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From the Centers for Disease Control and Prevention
January 27, 1999

Preemptive State Tobacco-Control Laws—United States, 1982-1998

Author Affiliations

Copyright 1999 American Medical Association. All Rights Reserved. Applicable FARS/DFARS Restrictions Apply to Government Use.1999American Medical AssociationThis is an open-access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.

JAMA. 1999;281(4):316-317. doi:10.1001/jama.281.4.316-JWR0127-2-1

MMWR. 1999;47:1112-1114

(1 figure omitted)

Cigarette smoking is the leading preventable cause of death in the United States.1 Environmental and policy interventions, particularly tobacco-control laws and regulations, are an important means to prevent and reduce tobacco use.2 For this study, preemptive legislation was defined as legislation that prevents any local jurisdiction from enacting restrictions that are more stringent than the state law or restrictions that may vary from the state law. One of the national health objectives for 2000 is to reduce to zero the number of states with preemptive smokefree indoor air laws (objective 3.25)3; a proposed objective for 2010 is to reduce the number of states with any preemptive tobacco-control laws to zero. To document trends in preemptive tobacco-control legislation at the state level, CDC identified state preemptive provisions and their effective dates from June 1982 (the oldest provision currently in effect) to September 1998. This report summarizes the results of this analysis, which indicate an increase in the number of preemptive provisions from 1982 to 1996; no preemptive provisions in tobacco-control laws have been enacted since 1996.

CDC gathered data about state tobacco-control laws from an online legal research database to monitor such laws in four primary areas: smokefree indoor air, minors' access, marketing, and excise taxes. Data included the preemptive provisions of these laws. For this study, preemptive provisions are presented in three categories: smokefree indoor air (applying to restrictions on government or private worksites or restaurants), minors' access (addressing restrictions on sales to youth, vending machines, or distribution), and marketing (including restrictions on tobacco product sampling, display, promotion, or labeling). A multistep process was used to identify the month and year the preemptive provisions of these laws took effect. The process included identifying the history of the law by finding the records of each state's legislative session in a given year and analyzing the session laws to determine the effective date of the law's provision.

From 1982 through September 1998, 31 states incorporated preemptive provisions in their tobacco-control laws. Maine was the only state to repeal its preemptive provision (on tobacco displays, product placement, and time of sale) during the study period. Some preemptive provisions are very narrow. For example, in New York, the state government has precedence over local government restrictions on the free distribution of samples of tobacco products. Other provisions are broad. For example, in Tennessee, minors' access laws preempt local legislation of all tobacco-control areas.

The number of preemptive provisions included in state tobacco-control laws increased from 1982 through 1996 but has leveled off since 1996. The results of a linear regression analyzing the number of preemptive provisions per law and the years they became effective indicated a significant increase in the number of provisions from 1993 through 1996. During the 1980s, nine states passed 11 preemptive laws covering 21 provisions. From 1993 to June 1996, 20 states passed 24 preemptive laws covering 82 different provisions. Since July 1996, no preemptive tobacco-control laws have been enacted.

Eighteen states preempt at least one provision of smokefree indoor air restrictions (e.g., government worksites, private worksites, and restaurants); since 1985, 13 states have preempted smokefree indoor air laws in all three areas. Except in South Carolina, all preemptive laws that became effective since 1990 have covered all three areas.

Twenty-one states preempt at least one provision of minors' access restrictions (e.g., sales to youths, vending machines, and distribution). Ten states preempt all three components of minors' access laws. Of 21 states with provisions preempting local minors' access laws, 76% became effective during July 1993-July 1996.

Seventeen states preempt localities from promulgating their own laws restricting the marketing of tobacco products. Three states (Illinois, Michigan, and West Virginia) specifically preempt restrictions on smokeless tobacco warning labels on billboards; all three of these preemptive provisions became effective during July 1987-September 1988. Fourteen states preempt laws on tobacco display, promotion, or sampling; in 93% of these states, the preemptions became effective during January 1993-July 1996.

Reported by:

Office on Smoking and Health, National Center for Chronic Disease Prevention and Health Promotion, CDC.

CDC Editorial Note:

The findings in this report indicate that most states have preemptive tobacco-control laws. Of the 30 states with such laws, 18 have preemptive provisions for smokefree indoor air. As a result, achievement of the 2000 objective is unlikely.

Tobacco-control policy occurs at the federal, state, and local level. Laws enacted by higher-level jurisdictions benefit the public health by implementing widespread standards. Unless they contain preemptive provisions, legislation at higher levels set minimum requirements and allow the continued passage and enforcement of local ordinances that may establish a greater level of protection of public health.4-6 However, legislation that preempts lower-level action removes control from localities by preventing them from enacting more stringent laws or tailoring laws to address community-specific issues.4,6,7 In addition, preemptive laws deter debate over local ordinances; such debate can educate the community about tobacco, potentially altering social norms about tobacco use.8 Preemptive state laws also can be a barrier to local enforcement because communities not involved in the decision-making process may be less compliant.9

A 1991 Smokeless Tobacco Council memorandum outlines a strategy to oppose local ordinances and advance statewide antitobacco bills that contain preemption clauses.4 In addition, a Tobacco Institute priority for 1993 was to "encourage and support statewide legislation preempting local laws, including smoking, advertising, sales, and vending restrictions".10 A potential reason for this strategy is the passage of strong tobacco-control laws at the local level and the logistical difficulties of the tobacco industry to devote resources toward multiple local jurisdictions.4,7

One limitation of this report is that legislative language is subject to interpretation. Although a law may have been considered preemptive by the definition used in this study, it may not have been implemented as preemptive in a particular state.

Nevertheless, during 1993-1996, the number of tobacco-control laws with preemptive provisions increased significantly. The 1992 federal Synar Amendment, which required states to enact and enforce minors' access laws, resulted in the passage of new laws (many of which included preemptive provisions) in several states. This, coupled with the Tobacco Institute's 1993 stated priority to promote tobacco-control laws with preemptive provisions, may have contributed to this increase. However, since 1996, no preemptive tobacco-control laws have been passed, possibly because of an increased community awareness of the potential harmful effects of preemption and a shift in industry priorities from state to federal restrictions and ongoing litigation.

The importance of laws and policies as a component of comprehensive tobacco-control interventions has resulted in their inclusion in surveillance efforts. CDC will continue to monitor progress toward achieving national health objectives for 2000 to reduce tobacco-related morbidity and mortality.

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