January 18, 2019 Preemption Watch Newsletter


“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. Stakeholders and advocates across public health topic areas can work together to present a stronger opposition to preemption and support minimum standards that strengthen the health of all communities.

“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. Opponents made the majority of arguments and engaged in persuasive messaging. Nonetheless, Kansas enacted this law, broadly preempting state and local control over multiple food and nutrition policy and agricultural topics. This indicates that more is relevant to passage of preemption than the frequency of sophisticated messaging at the hearing stage. Specifically, 3 pivotal key themes emerged that shed light on some of the true underlying issues that drove passage of preemption in Kansas.

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