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STATE System Preemption Fact Sheet

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STATE System Preemption Fact Sheet The STATE System is an interactive application that presents current and historical state-level data on tobacco use prevention and control. CDC.gov/STATESystem STATE System Preemption Fact Sheet State Preemption of Any Local Tobacco Control Ordinances– Advertising, Licensure, Smokefree Indoor Air, or Youth Access In effect as of September 30, 2018 (n=58) Guam No preemption (n=26) Preemption for one policy (n=13) Preemption for two policies (n=9) Preemption for three policies (n=8) U.S. Virgin Islands Puerto Rico Alaska Hawaii Preemption for four policies (n=2) American Samoa Northern Mariana Islands Marshall Islands Palau Preemption Can Impede Local Tobacco can enact laws prohibiting or restricting smoking in enclosed places; such as, government worksites, private worksites, Protection Efforts restaurants, and bars. To reduce tobacco use, states can also Tobacco use is the cause of one of five deaths annually in the raise excise taxes on tobacco products and choose to enact United States—more deaths than human immunodeficiency statutes that limit advertising (by restricting the display of virus (HIV), illegal drug use, alcohol use, motor vehicle injuries, tobacco products, tobacco product promotion, or tobacco and firearm-related incidents combined.1 In addition, millions product samples). States can also restrict youth access to of nonsmokers remain exposed to secondhand smoke in tobacco by prohibiting the sale or distribution of tobacco homes, workplaces, public places, and vehicles. to young people and restricting access to tobacco product States are using various legislative tools to reduce smoking vending machines. Tobacco control policies have often been rates and protect the public from the adverse health effects adopted at the state level after being carried out in a critical 2 of smoking. To limit exposure to secondhand smoke, states mass of communities within a state. At the local level, policies can be more restrictive or comprehensive than state laws. GET THE FACTS ON TOBACCO USE PREVENTION AND CONTROL STATE System: CDC.gov/STATESystem OSHData: CDC.gov/OSHData Office on Smoking and Health: CDC.gov/Tobacco November 2018 | CS298844-G Page 1 of 4 TU–16.1 TU–16.2 TU–16.3 TU–16.4 B B B B a a a a s s s s e e e e 0 0 0 0 l : l : l : l : i i i i t t t t n n n n e e e e e Tobacco Use e Tobacco Use e Tobacco Use e Tobacco Use : g : g : g : g r r r r 1 a 1 a 2 a a T T T 9 T 2 8 2 2 2 2 2 0 1 7 : 1 2 0 1 7 : 1 8 0 1 7 : 2 2 0 1 7 : 1 0 Eliminate State laws that preempt stronger Eliminate State laws that preempt stronger Eliminate State laws that preempt stronger Eliminate State laws that preempt stronger local tobacco control laws on local tobacco control laws on local tobacco control laws on local tobacco control laws on smokefree indoor air 13 advertising 13 youth access13 licensure 13 Data Source: State Tobacco Activities Tracking and Evaluation System (STATE), CDC/NCCDPHP. For more information, visit CDC.gov/tobacco/hp2020 Local communities have responded to public health concerns explicitly disclaimed any intent to preempt local governments related to smoking and tobacco use. Communities have from regulating smoking, and, in fact, expressly authorized adopted and put into action some of the strongest, innovative, local governments to prohibit smoking in any manner not and effective tobacco control policies that have served as a consistent with the state law.9 In 2008, a South Carolina court catalyst for transitioning social norms about tobacco use. found that the state statute, including the Clean Indoor Air These policies discourage young people from initiating use Act, did not preempt a city from passing a local ordinance and encourage adult tobacco users to quit.2,3 regulating smoking in public places.10 However, courts in New Hampshire and Washington ruled that state laws establishing What Is Preemption? smoking restrictions preempted local smoking restrictions in certain settings, even though the statutes in question did not Some states, preempt, or prevent local communities from contain explicit preemption language.8,11 passing local laws that are more stringent or differ from a state’s tobacco control policies related to advertising, smokefree indoor air, and youth access. A state may preempt Enabling Local Communities to Pass local tobacco control laws in all or only in some categories. Tobacco Control Measures The tobacco industry has historically supported state The only way for states to ensure that local tobacco control preemption laws as a way to reverse existing local tobacco laws are not preempted is to include enabling clauses in state 4,5,6 control laws and prevent future enactment of such laws. laws. These clauses explicitly allow local jurisdictions to pass A Healthy People 2020 objective calls to eliminate state ordinances