State Regulation of Tobacco

State and local governments may also regulate tobacco and tobacco products to the extent that their regulations are not preempted (already addressed) by federal laws. By 1997 every state had some form of regulation of chewing and smoking tobacco products. State governments typically restrict the use of tobacco by minors, require licenses for those who sell tobacco products, and restrict vending machine and individual cigarette sales.

In the Alcohol, Drug Abuse, and Mental Health Amendments Reorganization Act of 1992 (Pub. L. No. 102-321, 106 Stat. 323), Congress declared that it was the responsibi- lity of the states, with help from federal agencies, to restrict minors' access to tobacco products. By 1996 when the FDA called for a minimum age of eighteen for the use of tobacco products, all fifty states already had laws in place establishing eighteen as the minimum age for tobacco use.

The scope of state and local regulation is limited because it may not extend to areas already being regulated by the federal government. For example, because the FCLAA already regulates advertising based on smoking and health considerations, states and localities can restrict advertising only for other reasons, such as to protect citizens' aesthetic sensibilities, to control the location or types of cigarette displays, or to protect children from promotions blatantly aimed at them as consumers.

Whether the FCLAA preempts state regulation of promotions aimed at children is in dispute in the courts. In Penn Advertising v. City of Baltimore, 862 F. Supp. 1402 (D. Md. 1994), aff'd, 63 F.3d 1318 (4th Cir. 1995), cert. granted and judgment vacated, Penn Advertising v. Schmoke, ___U.S. ___, 116 S. Ct. 2575, 135 L. Ed. 2d 1090, aff'd on remand, 101 F.3d 322 (4th Cir. 1996), the court held that the FCLAA did not preempt a local ordinance that barred cigarette advertising in certain locations where children were likely to be found, such as near schools. But in Chiglo v. City of Preston, 909 F. Supp. 675 (D. Minn. 1995), the court overturned a city ordinance that restricted from certain areas cigarette advertising that contained logos, cartoon characters, or any distinctive brand advertising. The court in Chiglo held that the ordinance regulated the content of the advertising and hence was preempted by the FCLAA.

Local laws can also be preempted by state laws if the state law addresses the same issue. Well aware of this limitation, the tobacco industry began a campaign in the 1980s to encourage the adoption of weak, industry-friendly tobacco control legislation at the state level to preempt local governments from imposing stricter controls on the sale and use of tobacco.

Clean Indoor Air Acts
Armed with information showing the effects of ETS, the federal, state, and local governments began considering statutes to prohibit smoking in nonresidential buildings. Federal laws were passed to restrict smoking in transportation systems (49 C.F.R. § 1061.1 [1991]), in government buildings (41 C.F.R. § 101-20.105-3 [1991]), and aboard domestic airline flights (14 C.F.R. § 129.29). Federal regulation of private-sector workplaces has yet to take effect. Federal legislation was proposed, but the tobacco industry was able to muster great resistance to it. As of mid-1997, the proposed legislation was not yet finalized.

States and localities have responded to the concern over ETS by regulating smoking in various public areas. In 1997 more than forty states and the District of Columbia had some form of regulation in place. A minority of states have enacted indoor air quality acts, similar to the rules proposed by the Occupational Safety and Health Administration (OSHA). Some local governments have passed laws restricting smoking in places of entertainment, restaurants, and workplaces and on public transportation. Most of the state and local smoking regulations do not ban smoking in the workplace entirely, but limit smoking to designated areas or private offices.

Many private employers have voluntarily restricted smoking in the workplace. A 1985 survey found that more than 33 percent of employers were already regulating smoking in the workplace, and by 1991 that number had grown to 85 percent. By 1997 many private businesses had established policies that made it nearly impossible for employees to work and smoke. For example, some businesses would not allow anyone who had smoked within a certain time period to enter the building. Other businesses began charging smoking employees more for health insurance benefits. Indeed, businesses are motivated to regulate smoking in part because of the higher absenteeism and increased health care costs of smoking employees.