State Preemption of Local Smoke-Free Laws in Government Work Sites, Private Work Sites, and Restaurants --- United States, 2005--2009

State Preemption of Local Smoke-Free Laws in Government Work Sites, Private Work Sites, and Restaurants --- United States, 2005--2009
Weekly
February 5, 2010 / 59(04);105-108

Smoke-free policies (i.e., policies that completely eliminate smoking in indoor workplaces and public places) result in health benefits, including preventing heart attacks (1--3). Preemptive legislation at the state level prohibits localities from enacting laws that vary from state law or are more stringent. A Healthy People 2010 objective (27-19) is to eliminate state laws that preempt stronger local tobacco control laws (4). A 2005 CDC review found that little progress was being made toward reducing the number of state laws preempting local smoking restrictions in three indoor settings: government work sites, private-sector work sites, and restaurants (5). These three settings were selected for analysis because they are settings that often are addressed by state and local smoking restrictions and because they are major settings where nonsmoking workers and patrons are exposed to secondhand smoke (1). This report updates the previous analysis and summarizes changes that occurred from December 31, 2004, to December 31, 2009, in state laws that preempt local smoke-free laws for the same three settings. During that period, the number of states preempting local smoking restrictions in at least one of these three settings decreased from 19 to 12. In contrast with the 2005 findings, this decrease indicates progress toward achieving the goal of eliminating state laws preempting local smoking restrictions. Further progress could result in additional reductions in secondhand smoke exposure.

For this analysis, preemption was defined as a statute or judicial opinion that prevents local jurisdictions from enacting smoking restrictions that would be more stringent than, or different from, state law. CDC monitors state laws that preempt local smoking restrictions (Table) using the CDC State Tobacco Activities Tracking and Evaluation (STATE) system, an online electronic database that includes information on state tobacco-related legislation.* The system tracks state statutes and court rulings for preemption provisions affecting local smoking restrictions in government work sites, private work sites, and restaurants. Changes in states' smoke-free preemptive status that took effect after December 31, 2009, were excluded for this report.

As of December 31, 2009, a total of 12 states had preemptive provisions in place for at least one of the three settings, an improvement from 19 states reported to have preemption in place as of December 31, 2004 (5). The number of states with preemption in all three settings decreased from 15 to eight during the 5-year period. The number of states with preemptive provisions covering government work sites, private work sites, and restaurants decreased from 16 to nine, from 15 to nine, and from 18 to 12, respectively. During the study period, six states (Illinois, Iowa, Nevada, New Jersey, Oregon, and South Carolina) removed preemption in all three settings. Three other states (North Carolina, Louisiana, and Mississippi) rescinded preemption in one setting only (government work sites, restaurants, and government work sites, respectively). For Louisiana and Mississippi, this was the only setting where preemption was in place. In contrast, as the result of a state supreme court ruling, Washington went from having no preemption in any setting to having preemption in two settings (government work sites and restaurants).

States that rescinded preemptive provisions during 2005--2009 did so through three different mechanisms: legislation, ballot measure, and court rulings. Provisions preempting local smoking restrictions in at least one of the three settings were rescinded by legislative action in seven states. Six of these states (Iowa, Louisiana, Mississippi, New Jersey, North Carolina, and Oregon) rescinded preemption in conjunction with enactment of statewide legislation restricting smoking in some settings; Illinois rescinded preemption as a stand-alone action.

During the study period, two states had preemptive provisions take effect that included "sunset" clauses under which these provisions also expired during the study period. Preemption established as a part of Rhode Island's 2004 smoke-free law expired on October 1, 2006. In Montana, preemption for all three settings was enacted in 2005 in conjunction with an exemption in a state smoke-free law for bars and casinos. Both the exemption and the preemptive provision expired on October 1, 2009.

State smoke-free laws enacted in 2006 in New Jersey and Louisiana included explicit nonpreemptive language that expressly enables communities to enact local smoke-free ordinances. In contrast, state smoke-free laws enacted in Oregon in 2007 and Iowa in 2008 removed preemptive language from previous statutes, thus rescinding preemption even in the absence of explicit enabling language (i.e., interpretation of the new laws indicated that they had the effect of removing preemption without stating this explicitly). In Nevada, a 2006 ballot measure rescinded a preemption provision in conjunction with establishing state smoking restrictions, again without explicit enabling language.

Court rulings also played a role in determining the preemptive status of two states during the study period. The Washington State Supreme Court ruled in 2005 that state law preempted local smoking restrictions,† and the South Carolina Supreme Court ruled in 2008 that state law did not preempt such restrictions.§

Reported by
S Babb, MPH, M Tynan, A MacNeil, MPH, Office on Smoking and Health, National Center for Chronic Disease Prevention and Health Promotion, CDC.

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State Preemption of Local Smoke-Free Laws in Government Work Sites, Private Work Sites, and Restaurants --- United States, 2005--2009