Facebook Live: Preemption in Public Health
NYU College of Global Public Health
Join us on a new Facebook Live in which we speak with Dr. Jennifer Pomeranz, Assistant Professor of Public Health Policy and Management, about the role of preemption in Public Health and its potential consequences.
February 6, 2019, 12-12:30 Eastern Time
Register online
State Preemption of Food and Nutrition Policies and Litigation: Undermining Government’s Role in Public Health
Jennifer L. Pomeranz, JD, MPH, Leslie Zellers, JD, Michael Bare, MPH, Mark Pertschuk, JD. American Journal of Preventive Medicine (in press).
Conclusions: State preemption may hinder public health progress by impeding local food and nutrition policies and government-initiated litigation. Local governments are in a prime position to address fundamental concerns, such as reduction of health disparities, the provision of nutrition information, access to healthy food, and the cost of unhealthy food.
“State Preemption: Threat to Democracy, Essential Regulation, and Public Health”
Jennifer L. Pomeranz, JD, MPH, Leslie Zellers, JD, Michael Bare, MPH, Patricia A. Sullivan, Mark Pertschuk, JD. American Journal of Public Health (February 2019, Vol 109, No. 2).
Modern preemption represents the convergence of industry-sponsored deregulation and an undermining of local democracy…State legislatures have gone so far as to eliminate their own ability to act on a wide range of issues while preempting local control over these same issues. States also have enacted punitive preemptive measures [“super-preemption”] under which local governments and officials can be subject to civil and even criminal penalties for adopting legislation that may be contrary to state law.
“Key Drivers of State Preemption of Food, Nutrition, and Agriculture Policy: A Thematic Content Analysis of Public Testimony”
Jennifer L. Pomeranz, JD, MPH and Mark Pertschuk, JD. American Journal of Health Promotion (2019).
This study provides new evidence on the arguments made in support and opposition to preemption of food and agriculture policy. Like previous research, we found that proponents of preemption primarily argued that statewide or even federal standards were preferable and that preemption was necessary to protect businesses and consumers. Conversely, opponents primarily argued that local control was necessary and beneficial for local businesses, communities, and community members using arguments related to local democracy, public health, and healthy food access.
National
Broadband & Wireless
FCC’s 5G order faces further scrutiny in courts, Congress
SmartCitiesDive, 1/25/2019
At a panel discussion at the U.S. Conference of Mayors’ (USCM) Winter Meeting in Washington, DC, elected officials said while they want 5G technology in their cities, they also want to retain local control over their infrastructure and rights-of-way. “I like to call it local freedom: local freedom to govern ourselves,” Plano, TX Mayor Harry LaRosiliere said.
Big Tech Could Benefit From Onerous Data-Privacy Legislation, Experts Say
The Epoch Times, 1/25/2019
Key to Rubio’s proposal is a pre-emption feature that “shall supersede” any state laws or relevant provisions.
Although he never mentions the California Consumer Privacy Act in his op-ed or bill press release, the Florida Republican seems committed to overriding it. The California law was approved by the Democratic-controlled state legislature and signed into law by former Gov. Jerry Brown.
Rubio privacy bill reignites pre-emption debate
Politico, 1/18/2019
Privacy flare-up: Sen. Marco Rubio’s (R-Fla.) privacy bill is sparking fresh debate about whether a federal data protection law should override state regulations.
Experts: Pre-emption in Rubio Data Privacy Bill May Make It Difficult to Pass
Law.com, 1/17/2019
Onetime presidential hopeful Sen. Marco Rubio, R-Florida, introduced a data privacy bill for what would be called the American Data Dissemination (ADD) Act seeking pre-emption of existing state laws, which experts say will make it difficult to pass.
