Vol 22, 2013 Annals of Health Law
LOCAL GOVERNMENT AND THE FOOD SYSTEM
governments with home rule authority to defend a public health ordinance
from state-level preemption.
VI. OPPORTUNITIES FOR REGULATORY INNOVATION BY LOCAL
When localities regulate food system industries, they must consider a
variety of factors that determine the legality of their actions. These include
limitations imposed by the First Amendment and the possibility of federal or
state-level preemption.68 However, localities can introduce new and
innovative regulatory approaches to the broader policy community and
influence regional, state, and even national laws.69 Localities should,
however, carefully fashion their ordinances and regulations to withstand
potential legal challenges.
A. Using Police Powers to Protect the Public’s Health
Because some states grant localities broad home rule authority and
accompanying police powers to protect the health and safety of their
residents, localities like the city of Cleveland have been able to defend
ordinances and regulations facing state-level preemption.70 A related
example arose from an ordinance passed by the Board of County
Commissioners in Linn County, Missouri, to regulate concentrated animal
feeding operations (“CAFOs”). In 1997, the County Commissioners passed
a health-related ordinance that imposed requirements on CAFO owners to
avoid contamination of soil, water, and air.71 Jeremy and Janice Borron
sought to establish a CAFO in Linn County, and they brought a lawsuit
arguing that the county ordinance was preempted by a Missouri state law that
regulated the zoning of CAFOs.72
A Missouri appellate court found in favor of Linn County, concluding that
state law did not preempt the ordinance. First, the court noted that the
68. See supra Parts III & IV.
69. See infra Part VI. B.
70. Palazzolo, supra note 66.
71. Borron v. Farrenkopf, 5 S.W.3d 618, 620 (Mo.App. 1999). The ordinance stated that
it was enacted in accordance with the following provision of Missouri state law: “The county
commissions and the county health center boards of the several counties may make and
promulgate orders, ordinances, rules or regulations, respectively as will tend to enhance the
public health and prevent the entrance of infectious, contagious, communicable or dangerous
diseases into such county, but any orders, ordinances, rules or regulations shall not be in
conflict with any rules or regulations authorized and made by the department of health and
senior services in accordance with this chapter or by the department of social services.” MO.
REV. STAT. § 192.300 (2012).