Preemption in State Tobacco Minimum Legal Sales Age Laws in the US, 2022: A Policy Analysis of State Statutes and Case Laws

Preemptive statutory language within tobacco minimum legal sales age (MLSA) laws has prohibited localities from enacting stricter laws than state statutes. With the recent uptake of state Tobacco 21 laws in the US, the current landscape of preempted MLSA laws is unknown. This study sought to update the status of preemption in MLSA laws enacted in US states between 2015–2022. A public health attorney reviewed state tobacco MLSA laws (n = 50) and state tobacco control codes, searching for language regarding preemption. When statutes were unclear, case law was reviewed by examining local ordinances that were invalidated by state court decisions. Overall, 40 states enacted Tobacco 21 laws, seven of which expanded or introduced preemption when they increased the MLSA; a total of 26 states (52%) included preemption. Six states (12%) retained ‘savings clauses’ included in the MLSA prior to Tobacco 21, and 18 states (36%) did not mention preemption. Based on the precedent set by state courts, eight of these 18 states may preempt localities from raising their MLSA. Historically, preemption has slowed the diffusion of best practices in tobacco control, and once implemented, the laws are difficult to repeal. The recent expansion of preemption could inhibit the evolution, development, and implementation of effective tobacco control policies.