Risk of Preemption in the Smoke-Free Housing Movement

Tuesday, October 18th, 2011 | No Comments


Over the last few years, the movement to promote smoke-free policies for multi-unit housing has been extremely successful.  Thousands of privately own apartment buildings have voluntarily implemented policies prohibiting or significantly restricting smoking in common areas, individual units, on patios and balconies and on the entire property.  Public housing authorities across the country have recognized the benefits of going smoke-free—healthier properties for their residents, reduction in the risk of fire, and drastically reduced maintenance costs for non-smoking units—and have implemented smoke-free policies for some or all of their buildings.

Local governments have also joined the movement.  Several counties and cities in California have adopted ordinances that mandate that multi-unit residential properties implement smoke-free policies.  In some cases, the ordinances apply to both rental properties and to condominium complexes.  Some cities, and one state, have adopted law requiring that property owners disclose the smoking policy for the unit, regardless of whether the policy permits or prohibits smoking.

The federal government is now supporting the transition of properties that the Department of Housing and Urban Development supports from being smoking permitted to smoke-free.  A Notice was issued in 2009 strongly encouraging all public housing authorities to adopt smoke-free policies for some or all of their buildings.  This was followed by a similar notice in 2010, encouraging owners of Housing Choice Voucher project-based properties to consider adopting smoke-free policies.

With all this success, the movement has seen few efforts to preempt local laws or to restrict the grassroots, voluntary efforts.  But some attempts to throttle the speed of the movement may be appearing.  The opposition to stronger smoke-free policies could include the tobacco companies, residential housing associations, landlords, tenant advocacy organizations, and condominium homeowners’ associations.  Opposition from the tobacco industry is to be expected, but opposition from the other groups is less certain, because all these groups should see benefits from adopting smoke-free policies.  Possible negative economic consequences are the primary reasons that smoke-free policies are viewed with caution.  Landlords and property owners are hesitant to alienate any part of the market when occupancy rates may be an issue.  Tenant advocacy groups may see the additional restrictions on residents as another opportunity for eviction.  And homeowners’ associations are reluctant to tell owner-occupants what they can do in their own homes.

Preemption may take several forms. In North Carolina, a provision in the state-wide clean indoor air law prohibits local ordinances that restrict smoking in private residences.  Public housing authorities are considered local units of government in North Carolina, so no public housing developments can adopt policies prohibiting smoking in the individual units.  This provision in the law also prohibits counties and cities from mandating smoke-free properties by ordinance as has occurred in several communities in California.

A bill that has been introduced in Massachusetts over the last few years would mandate the provision of smoke-free buildings or smoke-free floors in public housing for the elderly.  However, the second provision of the bill states, “The provisions of section 1 shall be accomplished on a phased-in basis and shall not result in the eviction of any tenant.”  This broad language could result in public housing for the elderly never being able to enforce their policies, because the language does not state that the restriction on enforcement shall only be applied to existing smokers and not to new residents.

Attempts to satisfy broad constituencies with some form of smoking restricted policy for housing could potentially result in statutes that delay more aggressive policies at the local level.  Smoke-free housing advocates will need to review potential state  and federal legislation ostensibly promoting smoke-free housing to ensure that the laws do not contain preemption or otherwise enshrine weak policies that slow the growth of 100% smoke-free multi-unit properties.

IOM Takes the Lead on Local Public Health and Preemption

Wednesday, September 14th, 2011 | No Comments


The Institute of Medicine has addressed federal and state preemption in a new report on law and policy in public health. Among the most authoritative, and unbiased, voices in public health, the IOM has concluded that federal and state preemption should be avoided “unless there are compelling reasons to the contrary.”  As described by the IOM, “compelling reasons” to preempt state and local control are rare.

The Institute’s conclusions about preemption are included in the report: For the Public’s Health: Revitalizing Law and Public Policy to Meet New Challenges.  The IOM report adds to a growing body of research and analysis that recognizes the vital role that state and local leadership plays in public health and clearly identifies the risks that preemption poses to future progress.  The report was sponsored by the Robert Wood Johnson Foundation.

