Local venues for change: Legal strategies for healthy environments

Journal of Law, Medicine and Ethics

Volumn 35, Issue 1, 2007, Pages 138-147

  Ashe, Marice ^a   Feldstein, Lisa M ^b   Graff, Samantha ^d   Kline, Randolph ^d   Pinkas, Debora ^d   Zellers, Leslie ^c  

^a Public Health Law Program (PHLP)

^b PHLP's Land Use and Health Program

^c Technical Assistance Legal Center (TALC)

^d NONE

Author keywords

[No Author keywords available]

Indexed keywords

ADOLESCENT; CATERING SERVICE; CHILD; CONFERENCE PAPER; ENVIRONMENTAL PLANNING; GOVERNMENT; HEALTH CARE POLICY; HUMAN; LEGAL ASPECT; OBESITY; PUBLIC HEALTH; SCHOOL; UNITED STATES;

ADOLESCENT; CHILD; ENVIRONMENT DESIGN; FOOD SERVICES; HEALTH POLICY; HUMANS; LOCAL GOVERNMENT; OBESITY; PUBLIC HEALTH; SCHOOLS; UNITED STATES;

EID: 33847418490     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2007.00118.x     Document Type: Conference Paper

References (85)

1. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, The Burden of Chronic Diseases and Their Risk Factors: National and State Perspectives 2004 (Atlanta: U.S. Department of Health and Human Services, 2004): at 8, available at 〈http://www.cdc.gov/ nccdphp/burdenbook2004/pdf/burden_book2004.pdf〉 (last visited December 7, 2006).
2. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, "Chronic Disease Overview," available at 〈http://www.cdc.gov/nccdphp/overview.htm#2〉 (last visited October 27, 2006).
3. E. A. Finkelstein, I. C. Fiebelkorn, and G. Wang, "State-level Estimates of Annual Medical Expenditures Attributable to Obesity," Obesity Research, 12 (2004): 18-24, at 21.
4. See Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, supra note 2.
5. Tobacco Control Section, CA Department of Health Services, A Model for Change: The California Experience in Tobacco Control, at 3-4, available at 〈http://www.dhs.ca.gov/tobacco/documents/ pubs/modelforchange. pdf〉 (last visited December 7, 2006).
6. U.S. Department of Health and Human Services, The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General (2006) at 612, available at 〈http://www.surgeongeneral.gov/library/ secondhandsmoke/report/〉 (last visited October 27, 2006),
7. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, Reducing Tobacco Use: A Report of the Surgeon General - Executive Summary (2000), at 12, 15, available at 〈http://www.cdc.gov/tobacco/sgr/sgr_2000/execsumm.pdf〉 (last visited November 2, 2006).
8. For examples of other strategies to control the effects of advertising and promotion of unhealthy products while avoiding First Amendment scrutiny, see R. Kline et al., "Beyond Advertising Controls: Influencing Junk-food Marketing and Consumption with Policy Innovations Developed in Tobacco Control," Loyola of Los Angeles Law Review, 39 (2006): 603-646. Other articles in this journal's symposium on Food Marketing to Children and the Law provide additional strategies, available at 〈http://llr.lls. edu/volumes/v39- issue1/index.html〉 (last visited December 7, 2006).
9. U.S. Government Accounting Office, School Meal Programs: Competitive Foods are Widely Available and Generate Substantial Revenues for Schools, GAO-05-563 (August 2005), at 12, 16, available at 〈http://www.gao. gov/new.items/d05563.pdf〉 (last visited October 20, 2006);
10. N. Larson and M. Story, School Foods Sold Outside of Meals, Robert Wood Johnson Foundation Research Brief (July 2006) at 2 (indicating that 9 out of 10 schools surveyed sell foods out of vending machines, cafeteria a la carte [snack] lines, or school stores, and foods sold through these venues are largely exempt from federal nutrition standards).
11. California School Boards Association, "School-based Marketing of Food and Beverages: Policy Implications for School Boards," Governance & Policy Services, (March 2006) at 1;
12. California Project LEAN (Leaders Encouraging Activity and Nutrition), Captive Kids: Selling Obesity at Schools, an action guide to stop the marketing of unhealthy foods and beverages in school (2006).
13. T. A. Hastert et al., "More California Teens Consume Soda and Fast Food Each Day than Five Servings of Fruits and Vegetables," UCLA Center Health Policy Research (September 2005) at 1.
14. Centers for Disease Control, Department of Health and Human Services, "Competitive Foods and Beverages Available for Purchase in Secondary Schools - Selected Sites, United States, 2004," Morbidity and Mortality Weekly Report 54, no. 37 (September 23, 2005): 917-94 available at 〈http://www.cdc.gov/mmwr/preview/ mmwrhtml/mm5437a1.htm〉 (last visited October 20, 2006).
15. Id.
