Options for Point of Sale Activities in States and Localities that are Preempted

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?

• CDC’s State Tobacco Activities Tracking and Evaluation (STATE) System database
• American Lung Association’s State Legislated Actions on Tobacco Issues (SLATI) database
• By meeting with a legal center.

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.
• Leverage 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:
  • Engaging communities in store mapping and store assessments (e.g. by using STARS, CounterTobacco.org’s Youth and Community Engagement Activities, or Counter Tools to show community members what is happening with tobacco sales and marketing at their local stores.
  • Evaluating retailers for compliance under the Master Settlement Agreement, FDA Inspections, Synar, or Assurances of Voluntary Compliance (AVCs).
• 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.
  • For example, several county Boards of Health in North Carolina have passes such resolutions(Orange, Durham, Pitt, Cumberland, Chatham, Rutherford-Polk-McDowell, and Henderson).
• 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.
• 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:

• From the Public Health Law Center’s Tobacco Control Legal Consortium:
  • Untangling The Preemption Doctrine in Tobacco Control 
  • Why Preemption is Bad for Tobacco Control
  • Preemption: The Biggest Challenge to Tobacco Control
  • Checked at the Check-Out Counter: Preemption at the Tobacco Point-of-Sale
• ChangeLab Solutions’ Understanding Preemption: A Fact Sheet Series
  • Fundamentals of Preemption
  • The Consequences of Preemption for Public Health Advocacy
  • Negotiating Preemption
  • Preemption by Any Other Name
• ChangeLab Solutions’ Memo: Preemption: What It Is, How It Works, and Why It Matters for Public Health
• Americans for Nonsmokers’ Rights Protect Local Control website includes interactive and informational resources that track smoke-free activity by state  and Preemption Watch Bill Tracking Summary
• Campaign for Tobacco Free Kids’ Permissible State Restrictions on Tobacco Product Marketing: What Can States Do Given the 1^st Amendment (and Federal Preemption)?
• Campaign for Tobacco Free Kids’ The New FDA Tobacco Law and State/Local Preemption
• National League of Cities Center for City Solutions’ City Rights in an Era of Preemption: A State-by-State Analysis
• Campaign to Defend Local Solutions 
• Pertschuk M, Pomeranz JL, Ralston JR, Larkin MA, & Paloma M. (2012). Assessing the Impact of Federal and State Preemption in Public Health: A Framework for Decision Makers. Journal of Public Health Management Practice. doi: 10.1097/PHH.0b013e3182582a57
• Berman, ML. (2016). Raising the Tobacco Sale Age to 21: Surveying the Legal Landscape. Law and the Public’s Health, 131.

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