Impact of Preemptive Laws on Public Health

  • Date: Nov 03 2015
  • Policy Number: 201511

Key Words: Public Health Law

Abstract 

Preemption is a legislative tool whereby the federal government or a state government withdraws the authority of a lower level of government to act on a particular issue. However, state and local governments are often at the forefront of public health policy-making. State and local governments may be more responsive to the needs of their constituency and grassroots movements and can experiment with innovative solutions that might not be part of the national agenda. In fact, some of the most novel and effective public health policies have been enacted at the state and local levels. As such, preemption can have a negative impact on both the building of grassroots movements and the passage of evidence-based laws addressing a wide range of public health issues. Legislators should support evidence-based policy-making by considering the impact preemptive laws may have on state and local public health efforts.

Relationship to Existing APHA Policy Statements

Although this policy statement does not address a policy gap, it reflects concerns expressed in multiple existing policies. Two current APHA policy statements expressly recognize the harm caused by preemptive legislation and address some of the issues identified in this proposed statement. Policy Statement 9410 (Local Control of Alcohol and Tobacco Availability) noted that “alcohol and tobacco companies increasingly are seeking state preemption of local restrictions concerning alcohol and tobacco availability and promotion,” and therefore its recommendations included supporting local governments’ authority and opposing “state and federal laws preempting local governments’ ability and authority to enact their own more stringent restrictions on alcohol and tobacco availability.” Also, according to Policy Statement 8416(PP) (Increasing Worker and Community Awareness of Toxic Hazards in the Workplace) chemical companies push the federal government to enact “a weaker national standard that would preempt the stronger state and local laws….  By far, the most serious problem with the current version of the Hazard Communication Standard is its preemptive impact on existing state and local laws relating to right-to-know.” This statement thus urged that federal law not preempt state and local law unless there is a conflict between the two requirements.

Several other policies call for laws not to preempt state or local control. For example, both Policy Statement 200319 (Support for WIC and Child Nutrition Programs) and Policy Statement 20072 (Addressing Obesity and Health Disparities Through Federal Nutrition and Agricultural Policy) urge federal child nutrition programs not to preempt state or local governments from enacting stronger requirements. Similarly, Policy Statements 9808 (National Tobacco Control Legislation) and 9913 (Administrative and Judicial Tobacco Control) urge that the federal government and state governments not preempt local control over tobacco.

Problem Statement 

The legislative tool of preemption may stand in the way of progress that supports public health. This may happen at the federal level, with Congress withdrawing the ability of states and local governments to legislate, or the state level, when state legislators preempt local action. However, the ability of state and local governments to address public health issues within their populations has been essential to public health.

Local control permits elected representatives to address issues pertinent to their constituency and allows experimentation at the local level. Justice Louis Brandeis famously said: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”[1] Furthermore, “local public health ordinances are often the catalyst for new public health policy directions.”[2] For example, local clean air smoking restrictions were the model for subsequent state legislative efforts,[3] and local menu labeling laws were the impetus for state laws and eventually the federal menu label law that passed in 2010.[4]

In some cases, however, preemption can further an objective that supports public health or is necessary for national or statewide uniformity. One example that meets both of these standards is the federal prohibition on smoking on airplanes, because it protects passengers from second-hand smoke and because airplanes cross state (and international) boundaries, and thus it would be impossible to comply with different states’ laws.[5] Another example, one in which national uniformity has been preferred but is not necessary, is warning labels and other factual information requirements on packaging of products such as food, alcohol, and tobacco. National uniformity may be necessary, however, during an international or national emergency.

