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Preemption and Restricting Tobacco Sales to Minors

posted on Thu, Dec 15 2016 2:51 pm by The Network for Public Health Law

A local health department in Maryland recently asked the Network for guidance on whether state law preempted a local ordinance restricting the sale of tobacco products to minors. Specifically, if the State enacts a law levying civil money penalties against retail establishments selling tobacco products to a minor, would that law supersede a county ordinance on the same subject matter?

There isn’t a simple or clear answer. While the State has the authority to preempt or preclude local jurisdictions from enacting local laws dealing with the same issue, this does not mean that counties cannot regulate in an area just because the State already has enacted a law on that issue.  For instance, in Maryland the State regulates healthcare entities, including nursing homes, but local counties also enact laws governing nursing homes – including a requirement that at least 30% of bed capacity at nursing homes be made available for indigent persons (Allegany County Code, §140-2).

In general, State law preempts a county ordinance under three circumstances:

  1. the law expressly states that the counties are preempted;
  2. there is a direct conflict between state and local law; or,
  3. the State’s thorough regulation of an area evidences a clear intent to preempt local regulation.

If the proposed statewide civil enforcement bill was enacted, the first two circumstances would not be present. First, because the bill does not include language stating that counties can’t pass laws regulating sales to minors. Second, because there is no direct conflict between the provisions of the state and county. A direct conflict only occurs when a person cannot abide by two laws at the same time, i.e. if the State made marijuana use a criminal offense, but the county tried to make it legal. A county law creating similar penalties for an offense as a state law is not a direct conflict.

With respect to the state and county provisions at issue here, there would be no direct conflict.  There is virtually no practical difference between a county ordinance imposing civil fines for tobacco sales to minors and the statewide legislation as currently written. The health officer or designee would be able to enforce the ordinance, the county would be able to determine how these cases are processed (i.e. district court, administrative hearing, etc.), and the civil money penalties would be sent to the county’s general fund under the proposed state law or the county ordinance.

The third circumstance described above, occurs when a higher level of government has so thoroughly covered an area that it has “occupied the field” and lower jurisdictions are precluded from enacting laws on the same subject matter. Whether a law or set of laws occupies the field and preempts other legislative activity is determined by a court, after an individual or entity has challenged a law.

 

It is not clear whether the proposed state law will be found to occupy the field with respect to tobacco sales to minors in this case. It may be instructive to review the 2013 decision in which the Maryland Court of Appeals found that Prince George’s County was preempted from regulating cigar packaging because the state “occupied the field” on that issue. Altadis U.S.A. Inc. v. Prince George’s County, 431 Md. 307 (Md. 2013). Representatives for the tobacco industry have interpreted this decision as a blanket ban on local governments from regulating anything to do with tobacco products and industry representatives have testified at local legislative hearings arguing that state law preempts the county tobacco legislation.

However, 10 counties currently have civil enforcement laws and the industry has not challenged any of these laws. In at least three Maryland counties the law departments have determined that civil enforcement laws would not be preempted. Each county, and specifically the county attorney’s office or law department, should review its ordinance and determine whether the proposed bill, if enacted would preempt the local ordinance.