16. Public Health Law Program, Public Health Institute, "Regulating 'Junk Food' Marketing on Public School Property," available at 〈http://www.phlaw.org/factsheet2.pdf〉 (last visited October 25, 2006).
17. Food and Nutrition Service, U.S. Department of Agriculture, National School Lunch Program, (September 2006), available at 〈http://www.fns.usda.gov/cnd/Lunch/AboutLunch/NSLPFactSheet.pdf〉 (last visited October 25, 2006).
18. See U.S. Government Accounting Office, supra note 8.
19. A. Purcell, Prevalence and Specifics of District-wide Beverage Contracts in California's Largest School Districts: Findings and Recommendations (The California Endowment: April, 2002): at 10.
20. M. Y. Kubik et al., "The Association of the School Food Environment with Dietary Behaviors of Young Adolescents," American Journal of Public Health 93, no. 73 (2003): 1168-1173.
21. See U.S. Government Accounting Office, supra note 8.
22. While the federal Child Nutrition and WIC Reauthorization Act of 2004 requires that all school districts participating in the National School Lunch Program have implemented local wellness policies by July 1, 2006, it remains to be seen how many of these policies will address healthy vending practices.
23. Depending on the needs of each district, consolidation could be overseen by food services directors, directors of purchasing, or directors of finance.
24. See, e.g., Los Angeles Unified School District's healthy vending contract with the Pepsi Bottling Group (contract may be obtained from the Los Angeles Unified School District, Purchasing Branch; also on file with author).
25. H. Frumkin, L. D. Frank, and R. Jackson, Urban Sprawl and Public Health: Designing, Planning, and Building for Healthy Communities (Washington D.C.: Island Press, 2004): at 2-3;
26. see also the Journal of the American Planning Association (Winter 2006), in its entirety.
27. Local Government Commission, "Why People Don't Walk and What City Planners Can Do About It," available at 〈http://www. lgc.org/freepub/PDF/Land_Use/focus/plan_to_walk.pdf〉 (last visited October 25, 2006);
28. see also Active Living Research, "Environmental & Policy Correlates of Physical Activity Citations," at 〈http://www. activelivingresearch.org/index.php/Correlates_ of_Physical_Activity/174〉 (last visited October 25, 2006).
29. For a summary of citations of some of the available literature, see "Active Living Research, Nutrition & the Environment Citations," available at 〈http://www.activelivingresearch.org/index. php/Nutrition_&_the_Environment/179〉 (last visited October 25, 2006).
30. K. Morland et al., "Neighborhood Characteristics Associated with the Location of Food Stores and Food Service Places," American Journal of Preventive Medicine 22, no. 1 (2002): 23-29.
31. For a history of the usage of the term "food desert," see, e.g., S. Cummins and S. MacIntyre, "A Systematic Study of an Urban Foodscape: The Price and Availability of Food in Greater Glasgow," Urban Studies 39, no. 11 (2002): 2115-2130, at 2115.
32. Called Master Plans or General Plans in some states.
33. Medtronic, Inv. v. Lohr, 518 U.S. 470, 475 (1996).
34. W. Fulton, Guide to California Planning 2nd ed. (Point Arena: Solano Press Books: 2001): at 69.
35. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
36. See Fulton, supra note 29, at 125.
37. There are exceptions to this, see, e.g, Fresno, Cal., Municipal Code ch. 12, § 12-232 (2006) (prohibiting grocery stores, supermarkets, and the sale of produce and meats in its neighborhood commercial zoning designation "C-L" Limited Neighborhood Shopping District), available at 〈http://library1.municode. com:80/mcc/home.htm?view=home&doc_action= setdoc&doc_ keytype=tocid&doc_key= eb472159e99cbcd51667b603268b250d&infobase=10421〉 (last visited October 25, 2006);
38. Sacramento, Cal., Municipal Code title 17 Division III ch. 17.68 (2006) (limiting front yard landscaping in its Landscaping and Paving Regulations to "primarily low ground cover or turf" and interpreted to prohibit the growing of food in front yards), available at 〈http://www.qcode.us/ codes/sacramento/〉 (last visited October 25, 2006).
39. San Francisco, CA, Planning Code art. 1.2 § 121.2 (2006), available at 〈http://www.municode.com/content/4201/14139/ HTML/ch001_2.html〉 (last visited November 3, 2006).
40. Hayward, Cal., Municipal Code ch. 3, art. 5 §§ 3-5.00 - 3-5.13 (2006), available at 〈http://www.ci.hayward.ca.us/municipal/ HMCWEB/DangerousStructures.pdf〉 (last visited October 25, 2006).
41. See, e.g., Portland, Or., Municipal Code title 33, § 130.245(D) (prohibiting "Exterior Work Activities," including agriculture), available at 〈http://www.portlandonline.com/shared/ cfm/image.cfm?id=53297〉 (last visited October 25, 2006);
