Hostname: page-component-77c89778f8-gq7q9 Total loading time: 0 Render date: 2024-07-18T18:33:47.612Z Has data issue: false hasContentIssue false

Deregulation, Distrust, and Democracy: State and Local Action to Ensure Equitable Access to Healthy, Sustainably Produced Food

Published online by Cambridge University Press:  06 January 2021

Lindsay F. Wiley*
American University, Washington College of Law, Harvard University, Harvard Law School, Johns Hopkins University


Environmental, public health, alternative food, and food justice advocates are working together to achieve incremental agricultural subsidy and nutrition assistance reforms that increase access to fresh fruits and vegetables. When it comes to targeting food and beverage products for increased regulation and decreased consumption, however, the priorities of various food reform movements diverge. This article argues that foundational legal issues, including preemption of state and local authority to protect the public's health and welfare, increasing First Amendment protection for commercial speech, and eroding judicial deference to legislative policy judgments, present a more promising avenue for collaboration across movements than discrete food reform priorities around issues like sugary drinks, genetic modification, or organics. Using the Vermont Genetically Modified Organism (GMO) Labeling Act litigation, the Kauai GMO Cultivation Ordinance litigation, the New York City Sugary Drinks Portion Rule litigation, and the Cleveland Trans Fat Ban litigation as case studies, I discuss the foundational legal challenges faced by diverse food reformers, even when their discrete reform priorities diverge. I also explore the broader implications of cooperation among groups that respond differently to the “irrationalities” (from the public health perspective) or “values” (from the environmental and alternative food perspective) that permeate public risk perception for democratic governance in the face of scientific uncertainty.

Copyright © American Society of Law, Medicine and Ethics and Boston University 2015

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)


1 See generally Bruce W. Marion, The Organization and Performance of the U.S. Food System (1986) (discussing the impact that industrialization and internationalization of the food system in the United States has had on production and distribution of food).

2 See Wiley, Lindsay F., The U.S. Department of Agriculture as a Public Health Agency? A “Health in All Policies” Case Study, 9 J. Food L. & Pol'y 61 (2013)Google Scholar (describing: (1) the emergence of coalitions among public health and environmental advocates, as well as among fruit and vegetable growers, during 2008 and 2012 Farm Bill negotiations; (2) the resulting gains for specialty crop subsidies; and (3) the significant, but ultimately inadequate, reform of commodity crop subsidies); Dan Charles, How ‘Double Bucks’ for Food Stamps Conquered Capitol Hill, NPR (Nov. 10, 2014, 3:01 PM), (describing the convergence of local health departments, agricultural interests, and anti-poverty groups on interventions to increase the value of Supplemental Nutrition Assistance Program benefits when used to buy fruits and vegetables from local growers).

3 Slocum, Rachel, Whiteness, Space and Alternative Food Practice, 38 Geoforum 520, 522 (2007)CrossRefGoogle Scholar (“[A]lternative food practices … advocate more ecologically sound and socially just farming methods, food marketing and distribution, and healthier food options across the US.”).

4 Christy Bridge, Another Weekend … in the Gym #23, Blogger (Aug. 18, 2014 8:30AM), (see image 1 within the blog post); see also Dotty Hagmier, Should We Be Counting Calories or Chemicals? Moms in Charge Blog (Mar. 1, 2014), (explaining that focusing on calorie counting is misleading, as chemical ingredients are a bigger problem for a healthy diet); Kayce Johnson, Stop Counting Calories and Start Counting Chemicals, Organic Fitness Factory (Mar. 24, 2014),!STOP-COUNTING-CALORIES-AND-START-COUNTING-CHEMICALS-/c1c9f/F8C10F68-ECCA-49CE-9057-32E4E20D6737 (suggesting that if there are ingredients that “your grandmother would not have used in her kitchen” in a given food product, then the body will not be able to break the substance down); Christina Sarich, Why You Should Stop Counting Calories and Start Counting Chemicals, Nat.Soc'y (July 16, 2014), (arguing that chemicals such as heavy metals, BPA, aspartame, and phthalates, among others, turn the endocrine system into “a mosh pit at a car crash competition”).

5 See Bridge, supra note 4; Hagmier, supra note 4; Johnson supra note 4; Sarich, supra note 4.

6 See Mario Moretto, New Bill to Deregulate Small-Scale Raw Milk Producers Will Go to Maine Legislature, Bangor Daily News (Mar. 6, 2014, 6:42 PM),

7 Nancy Shute, Half of Americans Believe in Medical Conspiracy Theories, NPR (Mar. 19, 2014, 3:25 PM), (explaining that there are “common medical conspiracy theories,” revolving around vaccination, water fluoridation, and sunscreen use, among others).

8 Complaint for Declaratory and Injunctive Relief at 2, Grocery Mfrs. Ass'n v. Sorrell, No. 5:14-CV-117 (D. Vt. filed June 12, 2014).

9 Order on Preemption and Order on Various Motions at 36-38, Syngenta Seeds, Inc. v. Cnty. of Kauai, No. 1:14-CV-00014-BMK (D. Haw. Aug. 23, 2014), 2014 WL 4216022.

