State Preemption of Local Tobacco Control Policies Restricting Smoking, Advertising, and Youth Access --- United States, 2000--2010

Weekly

August 26, 2011 / 60(33);1124-1127

Preemptive state tobacco control legislation prohibits localities from enacting tobacco control laws that are more stringent than state law. State preemption provisions can preclude any type of local tobacco control policy. The three broad types of state preemption tracked by CDC include preemption of local policies that restrict 1) smoking in workplaces and public places, 2) tobacco advertising, and 3) youth access to tobacco products. A Healthy People 2020 objective (TU-16) calls for eliminating state laws that preempt any type of local tobacco control law (1). A previous study reported that the number of states that preempt local smoking restrictions in one or more of three settings (government worksites, private-sector worksites, and restaurants) has decreased substantially in recent years (2). To measure progress toward achieving Healthy People 2020 objectives, this study expands on the previous analysis to track changes in state laws that preempt local advertising and youth access restrictions and to examine policy changes from December 31, 2000, to December 31, 2010. This new analysis found that, in contrast with the substantial progress achieved during the past decade in reducing the number of states that preempt local smoking restrictions, no progress has been made in reducing the number of states that preempt local advertising restrictions and youth access restrictions. Increased progress in removing state preemption provisions will be needed to achieve the relevant Healthy People 2020 objective.
Data on state preemption provisions were obtained from CDC's State Tobacco Activities Tracking and Evaluation (STATE) System database for the 50 states and the District of Columbia.* The STATE System contains tobacco-related epidemiologic and economic data and information on state tobacco-related legislation. In determining whether state laws preempt local smoking restrictions, the STATE System considers statutes and examines relevant case law, because rulings by state courts sometimes have been decisive in determining whether local policies were preempted. Because litigation has been less common with regard to state preemption of local advertising and youth access restrictions, the STATE System analyzes state statutes but not case law in these areas. Data are collected quarterly from an online legal research database of state laws and are analyzed, coded, and included in the STATE System.
The number of states that preempt local smoking restrictions decreased from 18 at the end of 2000 to 12 at the end of 2010 (Figure). During this period, Delaware, Illinois, Iowa, Louisiana, Mississippi, Nevada, New Jersey, Oregon, and South Carolina completely rescinded preemptive provisions or had such provisions overturned by state courts.† In addition, North Carolina rescinded preemption for certain settings, but left it in place for others. Conversely, state courts interpreted ambiguous provisions in New Hampshire and Washington laws as preempting local smoking restrictions. The number of states preempting local advertising restrictions remained constant over the decade at 18. The number of states that preempt local youth access restrictions increased from 21 to 22 during this period, with Pennsylvania enacting a new preemptive provision in 2002.
The number of states with preemptive provisions in any of the three policy categories decreased by one, from 28 states at the end of 2000 to 27 states at the end of 2010. The number of states that preempted local action in all three categories decreased from 11 states at the end of 2000 to seven states at the end of 2010. Those seven states were Michigan, North Carolina, Oklahoma, South Dakota, Tennessee, Utah, and Washington (Table).

Reported by

Michelle Griffin, MPH, Univ of Washington. Stephen D. Babb, MPH, Michael Tynan, Allison E. MacNeil, MPH, Office on Smoking and Health, National Center for Chronic Disease Prevention and Health Promotion, CDC. Corresponding contributor: Stephen D. Babb, sbabb@cdc.gov, 770-488-1172.

