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Open Access Publications from the University of California

Legal Authority to Regulate and Common Legal Threats and Challenges


Abstract Secondhand smoke is responsible for the early deaths of up to 65,000 Americans each year and is the third leading preventable cause of death in the United States, surpassed only by smoking and alcohol consumption. The World Health Organization and the United States Environmental Protection Agency classify secondhand smoke as a known human carcinogen, for which there is no known safe level of exposure. In addition, abundant scientific data links secondhand smoke to numerous negative health outcomes, including immediate adverse respiratory and cardiovascular effects.

States, municipalities and other political subdivisions have responded to the health hazards of secondhand smoke by prohibiting smoking in indoor areas. The number of smoke-free communities has grown dramatically in recent years. This law synopsis reviews the most common legal challenges to smoke-free ordinances. The vast majority of these challenges fail. When plaintiffs succeed in striking down a smoke-free ordinance, the reason is usually preemption or a procedural error during passage of the ordinance.

This synopsis outlines state and local governmental authority for regulating smoking and addresses the legal doctrine of preemption, which raises concerns in some, but not all states. The author outlines several constitutional legal challenges to smoke-free ordinances that are often threatened, examines the legal authority of local regulatory bodies for passing smoke-free ordinances and uses the example of private clubs to illustrate the need for care when drafting smoke-free ordinances.

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