10 N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health & Mental Hygiene (N.Y. Statewide Coal. III), 16 N.E.3d 538, 541 (N.Y. 2014).

11 City of Cleveland v. State (Cleveland), 989 N.E.2d 1072, 1075 (Ohio Ct. App. 2013).

12 See infra Part IV.

13 See infra note 22 and accompanying text (analyzing the polling results of the American public's opinion on GM foods).

14 Diller, Paul A., Local Health Agencies, the Bloomberg Soda Rule, and the Ghost of Woodrow Wilson, 40 Fordham Urb. L.J., 1859, 1867 (2013)Google Scholar; see also Diller, Paul A., Why Do Cities Innovate in Public Health? Implications of Scale and Structure, 91 Wash. U. L. Rev. 1219 (2014)Google Scholar (explaining the public health and policy reasons driving local governments across the United States to heavily regulate tobacco and food industries).

15 Jackson, David A. et al., Biochemical Method for Inserting New Genetic Information into DNA of Simian Virus 40: Circular SV40 DNA Molecules Containing Lambda Phage Genes and the Galactose Operon of Escherichia coli, 69 Proc. Nat'l Acad. Sci. U.S. 2904, 2904 (1972)CrossRefGoogle ScholarPubMed.

16 FDA Food Additives Permitted in Feed and Drinking Water of Animals, 21 C.F.R. § 573.130 (1994) (prescribing conditions under which aminoglycoside 3'-phosphotransferase II may be safely used as a food additive for the development of genetically modified cotton, oilseed rape, and tomatoes).

17 Grocery Manufacturers Association Position on GMOs, Facts About GMOs, (last visited Apr. 20, 2015) (explaining that if a food contains corn or soy, it most likely contains genetically modified ingredients).

18 Jorge Fernandez-Cornejo et al., U.S. Dep't of Agric., Genetically Engineered Crops in the United States 9 (2014),

19 See Hallman, William K. et al., Public Perceptions of Labeling Genetically Modified Foods 5 (Rutgers Sch. of Envtl. & Bio. Sci., Working Paper No. 2013-01, 2013)Google Scholar, available at (finding that most Americans have negative feelings about GM foods, with only 45% of Americans agreeing that GMOs are safe to eat); Gary Langer, Poll: Skepticism of Genetically Modified Foods, ABCNews, (concluding that the majority of Americans are skeptical about GM foods, with 52% believing GM foods are unsafe and 13% unsure about the safety of GM foods) (last visited Apr. 20, 2015).

20 Allison Kopicki, Strong Support for Labeling Modified Foods, N.Y. Times (July 27, 2013), (indicating that 93% of Americans support labeling foods containing GMOs); see also U.S. Polls on GE Food Labeling, Ctr. for Food Safety, (last visited Apr. 20, 2015) (citing multiple polls that show support for mandatory labeling, ranging from 93% to 96%).

21 Nathanael Johnson, GMO Labeling Laws Keep Failing: Here's Why We Can Expect More, Grist (Nov. 6, 2014),

22 Commonly Asked Questions About the Food Safety of GMOs, Monsanto, (last visited Apr. 20, 2015) (explaining that GM crops can improve the nutritional value of the crops and also increase crop yields, which in turn allows farmers to use less resources and pesticides).

23 Questions & Answers on Food from Genetically Engineered Plants, U.S. Food & Drug Admin., (last updated July 22, 2014) (recognizing that there is a potential for allergens in GM foods and manufacturers are to evaluate whether any new material may potentially cause allergic reactions).

24 Fernandez-Cornejo et al., supra note 18, at 24-25 (describing how the benefits of herbicide-resistant GM crops are offset by glyphosate resistance).

25 Id. at 29 (highlighting how reduced diversity in weed management practices contributes to glyphosate resistance).

26 Christopher Doering, GMO Wheat Issue Intensifies, Great Falls Trib. (Oct. 26, 2014, 10:05 PM), (reporting the discovery of an unapproved type of GM wheat on a research field over ten years after the crop had been planted there).

27 See Miles McEvoy, Organic 101: Can GMOs Be Used in Organic Products?, U.S. Dep't Agric. (May 17, 2013, 1:20 PM), (detailing how cross-pollination from GM crops can contaminate non-GM crops and how the standards for organic farming do not permit the use of GMOs).

28 Robert Langreth & Matthew Herper, The Planet Versus Monsanto, Forbes (Dec. 31, 2009, 4:40 PM), (describing the antitrust concerns surrounding Monsanto, which cripples smaller seed companies due to its high market share).

