurrect it. Of all of the expansions of the
Smoke-Free Air Act that Perl had considered, this one looked the easiest to defend.
In the seven years since Frieden’s round table advisers had told him not to do it, hundreds of cities and towns—including Los Angeles, San Francisco, and Chicago—had banned smoking in parks. Maintenance workers at New York’s Department of Parks and Recreation hated the littered cigarette butts, especially on the beaches, where they stubbornly slipped through the prongs of the litter rakes. A San Francisco study showed that 25 percent of litter items on beaches came from cigarettes. People don’t want their beaches to be ashtrays, I told Bloomberg. As the city’s doctor, I wanted to make smoking even more socially unacceptable—to “denormalize” it. When a parent takes a young child to the park to kick a soccer ball, I said, that child shouldn’t be getting a lesson in how to smoke.
But I suspected that Bloomberg’s decision would turn on how much exposure to secondhand smoke people actually got outdoors. It wasn’t a lot, but it wasn’t zero either. The clearest study we found showed that someone within three feet of a smoker outdoors, depending on how the wind was blowing, could be breathing levels of secondhand smoke that were similar to those found around smokers indoors.
Bloomberg wasn’t convinced. He understood that cigarettes bred litter, but people threw food wrappers on the ground too, and we weren’t banning eating in parks. He rejected the “denormalizing” reason. If we banned behavior just because the spectacle offended some people, where would that stop? The city’s ultra-Orthodox Jews were offended seeing women in bathing suits. And he was dubious about the risk of secondhand smoke outdoors. Was the exposure really enough to matter? I acknowledged that the risk was low, but tried this analogy: secondhand smoke is more carcinogenic than benzene. If we were to discover that benzene helped the grass grow, would we allow the parks department to spray it on the lawns, saying, “Don’t worry, it might cause cancer in only a few people a year”?