State Preemption of Local Tobacco Control Policies Restricting Smoking, Advertising, and Youth Access

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.

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. 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. During this period,

Number of states with laws in effect that preempt local tobacco control laws restricting smoking, advertising, and youth access, by year --- United States, 2000--2010

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.

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, [email protected], 770-488-1172.