and out-of-state establishments alike, “the regulation serve[d] as an explicit
barrier to the presence of national chain restaurants,” in violation of the
Dormant Commerce Clause.
84 A local ban on milk from distant dairies and
a state ban on imported solid waste have also failed to withstand Dormant
Commerce Clause scrutiny, despite strong, underlying public health objectives.
85 State or local product bans may therefore violate the Clause if they
favor in-state (or local) interests over out-of-state interests.
The U.S. Constitution also protects private property held by individuals
and businesses from government’s inherent power to take it ( i.e., through
86 The Fifth Amendment Takings Clause requires government to pay owners “just compensation” if their private property is taken
for public use.
87 Pursuant to the Fourteenth Amendment, the Takings
Clause extends to states, each of which has its own constitutional takings
provision. Though takings generally apply to land or buildings, a regulatory
taking occurs when a government restricts the use of private property to the
point where the property no longer has an economically viable use.
companies, for example, argued that public smoking bans amounted to a
regulatory taking of their business interests without just compensation.
Product bans that impact the economic viability of certain businesses may
face regulatory takings challenges.
Free speech issues arise whenever government attempts to limit product
access or use through advertising restrictions. The First Amendment protects not only individual speech,
91 but also commercial speech.
92 Accordingly, courts have struck down laws that prohibit businesses from advertis-
85. Dean Milk Co. v. Madison, 340 U.S. 349, 354 (1951) (“In thus erecting an economic barrier protecting a major local industry against competition from without the state, Madison plainly discriminates against interstate commerce. This it cannot do, even in the exercise
of its unquestioned power to protect the health and safety of the people, if reasonable nondiscriminatory alternatives . . . are available.”); Phila. v. N.J., 437 U.S. 617, 628 (1978).
86. U.S. CONST. amend. V.
88. Pa. Coal Co. v. Mahon, 260 U.S. 393, 415-16 (1922).
89. The challenges based on regulatory takings were unsuccessful, and one Arizona
court recognized that plaintiffs could not show economic harm as a result of the smoking
ban. Tucson v. Grezaffi, 23 P.3d 675, 684 (Ariz. Ct. App. 2001). A lawsuit in Hawaii alleging a regulatory taking because of a smoking ban similarly failed. Craig Gima, Bars Sue to
Stop Ban on Smoking, HONOLULU STAR BULL., Jan. 31, 2007, http://archives
90. However, product bans clearly grounded in public health principles, such as the ban
on asbestos, will defeat regulatory takings challenges because the liability associated with
continued use of the product (severe injury or death) outweighs arguments of economic injury.
91. U.S. CONST. amend. I.
92. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561