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Published in final edited form as: Prev Med. 2023 Feb 24;170:107462. doi: 10.1016/j.ypmed.2023.107462

E-cigarette preemption laws: Limiting local communities from protecting youth

Sunday Azagba 1,2,3, Jessica King Jensen 4, Todd Ebling 1, Mark Hall 5
PMCID: PMC10109211  NIHMSID: NIHMS1883694  PMID: 36842562

Abstract

E-cigarette use is prevalent among youth in the United States. Historically, local communities have been a catalyst for adopting evidence-based tobacco control policies. However, some states have ceiling preemption laws that prevent more stringent statutes from being enacted at the city or county level and inhibit tobacco control efforts. The current study documents state preemption laws regarding e-cigarette advertising, licensure, indoor clean air, and youth access. We conducted a systematic synthesis of state statutes to identify states with e-cigarette preemption laws. Data were collected on four policy categories being preempted: advertising, licensure, clean indoor air, and youth access. Laws were compiled, and the content was verified using the Westlaw legal database. In the US, 25 states preempt stricter local e-cigarette regulations in 55 laws. Of these states, 19 preempt advertising regulations, 11 preempt licensure requirements, four preempt ordinances for indoor clean air, and 21 preempt youth access. A broad range of terms was employed to describe preemption, yet few states explicitly used the term “preempt.” E-cigarette ceiling preemption laws inhibit public health progress and prevent local authorities from addressing the popularity of e-cigarettes among adolescents.States without preemption laws should be encouraged to adopt language that expressly saves local authority.

Keywords: e-cigarette, e-cigarette preemption laws, limiting local communities, youth e-cigarette use, local authorities

Introduction

Electronic cigarette (e-cigarette) use is prevalent among youth and young adults, with 2.55 million middle and high school students reporting current use (Cooper, 2022). Among young adults aged 18–24, past-month e-cigarette use increased significantly from 5.1% in 2014 to 7.6% in 2018 (Dai and Leventhal, 2019). E-cigarettes are considered less harmful than combustible cigarettes; however, e-cigarettes are not risk-free (Centers for Disease Control and Prevention, 2019a, 2019b). There is evidence that most e-cigarette products contain and release a variety of potentially toxic substances in addition to nicotine which is harmful to young people (National Academies of Sciences, Engineering, and Medicine, 2018). Additionally, over half of youth and young adult e-cigarette users also use other tobacco products (King et al., 2018; Villanti et al., 2017).

States and local jurisdictions have implemented various e-cigarette policies to address the increasing popularity of vaping products, especially among youth and young adults. For example, states and local authorities have amended existing tobacco control laws to include e-cigarettes for retailer licensing, taxation, and clean indoor air regulations (Public Health Law Center, 2019). States and local jurisdictions have also implemented minimum legal age of sale regulations to reduce youth use, including 18 states and over 530 cities (Preventing Tobacco Addiction Foundation, 2020). Following state and local jurisdiction momentum, the US Congress recently amended the Federal Food, Drug, and Cosmetic Act, raising the federal minimum legal age for tobacco product purchases, including e-cigarettes, to 21 (Center for Tobacco Products, 2022). This is one of the multiple cases of local communities acting as a catalyst for adopting tobacco control policies at the state and federal levels.

Local policymakers are often more responsive to public sentiment because they live in and are accountable to the communities they represent, and they are more likely to enact laws based on grassroots movements (National Policy & Legal Analysis Network to Prevent Childhood Obesity, 2010). However, some states employ preemption laws that inhibit local communities from passing tobacco control laws that are more stringent than the state’s laws (Centers for Disease Control and Prevention (CDC), 2011). Preemption laws can either set a minimum standard (i.e., floor preemption), or an upper limit (i.e., ceiling preemption) to the laws of jurisdictions within a ruling body’s borders (National Policy & Legal Analysis Network to Prevent Childhood Obesity, 2010). Ceiling preemption has historically been employed as a bargaining tool for parties who resist regulation, allowing states to pass moderate restrictions with the guarantee that local jurisdictions will not impose stricter regulations (Pomeranz and Pertschuk, 2017). Henceforth, the term “preemption” will refer to ceiling preemption.

