Vol 22, 2013 Annals of Health Law
LOCAL GOVERNMENT AND THE FOOD SYSTEM
itself rather than governing advertising for the toys or meals.”91 Thus, a
locality should not frame its ordinance as one pertaining to speech; rather,
the focus should remain on promoting healthier eating, particularly for
children. These strategic considerations are important, as industry is likely to
view localities’ new regulatory approaches with suspicion.92
Law can serve as a powerful tool to develop a healthful eating environment
and to design policies to promote sustainability within the food system. The
use of novel legal approaches on multiple fronts ( i.e., legislation, regulation,
and litigation) will be critical as policy-makers seek to identify strategies to
accomplish these goals. Given their traditional role as policy innovators due
to their typically broad regulatory powers, local governments are uniquely
positioned to design and implement new legal strategies. They can rely upon
their police powers to regulate for public health purposes, fill regulatory gaps,
and introduce novel policy approaches to challenges within the food system.
Evaluations of these strategies can then inform policy-making at the state and
federal levels, as well as the actions of other localities.
Despite significant regulatory authority, localities face constraints
imposed by the First Amendment and preemption by state or federal laws.
Localities can address these issues in several ways. To avoid possible First
Amendment challenges, they can consult with lawyers regarding the
language and scope of a proposed ordinance or regulation. In addition, they
can monitor and respond to preemption bills introduced in their state. This
can be accomplished by tracking active bills through their state legislature’s
website, meeting with legislators or their staff, or testifying at relevant
hearings about the potential public health harms of preemptive legislation.
By anticipating and addressing these types of barriers, local governments can
develop and ultimately implement innovative legal strategies intended to
mitigate public health harms and establish a stronger regulatory environment
91. ChangeLab Solutions, Healthier Toy Giveaway Meals: A Legal Q& A,
visited Dec. 9, 2012); CHANGELAB SOLUTIONS, MODEL ORDINANCE FOR TOY GIVEAWAYS AT
RESTAURANTS (Sep. 2012), available at http://changelabsolutions.org/publications/healthier-toy-giveaway-meals.
92. E.g., Rachel Gordon, S.F. Proposal: Healthier Kids Meals or No Toys, S.F. CHRON.,
Aug. 11, 2010, available at http://www.sfgate.com/restaurants/article/S-F-proposal-
Healthier-kids-meals-or-no-toys-3256451.php (“‘The San Francisco Board of Supervisors
seems to have an insatiable appetite for punishing the restaurant industry . . . ,’ said Daniel
Conway, director of public affairs for the California Restaurant Association. ‘Toy bans are
only proven to disappoint kids, frustrate parents and generate headlines for ambitious