29 For example, the Institute for Responsible Technology, the self-proclaimed “most comprehensive source of GMO health risk information on the web,” features a series of links to health studies to support assertions of harm from GMOs. GMO Dangers, Inst. for Responsible Tech., (last visited Apr. 20, 2015). Among these assertions are that GM corn damages the liver and kidney and that GM soy causes sterility. The claim that GM corn causes kidney and liver toxicity is supported by a ninety-day rat feeding study which has been criticized by the European Food Safety Authority's Scientific Panel on Genetically Modified Organisms for many statistical flaws, ultimately the Panel concluded that the claims in the paper were not supported by the data. See id.; de Vendômois, Joël Spiroux et al., A Comparison of the Effects of Three GM Corn Varieties on Mammalian Health, 5 Int. J. Bio. Sci. 706 (2009)CrossRefGoogle ScholarPubMed; European Food Safety Auth., Minutes of the 55th Plenary Meeting of the Scientific Panel on Genetically Modified Organisms Held on 27-28 January 2010 in Parma, Italy 8 (Mar. 10, 2010), available at A similar study was subsequently retracted from the Food and Chemical Toxicology Journal due to the authors' definitive conclusions despite a small sample size and failure to exclude the high incidence of tumors in the Sprague–Dawley rat. See Retraction Notice to Long Term Toxicity of a Roundup Herbicide and a Roundup-Tolerant Genetically Modified Maize, 63 Food & Chem. Toxicology 244 (2014)Google Scholar; Michael Antoniou et al., GLS Bank, GM Soy: Sustainable? Responsible? 12 (2010) (articulating the risks of GM soy, including a multigenerational feeding study on hamsters which lost the ability to reproduce by the third generation). Cf. Bruce Chassy & Graham Brookes, Academics Review, A Critical Assessment of the Paper ‘GM Soy: Sustainable? Responsible?' (2012), (criticizing the claims made in the Antoniou paper for, among other things, not being based on observed harmful health effects).

30 Federal GMO labeling legislation has been introduced, most recently in 2013. See Genetically Engineered Food Right-to-Know Act, S. 809, 113th Cong. (2013). At the same time, legislation was introduced to preempt state and local GM labeling laws. See Safe and Accurate Food Labeling Act of 2014, H.R. 4432, 113th Cong. (2014).

31 Coordinated Framework for Regulation of Biotechnology: Announcement of Policy Notice for Public Comment, 51 Fed. Reg. 23,302 (June 26, 1986).

32 Exercise of Federal Oversight Within Scope of Statutory Authority: Planned Introductions of Biotechnology Products into the Environment, 57 Fed. Reg. 6753, 6756 (Feb. 27, 1992) (elaborating upon the Coordinated Framework for Regulation of Biotechnology).

33 See Statement of Policy: Foods Derived from New Plant Varieties, 57 Fed. Reg. 22,984, 22,984 (May 29, 1992) (explaining that the FDA will regulate production of food “derived from plant varieties developed by the new methods of genetic modification” using the same approach as that “applied to foods developed by traditional plant breeding”).

34 See id.

35 The Draft Guidance has indicated that labels about the presence or absence of GM ingredients need to be truthful and not misleading. For example, a precise label statement such as “[w]e do not use ingredients that were produced using biotechnology,” should be used rather than “GMO free.” U.S. Food & Drug Admin., Docket No. 00D-1598, Draft Guidance for Industry: Voluntary Labeling Indicating Whether Foods Have or Have Not Been Developed Using Bioengineering (2001), available at

36 See Kysar, Douglas A., Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harv. L. Rev. 526, 559-60 (2004)CrossRefGoogle Scholar (“[T]he FDA arguably has discretion to require thorough premarket review of GM food products under the [Food, Drug, and Cosmetic Act's] grant of authority to regulate ‘adulterated foods’ and ‘food additives.’ In practice, however, the FDA has conferred a ‘generally recognized as safe’ (GRAS) exemption from premarket review on any GM food crop deemed substantially equivalent to its traditionally bred parental strain.”); Statement of Policy: Foods Derived from New Plant Varieties, 57 Fed. Reg. 22,984 (May 29, 1992). FDA encourages developers of new plant varieties for food use to consult with the agency, and makes completed consultation letters publically available. Consultation Procedures Under FDA's 1992 Statement of Policy — Foods Derived from New Plant Varieties, U.S. Food & Drug Admin., (last visited Apr. 20, 2015); Biotechnology Consultations on Food from GE Plant Varieties, U.S. Food & Drug Admin., (last visited Apr. 20, 2015).

37 See 7 C.F.R. § 340.1 (2013) (defining “Regulated Articles” to include any organism altered through genetic engineering if the organism also meets the definition of “plant pest”); id. § 340.4 (2013) (delineating the steps that must be taken to release into the environment or move an article regulated under this authority).

38 See 40 C.F.R. § 174.1 (2014) (distinguishing plant-incorporated protectants from traditional chemical pesticides); id. § 174.21 (exempting plant-incorporated protectants from certain requirements of the Federal Insecticide, Fungicide, and Rodenticide Act and the Food, Drug, and Cosmetic Act).

39 15 U.S.C. § 2603 (2012) (empowering the EPA to determine whether a chemical would pose an unreasonable risk to human health or the environment); 40 C.F.R. § 725.1 (establishing reporting requirements for microorganisms, among other things, under the Toxic Substances Control Act).

40 See 42 U.S.C. §§ 4321–70h (2012) (establishing procedural requirements for submitting environmental assessments and environmental impact statements for federal actions or projects); Ctr. for Food Safety v. Vilsack, 734 F. Supp. 2d 948, 950, 955 (N.D. Cal. 2010) (vacating a decision by USDA to deregulate GM sugar beets due to a failure by the agency to submit an environmental impact statement under the National Environmental Policy Act).

