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

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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:

http://legacy.library.ucsf.edu/cgi/getdoc?tid=vnf77e00&fmt=pdf&ref=results

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:

http://legacy.library.ucsf.edu/cgi/getdoc?tid=vnf77e00&fmt=pdf&ref=results

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roughly a dozen Florida communities had adopted smokefree ordinances, which were rescinded by the state law.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:

http://legacy.library.ucsf.edu/cgi/getdoc?tid=vnf77e00&fmt=pdf&ref=results

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:

http://legacy.library.ucsf.edu/cgi/getdoc?tid=vnf77e00&fmt=pdf&ref=results

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:

http://legacy.library.ucsf.edu/cgi/getdoc?tid=wxy25e00&fmt=pdf&ref=results.

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.