10th Biennial Childhood Obesity Conference July 16, 2019

Define and explain preemption Cross-topic issue nationally Detrimental to public health nutrition/food policy and health

equity

Federal government State governments Local governments

When a higher level of government withdraws or limits the authority of a lower level of government to act

Sets maximum standards

State/local law may not exceed federal/state law

Creates uniformity (for better or worse)

Being used by states to block public health policy

Sets minimum standards

States/localitiess may go beyond this floor

Allows for additional protection

Good for public health/social justice

E.g., Civil Right Act

FEDERAL AND STATE 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.

For the Public's Health: Revitalizing Law and Policy to Meet New Challenges, Committee on Public Health Strategies to Improve Health, Institute of Medicine. June 21, 2011

Explicitly allows state/local laws

Often seen with floor preemption

Advocates can try to get these added to federal/state bills

“State agencies and/or local educational agencies may impose additional restrictions on competitive foods, provided that they are not inconsistent with the requirements of this part.”

Previously one part of substantive policy

Now CEILING PREEMPTION passed alone

Most commonly to block public health action

Anonymous survey of mayors and health officials in large US cities (150 000+)

98%/93% of respondents: preemption an obstacle to local policymaking across 23 topics 22 public health issues! 100% of them preempted by state law

When faced with preemption: 60%/ 72% abandoned or delayed local policymaking

Rutkow et al. AJPH 2019; Pomeranz AJPH 2019

Oregon’s sanctuary state law (1987) Prohibits state and local law enforcement from using public

resources to detect or apprehend persons whose only violation of law is that they are persons of foreign citizenship in violation of federal immigration laws.

ORS § 181A.820

VAST Majority State Preemption Anti-Public Health

Multinational corporations Trade Associations Front Groups American Legislative Exchange Council (ALEC)

Kansas food policy preemption based on an ALEC-model bill intended for adoption in all 50 states.

Industry representatives state associations state branches of national trade associations.

No local Kansas business testimony

Pomeranz, Pertschuk AJHP 2019

Earlier Preemption: local innovations* Menu labeling Toy ordinances Trans fat bans

Food and beverage taxes “Food-based health disparities” Nutrition labeling Growing/raising livestock, crops, animals Consumer incentive items Marketing Sale of food/beverages Portion size Combination of the above

WA

OR

CA

MT

ID

NV

AZ

UT

WY

CO

NM

TX

OK

KS

NE

SD

NDMN

IA

MO

AR

LA

MSAL

GA

FL

SCTN*

NC

IL

WI MI

OHIN

KY

WV VA

PA

NY

ME

VTNH

NJDE

MD

MA

CTRI

AK

HI

State Preemption of Local Food and Nutrition Policies

*preempts non-elected bodies of local government only

See also Pomeranz et al AJPM 2019

Because of the way industry is winning

Washington State: YES! TO AFFORDABLE GROCERIES Coca-Cola Company, Pepsico, Dr Pepper Snapple Group, Red Bull North America

As of July 2018, the campaign's biggest expenditure, $1.3 million to signature-gathering firm

The State of Kansas and All Political Subdivisions Cannot Address: food nutrition information consumer incentive items food-based health disparities foods and beverages approved for sale the growing or raising of livestock or crops for food and approved for sale “Retail Food Establishment” or “Food Service Operation” Any place food given/sold

Kan. Stat. Ann. §12–16,219; Pomeranz, Pertschuk AJHP 2019

Front Groups,Astroturfing

Undermine local democracy/self-determination Undermine voters and Voters unaware

Divide: corporate vs. human interests Local governments historically innovative

Equity implications of local self-determination in communities with health disparities Local policies often address disparities and

inequitable health outcomes Local needs/values overlooked when states

preempt Local enforcement often not possible

Source: Montez 2018. “How state preemption laws prevent cities from taking steps to improve health and life expectancy” Scholars Strategy Network, Key Findings Brief. http://www.scholarsstrategynetwork.org/brief/how-state-preemption-laws-prevent-cities-taking-steps-improve-health-and-life-expectancy.Notes: States with preemption laws in 0 of the 8 policy domains include CA, HI, IL, MA, NJ, NY; states with laws in 1 domain include CT, DE, ME, MN, MT, NE, NM, VT, WV, WY; states with laws in 2 domains include AK, CO, IA, KY, MD, ND, RI, TX, WA; states with laws in 3 domains include AR, ID, IN, NV, OH, OR, PA, SC, VA; states with laws in 4 domains include LA, MI, MS, MO, NH, SD, UT; states with laws in 5 domains include AL, AZ, GA, KS, NC, OK; states with laws in 6 domains include FL, TN, WI.

5

6

7

8

9

76

77

78

79

80

81

0 1 2 3 4 5 or 6

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Number (of out of 8) Policy Domains that States have Enacted Preemption Laws

U.S. state preemption laws and life expectancy

THANK YOU!

jlp284@nyu.edu