In March, I gave a presentation on preemption and movement building in public health to the IOM’s Standing Committee on Childhood Obesity Prevention, and our findings about preemption are reflected in the new report.

The IOM’s key recommendation on preemption makes it clear that both federal and state preemption should be avoided:

“Recommendation 5: The committee recommends that when the federal government regulates state authority, and the states regulate local authority in the area of public health, their actions, wherever appropriate, should set minimum standards (floor preemption) allowing states and localities to further protect the health and safety of their inhabitants. Preemption should avoid language that hinders public health action.”

Here are some more highlights from the IOM’s report, with emphasis added:

“States and localities play a vital and historic role in safeguarding the public’s health and safety.  They can be ‘laboratories’ of innovation, with greater flexibility than at the national level.  Consequently, unless there are compelling reasons to the contrary, the federal government ought not preempt state and local authority in advancing the public’s health.”

“Preemption in the field of public health may also lead to non-enforcement of a preemptive federal standard. When a federal agency is given preemptive authority to regulate in an area where local public health agencies have a greater capacity and infrastructure to regulate, the result is likely to be that the public health measure will not be enforced.  In such instances preemption, and certainly ‘ceiling’ preemption, should be avoided or arrangements for local enforcement should be put in place.”

“When considering the appropriateness of preemption the impact on public health and enforceability must be assessed.  As the federal government embarks on a regulatory review to determine whether federal regulations unnecessarily hamper business activity, the committee urges that this principle be upheld and efforts be made to avoid creating new or interpreting existing preemptive laws in ways that may have unintended and unhealthful consequences.”

“’Ceiling preemption refers to federal or state laws or regulations that set a maximum standard that lower-level governments may not exceed.  The recently passed federal Affordable Care Act effectively preempts state and local authorities from requiring menu labeling that differs from the federal standards in restaurants and vending machines covered by the federal law.  Many public health advocates express concern with ceiling preemption because it does not allow ample scope for states and localities to innovate in the field of public health…

“Federal or state (ceiling) preemption of state and local authority can often be harmful from a public health standpoint because it can compromise the ability of public health practitioners to implement more stringent standards that may be important and well accepted in a local setting. Ceiling preemption also interferes with local control over local needs and with local-level accountability, and it could limit the ability of jurisdictions to meet the needs of constituents.”

“In a few areas of public health, federal preemption seems highly appropriate. For example, federal oversight of food manufacturing and processing may be appropriate because of its close nexus to interstate commerce. (However, localities regulate sanitary standards for and grant permits to food establishments.) Another example may be found in the federal ban on smoking on airplanes—the interstate nature of airline flight makes this area ideally suited to federal preemption. Ceiling preemption is appropriate in situations where national uniformity is absolutely necessary and only after the impact on public health and enforceability has been thoroughly assessed and mitigated…”

“[In] an area such as public health that is primarily the province of a state’s police power, the need for preemption and the kind of preemption that may be warranted should be closely examined on a case-by-case basis, and the presumption should be that “floor” preemption is the more appropriate option in the area of public health…”

Preempting a movement for childhood obesity prevention

Monday, June 13th, 2011 | No Comments


Taking a well-worn page from the playbook of the Tobacco Industry, the fast food industry is quietly, and so far successfully, eliminating local control over nutrition policy.

In March, the Arizona legislature passed a preemption bill written by the Arizona Restaurant Association.  The new law, which goes into effect in July, takes away the authority of local communities to regulate “toys, games, coupons, crayons, coloring placements or prizes that appeal to children if they are offered at restaurants,” according to a Reuters article.

In an opinion piece in the Arizona Daily Star titled “Pre-emptive bill on fast food and kids reeks of hollow politics,” Dale Kunkel and Doug Taren of the University of Arizona write that “Allowing the use of toys and other premiums to promote high-fat, high-calorie kids’ meals is one of the food companies’ favorite tactics.” No community in Arizona had even tried to address junk food marketing to children, more evidence that the Arizona preemption bill is part of a larger effort to stop the spread of the local obesity prevention movements like Santa Clara County, California’s ban on toys in children’s meals of poor nutritional quality.

