NC history of preemption

The following walks you through the history of state laws preempting local smoke-free air laws in North Carolina.

--1992--

NC was funded as one of 17 states to participate in Project ASSIST – the National Cancer Institute's American Stop Smoking Intervention Study, in partnership with the American Cancer Society. One objective was to increase "clean indoor air" policies.

--1993--

The NC General Assembly passes HB957, "An Act to Regulate Smoking in Public Places and to Establish Standards for Local Governments Electing to Regulate Smoking".

This "dirty air law" requires 20% of space to be set aside for smoking, if practicable, and PREEMPTS stronger local government restrictions. Preemption is defined as a provision in law (state law for example) that sets a standard that cannot be exceeded by local levels of governments (e.g. local governments). According to the American Medical Association:

• "Preemption is the tobacco industry's top legislative goal, because it concentrates authority at the state (or federal) level where the industry is stronger and can more readily protect its interest."
• Over the past 20 years, the industry has passed some form of preemption in 32 states, gutting dozens of local tobacco control laws and prevention hundreds more from passing.

--July 1993--

After HB957 was passed, Durham County Board of Health, City Council and County Commissioners persuaded bill sponsor Representative Mickey Michaux to delay implementation until October 15, 1993 as they had been working on smoking control rules for about a year, and were close to jointly passing rules to restrict smoking in public places. In that brief 3-month window of opportunity (July - October, 1993), 89 local rules were passed, the majority by Boards of Health. In most cases, there was not time for City Councils and County Commissioners to pass smoking control rules.

--November 1993- February 1994--

Civil Suits were filed against Boards of Health in Buncombe, Guilford, Wake and Halifax Counties.

• Buncombe won at the Buncombe County Superior Court and survived an appeal.
  
• Guilford County reshuffled Board of Health membership and then revoked the smoking control rules. The Local Health Director resigned.
  
• Wake County was sued by a small group of area restaurants with financial backing from the Tobacco Institute, the now defunct lobbying organization for the big 5 tobacco companies. Wake County administration suspended enforcement of the rules to avoid a costly court case.
  
• Halifax County won the original suit in Halifax Superiors Court, but lost an appeal to the districts court. The ruling called into question the authority of the Boards of Health (who are appointed) to pass rules that consider factors other than health (such as practicality, feasibility and economics).
  
• Nearly all 89 rules remain on the books but with enforcement suspended.

NC citizens are stuck between a state law that preempts new or amended local ordinates after October 15, 1993 and an appeals court ruling that nullifies most to the local Boards of Health rules written in 1993.

Meanwhile, evidence of the public health hazards of second hand smoke continue to grow, as does citizen concern.

--2003--

The NC General Assembly passed 2 laws that "chip away" at the "dirty air law".

• The 2003 Tobacco Free Schools law passed with clear anti-preemption language, making it clear the local school boards have the authority to prohibit smoking on school grounds 24 hours a day, 7 days a week, for student staff and visitors and at all school related events.
  
• UNC got a legislative exemption to the "dirty air law", which allows University facilities and dorms to be smoke-free, provided they make a reasonable effort for students demanding a smoking room.