Preemption

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This article is part of the Tobacco portal on Sourcewatch funded from 2006 - 2009 by the American Legacy Foundation.

This website is a community resource for posting news and information on preemption bills moving across the country in 2015.

Preemption is a strategy used by corporate lobby groups and special interests to prevent localities from introducing and passing new legislation, for instance local paid sick days laws. When special interests learn that the people of a local community are planning to pass a certain law they disagree with, they intervene by lobbying the state legislature to pass a state law prohibiting the local community from passing their own local ordinance. The technique was first used as a deliberate strategy by the U.S. tobacco industry in the 1990s to prevent localities from protecting the public from smoking (more below). In 2015, the technique is being promoted by the American Legislative Exchange Council (ALEC) to attack "Raise the Wage" and other local campaigns.

Click here for an interactive map of preemption laws in the U.S., a project of Grassroots Change.

Preemption Watch News, a project of Grassroots Change

Featured News Clips

July 2015

National

  • H.R.1599, the Safe and Accurate Food Labeling Act of 2015

Alaska

Florida

  • "Can Orlando kick its polystyrene habit?," Orlando Weekly, July 15, 2015. Polystyrene, which is used by restaurants for to-go containers, has been banned in Miami Beach after they reviewed the state statute that prevented "municipalities from banning plastic bags and related products."

Hawaii

Idaho

Massachusetts

Michigan

Missouri

  • Vetoed by Gov. Nixon (D) HB 722 would have preempted local minimum wage and benefits laws, and plastic bag bans.

North Carolina

  • "Health board identifies focus areas," Reflector.com, July 14, 2015. "The Pitt County Board of Health...board members approved a resolution asking the state for more autonomy over tobacco regulation" in light of the state’s preemption of local authority over tobacco.

Ohio

Oregon

Pennsylvania

  • "House Co-Sponsorship Memoranda," Pennsylvania House of Representatives, July 8, 2015. PA State Representative Mark Keller seeking co-sponsors for re-introduction of the firearms “super preemption” bill after the Commonwealth Court found Act 192 of 2014 unconstitutional.

Texas

June 2015

National

Arizona

Arkansas

  • Arkansas Act 137 preempts local authority to enforce anti-discrimination policies inconsistent with the state’s, effectively targeting LGBT protections.

Maine

  • Maine LD 1361, which would have preempted local authority to set higher minimum wages than the state’s, was passed by the state Senate on 6/18, but rejected by the state House on 6/22.

Michigan

  • Michigan HB 5500 was a firearm super-preemption bill to penalize local governments for adopting or implementing gun regulations more stringent than the state’s; MI state Representative Chatfield (R) plans to file a duplicate or similar bill this session.

Minnesota

  • Minnesota HF 843, the “Omnibus employment and economic development bill,” would preempt all local minimum wage and benefits requirements (including paid sick days) which are higher than the state minimum.

Missouri

  • HB 722 which preempts local minimum wage and benefits laws, as well as local plastic bag bans, has been sent to the Governor.

Nevada

  • Nevada SB 477 limits the authority of cities and counties to adopt local building codes requiring the installation of fire sprinklers in single family residences.
  • Nevada SB 175 and SB 240 were signed into law June 2, 2015. Each bill contained identical provisions enhancing state preemption of local firearm laws.

New Jersey

  • New Jersey S 785 preempts local authority to set paid sick day minimums higher than the state's, but exempts laws passed prior to the passage of S 785.

North Carolina

  • North Carolina HB 304 limits local control of communities to regulate billboards, making it costly for local governments to regulate new outdoor advertising, and confers more property rights on billboard owners, including the right to remove trees and local vegetation, which concerns environmentalists.
  • Environmental advocates say HB 760 takes away much local control over environmental standards.
  • Orange County Health Department Resolution requesting that the North Carolina General Assembly rescind preemption of tobacco regulation, including electronic cigarettes, and therefore restore local control over tobacco policies. June 15, 2015.

Oregon

  • Oregon SB 454, which mandates paid sick days while also preempting local authority to mandate paid sick days,[1] was signed by Gov. Kate Brown (D) on 6/22/15.