In May, the restaurant industry succeeded in slipping Happy Meal preemption into an unrelated bill passed by the Florida Legislature.  Then in June the Ohio Senate passed legislation taking away local authority to regulate restaurant ingredients, in response to Cleveland’s recently adopted ban on the use of Trans-Fats.  Preemption has also passed in Alabama, according to the New York Times.

It all started in Washington, DC.  When federal preemption of restaurant menu labeling laws was added to 2010’s health care reform legislation, taking away state and local authority over menu labeling, the industry bragged that preemption was “Good News For Franchise Restaurants.”

After hitting a home run in Washington, the industry took its preemption strategy on the road, turning last November’s Tea Party into a Junk Food Party.  As if to prove its power in the state legislatures, the fast food industry rolled out an ambitious campaign for state preemption of local childhood obesity prevention efforts.

How can obesity prevention advocates fight back against a powerful and sophisticated preemption campaign?  After all, fast food is a $170 billion industry in the US, and $1.6 billion is spent on advertising to children.

Obesity prevention advocates can mine important lessons learned by the grassroots tobacco movement in the 1980’s and 90’s.  Today, the tobacco control movement uses the excellent website to expose the tobacco industry’s tireless efforts to preempt local smokefree ordinances.   In addition, tobacco control coalitions learned early the importance of tracking legislation and responding rapidly to educate and mobilize advocates to “shine a bright light” on any attempt to erode home rule.

Preemption and other industry shenanigans usually happen behind closed doors.  According to the LA Times, the restaurant industry’s campaign against local control is “Moving under the radar so stealthily that in some cases local politicians and anti-obesity activists missed it entirely.”   The National Restaurant Association denies that they’re orchestrating a national campaign to preempt local obesity prevention movements, but their spokeswoman admits that “there are conversations about strategy.”

History has proven the most effective way to protect community control and self-determination is to shine a bright light on the lobbyists who are behind preemption, and their motivations.  But the obesity prevention field better do it quickly or risk losing a vital and diverse movement to prevent childhood obesity.

Preemption threatens grassroots fire prevention movement

Monday, March 14th, 2011 | No Comments


About 3000 Americans die in home fires every year and thousands more are injured. Home fires are the greatest cause of fire deaths and injuries, and children under five and older adults face the highest risk.

One of the great public health success stories of the past decade is the grassroots movement for local ordinances requiring fire sprinklers in new homes.   Residential fire sprinklers, similar to the systems required in hotels and apartment buildings, cut the risk of death from home fires by 80% and the cost of property damage by 71%. According to one study, the cost of sprinklering new homes averages $1.61 per square foot.  If you think that’s too expensive, check out the NFPA’s Faces of Fire campaign to get a sense of the incalculable costs of home fires.

In a grassroots movement that started in the late 1970’s, fire prevention advocates have passed more than 300 local ordinances across the US requiring residential sprinklers in new single- and two-family homes. These laws have passed from San Clemente, California to Pleasant View, Tennessee.  It’s an example of grassroots democracy at its best.

All this would be great news except for one thing:  Home building industry lobbyists in the state capitols have undertaken a national campaign to preempt these life saving local laws.  So far, 13 states have passed “anti-fire sprinkler” laws that take away the power of local communities to adopt these life-saving requirements.

But the risk of preemption is even greater in 2011:  Bills have already been introduced in at least eight states to take away local authority to pass residential sprinkler requirements.  Arizona has already passed legislation preempting new ordinances, in spite of the fact that Scottsdale is a national leader on fire sprinklers.  If other states follow Arizona, 20 states could preempt local control and take the wind out of the sails of this life-saving public health movement.

The grassroots fire prevention movement is supported by the Home Safety Council, NFPA, Common Voices, the Phoenix Society for Burn Survivors, fire chiefs, and other members of the fire service.  It’s also a great example of the Winnable Battles that the CDC believes are so important to ongoing progress in public health, and an opportunity for the public health community to partner with safety advocates, burn survivors, and the fire service.

This an update of an earlier post on residential fire sprinklers.

