Review and special article| Volume 44, ISSUE 4, P399-405, April 2013

State Pre-Emption, Local Control, and Alcohol Retail Outlet Density Regulation


      The substantial health and economic costs of excessive alcohol consumption make its reduction a major public health and economic concern. The Community Preventive Services Task Force, based on a systematic review of the research literature, concluded that restricting alcohol retail outlet density through local land use and zoning regulations is an effective strategy for reducing these costs. Yet the implementation of the Task Force's recommendation is limited by state pre-emption, which determines the extent to which states allow local government to adopt policies and enact legislation. This article summarizes the state pre-emption doctrine, its status in the 50 states pertaining to alcohol retail outlet density regulation, and findings from state legal analyses conducted in six states. Data reflect state laws in effect as of January 1, 2012. Analyses were conducted during the 2012 calendar year.
      An examination of relevant state laws found five distinct pre-emption categories: exclusive state licensing, exclusive state licensing and concurrent local zoning, joint licensing, exclusive local licensing, and a mixed system. The analysis demonstrated wide variability across the states, ranging from exclusive state pre-emption to broad state delegation of authority to local governments. Pre-emption is applied differentially in many states based on retail outlet characteristics. In many cases, state pre-emption laws are ambiguous in terms of their application, leading to inconsistent and confusing court interpretations. Reforms targeting the adverse impact of state pre-emption on alcohol retail outlet density have the potential for reducing the harm associated with excessive alcohol consumption. State and local public health departments can support such reforms by implementing educational, analytic, monitoring, and technical assistance activities.
      To read this article in full you will need to make a payment

      Purchase one-time access:

      Academic & Personal: 24 hour online accessCorporate R&D Professionals: 24 hour online access
      One-time access price info
      • For academic or personal research use, select 'Academic and Personal'
      • For corporate R&D use, select 'Corporate R&D Professionals'


      Subscribe to American Journal of Preventive Medicine
      Already a print subscriber? Claim online access
      Already an online subscriber? Sign in
      Institutional Access: Sign in to ScienceDirect


        • Bouchery E.
        • Harwood H.
        • Sacks J.
        • Simon C.
        • Brewer R.
        Economic costs of excessive alcohol consumption in the U.S., 2006.
        Am J Prev Med. 2011; 41: 516-524
        • CDC
        Alcohol-attributable deaths and years of potential life lost—U.S., 2001.
        MMWR Morb Mortal Wkly Rep. 2004; 53: 866-870
        • Guide to Community Preventive Services
        Preventing excessive alcohol consumption, 2012.
        • Naimi T.
        • Nelson D.
        • Brewer R.
        The intensity of binge alcohol consumption among U.S. adults.
        Am J Prev Med. 2010; 38: 201-207
        • Task Force on Community Preventive Services
        • Task Force on Community Preventive Services
        Recommendations on privatization of alcohol retail sales and prevention of excessive alcohol consumption and related harms.
        Am J Prev Med. 2012; 42: 428-429
        • Task Force on Community Preventive Services
        Recommendations for reducing excessive alcohol consumption and alcohol-related harms by limiting alcohol outlet density.
        Am J Prev Med. 2009; 6: 570-571
        • Task Force on Community Preventive Services
        Increasing alcoholic beverage taxes is recommended to reduce excessive alcohol consumption and related harms.
        Am J Prev Med. 2010; 38: 230-232
        • Gorovitz E.
        • Pertschuk M.
        • Mosher J.
        Pre-emption or prevention?.
        J Public Health Policy. 1998; 19: 37-50
        • Pertschuk M.
        • Pomeranz J.
        • Aoki J.
        • Larkin M.
        • Paloma M.
        Assessing the impact of federal and state preemption in public health: a framework for decision makers.
        J Public Health Manag Pract. 2012; (in press (advance copy,))
      1. U.S. Constitution, 10th Amendment.

      2. U.S. Constitution, 21st Amendment.

        • Diller P.
        Intrastate preemption.
        Boston. L. Rev. 2007; 87: 1114-1175
      3. Viva! International Voice for Animals v. Adidas Promotional Retail Operations, Inc., 41 Cal.4th 929, 935 (2007).

