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December 5, 2001

Removing Barriers to Local Tobacco Regulation

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Copyright 2001 American Medical Association. All Rights Reserved. Applicable FARS/DFARS Restrictions Apply to Government Use.2001American 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.

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JAMA. 2001;286(21):2735. doi:10.1001/jama.286.21.2735-JMS1205-3-1

Laws and regulations governing tobacco need to be an essential part of an overall strategy to reduce tobacco-related morbidity and mortality. Indeed, the US Surgeon General supports regulation as an important component of a comprehensive tobacco control program. His recent report identified 3 particularly effective regulatory approaches: reducing tobacco advertisements, promoting clean air, and restricting youth access to tobacco products.1 The misperception remains, however, that state and local efforts to regulate in these areas have outpaced what the public supports or what the law allows. The public health community can overcome these misperceptions by providing appropriate support, education and technical assistance to policy makers.

Tobacco control seems particularly well suited to regulatory action because it meets basic criteria necessary for appropriate public health legislation.2 First, the public health need is great, with more than 430 000 US citizens dying annually from smoking-related behavior.3 Second, regulatory restrictions can reduce morbidity and mortality related to tobacco. Clean-air ordinances, advertising restrictions, and youth access laws have all been established as effective preventive measures.1 Third, the normal police power of the state allows it to regulate known public health hazards, to protect nonconsenting individuals from exposure to hazards, and to educate children and adults about harmful behaviors. Given that many local tobacco control laws clearly meet these 3 basic criteria, barriers that prevent the passage of these laws should be removed. Two such barriers are the misperceptions that most people do not favor tobacco control laws and that these laws are legally indefensible.

Reports of individuals flouting tobacco control laws or of opposition to tobacco laws can give the impression that the laws are outpacing the popular will for change. These reports, however, are often contradicted by the data. For example, there were several reports of public opposition to the California state law eliminating smoking in bars, and opponents of the law used these reports to lobby for its repeal. In reality, a majority of Californians support the restrictions. Indeed, the visibility of the reports of opposition arose from a tobacco industry strategy to overturn the law by using anecdotal accounts to obscure the law's general popularity.4 Support has also been demonstrated for regulating tobacco advertising, promoting clean air ordinances, and restricting youth access to tobacco.4 Understanding both the widespread support for these laws and the measures that the tobacco industry will take to manufacture opposition to them will provide decision-makers important information. Decision-makers must look at scientific evidence and not headlines.

Other headline-grabbing events that have acted as barriers to local initiatives include 2 recent US Supreme Court decisions. The first, in March 2000, overturned the US Food and Drug Administration (FDA) jurisdiction to regulate tobacco products.5 The other, in June 2001, overturned a Massachusetts ordinance restricting tobacco advertising.6 A common interpretation of these decisions is that they leave no room to regulate tobacco. In fact, rather than hindering all regulatory approaches, these opinions provide a roadmap for future initiatives. For example, the FDA case specifies that the US Congress can give jurisdiction to the FDA. Similarly, many avenues for state regulation fit within the standards set up by the Supreme Court in the Massachusetts case, including the restriction of self-service displays. Moreover, the court's rulings do not restrict smoke-free workplaces, licensing, and restriction of youth access.

Developing appropriate local tobacco regulation will necessitate understanding both tobacco science and tobacco law. This will require scientists to conduct targeted studies to demonstrate the need for such laws, and public health practitioners to educate decision-makers on the science and strategies for tobacco control. Equally important, however, public health professionals and policy makers should work collaboratively with experts who can provide technical legal assistance. These experts can help navigate the roadmaps set up by the Supreme Court, avoid potential pitfalls in regulation, and provide protection from those who would use common misperceptions or inflammatory arguments to challenge the regulations. In particular, the public health community and states should promote the development of tobacco control centers to provide legal assistance and ensure that the centers are supported by the best available science. By working together, scientists, public health practitioners, and lawyers can overcome perceived barriers to passing tobacco control regulation, and insulate decision-makers from erroneous claims that the laws go too far.

US Department of Health and Human Services, Reducing Tobacco Use: A Report of the Surgeon General.  Atlanta, Ga USDHHS, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health2000;
Gostin  LO Public health law in a new century: part III: public health regulation: a systematic evaluation. JAMA. 2000;2833118- 3122Article
Centers for Disease Control and Prevention, Perspectives in disease prevention and health promotion smoking-attributable mortality and years of potential life lost—United States, 1984. MMWR Morb Mortal Wkly Rep. 1997;46444- 451
Magzamen  SGlantz  SA The new battleground: California's experience with smoke-free bars. Am J Public Health. 2001;91245- 252Article
Not Available, Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
Not Available, Lorillard Tobacco Co. v Reilly, 121 S.Ct. 2404, 533 U.S. (2001).