41 The legislative findings in Vermont's GM labeling act state:

Because both the FDA and the U.S. Congress do not require the labeling of food produced with genetic engineering, the State should require food produced with genetic engineering to be labeled as such in order to serve the interests of the State, notwithstanding limited exceptions, to prevent inadvertent consumer deception, prevent potential risks to human health, protect religious practices, and protect the environment.

Act of May 8, 2014, No. 120, § 1(6), 2014 Vt. Acts & Resolves 348.

42 Maine and Connecticut enacted earlier GM food labeling laws, but both of these laws include “trigger” provisions, which prevent them from going into effect until other jurisdictions have adopted similar provisions. James J. Gormley, GMO-Labeling Laws: Why the Trigger Clause?, Nutritional Outlook (Apr. 4, 2014),

43 § 1(5), 2014 Vt. Acts & Resolves at 347. The legislative findings subsection references “conflicting studies assessing the health consequences of food produced from genetic engineering,” “genetic homogeneity, loss of biodiversity, and increased vulnerability of crops to pests, diseases, and variable climate conditions,” and cross-pollination, leading to contamination of organic crops by GM crops and displacement of native plants and fauna. Id. § 1(4).

44 Act 120 defines “food” as “food intended for human consumption,” and defines “genetic engineering” as “a process by which a food is produced from an organism or organisms in which the genetic material has been changed through the application of: (A) in vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (DNA) techniques and the direct injection of nucleic acid into cells or organelles; or (B) fusion of cells (including protoplast fusion) or hybridization techniques that overcome natural physiological, reproductive, or recombination barriers, where the donor cells or protoplasts do not fall within the same taxonomic group, in a way that does not occur by natural multiplication or natural recombination.” Id. § 3042(3); id. § 3042(4).

45 Id. § 3043(a)-(b). The labeling mandate would not apply to: (1) animal products that are merely produced with the use of GM animal feed; (2) products “grown, raised, or produced without the knowing or intentional use of food or seed produced with genetic engineering”; (3) processed food that merely includes processing aids or enzymes produced with genetic engineering; (4) alcoholic beverages; (5) processed food in which GM ingredients account for no more than 0.9% of the total weight of the processed food; (6) food not packaged for retail sale (including restaurant food and other foods prepared for immediate consumption); and (7) medical foods regulated as such by the FDA. Id. § 3044.

46 Id. § 3043(c); see also Proposed Consumer Protection Rule 121, Labeling Foods Produced with Genetic Engineering, at § 1.12 (defining “natural or any words of similar import” to mean nature, natural, or naturally).

47 Id. § 121.04(e).

48 Id. § 3.

49 Complaint for Declaratory and Injunctive Relief at 13, Grocery Mfrs. Ass'n v. Sorrell, No. 5:14-CV-117 (D. Vt. June 12, 2014) (quoting Wooley v. Maynard, 430 U.S. 705, 714 (1977)).

50 Id. at 17.

51 Id. at 18–20.

52 Id. at 20–21.

53 See Ctr. for Food Safety, GE Food Labeling: States Take Action 1 (2014), (discussing how in the first half of 2014, thirty-five bills were introduced in twenty states regarding GM labeling).

54 Murphy, Laura et al., More Than Curiosity: The Constitutionality of State Labeling Requirements for Genetically Engineered Foods, 38 Vt. L. Rev. 477, 480, 497-99 (2013)Google Scholar (concluding that state GMO labeling laws should survive First Amendment challenges, particularly focusing on the Second Circuit's decision regarding growth hormone labeling on milk). The authors state that Central Hudson is not the proper standard for GMO disclosure requirements because courts have stated that it should only apply to state disclosure requirements that are only supported by “consumer curiosity” interests. Id. at 507. Instead, the Zauderer test should be applied because it “applies to mandated, factual disclosures and a broad set of legitimate state interests.” Id. at 522. Under Zauderer, a state would need to show: (1) its interest in preventing consumer deception and protecting health; and (2) that the GMO disclosure is “reasonably related” to that interest. Id. at 521. Once the state establishes this interest, courts should easily be able to find that “labeling causes changes in human behavior” and conclude that the disclosure is reasonably related to that interest. Id. (relying on a “common-sense” analysis); Rich, Matthew, Note, The Debate over Genetically Modified Crops in the United States: Reassessment of Notions of Harm, Difference, and Choice, 54 Case W. Res. L. Rev. 889, 915 (2004)Google Scholar (discussing mandatory labeling laws for foods containing GMO ingredients and concluding that these labels would not violate First Amendment interest and are the most desirable regulatory solution to protect consumers). The author states that, while International Dairy Foods Association v. Amestoy failed the second prong of the Central Hudson test, the case could have come out differently had the state clearly stated its interest in protecting human and animal health. Id. at 905 (stating that Judge Leval indicated this in the majority opinion which ultimately held that consumer curiosity was not enough to sustain a mandatory disclosure on the label).

