73 including through government-imposed bans.
Unlike Congress, which must rely on enumerated powers to act, states
(and local governments through state delegation) possess broad powers to
regulate in the interests of the public’s health, safety, and general welfare.
Known collectively as “police powers,” this residual authority of sovereign
governments, as reflected in the Tenth Amendment, allows government to
ban products in specific settings or among particular groups.
74 States have
often exercised their police powers to protect the health and safety of their
citizens75 without the need to link measures to commercial activity, taxes, or
spending objectives. Police powers support, for instance, restrictions on tobacco use in public or private places and minors’ consumption of calorie-sweetened beverages at schools.
States and cities can also strategically use zoning and licensing laws to
ban products in limited ways.
77 States typically control licensing policies
and procedures, though local authorities may impose additional licensing
requirements if they are not preempted. For example, states may establish
strict licensing criteria to regulate products that pose public health risks.
Some municipalities use their licensing authority to ensure that outlets selling tobacco, alcohol, or fast food products are restricted from certain areas.
79 Although licensing or zoning may not be used to ban products entirely,
73. See 15 U.S. C. A. § 1278a.
74. U.S. CONST. amend. X; see also Santiago Legarre, The Historical Background of
the Police Power, 9 U. PA. J. CONST. L. 745 (2007).
75. Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 756 (1985) (“States traditionally have
had great latitude under their police powers to legislate as to the protections of the lives,
limbs, health, comfort, and quiet of all persons.”); see also U.S. Smokeless Tobacco Mfg.
Co. v. City of New York, 708 F.3d 428, 436 (2d Cir. 2013) (upholding the city’s law restricting the sale of flavored tobacco products and discussing use of police powers to protect public health); James A. Tobey, Public Health and the Police Power, 4 N. Y.U. L. REV. 126, 126
76. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 86 (2000). Although these targeted
bans and regulations appear to raise Equal Protection concerns, the government needs only a
rational basis for the laws to defeat equal protection claims based on age; see also Virginia
High School League Bans Energy Drinks, supra note 19; Energy Drinks Under Scrutiny,
BEVNET.COM (Sept. 1, 2010, 2:49pm), http://www.bevnet.com/magazine/issue/2010/energy
-drinks-under-scrutiny. Fairfax County Public Schools in Virginia banned energy drinks, and
the Diocese of Arlington, which covers many Northern Virginia schools, banned energy
drinks from their school campuses. Id.
77. See Heather Wooten et al., Zoning and Licensing to Regulate the Retail Environment and Achieve Public Health Goals, 5 DUKE F. LAW & SOC. CHANGE 65, 74 (2013). Zoning requirements run with a piece of land perpetually no matter whether ownership changes
hands. In contrast, licenses are issued for a set amount of time and usually grant rights only
to the individual licensee.
78. See, e.g., Tex. Dep’t of Health Servs. License Applications – Food and Drug Licensing (last updated May 6, 2014),
For example, Texas requires tanning facilities, tattoo parlors, and food establishments to obtain state licenses. Id.
79. Taste Me Concepts v. City of New York, 762 N.Y.S.2d 390, 391 (N.Y. App. Div.