The Resolution Project - Local authority to protect public health

1. This Resolution Project will demonstrate demand for local authority regarding smokefree air legislation.

The New Jersey League of Municipalities, the New Jersey Local Boards of Health Association, and a number of health and other organizations have launched a project to demonstrate demand for local authority to protect public health. Specifically, this resolution project supports freedom to enact local smokefree indoor air legislation.

The partners in the project are asking local governments and boards of health, state and local organizations, and others to pass a resolution supporting state legislation “to repudiate or repeal any preemption of local smokefree air legislation, and to reiterate or restore the authority of local governments to enact and enforce local controls on tobacco use to protect public health.”

2. This Resolution Project is necessary because local government authority to control tobacco has been attacked.

Thwarting local tobacco-control laws is a core strategy of the tobacco industry and its allies. Two central tactics are (1) lawsuits, or the threat of lawsuits, against local governments that enact local tobacco-control ordinances and (2) promoting and supporting preemption – the passage of state laws that eliminate the authority of local governments to enact tobacco-control ordinances. New Jersey local governments have endured both tactics.

In 1990, New Jersey municipalities began passing ordinances to protect children by eliminating or restricting tobacco vending machines. Eleven municipalities that passed ordinances were sued by tobacco vendors. The industry lawsuits included arguments that state law preempted local legislation. Even after the New Jersey Supreme Court, in 1994, upheld East Brunswick’s vending ban, tobacco vendors continued to sue other towns. Ultimately, the communities prevailed in their right to enact local legislation controlling tobacco vending machines, and the industry temporarily stopped those intimidation tactics.
During 1993-2000, seven New Jersey municipalities passed smokefree air legislation for indoor workplaces and public places, including restaurants. Glassboro, Linwood, and Pitman made restaurants smokefree; Linwood’s ordinance also included other public places. Marlboro, Lawrence, and Secaucus enacted partial smokefree ordinances for restaurants. Highland Park made workplaces smokefree.
In June 2000, after a year and a half of research and public hearings, the Princeton Regional Health Commission, serving the Township and Borough, enacted a comprehensive smokefree air ordinance for workplaces and public places, including restaurants and bars. The National Smokers Alliance (NSA), a Virginia-based entity, sued the municipalities, claiming state preemption. Two Princeton restaurants and one tavern joined in the lawsuit.

Tobacco companies were the biggest funders of the NSA, according to the California Attorney General's office; Philip Morris, Brown and Williamson, and Lorillard tobacco companies gave the NSA $42 million from 1993 to 1996. The 2000 Surgeon General's Report (page 254) documented that the NSA's total income in 1996 was more than $9 million but it collected only $74,000 in dues, enough dues for only 7,400 members, although it "boasts that it is 'a nonprofit, grass-roots membership organization with more than 3 million members.'"

On August 29, 2000, the New Jersey Superior Court of Mercer County ruled that the state smokefree air legislation, passed in the 1980s, preempted the Princeton ordinance. Princeton did not appeal this Mercer County Superior Court decision.

Since then, Manville has made workplaces and public places smokefree, specifically excluding restaurants and bars because of fear of lawsuit. More than 15 ordinances have been passed making other indoor areas smokefree, though none includes restaurants and bars. Also, more than 70 municipalities have enacted smokefree air legislation for outdoor areas -- manifesting continued interest in controlling tobacco use and making New Jersey the smokefree outdoor air leader in the nation.

Still, a number of other municipalities report that uncertainty about their authority and fear of a lawsuit like Princeton’s has deterred them from enacting smokefree indoor air legislation, especially for restaurants.

3. This Resolution Project was begun in autumn 2003. Public launch, March 2004. Documented demand for local authority is scheduled to be announced in May 2004.