Pennsylvania

  • Pennsylvania HB 682 would amend PA's Clean Indoor Air Act to include e-cigarettes, close loopholes, and repeal preemption.
  • A Pennsylvania Commonwealth Court blocked the enforcement of Act 192, the scrap metal theft bill with a super-preemption clause added which preempted local firearms policies, and allowed for organizations to sue cities for gun control policies. The ruling stated the Act violated the single subject requirement of the state constitution. An appeal to the state’s Supreme Court is likely.
  • "Editorial: Pennsylvanians win with repeal of Act 192," Daily Times, June 30, 2015. Act 192, special-standing/preemption legislation that allowed gun advocates to sue Pennsylvania cities that enact their own gun control ordinances even if the laws are unenforceable, was ruled unconstitutional last Thursday by the seven members of the state appeals panel.

Texas

  • Texas HB 905, which adds air guns and knives to the state’s existing firearms preemption law, has been signed by the Governor.

May 2015

National:

Illinois

  • Illinois SB 2130, which would repeal state preemption of local firearm and ammunition laws.

Indiana

  • Mark Wilson, "Appeals court hears Evansville gun case," Evansville Courier & Press, May 6, 2015. Removed from the Mesker Park Zoo for openly carrying a handgun, a gun owner is suing the city of Evansville, asserting that the city's gun laws are invalidated by the Indiana Firearms Preemption Act.

Michigan

  • Michigan HB 4052, dubbed the "Death Star" bill, preempts local regulations on employer-employee relationships.
  • Michigan SB 305, which preempts local regulation of knives.

Missouri

  • Missouri HB 722, which preempts local minimum wage and benefits laws, and plastic bag bans.

North Carolina

  • North Carolina HB 662 would repeal North Carolina's requirement that a prospective handgun buyer obtain a pistol permit from the county sheriff. That process includes a criminal background check.

Ohio

Oklahoma

  • Oklahoma SB 809 preempts local authority to regulate oil and gas operations.

Oregon

  • Oregon SB 454 requires that “Employers who employ at least six employees shall implement a sick time policy that allows an employee to earn and use up to 40 hours of paid sick time per year” and preempts local authority to enact higher standards for paid sick days.

Texas

  • Texas HB 40, which would prohibit local fracking bans.
  • Texas HB 905 would add air guns and knives to the state’s existing firearms preemption legislation.

Utah

Vermont

April 2015

National:

Alabama

  • Alabama HB 495, A bill that would preempt local minimum wage, benefit and paid sick days ordinances that are stronger than the state’s is currently under discussion in committee, April 14, 2015.

Arizona

Arkansas

  • Arkansas Act 137, which overrides local anti-discrimination ordinances.

California

  • California SB 14, which created a regulatory framework for hydrofracturing and other oil and gas operations, includes protections for local regulation of oil and gas industry.

Florida

  • Florida HB 1205, a fracking ban preemption bill.

Idaho

Louisiana

Maryland

Minnesota

  • HF 843, omnibus bill that preempts all local minimum wage and benefits requirements (including paid sick days) which are higher than the state minimum.

New Jersey

North Carolina

  • HB304, proposed preemption of local (and some state) authority over billboards.

Oklahoma

  • Oklahoma SB 809, which preempts local authority over oil and gas operations, and SB 468, which penalizes local jurisdictions that regulate oil and gas operations.

Oregon

Pennsylvania

  • SB 333, sick leave preemption bill.

South Carolina

  • South Carolina SB 3431, a minimum wage and paid sick days preemption bill.

Texas

  • HB 3263, would pre-empt the right of cities to establish rules to regulate businesses licensed by the state
  • HB 40, would pre-empt local control over fracking
  • SB 1673, "an adaptation of the earlier SB 343" seeks to preempt all local control to "adopt ordinances that regulate anything preempted by state law."

Washington

  • HB 2136, would preempt local enactment or enforcement of "a moratorium or prohibition on the production, processing, researching, or retail sale of marijuana." However, the bill would allow for a citizen petition process to place proposed bans on the local ballot as initiatives.

March 2015

February 2015

January 2015

2014

2013

2012

ALEC Preemption Bills from ALECexposed.org, a project of the Center for Media and Democracy

External Resources

Preemption Strategies Used by the Tobacco Industry

The tobacco industry developed and implemented a variety of corporate and lobbying strategies to thwart legislation, regulations or public organizing activity that they perceived would be detrimental to business, before such action started. The industry's preemptive strategy was first noticed around 1991, when a confidential memo written by Michael J. Kerrigan of the Smokeless Tobacco Council revealed a new strategy the tobacco industry was using to head off smoking bans across the country: Instead of flatly opposing all anti-smoking laws, the industry had started pushing states to adopt weak, or loosely-written smoking laws that prevented towns, cities and counties from approving tougher, local anti-smoking ordinances of their own. The approach had worked in several states by that time, including Iowa, where a new state law had prevented localities from passing any anti-smoking rules at all. Kerrigan's memo states that, in order to pass, the preemptive legislation must give the appearance of being a comprehensive tobacco control regulatory scheme.[2][3]

Philip Morris' Use of Preemption Strategy

Philip Morris employed a preemption strategy widely in 1994 when it introduced its "Accommodation Program," in which the company worked to compel the establishment of separate smoking and non-smoking sections in public venues like restaurants, hotels and bowling centers. PM rolled out its Accommodation Program as a response to a proposed smoking ban in Pennsylvania. The idea was to convince business owners to establish smoking sections so the public would feel as though something had been done about the problem of secondhand smoke; this in turn would convince legislators that legislation to regulate tobacco smoke would be unnecessary.[4]

Philip Morris, however, took the strategy further, working to enact legislation in all 50 states to preempt local smoking restrictions.[5]

In a 1994 draft speech to the Philip Morris USA Trade Council, Ellen Merlo, Senior Vice President of Corporate Affairs at PM, describes a major PM strategy to thwart public health efforts to restrict indoor smoking: shift the argument away from the health effects of secondhand smoke exposure and onto "accommodation" and indoor air quality in general. She describes PM's strategy to enact what the company calls "accommodation legislation," which will "serve to pre-empt local smoking restrictions which tend to be more severe." [6]

Other Forms of Corporate Preemption

Introduction and Passage of Weak Legislation

As indicated above, a common preemptive tactic is the introduction and passage of weak legislation that has little if any effect on corporate operations, sales, etc.

Lawsuits

Corporate preemptive efforts can take several different forms, including lawsuits. In the case of efforts by localities to pass bans on plastic grocery bags, groups funded by the plastics industry have emerged and sued to repeal such laws. [7][8]

PR Campaigns and "Public Education" Programs

A memo from Wendy Leavell of Philip Morris' (PM) public relations firm of Karsh and Hagan in Colorado discusses strategies of how to do a test "rollout" of two Philip Morris programs aimed at heading off legislation: the Accommodation Program and a "youth smoking prevention program." The key line showing that PM' youth anti-smoking program is a strategy to preempt further legislation comes in the fifth paragraph of the memo, where Leavell says:

While we accept that both programs [Accommodation and the youth program] have significant value as major tactics in a strategy to achieve a kind of pre-emption, we believe the clutter of messages ... in one community will make measuring success of either program difficult.[9]

Sourcewatch resources

References

  1. ↑ George Rede, "Oregon paid sick leave bill passes first legislative hurdle," The Oregonian, March 25, 2015.
  2. ↑ Gary Lee, The Washington PostTobacco Lobby Lights A Preemptive Strike: Effort Targets Local Anti-Smoking Laws Magazine article. 1 page. September 9, 1991. Liggett Bates No. LG0138603
  3. ↑ M.J. Kerrigan, Smokeless Tobacco Council A Proposed Comprehensive Tobacco Control Act in California Memorandum. 6 pages. June 28, 1991. Tobacco Institute Bates No. TCAL0232057/2062
  4. ↑ Philip Morris Press release March 14, 1995. 2 pp. Bates No. 2047874365/4366
  5. ↑ Ellen Merlo, Philip Morris No title Speech/presentation. October 24, 1994. Bates No. 2040236685/6706
  6. ↑ R,JG Ellen Merlo issues talking points to PM USA Trade Council: The Major Issues Speech/presentation. January 11, 1994. 48 pp. Bates No. 2022811708/1755
  7. ↑ Will Oremus Palo Alto settles lawsuit over plastic bag ban San Jose Mercury News. July 28, 2009
  8. ↑ Phuong Le, Associated Press Seattle is front line in grocery bag fee fight August 14, 2009
  9. ↑ W. Leavell, Philip Morris Youth Program Test City Memorandum. September 7 1994. Bates No. 2046829061/9062
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