PREEMPTION

Why Preemption Is Bad for Local Healthy Eating Policy Movements:

What is Preemption?

Preemption occurs when the state or federal government body passes a law or issues agency rules that eliminate or restrict the authority of local governments to regulate a certain issue. When local laws are preempted, they usually have no force or effect.

Why does it matter for healthy eating policy?

Innovative healthy eating policies are emerging at the local level – often after long and hard-fought grassroots community efforts – and helping to drive change at the state or federal level. Better school food standards, menu labeling, and artificial trans fat restrictions are all examples of federal policy efforts that have followed from local movements. These grassroots campaigns increase local awareness of healthy eating and food access issues, build community readiness and support, and foster public debate about the need for policy change and healthy social norms. A preemptive state or federal law can invalidate local healthy eating policies that represent years of efforts at the local level. Moreover, once enacted, preemptive laws are traditionally difficult to repeal, and can affect not only the legal but also the advocacy landscape for years to come.

How can you be ready for it?

During the past decade, several states have passed preemption laws that undermine local innovation and power to promote healthy eating. These laws typically preempt local laws relating to menu labeling and other restaurant-related measures; some go so far as to try to preempt local authority to address food-based health disparities. The food and beverage industry is powerful and has demonstrated a willingness to push a preemptive agenda in response to local efforts. Therefore, community members, advocates, and local policymakers working on healthy eating policy must be ready to address preemption efforts in their states.

Fortunately, there are resources to help prepare local advocates to preempt preemption:

  • The Campaign to Defend Local Solutions is “a non-partisan, grassroots coalition of local mayors, commissioners, community leaders, and people like you. And we’re defending your right to have local solutions to local problems.” The Campaign has toolkits, policy briefs, and tracks pending state preemption bills.
  • Grassroots Change “empowers grassroots leaders to successfully build and sustain movements that improve health and safety at the community, state, and national levels” and has several resources focused on countering preemption efforts. It also identifies state preemption laws in several issue areas, including nutrition-related policy.
  • The Public Health Law Center maintains a webpage with resources about preemption, including this checklist for advocates. The Center also has a fact sheet that examines the possible impacts of a 2016 Kansas law that attempts to preempt many local food policy efforts, and which is modeled after laws passed in Ohio and Mississippi.