Preempting Big Tobacco
How to Beat the Tobacco Industry at its
Own Game
Prepared by American Nonsmokers’ Rights Foundation, 2004.
Protecting Local Control:
Policies enacted through local ordinance
campaigns…
• Are easier to enact and strengthen.
• Provide more comprehensive and stronger
protections from secondhand smoke.
• Have greater compliance rates.
• Serve as the source of innovation and advances in
tobacco control policy-making.
• Involve public education and grassroots
organizing leading to changes in attitudes and
social norms.
Why the Tobacco Industry
Needs Preemption
MUNICIPALITIES with CLEAN INDOOR AIR ORDINANCES
Cumulative Number Effective* By Year: 1985 - 2004
1800
1600
1400
1000
800
600
400
200
Year
2004**
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994
1993
1992
1991
1990
1989
1988
1987
1986
0
1985 and
Before
Cumulative Number
1200
MUNICIPALITIES with 100% SMOKEFREE
CLEAN INDOOR AIR ORDINANCES
Cumulative Number Effective* By Year 1990 - 2004
Workplaces
Restaurants
Bars
250
150
100
50
Year
2004**
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994
1993
1992
1991
0
1990
Cumulative Number
200
Preemption is…
1. A provision in state (or federal) law which
eliminates the power of local (or state and local)
governments to regulate tobacco. May
“preempt” either existing and/or future
legislation.
2. A tobacco industry relief tactic.
3. Syn., see TROUBLE.
Tobacco on Preemption…
[Walls, T.]. CAC Presentation #4, draft 7/8/94. Philip Morris. July 8, 1994. Access Date: January 29, 2004.
Bates No.: 2041183751/3790. URL:
Tobacco on Preemption…
[Walls, T.]. CAC Presentation #4, draft 7/8/94. Philip Morris. July 8, 1994. Access Date: January
29, 2004. Bates No.: 2041183751/3790. URL
Preemption is…
• Big Tobacco’s key tactic to prevent smokefree
policies from protecting public health from
secondhand smoke.
• The tobacco industry likes preemption because:
– Results in fewer restrictions on smoking.
– Halts local policy activity; ends public discussion,
education and social norm change.
– Decreases enforcement activity.
– Fragments coalitions over preemption compromises.
A Little Preemption History
• Federal Level
– (1965) Federal Cigarette Labeling and Advertising Act.
• State Level
– (1985) Florida, first state to preempt tobacco control,
roughly a dozen Florida communities had adopted
smokefree ordinances, which were rescinded by the
state law.
– (2001) 56 preemptive bills were enacted.
– (2004) 22 states preempt locals’ control over tobacco.
AMA: Preemption, Taking the Local Out of Tobacco Control 2003.
Identifying Preemption
Understanding its “Nuts and Bolts”
Where is Preemption a Law?
Partial
Preemption
I.D. #1: Is My State Preempted?
Yes
- California - Nevada
- Oregon
- Mississippi
- Florida
- Oklahoma
- Iowa
- Tennessee
- Utah
- South Dakota
- New Jersey
- South Carolina
- North Carolina
- Connecticut
- New Hampshire
Partial
•
•
•
•
•
•
Michigan
Montana
Illinois
Kentucky
Pennsylvania
Louisiana
In their own words…
[Walls, T.]. CAC Presentation #4, draft 7/8/94. Philip Morris. July 8, 1994. Access Date: January 29,
2004. Bates No.: 2041183751/3790. URL:
I.D. #2: Three Types of Preemption
1. Express
-
A statute which explicitly asserts the state’s (or
Congress’) intent to occupy the field in a given
subject area.
2. Implicit
-
The court interprets a statutory scheme to be so
comprehensive as to implicitly “occupy the field”
and preclude local (or state) control.
3. Practical
-
Bureaucratic hurdles, referendums, restrictions of
authority.
I.D. #3: Words to watch for…
Preemptive language
• Preempt: “This legislation expressly preempts regulation of
smoking to the state…” FL STAT. ANN. 386-201 et seq.
• More restrictive or stringent than
• Uniform: “… uniform statewide regulation of smoking in
public places, bars, restaurants, and workplaces.” CA, Prop
188 (the Philip Morris initiative), defeated 1994.
