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Preemption, Part Two: Looking at Food Policy


A few weeks ago, the Inside Track took a look at the complex legislative issue of preemption. This week we go a bit further to explore how preemption has been used to affect food policy and what advocates need to know about the issue.

We talked with Jennifer Pomeranz, an assistant professor at Temple University’s Department of Public Health and Center for Obesity Research and Prevention, to learn more.

Preemption happens, in short, when “the industry does not want to deal with what they call a patchwork of different laws,” Pomeranz explained. “So they try to get laws passed at the federal or state levels that preempt the local laws with weaker standards.”

One prominent case of preemption in food policy has been the fight over menu labeling. Municipalities in California such as San Francisco and Santa Clara faced food-industry lawsuits and found themselves at odds with the state government when industry lobbyists sought a bill that would preempt those rules.

In Tennessee, when Nashville instituted menu labeling, the state legislature responded by passing a law saying no municipal health department--the city agency that regulated menu labeling in Nashville--could institute such a policy.

Sometimes preemption is done, well, preemptively; Pomeranz noted that when New York City sought to limit serving sizes of sugary drinks, state lawmakers in Mississippi, where no such limit existed, sought to make sure it never would by passing the so-called “anti-Bloomberg bill,” which preempted sugary-drink limits in any of its municipalities.

And sometimes it is “sneaked” into unexpected places: When the city of Cleveland passed a ban on trans fats, the Ohio State Legislature preempted that – not via a food policy bill, but via the state budget appropriations process.

For advocates seeking to better understand the issue or fight cases of preemption, there are two keys: timely awareness and an understanding of where to draw the line of compromise.

First of all, Pomeranz notes, “advocates really need to get a lawyer to research whether [a given law is] preempted already, because if it is, they will lose.”

She suggested that activists concerned about preemption in a given law should push right away for a savings clause, which expressly states that a law does not preempt state or local control. Alternatively, a minimum requirement in a law can keep standards where advocates want them to be.

“And then they have to stay up on it,” Pomeranz says. “Things are put in at the last minute and sometimes it’s hard to find out about that.”

Another problem comes when activists wedded to seeing their goals become law accept preemption as a part of getting that done. She noted that this caused a rift among advocates when the school lunch program came up for reauthorization five years ago. The bill was to have included a preemption clause saying states couldn’t make laws stronger than the federal law. This would have voided laws such as Connecticut’s ban on sugary beverages, she noted.

“A lot of advocates stopped supporting it and it caused a divide  … [but] in the long run we were right,” Pomeranz said. “That’s what you want, stronger requirements without preemption.”

“For advocates and stakeholders and the grassroots, this should be part of the conversation from the beginning — what they’re willing to give up.”

Donna Brutkoski authored this article.