Regulating Food Retail for Obesity Prevention: How Far Can Cities Go?

See Institute of Medicine and National Research Council of the National Academies, Local Government Actions to Prevent Childhood Obesity, 2009, available at <http://www.nap.edu/openbook.php?record_id=12674&page=Rl> (last visited December 15, 2010); United States Conference of Mayors, Mayors' Guide to Fighting Childhood Obesity, 2009, available at <http://www.leadershipforhealthycommunities.org/images/stories/guide-200908.pdf> (last visited December 15, 2010); White House Task Force on Childhood Obesity, Solving the Problem of Childhood Obesity within a Generation, Report to the President, May 2010, available at <http://www.letsmove.gov/obesitytaskforce.php> (last visited December 15, 2010).

For examples of policy ideas from advocacy organizations, see the model ordinances at www.nplanonline.org and the nutrition policy page at www.cspinet.org. For examples of leading jurisdictions, see Tables 1 and 2.

See Gallagher M. Research & Consulting Group, Examining the Impact of Food Deserts on Public Health in Chicago (2006).

Hunter v. City of Pittsburgh , 207 U.S. 161, 178 (1907).

See, e.g., State of Utah v. Hutchinson, 624 P2d 1116 (1980) (discussing Utah's delegation of “general welfare” or “police” power to cities and counties) (citing Utah Code Ann. § 17-5-77 (1953)). In some states, only some subset of cities or counties - those with a minimum population or those that have adopted a home-rule charter – enjoy home-rule powers. In addition, in some states cities and counties can merge to form one home-rule entity - e.g., “Louisville/Jefferson County Merger,” available at <http://www.louisvilleky.gov/YourGovernment/Merger.htm> (last visited December 15, 2010) (explaining 2003 merger of Louisville, Ky., with its surrounding county).

Dillon J. F. , The Law of Municipal Corporations § 9b, at 93 (2nd ed. 1873).

States still adhering to Dillon's Rule in large part include Alabama, Arkansas, Nevada, New Hampshire, Vermont, Virginia, and West Virginia, and, to a lesser extent, Idaho, North Carolina, and Tennessee. See Krane D. , eds., Home Rule in America (Washington, D.C.: CQ, Press, 2001).

Briffault R. Reynolds L. , Cases & Materials on State and Local Government Law (West 2009): at 34–36.

See, e.g., County of Riverside v. Superior Court, 66 P.3d 718 (2003) (invalidating state law that interfered with county's control over its employees' pay).

City of Northglenn v. Ibarra , 62 P.3d 151,155–56 (Colo. 2003); Cal. Const, art. XI, § 5(b).

See, e.g., City of La Grande v. Public Employees Retirement Bd., 576 P2d 1204, 1213–15 (Or. 1978), aff'd on reh'g, 586 P2d 765 (concluding that it is not “generally useful” to classify subjects of legislation as local or statewide because such an inquiry calls for a “political judgment” rather than a legal determination).

In those states with an initiative system, laws passed by state voters also trump local ordinances.

Diller P. , “Intrastate Preemption,” Boston University Law Review 87 (2007): 1113–1176, at 1126. Because there is no “local” realm that the state may not regulate in legislative states, local ordinances in such states are almost never immune to statewide preemption.

To be sure, the question of whether a state law expressly preempts a certain local ordinance is not always easy to answer. Id., at 1115 n.8; see also Nelson C. , “Preemption,” Virginia Law Review 86 (2000): 225–305, at 263 (“[T]he distinction between ‘express’ and ‘implied’ preemption is surprisingly elusive.”).

Cal. Grocers Ass'n v. City of Los Angeles , 98 Cal. Rptr.3d 34 (Cal. Ct. App. 2009) (invalidating Los Angeles's grocery worker retention ordinance in light of state retail food code's provisions that regulate grocery stores).

See Diller , supra note 13, at 1140 (discussing different doctrinal approaches).

For instance, in a ruling that invalidated Atlanta's initial effort to extend domestic partnership to city employees, the Georgia Supreme Court purported to construe “strictly” city powers, and resolve “any doubt concerning the existence of a particular power” against the city, City of Atlanta v. McKinney, 454 S.E.2d 517, 521 (Ga. 1995), despite the fact that Georgia has a Municipal Home Rule Act that is supposed to grant broad authority to cities. Ga L. 1965, p. 298, codified at Ga. Code Ann. § 36-35-1 et seq.

See, e.g., Ga Comp R. Regs . § 40-7-1-.02 (including fruit and vegetable stands within retail food establishments regulated by state Department of Agriculture).

See, e.g., Code Ann S.C. § 4-10-20 (allowing counties to add one percent to South Carolina's five-percent sales tax).

Compare Cal. Health & Safety Code § 114094(j), with Ga. Code. Ann. § 26-2-373; 2010 Tenn. Pub. Acts ch. 614; Utah Code Ann. [2 section symbols] 10-8-44.5; 17-50-329.

See United States Food & Drug Administration, “Real Progress in Food Code Adoptions,” available at <http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/FederalStateCooperativePrograms/ucm108156.htm> (last visited December 15, 2010) (noting that 49 of 50 states have adopted retail food codes premised on FDA versions going back to 1993).

See, e.g., Wash. Rev. Code § 70.05.060(3).

See Briffault Reynolds , supra note 8, at 428–429 (noting that licenses are often seen as “[a]ffirmative state permission of certain activity” and, therefore, additional local regulations of that activity may be legally suspect).

See, e.g., La. Rev. Stat. Ann. § 3:296 (Louisiana Healthy Food Retail Act of 2009).

See National Policy & Legal Analysis Network to Prevent Childhood Obesity and Public Health Law Center, The Consequences of Preemption for Public Health Advocacy, Fact Sheet, 2010, available at <http://www.nplanonline.org/system/files/Preemption_PublicHlthAdvcy_FINAL_20100330.pdf> (last visited December 15, 2010).