Promoting preemption has been a core legal strategy of the tobacco industry (Crosbie and Schmidt, 2020). Since the 1980s, the tobacco industry has aimed to thwart strong, local tobacco regulations that could ultimately decrease revenues by pursuing an aggressive campaign to undermine local authority by initiating and supporting preemption policies (Gorovitz et al., 1998; Yañez et al., 2003). Such policies could invalidate existing tobacco control laws and prevent future enactment of restrictive local laws (Bayer and Colgrove, 2002; Centers for Disease Control and Prevention (CDC), 2011). For example, some tobacco companies expressed support for raising states’ minimum legal tobacco use age to 21 while advocating for added preemption laws that would prohibit local jurisdictions from raising the legal age further (Berman, 2016). In a 2018 survey of policymakers across the US, 75% of mayors and 68% of health officials felt preemption had at least a moderate effect on local policymaking (Rutkow et al., 2019).

According to health officials, tobacco use was the health issue most affected. Most significantly, 72% of health officials reported having abandoned or delayed local policymaking efforts when faced with the possibility of preemption (Rutkow et al., 2019). Due to the restrictions of preemption, public health advocates cite the prevention of new preemption laws and repeal of existing ones as a public health priority (Pomeranz and Pertschuk, 2017; Siegel et al., 1997).

Given the strong history of tobacco-ordinance preemption in the US, and rising e-cigarette use rates, this study identified the status of state-level e-cigarette preemption laws. One of the primary strategies to enhance local public health authority is to monitor preemption strategies being implemented (Bare et al., 2019).

Methods

In 2022, we collected data on e-cigarette preemption laws for four policy categories: (1) advertising, (2) licensure, (3) clean indoor air, and (4) youth access. Advertising included restrictions on store displays, promotions, sampling, and general advertising. Licensure included preempting regulations related to requiring licensing for over-the-counter sales, and did not include licensure for vending sales or delivery sales. Clean Indoor Air included prohibitions at government or private worksites, restaurants, and bars. Youth Access included preemption restrictions pertaining to vending machines and distributing or selling products to minors. We also analyzed the preemption language used in preemption laws to shed light on the heterogeneity and nuances of legal terminology. Two trained team members independently reviewed whether preemption existed for any of the four policies using multiple sources. Our study was confined to state laws because no preemption policies were associated with the District of Columbia and US territories. First, team members reviewed the CDC’s STATE System, which provides up-to-date, customizable reports and interactive maps focused on state-level data on tobacco use prevention and control. Because the STATE system only tracks licensure, clean indoor air, and youth access for tobacco broadly, we supplemented data collected through the STATE system with our own review of state tobacco-related laws. The study team accessed publicly-available government websites for each state and searched and reviewed tobacco and e-cigarette-relevant legislation to identify e-cigarette preemption laws. The American Lung Associations’ State Legislated Actions on Tobacco Issues (SLATI) System was then used to help clarify preemption policies (American Lung Association, n.d.). SLATI is an extensively researched database that comprehensively summarizes state tobacco control laws. All data were compiled and verified using the Westlaw legal database. We synthesized the data to characterize state e-cigarette preemption laws, including the preemption-specific language used across policy domains. In summary, STATE was used to identify states with policies across the domains. Legal search was used to identify state policies not tracked by STATE. SLATI was reviewed secondarily to identify additional policies and confirm STATE findings and legal search. Actual policies were then pulled from Westlaw for review.

Results

Twenty-two states contained language preempting local e-cigarette policy, with several states preempting multiple policy categories. Notably, only Nevada explicitly preempts all four policy categories (advertising, licensure, clean indoor air, and youth access). Examples of preemption language used by the policy category are presented below.

