Preempting Health

Many years ago I was associated with a tobacco control coalition in a local Kentucky community. Among all the things we wanted to do was pass a local ordinance banning smoking in public places. We were told that state law didn’t permit such an ordinance because tobacco legislation at the state level precluded tobacco related legislation by cities and counties in the State. This illustrates the concept of preemption (pronounced pre-emption).

Preemption is often the bane of health-related policy. It is inserted into legislation or regulations, at the federal or state level, to prevent independent rules being put in place at a lower level of government. Most often, preemptive language is inserted into government policies during “back room” negotiations. Often these dealings represent corruption in which special interests manipulate the democratic process for their own benefit.

Why do corporations or organized industries seek to preempt policy making at the state or local level? Usually it is because such policies have a real or imagined harmful effect on business activities. Lobbyists for industries often believe that it is easier to bring about preemption with a relatively weak rule at a higher level, rather than having to deal with all the entities at the lower level.

In the case of my tobacco experience, the tobacco companies were convinced that public smoking restrictions would hurt their profits. Of course they couldn’t say this publicly and expect a very sympathetic response from communities, so they would disguise their real motives by talking about job losses and the problems caused if every community had different rules regarding public smoking. As an aside, both of those arguments have been shown to be bogus.

Our first step was to build support for challenging preemption at the state level. There was a campaign to get individuals to sign petitions, demanding that state government change the preemption restriction. At the same time, local governments were asked to pass resolutions, establishing the principle that cities and counties should be able to determine their own rules for public smoking.

Ultimately is was determined that the specific tobacco preemption language was not consistent with the Kentucky state constitution. This created a legal pathway for local smoking ordinances. Since that time there has been a steady stream of communities deciding that banning public smoking is right for them. Currently about half the State’s population is covered by a smoke-free ordinance, though a minority of local jurisdictions has enacted such ordinances. Public smoking bans are opposed for a number of reasons, but eliminating preemption language in the state statute has made it possible for advocates on both sides to work through the democratic process.

Whether the issue is local regulation of smoking, school food service rules, community jurisdiction over large hog farms (called concentrated animal feeding operations), or many other issues, preemption is a barrier to good public health and is rarely in the public’s interest.

On an interesting final note, Kentucky right now is seriously considering a state-wide ban on public smoking. That this is being considered is a stunning turn of events in a State where, not that long ago, tobacco was a sacred cow, health concerns be damned. I don’t know who the powerful players are behind the scenes, and why they think it is time for a state-wide ordinance, but for sure, tobacco control advocates will be looking for any preemption language, to be sure that local communities don’t lose their democratic rights of self determination.