that differ from the state law. This can have the laws that preempt stronger local tobacco control laws, effect of making the state law the floor for tobacco control 7 including local smokefree ordinances. regulations, rather than preemption provisions that establish state law as the ceiling. Court Decisions Can Determine Preemption State Efforts to Restore or Preserve Local Even if a state law does not have “express preemption” Smokefree Indoor Air Control Since 2004 (i.e., that state law does not contain explicit preemptive Once enacted, state preemptive laws have traditionally language), a state court may find that the state has “implied proven difficult to repeal. However, since 2004, seven states 8 preemption” (i.e., that state law is implicitly preemptive). If a have successfully repealed provisions that preempted local local law is legally challenged, a court has the responsibility smoking restrictions in some or all settings. The seven states to interpret state statutes, as well as the state legislature’s that have repealed smokefree indoor air preemption are Illinois, intent when the law was debated and passed. As a result, Louisiana, Mississippi, Montana, Nevada, New Jersey, and statutes must be read together with case law decisions to Oregon. For example, state smokefree laws enacted in Oregon get a full understanding of a state’s preemption status. In in 2007 and Iowa in 2008 removed preemptive language particular, court decisions related to smokefree indoor air have from previous statutes, thus rescinding preemption even determined whether a state preempts the passing of local laws in the absence of explicit enabling language.11 In addition, pertinent to tobacco prevention and control. there appears to be a trend for states that enact new smoking In several states, courts have weighed in and decisively restrictions to include explicit enabling language. influenced interpretations of whether states preempt local For example state smokefree laws enacted in 2006 in New smoking restrictions. For example, a court in California ruled Jersey and Louisiana included explicit nonpreemptive that the 1995 state smokefree law did not preempt local language that expressly enables communities to enact local ordinances from making enclosed public places and places smokefree ordinances.12 of employment smokefree. The court ruled that the state law Page 2 of 4 State Preemption of Any Local Tobacco Control Ordinances– Current Status of State Advertising, Licensure, Smokefree Indoor Air, or Youth Access Preemption Related to In effect as of September 30, 2018 (n=58) Smokefree Indoor Air Smokefree Indoor Location Preemption Summary Advertising Licensure Youth Access Air As of September 30, 2018, 12 states have laws or Alabama No Preemption No No No No court decisions in effect that explicitly preempt Alaska No Preemption No No No No local ordinances from restricting smoking American Samoa No Preemption No No No No in government worksites, private worksites, Arizona No Preemption No No No No restaurants, or bars. Seven of these 12 states Arkansas No Preemption No No No No preempt local action in all four of these settings. California Preemption for one policy No No No Yes Michigan preempts local smoking restrictions Colorado No Preemption No No No No in restaurants and bars, but allows restrictions Connecticut Preemption for one policy No No Yes No in worksites. New Hampshire also preempts Delaware Preemption for two policies Yes No No Yes local smoking restrictions in restaurants but has District of Columbia No Preemption No No No No no provision in the other three settings. One Florida Preemption for one policy No No Yes No state (North Carolina) preempts local smoking Georgia No Preemption No No No No restrictions in private worksites, and allows local Guam No Preemption No No No No smokefree indoor air restrictions in government Hawaii Preemption for one policy No Yes No No worksites, restaurants, and bars. Washington Idaho Preemption for one policy No Yes No No preempts local smoking restrictions in Illinois No Preemption No No No No government worksites, restaurants, and bars but Indiana Preemption for two policies Yes No No Yes not in private worksites. Iowa Preemption for two policies No Yes No Yes Twenty-seven states have passed laws that Kansas No Preemption No No No No explicitly allow local communities to adopt Kentucky Preemption for two policies Yes No No Yes smoking restrictions that are stricter or differ Louisiana Preemption for two policies Yes No No Yes from the state standard. One state—Oklahoma Maine No Preemption No No No No —does not preempt local regulation for Marshall Islands No Preemption No No No No government worksites only. Maryland Preemption for one policy No Yes No No Massachusetts Preemption for one policy No Yes No No Eleven states, the District of Columbia, Guam, Michigan Preemption for four policies Yes Yes Yes Yes Puerto Rico and the U.S.
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