Public Safety
Federal Agency Preempts California’s Meal and Rest Break Rules for Property-Carrying Commercial Drivers
The National Review, 1/24/2019
In an order with significant implications for motor carriers, the Federal Motor Carrier Safety Administration (FMCSA) concluded that California’s meal and rest break rules are preempted by federal transportation law and may no longer be enforced by the State of California where the driver is subject to federal hours-of-service (HOS) requirements. Specifically, on December 21, 2018, the FMCSA found that “California may no longer enforce the [meal and rest break rules] with respect to drivers of property-carrying [commercial motor vehicles] subject to FMCSA’s HOS rules.” On December 28, 2018, the order was posted in the Federal Register.
California
Berkeley Implements Strict Law to Eliminate Disposable Foodware
NextCity, 1/25/2019
Recently, other cities have taken partial steps to address disposable food-ware. New York enacted a ban on styrofoam food containers at the start of this year. In July 2018, Seattle became the first big city to ban plastic straws. But Berkeley is the first city to push for eliminating all single-use disposables. Other cities seeking to ban single-use plastics, such as Austin and Salt Lake City, have faced opposition and pre-emption at the state level. [Emphasis added]
California Rule Will Allow Marijuana Deliveries in All Areas
WeedMaps.com, 1/17/2019
California endorsed a rule Jan. 16, 2019, that will allow home marijuana deliveries statewide, even into communities that have banned commercial cannabis sales.
The regulation by the state Bureau of Cannabis Control was opposed by police chiefs and other critics who predict it will create an unruly market of largely hidden marijuana transactions, while undercutting control by cities and counties.
Idaho
State reps show their hand
Moscow-Pullman Daily News, 1/26/2019
Rep. Ilana Rubel, D-Boise, introduced two bills seeking to repeal state laws that prevent cities from adopting bans on plastic bags or raising the minimum wage.
Iowa
Master Matrix meeting scheduled for Jan. 29 at Gates Hall
Ames Tribune, 1/24/2019
The master matrix is a scoring system that can be used to evaluate the siting of proposed confinement feeding operations (CAFOs). Counties that adopt a construction evaluation resolution can implement the master matrix and must re-adopt a resolution annually between Jan. 1 and Jan. 31 to continue using the system.
Producers must have 50 percent or a minimum of 440 points and at least 25 percent of the available points in each of the three subcategories of air, water, and community impacts to pass the master matrix.
This year, 23 out of 25 counties have adopted additional resolutions to enforce stricter scoring standards and increased local control of the master matrix.
Michigan
Clinton Township lawmaker proposes mandatory kindergarten
Macomb Daily, 1/24/2019
In February 2017, Sowerby proposed a similar bill that required mandatory full-day kindergarten for all Michigan children five years and older. That bill failed to even receive a hearing in the Republican-controlled Education Committee and died for lack of support. The current bill would return some local control to school districts by letting them choose to offer either a full day of kindergarten or a half day.
Nebraska
LB736 – Provide restrictions on occupation taxes, license fees, and regulation by counties and municipalities
(2) Beginning January 1, 2020:
(a) No occupation tax or license fee imposed under this section shall be greater than twenty-five dollars annually;
(b) No occupation tax or license fee shall be imposed by a city of the primary class on a profession or business that provides goods or services unless the profession or business was subject to an occupation tax or license fee under this section on January 1, 2020; and
(c) No licensing requirements shall be imposed by a city of the primary class on any profession or business which is subject to state licensing requirements.
Read the full bill
Progress 2019: A look at the county’s tool for evaluating livestock operations — including Costco’s
Fremont Tribune, 1/26/2019
Cattlemen select priority bills for 2019 session
Tri-State Livestock News, 1/25/2019
LINCOLN, Neb. (January 25, 2019) – Nebraska Cattlemen (NC) Board of Directors met this week in Lincoln for their annual legislative meeting…
After much discussion about agricultural challenges across the country, NC took a position to support and prioritize LB 227, introduced by Senator Dan Hughes. The bill would strengthen existing nuisance protections for Nebraska agriculture operations under the Nebraska “Right to Farm Act”. Nebraska Cattlemen worked directly with Senator Hughes to add new terminology regarding changes to agricultural operations while still following all local zoning laws and regulatory permitting requirements. NC strongly believes this bill is important for livestock expansion and economic development in Nebraska and will continue to work with Senator Hughes on the bill’s progression.
New Jersey
Opinion
NJ bill seeks to shield farmers from certain legal challenges
New Jersey Assembly Republicans, Monroe Now, 1/26/2019
The Assembly agriculture committee on Jan. 24 advanced Assemblyman John DiMaio’s legislation to allow farmers to recover costs for defending frivolous civil cases.
This bill (A810) empowers farmers who prevail in court to collect reasonable costs and attorney fees from plaintiffs behind the allegations.
North Dakota
Counties vote “no” on bill limiting precinct, polling place changes
West Dakota Foc.com, 1/25/2019
Oklahoma
Bill would raise Oklahoma’s minimum wage to $10.50
The Journal Record, 1/23/2019
Some Republicans, business leaders and economists contend it will lead to job losses and reduced investment in Oklahoma. On the flip side, narrowing the gap between those at the bottom of the pay scale and those in the middle could pull more people out of poverty, increase consumer spending and generate more tax revenue for local, state and federal government, Blatt said…
But convincing the Republican majority in the House and Senate to impose a higher minimum wage for Oklahoma businesses will be difficult for the bill’s proponents.
“We have not seen Republicans in Oklahoma rally behind the minimum-wage increase,” Blatt said. “In fact, the only action the Legislature has taken on this issue in the last 10 years was to pass a local pre-emption law to prevent any city from raising the minimum wage locally.” [Emphasis added]
Pennsylvania
A closer look at the legal arguments for and against Pittsburgh’s gun control proposals
The Incline, 1/24/2019
Jon Vernick, a professor at the Johns Hopkins Bloomberg School of Public Health and a member of the school’s Center for Gun Policy and Research, said there are two primary legal hurdles facing the City of Pittsburgh’s new gun control proposals.
One involves the scope of the Second Amendment, with Heller an all-but-certain touchstone.
Another involves Pennsylvania’s preemption clause, which expressly forbids municipalities from enacting their own gun control measures. Vernick said the latter isn’t necessarily as open-and-shut as it sounds.
Supporters, opponents pack City Hall to sound off on Pittsburgh’s proposed gun control legislation
The Incline, 1/25/2019
Supporters of Pittsburgh’s push for local gun control urged City Council to press on despite potential legal consequences, while opponents vowed to fight the legislation in an impassioned and occasionally strident four-hour public hearing on Thursday.
Carolyn Ban, a Dor Hadash congregant and member of the new Squirrel Hill Stands Against Gun Violence group, was the first to testify before council members. In tearful testimony, Ban said local governments must wage the fight for gun control absent state or federal action on the issue.
South Carolina
Let Pharmacists Prescribe Birth Control Pills, Says GOP Senator
Free Times, Columbia, SC, 1/18/2019
A Republican state senator wants to let pharmacists prescribe birth control pills, allowing women to skip a trip to the doctor in some cases.
With his libertarian bent, S.C. Sen. Tom Davis of Beaufort has sometimes found himself at odds with his party. For example, he’s been the legislature’s most active proponent of legalizing medical marijuana, and finds a libertarian basis for supporting local bans on plastic bags and other environmental measures. [Emphasis added]
Texas
Baytown legislative priority: ‘Local control’
The Baytown Sun, 1/24/2019
Coinciding with the start of the 86th Texas Legislative Session, Baytown council is considering a resolution about legislative priorities concerning the city.
“There are bullet points about what concerns us, and what we are hoping for from the Legislature, but it boils down to local control,” said City Manager Rick Davis. “The bottom line is Austin doesn’t like telling them Washington telling them what to do and our citizens expect when they elect local government leaders that they will be allowed to lead and make decisions with their citizens for Baytown. Being governed by a city many hours away is not ideal.”
Commissioners outline key legislative issues
Temple Daily Telegram, 1/22/2019
Leave revenue caps alone
Some legislators are looking to impose a cap on the amount of revenue that local governments can collect.
