The food industry is now mirroring the same playbook
RENO, NV—According to a new study published today in the American Journal of Public Health, the tobacco industry’s efforts to preempt local public health policy with state laws has delayed the public health protections we enjoy today by an average of more than 10 years. It also details how Big Tobacco was successful in its “preemption push” and wrote the roadmap for a range of industries—from fast food and soda to firearms—to follow.
The research is particularly prescient today given that at least 12 states have already enacted preemptions on public health policies such as soda taxes, menu labeling, and restricting junk food marketing to children. These state “preemption” laws prevent municipalities from adopting stronger or, in some cases, any policies in these areas.
“The food and beverage, chemical, gun industry, and others are already deploying Big Tobacco’s playbook with significant consequences for public health, safety, the environment, and local democracy,” said Dr. Laura Schmidt, professor at the University of California, San Francisco, who co-authored the study. “To this end, it’s critical to understand the industry’s playbook, as well as what advocates have done to effectively counter it.”
The study found that since the 1980s, Big Tobacco has attempted to secure state preemption of local policies like smoke-free public places and youth access restrictions through front groups; lobbying key policymakers; inserting preemption into other legislation; and issuing legal threats and challenges.
Using these four methods, tobacco corporations succeeded in enacting seven state preemption smoke-free laws between 1986 and 1991. The industry would add 10 more state laws in the following five years. With the public health community mobilizing, the industry’s efforts were slowed — only seven more states passed industry-sponsored smoke-free preemption laws between 1997 and 2008.
Big Tobacco’s national preemption campaign ultimately deployed many of the same front groups that are now at the forefront of the effort to preempt local health and nutrition policy such as state and local affiliates of the National Restaurant Association (NRA). For example, the NRA—which counts Coca-Cola and McDonald’s as its largest backers—is leading a national campaign to pass state laws preempting local ordinances guaranteeing paid sick leave and increasing the minimum wage.
But advocates were ultimately successful in pushing back thanks to strategic media advocacy; policymaker education; national mobilization; and expanded legal networks. For instance, the public health community began framing its arguments in terms of “local choice and authority” to expose the industry’s attempt to impose its will at a safe distance from local ire.
“Perhaps the most important lesson is that advocates were successful when they were proactive versus reactive,” said Eric Crosbie, assistant professor in the School of Community Health Sciences at University of Nevada, Reno and a co-author of the study. “In other words, advocates should be looking to preempt preemption.”
Because once laws are passed: they are hard to undo. As the study finds, they take an average of 11 years from the date the law was enacted to repeal. And today, less than half of the 25 state preemption smoke-free laws have been repealed. Between 2000 and 2010, preemptive state tobacco marketing laws actually remained unchanged. Laws preempting local youth access restrictions even increased from 21 to 22.
“Sin industries bemoan the so-called ‘nanny state’ while doing everything in their power to use states as a prop to further their profits,” said Heshan Berents-Weeramuni at Corporate Accountability. “This study is a wake-up call. Industry preemption laws aren’t just undermining local democracy, they are doing irreparable harm to public health, safety, and the environment. They are binding-up cities and advocates in prolonged repeal fights, when we could instead be making vital progress.”