Menu Labeling and Preemption
The primary informational strategy utilized in the food retail environment is the enactment of menu labeling laws. The goal of menu labeling laws is to provide consumers with nutrition information at the point of purchase. Many state and local jurisdictions passed menu labeling laws, predominantly requiring calorie content to be displayed on the menu, menu board, or drive-through at chain restaurants, which have standardized menu items across outlets. (As discussed in Chapter 6, a federal menu labeling law was passed as part of the Patient Protection and Affordable Care Act in 2010.)
When state and local governments began to pass menu labeling ordinances around the country, the restaurant industry initially responded by suing the governments. After it became clear that litigation was not going to effectively stop menu labeling, the industry began lobbying sympathetic state legislatures to preempt the ability of local jurisdictions to pass such laws. For purposes of state and local control, this fight for preemption is quite informative. Preemption is an important issue for state and local governments. As discussed in Chapter 2, it occurs when a higher level of government restricts or trumps the authority of a lower level of government to address a specific issue.
In 2006, New York City became the first jurisdiction to pass a menu labeling law. The New York State Restaurant Association sued the city in federal district court to prevent enforcement of the law, arguing that the law was preempted by the federal Food, Drug, and Cosmetic Act and that it violated the First Amendment. Based on the wording of the original ordinance, the court found that the ordinance was, in fact, preempted by federal law. The city revised the ordinance to correct the preemption violation and adopted the revised menu label law in 2008.[1] This required that the total calorie count of standard menu items be displayed on menu boards alongside the item. The restaurant industry sued the city again, arguing the same constitutional violations, but this time the city prevailed in court. In the meantime, San Francisco and Santa Clara, California passed menu labeling laws, and both were sued by the restaurant industry. The state of California subsequently passed a menu label law that preempted local efforts, making the ordinances passed in San Francisco and Santa Clara unenforceable, thereby nullifying the lawsuit. Other jurisdictions passed menu labeling laws, including Seattle Kings County, Washington and Philadelphia, Pennsylvania.
In addition to lawsuits arguing for preemption, the restaurant industry campaigned for states to use preemption as a tool to withdraw the ability of local governments to pass menu labeling laws. It was successful in Georgia, where the legislature passed a law that was signed by the governor in 2008 and prohibited local legislatures and local boards of health from passing a law that requires food service establishments to provide nutrition information about their products.[2] Perhaps the most disappointing case of preemption from a public health perspective occurred in Tennessee. In 2009, the Metropolitan Board of Health of Nashville and Davidson County passed a menu labeling ordinance that was popular in the jurisdiction.[3] Tennessee legislators disagreed with the provision and passed a law prohibiting nonelected government bodies (i.e., boards of health) from enacting regulations ‘‘pertaining to the provision of food nutritional information or otherwise regulate menus at food service establishments.’’[4] The governor actually vetoed the preemptive law but the legislature overrode the governor’s veto, nullifying the previously passed menu labeling law and preempting all other boards of health in the state from enacting the same.
Preemptive legislation has broad reaching consequences. The higher level of government simultaneously withdraws powers from lower levels of governments to adopt innovative solutions to public health problems and respond to the needs of their distinct constituents, but it also increases its own authority by concentrating power at the state and federal capitals.[5] In addition, preemption negatively affects grassroots movements, which are organized efforts to address threats to the health and safety of a community, led by activated citizens and organizations that devote time and resources to building grassroots capacity.[5] Grassroots movements often are built around a single issue, such as an innovative solution to a public health problem. Grassroots movements may help to educate the public about a policy initiative or rally around a policymaker who champions their cause. When legislation preempts the ability of lawmakers to pass the policy around which the movement was formed, the grassroots movement may disband and die out.[7]
- [1] New York City, NY, Health Code § 81.50.
- [2] OCGA §26-2-370 (July 1, 2008).
- [3] J. L. Pomeranz. The Unique Authority of State and Local Health Departments to AddressObesity. American Journal of Public Health. 2011;101(7):1192-1197.
- [4] 2010 Tenn ALS 614, An Act to Amend Tennessee Code Annotated, Section 68-14-303.
- [5] M. Pertschuk, J. L. Pomeranz, J. Ralston Aoki, M. A. Larkin, and M. Paloma. Assessingthe Impact of Federal and State Preemption in Public Health: A Framework for Decision Makers.Journal of Public Health Management and Practice. 201з;19(з):213-219.
- [6] M. Pertschuk, J. L. Pomeranz, J. Ralston Aoki, M. A. Larkin, and M. Paloma. Assessingthe Impact of Federal and State Preemption in Public Health: A Framework for Decision Makers.Journal of Public Health Management and Practice. 201з;19(з):213-219.
- [7] M. Pertschuk, J. L. Pomeranz, J. Ralston Aoki, M. A. Larkin, and M. Paloma. Assessingthe Impact of Federal and State Preemption in Public Health: A Framework for Decision Makers.Journal of Public Health Management and Practice. 201з;19(з):21з-219.
