Preemption & Local Authority
Washington State's commercial tobacco and vapor product laws preempt all local laws on product sales, retailer density, retailer locations, and advertising.
- Washington is one of only 6 states that broadly preempt most local commercial tobacco policies.
- 19 states have no state preemption of local commercial tobacco regulations.
- 26 states have more limited preemption.
Learn more from CDC STATE System Preemption (fact sheet).
Washington Breathes advocates for comprehensive commercial tobacco prevention policies, practices, and programs that support the right of local communities to innovatively meet their local needs.
Learn about the negative impacts of preemption on our Restore Local Authority page.
What is Preemption?
Preemption occurs when a “higher” level of government eliminates or reduces the authority of a “lower” level to legislate in a certain area. Under the Supremacy Clause of the U.S. Constitution, Congress and federal regulators have virtually unlimited authority to preempt state and local health laws. Similarly, states generally have broad authority to preempt local laws.
Effective public health policies often begin at the local level where they are tested and improved upon, before being adopted at the state level. When local control is eliminated, this process of developing strong public health policies can be lost. This top-down, one-size-fits-all approach often increases health disparities and reduces health equity. Learn more about benefits of local authority.
Restrictive limits on local decision-making in Washington State do not match its history as one of the first states in the country to adopt home rule in 1889. The state constitution, today and as originally drafted, gives cities strong home rule powers: “Any county, city, town, or township may make and enforce within its limits all such local police, sanitary, and other regulations as are not in conflict with general laws” (WA Constitution, Article XI). However, the WA Legislature can choose to adopt legislation that limits local authority that is not specifically protected in the state constitution.
Fundamentals of Preemption
Categories of preemption are described below, however in practice they can overlap. This can make preemption questions difficult to answer.
Types of Preemption
Express preemption – The higher-level law has explicit language stating that it preempts lower-level regulation in that particular area. Several of WA's commercial tobacco laws, described below, have examples of express preemption language.
Implied preemption – The higher-level law does not explicitly state that it preempts all conflicting lower-level laws, but it is possible to determine that the higher authority intended to preempt. Implied preemption can be avoided if a savings clause – an explicit statement noting that a lower-level of government is not preempted from enacting stronger laws – is included in the legislation.
Role of the Courts: The courts often work out implied preemption or any “grey areas” in express preemption language when there is a legal challenge to a local law. However, different courts may not apply preemption tests consistently.
Two Types of Implied Preemption
Field Preemption - This occurs when a court concludes that the higher-level of government intended to occupy the entire field of regulation on a certain issue, leaving no room for additional regulation by lower-level jurisdictions.
Conflict Preemption: If a lower-level law conflicts with a higher-level law, the higher-level law takes precedence. In other words, the lower-level law is void and cannot be enforced.
Exception: a federal or state law can explicitly allow a lower-level law to be different (usually stronger but not weaker).
Degrees of Express Preemption
Floor Preemption: higher level of government passes a law that establishes a minimum set of requirements and expressly allows lower levels of government to pass or enforce laws that impose more rigorous requirements.
Ceiling Preemption: prohibits lower levels of government from requiring anything more than or different from what the higher-level law requires.
Vacuum Preemption: This is when a state prohibits cities from doing something without setting its own regulatory standards, leaving a policy vaccuum.
Nullification Preemption: When a state retroactively nullifies something that a city has already passed. Example, the state passes a new law that nullifies a city referendum passed years ago.
Punitive Preemption: This is when a higher level of government threatens to punish a lower level of government. Example, a state threatens to withhold shared revenue from cities that have ordinances found to be in conflict with state law.
Preemption & Local Authority in WA's Commercial Tobacco Laws
🔴 Express State Preemption for Cigarette & Tobacco Product Sales
Political subdivisions cannot license or regulate tobacco product promotions and sales within retail stores, or address any activities covered by RCW 70.155 on signs, cigarette machine locations, packaging, sampling, coupons, or penalties for youth purchase and possession.
Local laws banning sampling of cigarettes and tobacco products enacted prior to Jan. 1993 may still be enforced locally.
[RCW 70.155.130; first enacted in 1998]
🔴 Express State Preemption for E-Cigarette Sales & Advertising
Local jurisdictions cannot:
X License or regulate the promotion or sales of vapor products, other than general business licenses and taxes. [RCW 70.345.210(1)]
X Prohibit tastings inside licensed retail outlets; or
X Regulate vaping in outdoor public places, except in areas where children congregate; or
X Allow vaping in indoor public places where it is prohibited under state law.
[RCW 70.345.210; enacted in 2016]
🟢 Local Authority to Prohibit Public Smoking & Vaping, with Some Limits 🟡
Local Authority to Prohibit Smoking in Outdoor Public Places
Washington State voters passed a protective Smoking in Public Places law (SIPP law) in 2005 with more than 63% approval. The SIPP law prohibits smoking in public places and places of employment. This law has no explicit preemption language, however, a State Supreme Court Ruling determined that SIPP implicitly preempts almost all local laws relating to smoking in enclosed workplaces and public places.
