Vol 22, 2013 Annals of Health Law
LOCAL GOVERNMENT AND THE FOOD SYSTEM
It is now codified into federal law.83 While this national adoption of
innovative local regulations may not routinely occur, it nicely illustrates the
diffusion of a regulatory approach that originated at the local level.
Localities have repeatedly crafted new regulatory approaches to promote
public health goals such as healthier eating. For example, in 2010,
California’s Santa Clara County became the first locality in the country to
enact legislation that restricted restaurants’ ability to link toys or other
“incentive items” (e.g., trading cards) to food purchases.84 Specifically,
restaurants in the county are prohibited from providing toys with meals that
contain excessive calories, sodium, fat, or sugars.85 Violators face fines and
penalties. Santa Clara County introduced this innovative idea “to improve the
health of children and adolescents in the county by setting healthy nutritional
standards for children’s meals accompanied by toys or other incentive
items.”86 One preliminary evaluation found that the ordinance was associated
with restaurants’ promotion of healthier foods, but restaurants did not
increase the total number of healthier items they offered.87 Even if this did
not turn out to be the most successful measure, it spurred a national
discussion about the healthfulness of restaurant meals marketed to children
using incentive items.
San Francisco passed a similar ordinance in 2010,88 and other jurisdictions
have contemplated adopting such measures,89 or variations on the idea.90 For
these ordinances to withstand legal challenges, particularly those that argue
they violate the First Amendment by restricting commercial speech, they
must be prudently drafted. For example, experts in public health law
recommend that toy ordinances mention “the practice of giving away the toy
83. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, §
4205 (2010) (to be codified at 21 U.S. C. § 343(q)(5)).
84. SANTA CLARA COUNTY, CAL., CODE §§ A18-350 to A18-356 (2010), available at
85. The ordinance provides definitions of what constitutes “excessive” calories, sodium,
fats, and sugars. Id. § A18-351.
86. Id. § A18-350.
87. Jennifer J. Otten et al., Food Marketing to Children Through Toys: Response of
Restaurants to the First U.S. Toy Ordinance, 42 AM. J. PREVENTIVE MED. 56 (2012). But see
Rachel Gordon & John Wildermuth, Burger King Joins McDonald’s in Charging for Kids’
Meal Toys, S.F. CHRON., Dec. 1, 2011 (noting that McDonald’s and Burger King circumvented
the San Francisco toy ordinance by charging a small fee, e.g., 10 cents, to have a toy included
with a meal).
88. S.F., CAL., HEALTH CODE, art. 8, §§ 471.1–471.9 (2010).
89. E.g., Margery A. Beck, Neb. Bill Would Ban Toys in Fast-Food Kids’ Meals,
ASSOCIATED PRESS, Feb. 1, 2011.
90. The New Haven Food Policy Council worked with a Clinic at Yale Law School to
develop a healthy default ordinance for New Haven, which did not ultimately pass.