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Preemption 101: A Primer


At the complex intersection between federal, state and local health laws and policy lies the concern of “preemption,” a term that’s increasingly thrown around, but not always well understood. This week, the Inside Track takes a look at the issue of preemption: what it is, what it isn’t, and what grassroots activists need to know.

First off, what is preemption? Leader Mark Pertschuk, director at the Berkeley, Calif.-based Grassroots Change and an expert on the topic, offers a definition, as written by him and his co-authors in a study for the American Journal of Public Health last year:

Preemption occurs when a higher level of government (federal or state) limits the authority of lower jurisdictions (state or local) over a given matter. For practical purposes, the effect of state preemption is the same as federal preemption: if laws at higher and lower levels conflict with one another, the higher level laws will typically prevail. Among public health practitioners (and most researchers), the term “preemption” usually refers to “ceiling preemption,” by which higher jurisdictions limit the power of lower jurisdictions to adopt stronger protections.

This definition is the more widespread and useful one, Pertschuk explained — as opposed to “floor” preemption, or the setting of minimum public health standards at either the federal or state levels.

The study authors go on to warn that the danger of preemption is that it “can halt state or local innovation, eliminate the flexibility to respond to the needs of diverse communities, undermine grassroots movements, prevent or delay changes in social norms, and concentrate the power of industry lobbyists in Washington and the state capitals.”

Pertschuk notes that industry advocates lobbying Congress or state legislatures have focused sharply on preemption as a strategy, while public-health advocates are sometimes distracted by other issues and overlook the risks outlined above. “We almost have this happy-go-lucky approach; if we ignore this we don’t have to deal with it,” he says. He encourages activists to keep their “eyes wide open” and be ready to bring to public and media attention instances in which federal or state preemption are being used as a legislative tactic.

The Institute of Medicine, which has extensively explored the issue, does note that “in a few areas of public health, federal preemption seems highly appropriate,” giving the example of the federal ban on smoking on airplanes. But it cautions that such “ceiling” preemption should be reserved for “situations where national uniformity is absolutely necessary and only after the impact on public health and enforceability has been thoroughly assessed and mitigated.” Otherwise, IOM says, “floor” preemption is the more appropriate option in public-health policy.

Grassroots Change tracks the issue on the “Preemption Watch” section of its website, and offers advocates a toolkit including fact sheets, issue briefs and best practices.

“You find a remarkable amount of coming together around the issue of local democracy, and that’s true on food issues as well,” Pertschuk says.

In the an upcoming Inside Track, we’ll take what we’ve learned in “Preemption 101” and apply it to some of the food policy issues that our Leaders and Supporters work on every day.

Donna Brutkoski authored this article.