California cities and counties want their rights back…because, as the saying goes, they’re not done using them. In this case, that means repealing preemption to restore the authority of local voters and elected officials to adopt taxes or fees on soda and other sugar sweetened beverages (SSB’s) – a difficult task under the best of circumstances.
Why (and how) did the vast majority of California’s communities get frozen out of the burgeoning soda tax movement, especially during a time when we must protect our democracy at ALL levels more than ever?
In 2018, the California Legislature buckled under industry pressure (see “Jerry Brown dined with soda industry representatives ahead of tax ban deal”) and agreed, in secret, to preemption in exchange for the soda industry abandoning a much broader statewide preemption ballot initiative to limit all authority to adopt state and local taxes in California. There are 482 cities and 58 counties in California, but only four were able to pass soda taxes before Sacramento shut the door on new soda taxes. At least 30 cities and counties had already initiated or envisioned grassroots, youth-powered campaigns for soda taxes before the Legislature, like Lucy with her football, undermined local democracy.
How can California undo the damage and regain the right to promote health and equity through soda taxes?
Soda taxes like the one adopted in Berkeley are as much about social justice as municipal income. First, soda taxes of one cent per ounce or more can significantly reduce soda consumption and the often deadly consequences of overconsumption, especially Type 2 diabetes. Second, revenues from local soda taxes STAY in those communities, can’t be diverted by the legislature, and provide sustained support for a wide range of effective health policies and programs including hands-on school gardening and nutrition activities (it may surprise some of our followers how excited children become about healthy eating when they’ve grown and prepared their own foods), as well as disease prevention programs serving exactly those who are targeted by the soda industry itself.
The history of preemption politics in California and elsewhere teaches us that without a powerful grassroots repeal movement, Sacramento insiders could agree to a compromise that short-changes the hundreds of communities that need both the direct health benefits and the home-grown funding that will quickly follow a complete repeal of state preemption. Our elected representatives in Sacramento need to hear loud and clear that we expect them to restore the authority to pass local taxes high enough to save lives and accomplish other key public health goals.
The good news is that Grassroots Change and the hundreds of grassroots advocates in our network have learned from experience how to organize and run effective movements. These “best practices” are captured in this diagram and the grassroots research behind it…
Resources & Research
Democratic Municipal Officials, February 8, 2021
- Derek Green (Councilmember At-Large, Philadelphia, DMO President)
- Mark Pertschuk gives presentation on 2021 preemption landscape.
- Ian Baltutis (Mayor, Burlington, NC) & Lauren Kuby (City Councilmember & Vice Chair, Tempe, AZ)
Webinar (November 18, 2020)
Oregon Community Rights Network (OCRN) & Community Environmental Legal Defense Fund (CELDF)
- Lindsey Schromen Wawrin (OCRN)
- Mark Pertschuk (Grassroots Change & Preemption Watch)
- Tim Gibbons (Missouri Rural Crisis Center)
- Kai Huschke, Moderator (CELDF)
State Preemption: An Emerging Threat to Local Sugar-Sweetened Beverage Taxation
Eric Crosbie, Jennifer L. Pomeranz, Kathrine E. Wright, Samantha Hoeper, and Laura Schmidt. American Journal of Public Health, Published online ahead of print February 18, 2021: e1–e10. https://doi.org/10.2105/AJPH.2020.306062)
State preemption of local SSB taxes is in the early stages but will likely scale up as local tax proposals increase. The public health community has a substantial role in proactively working to prevent preemption concurrent with health policy activity and using additional strategies successfully used in tobacco control to stop preemption diffusion.
State Preemption of Local Immigration “Sanctuary” Policies: Legal Considerations. Mark Hall, Lilli Mann-Jackson, Scott Rhodes. American Journal of Public Health. (2021)
States Pre-empt Cities Almost to the Point of Irrelevance
Over the past decade, states have preempted cities across a broad range of policy areas, including policing and health. If anything, the pandemic has only accelerated the trend.
