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Sample Update Article

Preemption Looms Large As 2021 Legislative Session Begins

ANR UPDATE, 40(1), 2021

After decades of advocating for smokefree air at the local, state, and national levels, we have come to expect the unexpected. 2020 required us to be more flexible than ever in nimbly responding to a constantly changing environment. For all of these reasons, we started the new year braced for the introduction of new tobacco-related bills and the implementation of new laws.


Four states voted to legalize recreational marijuana in 2020—New Jersey, South Dakota, Montana, and Arizona—with expected rollout dates in early 2021. Legislators, along with governors and other regulatory entities, will determine the structure for implementation and enforcement of these laws. It’s essential for public health partners to engage in these discussions, in particular to weigh in on the importance of restricting on-site smoking and vaping of marijuana that jeopardizes smokefree protections. As we have seen in other states that have legalized marijuana, it is a challenge to keep attention on protecting public health when most regulatory priorities are on rolling out a new commercial industry.

As the threat of Coronavirus impacted the daily lives of Americans, leaders at the municipal level took action to protect their residents. The reality is that not everyone agrees that requiring mask wearing to protect public health is the appropriate role of government, and, unfortunately, proposed smokefree policies may be caught in the crosshairs of an increasingly partisan and emotional debate. Many state legislative bodies are considering broad preemption of localities to address public health from mask mandates to smokefree air. The strategy of preemption (limiting local governments’ capacity to implement public health or other local policies), which was devised by Big Tobacco in the 1990s, is having a major resurgence. Now with state legislators kicking off their 2021 sessions, we are seeing just how broad and sweeping these strikes on local democracy are turning out to be. Our team is activating supportive partners that represent a wide variety of issues that all share a common goal of maintaining local control so that local governments can adopt strong, innovative, and effective policy solutions to protect the health of their communities.


We are on high alert with advocates anticipating preemptive bill language to be filed in Florida, Texas, Louisiana, West Virginia, Tennessee, Kansas, Iowa, Missouri, and beyond. This is in part a response to the American Legislative Exchange Council or ALEC’s nationwide strategy via an “emergency limitation act” to limit local control of public health during an emergency like a global pandemic. Thus far, 24 states have filed some version of this legislation, including some that have copied-and- pasted ALEC's boiler plate language. Some bills seek to remove local governments’ ability to adopt tobacco control laws, while other bills seek to prevent all local public health regulations. For a specific example, we look to Missouri where 17 bills have been filed with language centered on limiting political jurisdictions’ response to a pandemic or public health emergency. The language proposed in HB 725 is particularly alarming: it grants the governor sole responsibility in any type of response to a public health emergency and further limits local action of any kind under such circumstances. Another bill applies the legal concept of “strict scrutiny,” which would require any public health response to an emergency, like a pandemic, to be heard in a court of law. This unnecessary oversight wastes precious time and resources that could be better spent responding to said emergency rather than defending the legality of the response.

For decades, the leadership of city council members, mayors, boards of health, and other local leaders has paved the way for strong smokefree protections and has nimbly responded to emerging crises like e-cigarette use and now on-site marijuana consumption. Maintaining the capacity for local people to work with the decisionmakers in their own community to address the issues that matter most is essential to our democracy. In terms of smokefree advocacy, local control will save lives. Fortunately, progress is on the horizon. At least 14 states are considering rolling back preemptive provisions on public health issues, including tobacco prevention strategies. Through the support of a broad-based coalition and strong policy champion, advocates in Kentucky have a real chance of overturning 25 years of preemption of tobacco control and re-establishing local authority to
adopt point of sale and youth access policies.


Local smokefree preemption remains on the books in some form in 12 states, including Oklahoma, Tennessee, and Pennsylvania, as featured in ANR Foundation’s report, "Bridging the Gap: Status of Smokefree Air in the United States." It is extremely difficult to change state law to remove these limits, which makes it nearly impossible to advance meaningful smokefree policy change at the local level. This is by design. The tobacco industry wields far greater power at the statewide level where lobbyists’ influence and presence is strongly felt in Capitol buildings. The industry is less equipped and less inclined to interfere with local work. Thus, preemption is the perfect strategy for the industry to keep indoor smoking as the norm and to perpetuate the myth that secondhand smoke is inherent to certain types of businesses.


Public health advocates must remain vigilant to ensure preemption stays off the books, particularly in the form of the extremely broad and vague bills currently proposed in so many states. One of the reasons the strategy can be so effective is the way it is deployed, often in closed door meetings or added to bills in the eleventh hour or during an obscure process that does not allow the public to weigh in when we can't be present. Research shows this process is a detriment to public health and social justice. Fortunately, smokefree advocates are ready and have expertise in successfully preventing passage of preemption.