The Consequences of Preemption on Population Health

by Jennifer L. Pomeranz, JD, MPH

Read “State Preemption: Impacts on Advances in Tobacco Control” in Advancing Legal Epidemiology, March 2020

Public health is often considered controversial because the interests of population health may not align with those of individuals or businesses. Despite this, deference to public health authorities and policies for contagious disease generally remains high. However, there is much less deference to these same institutions and approaches when addressing chronic disease associated with consumption of commercial products. For example, in February 2020, experts from the Centers for Disease Control and Prevention (CDC) were consulted and their decisions relied upon nationally due to concerns over the spread of the coronavirus. Yet, the same deference for CDC’s expertise is lacking for death and disability produced by companies rather than pathogens. So this year in the United States, more than 480,000 people will die from cigarette smoking, 83,000 from diabetes, and 35,000 from alcohol-induced causes.

This divide between communicable and non-communicable disease and deference to public health authorities extends to state preemption of local policies. While the federal, state, and local governments all work together to ensure quarantine and isolation laws are implemented appropriately to protect population health, many states actively preempt, or prohibit, local control over problems and policies aimed at reducing and preventing chronic disease.

In the excellent article by experts from the CDC, Kang, Kenemer, Mahoney, and Tynan assessed state tobacco control laws including preemption, and answered cutting-edge questions through a mixture of quantitative and qualitative research. The authors found that while 12 states preempted local control over smoke-free air laws, only four of these states simultaneously enacted statewide smoke-free acts. When states enact substantive policy coupled with preemption, the law protects the population but does not allow for local variation to address additional community needs and freezes policy as reflective of the science and values at the time it was passed. The legislature may ultimately create a policy landscape that becomes outdated for communities but is difficult to change given the intricacies of the legislative process. Even worse, when states preempt local control and simultaneously do not act (in this case eight states), preemption becomes a form of deregulation and residents in those states remain unprotected by public health advances. Preemption in both contexts has real consequences for population health.

The authors’ identification, in Figure 2, of the percent of the population covered by comprehensive smoke-free state and local law revealed the practical outcome of preemption for communities within each state. These results were groundbreaking. Retrieving local laws is difficult because proprietary database services generally do not collect local laws and the absence of such databases outside of tobacco control leave many unanswered questions in other policy domains. For example, key unanswered questions include: what percent of the population in each state is covered by paid sick laws? SSB taxes? Child lockbox requirements for firearms?

Kang et al also provided insight into the true burden of preemption through qualitative case studies. For example, the authors identified instances where local governments have been sued because their tobacco control policies were challenged as potentially conflicting with state law. Just the threat of litigation is its own barrier to local policymaking because most municipalities lack the resources to consistently defend their actions.

In several recent articles, preemption experts have sought to assist advocates and policymakers in their endeavor to assess and oppose preemption that may harm public health efforts. The first article of this kind was published by the Journal of Public Health Management and Practice in 2012 and remains highly relevant today. Pertschuk et al created a tool for decision makers to help the public health field anticipate and evaluate preemptive language and to support effective decision making in the face of preemptive

Read Advancing Legal Epidemiology

bills. Subsequent articles have built on this research to help advocates, practitioners, and policymakers along these same paths.

We all have a lot to learn from tobacco control and from experts at the CDC. Tobacco control is the only public health field where preemption has consistently been repealed and where national advocates’ opposition to preemption is on par with their support for substantive policies. Nationally, state legislatures have enacted preemptive laws across public health domains related to the commercial and social determinants of health. The divide between the acceptance of public health methods and opposition thereto should not depend on who creates the public health harm, but rather the harm created.    

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Jennifer L. Pomeranz, JD, MPH, is a public health lawyer and Assistant Professor in the School of Global Public Health at New York University. Her research is dedicated to evaluating policy options to address products that cause harm and social injustices that lead to health disparities. She is a national expert on the topic of preemption of public health policies.

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