To advance health equity, we must fight preemption and restore local control over tobacco regulation.
This post is the third in a blog series that explores how preemption has served as a double-edged sword in either supporting or undermining efforts to advance health equity. We explore how some states have limited tobacco control at the local level and why local policies are critical to advancing health equity and protecting communities from commercial tobacco.
“By introducing pre-emptive statewide legislation we can shift the battle away from the community level back to the state legislatures where we are on stronger ground.” —Tina Walls, Philip Morris, July 8, 1994
The U.S. Food and Drug Administration is poised to ban menthol cigarettes and flavored cigars later this year. In 2019, the federal legal age to purchase tobacco products increased from 18 to 21.These are significant public health victories that will save lives. The use of commercial tobacco products undermines health and continues to be a leading cause of preventable death in our nation. Decades of predatory marketing has targeted Black communities with menthol advertising, driving health disparities.
Local communities have long been engaged in the fight against tobacco. As early as 2005, 540 localities raised the age minimum to purchase commercial tobacco products to 21–well before the federal government did so for the entire country. It’s no surprise that these innovative tobacco control policies emerged at the city or county levels before being adopted by states or the nation. Laying the groundwork at the local level is often how policies are tested and the first step toward building broader support.
The tobacco industry has been keenly aware that local efforts to protect public health threaten its profits. Rather than challenging tobacco control policies city by city, the industry had more success persuading state legislators to pass policies that purported to address the problem but, in fact, had little—if any—health benefits. These state policies preempted stronger local tobacco control policies the industry especially disliked.
This is yet another example of preemption, which occurs when a higher level of government limits the authority of a lower level of government to act on a particular issue. When it is used in this way, preemption threatens not only public health but also health equity–and even democracy–by undercutting community and grassroots engagement and hindering local efforts to advance equity-driven policies.
Preventing Local Action on the Sale and Marketing of Tobacco Products
Last year, Florida Governor Ron DeSantis signed a bill raising the state’s tobacco purchasing age to 21, while stripping local governments of any power to regulate the sale and marketing of commercial tobacco. Since federal law already banned the sale of tobacco to youth under 21, the bill’s public health provisions were nearly meaningless–but its clause preempting local tobacco control was truly harmful.
The tobacco industry is adept at crafting deceptive legislation like this, which appears to advance public health but actually harms it by limiting or squashing local action. This strategy is designed to confuse legislators and the public alike and protect industry profits.
Florida’s law is one example of how states are misusing preemption. With this law in place, localities can’t go further to regulate tobacco, even when it is in the best interest of their community. Reversing the harm of decades of marketing of menthol cigarettes to Black people is a social justice as well as a health issue that many cities and counties across the country have sought to address. Smoking-related diseases are the number one cause of death among Black people in the United States, claiming 45,000 Black lives every year.
Local bans on menthol tobacco products would save lives, reduce health disparities, and decrease youth smoking rates. But Florida’s law preempted them.
Preventing Local Action on Smoke-Free Workplaces
Thirteen states have adopted laws that preempt local governments from putting smoke-free air policies in place, preventing cities from going further than the state does to regulate smoking in workplaces. Eight of these states have tobacco control laws that are particularly weak, providing no protection from secondhand smoke exposure in non-hospitality workplaces, restaurants, and bars.
One example is Tennessee’s workplace smoking ban, known as the Tennessee Non-Smoker Protection Act. It includes an exemption for any music venue, restaurant, or bar that prohibits entry for those under age 21—exposing workers to secondhand smoke and forcing them to choose between their health or their livelihood. This policy also has negative implications for health equity, as many of these jobs pay minimum wage and are disproportionately held by women and people of color.
States with policies preempting local public health laws often have the highest rates of disease. The adult smoking rate in Tennessee is 20 percent, the fifth highest in the nation. Rates of chronic disease in Tennessee are high, too. The state ranks third in prevalence of chronic disease including diabetes, cardiovascular disease, and asthma—conditions that have a direct link to tobacco use. High rates of smoking and related chronic disease costs all Tennesseans, with $2.67 billion in healthcare costs attributed to tobacco use each year.
In light of these dire circumstances, lawmakers in cities like Nashville and Memphis might like to pass a law that would protect musicians and bar workers, but their hands have been tied.
Public health advocates in Tennessee passed a bill to restore local power to take action on smoke-free air and effectively lift preemption for municipal ordinances to address smoking in age-restricted venues. Governor Bill Lee recently signed this legislation, which allows individual cities and counties to set policies for their communities, proving that advocates for local tobacco control can reverse harmful preemptive policies.
Why Local Tobacco Policy Matters
When misused, preemption undermines equity. Local tobacco control measures are a critical tool for communities seeking to improve health outcomes by addressing the disproportionate targeting of people of color by the tobacco industry. Restrictions on public health authority threaten local officials’ power to protect the communities they serve from commercial tobacco and the harmful effects of secondhand smoke.
Using tools like home rule reform, advocates can take a proactive approach to broadening the authority of localities to address public health challenges like commercial tobacco.
Tennessee isn’t the only state that is reversing preemption as cities, towns, and community members champion the local tobacco control policies that will protect kids and save lives. After decades of restrictions on city and county efforts to combat commercial tobacco use, in 2019 advocates successfully lobbied the Colorado legislature to repeal the tobacco preemption law, paving the way for localities to raise the tobacco purchasing age to 21 and to tax and regulate tobacco products. Since the law was repealed, at least nine local proposals to raise taxes on tobacco products have passed by ballot initiative in Colorado.
By enacting tobacco control at the local level, public health advocates can build a strong evidence base to advocate for these policies in other communities, at the state level, and even federally by:
● Making local laws a blueprint. They demonstrate the possibilities and show that going further on tobacco regulation at the state level—whether by regulating the sale or marketing of commercial tobacco or by establishing more smoke-free public spaces—would be feasible and enforceable.
● Gathering health data that shows impact. After a policy is implemented, public health advocates and community members can conduct research to determine the effect of policies on health outcomes, helping make the case for policies grounded in health equity.
● Refuting false economic impact arguments. Implementing a local policy offers an opportunity to gather real economic impact data to refute the industry’s narrative that tobacco control policies would cause communities to lose business or decimate the tourism or hospitality sectors.
The tobacco industry will almost certainly continue to adapt, and preemption will remain one of its primary strategies to weaken tobacco control. Public health advocates must be strategic too, and work in coalitions to fight and reverse policies that would limit local governments’ authority to protect their residents from the dangers of commercial tobacco.
Explore which states preempt smoke-free air laws and learn why local control is critical to protect public health.
About the Authors
Delmonte Jefferson is executive director of the Center for Black Health and Equity and Cynthia Hallett is president and CEO of Americans for Nonsmokers’ Rights.