What is Preemption?

Preemption means that the authority of one level of government to regulate an issue is limited by a higher level of government. For example, when local municipal or county governments want to pass legislation to enact or strengthen tobacco retail licensing requirements, a state law may supersede their new legislation, rendering it invalid. Similarly, a state law may be preempted by a federal law. For more details on preemption, see "Preemption in Public Health" from the Public Health Law Center.

How would a state know if they are preempted?

What can states or localities that are preempted at the Point of Sale do?

  • Meet with a legal technical assistance provider who can conduct a general scan of your local authority to determine or clarify what kind of preemption you are facing or not facing (e.g. youth access, smoke-free, retailer licensing, tobacco advertising), the scope, nuances, and where there might be gray areas.
  • STARS FormLeverage point of sale activities to move forward on other tobacco control issues such as raising excise taxes, securing program funding, or strengthening smoke-free laws. These activities could include:
  • Aim for a local level policy outcome to be a voluntary resolution which requests local control or asks to reverse preemption and requests a non-preempted state level policy, such as Tobacco 21.
  • Strategize using suggestions in the CDC’s article, Legal Preemption and Chronic Conditions in the section on “Navigating Preemption to Protect the Public’s Health”:
    • Stand firm on legal grounds
    • Find the floor of preemption and rise above it
    • Re-characterize the public health objective
    • Fill the inevitable gaps
    • Reconsider non-regulatory solutions

Undoing Preemption

  • Lessons from Smoke-Free Air: A 2010 CDC Report mentions that there are three methods that have been successful in rescinding preemptive provisions on local smoke-free policies. The best practices discussed include:
    • Legislation – Iowa, Louisiana, Mississippi, New Jersey, North Carolina, and Oregon were able to rescind preemption as part of new legislations that restricted smoking in specific places. Louisiana and New Jersey included specific language in their legislation that explicitly gave communities the ability to create their own smoke-free policies, while Iowa and Oregon passed legislation that removed smoke-free preemption.
      • Special cases in Rhode Island and Montana involved “sunset” clauses, where preemptive polices have a date where the policy expires and the preemption was no longer valid after the expiration date.
    • Ballot Measure – Nevada rescinded their smoke free provision through a ballot measure in 2006, which prohibited smoking in certain public places by state law, but allowed counties, cities, and towns to adopt stricter measures, removing the barrier of preemption.
    • Court Rulings – South Carolina Supreme Court ruled that state laws did not preempt local smoking restrictions, giving local communities clarity on their ability to enact smoke-free policies.Preemption in Public Health Case Study
  • Legal Strategy Process: Legal Preemption and the Prevention of Chronic Conditions
  • Case Study: Preemption in Public Health: A Toolkit and Case Study from North Carolina

Resources:

 

Have resources, case studies, or stories to add to this list? Email us at info@countertobacco.org!