Vol 22, 2013 Annals of Health Law
LOCAL GOVERNMENT AND THE FOOD SYSTEM
In addition, a state’s delegation of authority may differ among cities,
counties, and other municipalities within the state;19 some of these states
employ either home rule or Dillon’s Rule for different localities within their
jurisdiction, a distinction often based on the size of the populace. As these
examples suggest, local authority varies across the 50 states. Therefore, while
many localities have broad powers to enact innovative policies relative to the
food system, some have much narrower authority to do so. Experts have
identified diverse areas in which localities may be in the best position to act
to regulate food system industries, such as by using their authority over
zoning, food safety, food procurement, and labeling.20
III. LEGAL CHALLENGES TO LOCAL GOVERNMENTS’
Through litigation, individuals or entities (e.g., businesses) who claim to
have been wronged can attempt to halt purportedly harmful behaviors or
obtain compensation for damages. When local governments act—through
their legislative or executive powers—to regulate food system industries,
they face the possibility of this type of legal challenge; for example, a
business that believes its rights have been illegally restricted by legislation
may bring a lawsuit to overturn the law. Even if industry-initiated lawsuits
are not successful, they may significantly delay implementation of local
regulation and may serve as a model for similar lawsuits against other
localities.21 In recent years, food system industries have primarily focused on
two types of claims in actual or threatened lawsuits against local
governments: 1) claims related to speech protected by the U.S. Constitution’s
First Amendment and 2) claims related to preemption ( i.e., the ability of a
higher level of government to limit or foreclose action by a lower level of
In 2007, the New York State Restaurant Association (“NYSRA”)
challenged a New York City Department of Health regulation using both
types of claims.23 In late 2006, the Department of Health adopted and
Need Home Rule?, 84 N. C. L. REV. 1983 (2006).
19. HARVARD LAW SCH. FOOD LAW & POL’Y CLINIC, GOOD LAWS, GOOD FOOD: PUTTING
LOCAL FOOD POLICY TO WORK FOR OUR COMMUNITIES 9 (2012),
.pdf (“Further, states such as Arizona, Missouri, and Delaware require a minimum population
size before a municipality can create a Home Rule Charter.”).
20. Id. at 12–13 (Table I-1: Role of Various Levels of Government in Food Policy).
21. See infra note 30.
22. See infra Parts IV and V.
23. New York State Rest. Ass’n v. New York City Bd. of Health, 08 Civ. 1000, 2008 WL
1752455, at *1 (S. D.N. Y. Apr. 16, 2008).