Advertising

Nineteen states have preemption laws regarding e-cigarette advertising: Delaware, Florida, Hawaii, Idaho, Iowa, Kentucky, Louisiana, Michigan, Montana, Nevada, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Washington, and Wyoming (Table 1). Advertising preemption laws restrict local jurisdictions from stronger regulations regarding free samples (Delaware, Hawaii, Idaho, Iowa, Nevada, Tennessee, Washington, Wyoming; Supplemental Table) (State of Delaware, n.d.; State of Hawaii, n.d.; State of Idaho, n.d.; State of Iowa, n.d.; State of Nevada, n.d.; State of Tennessee, n.d.; State of Washington, n.d.; State of Wyoming, n.d.), discounted tobacco (Delaware, Idaho) (State of Delaware, n.d.; State of Idaho, n.d.), or requiring specific packaging (Delaware, Idaho, Montana, Tennessee, Washington) (State of Delaware, n.d.; State of Idaho, n.d.; State of Montana, 2019; State of Tennessee, n.d.; State of Washington, n.d.) or signage (Hawaii, Louisiana, Montana, Nevada, New Mexico, South Carolina, Tennessee, Washington, Wyoming) (State of Hawaii, n.d.; State of Louisiana, n.d.; State of Montana, 2019; State of Nevada, n.d.; State of New Mexico, n.d.; State of South Carolina, n.d.; State of Tennessee, n.d.; State of Washington, n.d.; State of Wyoming, n.d.). Other laws, including those in Hawaii, Idaho, Kentucky, Louisiana, North Carolina, Oklahoma, South Dakota, and Utah, broadly restrict local jurisdictions from having stronger regulations on displays and/or promotions (State of Hawaii, n.d.; State of Idaho, n.d.; State of Kentucky, n.d.; State of Louisiana, n.d.; State of North Carolina, n.d.; State of Oklahoma, n.d.; State of South Dakota, n.d.; State of Utah, n.d.).

Table 1:

State Preemption of Any Local E-cigarette Advertising, Licensure, Clean Indoor Air, or Youth Access Policies

State & Policy Codes Advertising Licensure Clean Indoor Air Youth Access # of Policies
Arkansas Act 580; ARK. CODE ANN. § 26-57-259 No Yes No Yes 2
Connecticut CONN. GEN. STAT. ANN. § 19a-342a(f) No No Yes No 1
Delaware DEL. CODE ANN. tit. 11, § 1127 Yes No No Yes 2
Florida Fla. Stat. 569.13 Yes No Yes Yes 3
Hawaii HAW. REV. STAT. § 328J--11.5 Yes Yes No No 1
Idaho IDAHO CODE § 39–5713 Yes Yes No Yes 2
Iowa IOWA CODE ANN. § 453A.56 Yes Yes No Yes 3
Kentucky KY. REV. STAT. ANN. § 438.300 Yes No No Yes 2
Louisiana LA. REV. STAT. ANN. §14:91.8 Yes No No Yes 2
Massachusetts MASS. GEN. LAWS ANN. ch. 157, § 22 No No No Yes 1
Michigan Mich. State. 750.42a(3) Yes No No No 1
Montana MONT. CODE ANN. § 16–11-311 Yes Yes No Yes 3
Nevada Nev. Stat. 202.249 Yes Yes Yes Yes 4
New Mexico N.M. STAT. ANN. § 30-49-11 Yes No No Yes 2
North Carolina N.C. GEN. STAT. § 14-313(e) Yes No No Yes 2
Oklahoma OKLA. STAT. tit 63-1-229-18-21 Yes Yes No Yes 3
Oregon OR. REV. STAT. § 167.775 No Yes No Yes 2
Pennsylvania Tit. 72 § 232-A; HB 97 (2019) No Yes No Yes 2
South Carolina S.C. CODE ANN. § 16-17-504 Yes No No Yes 2
South Dakota S.D. CODIFIED LAWS § 34-46-6 Yes No Yes Yes 3
Tennessee Tenn. Stat. 39-17-1551 Yes Yes No Yes 3
Utah UTAH CODE ANN. § 76-10-105.1 (8) Yes No No Yes 2
Washington WASH. REV. CODE ANN. § 70.155.130 Yes Yes No No 2
Wisconsin WIS. STAT. § 134.66(5) No No No Yes 1
Wyoming WYO. STAT. § 14-3-308(b) Yes No No Yes 2
Total 19 11 4 21 55
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Licensure

Eleven states preempt local e-cigarette licensure laws: Arkansas, Hawaii, Idaho, Iowa, Montana, Nevada, Oklahoma, Oregon, Pennsylvania, Tennessee, and Washington (Table 1). Some states explicitly preempt local jurisdictions from requiring licenses or permits, including Iowa, Montana, Oregon, and Washington (Supplemental Table) (State of Iowa, n.d.; State of Montana, 2019; State of Oregon, n.d.; State of Washington, n.d.). Hawaii preempts local jurisdictions, but not counties, from requiring licensure for tobacco retailers (State of Hawaii, n.d.). Other states, including Arkansas and Oklahoma, broadly restrict local licensing by preempting the manufacture and distribution of tobacco products (Davis et al., 2019; State of Oklahoma, n.d.). Idaho state law explicitly prohibits preemption with one exception: local governments are restricted from requiring licenses for the sale or distribution of e-cigarettes (State of Idaho, n.d.).

