Preemption a continuing drag on tobacco control
The year 2010 ended with a groan for many in the U.S. tobacco control community. On December 29, 2010, District Court Judge Jed S. Rakoff of the Southern District of New York struck down a pioneering New York City tobacco control law on the grounds that it was preempted by federal law. The decision demonstrates not only how preemption continues to impact innovative tobacco control efforts, but also is a testament to the broader public health community about the nature of preemption—when you think it is gone, it keeps coming back.
In September 2009, the N.Y.C. Board of Health passed a law requiring tobacco retailers to display certain signs which include warnings about the health effects of tobacco use, a picture demonstrating these effects, and information about cessation resources. The City’s aim? To empower consumers to make informed decisions about tobacco use. Some retailers, with the assistance of Big Tobacco, sued N.Y.C., arguing, among other things, that the law was preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA). Judge Rakoff agreed with their argument, based on an expansive interpretation of what constitutes cigarette “promotion.”
FCLAA’s broadly worded preemption language has played a key role over the last few decades in limiting state and local government authority to protect public health, and at times has even limited the rights of individuals to sue the tobacco industry, known “merchants of morbidity” (Judge Rakoff’s term). In 2009, Congress recognized that state and local governments “have lacked the legal and regulatory authority and resources they need to address comprehensively the public health and societal problems caused by the use of tobacco products.” Congress tried to fix that problem, in part, by amending FCLAA. However, instead of removing FCLAA’s broad preemption language, Congress added a new provision intended to give state and local governments greater authority to address the advertising and promotion of cigarettes. One problem with Judge Rakoff’s decision is that his interpretation of FCLAA, which would have seemed very expansive in 2008, does not address this new provision.
The city plans to appeal, and there is a good chance the outcome will be different. This case illustrates, though, that preemptive laws have unintended consequences that can last for decades, and that even an act of Congress might not easily undo its effects.
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