• Consistent with [state law]
• Supersede
• Occupy the field: “Accordingly, it is the intent of the
Legislation to occupy the field of tobacco products
regulation…” AZ, SB 1384, defeated 1996.
I.D. #4: Finding Preemptive
language in a Bill. Where to Look.
• Everywhere!
• Public Health Bills
– Introduced by them
– Introduced by you … Monitor them ALL!
• Recent Trends
– Montana: gaming bills
– Kentucky: civil rights and discrimination bills
• Industry strategies and language change over the
years, but their goal remains the same.
I.D. #4: Finding Preemptive
language in a Bill. Tobacco Tricks.
• “Hitching a Ride”
– Keep watchful eye on more than just tobacco related
bills.
– Monitor all environmental and health bills for tobacco
clauses.
• Hijacking a Tobacco Control Bill
– Industry amends a bill with weaker provisions and/or
adds a preemption clause.
– Be extra cautious when approaching the waning hours
of a session. These clauses can be easily slipped in,
unnoticed, but are incredibly difficult to remove once
made into a law.
Hijacking a Tobacco Control Bill
[Tobacco Institute]. Pro-Active Proposal Smoking Restriction Preemption: Colorado. Tobacco Institute.
September 24, 1990. Access Date: January 30, 2004. Bates No.: TIOR0019495/9496. URL:
http://legacy.library.ucsf.edu/cgi/getdoc?tid=rik42f00&fmt=pdf&ref=results.
I.D. #4: Finding Preemptive
language in a Bill. Tobacco Tricks.
• Introduce a “Wolf in Sheep’s Clothing”
– The Industry introduces its own bill, containing enough
pro-health language to appear legitimate to legislatures.
• “Practical Preemption”
– “Venue restriction language”
• Limiting policy-making authority (e.g. Board of Health)
– Bureaucratic hurdles
– Referendum
Claiming “Practical
Preemption”
[Pontarelli, J.] CAC Presentation #4, draft 7/8/94. Philip Morris. July 8, 1994. Access Date: January 29,
2004. Bates No.: 2041183751/3790. URL:
I.D. #4: Finding Preemptive
language in a Bill. Tobacco Tricks.
• Claim Preemption in Court
– Industry argues there is implied preemption.
– Most often occurs when first jurisdiction in state begins
to consider a local smokefree ordinance campaign.
• Third Parties and Front Groups
– Industry knows it lacks public credibility, so it gets
third parties to hide behind.
– In most cases, local business and/or state trade
associations file lawsuits.
– Lawyers and law firms representing these clients often
have ties to the tobacco industry.
Third Parties and Fronts
Walls, Tina. Grasstops Government Relations. Philip Morris. March 30, 1993. Access Date: January
30, 2004. Bates No.: 2024023252/3265. URL:
I.D. #5: Red Flag Compromises
• Sunset Clauses
– “This ordinance shall expire two years from its effective
date, unless extended by ordinance of the City
Council.” Vacaville, CA. ORD. No. 1697, §§ 12.28.091, et. seq. (2003).
• Grandfather Clauses
– “433.863 Limitation on prohibition of smoking by local
government. (1) A local government may not prohibit
smoking in any areas listed in ORS 433.850 (2) unless
the local government prohibition was passed before
July 1, 2001.” OR. REV. STAT. §§ 433.850 et. seq. (2001).
Protecting Local Control
Steps to Take in Your State
The Health Community on
Preemption …
• “Because regulations in general may be more effective if
generated and enforced at the local level, considerable
energy is devoted to the issue of opposing or repealing
preemption of local authority by states. Public health
analyses have resulted in strong recommendations that
state laws not preempt local action…” Center for Disease Control and
Prevention, Reducting Tobacco Use: A Report of the Surgeon General, 2000.
• “Any Federal or State regulation of tobacco products
should contain unambiguous non-preemption provisions
expressly clarifying that higher standards of public health
protection imposed by State and Local government be
preserved.” Congressional Advisory Committee on Tobacco Policy and Public
Health (Co-Chairs: C. Everett Koop and David A. Kessler, M.D.), Final Report, July
1997.
