Legal Issue

Whether a state law preempted a municipal smoke-free ordinance.


The Town of Colebrook passed the "Environmental Tobacco Smoke Regulations for Restaurants" ordinance, prohibiting smoking in restaurants.  A restaurant challenged the smoke-free ordinance claiming that the State Indoor Smoking Act preempted the ordinance.

On May 19, 2003, the Tobacco Control Legal Consortium filed an amicus brief in support of the Town of Colebrook, arguing that the goals of the smoke-free ordinance were consistent with those of the State Indoor Smoking Act and that language in the state law disavowed any intent to preempt local action.  We argued that the legislative grants of authority to local towns and governments to provide for general safety include authority for a town to regulate secondhand smoke as a public safety measure and pointed out that the State Indoor Smoking Act included an anti-preemption clause to allow municipal regulations to restrict smoking on public safety grounds.


On August 19, 2003, the Supreme Court of New Hampshire struck down the Town of Colebrook’s smoke-free ordinance, finding that the New Hampshire Indoor Smoking Act preempted it.  The court noted that the state law’s plain meaning included a comprehensive and detailed regulation of smoking in restaurants and only permitted additional municipal regulation for fire protection, safety and sanitation, not public health.  The court also said that the legislature could have explicitly authorized local governments to enact more stringent requirements, but chose not to do so.

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