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.

The Preemption Problem

Local governments are uniquely positioned to meet the needs of the people in their communities. Local level policy-making is an effective way to reduce tobacco use through strategies that are aligned with the local community’s needs, context, and values. Local level innovation often also spurs state-level action. Consequently, Big Tobacco works tirelessly to limit local control by lobbying for federal and state policy that includes language to prohibit local governments from enacting policies that are more stringent than the policy rules or regulations at the federal or state level. This type of preemption produces problems for local tobacco advocates who recognize that state and federal policy is often too broad to address the specific and unique needs of their community. Once preemption is in place, it can be a cumbersome process to overturn or reverse preemptive policies.

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.
  • Some communities that are preempted choose to work with retailers on an individual basis through retailer incentive programs that ask the stores to take voluntary steps to reduce the dominance of tobacco in the retail space, such as removing or reducing tobacco advertising and moving tobacco products out of the reach of youth. 
  • 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
  • Educate stakeholders and decision makers on the detrimental impacts of preemption and how state preemptive laws stifle progress at the local level that could protect communities from Big Tobacco’s deadly products.
  • Work towards state-level tobacco control progress. View this webinar on Moving Forward when Tobacco Preemption is in Effect from the Public Health Law Center and the Tobacco Control Network.
  • Work toward undoing preemption

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.
    • 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.
  • Legal Strategy Process: Legal Preemption and the Prevention of Chronic Conditions

Reversing Preemption: A Colorado Case Study

Preemption is one of the biggest challenges in tobacco control and can impede policy change. However, reversing preemption is possible! During this webinar, part of Counter Tools’ Healthy POS Webinar Series, we discuss Colorado’s experience with preemption and efforts made to advance policy within the state. Colorado state law previously stated that “…In order to qualify for distribution of state income tax moneys, units of local government are prohibited from imposing fees, licenses, or taxes on any person as a condition for engaging in the business of selling cigarettes or from attempting in any manner to impose a tax on cigarettes.” This preventing localities from licensing cigarettes retailers or imposing their own cigarette taxes. However, this law was reversed in 2019. This webinar explores local-level case studies and the statewide work that led to reversing preemption. Speakers include:

  • Mandy Ivanov, Health Promotion Coordinator with Eagle County Public Health and Environment
  • Jodi Radke, Regional Director at the Campaign for Tobacco Free Kids
  • Jill Bednare, Tobacco Policy Initiatives Supervisor at the Colorado Department of Health and Environment
  • Moderator: Jackie Boards, Project Director at Counter Tools

Download the slides here and view the recording here or below: 

Preemption in Public Health Case Study


Reversing Preemption: A North Carolina Case Study

Preemption in Public Health:

A Toolkit and Case Study from North Carolina

Preventing Preemption

Constant monitoring of legislation at the state level for any preemptive language can be a challenge. One strategy to help monitor and guard against preemption is to partner or form a coalition with advocacy groups from other sectors that also face preemption threats, such as groups working towards higher minimum wages, paid sick leave, anti-discrimination laws, laws that prevent gun violence, sugar-sweetened beverage taxes, and plastic bag or straw bans. For example, in Maryland, over 25 groups have banded together as Let Our Communities Act Locally (LOCAL Maryland). Learn more about the rise of preemption across topics in City Rights in an Era of Preemption: a State-by-State Analysis from the National League of Cities.  

Resources:

 

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

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