Preemption Issues

This information is brought to you by the Island County Health Department (ICPH)

Definition: pre• emp'• tion ...to buy before ...taking possession before others ...a prior seizure or appropriation ...usurpation.

State Law
Washington State RCW 70.155.130 Preemption of political subdivisions precludes local political subdivisions from adopting or enforcing any local ordinance to license and/or regulate tobacco product promotions and sales within retail stores; or to regulate or prohibit activities covered by RCW 70.155.020 through 70.155.080 ... chapters having to do with licensing, retailing, signage, sampling, age limitations and civil infractions. The preemptive measures of RCW 70.155 do not address the use of tobacco products, however. (See below)

Discussion
The tobacco industry has responded to the rapidly increasing diffusion of community-based tobacco control policy interventions by using its political influence at the state level to promote the passage of state laws that preempt local regulation of tobacco. This is done by either direct incorporation into legislative bills as they are written, or by amendment to already popular anti-tobacco bills. This has already happened in Washington State, as evidenced above. Repeal of these preemptive efforts is truly in the interest of the public's health, yet only Maine has been able to repeal a tobacco preemption law (1977).

The Federal Government is even less likely to act against preemptive tobacco legislation. The US Congress has failed to enact any tobacco control legislation during the past 25 years that would regulate cigarettes, restrict the advertising and promotion of tobacco products, or restrict the use of tobacco products in public places and workplaces. Several studies have demonstrated a strong correlation between the level of tobacco industry contributions to elected officials and the likelihood that recipients will vote against tobacco control measures.

Preemptive Legislation is Effective
Victor Crawford, a former lobbyist for the Tobacco Institute, summarized the tobacco industry's rationale for seeking preemption legislation: "We could never win at the local level . . . so the Tobacco Institute and tobacco companies' first priority has always been to preempt the field, preferably to put it all on the federal level, but if they can't do that, at least on the state level, because the health advocates can't compete with me on a state level" (from an interview with Victor Crawford appearing in the July 19, 1995 of JAMA -- Journal of the American Medical Association Vol. 273 #3 pages 199-202)

Local Control of Public Health Policy Eliminated
The principle of home rule is predicated on the assumption that problems in which local governments have legitimate and substantial interest should be open to local solution and reasonable experimentation to meet local needs. Preemptive law at the state level precludes local freedoms. The Supreme Court of Illinois has argued that local governments should be able to develop policy "free from veto by voters and elected representatives of other parts of the State who might disagree with the particular approach advanced by the representatives of the locality involved or fail to appreciate the local perception of the problem." Placing tobacco control policy under the sole jurisdiction of the state legislature ensures that the tobacco industry will have a prominent voice in policy development. This makes it extremely unlikely that effective tobacco control legislation will ever be enacted in Washington State. (See the paragraph just above.)

Is this preemptive legislation what we want for Washington State? Can you hear Big Tobacco laughing?

Preemptive Chapter of RCW 70.155 is not all-inclusive:
Local governments may enact and enforce their own local measures regarding the use of tobacco in public places. . . i.e., "Nothing herein shall be construed to restrict the power of any county, city, town, or village to adopt and enforce additional local laws, ordinances, or regulations which comply with at least the minimum applicable standards set forth in this article." (RCW 70.155.130) This means that we CAN pass ordinances precluding smoking in public places. We can do this! Of course it would be far more meaningful and appropriate were the legislature to step forward with a ruling of this nature. So speak with your state legislators about banning smoking in public places. Isn't it time for our elected representatives to do the right thing about this, the most preventable cause of death in our country? Others are responsibly addressing this issue — why not Washington State? This is a no-cost no-brainer...

Commentary by Roger S. Case, MD (Health Officer, Island County) March '98

*ADDENDUM: If you've any doubt about the seriousness of smoking on our nation's health, please read the information on the CDC's web site.

Americans for Non-Smoker's Rights

STATE Tobacco Activities Tracking & Evaluation System

Health Officer's follow-on Editorial (May '98): The healthwise answer to this whole tobacco issue is to authorize the FDA to exercise absolute control over the content of nicotine — a powerfully addictive drug (and poison*) — in all processed tobacco, gradually eliminating nicotine from all tobacco products, thereby making it easy for anyone using tobacco products in any form to quit without having to deal with nicotine-induced addiction. This has been the recommendation of the last two President's Commissions on Tobacco Legislation. According to the FDA, tobacco companies have had the technology for over 35 years to remove nicotine from cigarettes. But then, who would smoke?
**
*Nicotine is one of the most toxic of all poisons and has a rapid onset of action. Apart from local caustic actions, the target organs are the peripheral and central nervous systems. In the span of a few hours, a mere 60 mg of nicotine (1/500 of an ounce) is lethal to a 150 pound human (10 mg of nicotine is lethal to a child ...1/3,000 of an ounce!) The minimum lethal dose (MLD) of tobacco is 5 gram, or about 1/6 of an ounce... see Nicotine.

Nicotine is the only active ingredient in some of our most effective insecticides, but its use has been limited because of its toxic properties. Nine nicotine containing pesticides are registered for use in the U.S., and none of the product labels list nicotine at more than 14% (insects have never developed a tolerance for nicotine).