55 See, e.g., Cox v. Gruma Corp., No. 12-CV-6502, 2013 WL 3828800, at *1-2 (N.D. Cal. July 23, 2014) (dismissed with prejudice) (describing “all natural” claims on tortilla chips made from GMO corn); Kane v. Chobani, Inc., 973 F. Supp. 2d 1120, 1124 (N.D. Ca. 2014) (alleging that Chobani cannot label products made with added coloring as “all natural”). Manufacturers in these “natural” claim cases often advance a First Amendment argument as a defense; however, these claims are largely unsuccessful due to the application of the Zauderer standard for misleading commercial speech. Under Zauderer, the government's interest in preventing consumer deception generally prevails over a manufacturer's speech, when it can be demonstrated the speech is misleading.

56 See, e.g., Cox, 2013 WL 3828800, at *1-2 (describing “all natural” claims on tortilla chips made from GMO corn); Chobani, 973 F. Supp. 2d at 1124 (“all natural” claims regarding products made with added coloring); Parker v. J.M. Smucker Co., No. 13-0690, 2013 WL 4516156, at *1-2 (N.D. Cal. Aug. 23, 2013) (“all natural” claims on vegetable oil products derived from GM crops and were heavily processed).

57 Brazil v. Dole Food Co., 935 F. Supp. 2d 947, 966-67 (N.D. Cal. 2013) (granting defendants' motion to dismiss without prejudice for a lack of sufficient particularity in the pleadings for claims subjected to the heightened fraud pleading requirement).

58 Gitson v. Trader Joe's Co., No. 13-CV-01333, 2013 WL 5513711, at *10-11 (N.D. Cal. Oct. 4, 2013) (dismissing with leave to amend claims for failure to plead fraud-based claims with sufficient particularity and failing the reasonable consumer test under state law).

59 David Bronner, GMO Crops Accelerate Herbicide and Insecticide Use While Mainstream Media Gets It Wrong, EcoWatch (Sept. 29, 2014, 4:22 PM),

60 Robynne Boyd, Genetically Modified Hawaii, Sci. Am. (Dec. 8, 2008),

61 See infra notes 64-65 and accompanying text.

62 Kaua'i, Haw., Kaua'i County Code 1987 ch. 22, art. 23 (uncodified at Kaua'i, Haw., Ordinance 960 (2014)). Kauai's mayor vetoed the bill, but the county council overturned the veto by a vote of five to two.

63 Hawai'i, Haw., Hawai'i County Code §§ 14-128–14-136 (2014). This article of the county code includes an exception for GM papayas, a grandfathering provision, and a provision allowing the county council to grant emergency exceptions in cases where a “genetically engineered remedy” is the only available solution to harm being caused by a plant pestilence. Id. § 14-132.

64 See infra Part III.

65 Complaint for Declaratory and Injunctive Relief at 35–36, Syngenta Seeds, Inc. v. Cnty. of Kauai, No. 1:14-CV-00014 (D. Haw. filed Jan. 10, 2014), 2014 WL 120071.

66 Id. at 42–48.

67 Id. at 50–52.

68 Id. at 48–50.

69 Id. at 52–54.

70 Id. at 5, 64–66.

71 Order Granting Motion of Ka Makani Ho'opono et al. to Intervene, Syngenta Seeds, Inc. v. Kauai, No. 1:14-CV-00014 (D. Haw. Apr., 23, 2014), 2014 WL 1631830.

72 Sygenta Seeds, No. 1:14-CV-00014 (D. Haw. Aug. 25, 2014), 2014 WL 4216022.

73 See id. at *5–8.

74 The general police powers of Hawaiian counties are granted in Haw. Rev. Stat. Ann. § 46-1.5(13) (LexisNexis 2012), which provides:

Each county shall have the power to enact ordinances deemed necessary to protect health, life, and property, and to preserve the order and security of the county and its inhabitants on any subject or matter not inconsistent with, or tending to defeat, the intent of any state statute where the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State[.]

75 Haw. Const. art. XI, § 1 states:

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people.

76 Sygenta Seeds, No. 1:14-CV-00014, 2014 WL 4216022, at *8.

77 Id. at *8-9.

78 Id. at *9–14.

79 Id. at *14.

80 Maui County Generically Modified Organism Moritorium Initiative, Ballotpedia, (last visited Apr. 20, 2015); see also Maui, Haw., A Bill Placing a Moratorium on the Cultivation of Genetically Engineered Organisms (Nov. 4, 2014), available at (implementing a temporary moratorium on all GM operations and practices until an environmental public health impact statement can be completed through a public procedure by independent, unbiased consultants).

81 Complaint for Declaratory and Injunctive Relief, Robert Ito Farm, Inc. v. Cnty. of Maui, No. 14–00511–SOM–BMK (D. Haw. filed Nov. 13, 2014), 2015 WL 6240099.

82 See Murray, Christopher J. L., U.S. Burden of Disease Collaborators, The State of U.S. Health, 1990-2010: Burden of Diseases, Injuries, and Risk Factors, 310 JAMA 591, 600 fig.3 (2013)CrossRefGoogle ScholarPubMed.

