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.

Editorial: Public Health Policies: Go Local!

Bishai, DM, Frattaroli S, Keshia M. Pollack KM. Editorial: Public Health Policies: Go Local! American Journal of Public Health: October 2013, Vol. 107 (5)672-674. doi: 10.2105/AJPH.2017.303682

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.

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 & References (select)

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