January 16, 2020

The importance of preempting industry preemption

Public health advocates were winning. City after city was innovating ways to reduce smoking and protect non-smoker rights. As a former industry lobbyist observed, you’d “put out a fire one place, another one would pop up somewhere else.” The cost and demand of these fights was driving Big Tobacco “crazy.” Tobacco industry interests were viewed as outsiders and “big time lobbyists,” while democracy worked largely as it should for city residents: elected leaders listened most assertively to those who “may live next door.”

But in the mid-1980s the forward momentum stopped. Big Tobacco had discovered a way to reverse local gains. And according to a new study in the American Journal of Public Health, the industry’s counteroffensive would have more disturbing and enduring ramifications for public health and our democracy than previously understood.

State preemption. Promoting weaker state public health laws to override stronger local laws. That would be the industry’s focus for the ensuing decades. Between 1986 and 1991, the industry rammed through seven state preemption laws. Between 1991 and 1996, the industry only gained steam, foisting an additional 17 state preemption laws on the American public. Laws restricting youth access to tobacco products would be reversed or never see the light of day. Laws establishing smoke-free environments were overridden. Tobacco tax increases were stalled. Restrictions on tobacco retail licensing were loosened. And a disturbing public health toll was taken, particularly on communities of color.

As the study, “Preemption in Tobacco Control: A Framework for Other Areas of Public Health” notes, the strategy proved a winning one, for Big Tobacco that is. “It proved easier and less costly to fight a single state battle than to fight numerous local ones within a state.” And even as public health advocates began stemming the tide of new preemption laws, the tobacco industry secured the adoption of an additional seven laws between 1997 and 2008.

Perhaps the most concerning of the study’s findings: it takes a long time to repeal these laws. As of 2019, only 12 of the 25 state preemption laws on smoke-free places had been repealed. It took an average of 11 years from the date of enactment to repeal these laws. (For a great visual timeline of smoke-free preemption laws, visit American Nonsmokers’ Rights Foundation). Consider the costs to public health and progress. That’s more than a decade where enormous time and resources are bound-up in undoing bad policy. That’s more than a decade where advocates are constrained in pursuing policy to protect the health and lives of millions of people. That’s more than a decade, where the public’s health has been compromised to benefit the tobacco industry’s profits.

What’s more, absolutely no state laws—of some 40—preempting stronger local restrictions on youth access and tobacco marketing have been repealed as of 2019. And other abusive industries are now piling on. Coca-Cola, McDonald’s, and the broader food and beverage industry, for example, have already seen to the enactment of at least 12 laws preempting local public health policies like soda taxes, product labeling, and restrictions on junk food marketing to kids.

According to the study by Dr. Eric Crosbie of University of Nevada, Reno and Dr. Laura Schmidt of the University of California, San Francisco, there are four key tactics the tobacco industry pursued in achieving these results that are now being modeled across abusive industries. Understanding them can be key in undoing and preventing the further proliferation of the food and beverage industry’s preemption push.

First, the industry promoted preemption through front groups. To give Big Tobacco’s political agenda credibility, tobacco giants like R.J. Reynolds have bankrolled so-called “smokers’ rights groups” and frequently prompted traditional allies like restaurant, hotel, and gaming associations to do their bidding. Whether attempting to appeal to a sense of liberty through PR flack Rick Berman’s Center for Consumer Freedom, masquerade as objective and scientific through Philip Morris’s Advancement of Sound Science Coalition (TASSC), or distract attention from tobacco control efforts entirely as was the case with the proposed “Parents for Priorities,” these front groups all had/have a role to play in pushing preemption. Not surprisingly, a similar cast and crew—like state affiliates of the Chamber of Commerce and National Restaurant Association—are again the muscle behind state preemption pushes; this time with a focus on undermining local soda taxes.

