Public Health Prevails Over Preemption in South Carolina

Sharon Biggers, MPH, CHES, Director

Division of Tobacco Prevention and Control

Bureau of Community Health and Chronic Disease Prevention

S.C. Department of Health and Environmental Control

Tobacco Control Obstacles in South Carolina

• Heavy emphasis politically and financially on tobacco growing and production

• History of tobacco farming• Loopholes in S.C. Clean Indoor Air Act• Lobbying influence• Significantly below CDC recommendations for prevention

funding • Lowest cigarette tax in the United States until recently• Presumed Preemption on the books (SC Code of Laws16-

17-504)

A History…

• Between 1977-1989, 20 ordinances with varying degrees of restrictions were passed

• In 1990, a weak S.C. Clean Indoor Air Act was passed to halt the steady stream of local ordinances passing around the state

• The Tobacco Industry focused efforts on passage of either explicit or implied preemption to block the authority of local governments from acting on their own

Obstacles

• In 1996, tobacco control advocates focused on strengthening the state’s Youth Access Law, seemingly to assure compliance with the federal Synar regulations

• This opened up the state Clean Indoor Air law as well, and, through amendments, allowed the Youth Access bill to become a vehicle for preemption

• The amendments passed with little opposition while tobacco control advocates were attending the ASSIST Annual Action Planning Conference

Obstacles

• As a result, tobacco control advocates did not pursue any action on smoke-free air laws between 1996 and 2003

• Question About PreemptionClean Indoor Air Act vs. Youth Access?

• Ambiguity made advocates and municipalities uncomfortable with opening themselves up to potential lawsuits

• Responsibility Issues

The Tipping Point

• Surgeon General’s Report, June 2006

• Sullivan’s Island, July 2006

In July 2006: Sullivan’s Island led the way in South Carolina

with the first smoke-free ordinance

By July 1, 2007: 10 ordinances had passed in SC

Smoke-free Ordinances Taken To Court

• Foothills Brewing Concern v. City of Greenville

• Beachfront Entertainment, Inc. v. Town of Sullivan’s Island

Did the trial court err in ruling that the ordinance is preempted by state law

and violates the S.C. Constitution?

S.C. Supreme Court Decisions

• March 31, 2008—Foothills (Greenville case)

“The City claims that the Ordinance is a proper exercise of municipal power because it seeks to protect citizens from second-hand smoke…(municipality may enact ordinance which promotes general welfare and preserves health). We agree.”

• Sullivan’s Island decision

(Sept. 2008)– Refined penalties

By July 2008: 15 ordinances had passed in SC

Local, Local, Local

• After Supreme Court decision, statewide partners decided to continue local strategy

• Focus on worker health

• Build more local ordinances before going for a statewide law

• Any tobacco related bill is a vehicle for preemption– Cigarette tax campaign going on at same time

Successful Strategies in South Carolina

• Grassroots– Hospitals– School districts– Faith community– Recreational facilities– Large workplaces

• Media advocacy– More earned media than paid

By July 2009: 27 ordinances had passed in SC

By July 2010: 33 ordinances had passed in SC: 28 city and

five county covering more than 1.4 million people

Results Speak for Themselves

• SC has won the American’s for Nonsmokers Rights “Smoke-free Air Challenge Award” two consecutive years

2009 Smoke-free Air

Challenge Award

SC

Lessons Learned• Local leaders more responsive to constituent concerns• Smoke-free opponent lobbying efforts have less sway

locally than at the state level• Opportunities for explicit preemption abound on state-

level bills• State level smoke-free champions don’t have political

strength or understanding to defeat preemption• Local is working!

– Economic and Health Impact data strengthen advocates

• New challenges are being presented– Tea Party Movement/Less Government/Constitutional Rights

What’s Next?

• Continue to learn from each other– Each day vs. Each Occurrence Business licenses

• Continue local strategy focus on large population centers

• Fight off preemption

• More local ordinances on horizonSecond readings in three communities

*Irmo, Chapin and Greer