Editorial Note

The results of this analysis indicate that no progress has been achieved during the past decade in reducing the number of states with laws preempting local restrictions on tobacco advertising and youth access to tobacco products. This situation contrasts with the significant strides made in reducing the number of states preempting local smoking restrictions.
Like smoke-free laws, restrictions on advertising and youth access are components of a comprehensive approach to tobacco control (3--5). Evidence from other countries shows that comprehensive restrictions on tobacco advertising can reduce tobacco consumption (3). Restrictions on youth access to tobacco products that are implemented as part of a comprehensive approach with a strong community mobilization component can reduce underage tobacco sales and youth tobacco use (4). The findings in this report indicate that substantial efforts will be required to meet the relevant Healthy People 2020 objective, which calls for eliminating state preemptive provisions in all three areas.
In addition to the objective to eliminate state preemptive laws, Healthy People 2020 includes objectives calling for 1) implementing state laws in all states to eliminate smoking in public places and worksites (TU-13), 2) reducing the proportion of adolescents and young adults in grades 6 through 12 who are exposed to tobacco advertising and promotion (TU-18), and 3) reducing the illegal tobacco sales rate to minors through enforcement of laws prohibiting the sale of tobacco products to minors (TU-19) (1). Preemptive provisions in state law can prevent local adoption of evidence-based policies in all three of these areas. Moreover, the strongest, most innovative tobacco control policies typically have originated at the local level before eventually being adopted at the state level (2,4--7). For example, comprehensive smoke-free laws completely prohibiting smoking in workplaces, restaurants, and bars were initially adopted by local jurisdictions, beginning in the 1990s, before being adopted by numerous states during the past decade (6,7). Similarly, several types of youth access policies, including restrictions on self-service displays and vending machines, were introduced at the local level before being adopted widely among states and, more recently, at the federal level (5,6). State preemptive laws can impede this diffusion of successful policy interventions (7,8).
The number of states adopting new preemptive provisions in any of the three areas considered in this report has decreased in recent years after peaking in the 1990s (2,9). The decrease in the number of new state preemptive laws enacted during the past decade might reflect growing awareness on the part of tobacco control programs and advocacy groups of the negative public health effects of preemption (7,8). In addition, nine states§ have completely rescinded state laws preempting local smoking restrictions since 2000 through legislative action, ballot measures, or court decisions (2). State preemptive provisions typically have been sought by tobacco manufacturers and other interests seeking to counter increased adoption of certain tobacco control policies (6--8). As a result, patterns of state preemption activity often reflect patterns in local and state tobacco control policy activity (6--8).
In the 1990s, local and state policy activity was broad in scope, encompassing smoking restrictions, advertising restrictions, and youth access restrictions (5,6). State preemption provisions enacted during this decade generally also were broad in scope, in many cases covering all three areas (8,9). In contrast, during the 2000s, local and state policy efforts emphasized smoke-free laws over restrictions on advertising and youth access (7). New state preemptive provisions enacted during the past decade reflect this pattern, with most of these provisions focusing solely on precluding local smoking restrictions.¶ Similarly, removal of state preemptive provisions during the past decade has been limited to this area.
Recent experience has shown that preemptive state laws can be rescinded. However, by the time this became evident, local efforts to address tobacco advertising and youth access to tobacco products had waned somewhat, and the rollback of state preemptive provisions did not carry over to these areas.
A major factor contributing to the decreased enactment of local and state laws restricting tobacco advertising during the past decade was a 2001 U.S. Supreme Court decision** which suggested that several types of state and local advertising restrictions might be barred by federal preemption or the First Amendment (3). The 2009 Family Smoking Prevention and Tobacco Control Act†† partially rescinded federal preemption of state and local restrictions on cigarette advertising and promotion. This, combined with the adoption of advertising restrictions in a number of other countries (10), has led to renewed interest in local and state efforts to restrict tobacco marketing and sales. These efforts could focus attention on state preemption provisions that impede local action to restrict tobacco advertising. As a result, community attempts to restrict tobacco marketing and changes in relevant state preemptive provisions will need to be monitored.
The findings in this report are subject to at least two limitations. First, the language of preemption provisions in state statutes can be ambiguous, and interpretation can be difficult. Ultimately, courts interpret preemption language in statutes, but many provisions never are contested in court. However, this type of ambiguity appears to have been less evident with provisions in state law preempting local advertising and youth access restrictions than with provisions preempting local smoking restrictions. Finally, this analysis does not consider all types of state preemption of local tobacco control laws; for example, it does not address state preemption of local licensing and labeling requirements, although plans are under way to track this information in the STATE System.
Policies restricting smoking in workplaces and public places, tobacco advertising, and youth access to tobacco products are components of a comprehensive, evidence-based approach to tobacco control (3--5). Accordingly, state preemptive provisions that prevent local action in any of these three areas impede local and state efforts to reduce tobacco use. Increased progress in rescinding state preemption provisions will be needed to remove this barrier and to achieve the relevant Healthy People 2020 objective.

References

1. US Department of Health and Human Services. Healthy people 2020. Tobacco use. Washington, DC: US Department of Health and Human Services; 2010. Available at http://healthypeople.gov/2020/topicsobjectives2020/pdfs/tobaccouse.pdf . Accessed August 17, 2011.
2. CDC. State preemption of local smoke-free laws in government work sites, private work sites, and restaurants---United States, 2005--2009. MMWR 2010;59:105--8.
3. National Cancer Institute. The role of the media in promoting and reducing tobacco use. Tobacco control monograph No. 19. Bethesda, MD: US Department of Health and Human Services, National Institutes of Health, National Cancer Institute; 2008.
4. Task Force on Community Preventive Services. The guide to community preventive services: what works to promote health? New York, New York: Oxford University Press; 2005.
5. US Department of Health and Human Services. Reducing tobacco use: a report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, CDC; 2000.
6. National Cancer Institute. State and local legislative action to reduce tobacco use. Smoking and Tobacco Control Monograph No. 11. Bethesda, MD: US Department of Health and Human Services, National Institutes of Health, National Cancer Institute; 2000.
7. US Department of Health and Human Services. The health consequences of involuntary exposure to tobacco smoke: a report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, CDC; 2006.
8. Hobart R. Preemption: taking the local out of local control. Chicago, IL: American Medical Association/SmokeLess States National Tobacco Policy Initiative; 2003. Available at http://www.rwjf.org/newsroom/SLSPreemption2003.pdf . Accessed August 17, 2011.
9. CDC. Preemptive state tobacco-control laws---United States, 1982--1998. MMWR 1999;47:1112--4.
10. World Health Organization. WHO report on the global tobacco epidemic, 2011: warning about the dangers of tobacco. Geneva, Switzerland: World Health Organization; 2011.

* Available at http://www.cdc.gov/tobacco/statesystem.

† Oregon both introduced and rescinded preemption of local smoking restrictions during the study period. In addition, Montana and Rhode Island introduced preemptive provisions during this period, but allowed those provisions to expire at predetermined dates, in accordance with sunset clauses in the legislation.

§ Delaware, Illinois, Iowa, Louisiana, Mississippi, Nevada, New Jersey, Oregon, and South Carolina.

¶ For example, Mississippi, Montana, Oregon, and Rhode Island enacted preemptive provisions in this area during the past decade that subsequently were repealed (in the case of Mississippi and Oregon) or allowed to expire through sunset provisions (in the case of Montana and Rhode Island).

** Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).

†† Family Smoking Prevention and Tobacco Control Act. Pub. L. No. 111-31 (June 22, 2009). Available at http://www.gpo.gov/fdsys/pkg/PLAW-111publ31/content-detail.html.

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