Front Group Claiming OSHA Preemption

OSHA Doesn't Preempt State or Local Smokefree Laws

Publication Date: 2003-09-03

The Empire State Restaurant and Tavern Association (ESRTA) is a well-known player in New York tobacco control.  Over the years, this organization has fought against local smokefree air laws, lobbied for preemption, promoted flawed economic impact studies, and supported weak, ineffective legislation.  ESRTA has been known by different names over the years, including the United Restaurant, Hotel and Tavern Association and the New York Tavern and Restaurant Association, but its purpose of undermining smokefree indoor air laws has remained the same.

Changing names to disguise its identity has not hidden ESRTA’s well-established ties to the tobacco industry.  In 1994, the Tobacco Institute, which was created and funded by the tobacco industry, gave money to ESRTA to fund ads against the proposed New York City smokefree air law.  The Tobacco Institute also channeled over $400,000 through ESRTA to help its 1995 state preemption campaign.  ESRTA’s newest tactic was recently revealed in its fight against the New York State Clean Indoor Air Act.

Just days before going into effect, ESRTA filed a lawsuit to prevent the implementation of the law, arguing that the state law is preempted by federal Occupational Safety and Health Administration (OSHA) regulations.  ESRTA’s argument is frivolous and illogical, as the question of whether OSHA preempts state and local clean indoor air activity has already been addressed.  In 1998, a tobacco control advocate in Wisconsin received a letter from Frank Frodyma, the Acting Director of Policy for OSHA, stating:

“[S]ince OSHA has not promulgated a rule on Indoor Air Quality, Wisconsin’s promulgation and enforcement of State laws and local ordinances addressing the issue of occupational exposure to tobacco smoke would not be subject to claims of preemption until such time as Federal OSHA adopts such a standard.”

In December 2001, OSHA decided not to pursue a federal clean indoor air regulation because local and state authorities around the country have taken, and continue to take, effective action to protect the public from the health hazards of secondhand smoke.

The Clean Indoor Air Act is proving to be popular with New Yorkers and is beneficial both for their health and for New York businesses.  ESRTA’s effort to overturn the law is just one more attempt on behalf of the tobacco industry to undermine smokefree air laws that protect people from secondhand smoke in order to protect the tobacco industry’s interests.

 The full text of the OSHA letter is below.
______________________________________

U.S. Department of Labor
Occupational Safety and Health Administration Washington, D.C. 20210

Reply to the Attention of:

Feb 24 1998

Dear

This is in response to your letter asking whether Occupational Safety and Health Administration (OSHA) rules preempt cities in Wisconsin from passing local smokefree workplace/public accommodation ordinances. It is difficult for us to respond in detail to specific State and local laws or regulations. The question of Federal preemption of a particular State law is a complex legal issue which ultimately must be addressed by the courts. However, we hope the following discussion of general principles under section 18 of the Occupational Safety and Health Act (29 U.S.C. 667) will be useful.

The Act generally preempts State/local enforcement activities for occupational safety and health in those areas for which OSHA has adopted standards. This preemption would apply regardless of whether the State law is more or less restrictive than the corresponding OSHA requirement. If, however, a State obtains approval of a State plan, as provided by section 18 of the Act, the State can reacquire jurisdiction. Therefore, if OSHA has adopted a standard, State law is preempted unless the State obtains approval of a State plan. (See: Glade v. Nat'l Solid Waste Mgmt Ass'n, 505 U.S. 88 (1992)).

OSHA is currently assessing information contained in the record on indoor air quality. OSHA published a Proposed Rule on Indoor Quality in the Federal Register on April 5, 1994, which addressed air quality in indoor work environments from a building system perspective, in contrast to a contaminant specific perspective. The basis for this proposed action is a preliminary determination that employees working in indoor work environments face a significant risk of material impairment to their health due to indoor air pollution. Contaminants that contribute to poor indoor air quality can be attributed to both outside air and inside air. Inside air contaminants include tobacco smoke, volatile organic compounds (VOCs), and combustion gases such as carbon monoxide. The concentrations of these contaminants in buildings can increase if ventilation systems are inadequately designed, maintained and operated, or if strong local contaminant sources are not controlled.

The Agency requested comments from the public on the proposed indoor air standard and scheduled informal public hearings where people could orally submit their views on the proposal. The rulemaking record closed on February 9, 1996, and the record contains over 115,000 comments. The Agency will make decisions on the resolution of the rulemaking.

Since Wisconsin does not have an approved State plan, OSHA's standards would preempt State/local laws for occupational safety and health in those areas for which OSHA has adopted standards. However, since OSHA has not promulgated a rule on Indoor Air Quality, Wisconsin's promulgation and enforcement of State laws and local ordinances addressing the issue of occupational exposure to tobacco smoke would not be subject to claims of preemption until such time as Federal OSHA adopts such a standard.

We hope that this letter has helped clarify the relationship between federal OSHA and the States. If you have any further questions, please do not hesitate to contact us.

Sincerely,

Frank Frodyma

Acting Director of Policy