83 See Margaret D. Carroll et. al., Ctrs. for Disease Control and Prevention [CDC], NCHS Data Brief: Total and High-Density Lipoprotein Cholesterol in Adults 1 (2012), available at; High Blood Pressure Facts, CDC (Feb. 19, 2015),

84 High Blood Pressure Facts, CDC, supra note 83.

85 Go, Alan S., et al., Heart Disease and Stroke Statistics – 2014 Update, 128 Circulation 1, 3 (2014)Google Scholar.

86 Ogden, Cynthia L. et al., Prevalence of Childhood and Adult Obesity in the United States, 2011-2012, 311 JAMA 806 (2014)CrossRefGoogle ScholarPubMed.

87 See Wiley, Lindsay F., Shame, Blame, and the Emerging Law of Obesity Control, 47 U.C. Davis L. Rev. 121, 142-44 (2013)Google Scholar (describing the dominance of the behavioral model for promoting healthy eating and physical activity through the late 1990s).

88 Healthy People 2010, the U.S. Department of Health and Human Service's ten-year public health plan developed in 2000, included objectives aimed at expanding weight management programs offered through employers, encouraging medical weight loss counseling by primary care providers, reducing sources of unnecessary calories in school and restaurant meals, increasing nutrition labeling for food items, and improving access to community recreational facilities. But “[c]ompared to the tobacco objectives, the … obesity objectives focus[ed] on results rather than publicly-directed strategies for obtaining those results. There [were] no calls for state legislation, for example. While the report recognize[d] the growing importance of childhood obesity, governmental entities … [were] not given any special responsibility to protect children from risky foods.” Bobinski, Mary Anne, Health Disparities and the Law: Wrongs in Search of a Right, 29 Am. J.L. & Med. 363, 378 (2003)Google ScholarPubMed.

89 Healthy, Hunger-Free Kids Act of 2010, 42 U.S.C. § 1779(b) (2012).

90 See Victor Oliveira & Elizabeth Frazão, U.S. Dep't of Agric., The WIC Program: Background, Trends, and Economic Issues, 2009 Edition iv-v (2009), (indicating that the USDA was concerned about health risks such as childhood obesity, and thus took steps such as changing food packages used in the WIC program in order to encourage healthier behavior in program participants).

91 Tom Hamburger & Kim Geiger, Beverage Industry Douses Tax on Soft Drinks, L.A. Times (Feb. 7, 2010),

92 See Nicholas Confessore, Lunch Money, N.Y. Times, Oct. 12, 2014, (Magazine), at 34 (discussing lobbying efforts to soften USDA regulations and the likelihood that Republican control of Congress will result in the HHFKA being “gutted”).

93 See Mary Clair Jalonek, FDA Head Says Menu Labeling ‘Thorny’ Issue, Associated Press (Mar. 12, 2013 7:42 AM),; Kira Lerner, FDA Delays Menu Labeling Until End of Year, Law360 (Mar. 4, 2014 6:42 PM),

94 See, e.g., Sharma, Lisa L. et al., The Food Industry and Self-Regulation: Standards to Promote Success and to Avoid Public Health Failures, 100 Am. J. Pub. Health 240 (2010)CrossRefGoogle ScholarPubMed (describing and evaluating food industry self-regulation).

95 Rachel Winch, Nutrition Incentives at Farmers' Market: Bringing Fresh, Healthy, Local Foods Within Reach 13 (2008), (describing the history of the New York City “Health Bucks” program).

96 N.Y. State Rest. Ass'n v. N.Y.C. Bd. of Health (NYSRA II), 556 F.3d 114, 120-22 (2d Cir. 2009) (upholding the second version of the city's calorie labeling mandate in the face of preemption and constitutional challenges after the first version was struck down).

97 See. N.Y.C., N.Y., Health Code tit. 24, § 81.08 (2008).

98 See Michael M. Grynbaum, Health Panel Approves Restriction on Sale of Large Sugary Drinks, N.Y. Times (Sept. 13, 2012),

99 N.Y.C. Dep't of Health & Mental Hygiene, Bd. of Health, Notice of Adoption of An Amendment (§81.53) to Article 81 of the N.Y.C. Health Code, (2014) available at

100 See, e.g., Michael M. Grynbaum, New York Plans to Ban Sale of Big Sizes of Sugary Drinks, N.Y. Times (May 30, 2012), (“‘The New York City health department’s unhealthy obsession with attacking soft drinks is again pushing them over the top,' the [New York City Beverage Association] spokesman, Stefan Friedman, said. ‘It’s time for serious health professionals to move on and seek solutions that are going to actually curb obesity. These zealous proposals just distract from the hard work that needs to be done on this front.'”); News, New Yorkers for Beverage Choices, (last visited Apr. 20, 2015) (listing recent news articles regarding the struggle over regulating beverage choices in New York).

101 Portion Cap Rule, N.Y.C. Health Code, tit. 24, § 81.53(b) (2012). It defined a sugary drink as: non-alcoholic; sweetened with a caloric sweetener; containing more than twenty-five calories per eight fluid ounces; and not containing more than fifty percent milk or milk substitute. Id. § 81.53(a)(1). Like other restaurant health code provisions, the Portion Cap Rule would have been enforced via inspections and fines, with a maximum penalty of $200 per inspection. Id. § 81.53(d).

