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Tobacco Control and Local Boards of Health

posted on Thu, Sep 29 2011 3:07 pm by Kerry Cork

Passing smoke-free measures is almost always harder than you might think. More than half of all U.S. communities have passed laws prohibiting smoking in public places and worksites, so it’s easy to lose sight of how much opposition these laws can provoke and how many legal and political roadblocks local policy-makers and advocates must generally overcome.

This year, enacting smoke-free policies has been particularly difficult for the local board of health in Bullitt County, Kentucky. Earlier this spring, the Bullitt County Board of Health held a first reading of a regulation requiring all public places and worksites to be smoke-free. Before the board even had a chance to vote on the regulation, the county’s fiscal court and all eight of the county’s municipalities filed a motion in state court to stop the regulation from taking effect. The plaintiffs argued that under Kentucky law, only legislative bodies (such as elected officials), are authorized to enact smoke-free regulations. Boards of health are administrative, not legislative, agencies. The plaintiffs claimed that by passing a smoke-free measure, the board of health usurped their legislative authority.

Undaunted, the board of health voted to pass the regulation, and were promptly sued again, this time by a group of business owners in federal court. As in the first suit, the plaintiffs alleged (among many other claims) that the board exceeded its regulatory and statutory authority in passing the smoke-free measure. This federal case is ongoing.

Fast forward five months. Earlier this month, the court in the state case found in favor of the plaintiffs, striking down the Bullitt County smoke-free regulation just four days before it was to take effect.  The court took a narrow view of the powers that the Kentucky legislature delegates to local boards of health to protect public health. On September 26, the Bullitt County Board of Health voted to appeal this decision.

Kentucky isn’t the only state where a board of health has experienced problems passing tobacco control measures. Earlier this year, a Wyoming state court struck down Teton County’s Smoke-free Air Rule of 2009, finding that in passing this rule, the Teton District Board of Health exceeded the rulemaking authority granted to boards under Wyoming law. On the flip side, though, other local boards of health have prevailed when smoke-free regulations they’ve passed have been challenged in court on regulatory issues (including preemption and separation of powers).

So, what’s the deal with local boards of health and their authority to pass tobacco control measures? The short answer is that the role boards of health play in public health generally, and tobacco control in particular, varies tremendously depending on the legal authority and regulatory powers that state legislatures grant them. In some states, boards of health serve only in an advisory capacity on public health (and tobacco control) matters, while in other states, boards of health have much broader powers, playing an active policymaking, rulemaking and adjudicatory role for local health departments.

Most state statutes don’t expressly define the role of local boards of health. But statutes usually do include language about specific board powers, such as the ability to make rules and regulations concerning public health, investigate and abate nuisances, and provide health services to the community. Each of these powers can be used to support tobacco control measures.

In lawsuits challenging the authority of a board of health to pass tobacco control measures, such as smoke-free regulations, courts typically examine the statutory language that grants authority to the boards, the legislative history surrounding the enactment of the law, and the overall statutory scheme. Courts often vary in the ways they interpret board of health enabling (or authorizing) language – even, at times, within the same state. As a result, some local boards of health may want to consult with a local attorney familiar with the laws of their jurisdiction when considering enacting a tobacco control measure. Other resources include the Tobacco Control Legal Consortium at the Public Health Law Center, and the National Association of Local Boards of Health.

In the long run, even if local boards of health have limited legislative authority to implement or enforce tobacco control measures, their close ties to their communities enable them to play an active role in supporting the local and state governing body responsible for tobacco control. Not only can they promote tobacco control policies as advocates for health, but they can help ensure that their local community is educated about the importance of tobacco control. It may not be a regulatory role, or even an implementation or enforcement role, but it’s still an absolutely vital role in public health.

This information was developed by Kerry Cork, staff attorney for the Tobacco Control Legal Consortium and the Public Health Law Center at William Mitchell College of Law.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
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