Food & Nutrition Policy
STATE PREEMPTION LAWS THREATENS LOCAL ABILITY TO IMPLEMENT SUGAR-SWEETENED BEVERAGE TAXES
Interview with: Eric Crosbie, PhD, MA Assistant Professor School of Community Health Sciences Ozmen Institute for Global Studies University of Nevada Reno
Study looks at sugar-sweetened beverage taxes
Medical Xpress, 2/23/2021
A new research study out of the University of Nevada, Reno’s School of Community Health Sciences has just been published by the American Journal of Public Health and addresses state preemption of local sugar-sweetened beverage (SSB) taxes, issuing an emerging public health threat. Assistant Professor Eric Crosbie examines commercial determinants of health and public health policy, specifically in industries like tobacco and food and beverage.
Paid Leave & Sick Days
Pennsylvania State Rep. Seth Grove introduced legislation last month to block cities and municipalities from imposing paid sick leave requirements on businesses, even as COVID-19 cases are raging throughout his state and the country. Last week, local news media reported that the Republican lawmaker was now quarantining after exhibiting coronavirus symptoms and awaiting test results.
Climate Change & the Natural Environment
Gas ban backlash spreads across the U.S.
E&E News, 2/2/2021
The Berkeley, Calif., City Council passed the nation’s first ban on natural gas hookups for new buildings in the summer of 2019…
Dozens of other cities, mostly in California, have adopted or proposed policies to prohibit or limit gas infrastructure in new buildings. Seattle passed similar restrictions last night.
Now, Republican-led states in the South and Midwest — many of them gas-producing states — have moved swiftly to preempt local governments from following suit. [Emphasis added]
A group of Republican House lawmakers on Monday introduced legislation to remove tax exempt status from bonds issued by sanctuary cities — the latest move by Republicans to crack down on the radical immigration policy in place in liberal jurisdictions across the country
Preemption Looms Large
Americans for Nonsmokers’ Rights, 1/21/2021
High Alert: FL, TX, LA, WV, TN, KS, IA, MO
We are on high alert with advocates anticipating preemptive bill language to be filed in Florida, Texas, Louisiana, West Virginia, Tennessee, Kansas, Iowa, Missouri, and beyond. This is in part a response to the American Legislative Exchange Council or ALEC’s nationwide strategy via an “emergency limitation act” to limit local control of public health during an emergency like a global pandemic.
NPMA Legislative Day 2021: PCOs, Lawmakers to Meet Virtually
National Pest Management Association (NPMA), February 2021
For PMPs who operate in states without preemption, they are challenged with having to comply with different laws and regulations in each of the communities they service. In addition to the six states that do not have preemption, efforts are being made in Colorado, Connecticut, Florida, Massachusetts, Minnesota, New York and Wisconsin to repeal preemption.
Health Care & Public Health
“We need comprehensive privacy reform to protect Americans at all times…
The issue of a federal data privacy law has been one that has been a hotly contested topic on Capitol Hill for years, in particular following the passage of California’s landmark privacy law…
Executive Order on Promoting COVID-19 Safety in Domestic and International Travel
The White House, 1/21/2021
Preemption. [T]he heads of agencies shall ensure that any action taken to implement this section does not preempt State, local, Tribal, and territorial laws or rules imposing public health measures that are more protective of public health than those required by the heads of agencies. [Emphasis added]
Assembly-member Adrin Nazarian (D-Van Nuys) introduced legislation to eliminate the statewide preemption on local sugary drink taxes…
CALEG leaves NEWSOM behind on schools — SODA TAX wars resume…
NOT FIZZLING OUT — Soda wars: Cities could reclaim taxing power under new bill, by POLITICO’s Jeremy B. White: A measure backed by various public health groups would dissolve a statewide ban on cities implementing their own soda taxes. Legislators have decried the current statewide preemption law, which soda interests pushed through as part of a larger power play in 2018.
Fort Collins approves plastic bag ban ballot measure despite disagreement over preemption
Senator Stewart Attempts to Repeal Preemption on Single-Use Plastic Ban
West Orlando News, 2/2/2021
Bill opens way for smoking bans at Florida parks, beaches
Jackson County Floridian, 1/29/2021
Local governments could ban tobacco smoking at beaches and parks they own and Florida would prohibit smoking in state parks under a bill approved by a Senate committee on Tuesday…
From Gun Laws To Medical Marijuana: Five Florida Legal Fights To Watch In 2021
Florida since 1987 has barred cities and counties from passing regulations that are stricter than state firearms laws, a concept known as “preemption” of local gun laws. The 2011 law was designed to strengthen the preemption by adding penalties, such as the possibility of local officials facing $5,000 fines and potential removal from office for passing gun regulations.
Georgia bill clears Senate that would let state take over local election boards
Atlanta Journal-Constitution, 2/24/2021
Critics said the state already has the authority to investigate and hold local officials accountable. They say the proposal would usurp local control of elections guaranteed in the Georgia Constitution.
The Georgia House has approved a bill that would prohibit local governments from placing a ban on certain types of energy connections.
Letters: Licensing keeps guns out of dangerous hands. Indiana legislation would end it.
Lawmakers should support local control they preach
‘Government overreach’: Indy Democrats, Republican lawmakers clash over policy
In Kansas, the biggest counties have less say over their elections. Some want a change
The Kansas City Star, 1/31/2021
The controversy has prompted a reassessment of whether the state law that allows Schwab to name election commissioners in the most-populated counties is the best system for running elections. As elections grow more complex and public confidence in them is increasingly threatened by baseless allegations of fraud, some Democrats and Republicans are calling for a change.
Survey: Pandemic hasn’t curbed teen e-cig use
Two bills filed for consideration in Frankfort would give local governments the ability to regulate where and how tobacco products, including e-cigarettes, are sold and marketed in their communities. The KYA survey found 70% of middle school and high school students support giving local governments authority to regulate tobacco sales. [Emphasis added]
“Having that fee in place is a deterrent. And it helps consumers get in that habit of bringing their own bags in, but again, during COVID, that is not something that employees or consumers feel comfortable with,” Locklair said.
She also wants to see statewide preemption in the legislation, so all of Maryland has to follow the same rules. [Emphasis added]
SJC takes on marijuana license process
The Salem News, 2/4/2021
SALEM — Four years after voters legalized recreational marijuana in Massachusetts, there’s still a lot of haziness when it comes to who gets the final word on whether a business can sell cannabis.
Advocates push statewide ban on plastic bags
The Eagle-Tribune, 2/2/2021
The food industry supports a uniform ban on plastic bags to replace the patchwork of local restrictions and create an “even playing field” for businesses. [Emphasis added]
Judge orders Batavia compost site to be cleaned up by March 1
The defendants maintained that the Michigan Right to Farm Act preempts the local zoning requirements and therefore precludes a nuisance finding. [Emphasis added]
Mississippi Senate Passes Strong Preemption Reform Bill on 35 to 16 Vote!
Preemption laws serve to prevent localities, and with this bill, state agencies, from enacting prohibitions that conflict with state law. Further, SB 2107 will curb localities’ authority to restrict the possession, transfer, sale, transportation, storage, display, carry, or use of firearms during declared civil emergencies. [Emphasis added]
Missouri bill targeting local emergency orders withdrawn – but very much alive
The Leader, 2/11/2021
At least six bills seeking to restrict local officials from imposing emergency health orders that curtail business operations have been swirling about the Missouri Senate since the 2021 session began in early January.
Our Opinion: Local control outweighs bad dog decisions
News Tribune, 2/23/2021
“What this bill seeks to do is deregulate governments throughout the state of Missouri,” Gregory told Missouri News Network. “It is wrong for a government to come into your home and tell you what kind of dog, by breed, you can have.”
We generally agree. But we believe that’s a decision best left up to local/county governments, not the state. [Emphasis added]
Hypocrisy of the Republican party
The Missoulian, 3/1/2021
The Republican Party campaigned on individual freedoms, local control, less government. Why, then are there so many bills that decrease our personal freedoms and our local control.
Montana House Supports Ban To Repeal Local Control Of Flavored Electronic Cigarettes
Vaping Post, 2/2/2021
Bill will stop new smoke-free laws (Letter to the Editor)
A local governing body, local board of health, or the department may not enact or enforce any regulation, rule, or ordinance that alters, expands, or modifies the prohibitions provided for in 50-40-104 or that alters, expands, or modifies the definitions provided in 50-40-103.
NEW SECTION. Section 1. Alternative nicotine products and vapor products — rulemaking and local ordinance prohibition
House endorses repeal of local vape product bans
Independent Record, 1/29/2021
A bill to prohibit local governments from putting regulations on vaping and alternative nicotine products got the initial approval from the Montana House Friday, a proposal carried by a lawmaker who co-owns three vape shops.
The Assault on Local Control
Flathead Beacon, 2/26/2021
Ricketts pitches property tax measure to Nebraska panel
Tulsa World, 1/27/2021
OMAHA, Neb. (AP) — Nebraska Gov. Pete Ricketts pitched his property tax proposal to a legislative committee on Wednesday. warning that voters might take the issue into their own hands if lawmakers don’t cap how much local governments can collect.
House Bill 307: Over recent years, numerous local governments have attempted to enact gun control ordinances in violation of the current state firearms preemption law, putting law-abiding gun owners at risk. This piece of legislation aims at strengthening New Hampshire’s preemption law to protect New Hampshire gun owners. Further, HB 307 allows anyone adversely impacted by an ordinance or regulation to file suit against the county, city, town or government entity that enacted the violation (after notice is given). [Emphasis added]
New Mexico bill would give state more authority on air pollution from oil and gas if passed
Carlsbad Current-Argus, 1/28/2021
“We believe local communities, impacted communities know best what additional protections are needed to protect their health and the places they live…”
Editorial: As written, NM sick-leave bill hurts business recovery
Albuquerque Journal, 2/13/2021
Business leaders sought in vain to include several fair amendments – exemption of very small businesses, a tax credit for all other affected small businesses, recognition of existing leave policies that a company may have as an adequate substitute, a delayed/staggered implementation to give businesses of different sizes ample opportunity to prepare, a fair process for resolving leave disputes, and a statewide preemption of local paid leave legislation to avoid a patchwork of differing local ordinances.
Erie County Soil & Water District announces ‘Erie County Envirothon 2021’
The task at hand for student teams in 2021 is to develop a plan for “Water Resource Management: Local Control and Local Solutions.”
Jimmy Dixon says he will run again in 2022
Duplin Times, 2/25/2021
“Right to Farm” laws, as Dixon refers to them, are also a concern.
“Nationally and locally, our right to farm has been threatened over the last few years by these various lawsuits claiming nuisance and now even trespass,” he said. “I want to be able to firm up in North Carolina our right to farm legislation, and that process is ongoing. It probably won’t ever stop. That’s the second most important reason that I want to remain in the GA is to improve our right to farm laws.” [Emphasis added]
North Dakota House advances bill barring government from mandating masks
Grand Forks Herald, 2/22/2021
OKC officials object to measure weakening local health department
The Oklahoman, 3/1/2021
“And they’re all replaced almost immediately. While we need our state and federal partners to help us with that, we also need the authority to pass our own laws that reduce violence. The Pennsylvania General Assembly has not only refused to enact sensible gun regulations at the state level, but it also continues to block cities from enacting their own local gun laws,” Kenney said. [Emphasis added]
Looking to boost minimum wage, Pa. Dems want to end preemption. That’s a heavy lift
Pennsylvania Capital-Star, 1/6/2021
If the bill becomes law, local school board members, as well as the governing body of charter schools, could consult health officials but would have the authority to determine whether to open or close schools during an emergency, such as the COVID-19 pandemic or a natural disaster. The governor would also hold veto power to mandate school openings under the bill.
