The State of Preemption

April 10, 2019

Many policies that help make communities healthier start locally. But what if your state lawmakers suddenly passed legislation that took away the ability of community members, city councils, school districts, and counties to help prevent heart disease, stroke, and type 2 diabetes? Some states have already passed laws that stop, limit, or discourage local communities from enacting commonsense policy solutions that help create healthier environments.

Policies that stop, limit, or discourage local communities from enacting policy solutions are referred to as “preemption.” Voices for Healthy Kids works to oppose preemption and believes it is possible for advocates to stand up to industry opposition, as seen in the progress from the tobacco control and minimum wage advocates below:

 

Montana:

In Montana, the American Heart Association was able to stave off a harmful preemption bill that would have prevented local boards from passing tobacco regulation. Montana Senate Bill 179 was an attempt to remove local authority over clean indoor air. This would have removed nine counties’ additions of e-cigarettes and tobacco setback rules – a decade’s worth of public health work. Together with the League of Cities and Towns, American Cancer Society Cancer Action Network, and public health officials, advocates were able to convince House members to vote against this harmful bill and maintain local authority over clean air.

 

Colorado:

HB19-1033, “Local Governments May Regulate Nicotine Products,” was signed into law by Governor Jared Polis on March 28, 2019. This bill makes tremendous progress in rolling back current tobacco preemption that has been the law in Colorado since the 1970s. Sponsored by Assistant Majority Leader Representative Chris Kennedy, Representative Kerry Tipper, Assistant Majority Leader Senator Rhonda Fields, and Senator Kevin Priola, this bipartisan bill is a major step forward in protecting the health of all Coloradans, and ensuring municipalities can further regulate tobacco products. This bill makes major progress by giving authority to counties to regulate the sale of tobacco, allowing them to pursue policies such as raising the age of purchase to 21 or raising taxes, removing the fiscal penalty for municipalities who implement fees or licensure on cigarettes, and removing the fiscal penalty for municipalities who attempt to increase tobacco tax.

 

West Virginia:

Clean indoor air regulations in West Virginia are enacted by local boards of health, whose authority has been upheld by the WV State Supreme Court.  All 55 of the state’s counties have a clean indoor air regulation, while 35 of these counties are covered by a comprehensive regulation.

During the 2019 legislative session, the American Heart Association and its coalition partners, including ACS CAN and American Lung Association, overcame a challenge that would have removed and preempted veterans’ organizations from local clean indoor air regulations. Additionally, the legislation would have prevented additional local regulation on the sale, marketing or use of tobacco products. The AHA and its partners led the effort to remove preemption from the bill. Having experienced preemption efforts previously, the AHA incorporated the issue into the state lobby day, pushed legislators on the issue, and had a volunteer testify before the Senate Judiciary Committee.

As a result of the efforts of the coalition, the preemption language on clean indoor air and the language on the sale, marketing or use of tobacco products was stricken from the bill via a floor amendment.

 

Maryland:

Recently, the Maryland General Assembly voted to override Gov. Larry Hogan’s veto of the Maryland “Fight for $15” Minimum Wage Bill. By passing the measure, Maryland became the sixth state in the nation to make $15 the minimum wage and continues to empower communities to act locally. LOCAL Maryland, a coalition of advocacy organizations, including the American Heart Association, 1199SEIU, the Maryland State Conference of NAACP and Sugar Free Kids Maryland, led an effort to ensure that the bill was passed without preemption amendments.

The coalition utilized multiple tactics, including strong equity messaging that informed legislators about the negative impacts of preemption on communities of color. Prominent local legislators spoke out against preemption in a Washington Post Op-Ed and letter to legislators. LOCAL Maryland successfully prevented the threat of preemption by working alongside many partners on issues that everyone came together to support. With the passage of “Fight for $15,” the state’s local governments can to continue to respond to the unique needs of their residents so they can earn fair wages and cover basic living costs.

 

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