“There are multiple reasons why that is misguided public policy and it presents a one-size-fits-all solution. It also … indirectly transfers control more to Austin and less local control,” Blackburn said
The county judge said a revenue cap currently exists — it’s called the 8 percent rollback rate. If a local government exceeds that rate, voters can petition for an election to roll back to the previous year’s tax rate…
“(The state needs to) recognize that a solution already exists if local residents believe their local governments have not been fiscally responsible or responsive — it’s called an election,” Bell County’s legislative position statement reads. [Emphasis added]
Virginia
House Republicans Set To Kill Off Every Gun Control Bill From Democrats
The Republican Standard, 1/28/2019
In the 2017 session, the Republican majority in both houses of the General Assembly killed 80 pieces of gun control legislation forwarded by Democrats. Three weeks into proceedings on Bank Street, House Republicans are tracking just as well as last year.
The progressive gun control bills that have been defeated so far this year include…
H.B. 1992, patroned by Delegate Cia Price (D-Newport News), which was set to eliminate state preemption of local firearms ordinances, giving localities the ability to adopt a patchwork of inconsistent gun regulations across the Commonwealth. [Emphasis added]
Washington
Effort to regulate plastic bags across Washington state underway
KING5News, 1/24/2019
If approved, the bill would preempt local ordinances. A number of local jurisdictions in Washington state have passed ordinances that regulate the use of single-use plastic carry-home bags. If approved, SB 5323 would preempt local bag ordinances. It would also allow local governments to increase the pass-through charge on the recyclable bags.
SB 5323
HB 1205
NEW SECTION. Sec. 6. (1) Except as provided in subsection (2) of this section, a city, town, county, or municipal corporation may not implement a local carryout bag ordinance. Any carryout bag ordinance that is in effect as of the effective date of this section is preempted by this chapter, as of the effective date of this section.
(2)(a) A city, town, county, or municipal corporation may, by ordinance, increase the amount of the minimum pass-through charge established in section 3(2)(b) of this act.
(b) A city, town, county, or municipal corporation ordinance in effect as of January 1, 2019, is not preempted until January 1, 2020.
Opinion
LETTER: Gun control advocates pursuing state agenda
Peninsula Daily News, 1/25/2019
The Alliance for Gun Responsibility appears to be gloating over the passing of I-1639 that was bankrolled by billionaires and plans to submit a new list to the Washington Legislature “to keep us safe from gun violence.”
The most egregious of this list includes abolishing the state preemption, imposing new firearms prohibitions, destruction of firearms by the Washington State Patrol and expanding “gun-free zones.” [Emphasis added]
Wyoming
Commissioners association sides with local control
Jackson Hole Daily, 1/25/2019
Legislative roundup
Jackson Hole News & Guide, 1/23/2019
SF 49: County zoning authority — private schools
This controversial bill, which originated with Jackson Hole Classical Academy, would strip counties’ zoning power over private schools. It’s making headway in the Senate. With one reading left, it’s likely to pass the chamber and head to the House.
Why are GOP legislators gunning for local control?
WyoFile, 1/22/2019
Wyoming gun-rights activists are staring down the barrel of defeat for a bill that would repeal gun-free zones at most public facilities in the state, and they are steamed…
The measure is sponsored by Sen. Anthony Bouchard (R-Cheyenne) and is the latest skirmish in his years-long battle to allow anyone with a concealed carry permit to bring their guns to school, college campuses, governmental meetings, sporting events and anyplace else he can think of. About the only publicly funded places where guns would still be banned are courtrooms.
The Tea Party and other conservative groups and individuals are upset because SF75 was assigned to the Senate Judiciary Committee, where it will likely die.
Opinion
Winninger: Reduced local control is not the Wyoming way
Letter to the Editor, Casper Star-Tribune, 1/27/2019
We here in Wyoming value our freedom and resent efforts by others to limit our choices. The proposed law wants to take away local control. Instead of thousands of Wyoming citizens making the decisions that affect their own communities in discussions within their own communities, the law wants to give the right to decide to only a few well-connected, vocal legislators. I oppose the efforts of a few to limit local control.