Crime Commission supports changing residency requirements for first responders
“During our discussion, it was obvious that many Board members were sensitive to the issue of state government preempting local decision-making. However, most Board members see enactment of the legislation as a necessary step to address the severe shortage of local law enforcement officers,” said Ben Adams, Board chair.
State Versus Local Control Underpins 87th Texas Legislative Session
The Texan, 1/27/2021
“I thought Republicans believed in local control.”
Such a retort is frequently recited in and around Texas politics — a theme that permeates issues ranging from taxation and energy policy to police department funding and property rights.
City prepares for 87th Texas Legislative Session
Valley Morning Star, 1/10/2021
A brief overview of the issues pertinent to the City of Brownsville for this upcoming legislative issues include…
>> Local Control and State Preemption. [Emphasis added]
Utah House committee advances bill to block cities and counties from creating firearm regulations
The Salt Lake Review, 2/22/2021
A new firearm preemption bill that began its journey through the Utah Legislature on Monday would, if ultimately approved, unravel a Salt Lake County rule requiring federal background checks at gun shows held at county-owned facilities such as the Salt Palace Convention Center or Mountain America Expo Center.
Communities want more control over their Legislature-granted charters
““A greater degree of self-governance would allow us to identify and address issues locally without having to ask the state for permission over and over again,” Brattleboro Town Manager Peter Elwell told his select board at a recent meeting.
Knife Rights Vermont Knife Law Preemption Bill Introduced
Our View: Keep election control local
Control over local elections should remain with local leaders and communities.
Senate Bill 1157 passed the Senate last month after a tie-breaker vote, and is sponsored by Sen. Lionel Spruill, D-Chesapeake. The bill would impact all mayoral, governing body and school board elections held after Jan. 1, 2022.
Last year, as part of the anti-gun legislative package that was passed in Richmond, Virginia’s preemption law was partially gutted. Previously, Virginia did not allow local governments to enact regulations on firearms that are more restrictive than what comes out of Richmond. Now, however, cities and counties have the ability to prohibit firearms where government business takes place.
Appeals court says Edmonds can’t enforce safe storage gun law
State law “unambiguously” pre-empts the city from enacting its own firearm rules, the panel concludes
Sawant-Frame dispute resurfaces disagreements over preemption and political tactics
Washington State Wire, 2/12/2021
The dispute between the officials is a continuation of a criticism that Sawant, a Socialist, has leveled against Democratic state legislators this session and last. Sawant has claimed that Democrats in Olympia are attempting to preempt, limit, or phase out taxes passed by the City of Seattle.
Washington State Gun Control Law Struck Down
Rather than ruling on whether or not the City of Edmonds had the ability to restrict how firearms are stored, the plaintiffs argued that existing state law bans local and municipal governments from enacting their own laws that go above and beyond state regulations.
West Virginia’s gets overall ‘F’ grade in latest State of Tobacco Control report
The report gives West Virginia a “D” for its strength of smoke-free workplace laws which was mostly attributed to the large percentage of the state’s population covered under local regulations.
Walters: Local sales tax debate one worth having
The Gazette, 2/28/2021
“County and municipal levy limits have restricted the ability of our local governments to sustain basic county and municipal services—including roads, fire protection, social services, and police protection. … [T]he Governor proposes to expand revenue options available to counties and municipalities—but only if residents give their approval.
Anticipating Statewide Mask Mandate Repeal, Cities And Counties Craft Local Ordinances
Wisconsin Public Radio, 2/3/2021