102 See N.Y.C. Dep't of Health and Mental Hygiene, supra note 99 (specifying that sixteen ounces would be the largest drink size allowed).

103 tit. 24, § 81.53(b).

104 See N.Y. Agric. & Mkts. Law art. 2 § 16 (McKinney 2004) (detailing the responsibility of regulating the “production, transportation, storage, marketing and distribution of food” and ensuring against the sale of “unwholesome food”).

105 See generally N.Y. Alco. Bev. Cont. Law § 17 (McKinney 2011).

106 See N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health & Mental Hygiene, No. 653584/12 (N.Y. Statewide Coal. I) (N.Y. Sup. Ct. Mar. 11, 2013).

107 Id. at 1.

108 Id. at 20.

109 Id. at 15.

110 See N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health & Mental Hygiene (N.Y. Statewide Coal. II), 110 A.D.3d 1, 5 (N.Y. App. Div. 2013) (discussing the separation of powers doctrine in relation the BOH's authority).

111 NY Statewide Coal. III, 16 N.E.3d 538, 541 (N.Y. 2014).

112 Id. at 548.

113 Ohio Rev. Code Ann. § 3717.53(B) (LexisNexis 2012).

114 See S. F., Cal., Health Code art. 18, § 471.2 (2010); Santa Clara, Cal., Code of Ordinances § A18-352 (2010).

115 Ohio Rev. Code Ann. § 3717.53(C)(3-4) (LexisNexis 2012).

116 Cleveland, Ohio, Health Code tit. 3 § 241.42 (2011).

117 Cleveland, 989 N.E.2d 1072, 1077 (Ohio Ct. App. 2013).

118 See generally City of Cleveland v. State, 942 N.E.2d 370 (Ohio 2010) (upholding a less restrictive statewide statute over a more restrictive city ordinance).

119 Cleveland, 989 N.E.2d at 1081–82.

120 Id. at 1085 (discussing a distinct challenge to the state preemption law as violating an anti-logrolling provision known as the “single subject rule”).

121 Robert Gottlieb & Anupama Joshi, Food Justice 5 (2010).

122 Nonperishable grain and oilseed commodity crops (e.g., wheat, corn, sorghum, barley, oats, cotton, rice, and soybeans) enjoyed the most lucrative subsidies under the Farm Bill. 7 U.S.C. § 8713(b) (repealed 2014). Fruits and vegetables are considered “specialty crops” under existing law and do not receive the same benefits as commodity crops. Fresh Fruit, Hold the Insulin, 306 Sci. Am. 12, 12 (2012).

123 See Editorial, The Eggplant Rebellion, N.Y. Times (Nov. 12, 2001),

124 Joan Flynn, Tobacco Law Ctr., The United States Farm Bill: An Introduction for Fruit and Vegetable Advocates 2 (2008),

125 Larry Cohen et al., Prevention Inst., Cultivating Common Ground: Linking Health and Sustainable Agriculture 3-4 (2004),

126 See Food & Water Watch, Farm Bill 101 1 (2012),; Mark Muller et al., Considering the Contribution of U.S. Food and Agricultural Policy to the Obesity Epidemic (2007) (reporting on how United States food polices shape the type and quantity of food produced and consumed in the United States as, which in turn contributes to the country's increasing trend of childhood obesity); Heather Schoonover, A Fair Farm Bill for Public Health (2007), (outlining ways agricultural policy affects public health and proposing policy solutions to support healthier food and sustainable farming); Member Announcements, Healthy Farms Healthy People Coalition, (last visited Apr. 20, 2015).

127 See generally Charles, supra note 2 (discussing initiatives inspired by New York City's HealthBucks that are developing in other states); Winch, supra note 95 (surveying multiple case studies outside of New York City with similar programs).

128 See Cohen et al., supra note 125, at 14-15.

129 Id. at 13.

130 Michael Pollan, The Food Movement, Rising, N.Y. Rev. Books, June 10, 2010, at 31, 31 available at

131 Goldberg, Rebecca L., No Such Thing as a Free Lunch: Paternalism, Poverty, and Food Justice, 24 Stan. L. & Pol'y Rev. 35, 49 (2013)Google Scholar (“[W]ith its focus on farmers' markets and a do-it-yourself avoidance of processed food, many of the food movement's goals do seem aimed at those with disposable income and disposable time.”).

132 Id.

133 See, e.g., Lisa Fickensher, Beverage Makers Sour on Sweetened-Drink Ban, Crain's N.Y. Bus. (June 3, 2012, 12:01 AM), (quoting a restaurant industry source as saying, “[i]f the ban goes into effect, we'll sell a lot of beverages with synthetic sweeteners, and our water sales will go up”).

134 See Beverages, Sugar Ass'n, (last visited Apr. 20, 2015) (listing several sugary drinks touting “all natural ingredients” and featuring cane sugar).