Preemption can have a negative impact on public health efforts. Firearm control and prevention of alcohol abuse are two examples of the devastating effects that preemption can have on public health efforts and the building of grassroots movements.[6] According to Mark Pertschuk, the director of Grassroots Change, a nonprofit organization devoted to addressing issues related to grassroots health movements and preemption: “In both cases there has been ample passion from the grassroots, but preemption has undermined any effective national grassroots strategy. As a result, alcohol prevention and gun control are worse off today than 20 years ago.”[7] For example, the Community Preventive Services Task Force concluded that restricting the density of alcohol retail outlets through local land use and zoning laws is an effective strategy to reduce the health and economic costs of excessive alcohol consumption.[8] Yet, many states preempt the ability of local governments to implement the task force’s recommendations.[8] In the area of gun control, more than 40 states broadly preempt the ability of local governments to enact stronger laws than those in force at the state level.[9] Conversely, California permits local control and now has the strongest gun control laws in the country, resulting in fewer gun-related deaths in that state than the national average.[10] 

Often, the industry that is being regulated by public health authorities urges legislators to adopt preemptive laws. This helps the industry in a number of ways. First, requirements may be enacted at the state or federal level that are weaker than bills being proposed at more local levels of government, enabling industry to avoid strict requirements. Second, a preemptive law creates uniformity of requirements so that the industry has to comply with only one set of laws rather than different laws across the country. 

Preemptive laws can effectively stop progress in public health policy-making and also eliminate the ability of local governments to act to protect their citizens. For example, the Metropolitan Board of Health of Nashville and Davidson County in Tennessee enacted a menu labeling law that was supported by the local population.[11] The health department presented evidence of the growing obesity problem in the county and conducted a survey and focus groups to support the law. However, at the urging of the restaurant industry, the Tennessee state legislature subsequently passed a law that preempted the ability of boards of health to enact regulations related to provision of food nutritional information or menus at food service establishments. The governor vetoed the law, but the legislature overrode the governor’s veto and effectively voided the Nashville/Davidson County ordinance.[12]Thus, the higher level of government simultaneously expanded its power and reduced the power of local governments while thwarting efforts to provide information to consumers.[2] In doing so, it acted against the best evidence at the time that menu labeling can have a positive impact on consumer choice.

In another example, Worth County, Iowa, sought to regulate concentrated animal feeding operations (CAFOs) in the county. The county acted because CAFOs generate a staggering amount of animal waste that can cause significant environmental problems, including concerns about air quality and contamination of lakes, streams, and underground water, and negatively affect the health of workers and the quality of life of nearby residents.[13] In 2001, the county passed an ordinance regulating air emissions, indoor air quality, and water monitoring for the county’s CAFOs. Agricultural organizations challenged the ordinance, arguing that Iowa law preempted it. In 2004, the Iowa Supreme Court found that the county’s ordinance was indeed preempted because the state legislature intended livestock production in Iowa to be governed by statewide laws as opposed to local regulations.[13] As such, Worth County was prevented from regulating CAFOs in its communities.[14]

As noted, another problem with preemption is that it may undermine grassroots movement building. Grassroots movements can change social norms, as with nonsmokers’ rights movements, and they typically involve a strategy that incorporates values of self-determination, sustainability, social change, and innovation.[15] Grassroots efforts also serve as a source of local education within communities.[16] Grassroots movements are made up of passionate citizens, but when the issue around which the movement is organized is effectively preempted, the original incentive to organize is gone and the movement may disband.[15]

Advocates, stakeholders, and policymakers may not be fully aware that a preemptive clause is being added to a bill they support. In fact, preemptive clauses are often “snuck in” through last-minute maneuvers.[16] There are many instances in which an industry attempts to “hijack or amend bills during the waning hours of the legislative session.”[16] Therefore, constant vigilance is necessary to avoid an unexpected loss of local control.

