Sarah Puzzo

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Helsinki, 2013: The director-general of the World Health Organization, Dr. Margaret Chan, stands before a crowd of conference delegates and issues a dire warning about the food and drink industry’s piqued interest in public health policy.[1] “It is not just Big Tobacco anymore,” she states.[2] “Public health must also contend with Big Food, Big Soda, and Big Alcohol. All of these industries fear regulation, and protect themselves by using the same tactics.”[3] These tactics include influencing regulation that serves corporate interests, and experts fear that those interests will rarely align with the interests of public health.[4] “When industry is involved in policy-making,” Chan cautioned, “rest assured that the most effective control measures will be downplayed or left out entirely. This is well documented, and dangerous.”[5]

Chan’s warning proved timely: leap forward two years, to 2015. Michele Simon—a lawyer specializing in defending public health policies from corporate tactics—released a report that raised alarms in the public health field.[6] The report shed light on some troubling ties the American Society of Nutrition (“ASN”) has to Big Food and Beverage.[7] As one of the most respected organizations in nutrition research, ASN touts itself as an objective champion of public health policy.[8] Simon reported, however, that large corporate sponsorships fund the organization and its research.[9] Many of the sponsors are behemoth producers of processed foods, sugars, and pharmaceuticals.[10]

One of ASN’s advisors, Dr. Marion Nestle, admitted that industry sponsorships certainly influence “the design, interpretation, and outcome of research.”[11] This begs the question, “Who would be interested in tipping the scales of nutrition research in their favor?” Notably, two of ASN’s 2018 sustaining partners are Tate & Lyle and Cargill, Inc.[12] Both companies are among the world’s largest producers of high-fructose corn syrup.[13] Other 2018 sustaining partners include: Bayer, Kellogg, Mars Inc., Monsanto, the National Cattlemen’s Beef Association, the National Dairy Council, Nestle, PepsiCo, Pfizer, the Sugar Association, and Coca-Cola.[14] And this begets the question, “Why are these companies interested in tipping the scales of nutrition research in their favor?” Perhaps it is because studies link consumption of their products—often processed foods and drinks with high nutrient counts of salt, sugar, and fat—to rising levels of malnutritive diseases.[15] Undoubtedly, Big Food is cozying up to the organizations that provide policymakers with data used to draft public health policies, even while studies link their products to declining public health.[16]

As rates of diabetes and obesity rise, local governments have been on the vanguard of the battle for sensible food policy:[17] Cleveland, Ohio adopted an ordinance taking aim at trans-fat consumption;[18] multiple cities have proposed or enacted taxes on sugar sweetened beverages;[19] others have enacted labeling laws meant to help consumers identify nutrient-poor vs. nutrient-dense products.[20] Simultaneously, however, the United States has seen a notable rise in state preemption that strips local lawmakers of their authority to promulgate policies on a variety of public health topics—including those related to food and nutrition.[21] “State preemption” refers to a state’s authority to pass legislation that draws contours around a municipal government’s legislative and rulemaking powers¾unlike federal preemption of state lawmaking powers, which comes from the Supremacy Clause of the Constitution, states can “preempt locales without utilizing other authorities because political subdivisions are a creation of the state.”[22]

 In fact, preemptive legislation that targets public health policies often seems to intentionally halt progress in this area entirely.[23] This trend has raised the suspicion of public health and nutrition advocates.[24]  Why would state legislators support measures that effectively gut reforms to health and nutrition? Often, such bills leave local governments with their hands tied, unable to enforce or enact innovative policies that would positively impact the health of their communities.[25]

Of particular concern is the role that Big Food has played in supporting these preemptive measures.[26] Big Food players, backed by powerful lobbying groups such as the American Legislative Exchange Council (“ALEC”), have often supported these preemptive laws.[27] Indeed, in 2010, the United Nations’ Food and Agriculture Organization expressed the sentiment that Margaret Chan of the World Health Organization would later echo in Helsinki: “[l]obbying by ‘powerful’ big food companies is blocking reforms which would improve human health and the environment.”[28]

In the United States, symptoms of this phenomenon have taken the form of aggressive preemption, backed by Big Food and Big Soda.[29] While this type of preemption has stalled progressive regulation in a number of arenas, this Note specifically focuses on preemption targeting food and nutrition laws. Thus, this Note examines the above questions through that lens.  Two difficult questions this Note seeks to answer are: (i) how local governments can proactively defend themselves against this kind of preemption; and (ii) if there is a legal strategy local governments can employ to retroactively challenge preemption in the courts.