Second, it lobbied policymakers. Big Tobacco lavished money on state House and Senate representatives, particularly those in leadership or on strategic committees. At the outset of the 1990s, the contributions of tobacco lobbies totaled more than $70 million. Predominantly Republican candidates have received more than $50 million from the industry since 1990. The industry’s political arm—the Tobacco Institute (now shuttered thanks to Corporate Accountability and its allies)—spent $3 million on 50 lobbyists in as many states in one year alone in the mid-90s.

Third, it obscured preemption through varied legislative channels. As if making an end-run around local democracy wasn’t bad enough…Big Tobacco slipped preemption into bills on anything from property taxes and gambling to pesticides and education. It sponsored “look alike” ballot initiatives to stronger ones sponsored by the public health community. For instance, in 2006 the industry spent $100 million to fight tobacco control measures, while funding competing measures in Arizona (“The Arizona Non-Smoker Protection Act”) and Ohio (“Smoke Less Ohio”) that would have rolled-back local smoke-free laws and prevented their adoption in the future. And, as the study found, “they revived bills repeatedly under different names, and snuck in eleventh-hour preemption clauses, leaving the public health community with little time to mobilize.”

Fourth, it issued legal threats. Between 1987 and 2003, Big Tobacco or its surrogates threatened 28 communities with legal challenges to local tobacco control ordinances. While threats and related lawsuits have generally failed to overturn local laws, the industry has nonetheless pursued them as a deterrent to the passage of new laws. In Marquette, Michigan, for example Big Tobacco sponsored a Michigan Restaurant Association and Chamber of Commerce lawsuit claiming new prohibitions on smoking in public places was preempted by state law. The lawsuit tied-up the 22,000-person town in legal proceedings for about five years, while succeeding in repealing only a part of the law specific to smoking in restaurants.

After years of being on the receiving end of the industry’s tactics, the public health community regrouped behind its own, according to the study.

For starters, the community began generating media that exposed Big Tobacco’s chicanery in advancing state preemption policies, while appealing to the public’s desire for “local choice” and “authority” in policymaking. An important milestone would come in 2011, when the Institute of Medicine would bolster the public health community’s case by concluding that federal and state governments should avoid “ceiling preemption” (prescribing a limit to city public health protections) in favor of setting minimum standards (floor preemption) that allow localities to protect the health and safety of their residents.

Second, public health advocates ramped-up policymaker education. Instead of putting out fires once preemption had been introduced or adopted, advocates began more effectively getting to governors, committee chairs, and majority leaders first. One of the earliest examples of this was in 1996 when the Indiana Campaign for Tobacco-Free Communities helped compel then Governor Bayh to veto a law that preempted then “virtually non-existent” local tobacco control laws in the state.

Third, they mobilized national opposition. In the same year as Governor Bayh’s veto a national preemption task force was formed by leading health organizations. It attracted prominent political figures like Hillary Clinton and Henry Waxman (D-California). And it led to the mobilization of grassroots movements, more coherent counter strategies and tactics, and increased capacity and expertise. By 2000, the Centers for Disease Control, had published Healthy People 2010 advocating the elimination of state laws preempting local tobacco control.

Fourth, they expanded legal networks. From California to Massachusetts, Minnesota to Maryland states helped fund legal resource centers that worked with Departments of Health. These centers became a resource in drafting tobacco control laws that could weather industry challenges. They also promoted anti-preemption clauses to establish minimum standards that permit localities to pursue more progressive public health protections than those set at the state level.

In all, the most important lesson from the study for advocates is that we need to assertively preempt preemption. History is already replaying itself. Last year, for example, the food and beverage industry had its way in securing state preemption of local soda taxes in California of all places. Today there are only five states without laws expressly preempting local regulation of firearms. And e-cigarette giant Juul has worked tirelessly to ensure state increases in the minimum age to purchase tobacco products be paired with preemptions on local governments taking any further actions to regulate vaping (like flavor bans). The list goes on.

This election year, it’s critical we heed this study’s findings. There will be no shortage of bills and ballot initiatives up for a vote intent on supplanting popular democracy with narrow corporate prerogatives. And no shortage of choices to make between candidates that favor one over the other. But, we have the solutions because we’ve faced this problem before. It’s time to enact them.