In autumn 2003, New Jersey GASP, the Group Against Smoking Pollution, began discussing this resolution project with the New Jersey Prevention Network, which coordinates county Community Against Tobacco (CAT) coalitions, the League of Municipalities, the Local Boards of Health Association, health organization colleagues, and others. Late in 2003, GASP, the Prevention Network, the League, and the Boards of Health Association decided to proceed with this resolution project.

In January 2004, Assemblywoman Loretta Weinberg, who has introduced legislation to repeal/repudiate preemption and to enact non-preemptive smokefree air legislation, asked representatives of New Jersey Breathes, the statewide tobacco-control coalition, for documentation that New Jersey local governments want clear authority to control tobacco use. At its January meeting, New Jersey Breathes, which has more than 50 statewide organizations, predominantly health organizations, as members, voted to join in this local-authority resolution project.

In March 2004 the resolution will be mailed to all New Jersey mayors by the League, to all local boards of health by the Boards of Health Association, and to all health officers by New Jersey GASP. All other project participants, organizations, colleagues, and other interested parties will be notified by email. The goal is to have a significant number of resolutions passed by May 31, 2004, World No Tobacco Day.

4. This Resolution Project is supported by many statewide organizations and other entities.

Partners in the project, in addition to the New Jersey League of Municipalities, the New Jersey Local Boards of Health Association, the New Jersey Group Against Smoking Pollution (GASP), and the New Jersey Prevention Network with its county CAT coalitions, include the New Jersey Health Officers Association, and New Jersey Breathes – the statewide tobacco-control coalition with more than 50 member organizations including the American Cancer Society, the American Heart Association, the American Lung Association, and the Medical Society of New Jersey. Additional participants include health, consumer, environmental, civic, good government, service, youth, educational, and religious organizations; unions; community groups including individual religious congregations; businesses including restaurants and bars; and others.

5. How will this Resolution Project proceed?

After the March 2004 mailing to mayors, local boards of health, and health officers, partner organizations will encourage local governments to pass the resolution. Partner organizations will also pass the resolution or a policy statement themselves and will seek additional participants for the project.

Copies of signed resolutions should be sent to New Jersey GASP, which will track all the resolutions. On its website (www.njgasp.org) New Jersey GASP will post who passed resolutions (local government unit, organization, or other entity); what they passed (this resolution, other resolutions – see below); when they did it; and their location.

New Jersey GASP will also notify state legislators about governments, organizations, and other entities in their districts that passed resolutions.

Then project participants will reach out to the New Jersey Legislature, Governor McGreevey, the media, and the public with the documented demand for local authority.

6. Complementary projects

Local affiliates of the American Cancer Society have been, for a year or two, encouraging municipalities to pass resolutions in favor of specific proposed state legislation (from past legislative sessions) to repudiate/repeal preemption and/or enact statewide smokefree air laws. More than 20 municipalities have passed such resolutions. New Jersey GASP will also track these resolutions.
New Jersey Breathes began a “Spare the Air” campaign to collect citizen signatures on a petition in favor of smokefree air in workplaces and public places in all communities. Various organizations, especially county CAT coalitions and REBEL (Reach Everyone by Exposing Lies) youth coalitions, gathered almost 50,000 signatures by June 2003. New Jersey Breathes tracks these petitions. New Jersey GASP's resolution tracking will note this complementary project and the current total of signatures.
Representatives of the religious community in New Jersey and New Jersey Breathes called for increased tobacco-control funding on January 22, 2004 and also endorsed smokefree air legislation. That call was part of a national appeal to governors. The religious community plans to be active in this local-authority resolution project.
Many organizational partners in this project also support statewide, non-preemptive, smokefree air legislation and plan to pass resolutions to that effect (Resolution B). Some of these partners also plan to encourage others, including local governments, to sign such resolutions as well. New Jersey GASP will track Resolution B.

7. Tracking and technical assistance for the projects

New Jersey GASP will track the passage of resolutions (as described on page 3, second full paragraph and following), will track project participants and facilitate communication among participants, and will provide coordination and technical assistance.

March 2004