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Preemption of Local Smoke-Free Air Ordinances: The Implications of Judicial Opinions for Meeting National Health Objectives

Published online by Cambridge University Press:  01 January 2021

Extract

Despite governmental and private antismoking initiatives, tobacco smoking remains a significant public health and economic challenge. The Centers for Disease Control and Prevention (CDC) estimates that for each year between 1997 and 2001, cigarette smoking and exposure to secondhand smoke caused approximately 438,000 U.S. residents to die prematurely, resulting in 5.5 million years of potential life lost, and in $92 billion dollars of lost productivity. Also, despite convincing scientific data that laws against indoor smoking protect people from the negative health effects of cigarette smoke, not all states have afforded their residents this protection. As of July 2007, 16 states neither restricted nor banned indoor smoking in restaurants, private worksites, or government worksites, and many state statutes only required separate rooms for smokers rather than eliminating all smoking inside buildings. In several states, local governments have attempted to fill this gap by adopting their own antismoking measures.

Type
Independent
Copyright
Copyright © American Society of Law, Medicine and Ethics 2008

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References

Centers for Disease Control and Prevention, “Annual Smoking-Attributable Mortality, Years of Potential Life Lost, and Productivity Losses — United States, 1997–2001,” Morbidity and Mortality Weekly Report 54, no. 25 (2005): 625628.Google Scholar
U.S. Department of Health and Human Services, Public Health Service, Office of the Surgeon General, The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General, Rockville, MD, 2006; Siegel, M., Carol, J., Jordan, J., Hobart, R., Schoenmarklin, S., DuMelle, F., and Fisher, P., “Preemption of Tobacco Control: Review of an Emerging Public Health Problem,” JAMA 278, no. 10 (1997): 858–863.Google Scholar
Centers for Disease Control and Prevention, “State Tobacco Activities Tracking and Evaluation (STATE) System,” available at <http://www.cdc.gov/tobacco/statesystem> (last visited March 10, 2008).+(last+visited+March+10,+2008).>Google Scholar
See U.S. Department of Health and Human Services, supra note 3.Google Scholar
Jacobson, P. D. and Wasserman, J., “The Implementation and Enforcement of Tobacco Control Laws: Policy Implications for Activists and the Industry,” Journal of Health Politics, Policy & Law 24, no. 3 (1999): 567598; National Cancer Institute, “State and Local Legislative Action to Reduce Tobacco Use,” Smoking and Tobacco Control Monograph No. 11., U.S. Department of Health and Human Services, National Institutes of Health, National Cancer Institute, Bethesda, MD, August 2000.CrossRefGoogle Scholar
Pritchard, R., “Tobacco Industry Speaks with One Voice, Once Again,” United States Tobacco and Candy Journal (July 17- August 6, 1986): 86–88; Smoking Control Advocacy Resource Center Action Alert, Secret Document Confirms Tobacco Industry Preemption Strategy, Advocacy Institute, Washington, D.C., 1991.Google Scholar
U.S. Department of Health and Human Services, Healthy People 2010, 2nd ed, With Understanding and Improving Health and Objectives for Improving Health (2 vols.), Washington, D.C., November 2000, available at <http://www.healthypeople.gov/document/html/tracking/thp_intro.htm> (last visited March 20, 2008).+(last+visited+March+20,+2008).>Google Scholar
See Siegel, et al., supra 3.Google Scholar
Centers for Disease Control and Prevention, “Preemptive State Smoke-Free Indoor Air Laws — United States, 1999–2004,” Morbidity & Mortality Weekly Report 54, no. 10 (2005): 250254.Google Scholar
See Jacobson, and Wasserman, , supra note 6.Google Scholar
Nixon, M. L., Mahmoud, L., and Glantz, S. A., “Tobacco Industry Litigation to Deter Local Public Health Ordinances: The Industry Usually Loses in Court,” Tobacco Control 13, no. 1 (2004): 6573.CrossRefGoogle Scholar
See Centers for Disease Control and Prevention, supra note 4; D.A.B.E., Inc., d.b.a. Arnie's Saloon, et al. v. Toledo-Lucas County Board of Health, et al., 773 N.E.2d 536 (2002).Google Scholar
Id. (D.A.B.E., Inc.)Google Scholar
Fred Boreali et al. v. David M. Axelrod et al., 130 A.D.2d 107 (1987).Google Scholar
N.Y. Pub. Health Law § 225(1) (1987).Google Scholar
City of Roanoke Rapids v. Peedin, 478 S.E.2d 528, 533 (1996).Google Scholar
Iowa Code § 142B.2 (2001).Google Scholar
