According to the Tobacco Control Legal Consortium, there is no “right” to smoke under the US Constitution. Among other reasons, smokers are not a specially protected class under the Equal Protection Clause, nor is smoking a specially protected right (like the use of contraceptives or other activities within the “fundamental right to privacy”) under the Due Process Clauses of the Fifth and Fourteenth Amendments. Policymakers must simply demonstrate that smokefree laws are “rationally related” to a legitimate government interest, and the courts have consistently found that protecting the public health by eliminating secondhand smoke is a legitimate government goal.

Of more concern in smokefree drafting and rulemaking is the “vagueness doctrine,” which derives from the right to due process and requires that statutory and regulatory language is clear enough that a “reasonable person” could determine what actions are required or prohibited. The risk that a smokefree law will be found void for vagueness rises as the law becomes more complex or includes more exemptions. Criminal laws are held to a higher standard of clarity than those with civil penalties.

The success of tobacco policy has been driven primarily by the introduction and passage of local smoking ordinances (and more recently, smokefree ordinances). Because the tobacco industry is more powerful at the national and state levels than at the local level, local smokefree ordinances have historically been easier to adopt and stronger than state or Federal tobacco control legislation. Therefore, state preemption of local smoking ordinances has been among the highest priorities of the tobacco industry, and state laws should always contain an explicit non-preemption clause authorizing the passage and enforcement of stronger local laws.

Eleven states currently preempt local smokefree ordinances. Other state laws contain language that is either partially preemptive or unclear. In some cases, such as California, the courts have resolved conflicting preemption language in favor of local control. In March 2008, the South Carolina Supreme Court found that a preemption clause in the statewide youth tobacco access law does not preempt local smokefree laws.

Although legal challenges are rarely successful, it is prudent to be prepared for the tobacco industry or its allies to interfere with smokefree implementation. Among other tactics, the industry has promoted ballot measures, contested the reelection of supportive lawmakers, and sought to delay implementation, either by seeking a temporary injunction or a change in a law’s effective date.

After a smokefree law takes effect, supporters should be prepared for anecdotal claims of economic loss, usually from bars, or of isolated incidents of noncompliance. Because it takes at least a year to assess the genuine economic impact of a new smokefree law, the industry may try to create a (false) sense of urgency. In the past, negative media attention has typically been generated by public relations firms or consultants associated with the tobacco industry.