        • Rutkow L.
        • Vernick J.
        • Hodge J.
        • Teret S.
        Preemption and the obesity epidemic: state and local menu labeling laws and the Nutritional Labeling and Education Act.
        J Law Med Ethics. 2008; 36: 772-789
        • Mosher J.
        The perils of preemption.
        American Medical Association, Chicago IL2001
        • Nixon M.
        • Mahmoud L.
        • Glantz S.
        Tobacco industry litigation to deter local public health ordinances: the industry usually loses in court.
        Tob Control. 2004; 13: 65-73
        • O'Connor J.
        • MacNeil A.
        • Chriqui J.
        • Tynna M.
        • Bates H.
        • Eidson S.
        Preemption of local smoke-free air ordinances: the implications of judicial opinions for meeting national health objectives.
        J Law Med Ethics. 2008; 36: 403-412
        • Jurkiewicz C.
        • Painter M.
        Why we control alcohol the way we do.
        in: Jurkiewicz C. Painter M. Social and economic control of alcohol: the 21st Amendment in the 21st century. CRC Press, New York NY2008: 1-18
        • National Institute on Alcohol Abuse and Alcoholism (NIAAA), Alcohol Policy Information System (APIS)
        • Ashe M.
        • Jernigan D.
        • Kline R.
        • Galaz R.
        Land use planning and the control of alcohol, tobacco, firearms, and fast food restaurants.
        Am J Public Health. 2003; 93: 1404-1408
        • Wittman F.
        Community control of alcohol and drug risk environments: the California experience.
        Subst Use Misuse. 2007; 42: 1835-1849
      4. Floresta Inc. v. City Council, 190 Cal.App.2d 599, 605 (1961).

        • Campbell C.
        • Hahn R.
        • Elder R.
        • et al.
        The effectiveness of limiting alcohol outlet density as a means of reducing excessive alcohol consumption and alcohol-related harms.
        Am J Prev Med. 2009; 37: 556-569
        • Tremper C.
        • Thomas S.
        • Wagenaar A.C.
        Measuring law for evaluation research.
        Eval Rev. 2010; 34: 242-266
        • Mosher J.
        • Cannon C.
        • Treffers R.
        Reducing community problems associated with alcohol sales: the case of deemed approved ordinances in California.
        Ventura County Behavioral Health Department, Oxnard CA2009
        • Cohen E.
        • Mosher J.
        Local control of retail alcohol availability in Georgia: a legal analysis.
        Alcohol Policy Consultations, Felton CA2011
        • Cohen E.
        • Mosher J.
        Local control of retail alcohol availability in Maryland: a legal analysis.
        Alcohol Policy Consultations, Felton CA2011
        • Mosher J.
        Local control of alcohol availability in Nebraska: a legal analysis.
        Project Extra Mile, Omaha: NE2011
        • Mosher J.
        • Pezzolesi R.
        • Treffers R.
        The impact of strict state preemption on the regulation of alcohol outlet density: the case of New York State.
        Alcohol Policy Consultations, Felton CA2011
        • Mosher J.
        Alcohol retail availability regulation in Wisconsin.
        • CCH, Inc.
        Liquor Control Law Reporter.
        CCH, Inc., Riverwoods IL2012 ([1])
      5. City of Oakland v. Superior Court, 53 Cal. App.4th 740 (1996), review denied.

      Linked Article

      • Law and the Public's Health: Science and Policies
        American Journal of Preventive MedicineVol. 44Issue 4
        • Preview
          This issue of the American Journal of Preventive Medicine includes two articles that have a common theme, the role of law in policy initiatives to improve the public's health. In the first, by Mosher and Treffers,1 the subject is state pre-emption of local efforts to regulate the sites where alcohol beverages may be sold. The second, by Taber and colleagues,2 looks at the impact of state laws addressing the composition of school lunches on the intake of fruits and vegetables by youth.
        • Full-Text
        • PDF