Preemption of Local Smoke-Free Air Ordinances: The Implications of Judicial Opinions for Meeting National Health Objectives

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Abstract:

Elimination of state laws that preempt local antismoking ordinances is a national health objective. However, the tobacco industry and its supporters have continued to pursue statelevel preemption of local tobacco control ordinances as part of an apparent strategy to avoid the difusion of grassroots antismoking initiatives. And, an increasing number of challenges to local ordinances by the tobacco industry and persons supported by the tobacco industry are being decided in state supreme courts and courts of appeals. The outcomes of seemingly similar cases about the validity of local smoke-free air ordinances vary signifcantly by state. This paper examines the common and unique aspects of the decisions and the potential implications of court rulings on preemption for future state tobacco control eforts and achievement of national health objectives around the elimination of preemption. Using a search strategy developed for the Centers for Disease Control and Prevention's State Tobacco Activities Tracking and Evaluation (STATE) System, cases where a state or federal appellate level court made a fnding on the validity of a local smoke-free air ordinance or regulation were identifed in 19 states. In contrast to previous studies, we found that cases in approximately half of states were decided for local governments. We also found that across the states, courts were considering similar factors in their decisions including the extent to which: (1) the local government possessed the authority to pass the ordinance, (2) the ordinance conficted with the state constitution, and (3) state statutes preempt the ordinance.

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/j.1748-720X.2008.00284.x

Affiliations: 1: Consultant for the Center for Health Policy and Legislative Analysis at The MayaTech Corporation and an Adjunct Assistant Professor at Emory University. 2: Health Scientist with the Office on Smoking and Health at the Centers for Disease Control and Prevention. 3: consultant for the Center for Health Policy and Legislative Analysis at The MayaTech Corporation and a Senior Researcher with the Institute for Health Research and Policy at the University of Illinois at Chicago. 4: Legislative Research Associate with The MayaTech Corporation. 5: Candidate at Saint Louis University and a Research Assistant with The MayaTech Corporation. 6: Senior Legislative Analyst at The MayaTech Corporation.

Publication date: June 1, 2008

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