Assessing the Impact of Federal and State Preemption in Public Health

A Framework for Decision Makers

The Preemption Framework is a tool to support effective decision-making by helping the public health field anticipate, assess, and if necessary, counter preemptive policy proposals.

State and local public health agencies serve an important role as laboratories for experimentation and innovation of policies, services, and programs. However, higher levels of government—state or federal legislatures—can preempt or limit the authority of lower jurisdictions by passing weaker laws.

In 2011, at the request of the Robert Wood Johnson Foundation, the Institute of Medicine released a report on preemption deeming it a crosscutting issue in public health. The report recommended that minimum standards be set for states and localities to protect health and safety.

These authors developed the Preemptive Framework as a tool to help the public health field respond to the potentially negative consequences of preemptive proposals. They recommend:

  • Know your bottom line and agree to a position with major stakeholders to preserve the authority of lower jurisdictions to adopt stronger health protections.
  • Make sure all those impacted by the preemption are at the negotiating table.
  • Know your opposition and be prepared to counter industry lobbyists.
  • Consider the short- and long-term consequences of preemption and who will ensure compliance with new laws.
  • Consider whether the preemption will hinder a grassroots public health movement.
  • Negotiate the preemption early in the legislative process.