 Part I will describe in greater detail the recent trends in, and new forms of, state preemption sweeping the nation. Eleven states currently have enacted legislation preempting local action in food and nutrition.[30] Part I will briefly touch on those regulations, comparing and contrasting the different tactics employed to discourage innovation. Part II of this Note will examine the concept of Home Rule Authority, and how local governments can use that authority to protect themselves from preemption. Part II includes an in-depth analysis of Cleveland v. State, 989 N.E.2d 1072 (Ohio App. 8 Dist. 2013), one example of a successful legal challenge to state preemption using the doctrine of Home Rule. This Note will conclude by suggesting strategies to move forward. Local governments should be able to sensibly govern in their communities and pass legislation that will protect the health of constituents, rather than the interests of trade and business associations, and this Note hopes to provide avenues for them to do so.

[1]Caroline Scott-Thomas, WHO Director-General Slams Industry Involvement in Health Policy, Food Navigator (Jul. 3, 2013), https://www.foodnavigator.com/Article/2013/07/04/WHO-director-general-slams-industry-involvement-in-health-policy.

[2]Id.

[3]Id. This article frequently uses the terms “Big Food,” “Big Alcohol,” or “Big Soda.” These terms refer to large national and multinational companies with significant, concentrated market power in the United States food system. These companies are sometimes collectively referred to as “industry” and the maximization of their profits as “industry interests.” See What is Boog Food and Why Do We Care?, Food Rush (Jan. 23, 2017), https://www.thefoodrush.com/articles/what-is-big-food-and-why-do-we-care/ (similarly defining the term “big food” as large industrial food producers).

[4]Id.:

Food industry representatives include arguments that place the responsibility for harm to health on individuals, and portray government actions as interference in personal liberties and free choice. This is formidable opposition. Market power readily translates into political power. Few Governments prioritize health over big business. As we learned from experience with the tobacco industry, a powerful corporation can sell the public just about anything.

See also Dr. Jennifer L. Pomeranz & Mark Pertschuk, State Preemption: A Significant and Quiet Threat to Public Health in the United States, 107 Am. J. Pub. Health, 900 (Jun. 2017) [hereinafter Pomeranz & Pertschuk, State Preemption], https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5425871/(explaining how preemption is systematically eroding public health policies: first by industry associations across state lines to support legislation friendly to their interests, second by state legislators who stymie progressive health protections in favor of industry-backed regulations, and third by punishing local officials who attempt to regulate in areas now forbidden to them).

[5]Scott-Thomas, supra note 1.

[6]Andy Bellatti, Industry-Funded Nutrition Groups Shouldn’t Dictate Health Policy, Al Jazeera Am. (Jun. 24, 2015), http://america.aljazeera.com/opinions/2015/6/industry-funded-nutrition-groups-shouldnt-dictate-health-policy.html.

[7]Some of ASN’s biggest sponsors include: Monsanto, Coca-Cola, Pepsico, the Sugar Association, Kraft, the National Cattlemen’s Beef Association, McDonalds, Mars, and Nestle. Sustaining Partners, Am. Soc. for Nutrition, https://nutrition.org/sustaining-partners/#currentsponsors (last visited Mar. 31, 2018) [hereinafter Sustaining Partners]; see also Michele Simon, Nutrition Scientists on the Take from Big Food, Eat Drink Politics 2–3 (Jun. 2015) (hereinafter Simon, Nutrition Scientists), http://www.eatdrinkpolitics.com/wp-content/uploads/ASNReportFinal.pdf (outlining how representatives of companies “that provide ASN with a specific level of unrestricted financial report” comprise a roundtable committee which “advises” the Board of Directors).

[8]ASN’s mission is, among other things:

To develop and extend knowledge of nutrition of all species through fundamental, multidisciplinary, and clinical research . . . support the dissemination and application of nutrition science to improve public health and clinical practice worldwide . . . and advocate for nutrition research and its application to development and implementation of policies and practices related to nutrition.

About ASN, Mission & Bylaws, Am. Soc. for Nutrition, https://nutrition.org/about-asn/mission-and-bylaws/ (last visited Mar. 31, 2018).

[9]Simon, Nutrition Scientists, supra note 7 (“ASN sponsors are referred to as ‘sustaining partners,’ a moniker given to companies that pay at least $10,000 a year.”).

[10]Sponsors and Advertisers, Thank You to Our Sponsors of ASN’s Scientific Sessions at EB 2017, Am. Soc. for Nutrition, https://meeting.nutrition.org/2017/sponsors-advertisers/ (last visited Mar. 31, 2019); Sustaining Partners, supra note 7.

[11]Dr. Marion Nestle, Should Nutrition Scientists Take Food-Industry Funding? Food Politics, (Aug. 2, 2017) (hereinafter Nestle, Funding), https://www.foodpolitics.com/2017/08/should-nutrition-scientists-take-food-industry-funding/.