42. for discussion, see The Diggable City: Making Urban Agriculture a Planning Priority (June 2005): at 40-41, available at 〈http://www.diggablecity.org/dcp_finalreport_PSU.pdf〉 (last visited October 25, 2006).
43. Pacific Grove, CA, Municipal Code title 23 § 23.32.020 (2006), available at 〈http://nt2.scbbs.com/cgi-bin/om_isapi. dll?clientID=266596&advquery=chapter%2023&infobase=procode- 4&softpage=Browse_Frame_Pg〉 (last visited October 25, 2006).
44. San Francisco, CA, Planning Code art. 7 § 781.10 (2006) (creating 17th and Rhode Island Street Grocery Store Special Use Subdistrict), available at 〈http://www.municode.com/content/ 4201/14139/HTML/ ch007.html〉 (last visited November 3, 2006).
45. At this writing, the authors are not aware of any jurisdictions that have enacted fast food restrictions for nutritional reasons, and there is reason to proceed with caution in enacting such a restriction based on nutritional findings. Many restaurants that do not meet the definition of a fast food restaurant serve food that does not offer nutritional advantages over the offerings of traditional fast food. However, New York City Councilman Joel Rivera of the Bronx has declared his interest in enacting a restriction on fast food restaurants that is based on the nutritional profile of the foods sold; see M. Fernandez, "Pros and Cons of a Zoning Diet: Fighting Obesity by Limiting Fast-Food Restaurants," New York Times, September 24, 2006, available at 〈http://www.nytimes. com/2006/09/24/nyregion/24fast. html?ex=1316750400&en= 6d31cfc699786b53&ei=5088&partner= rssnyt&emc=rss〉 (last visited November 2, 2006).
46. Conditional Use Permits (CUP) are land uses that are subject to additional scrutiny and must be found to be either necessary or desirable before a use permit is granted. The granting of a CUP is often conditioned upon requirements specific to the use being met, which requirements must be reasonably related to the use. For example, a fast food restaurant might be required to provide extra trash pickup and police the block for trash because of the large volume of refuse generated by food packaging. A bar might be required to provide security, or to limit its hours so as not to disturb neighbors.
47. This research is based on "deemed approved" legislation that has been used successfully in Los Angeles and in Oakland, CA, to require that liquor stores take specific affirmative steps to reduce the nuisance impact of their businesses on their neighborhoods. These cities created new operating standards for these businesses. The businesses were offered the opportunity to agree to the new standards, in which case they were "deemed approved" and could continue operations. Those that declined to meet the new standards were required to apply for and obtain new CUPs, through which the jurisdiction could impose the new standards, or cease operations.
48. California is one example; see Cal. Gov't Code § 65860(a) (Deering 2006).
49. City of Chula Vista, Chula Vista Vision 2020: General Plan (December 13, 2005): LUT-130 (discussing Land Use and Transportation Element 34.3).
50. st Century (June 15, 1999): at 144 (discussing Program 4.3.D).
51. Marin County, Marin Countywide Plan: Revised Public Review Draft (August 2005): at 4-93.
52. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).
53. Vt. Stat. Ann. tit. 10, ch. 21, § 488 (2006); Hawaii, Maine, and Alaska have also banned billboards.
54. Charleston, SC, Charlotte, NC, Little Rock, AR, Raleigh, NC, Tampa, FL, and Washington, D.C. are examples; see Scenic America, "Communities Prohibiting Billboard Construction," available at 〈http://www.scenic.org/billboards/background/communities〉 (last visited October 25, 2006).
55. A. Yancey et al., Creating a Public Health Infrastructure for Physical Activity Promotion: A Challenge to Chronic Disease Control Policy (2006): at 8 (unpublished manuscript, on file with author).
56. L. M. Powell, S. Slater, and F. J. Chaloupka, "The Relationship Between Community Physical Activity Settings and Race, Ethnicity and Socioeconomic Status," Evidence-based Preventive Medicine 1, no. 2 (2004): 135-144.
57. Yancey et al., supra note 48, at 8.
58. See J. O. Spengler, S. J. Young, and L. S. Linton, School as a Community Resource for Physical Activity: Legal Considerations for Decision Makers (2006): at 9 (unpublished manuscript, on file with author).
59. Generally, when government regulates a product directly, including the sale of a product, the law will be reviewed under the rational basis test. See, e.g., Minn. v. Clover Leaf Creamery, 449 U.S. 456, 461 (1981) (holding that the proper standard of review for a law banning plastic milk containers was rational basis). On the other hand, when government regulates commercial speech (that is directed at least in part to adults) about a product, the Court will apply some form of intermediate scrutiny, such as the Central Hudson test, in reviewing its constitutionality. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 573 (1980).
