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Preemption Threat Rises as Legislative Sessions End

April 8, 2014

e-cig v cigIn Kentucky, the state legislative session is projected to end on April 15. In Alaska it’s April 20, and in Tennessee, it’s May 1.

These dates mark one of the most risky periods for grassroots public health advocates, because the last weeks and days of the legislative session are one of the easiest times to sneak preemption into legislation with minimum public scrutiny.

The public health community always needs to be vigilant in protecting the authority of local communities to adopt public safety and health protections that are stronger than those at the state or federal levels. And the final days of the legislative session are an especially important time for preserving local control and authority.

As our interactive state Preemption Map shows, we’re already contending with state preemption of local policies addressing food and nutrition, tobacco, violence, and paid sick days. We’ve also recently reported on the impact of state preemption on factory farms and fracking.

With a growing grassroots movement for local laws addressing electronic cigarettes, the tobacco industry is turning once more to preemption, a widely used past tactic. On March 27, a Florida House committee passed preemption of local e-cig ordinances. We should assume that other states will follow.

As always, public health advocates should expect preemption to become part of any proposed public health legislation at the federal or state levels even if it’s not part of the original bill. They should never assume that a bill is safe or that the sponsor can prevent preemption from being added during the process.

Our newest advocacy tool, Best Practices: Tracking and Countering the Supporters of Preemption, identifies three common legislative scenarios that public health advocate should be aware of:

In the Midnight Hour

Preemption is often added to good legislation very late in the legislative session. That means supporters of a good bill must quickly change their position to “oppose” and communicate that change to colleagues and the media.

The Old Switcheroo

Another tactic is amending preemption of local authority over one issue into a bill on an unrelated topic. Because supporters of the original legislation (e.g. violence prevention advocates or a plumbers’ trade association) are primarily invested in their own issue, they are usually unwilling to oppose their own bill to stop preemption in another policy arena (e.g. paid sick days or fire prevention).

The Weak Link

Lobbyists for industry often try to “divide and conquer” in order to pass preemption. Typically, this means preemption supporters identify one or more pro-health group(s) that they consider “weak links” who will continue to support legislation even with preemptive language.

For more information about tracking and countering state preemption, see our new best practices tool.