[12]Sustaining Partners, supra note 7.

[13]High Fructose Corn Syrup (HFCS) Market – Global Industry Analysis, Report Digest, Transparency Mkt. Res., https://www.transparencymarketresearch.com/high-fructose-corn-syrup-market.html (last visited Mar. 31, 2018).

[14]Sustaining Partners, supra note 7.

[15]David Stuckler & Marion Nestle, Big Food, Food Systems, and Global Health, Pub. Lib. Sci. Med., (Jun. 9, 2012), https://doi.org/10.1371/journal.pmed.1001242 (“Increasing consumption of Big Food’s products tracks closely with rising levels of obesity and diabetes. . . . Studies also link frequent consumption of highly processed foods with weight gain and associated disease.”).

[16]Id.

[17]Jennifer Pomeranz, et al., State Preemption of Food and Nutrition Policies and Litigation: Undermining Government’s Role in Public Health, 56(1) Am. J. of Preventive Med. 47, 48 (Jan. 2019) [hereinafter Pomeranz, Undermining] (“[L]ocal governments are often the first to create innovative policy solutions to public health problems. . . .”).

[18]Cleveland Codified Ord. 241.42 (2011) (hereinafter “CCO 241.42”).

[19]Case Study: Lessons from Two Successful Soda Tax Movements, Grassroots Change (Apr. 28, 2017), https://grassrootschange.net/2017/04/case-study-lessons-two-successful-soda-tax-movements/.

[20]See Lainie Rutkow et al., Local Governments and the Food System: Innovative Approaches to Public Health Law and Policy, 22 Health Pol’y & L. Rev. Loyola Univ., 355 (2013) (introducing the variety of regulations used to further public health goals, such as labeling requirements).

[21]Richard Briffault, The Challenge of the New Preemption, Columbia Pub. L. Res. Pap. No. 14-580, 1 (Feb. 1, 2018), https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=3091&context=faculty_scholarship (“The past decade has witnessed the emergence and rapid spread of a new and aggressive form of state preemption of local government action.”); see also Pomeranz & Pertschuk, supra note 4, at 900 (reporting on the rise of state preemption threatening public health policies, particularly by a strategy employed by multiple industries in concert to systematically stymie progression across state lines).

[22]Pomeranz, Undermining, supra note 17.

[23]Pomeranz & Pertschuk, supra note 4, at 900 (“[L]egislators supporting preemptive state legislation often do not support adopting meaningful state health protections and enact preemptive legislation to weaken protections or halt progress.”).

[24]Id. (“Preemption is of particular concern in the area of public health, wherein state and local governments have historically protected the health and safety of their population more vigorously than has the federal government.”); see also, Why Preemption is Bad for Local Healthy Eating Policy Movements, Healthy Food Pol’y. Project., http://healthyfoodpolicyproject.org/key-issues/preemption (last visited Mar. 31, 2018) (noting that local food policies are often enacted as a result of grassroots campaigning, and tend to inspire similar changes at higher government levels).

[25]Pomeranz & Pertschuk, supra note 4, at 901:

Nine states preempt municipalities’ ability to regulate food establishments and operations, and these preemptive statutes have become increasingly broad. . . . Local governments have led the country in innovative food policies. . . . Municipalities in states such as Kansas are now unable to enact similar policies or address a primary cause of chronic disease – poor diets.

[26]Briffault, supra note 21, at 1 (noting that these preemption measures are often supported by trade associations and industry lobbyists).

[27]Id.;Henry Grabar, The Shackling of the American City, Slate Mag.(Sep. 9, 2016, 5:53 AM), https://slate.com/business/2016/09/how-alec-acce-and-pre-emptions-laws-are-gutting-the-powers-of-american-cities.html (“Thanks in part to ALEC’s promotion of the concept, pre-emption[sic] has become the most powerful statehouse tactic of our time.”).

[28]Juliette Jowit, Corporate Lobbying is Blocking Food Reforms, Senior UN Official Warns, Guardian; Env’t (Sept. 22, 2010), https://www.theguardian.com/environment/2010/sep/22/food-firms-lobbying-samuel-jutzi.

[29]Pomeranz, Undermining, supra note 17 (“State legislatures have thus ceded to food industry requests to enact preemptive laws in two contexts: preempting local governments from passing food and nutrition policies; and preempting litigation claiming that food consumption causes obesity and diet-related disease, including litigation initiated by the government.”).

[30]Preemption Watch, Grassroots Change, https://grassrootschange.net/preemption-watch/#/category/nutrition (last visited Mar.31, 2019).