Preemption

The U.S. Constitution contains what is referred to as the Supremacy Clause, which provides: “This Constitution, and the laws of the United States ... shall be the supreme law of the land ... laws of any State to the contrary notwithstanding.”² This means that the federal government’s laws are supreme and that no state law can conflict with federal law. Also remember that no federal law enacted by Congress or a federal agency can violate the Constitution. So this means the U.S. Constitution is supreme, followed by federal laws, followed by state laws, and then local laws.

Part and parcel of this hierarchical framework is the concept of preemption. Preemption occurs when a higher level of government restricts or trumps the authority of a lower level of government to address a specific issue. The term preemption usually refers to “ceiling” preemption, meaning that the higher level of government sets a ceiling on what lower levels of government can do. The word preemption will be used in this sense throughout the book. Higher levels of government, however, are not required to limit lower levels in this manner. Instead, the higher level of government can enact minimum requirements, also referred to as floor preemption, that all j urisdictions must follow while still allowing states to enact stronger laws to protect their citizens. Definitions related to preemption can be found in Table 2.1.

The concept of preemption is very important to all public health law. States have the same power to preempt local governments and use preemption to varying degrees. When the federal or state government preempts states or locales from acting to protect health, it contravenes basic principles of the federalist framework and can also hurt public health progress. A particularly revered Supreme Court Justice, Justice Brandeis, explained: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”³ Writing in 1932, he portended novel food policy experiments, such as those enacted under New York City Mayor Bloomberg’s administration from 2002 to 2013. Many of the city’s food policies were later adopted by other cities and states around the country and also led to changes at the federal level. Had New York City been preempted from trying out these novel approaches, we

TABLE 2.1

Preemption Definitions

Source: Pertschuk, M, Pomeranz, JL, Aoki, JR, Larkin, MA, Paloma, M. Assessing the impact of federal and state preemption in public health: a framework for decision makers. Journal of Public Health Management Practices. 2013;19(3):213-219.

might not have prohibitions on trans fat in our food supply or menu-labeling laws today.

Preemption often occurs at the impetus of the industry being regulated. Industry members lobby policymakers in higher levels of government to urge them to withdraw the power of lower levels of government to act on a particular issue. Most public health advocates and policymakers seeking to support public health have had to face preemptive challenges. The industry argues that it does not want to deal with a “patchwork” of regulations at the state or local level, so it urges the federal or state government to pass one law, often with weaker standards than enacted at the lower level, and include a clause expressly preempting stronger actions. For example, when two cities in California, Santa Clara and San Francisco, enacted two different menu-labeling laws, the California Restaurant Association successfully lobbied the state legislature to pass a state menu-labeling law that preempted local laws. When the California law passed, it nullified the previously enacted Santa Clara and San Francisco laws.

Sometimes an industry seeks to avoid all regulation on a topic by lobbying for a national or statewide law preempting any lower government action. The industry urges pro-business policymakers to preempt public health laws, arguing that the law would undermine profits or make doing business in the jurisdiction more difficult. For example, after the city of Cleveland, Ohio passed a trans fat ban, the Ohio state legislature passed a broad law preempting the ability of local governments to regulate food service establishments. Recall from Chapter 1 that local governments are generally the primary regulators of food service establishments. This is thus an example of a case where state uniformity was not necessary and the legislature was seeking to support business interests over public health concerns in the state. See the case study in Box 2.1 for more details on the outcome of this law.

BOX 2.1

Case Study: Cleveland v. Ohio, Trans Fat Ban

In April of 2011, the city of Cleveland, Ohio adopted an ordinance titled, “Foods Containing Industrially-Produced Trans Fat Restricted,” which prohibited the use of industrially produced trans fats in food sold at food service establishments. Subsequently, the Ohio state legislature adopted a law that expressly conflicted with the Cleveland ordinance by broadly disallowing municipalities from regulating food service operations by using a method that would ban food based on nutrition information. Cleveland sued the state of Ohio and argued, among other things, that the state law violated the state constitution's grant of Home Rule authority to local governments. Specifically, the Ohio Constitution's Home Rule Amendment gives municipalities the “authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”⁸

The Ohio Court of Appeals had to determine the constitutionality of the Ohio law according to the Ohio Constitution. Among other determinations, the court noted the process by which the law was passed was questionable, stating: “We also have concerns regarding the process behind how the amendments were passed. In response to the city of Cleveland's trans-fats Ordinance, the Ohio Restaurant Association (“ORA”) sent an email to the Ohio Department of Agriculture with an attached legislative proposal. The email stated that the Ordinance was ‘exactly what we want to preempt with the attached amendment.' The email also stated that the amendment was ‘a high priority for Wendy's, McDonalds and YUM! [YUM! Brands, Inc. operates and licenses Taco Bell,