Evidence-Based Strategies to Address the Problem 

A number of strategies are effective in addressing preemption efforts that thwart evidence-based public health policy-making. For example:

  • Public health evidence can play a key role in the legislative decision-making process, including the addition of preemptive clauses.
  • Legislatures can obtain input from the public health science community to determine whether preemption could have positive or negative public health benefits. 
  • Legislators can include a “savings clause” in evidence-based laws to protect future public health legislation. A savings clause is an explicit statement that the law does not preempt lower levels of government from enacting stronger legislation to protect public health.[2]
  • Legislators can enact evidence-based laws with minimum requirements (sometimes referred to as floor preemption), allowing lower levels of government to enact laws that are stronger than the state or federal minimum requirements but not weaker than the floor established by the higher level of government.[17] This protects local efforts to enact stronger, evidence-based laws to protect public health while also accomplishing federal or state objectives.
  • Advocates and policymakers can work to actively block a preemptive law that does not support public health or is not evidence based.[15]

Opposing Arguments/Evidence 

There are several arguments in favor of preemption. There are also instances in which preemption could be beneficial for public health; these situations do not conflict with the problem identified above or the action items described below.

First, industry proponents of preemption argue that regulated industries must comply with a “patchwork” of legislation.[18–20] This may be true. However, industries do not have a constitutionally protected right to conduct business free from government regulation deemed important by local communities. The tobacco industry has noted that “we could never win at the local level.”[16] The industry understood that it would take many more resources to defeat a variety of local laws as opposed to a single law at the state or federal level. 

Second, some might argue that it is better to enact strong laws at the federal level to protect the nation. Opponents of preemption would not disagree and would support federal legislation that strongly protects public health through evidence-based strategies. However, federal mandates may not always reflect the needs of a local community, and they need not preempt stronger action at lower levels. As noted by the Institute of Medicine, state or federal legislators could instead enact strong minimum requirements allowing for more protections at the state and local levels. Because it is often more difficult to pass strong public health legislation at the federal level in the absence of state and local legislation preceding such efforts, it is important for higher levels of government to allow lower levels to experiment with solutions to national problems. Some benefits of local laws include the following: they are easier to enact, they are easier to strengthen, they can provide more comprehensive protection to match communities’ needs, they are easier to enforce, and they can serve as a source of innovation.[16]

Some might argue that it is worth agreeing to preemption if it is the only way to enact strong federal legislation. This is also a valid position. Legislators should consult with public health advocates and APHA to confirm whether a proposed law is strong from a public health perspective and to assess whether such a concession (preemption) is necessary or whether floor preemption is possible. In these instances, legislators should also explore the possibility of waivers for state and local governments seeking to achieve the same goals.

It is also true that some states are reluctant to pass strong public health laws, as evidenced by the disparate responses to Medicaid expansion under the Patient Protection and Affordable Care Act (ACA), which the Supreme Court ruled must be optional for states.[21] A related example wherein preemption might have been beneficial would have been if the ACA had mandated that changes to Medicaid among the existing population be made nationally. Although the Supreme Court ruled that Medicaid expansion must be optional, the reason was that it brought a new group of recipients into the program. Expanding the program for existing beneficiaries could have provided health benefits to those lacking them in states that did not implement the federal expansion.

There are cases in international or national emergencies during which risk-based interstate or international policies may be necessary and may lead to preemptive actions. In these situations, state and local public health needs should be considered to the fullest extent possible.

Action Steps 

  1. Federal and state legislators should ensure that there is input from the public health science community and APHA in determining whether preemptive legislation is evidence based and would have a positive or negative effect on public health. 
  2. Federal and state legislators should avoid preempting the efforts of state or local governments to further public health goals.
  3. Federal and state legislators should enact evidence-based minimum requirements (floor preemption) with strong public health protections that allow lower levels of government to act in support of public health.
  4. Federal and state legislators should insert savings clauses into legislation when possible to explicitly avoid preempting the efforts of lower levels of government in support of public health. Legislators should consult with public health advocates and APHA to confirm whether a proposed law is strong from a public health perspective and to assess whether such a concession (preemption) is necessary or whether floor preemption is possible
  5. Legislators should engage local leaders, stakeholders, and representatives of grassroots movements to gain their perspective during the legislative process. 
  6. Decision-makers should consider recommendations of local public health authorities to address local needs in the enforcement of regional, national, or international policies. 
  7. Public health and public policy education programs should familiarize their students with the legal concept of preemption and its implications, including both advantages and disadvantages, so that they can advocate appropriately.
  8. 8.Health law researchers should continue to systematically review preemptive laws and examine the relationship between preemption and population health outcomes.