WA SIPP law also prohibits smoking in outdoor places of employment and defines a 25-foot no smoking area around doors, windows, and air intakes to indoor public places or workplaces.
The WA SIPP law is mostly silent, i.e. it does not address, on other outdoor public places. Therefore localities may pass stronger regulations that restrict smoking in outdoor public places, like parks and playfields, and many local jurisdictions in Washington have taken this action to create healthy outdoor public spaces and protect their citizens from smoke exposures. More than 40 cities and several counties in WA have banned smoking in parks. (link to info on Laws & Regulations page).
[RCW 70.160; effective December 2005]
Local Authority to Prohibit the Use of Vapor Products in Indoor Public Places.
Washington's Vapor Products Act preempts most local regulations around e-cigarettes, but allows local authority to regulate vaping in public places.
“Subject to RCW 70.345.150 of this act, political subdivisions may regulate the use of vapor products in indoor public places.”
Local Authority to Prohibit the Use of Vapor Products in Outdoor Public Places Where Children Congregate.
“No political subdivision may regulate the use of vapor products in outdoor public places, unless the public place is an area where children congregate, such as schools, playgrounds, and parks.”
Thirteen counties in Washington have enacted local ordinances to prohibit vaping in public places and places of employment. Four of these regulations also prohibit vaping in outdoor public places where children congregate. Some cities also have local no vaping in public places laws or policies.
Learn more about WA's laws on smoking and vaping in public.
Resources
- “Better Tobacco Control Policy Starts Locally”, Delmonte Jefferson and Cynthia Hallett for Robert Wood Johnson Foundation blog (July 2022).
- Why Preemption Matters for Tobacco Control, Public Health Law Center, Dec. 2023
- “State Preemption of Commercial Tobacco Regulations: Impact in Washington State“ fact sheet from the Washington State Department of Health.
- Preemption Fact Sheet, CDC State Tobacco Activities Tracking and Evaluation (STATE) System
- Preemption: The Biggest Challenge to Tobacco Control, Tobacco Control Legal Consortium, Public Health Law Center
- Tobacco Point of Sale Preemption, CounterTobacco.org
- Tobacco Point of Sale Playbook 2022, ChangeLab Solutions
- Voices for Healthy Kids, Preemption Toolkit, American Heart Association. The Preemption Creative Toolkit provides ideas on how to talk about changing preemption.
From Public Health Law Center:
- Checked at the Check-Out Counter: Preemption at the Tobacco Point-of-Sale, Public Health Law Center
- Not for Sale: State Authority to End Cigarette Sales, Public Health Law Center
From ChangeLab Solutions:
- Assessing and Addressing Preemption: A toolkit for local policy campaigns,
- Understanding Preemption: A Fact Sheet Series
- The Consequences of Preemption for Public Health & Equity
- Fundamentals of Preemption
- Preemption: What It Is, How It Works, and Why It Matters for Public Health
- Preemption and Public Health Facilitator’s resources
- At-A-Glance: Research on Preemption, Public Health, and Equity
From City Associations:
- "Long Live Home Rule" webpage of the Association of Washington Cities, including a report.
- City Rights in an Era of Preemption: A State-by-State Analysis, National League of Cities Center for City Solutions
- Preemption 101 Fact Sheet, National League of Cities, overviews types of preemption, but does not address tobacco preemption
Other Sources:
- Protect Local Control, Americans for Nonsmokers’ Rights, focusing on smoke-free activity by state, with interactive tools and Preemption Watch Bill Tracking Summary
- Preemption Message Manual, Voices for Healthy Kids
- Preemption Creative Toolkit, Voices for Healthy Kids
- Preemption Key Messaging, Voices for Healthy Kids
- Preemption Message Wheel, Voices for Healthy Kids
- Connecting the Dots: How to Message the Abuse of State Preemption, Local Solutions Support Center
- Talking About Preemption to Different Audiences, Local Solutions Support Center
- Preemption & Public Health Training, Public Health Law Academy, ChangeLab Solutions
- Webinar: Preemption, Public Health, and Equity: The Search for Local Solutions, ChangeLab Solutions
- Webinar: Municipal Issues in an Era of Preemption, Stateside
- Webinar: Federal and State Preemption Basics: What every drafter ought to know, National Council on State Legislatures
- Local Solutions Support Center: a coordinating hub that provides local governments, elected officials and advocates with the strategies, tools and assistance needed to defend local democracy and discourage the use of preemption that limits the ability of cities to protect people’s civil rights, solve problems, and improve lives.
- American Heart Association Voices for Healthy Kids see Preemption Campaign Toolkit
- Association of Washington Cities "Long Live Home Rule" webpage, including a report.
- National League of Cities - Preemption Resources and Preemption 101 Fact Sheet
- National Association of Counties