KFC, and Pizza Hut].' According to the email, a senator had already been given a copy of ORA's proposed legislation and would offer it in the Senate Finance Committee. Thus, the amendments were drafted on behalf of a special interest group with the specific purpose of snuffing out the Ordinance.”^b Moreover, the Court found that the amendment was “tucked away” in the state's appropriations bill and thus was “not vetted by the usual committee process.”^c The court found that the state law unconstitutionally limited the municipality's Home Rule powers.

Cleveland was fortunate to be in a Home Rule state. In contrast, in 2013, Mississippi passed a law broadly preempting local jurisdictions from regulating restaurants in several ways, including banning trans fats, or limiting portion sizes or salt content.^d Mississippi, however, is a Dillon's Rule state,^e so local jurisdictions did not have the same recourse as Cleveland if they disagreed. Therefore, unless the federal government passes a law mandating such requirements, or the state changes course and does the same, no city or town in Mississippi may regulate restaurants in the manner proscribed by the preemptive law. (See Chapter 5 on the federal Food and Drug Administration's 2015 action to remove trans fats from food; the federal government has not proposed a law to limit portion size or sodium content.)

Source: Cleveland v. State of Ohio, 989 NE.2d 1072 (Oh. Ct. App. 2013). ^aOhio Constitution, Section 3, Article XVIII.

Cleveland v. State of Ohio, 989 NE.2d 1072, 1085 (Oh. Ct. App. 2013). ^cCleveland v. State of Ohio, 989 NE.2d 1072, 1085 (Oh. Ct. App. 2013).

^dK. Severson. ‘Anti-Bloomberg Bill' in Mississippi Bars Local Restrictions on Food and Drink.

New York Times. March 13, 2013.

^eNational League of Cities. Local Government Authority. http://www.nlc.org/ build-skills-and-networks/resources/cities-101/city-powers/local-government-authority

Sometimes a single national rule makes sense and thus preemption may be more acceptable to public health advocates. This occurs when there is a need for national uniformity or when it would be difficult or impossible for an industry to comply with various different laws across the country. The penultimate example pertains to airline regulations. It would be impractical for an airplane flying across the country to comply with different laws as it passed over each state. In the food context, it is generally agreed that national labeling requirements for packaged food make sense so food companies doing business nationally do not have to conform to 50 different state requirements for food labels (or even more divergent local requirements), which would make conducting business throughout the country difficult. Conversely, in the case of regulating local businesses, such as food service establishments, statewide or national uniformity is not necessary. As will be discussed in Chapter 9, most regulation that impacts local interests in public health, safety, and welfare occurs at the state and local level. Consider restaurants: they are subject to inspection by state or local authorities for compliance with health codes, building codes, and labor codes, and these vary by jurisdiction.

Often the best thing for public health is for the federal or state government to enact minimum floor requirements that lower levels of government must follow, but which simultaneously permit the latter to go further to protect public health. The Institute of Medicine recommends this strategy, explaining that federal and state policy makers “should set minimum standards ... allowing states and localities to further protect the health and safety of their inhabitants,” and “should avoid language that hinders public health action.”^[1] This type of scheme is utilized in the federal National School Lunch Program (NSLP), for example. In order to ensure that the nation’s children have access to healthful food at school, the federal government enacted nutrition standards for all schools participating in the NSLP; however, state and local governments can enact stronger requirements to protect the children in their jurisdictions.

In addition to permitting elected officials to respond to the needs of their constituents, floor requirements allow jurisdictions to respond to evolving science and novel problems. When a government entity preempts local control, this effectively halts progress. For example, in the menu-labeling context, the federal law requires that covered restaurants must disclose calories on their menus and preempts nonidentical state and local laws. So if scientific research reveals that the calorie labeling is not as effective as previously hoped and the disclosure of portion size information, for example, would be more effective instead; or, if a local community’s population is plagued by diabetes so perhaps sugar labeling would be helpful; or, if another community has a high prevalence of hypertension and would benefit from sodium information, state and local governments are preempted from enacting these laws because they would conflict with the federal law.

• [1] Institute of Medicine. For the Public’s Health: Revitalizing Law and Policy to Meet NewChallenges. Washington, DC: The National Academies Press; 2011.