Tobacco Preemption: What is it, why does it matter, and how does it affect New Mexico?
In 2019, 34% of high school students in New Mexico used e-cigarettes on at least one day in the past 30 days, higher than the national rate of 27.5%. In the same year, 8.9% of New Mexico high school students smoked cigarettes on at least one day in the past 30 days, higher than the national rate of 5.8%.1,2 We know that the younger you are when beginning tobacco product use, the more likely it is that it will become a lifelong addiction.
It’s important to prevent youth from accessing tobacco and have laws in place that allow all levels of government, federal, state and local, to make laws towards tobacco prevention. But oftentimes, higher levels of government have the authority to limit, or even eliminate, the power of a lower level of government to regulate a certain issue. This concept is called preemption.3
In New Mexico, when it comes to certain types of tobacco prevention policy, there is preemption but specifically, ceiling preemption. This ceiling preemption means that lower levels of government in New Mexico are prohibited from requiring anything more than or different from what the state government requires pertaining to these certain types of tobacco prevention policies.3 By preventing local municipalities from passing stricter regulations, local communities are unable to protect their youth from the dangers of tobacco products.. It also means that New Mexico communities must await for statewide tobacco prevention policy change, a much longer process.
Starting in the 1980’s, the tobacco industry saw the rapid increase in local smoke-free air laws and wanted to prevent local communities from continuing to pass these and other types of innovative tobacco prevention policies.4 So, they began including preemption language in state legislative bills, including in New Mexico in 1993.5
Tobacco preemption exists in three main categories:6 licensure, smokefree air and youth access. Table 1 tracks how New Mexico and the U.S. stand with the three aforementioned main tobacco preemption categories.
Table 1: Any Type of Tobacco Preemption Landscape
The one area of tobacco preemption that New Mexico is facing, ceiling preemption on youth access, is one nearly half of the United States also face. But what exactly does youth access mean? Table 2 breaks that down.
Table 2: Youth Access Local Tobacco Preemption Landscape7
In New Mexico, removing preemption with youth access, and specifically with sales to youth, would allow for innovative and impactful point-of-sale tobacco prevention policies to be passed, locally. These include capping the number of tobacco retailers in your New Mexico locality, and restricting the sale of certain or all flavored tobacco products, including menthol cigarettes, among other possibilities.
Repealing Preemption is important to our efforts in tobacco control because:
Public Health, including tobacco control and prevention, is local! Change often starts from the bottom up with concerned citizens.
Local control allows local law enforcement agencies or health agencies, depending on how the law is written, to conduct compliance checks against sales of tobacco products to minors in their communities.
Every city, town, and community is unique and faces its own challenges when it comes to tobacco use. Allowing localities to address policy change as they see fit in their own locality can help create more equitable communities.
Repealing preemption can be a long process, but addressing preemption is crucial to protect New Mexico youth and save lives from the ills of tobacco products, including e-cigarette and vapor products. New Mexico is a very unique and vast state. From Albuquerque to Las Cruces, and from Farmington to Portales, every community faces its own, unique challenges. Tobacco use is the leading cause of preventable death in New Mexico and tobacco product use but impacts some localities and counties much more than others. When it comes to protecting New Mexicans, and especially New Mexican youth, shouldn’t individuals from New Mexico’s cities, towns, and communities, who best know their communities, have the ability and resources to locally address tobacco issues in order to save lives?
2019 New Mexico Youth Risk and Resiliency Survey (YRRS). http://youthrisk.org/pdf/connections/YRRS_Connections_v7n2_July%202020_Tobacco%20Trends%202019_071420.pdf
Products, C. F. (n.d.). NYTS. Retrieved from https://www.fda.gov/tobacco-products/youth-and-tobacco/youth-tobacco-use-results-national-youth-tobacco-survey
Fundamentals of Preemption. (2010). Retrieved from https://publichealthlawcenter.org/sites/default/files/resources/nplan-fs-fundamentals-2010.pdf
Images, P. D., Kellett, G., Gigi KellettGigi Kellett is managing director for Corporate Accountability, &, A. K., Shaw, D., Woronczuk, A., & Hoeffner, M. K. (2020, July 25). The Food Industry Puts Profits Over Public Health Using Big Tobacco's Playbook. Retrieved from https://truthout.org/articles/the-food-industry-puts-profits-over-public-health-using-big-tobaccos-playbook/
2018 New Mexico Statutes :: Chapter 30 - Criminal Offenses :: Article 49 - Tobacco Products, E-Cigarettes and Nicotine Liquid Containers :: Section 30-49-11 - Preemption. (n.d.). Retrieved from https://law.justia.com/codes/new-mexico/2018/chapter-30/article-49/section-30-49-11/
STATE System Preemption Fact Sheet. (2021, April 30). Retrieved from https://www.cdc.gov/statesystem/factsheets/preemption/Preemption.html
Map of Preemption on Licensure. (2021, April 29). Retrieved from https://www.cdc.gov/statesystem/factsheets/Preemption/preemptionlicensure.html
Map of Preemption on Smokefree Indoor Air. (2021, April 29). Retrieved from https://www.cdc.gov/statesystem/factsheets/Preemption/preemptionsmokefree.html
Map of Preemption on Youth Access. (2021, April 29). Retrieved from https://www.cdc.gov/statesystem/factsheets/Preemption/preemptionyouthaccess.html