60. See also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).
61. G. Ruethling, "Chicago Prohibits Foie Gras," New York Times, April 27, 2006, available at 〈http://travel2.nytimes.com/ 2006/04/27/us/27foiegras.html〉 (last visited October 27, 2006).
62. T. J. Lueck and K. Severson, "New York Bans Most Trans Fats in Restaurants," New York Times, December 6, 2006, available at 〈http://www.nytimes.com/2006/12/06/nyregion/06fat.html〉 (last visited December 8, 2006).
63. See, e.g., M. Sangiorgio, "The Top Family-friendly Supermarket Chains," Child (August 2003): 153-60, at 153.
64. See, e.g., Cal. Bus. & Prof. Code §§ 22960, 22962 (West 2005) (prohibiting access to cigarettes without the assistance of a clerk);
65. see also Tobacco Policy Project, American Lung Association, Database on State Legislated Actions on Tobacco Issues (2005): at vi-vii, available at 〈http://slati.lungusa.org/reports/ SLATI_05.pdf〉 (last visited October 25, 2006).
66. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496 (1982) (holding a local ordinance requiring a license to sell drug paraphernalia and restricting the manner of marketing such products did not "appreciably limit [the retailer]'s communication of information-"). This example lends itself to further hypothesizing: how might such a regulation of the marketplace impact marketing? If such a policy were adopted widely or on a state level, cereal companies would likely move the nutritional label to the front of the box so that traditional package imagery could still be seen next to the label. Of course, this would limit the amount of space available for traditional imagery, thereby "limiting" marketing as an incidental effect of regulating the marketplace.
67. See Institute of Medicine, J. M. McGinnis, J. A. Gootman, V. I. Kraak, eds., Food Marketing to Children and Youth: Threat or Opportunity? (Washington D.C.: National Academies Press, 2006): at 352-54;
68. E. K. Battle and K. D. Brownell, "Confronting a Rising Tide of Eating Disorders and Obesity: Treatment vs. Prevention and Policy," Addictive Behaviors 21 (1996): 755-65;
69. M. Nestle, Food Politics: How the Food Industry Influences Nutrition and Health (Berkeley and Los Angeles: University of California Press, 2002): at 109.
70. A. Pérez and R. Snell, Earmarking State Taxes, paper presented at the National Conference of State Legislatures, April 1995, at 1.
71. Id. at 12.
72. Id. at 1.
73. Campaign for Tobacco Free Kids, "Using Tobacco Tax Increases to Fund Tobacco Prevention Programs," available at 〈http:// www.tobaccofreekids.org/research/factsheets/pdf/0295.pdf〉 (last visited December 6, 2006).
74. Campaign for Tobacco Free Kids, "Special Report: Higher Cigarette Taxes: Reduce Smoking, Save Lives, Save Money," available at 〈http://www.tobaccofreekids.org/reports/prices/〉 (last visited October 20, 2006).
75. Id.
76. Campaign for Tobacco Free Kids, "Raising Cigarette Taxes Reduces Smoking, Especially Among Kids (and the Cigarette Companies Know It"), available at 〈http://tobaccofreekids.org/ research/factsheets/pdf/ 0146.pdf〉 (last visited December 6, 2006).
77. F. Kuchler, A. Tegene, and J. M. Harris, "Taxing Snack Foods: What to Expect for Diet and Tax Revenues," Current Issues in Economics of Food Markets, Agriculture Information Bulletin No. 747-08 (2004): at 9, available at 〈http://www.ers.usda. gov/publications/aib747/aib74708. pdf〉 (last visited October 20, 2006).
78. Interview with Richard Jackson, M.D., M.P.H., Adjunct Professor of Environmental Health Sciences and Adjunct Professor of City & Regional Planning, University of California, Berkeley, in Oakland, CA, October 23, 2006.
79. See Kuchler et al., supra note 66.
80. Interview with Richard Jackson, M. P., M. P. H., Adjunct Professor of Environmental Health Sciences and Adjunct Professor of City & Regional Planning, University of California, Berkeley, in Oakland, CA, October 23, 2006.
81. Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996).
82. Mills v. County of Trinity, 108 Cal.App.3d 656, 663 (1980).
83. San Diego Gas & Electric Co. v. San Diego County Air Pollution Control Dist., 203 Cal.App.3d 1132, 1146 (1988).
84. G. Woodward-Lopez et al., Obesity: Dietary and Developmental Influences (Boca Raton: CRC Press, 2006).
85. See Institute of Medicine, J. M. McGinnis, J. A. Gootman, V. I. Kraak, eds., supra note 58, at 353.