Preemption should be the exception, not the rule

Monday, January 17th, 2011 | 2 Comments


There’s been bad news on the federal preemption front recently, but there’s some good news, too. Last month, the Administrative Conference of the United States published a Recommendation for the first time in fifteen years—about preemption in federal rulemaking. The Recommendation explains a Clinton-era Executive Order (that builds upon a Reagan-era Order) which, among other things, directs federal agencies to include a “federalism impact statement” in the preamble to proposed rules that explains how the rules would affect state and local laws, if they are preemptive.

Who knew? Not the federal agencies, apparently. The ACUS Recommendation diplomatically notes that compliance has been “inconsistent,” regardless of the political party in charge. As an example, it refers to a 1999 General Accounting Office report which identified only five rules—out of a total of 11,000 issued from mid-1996 to late 1998—that included a federalism impact assessment.

To help remedy this situation, the Recommendation includes a number of, well, recommendations, designed to shed light on agency decisions to preempt, promote input from those who represent state interests early in the rulemaking process, and hold agencies accountable for both past and future rulemaking decisions that limit state or local authority. On this last point, the Recommendation highlights the directive in President Obama’s 2009 memo on preemption that called on federal agencies to review rules issued in the previous ten years to determine whether preemptive language in those rules is legally justified.

What all this will really mean for state and local control remains to be seen. But according to a recent study conducted as background for the Recommendation, there has been “a meaningful shift in preemption policies within a number of agencies.” We may be seeing some signs of this shift. For example, last month, the Energy Department published a final rule, effective immediately, waiving federal preemption of more stringent state regulations concerning the water efficiency of faucets, showerheads, toilets, and the like. The notice of proposed rules for new national school nutrition standards issued on January 13th includes a “Federalism Summary Impact Statement.” Further, the notice not only explains that state or local agencies can adopt stronger requirements as long as they are consistent with the federal rules, but also provides an example of how a state or local agency has the flexibility to implement the sodium limits faster than federal regulations would.

So, the message may be getting through—preemption isn’t something to be done lightly. Moreover, these developments may provide more opportunities for advocates and others who care about local or state control of public health issues to have a voice in federal rulemaking decisions. Stay tuned!

Preemption a continuing drag on tobacco control

Thursday, January 13th, 2011 | No Comments


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.

Public Health 2.0

Monday, January 3rd, 2011 | No Comments


In a Dec. 22, 2010 article in The Economist, Arianna Huffington predicts that 2011 will be the “Year of hope 2.0,” in which Americans realize that “our system is too broken to be fixed by politicians operating from within it.”  The solution: We outside of Washington must demand meaningful change and make it too risky for the insiders to cling to the status quo.

What is true of politics in general is equally true for public health.   Wishful thinking about top-down leadership is no substitute for realism, and the reality is that for many public health issues, fundamental change can only come from powerful grassroots movements whose members and leaders are outside of the Beltway and state capitols.

Huffington is more gracious about the legislative process than Leon Panetta, current CIA director and former White House chief of staff.  In Robert Kaiser’s 2009 book on lobbying, So Damn Much Money, Panetta calls the culture of political Washington “legalized bribery.”  But campaign contributions are only one of the reasons Washington is often the wrong place to make public health policy.  As Justice Brandeis noted (in 1932), states must be our “laboratories” of experiment. And as a practical matter, many of the most effective health and public health laws, from smokefree ordinances to healthy food in schools, have come from grassroots movements promoting local (or state) policy changes.

Like Huffington, I’m hopeful about 2011, but to succeed we will need to build and support powerful grassroots health movements.  We’ll need to support grassroots movements with the resources and expertise they need to succeed.  We can nurture grassroots leaders with support networks and leadership development.  Finally, we must protect the authority of states and local communities to adopt stronger public health laws by opposing preemption in public health and health policy.

Grassroots health

Friday, November 19th, 2010 | 1 Comment


Whatever you think of the outcome, the 2010 elections remind us of the power of the grassroots in American politics. This should not come as a surprise to the public health community:  In her 2007 book Disease Prevention as Social Change, Constance Nathanson wrote, “The strength of [the American system] lies in its citizens’ capacity for collective action.”

