they effectively outlaw them from certain zones to curtail the prevalence of
harmful products among minors or other vulnerable consumers.
B. Constitutional Limitations
The government’s authority to ban products is broad, but it is not unlim-
ited. Constitutional restrictions of government power and protection of in-
dividual rights may curtail government’s ability to simply ban a product
that presents a health risk. Courts may invalidate state or local product bans,
for example, that interfere with interstate commerce. The Dormant Com-
merce Clause, drawn implicitly from federal Commerce authority, prohibits
states and localities from passing regulations affecting interstate commerce.
The U.S. Supreme Court relied on the Dormant Commerce Clause when, in
2005, it struck down state laws that prohibited online wine sales.
the laws resulted in different treatment of in-state (in-store wine sales) and
out-of-state (online wine sales) economic interests, the Court found them
unconstitutional. Thus, the laws did not withstand Dormant Commerce
Clause scrutiny even though they were designed to prevent minors from
purchasing alcohol in furtherance of community health.
Similarly, a local ordinance banning chain restaurants unlawfully interfered with interstate commerce.
82 In 2008, the Eleventh Circuit Court of
Appeals determined that a city ordinance prohibiting “formula restau-rant[s]” and limiting the size of “formula retail” establishments discriminated against interstate commerce.
83 Although the ordinance restricted in-state
2003) (holding that denial of liquor license was not arbitrary and capricious when petitioner’s establishment was within 200 feet of a church in violation of local law); see also
Wooten et al., supra note 77, at 73-74; Alicia Fabbre, Will County Seeks Time on Marijuana
Law: Board Expected to Delay Setting Rules, CHI. TRIB., Dec. 17, 2013, at S9 (“
Municipalities and county boards can enact rules to regulate them, but cannot prohibit such facilities
from locating in their jurisdictions.”); Yesenia Robles, Garden City Pot Shops Give Town
Chance to Stand Out, Repeat History, DENV. POST, Dec. 17, 2013, http://www.denver
post.com/news/ci_24744797/garden-city-pot-shops-give-town-chance-stand (“Since Colorado voters legalized possession of up to an ounce of marijuana for adults, many municipalities
have adopted ordinances to outlaw the recreational business within their boundaries.”); Jennifer Steinhauer, Fast-Food Curb Meets With Ambivalence in South Los Angeles, N.Y.
TIMES, Aug. 8, 2008, at A12 (reporting that in July 2008, the Los Angeles City Council
passed a one-year moratorium on opening or expanding fast food establishments).
80. Granholm v. Heald, 544 U.S. 460, 471, 492-93 (2005).
81. Id. at 489, 492-94 (“The States offer two primary justifications for restricting direct
shipments from out-of-state wineries: keeping alcohol out of the hands of minors and facilitating tax collection.”).
82. Cachia v. Islamorada, 542 F.3d 839, 840 (11th Cir. 2008) (“Cachia brought a complaint against Islamorada before the district court seeking damages and injunctive relief on
the grounds that the ordinance violated the Equal Protection, Due Process, Privileges and
Immunities, and Commerce Clauses of the U.S. Constitution, as well as the terms of the
83. Id. at 842.