References

1. New State Ice Co. v. Liebmann, 285 US 262, 311 (1932).

2. Caucci L, Penn M. Preemption of local public health laws. Available at: http://www.cdc.gov/phlp/docs/preemption-issue-brief.pdf. Accessed January 8, 2016.

3. Americans for Nonsmokers’ Rights. History of advocacy: Americans for Nonsmokers’ Rights. Available at: http://www.no-smoke.org/pdf/historyadvocacy.pdf. Accessed January 8, 2016.

4. Rutkow L, Vernick JS, Hodge JG, Teret SP. Preemption and the obesity epidemic: state and local menu labeling laws and the nutrition labeling and education act. J Law Med Ethics. 2008;36:772–789.

5. Pertschuk M, Hobart R, Paloma M, Larkin MA, Balbach ED. Grassroots movement building and preemption in the campaign for residential fire sprinklers. Am J Public Health. 2013;103:1780–1787. 

6. Gorovitz E, Mosher J, Pertschuk M. Preemption or prevention?: lessons from efforts to control firearms, alcohol, and tobacco. J Public Health Policy. 1998;19:36–50.

7. Pertschuk M. Personal communication, August 27, 2014.

8. Mosher JF, Treffers RD. State pre-emption, local control, and alcohol retail outlet density regulation. Am J Prev Med. 2013;44:399–405. 

9. Law Center to Prevent Gun Violence. Local authority to regulate firearms policy. Available at: http://smartgunlaws.org/local-authority-to-regulate-firearms-policy-summary/. Accessed January 8, 2016.

10. Grassroots Change. Violence prevention: how California beat the gun lobby. Available at: http://grassrootschange.net/a-model-for-success-how-california-beat-the-gun-lobby/. Accessed January 8, 2016.

11. Metropolitan Government of Nashville and Davidson County, Tennessee. Menu labeling. Available at: http://www.menucalc.com/menulabeling/nashville.pdf. Accessed January 8, 2016.

12. Pomeranz JL. The unique authority of state and local health departments to address obesity. Am J Public Health. 2011;101:1192–1197.

13. Worth County Friends of Agric. v. Worth County, 688 NW2d 257 (Iowa Sup. 2004).

14. Rutkow L, Pomeranz JL. Preemption and local food and agriculture policies. In: Neff R, ed. Introduction to the US Food System: Public Health, Environment, and Equity. San Francisco, CA: Jossey-Bass; 2015.

15. Pertschuk M, Pomeranz JL, Aoki JR, Larkin MA, Paloma M. Assessing the impact of federal and state preemption in public health: a framework for decision makers. J Public Health Manag Pract. 2013;19:213–219.

16. American Medical Association. Preemption: taking the local out of tobacco control. Available at: http://www.rwjf.org/content/dam/supplementary-assets/2006/09/SLSPreemption2003.pdf. Accessed January 8, 2016.

17. Institute of Medicine. For the Public’s Health: Revitalizing Law and Policy to Meet New Challenges. Washington, DC: National Academies Press; 2011.

18. National Rifle Association Institute for Legislative Action. Ohio state senate overrides governor’s veto of preemption 21-12. Available at: http://www.nraila.org/news-issues/news-from-nra-ila/2006/ohio-state-senate-overrides-br-governor.aspx. Accessed January 8, 2016.

19. National Restaurant Association. NRA: no exemption of groceries, c-stores from menu labeling. Available at: http://www.restaurant.org/News-Research/News/NRA-No-exemption-of-groceries,-c-stores-from-menu. Accessed January 8, 2016.

20. Knife Rights. Oklahoma governor vetoes knife law preemption bill. Available at: http://www.kniferights.org/index.php?option=com_content&task=view&id=249. Accessed January 8, 2016.

21. National Federation of Independent Business v. Sebelius, 132 SCt 2566 (2012).