E v i d e n c e - b a s e d public h e a l t h 0 llarct~ml Brace and Company Ltd 1998

The tobacco industry is seeking to prevent local communities from taking legal action by pre-emptive legislation at State level

Siegel M, Carol J, Jordan Jet al. Pre-emption ht tobacco control: review of an emerging public health problem. JAMA 1997; 278:858-863

Background

Legislation is an important and effective public health intervention in smoking control. The tobacco industry is seeking to counter this by preventing local legislation that is known to be effective.

Objective

To review tobacco control legislation and analyze the relationship between State legislation and actual or potential legislation by local communities.

Setting

USA.

Method

A computerized database of community tobacco control ordinances (local legislation), State tobacco control laws, and pre-emption bills introduced during the 1996 State legislative session were reviewed. The

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content of the pre-emption bills and the State laws were analyzed by multiple observers. The data were then synthesized for the report.

Literature review

Explicit search strategy of local tobacco control ordinances, State laws and the medical literature; 64 references.

Results

By the end of 1995, 1006 communities had enacted a local tobacco control ordinance. In 29 States, the tobacco industry has now put forward legislation to pre-empt local authority tobacco control through the power

to issue a local ordinance. During 1996 alone, 26 bills containing pre-emption clauses were introduced and two were enacted. Emerging trends in the strategy to prevent local tobacco control ordinances were identified, notably:

1. Amending legitimate tobacco control bills to pre-empt local tobacco regulations. In this technique, the tobacco industry uses a bill prepared by public health advocates. In this approach, a bill to prevent, for example, access by young people to cigarette sales, is amended by supporters of the tobacco industry to include pre- emption as well as the beneficial objective of the bill.

2. The straight promotion of 'super-pre- emption bills' to preclude all local action by community governments on tobacco issues. During the 1996 session, eight of the 26 pre-emption bills that were introduced contained a super-pre-emption clause that would have eliminated all local government powers to regulate any aspect of tobacco policy.

3. Use of the retail industry to advocate alternative approaches to tobacco control, combined with pre-emptive legislation.

Authors' conclusions

The authors conclude that the tobacco industry is developing a very effective pre- emption strategy and that public health advocates are sometimes insufficiently sophisticated to detect and counter this strategy. They conclude that: 'local control should be viewed as a public health tool that must be protected and all attempts to enact pre-emptive legislation should be fought vigorously by the public health and medical communities.'

Having been one of the first countries to recognize the unique dangers of tobacco, the USA has been both a disappointment and a source of inspiration. Federal government has failed to deliver, but tough tobacco control measures have been implemented at state, county and community level, despite massive opposition from the tobacco industry. This paper examines a tactic developed by the industry to try to prevent such successes and sends important warning signals to public health advocates worldwide.

Legislation is the most essential component of tobacco control; any deliberately weak law that pre-empts the passing of new, effective legislation is a damaging block to progress. Consumer power and community action have often proved unstoppable in the USA (a cause of bitterness by some local advocates at perceived compromise by colleagues in Washington DC recently} and have led to some of the world's toughest smoking bans in public places, hard-hitting education programs and other measures. Hence the industry's often secret backing of bogus tobacco control bills - at first sight major improvements but actually Trojan horses of pre-emption.

Such tactics are already appearing elsewhere, including developing countries, increasingly the industry's focus. When any level of government contemplates legislation, careful analysis of the prospective measures is essential. Public health needs tobacco control advocates who are trained, equipped and well-informed to monitor and respond to the tactics of tobacco companies. Nurturing them in developing countries should be an urgent priority for development aid; the turnover of just one trans-national tobacco company is several times the GNP of many developing countries.

David Simpson Hon MFPHM International Agency on Tobacco and Health,

London, UK

SEPTEMBER 1998 EVIDENCE-BASED HEALTH POLICY AND MANAGEMENT 65