Smoke-free air law: State case law and legislation on the issue of preemption

The National Cancer Institute's State Cancer Legislative Database (SCLD) Program analyzes and reports laws addressing various cancer-related topic areas, including tobacco control. SCLD also contains records for state case law decisions involving tobacco control preemption. Preemption refers to the superseding of a local (e.g., city, town, or municipality) ordinance by a state law. Seventeen states have issued court decisions addressing preemption in tobacco control law. Under preemption, if a state has passed a law restricting, prohibiting, or otherwise controlling tobacco use in public places (e.g., in restaurants, bars, and workplaces), then its local governments may not pass laws that are more restrictive. Only six of these decisions have determined that the law at the state level took precedence over local ordinances. The remaining rulings have upheld the local tobacco control laws, finding that they either did not directly conflict with the state law, or that the state law was not intended to exclusively regulate the subject of indoor smoking. Preemption has been an obstacle for localities seeking to improve the health of their residents by regulating smoking in public places. However, nine states subsequently passed laws banning smoking in public places after their courts issued decisions addressing preemption of local tobacco control laws. Three of these new state laws include language specifically permitting localities to adopt more restrictive ordinances, and one state law explicitly supersedes local laws. This presentation will discuss the role of preemption in comprehensive state tobacco control law and review relevant state case law and corresponding legislation.