Clean Indoor Air

Four states explicitly preempt local e-cigarette clean indoor air laws: Connecticut, Florida, Nevada, and South Dakota (Table 1). Connecticut preempts local regulations restricting e-cigarette use in specific places (e.g., government buildings, health care institutions, stores, Supplemental Table) (Connecticut General Assembly, 2013). Similarly, South Dakota limits local jurisdictions from restricting tobacco use in public or places of employment, with e-cigarettes included in the definition of tobacco (South Dakota Legislature, 2019).

Youth Access

Twenty-one states preempt local youth access laws: Arkansas, Delaware, Florida, Idaho, Iowa, Kentucky, Louisiana, Massachusetts, Montana, Nevada, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Wisconsin, and Wyoming (Table 1). State preemption of vending machine regulations or samples for youth was common (Delaware, Idaho, Montana, New Mexico, Oregon, South Carolina, South Dakota, Tennessee, Washington, and Wyoming; Supplemental Table) (State of Delaware, n.d.; State of Idaho, n.d.; State of Montana, 2019; State of New Mexico, n.d.; State of Oregon, 2019; State of South Carolina, n.d.; State of South Dakota, n.d.; State of Tennessee, n.d.; State of Washington, n.d.; State of Wyoming, n.d.). Alternatively, some states broadly preempt local regulation of tobacco product distribution specific to youth (Arkansas, Kentucky, North Carolina, Oklahoma, Utah) (Davis et al., 2019; State of Kentucky, n.d.; State of North Carolina, n.d.; State of Oklahoma, n.d.; State of Utah, n.d.). Additionally, three states preempt regulations specific to restrictions within 500 feet of schools or areas where youth are active (Iowa, South Dakota, Wisconsin) (State of Iowa, n.d.; State of South Dakota, n.d.; State of Wisconsin, n.d.). In Massachusetts, state preemption only applies to the minimum legal age of sale restrictions (State of Massachusetts, n.d.).

Preemption Language Used

Few states use the term “preempt” when restricting local authority over e-cigarettes (Arkansas, Hawaii, Massachusetts, Pennsylvania, Tennessee, and Washington) (Davis et al., 2019; State of Hawaii, n.d.; State of Massachusetts, n.d.; State of Pennsylvania, n.d.; State of Tennessee, n.d.; State of Washington, n.d.). Instead, states use other phrasing to restrict local regulations, such as “may not regulate” (Oregon) (State of Oregon, 2019), may not “adopt or enforce requirements for the regulation” (Idaho) (State of Idaho, n.d.), could not “supersede” (Connecticut, Delaware, Utah) (Connecticut General Assembly, 2013; State of Delaware, n.d.; State of Utah, n.d.), shall not “require” (Michigan) (State of Michigan, n.d.), could not “change standards” (Wyoming) (State of Wyoming, n.d.), shall not “impose more stringent restrictions” (Nevada) (State of Nevada, n.d.), or could be “no more stringent than” (Montana, Oklahoma) (State of Montana, 2019; State of Oklahoma, n.d.). Other states used language to imply the desire to be consistent across state and local levels. For example, state laws include language such as “consistent with” (New Mexico) (State of New Mexico, n.d.), “conform” (Washington) (State of Washington, n.d.), regulate in a “uniform and exclusive manner” (Hawaii) (State of Hawaii, n.d.), or “equitable and uniform application” (Iowa, Kentucky, Louisiana, North Carolina, South Carolina, South Dakota) (State of Iowa, n.d.; State of Kentucky, n.d.; State of Louisiana, n.d.; State of North Carolina, n.d.; State of South Carolina, n.d.; State of South Dakota, n.d.). Pennsylvania also uses language that “all powers and jurisdictions” shall reside “in the Commonwealth” (State of Pennsylvania, n.d.). Five states (Kentucky, Louisiana, North Carolina, South Carolina, and South Dakota) include a clause stating preemption is required to ensure state eligibility of federal funds (State of Kentucky, n.d.; State of Louisiana, n.d.; State of North Carolina, n.d.; State of South Carolina, n.d.; State of South Dakota, n.d.).

