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Preemption & Local Authority

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What is Preemption

Types of Preemption

Preemption in WA Laws

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Washington State's commercial tobacco and vapor product laws preempt (or block) all local laws on product sales, retailer density, retailer locations, and advertising.

Washington is 1 of only 5 states with broad preemption of local commercial tobacco regulations - making it one of the strictest in the nation. In contrast, 19 states have no such preemption and 26 states have limited preemption.

Washington Breathes advocates for policies, practices, and programs that support the right of communities in finding creative solutions to meet their local needs.

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What is Preemption?

Preemption occurs when a “higher” level of government eliminates or reduces the authority of a “lower” level to legislate in a certain area. Under the Supremacy Clause of the U.S. Constitution, Congress and federal regulators have virtually unlimited authority to preempt state and local health laws. Similarly, states generally have broad authority to preempt local laws.

Effective public health policies often begin at the local level where they are tested and improved upon, before being adopted at the state level. When local control is eliminated, the process of developing strong public health policies can be lost. This top-down, one-size-fits-all approach often increases health disparities and reduces health equity.

Restrictive limits on local decision-making in Washington State do not match its history as one of the first states in the country to adopt home rule in 1889. The state constitution, today - and as originally drafted - gives cities strong home rule powers:

Hierarchy of Laws in the United States

"Any county, city, town, or township may make and enforce within its limits all such local police, sanitary, and other regulations as are not in conflict with general laws"

from WA Constitution, Article XI

However, the WA Legislature can choose to adopt legislation that limits local authority that is not specifically protected in the state constitution.

Types of Preemption

There are a few categories of preemption, which can overlap in practice. This can make preemption questions difficult to answer. The two primary categories are Express Preemption and Implied Preemption:

  • Express Preemption: The higher-level law has explicit language stating that it preempts lower-level regulation in that particular area. Several of WA's commercial tobacco laws, described below, have examples of express preemption language.
  • Implied Preemption: The higher-level law does not explicitly state that it preempts all conflicting lower-level laws, but it is possible to determine that the higher authority intended to preempt. Implied preemption can be avoided if a savings clause (an explicit statement noting that a lower-level of government is not preempted from enacting stronger laws) is included in the legislation.
Types of Preemption Graphic
Types of Express Preemption
  • Floor: higher level of government passes a law that establishes a minimum set of requirements and expressly allows lower levels of government to pass or enforce laws that impose more rigorous requirements.
  • Ceiling: prohibits lower levels of government from requiring anything more than or different from what the higher-level law requires.
  • Vacuum: when a state prohibits cities from doing something without setting its own regulatory standards, leaving a policy in a vacuum.
  • Nullification: when a state retroactively nullifies something that a city has already passed. (e.g., the state passes a new law that nullifies a city referendum passed years ago).
  • Punitive: when a higher level of government threatens to punish a lower level of government. (e.g., a state threatens to withhold shared revenue from cities that have ordinances found to be in conflict with state law).
Types of Implied Preemption
  • Field: Occurs when a court concludes that the higher-level of government intended to occupy the entire field of regulation on a certain issue, leaving no room for additional regulation by lower-level jurisdictions.
  • Conflict: If a lower-level law conflicts with a higher-level law, the higher-level law takes precedence. In other words, the lower-level law is void and cannot be enforced.

Preemption in WA's Commercial Tobacco Laws

🔴 Express State Preemption for Cigarette & Tobacco Product Sales

Political subdivisions cannot license or regulate tobacco product promotions and sales within retail stores, or address any activities covered by RCW 70.155 on signs, cigarette machine locations, packaging, sampling, coupons, or penalties for youth purchase and possession.

Local governments cannot license or regulate how tobacco products are promoted or sold in stores. They also can't address issues related to tobacco signage, cigarette machine locations, packaging, sampling, coupons, or penalties for young people buying or possessing tobacco that are regulated by state law.

Local laws banning sampling of cigarettes and tobacco products enacted prior to Jan. 1993 may still be enforced locally.

[RCW 70.155.130; first enacted in 1998]

🔴 Express State Preemption for E-Cigarette Sales & Advertising

Local jurisdictions cannot:

  • X License or regulate the promotion or sales of vapor products, other than general business licenses and taxes; or
  • X Prohibit tastings inside licensed retail outlets; or
  • X Regulate vaping in outdoor public places, except in areas where children congregate; or
  • X Allow vaping in indoor public places where it is prohibited under state law.

[RCW 70.345.210; enacted in 2016]

🟢 Local Authority to Prohibit Public Smoking & Vaping, with Some Limits 🟡

Local Authority to Prohibit Smoking in Outdoor Public Places

Washington State voters passed a protective Smoking in Public Places (SIPP) law in 2005 with more than 63% approval. The SIPP law prohibits smoking in public places and places of employment. This law has no explicit preemption language, however, a State Supreme Court Ruling determined that SIPP implicitly preempts almost all local laws relating to smoking in enclosed workplaces and public places.

WA SIPP law also prohibits smoking in outdoor places of employment and defines a 25-foot no smoking area around doors, windows, and air intakes to indoor public places or workplaces.

The WA SIPP law is mostly silent - meaning it does not address other outdoor public places. Therefore, localities may pass stronger regulations that restrict smoking in outdoor public places, like parks and playfields. Many local jurisdictions in Washington have taken this action to create healthy outdoor public spaces and to protect their citizens from smoke exposure. More than 40 cities and several counties in Washington have banned smoking in parks.

[RCW 70.160; effective December 2005]

Local Authority to Prohibit the Use of Vapor Products in Indoor Public Places.

Washington's Vapor Products Act preempts most local regulations around e-cigarettes, but allows local authority to regulate vaping in public places.

“Subject to RCW 70.345.150 of this act, political subdivisions may regulate the use of vapor products in indoor public places.”

[RCW 70.345.210]

Local Authority to Prohibit the Use of Vapor Products in Outdoor Public Places Where Children Congregate.

“No political subdivision may regulate the use of vapor products in outdoor public places, unless the public place is an area where children congregate, such as schools, playgrounds, and parks.”

[RCW 70.345.210]

Thirteen counties in Washington have enacted local ordinances to prohibit vaping in public places and places of employment. Four of these regulations also prohibit vaping in outdoor public places where children congregate. Some cities also have local 'no vaping in public places' laws or policies.

Learn About WA's Current Laws

Additional Resources

From Public Health Law Center:

From ChangeLab Solutions:

From City Associations:

Other Sources: