Combatting and Preventing Preemption: A Strategic Action Model

Bare M, Zellers L, Sullivan PA; Pomeranz JL, Pertschuk M.Journal of Public Health Management and Practice. March/April 2019;25:101–103. doi: 10.1097/PHH.0000000000000956.

This 4-part model provides a framework for strategies that have been used effectively by public health advocates, most notably in the tobacco control arena, who have countered and even repealed state preemption of local smoke-free policies since the late 1980s. An outgrowth of this success has been the creation of a culture in which state legislators feel increasingly uncomfortable undermining local democracy through preemption. Armed with this 4-part strategic model, stakeholders can and should create a similar antipreemption culture surrounding other public health issues to preserve local control, support democracy, and ultimately combat and prevent preemption.

State Preemption: Threat to Democracy, Essential Regulation, and Public Health

Pomeranz JL, Zellers L, Bare M, Sullivan PA, Pertschuk M. American Journal of Public Health. 2019 Feb;109(2):251-252.

Modern preemption represents the convergence of industry-sponsored deregulation and an undermining of local democracy, with potentially dangerous consequences for public health.

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. Am J Health Promot. 2019 Jan 6:890117118823163.

Communities and local stakeholders can anticipate similar industry tactics and arguments in support of preemption as identified in this study and prepare to counter and prevent preemption in their states.

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. J Health Promot. 2019 Jan 6:890117118823163.

State legislatures are increasingly using the legal mechanism of preemption to block local control and innovation over food policy issues. Yet, local governments are often in the best position to enact food and nutrition policies and especially those that address such fundamental concerns for public health as health disparities, healthy food access, food prices, and nutrition information. Therefore, states should avoid using preemption to hinder public health progress. Preemption of food policies is part of a broader effort to reduce government regulation of the food industry, including preemption of litigation. Preemption is thus one of the most important policy topics for public health and should be central to all food policy discussions and advocacy efforts. A concerted effort to fight preemption alongside food policy advocacy is necessary to change the culture of preemption in each state across the country.

State Preemption to Prevent Local Taxation of Sugar-Sweetened Beverages

Crosbie E, Schillinger D, Schmidt, L. JAMA Intern Med. Published online January 22, 2019. doi:10.1001/jamainternmed.2018.7770.

Taxes on sugar-sweetened beverages can reduce the consumption of these beverages, generate revenues, and promote public health. The beverage industry, however, is using a strategy called legal preemption that poses a serious threat to the ability of localities to levy such taxes. Preemption occurs when a higher level of government (e.g., a state) limits the authority of a lower level (e.g., a city) to enact new policies. Since the 1980s, the tobacco industry has successfully lobbied policymakers for state preemption of local initiatives restricting tobacco advertising and smoking in public places. Lessons learned from tobacco can inform public health responses to the beverage industry’s advocacy for state preemption of taxes on sugar-sweetened beverages… California’s swift passage of a law banning local taxes on sugar-sweetened beverages should be a wake-up call to the medical and public health communities… Although medical societies and the public health community have been caught off guard by the beverage industry’s recent legislative successes, now is the time to effectively counter state preemption of local initiatives to tax and regulate sugar-sweetened beverages.

 

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. 2018.

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. Government-initiated litigation could potentially support broader policy changes.

Sugar-sweetened beverage taxation in the USA, state preemption of local efforts (Letter to the Editor)

Jennifer L Pomeranz and Mark Pertschuk, Public Health Nutrition. 2018.

Public health nutrition stakeholders in the USA are at a disadvantage compared with their European counterparts because they must simultaneously advocate for SSB taxes while working to counter industry tactics including the use of preemption, misleading advertising campaigns and well-funded opposition efforts.

The Calorie-Labeling Saga - Federal Preemption and Delayed Implementation of Public Health Law

Jason P. Block, M.D., M.P.H. The New England Journal of Medicine. May 23, 2018.

The experience of calorie labeling is a cautionary tale for future policies on obesity prevention. It may seem easier to implement some of this policy through federal action than at the state and local levels. But this debacle offers a lesson to advocates looking for a quick federal solution: be careful what you wish for.

State Preemption: A Significant and Quiet Threat to Public Health in the United States

 JD, MPH, and  JD. American Journal of Public Health. 2017.

State and local governments traditionally protect the health and safety of their populations more strenuously than does the federal government. Preemption, when a higher level of government restricts or withdraws the authority of a lower level of government to act on a particular issue, was historically used as a point of negotiation in the legislative process… Read the whole article here.

The Potential for Federal Preemption of State and Local Sugar-Sweetened Beverage Taxes.

Pomeranz JL, Mozaffarian D, Micha R. American Journal of Preventive Medicine. 2017;53(5):740-743.

Federal, state, and local governments each have a role to play in protecting health. President Obama recognized that “state and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.” Yet, the federal government can hinder state and local activity through preemption, which is “when a higher level of government restricts, or even eliminates, a lower level of government’s ability to regulate an issue.” State governments can similarly preempt local law.

Assessing the Impact of Federal and State Preemption in Public Health: A Framework for Decision Makers.

Mark Pertschuk, JD; Jennifer L. Pomeranz, JD, MPH; Julie Ralston Aoki, JD; Michelle A. Larkin, JD, MS, RN; Marjorie Paloma, MPH. Journal of Public Health Management and Practice. 2012.

In public health, preemption occurs when a higher level of government takes away the power of lower jurisdictions to adopt stronger laws. This article discusses the background and rationale behind Grassroots Change’s Preemption Framework, a tool to help grassroots advocates assess and respond to state and federal preemption.

What the Institute of Medicine Says about Preemption

The committee recommends that when the federal government regulates state authority, and the states regulate local authority in the  area of public health, their actions, wherever appropriate, should set minimum standards (floor preemption) allowing states and localities to further protect the health and safety of their inhabitants. Preemption should avoid language that hinders public health action.

Read the IOM Report

Grassroots Movement Building and Preemption in the Campaign for Residential Fire Sprinklers

Mark Pertschuk, Robin Hobart, Marjorie Paloma, Michelle A. Larkin and Edith D. Balbach. American Journal of Public Health. 2013.

Home fires account for 85% of fire deaths in the United States, the majority in 1- or 2-family homes lacking fire sprinklers. Since 1978, however, a grassroots movement has successfully promoted more than 360 local ordinances mandating sprinklers in all new residential construction, including 1- and 2-family homes. The homebuilding industry has responded by seeking state preemption of local authority, a strategy previously used by other industries concerned about protecting their profits. From 2009 through 2011, 13 states adopted laws eliminating or limiting local authority over residential fire sprinklers. This study of the residential sprinkler movement adds to our understanding of grassroots public health movements and provides additional evidence that preemption can have a negative impact on public health and safety. (Am J Public Health. Published online ahead of print August 15, 2013: e1–e8. doi:10.2105/AJPH.2013.301317)

Summary: Lessons from the residential fire sprinkler movement

A one-page handout on lessons from the grassroots fire prevention movement for advocates working on other public health and safety issues.

The Impact of State Preemption of Local Smoking Restrictions on Public Health Protections and Changes in Social Norms

Paul D. Mowery, Steve Babb, Robin Hobart, Cindy Tworek, and Allison MacNeil. Journal of Environmental and Public Health. 2012.

This article presents the findings of research on the impact of state laws that preempt local smokefree ordinances, including the negative impact of state preemption on social norms change. Public health advocates are advised to learn about preemption while working towards local change.

Preemption Research & Resources (select)

A selection of research and other resources about preemption and related issues such as local public health authority.