Discussion

Of the 25 states that specifically include e-cigarette products in their tobacco preemption laws, 19 preempt advertising regulations, eleven preempt licensure requirements, four preempt ordinances for smoke-free indoor air, and 21 have preemption laws regarding youth access. These counts are somewhat lower than the number of states that preempt stronger local tobacco regulation (i.e., not e-cigarette specific) (Centers for Disease Control and Prevention, n.d.). Thus, local jurisdictions should be aware of future efforts to further preempt local e-cigarette policies.

Multiple frameworks have been designed to help guide the process of limiting or repealing preemption legislation (Bare et al., 2019; Pertschuk et al., 2013). A strategic action model for combatting and preventing preemption encourages involved parties to monitor and anticipate preemption, engage grassroots movements and organizations, unify allies, and utilize media advocacy (Bare et al., 2019). Another framework advises decision-makers to anticipate, assess, and counter preemptive policies when appropriate (Pertschuk et al., 2013). Understanding the specific roles and prevalence of e-cigarette preemption laws could help inform tobacco control efforts and counter the influence of the tobacco industry. Future research can draw on the groundwork offered in this investigation to study the potential impact of preemption policies on e-cigarette use.

Notably, only six states used the word preempt when restricting local e-cigarette regulation. Thus, health policy advocates should be aware of other common phrases for preemption. It appears states typically use one of two strategies: language to restrict (e.g., do not supersede, change standards) or language requiring consistency (e.g., uniform, equitable). Advocates should be aware of these clauses at all stages of the lawmaking process.

We identified several areas for clarification within our policy synthesis. For example, some states employed unclear definitions that did not include or exclude e-cigarette products in the definition of tobacco products (Lempert et al., 2016). Tennessee defined tobacco products as “any product that contains tobacco and is intended for human consumption, including, but not limited to, cigars, cigarettes, and bidis” but included a definition for vapor products, suggesting the two were separate (Tennessee General Assembly, 2017). Second, in states without an explicit preemption statute, the tobacco industry sometimes seeks a court ruling that preemption is implied from a general legislative scheme (Diller, n.d.). To counter this strategy, states should consider adopting “savings clauses” that explicitly preserve local authority (Preemption Watch, n.d.).

Conclusions

Half of all US states have laws that preempt stricter local e-cigarette ordinances. These laws inhibit public health progress as reducing e-cigarette use among youth, and young adults remains a priority. Avoiding preemption would allow local lawmakers to address their particular circumstances with creative solutions. Municipal jurisdictions could then better protect local populations from the dangers of e-cigarettes while serving as testing grounds for new approaches that could be expanded or adapted statewide or elsewhere in the country. Also, states without preemption laws should be encouraged to adopt language that expressly saves local authority.

Supplementary Material

1

Highlights:

  • In the United States(US), 25 states preempt stricter local e-cigarette regulations

  • Preempting youth access and advertising regulations is common in the US

  • Some states preempt licensure requirements or ordinances for indoor clean air

  • Preemption laws may prevent local communities from enacting public health measures

Footnotes

Publisher's Disclaimer: This is a PDF file of an unedited manuscript that has been accepted for publication. As a service to our customers we are providing this early version of the manuscript. The manuscript will undergo copyediting, typesetting, and review of the resulting proof before it is published in its final form. Please note that during the production process errors may be discovered which could affect the content, and all legal disclaimers that apply to the journal pertain.

Financial Disclosure: None

Conflict of Interest: None

CRediT author contribution statement

Sunday Azagba, Conceptualization, Project administration, Methodology, Formal Analysis, Funding acquisition, Writing – original draft, Writing – review & editing

Jessica King Jensen, Formal Analysis, Writing – original draft, Writing – review & editing

Todd Ebling, Project administration, Formal Analysis, Writing – review & editing

Mark Hall, Methodology, Formal Analysis, Writing – review & editing

Declaration of interests

The authors declare that they have no known competing financial interests or personal relationships that could have appeared to influence the work reported in this paper.

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