Policy Statement:  12/06/06 Share Authority with Local Governments to Regulate Tobacco	Printable Version (PDF)

 Position

The South Dakota Tobacco-Free Kids Network supports the passage of legislation that permits local government to regulate the sales, distribution, marketing, promotion and use of tobacco products at the local level.  The South Dakota Legislature should not preempt local initiatives to control tobacco, but rather it should set minimum standards, allowing localities to enact  ordinances to address local concerns.   South Dakota should repeal the current state law that preempts the ability of local citizens to enact policies and ordinances that protect their families, children, and workers from the negative health effects of tobacco.

Background

South Dakota state law prohibits local governments adopting any regulations on tobacco.

Current state laws give municipalities and counties the authority to promote and protect public health and safety at the local level.  SDCL 9-32-1 allows municipalities to do what may be necessary or expedient for the promotion of health or the suppression of disease.  SDCL 21-10-1 allows counties to address acts or omissions that endanger the comfort, repose, health or safety of others.  Unfortunately, this authority no longer extends to controlling the impact of tobacco addiction in communities, in spite of the public health hazards posed by tobacco use and exposure to secondhand smoke.  The South Dakota Legislature enacted SDCL 10-50-64 in 1995 to remove local control over tobacco, as part of a national lobbying effort by tobacco companies to concentrate their influence in Congress and state legislatures. 

The state should set minimum, not maximum standards.

The basic principle of state protections is to set a minimum, not a maximum standard.  South Dakota’s version of preemption is the most extreme.  It covers every aspect of tobacco regulation, allowing localities no local ordinance options to address tobacco prevention and control in their communities. The surrounding states of Nebraska, Wyoming, Minnesota and North Dakota have not implemented any such requirement and Montana’s law only applies to youth access.[i]

Limiting local action is a top priority of tobacco companies. 

Tobacco companies have long advocated for national and state preemption as a means to limit important local tobacco control initiatives, because they have historically been unable to significantly influence local policy efforts.  “We could never win at the local level . . .so the Tobacco Institute and the tobacco companies’ first priority has always been to preempt the field, preferably to put it all on the federal level, but if they can’t do that, at least on the state level.” [ii]

South Dakota’s tobacco addiction problem deserves the attention of all levels of government and the private sector. 

Tobacco use rates among youth, Native Americans, and pregnant women in South Dakota are among the worst in the country. [iii]  The problem is a complex one and requires a combination of regulatory and educational strategies to be effective. Communities should be free to respond with more stringent regulations based upon their needs.

Local policy initiatives have proven to be an effective catalyst for achieving local and statewide reductions in tobacco use. 

In states and communities where significant reductions in tobacco use have been achieved, community-based initiatives and local ordinances have resulted in reduced youth access to tobacco, the creation of more smoke free worksites and public areas, and most importantly, a reduction in overall tobacco consumption.  As of August 2004, there were over 3,280 city and county tobacco control ordinances across the United States.There are 2,282 U.S. municipalities with some sort of local clean indoor air law.Over 40% of the U.S. population now lives in cities or states with 100% smoke-free workplaces, and/or restaurants, and/or bars. .[iv]  

South Dakota state law gives local governments the authority to address health and safety concerns on a local level -- tobacco should not be an exception.

SDCL 9-32-1 states “every municipality shall have power to do what may be necessary or expedient for the promotion of health or the suppression of disease.”  SDCL 9-34-5 gives municipalities the power to regulate the place of sale and selling of meats, poultry, fish, cheese, lard, vegetables, and similar provisions, yet tobacco products are not permitted the same level of local regulation when their product is known to be inherently deadly.

           South Dakota Tobacco-Free Kids Network, 12/06/06