Preemption of local smoke-free air ordinances: the implications of judicial opinions for meeting national health objectives

J Law Med Ethics. 2008 Summer;36(2):403-12, 214. doi: 10.1111/j.1748-720X.2008.00284.x.


Elimination of state laws that preempt local antismoking ordinances is a national health objective. However, the tobacco industry and its supporters have continued to pursue state-level preemption of local tobacco control ordinances as part of an apparent strategy to avoid the diffusion of grassroots antismoking initiatives. And, an increasing number of challenges to local ordinances by the tobacco industry and persons supported by the tobacco industry are being decided in state supreme courts and courts of appeals. The outcomes of seemingly similar cases about the validity of local smoke-free air ordinances vary significantly by state. This paper examines the common and unique aspects of the decisions and the potential implications of court rulings on preemption for future state tobacco control efforts and achievement of national health objectives around the elimination of preemption. Using a search strategy developed for the Centers for Disease Control and Prevention's State Tobacco Activities Tracking and Evaluation (STATE) System, cases where a state or federal appellate level court made a finding on the validity of a local smoke-free air ordinance or regulation were identified in 19 states. In contrast to previous studies, we found that cases in approximately half of states were decided for local governments. We also found that across the states, courts were considering similar factors in their decisions including the extent to which: (1) the local government possessed the authority to pass the ordinance, (2) the ordinance conflicted with the state constitution, and (3) state statutes preempt the ordinance.

Publication types

  • Research Support, U.S. Gov't, P.H.S.
  • Review

MeSH terms

  • Air Pollution, Indoor / adverse effects
  • Air Pollution, Indoor / legislation & jurisprudence*
  • Focus Groups*
  • Health Policy / legislation & jurisprudence*
  • Humans
  • Public Health / standards*
  • Smoking / adverse effects
  • Smoking / legislation & jurisprudence*
  • Tobacco Smoke Pollution / adverse effects
  • Tobacco Smoke Pollution / legislation & jurisprudence*
  • United States


  • Tobacco Smoke Pollution