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Legal Authority to Regulate Smoking and Common Threats and Challenges: 2009

23 Pages Posted: 27 Dec 2009  

Cheryl Sbarra

affiliation not provided to SSRN

Date Written: 2009


Smoke-free policies continue to be the most effective and economic strategy for protecting nonsmokers from exposure to secondhand smoke. As of April 2009, 16,519 municipalities across the United States have passed a state or local law with a 100 percent smoke-free provision covering workplaces, and/or restaurants, and/or bars, and protecting 70.2 percent of the United States population. A small number of these laws have been legally challenged. Although most of these challenges have been unsuccessful, smoke-free litigation can be an exhausting, expensive and time-consuming process. The best way for policymakers and smoke-free advocates to avoid litigation is to learn from past experience.

This law synopsis serves as a primer on common legal threats and challenges to smoke-free regulation. It reviews state and local governmental authority for regulating smoking, and briefly outlines the legal doctrine of preemption. It describes several constitutional legal challenges to smoke-free ordinances, such as claims brought on the basis of equal protection, vagueness, privacy, takings, freedom of association, and freedom of speech. The synopsis also examines the legal authority of local regulatory bodies to pass smoke-free ordinances. Finally, it uses the example of private clubs to illustrate the need for care when drafting smoke-free ordinances.

Keywords: Tobacco, law, policy, public health, smoking, smoke-free, secondhand smoke, tobacco, tobacco regulation, smoking ban

Suggested Citation

Sbarra, Cheryl, Legal Authority to Regulate Smoking and Common Threats and Challenges: 2009 (2009). William Mitchell Legal Studies Research Paper No. 2009-03. Available at SSRN: or

Cheryl Sbarra (Contact Author)

affiliation not provided to SSRN

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