Iowa Code § 142B.6 (2001).Google Scholar
James Enterprises, Inc. v. City of Ames, 661 N.W.2d 150 (2003).Google Scholar
Mitchell's Bar & Restaurant Inc. et al. v. Allegheny County, 924 A.2d 730 (2007).Google Scholar
Michigan Restaurant Association v. City of Marquette, 66 N.W.2d 418 (2001).Google Scholar
Mich. Comp. Laws § 333.12905(2) (2001).Google Scholar
Mich. Comp. Laws § 333.12915 (2001).Google Scholar
Wash. Rev. Code Ann. §§ 70.160.030-.070 (2005).CrossRefGoogle Scholar
Entertainment Industry Coalition v. Tacoma-Pierce County Health Department and the Tacoma-Pierce County Board of Health, 105 P.3d 985 (2005).Google Scholar
JTR ColeBrook, Inc. v. Town of Colebrook, 149 N.H. 767, 829 A.2d 1089 (2003).Google Scholar
Princeton, New Jersey Regional Health Commission Ordinance 2000–01.Google Scholar
LDM, Inc. v. Princeton Regional Health Commission, 764 A.2d 507 (2000).Google Scholar
City of San Jose v. Department of Health Services, 66 Cal. App.4th 35 (1998).Google Scholar
Steffes v. City of Lawrence, 160 P.3d 843 (2007).Google Scholar
Lexington Fayette County Food and Beverage Association v. Lexington Fayette Urban County Government, 131 S.W.3d 745 (2004).Google Scholar
Tri-Nel Management, Inc. v. Board of Health of Barnstable, 741 N.E.2d. 37, Mass (2001); American Lithuanian Naturalization Club, Athol, Mass., Inc. v. Board of Health of Athol, 2006 WL 696704 (Mass.).Google Scholar
Oregon Restaurant Association v. City of Corvalis, 999 P.2d 518 (2000).Google Scholar
Amico's Incorporated, d/b/a Pal's Family Restaurant et al. v. Thomas Mattos et al, 789 A.2d 899 (2002).Google Scholar
City of Tucson v. Grezaffi, 23 P.3d 675 (2001).Google Scholar
Foundation for Independent Living, Inc. et al v. The Cabell-Hunting Board of Health, 591 S.E.2d 744 (2003).Google Scholar
American Cancer Society, et al. v. State of Montana, 103 P.3d 1085 (2004).Google Scholar
McNeil et al. v. Charlevoiz County, 2007 Mich. App. 1465 (2007).Google Scholar
Traditions Tavern et al. v. City of Columbus, 870 N.E. 2d 1197 (2007).Google Scholar
2001 Or. Laws 990; 2001 Or H.B. 2828 (codified at Or. Rev. Stat. §433.83 [2001]). However, Oregon has since repealed preemption of Clean Indoor Air laws, effective January 1, 2009. 2007 Or. Laws 602; 2007 Or S.B. 571.Google Scholar
2005 Mt. Laws 268; 2005 Mt. HB 643; 2005 Mt. Laws 268 provides that the preemptive provisions sunset in 2009.Google Scholar
See Tri-Nel Management, Inc. v. Board of Health of Barnstable, supra note 36.Google Scholar
2004 Mass. Adv. Legis. Serv. c. 137; 2003 Mass. H.B. 4256 (codified at Mass. Gen. Laws ch. 270, §§ 20–22 [2003]).Google Scholar
See American Lithuanian Naturalization Club, Athol, Mass., Inc. v. Board of Health of Athol, supra note 36.Google Scholar
Black's Law Dictionary Pocket Edition, s.v. “stare decisis.”Google Scholar
See supra note 45.Google Scholar
See Mt. Laws and Mt. HB, supra note 46.Google Scholar
Washington Initiative Measure 901 (2005) (codified at Wash. Rev. Code §§ 70.160.020, -.030 [2005]).Google Scholar
Hobart, R., “Preemption: Taking the Local Out of Tobacco Control. Why Big Tobacco Hates Local Control, What It Will Do to Eliminate It, How Advocates Can Fight Back,” American Medical Association, 2003, at 1–21, available at <http://www.rwjf.org/newsroom/SLSPreemption2003.pdf> (last visited March 20, 2008); see Siegel, et al., supra note 3.Google Scholar
See JTR ColeBrook, Inc. v. Town of Colebrook, supra note 28.Google Scholar
See Entertainment Industry Coalition v. Tacoma-Pierce County Health Department and the Tacoma-Pierce County Board of Health, supra note 27.Google Scholar
See Jacobson, and Wasserman, , supra note 6.Google Scholar
See Centers for Disease Control and Prevention, supra note 4.Google Scholar
Phillip Morris, U.S.A., “Legislation and Regulation: Public Place Smoking Restrictions,” available at <http://www.philipmorrisusa.com/en/legislation_regulation/smoking_restrictions.asp> (last visited March 10, 2008); Reynolds, R. J. Tobacco Company, “Our Position on Smoking Restriction,” available at <http://www.rjrt.com/legal/stateBans.asp> (last visited March 10, 2008).+(last+visited+March+10,+2008);+Reynolds,+R.+J.+Tobacco+Company,+“Our+Position+on+Smoking+Restriction,”+available+at++(last+visited+March+10,+2008).>Google Scholar
Task Force on Community Preventive Services, “Guide to Community Preventive Services: Tobacco Use Prevention and Control,” American Journal of Preventive Medicine 20, no. 2, Supplement 1 (2001): 187.Google Scholar
See U.S. Department of Health and Human Services, supra note 3.Google Scholar