The Health Community on
Preemption …
• “The American Lung Association/American Thoracic
Society opposes all forms of preemption of state and local
tobacco control authority. The ability of any government
entity to enact tobacco control legislation is a cornerstone
of an effective tobacco control policy. There is no trade-off
worth the price of preempting a state or community’s right
to pass tobacco legislation.” American Lung Association, Policy
Principle on Tobacco, April 1999.
• “Target: ‘Eliminate laws that preempt stronger tobacco
control laws… Retain year 2000 target’ to ‘[r]educe the
number of States that have clean indoor air laws
preempting stronger clean indoor air laws on the local
level.’” U.S. Department of Health and Human Services, Healthy People 2010
Objectives, November 2000.
How do we prevent preemption?
• Get commitment from all smokefree partners in
your state that they will fight preemption at all
times.
• Don’t be afraid of the “local control” message.
• Find good and unusual allies.
• Educate the media, the public and legislators on
preemption.
• Include anti-preemption clauses in all bills.
• Be vigilant in tracking the legislature.
• Set up a statewide Preemption Strike Force.
Non-Preemption Clauses
• “Sec. 1746. Municipal Ordinances. Nothing in this
chapter shall be construed to supersede or in any
manner affect a municipal smoking ordinance
provided that the provisions of such ordinance are
at least as protective of the rights of the
nonsmokers as the provisions of this chapter.”
Vermont, V.S.A. Chapter 37. Smoking in Public Places.
• “Nothing in this law shall preempt or otherwise
affect any other Federal, State, or local tobacco
control law which provides protection from health
hazards from environmental tobacco smoke.” H.R.
3434, introduced in the 103rd United States Congress
If your state is preempted …
•
•
•
•
•
•
•
Begin working with local communities.
Educate yourself.
Educate your state legislators.
Give yourself enough time to prepare for a battle.
Conduct public polls.
Stay on message.
Consider Delaware or Louisiana’s two-pronged
approach.
• Set up a statewide Preemption Strike Force.
Setting up a Statewide
Preemption Strike Force
How to Take Back/ Protect Local
Control
Preemption Strike Force Goals
• Constant communication and quick mobilization
– Makes communication easy by getting a message out to
a large number of people by only talking to a few.
– Because a strike force allows for quick communication,
it is easier to plan a rally or get advocates to the capitol
on short notice.
• Role delineation
– Many people, not just tobacco advocates, support local
control.
– A strike force will assign roles so that efforts to defeat
preemption are not being duplicated and so that
everyone is working together, as a team.
Potential Preemption Strike
Force Members
• Coalition members from around the state who can
rally advocates
• Coalition lobbyists
• Lobbyists from
–
–
–
–
–
American Heart Association
American Lung Association
American Cancer Society
Municipal leagues
Any group concerned about protecting local control
• Elected officials who are known “champions” of
smokefree air
Preemption Strike Force Roles
• Brainstorm new partners and new strategies for
defeating preemption.
• Collect resolutions on protecting local control
from municipalities and from organizations.
• Assign lobby targets based on districts from
around the state.
• Meet with editorial boards.
• Help bring people to the capitol for citizen lobby
days and critical hearings.
• Proactive planning and rapid response.
Support for Local Control
• American Nonsmokers’ Rights Foundation
– http://www.protectlocalcontrol.org
– http://www.no-smoke.org
• American Cancer Society
– http://www.cancer.org
• American Heart Association
– http://www.americanheart.org
• American Lung Association
– http://www2.lungusa.org
• American Medical Association
– http://www.ama-assn.org/
Support for Local Control
• Center for Disease Control and Prevention, U.S.
Department of Health and Human Services
– http://www.cdc.gov/
• Campaign for Tobacco Free Kids
– http://www.tobaccofreekids.org/
• Tobacco Technical Assistance Consortium
– http://www.ttac.org/
• National Association of County and City Health
Officials
– http://www.naccho.org/
• National Association of Local Boards of Health
– http://www.nalboh.org/
Conclusion
FACT:
The tobacco industry knows smokefree
campaigns are successful at the local
level, hurting their bottom line.
Preemption shifts the battle “back to the
state, where [they] are stronger” and
away from the people.
Conclusion
FACT:
Protecting local control can be an effective
message with certain targets.
Conclusion
FACT:
Educate yourself, policy-makers, the
media, and the public on preemption.
Conclusion
FACT:
By making a steadfast commitment to fight
preemption, you will succeed in protecting
local control.