Vol 22, 2013 Annals of Health Law
LOCAL GOVERNMENT AND THE FOOD SYSTEM
to other pressing public health concerns, such as the rise of environmental
pollutants and antimicrobial resistance among animals used for food.9
Scholars have identified novel uses of the law to address these challenges and
create a healthier and more sustainable food system.10
Local governments are often viewed as policy innovators,11 so it is
particularly important to understand their challenges and successes in
regulating food system industries. As previously mentioned, local
governments pioneered the use of menu labeling ( i.e., posting nutritional
information in restaurants), a measure ultimately codified into the federal
Patient Protection and Affordable Care Act.12 In some instances, however,
federal and state laws thwart local governments’ efforts to regulate the food
system due to preemption.13
This article provides a brief overview of the legal infrastructure within
which local governments operate. It then considers efforts by stakeholders
within the food system to challenge local governmental regulation through
litigation. Next, it examines how speech rights protected by the First
Amendment may curb local governments’ efforts to regulate food system
industries. It then analyzes the impact of preemption on regulatory action by
local governments. The article concludes with a discussion of how local
governments can promote innovative public health law and policy responses
to redress potentially harmful actions by food system industries.
9. E.g., David C. Love et al., Dose Imprecision and Resistance: Free-Choice Medicated
Feeds in Industrial Food Animal Production in the United States, 119 ENVTL. HEALTH PERSP.
10. Samantha Graff, Dale Kunkel & Seth E. Mermin, Government Can Regulate Food
Advertising to Children Because Cognitive Research Shows That It Is Inherently Misleading,
31 HEALTH AFF. 392 (2012); Frank J. van Rijnsoever, Harro van Lente & Hans C. M. van
Trijp, Systemic Policies Towards a Healthier and More Responsible Food System, 65 J.
EPIDEMIOLOGY & COMMUNITY HEALTH 737 (2011); Jennifer L. Pomeranz et al., Innovative
Legal Approaches to Address Obesity, 87 MILBANK Q. 185 (2009); Michelle M. Mello, David
M. Studdert & Troyen A. Brennan, Obesity—the New Frontier of Public Health Law, 354
NEW ENG. J. MED. 2601 (2006).
11. E.g., Scott Burris, Federalism, Policy Learning, and Local Innovation in Public
Health: The Case of the Supervised Injection Facility, 53 ST. LOUIS U. L.J. 1089 (2009);
Matthew J. Parlow, Progressive Policy-Making on the Local Level: Rethinking Traditional
Notions of Federalism, 17 TEMP. POL. & CIV. RTS. L. REV. 371 (2008); INNOVATION AND
ENTREPRENEURSHIP IN STATE AND LOCAL GOVERNMENT (Michael Harris & Rhonda Kinney
eds., 2004); cf. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,
dissenting) (“It is one of the happy incidents of the federal system that a single courageous
state may, if its citizens choose, serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.”).
12. 21 U.S. C. § 343(q) (2012).
13. E.g., Mark Pertschuk et al., Assessing the Impact of Federal and State Preemption in
Public Health: A Framework for Decision Makers, 19 J. PUB. HEALTH MGMT. & PRAC. 213
(2012); Rutkow et al., supra note 4.