by Annika Mengisen

In a city with an out-of-control murder rate, opinion columnist Annika Mengisen explores New Orleans’ prospects for reining in the availability of the weapons used to do most of the killing.

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CLEVELAND, Ohio — Cleveland has a message for Ohio legislators: We have the right to make laws on what we prohibit inside our borders, not you.

Last April, Cleveland City Council passed a law to ban restaurants from using cooking oils containing trans fats, as part of its Healthy Cleveland initiative.

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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.

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For the Public’s Health: Revitalizing Law and Public Policy to Meet New Challenges, the second of three reports by the Committee on Public Health Strategies to Improve Health, builds on earlier Institute of Medicine efforts to describe the activities and role of the public health system. As defined in the 2003 report The Future of the Public’s Health in the 21st Century (IOM, 2003), the system is multi-sectoral and comprises governmental public health agencies and various partners, including the community (individuals and organizations), the clinical care delivery system, employers and business, the mass media, and academia, or more broadly, the education sector. The committee’s first report (IOM, 2011) redefines the system as simply “the health system.” By using this term, the committee seeks to reinstate the proper and evidence-based understanding of health as not merely the result of clinical care, but the result of the sum of what we do as a society to create the conditions in which people can be healthy (IOM, 1988).
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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.

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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…”

Forbes.com

TRAVERSE CITY, Mich. — A federal appeals court has refused to prohibit states from being tougher than the federal government on ships that discharge ballast water, a leading culprit in the spread of invasive species such as zebra and quagga mussels in U.S. coastal waterways and the Great Lakes.

The ruling by the U.S. District Court in Washington, D.C., escalates a battle between the shipping industry, regulators and environmentalists over dumping ballast water and other substances from vessels. Legislation pending in Congress would strip funding for any Environmental Protection Agency programs from states whose rules exceed those on the federal level.

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CONCORD — A second legislative attempt to block local fire and planning officials from setting rules on residential sprinklers has been vetoed.

Gov. John Lynch Wednesday vetoed Senate Bill 91, saying it intrudes too far on local authority.

SB 91 bars towns and cities from passing ordinances that require fire sprinkler systems in new one- and two-family homes. It also bars them from enforcing existing ordinances that require them in manufactured homes situated in trailer parks.

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Several state legislatures are passing laws that prohibit municipalities and other local governments from adopting regulations aimed at curbing rising obesity and improving public health, such as requiring restaurants to provide nutritional information on menus or to eliminate trans fats from the foods they serve.

In some cases, lawmakers are responding to complaints from business owners who are weary of playing whack-a-mole with varying regulations from one city to the next. Legislators have decided to sponsor state laws to designate authority for the rules that individual restaurants have to live by.

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