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Developing Smokefree Implementation Regulations
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Rulemaking Authority
 


The first step in developing smokefree implementation regulations is determining whether or not an agency has the authority to develop such regulations. Rulemaking authority may be specific to a particular piece of legislation or general for the health department or other agency. For help making this determination, as well as identifying the relevant requirements for rulemaking in a specific state or community request TA or contact TTAC at (404) 712-8474 or ttac@sph.emory.edu.

Many state smokefree laws grant rulemaking authority in their statutory language. For example, the New Jersey Smoke-free Air Act, adopted in 2006, states:

The Commissioner of Health and Senior Services, pursuant to the 'Administrative Procedure Act,'., shall adopt rules and regulations to effectuate the purposes of this act.

In other states, including New Mexico, the legislature has given the Secretary of Health the general authority to adopt needed regulations:

The secretary may make and adopt such reasonable and procedural rules as may be necessary to carry out the duties of the department and its divisions. No rule promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. (Annotated Statutes of New Mexico, 9-7-6. Secretary; duties and general powers.)

A smaller number of states expressly prohibit the health department from adopting implementation regulations, as in the case of New York. The New York Clean Indoor Air Act states:

The commissioner shall not promulgate any rules or regulations to effectuate the provisions of [the Clean Indoor air Act]. The commissioner shall not promulgate any rules or regulations that create, limit or enlarge any smoking restrictions.

More than 700 cities and counties across the country have adopted local smokefree ordinances, and in the absence of state preemption, local legislators have broad authority to enact smokefree laws. In a limited number of cases, state law may also authorize local health agencies to adopt smokefree regulations. For example, Massachusetts grants broad authority to local boards of health to pass and enforce health regulations, and this authority has resulted in the adoption of strong local smoking ordinances throughout the state. However, Massachusetts is unusual and courts in other states have generally not extended such broad local rulemaking authority.