As we define it, a grassroots health movement is a collective effort to prevent disease or other threats to health and safety, comprised of activated citizens and organizations that support them.   Understanding and supporting grassroots movements may be the single most important thing that the public health community can do to achieve meaningful progress.

We know that grassroots health movements can build power outside of DC and the state capitols, but there are other benefits that may be less obvious.  By empowering citizens, health movements promote civic engagement and create innovative, sometimes experimental, solutions to public health problems. Grassroots movements enable diverse communities to adopt diverse solutions. Grassroots movements can educate and, if strong enough, permanently change social norms (as in the case of cigarette smoking).  Finally, grassroots movements, in public health as in politics generally, build citizen power without the money and lobbyists that are synonymous with power in the Congress and the state legislatures.

Whether in public health or other priorities, there is ample evidence that waiting for Washington to take care of us is not enough. Instead, we need to build and support powerful grassroots health movements on the issues that matter most to families and communities.

Grassroots fire prevention

Friday, November 5th, 2010 | 2 Comments


According to the National Fire Protection Association (NFPA), about 3000 Americans die in home fires every year and thousands more are injured. Home fires are by far the greatest cause of fire deaths and injuries. Children under five and older adults face the highest risk. And anyone who has survived a serious fire injury, or knows someone who has, understands the human costs behind the numbers.

For the individuals and families behind the numbers, the costs of fire injury are incalculable. As one survivor reports on the NFPA website: “For me, the burns I suffered in a home fire led to not only physical impacts, but also the loss of a marriage, and the loss of a career I loved.”

But there’s good news: We know how to preventhome fires: Residential fire sprinklers.  Similar to the systems required in hotels and apartment buildings for decades, home fire sprinklers cut the risk of death by 80% and the cost of property damage by 71%. If you think that spending a few bucks per sq. foot to install fire sprinklers is too expensive, check out the NFPA’s new Faces of Fire campaign and reconsider.

In a grassroots victory reminiscent of the tobacco movement, fire prevention advocates have passed more than 300 local ordinances across the US requiring residential sprinklers in new single- and two-family homes.  It’s an example of grassroots democracy at its finest, but building industry lobbyists in the state capitols have taken a page from the tobacco industry to undermine these life saving local laws.  So far, 12 states have passed “anti-fire sprinkler” laws that preempt these local safety requirements.

The successful grassroots fire prevention movement is fighting preemption while winning impressive statewide victories in California and elsewhere.  The campaign is supported by the Home Safety Council, NFPA, Common Voices, the Phoenix Society for Burn Survivors, fire chiefs, and other members of the fire service.  It’s also a great example of the Winnable Battles that the Centers for Disease Control and Prevention believes are so important to continued progress in public health, and an opportunity for the public health community to partner with safety advocates, burn survivors, and the fire service.

FDA: Preemption and Menu Labeling

Monday, July 19th, 2010 | 14 Comments


The critical issue of preemption is missing from FDA’s recent request for comments on new menu labeling regulations.  Strange, given how important preemption is to the restaurant chains.  (Pre-emption Of State And Local Menu Labeling Laws Good News For Franchise Restaurants)

Federal (and state) preemption of smokefree laws has been one of the tobacco industry’s top goals for decades.  But so far, the tobacco industry has failed to pass federal preemption.

Not so with menu labeling.  The menu labeling provisions (and preemption) are part of the health care reform legislation enacted in March.  In spite of the fact that more than 19 states or local jurisdictions have already passed menu labeling laws, Congress preempted state and local laws “of the type” required by federal law.  The new law does exempt chains of under 20 outlets and allows for “a warning concerning the safety” of a food or component of food.  But the rapidly growing grassroots movement for meaningful menu labeling may never recover.

Given that President Obama issued a memo last May opposing preemption in all federal rulemaking, it is especially odd that the FDA has not addressed this central issue up front.  As the President says in his memo to the heads of all departments and agencies, “Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.”  Hopefully, the FDA will consider the President’s comments as it decides exactly how much state and local authority to strip away.




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