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.

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?

• 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).
    • Learn more about AVCs here.
• 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).
• 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.
    • 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.
    • Read more about repealing preemption and advancing non-preemptive language in state law
  • 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

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:

• From the Public Health Law Center’s Tobacco Control Legal Consortium:
  • Dillon’s Rule, Home Rule, and Preemption 
  • 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’
  • Assessing and Addressing Preemption: A toolkit for local policy campaigns  
  • Understanding Preemption: A Fact Sheet Series
  • The Consequences of Preemption for Public Health & Equity 
  • Fundamentals of Preemption
  • The Consequences of Preemption for Public Health Advocacy
  • Negotiating Preemption
  • Preemption by Any Other Name
  • Webinar: Preemption, Public Health, and Equity: The Search for Local Solutions 
  • Preemption: What It Is, How It Works, and Why It Matters for Public Health
  • Preemption and Public Health Facilitator’s resources 
• 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)?
  • The New FDA Tobacco Law and State/Local Preemption
• Voices for Healthy Kids Preemption Resources, including:
  • Preemption Messaging: How to communicate with the public, media, and policy makers
  • Preemption: Countering opposition messaging 
  • In their own words: Opposing preemption across political spectrums 
• National League of Cities Center for City Solutions’ City Rights in an Era of Preemption: A State-by-State Analysis
• National Council on State Legislatures: Federal and State Preemption Basics: What every drafter ought to know (webinar)
• Campaign to Defend Local Solutions 
• Local Solutions Support Center: a coordinating hub that provides local governments, elected officials and advocates with the strategies, tools and assistance needed to defend local democracy and discourage the use of preemption that limits the ability of cities to protect people’s civil rights, solve problems, and improve lives.
• Grassroots Change: Preemption Watch Tools
  • Combatting preemption: Myths and facts
• Stateside: Municipal Issues in an Era of Preemption (webinar)
• Not for Sale: State Authority to End Cigarette Sales, Mitchell-Hamline Law review 
• 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!