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

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.

Editorial Note

The reduction in state preemption laws described in this report means that, in contrast with previous trends (5), states made substantial progress toward achieving the Healthy People 2010 objective of eliminating state laws preempting such restrictions, and localities in the affected states can now adopt and enforce local ordinances that are stricter than state law. This progress is important because the most comprehensive smoking restrictions often originate at the local level (1,6); many states have enacted comprehensive statewide smoke-free laws only after numerous communities have adopted such laws (1).

Statewide laws provide broader population coverage than do local laws. As long as state laws do not contain preemptive provisions, they set a minimum standard and allow the continued passage and enforcement of more protective local ordinances (1,6--8). However, state legislation that preempts lower-level action can impede local efforts to enact more stringent protections or to tailor laws to address local circumstances (1,6--9). State preemptive laws also tend to eliminate the public debate and news media coverage that typically accompany local consideration of smoke-free ordinances, which perform an important educational function and contribute to changes in social norms about smoking (1,6--8).

Two factors contributed to the reduction in the number of states with laws preempting local smoking restrictions during the study period. First, fewer states enacted new laws containing preemptive provisions; only two states, Rhode Island and Montana, had such provisions take effect during this period (the Rhode Island law had been enacted in 2004). However, in both cases, the statutes called for preemption to expire on a specified date in conjunction with phasing out exemptions in state smoke-free laws. Instead of preempting local action, recently enacted smoke-free laws often include antipreemption language explicitly enabling local jurisdictions to enact more comprehensive smoking restrictions. Second, several states rescinded preemptive provisions. In 2002, Delaware became the first state to rescind preemption of local smoking restrictions through the legislative process,¶ and other states subsequently took similar action.

Rulings in state courts also have affected state preemption of local smoke-free policy activity (10). In 2005, the Washington State Supreme Court ruled that state law preempted local smoking restrictions that are more stringent than state law. In 2005, Washington voters approved a state ballot measure that prohibited smoking in most public places and workplaces.** However, the measure was silent on preemption, leaving the court's ruling in force. In contrast, in 2008, the South Carolina Supreme Court ruled that state law did not preempt local smoking restrictions. Since this ruling, numerous other local jurisdictions in South Carolina have enacted smoke-free laws.

The findings in this report are subject to at least one limitation. 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 are never contested in court. Although the STATE system takes into account court rulings and attempts to make the best interpretation of statutes possible using consultation from attorneys and state attorneys general, a risk for misclassification remains.

Less progress has been made in rescinding state preemptive provisions in other tobacco control policy areas; the STATE system classifies 18 states and 22 states as preempting local restrictions on tobacco advertising and youth access to tobacco products, respectively. The 2009 Family Smoking Prevention and Tobacco Control Act, which gave the Food and Drug Administration authority to regulate tobacco products, partially repeals a preexisting federal provision preempting state and local ability to restrict cigarette advertising and promotion, creating an opportunity for additional local tobacco control policy activity in this area (for example, restrictions on tobacco marketing at the point of sale).†† State laws preempting local advertising restrictions could emerge as an obstacle to such local action.

Despite the progress reported in this analysis, the remaining state provisions preempting local smoking restrictions can impede community efforts to protect residents from secondhand smoke, especially in the 10 states with preemption that do not currently have comprehensive state smoke-free laws in effect (all 12 states, with the exception of Utah and Washington). Continued tracking of these preemptive provisions and their impact is needed.

Acknowledgments

This report is based, in part, on contributions by R Patrick, JD, SS Eidson, JD, and L Lineberger, MayaTech Corporation, Silver Spring, Maryland; N Blair, MPH, Div of Heart Disease and Stroke Prevention, National Center for Chronic Disease Prevention and Health Promotion, and JC O'Connor, JD, DrPH, Office of Public Health Preparedness and Response, CDC.

References

1. 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. Available at http://www.surgeongeneral.gov/library/secondhandsmoke/report/fullreport.pdf. Accessed January 28, 2010.
2. International Agency for Research on Cancer. Evaluating the effectiveness of smoke-free policies. Lyon, France: World Health Organization Press; 2009. Available at http://www.iarc.fr/en/publications/pdfs-online/prev/handbook13/index.php. Accessed January 28, 2010.
3. Institute of Medicine. Secondhand smoke exposure and cardiovascular effects: making sense of the evidence. Washington, DC: The National Academies Press; 2009.
4. US Department of Health and Human Services. Healthy People 2010 midcourse review. Washington, DC: US Department of Health and Human Services; 2006. Available at http://www.healthypeople.gov/data/midcourse. Accessed January 28, 2010.
5. CDC. Preemptive state smoke-free indoor air laws---United States, 1999--2004. MMWR 2005;54:250--3.
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. CDC. Preemptive state tobacco-control laws---United States, 1982--1998. MMWR 1999;47:1112--4.
8. CDC. State laws on tobacco control---United States, 1998. MMWR 1999;48(No. SS-3):21--62.
9. The Task Force on Community Preventive Services. The guide to community preventive services: what works to promote health? New York, NY: Oxford University Press; 2005. Available at http://www.thecommunityguide.org/tobacco/tobacco.pdf. Accessed January 28, 2010.
10. O'Connor JC, MacNeil A, Chriqui JF, Tynan M, Bates H, Eidson SKS. Preemption of local smoke-free air ordinances: the implications of judicial opinions for meeting national health objectives. J Law Med Ethics 2008;36:403--12.

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