Food Industry v. Government Entity

The food industry often sues the government after the latter passes a novel law. This means that state or local governments need to consider the potential for litigation when, in an effort to support public health, they enact laws that regulate an industry. All states have an attorney general whose office is responsible for defending the state government in such matters. Additionally, approximately 30 state health agencies have their own legal department that employs attorneys.^[1] There are approximately 89,000 local governments in the United States,^[2] which have much more diverse structures than the state governments. Several local governments, however, have taken novel approaches to food policy and have been sued by the food industry. The litigation against New York City for the nation’s first menu label law exemplifies a typical lawsuit of this kind.

New York City was sued several times for laws enacted by the Department of Health and Mental Hygiene under Mayor Bloomberg’s administration (20022013). As discussed in more detail in Chapter 9, New York City was the first location to pass a trans fat ban, menu label law, and sugary beverage serving-size restriction. Various sectors of the food industry sued the city to prevent enforcement of the latter two laws. The lawsuit related to the serving size restriction is premised on separation of powers issues and is discussed in the next chapter. The lawsuit based on the menu label law represents common arguments industry makes in response to public health laws, especially those regulating food and tob acco.^[3]-^[4]-^[5]

In 2006, the New York City Board of Health adopted an amendment to its health code enacting the nation’s first menu label law.^[6] The New York State Restaurant Association (NYSRA) challenged the law in federal district court based on two allegations: that the law was preempted by the NLEA and that the law violated the First Amendment.^[7] The court found that this original ordinance was, in fact, preempted by the NLEA because it tied the requirement to voluntary disclosures; the court ruled in favor of the NYSRA without addressing the First Amendment claims.^[8] New York City amended the law to correct the violation and adopted the revised law on January 22, 2008. The new regulation required covered food service establishments to disclose the calorie content of their food products directly on the menu or menu board. The NYSRA again filed a lawsuit, alleging that this, too, was preempted by the NLEA and violated the First Amendment.

In the New York City menu label case, the industry first argued that the NLEA preempted the law.^[7] Prior to the federal menu labeling law which was enacted in 2010, however, the NLEA did not preempt mandatory disclosures in food retail establishments. So at this time, the NLEA’s preemption provision did not apply to restaurants. The NYSRA also argued that the menu label law impermissibly compelled speech. As discussed in the chapter on labeling, the First Amendment permits government to require commercial entities to disclose factual information about the products for sale in the marketplace. Thus, the district court found in favor of the city and ordered covered food service establishments to comply with the regulation. The NYSRA appealed this decision to the United States Court of Appeals for the Second Circuit. It is noteworthy that the FDA submitted an amicus brief in support of New York City. In February 2009, the court upheld the menu label law. At this point, other local governments around the country enacted menu label laws, including Seattle King County,^[10] and San Francisco and Santa Clara, California.^[11]

The claims that local government action is preempted and violates the regulated industry’s First Amendment rights are typical of public health-related litigation. Although courts are technically supposed to lean toward state and local law not being preempted according to Supreme Court precedent, many opportunities remain for a court to find a law is preempted. As discussed in Chapter 2, even if the federal law does not expressly preempt state or local law, a court could find that they conflict or that the federal government intended to occupy the field and thus it is technically preempted anyway. Thus, it makes sense that the food industry would argue in court that a state or local law is preempted.

The second argument, that the action violates the First Amendment is also very typical in public health litigation. In fact, many of the seminal Supreme Court cases on commercial speech involve industry challenges to public health laws. This is because many laws aimed at protecting public health implicate businesses’ interests in some manner. Since the Supreme Court created the commercial speech doctrine in 1976, corporations have argued for increased First Amendment protections for commercial speech. As such, they often contend that regulations involving any type of communication violate their First Amendment rights. Creative lawyers can argue that most public health regulations involve speech or expression of some sort. For example, the tobacco industry unsuccessfully claimed that a city’s ban of tobacco sales in pharmacies unconstitutionally suppressed “its speech because the product itself is a form of advertisement.”^[12] The ban was upheld as a regulation of conduct. Regulations of conduct are discussed further in Chapter 9.

• [1] Association of State and Territorial Health Officials. Public Health Responsibilities. Keyfindings on State Public Health Agency Responsibilities from the 2010 Profile of State PublicHealth Survey. http://www.astho.org/research/data-and-analysis/2010-profile-survey-slide-decks/chapter-1—state-public-health-agency-responsibilities/
• [2] Census Bureau Reports. There Are 89,004 Local Governments in the United States. August30, 2012. http://www.census.gov/newsroom/releases/archives/governments/cb12-161.html
• [3] Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).
• [4] Philip Morris USA, Inc. v. City & County of San Francisco, 345 Fed. Appx. 276 (9th Cir. 2009).
• [5] National Association of Tobacco Outlets, Inc. v. City of Providence, 731 F.3d 71 (1st Cir. 2013).
• [6] New York City Health Code § 81.50.
• [7] J. L. Pomeranz. Compelled Speech Under the Commercial Speech Doctrine: The Case ofMenu Label Laws. Journal of Health Care Law & Policy. 2009;12:159-194.
• [8] New York State Restaurant Association v. New York City Board of Health, 509 F. Supp. 2d 351(S.D.N.Y. 2007).
• [9] J. L. Pomeranz. Compelled Speech Under the Commercial Speech Doctrine: The Case ofMenu Label Laws. Journal of Health Care Law & Policy. 2009;12:159-194.
• [10] King County, Washington. Nutrition labeling in King County. http://www.kingcounty.gov/healthservices/health/nutrition/healthyeating/%7e/media/health/publichealth/documents/boh/reg0802.ashx
• [11] San Francisco, California Health Code § 468 (2008); Santa Clara, California, Ordinance NS300.793 (2008).
• [12] Philip Morris USA v. City & County of San Francisco, 2008 U.S. Dist. LEXIS 101933 (N.D.CA 2008).