135 Deborah Kotz, Study: Added Sugar Increases Risk of Dying from Heart Disease, (Feb. 3, 2014, 7:22 PM),

136 See Fickensher, supra note 133 (“Soda may be the biggest target of the ban, but sweetened teas are also included. Honest Tea, for example, which is considered one of the healthier brands because of its low sugar content and organic ingredients, would not be able to sell its top product, Honey Green Tea, in New York City if the ban is passed” because it contains twenty more calories per 16.9 ounce bottle than would be allowable under the Portion Cap Rule.); Lynne Kiesling, Bloomberg's Bureacratic “Big Gulp” Rule, More Unintended Costs, Knowledge Problem (July 23, 2012), (discussing the application of the Portion Rule to Honest Tea's most popular product, Honey Green Tea, which contains thirty-five calories per eight ounce serving and is bottled in containers larger than sixteen ounces, assuming that the regulation would prompt the manufacturer to incur great expense to change the bottle size, rather than prompting a formulation change to lower the calorie content to twenty-five calories per eight ounce serving so that it would fall outside of the Portion Rule's definition of “sugary drinks”).

137 Brands, Coca Cola, (last visited Apr. 20, 2015).

138 Kiesling, supra note 136.

139 Greg Toppo, Healthy, Organic, and Cheap School Lunches? Order Up, USA Today (Dec. 1, 2009, 7:53 PM), (quoting Margo Wootan, Nutrition Policy Dir., Ctr. for Sci. in the Pub. Interest).

140 See Highlights from 40 Years of Accomplishments, Ctr. for Sci. in the Pub. Interest, (last visited Apr. 20, 2015).

141 See Elaine Watson, CSPI: There Are Legitimate Concerns About GMOs, But Not Around Food Safety, and Labeling Would Be Misleading, (July 4, 2013, 00:24 GMT), (quoting Gregory Jaffe, Dir. of Biotech., Ctr. for Sci. in the Pub. Interest).

142 Id.

143 See, e.g., Letter from Gregory Jaffe, Dir. of the Biotech. Project, Ctr. for Sci. in the Pub. Interest, to U.S. Dep't of Agric. (Mar. 11, 2014), available at (urging USDA to use its authority under the Plant Protection Act to manage and address herbicide resistant weeds); Letter from Gregory Jaffe, Dir. of the Biotech. Project, Ctr. for Sci. in the Pub. Interest, to Thomas Vilsack, Sec'y of Agric., U.S. Dep't of Agric. (Mar. 20, 2013), available at (urging the USDA to take more meaningful action to promote co-existence between conventional, organic, identity-preserved (non-GMO), and GM crops, including by regulating GM seed producers and farmers to protect the interest of organic and identity-preserved growers).

144 Genetically Modified Foods, Harv. Sch. Pub. Health, (last visited Apr. 20, 2015).

145 See Steve Holt, Food Activism's Libertarian Streak, TakePart (May 22, 2012), (“Libertarian sentiments run throughout the food movement, from criticism of federal subsidies that unfairly favor certain commodities over others, to bans on certain food, to a general distrust of the link between the federal government and large food producers.”).

146 Our Mission, Keep Food Legal, (last visited Apr. 20, 2015) (“[T]here are too many restrictions on our right to procure the foods we love, and … these restrictions are growing. At the local, state, and federal levels, elected officials and regulators have banned or are working to ban or severely restrict everything from traditional farm products (like raw milk and cheeses) and locavore-friendly farm practices (like on-farm animal slaughter and meat packaging), are seeking to prevent chefs from using common food ingredients (like salt, foie gras, and trans fats), and are looking to ban others from selling a variety of foods (including soda, energy drinks, bacon-wrapped hot dogs, and giant pizza slices) or even to share foods (with the homeless or with fellow consumers).”).

147 Curran, Christopher J. & González, Marc-Tizoc, Food Justice as Interracial Justice: Urban Farmers, Community Organizations and the Role of Government in Oakland, California, 43 U. Miami Inter-Am. L. Rev. 207, 230-31 (2011)Google Scholar.

148 Id. at 208.

149, (last visited Apr. 20, 2015).

150 Nat. News, (last visited Apr. 20, 2015).

151 See U.S. Dep't of Homeland Sec., National Response Framework 13-15 (2013),

152 See Safe and Accurate Food Labeling Act of 2014, H.R. 4432, 113th Cong. (2014) (“A bill to amend the Federal Food, Drug, and Cosmetic Act with respect to food produced from, containing, or consisting of a bioengineered organism, the labeling of natural foods, and for other purposes.”).

153 Id. §§ 104, 425.

154 See Biotechnology State Uniformity Resolution Exposed, ALEC Exposed, (last visited Apr. 20, 2015); Seed Law Preemption Background: Industry Aims to Strip Local Control of Food Supply, Envtl. Commons, (last visited Apr. 20, 2015).

155 See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 540-41 (2001) (stating that Congress may preempt state police power if there is express or implied language in the “congressional enactment” authorizing congressional preemption or if there is “implication from the depth and breadth of a congressional scheme that occupies the legislative field”).

156 See e.g., id. (invalidating, on preemption grounds, a Massachusetts law aimed at preventing youth exposure to cigarette advertising); Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992) (holding that some state failure-to-warn and fraudulent misrepresentation claims are preempted); Rowe v. N.H. Motor Transp. Ass'n, 552 U.S. 364 (2008) (invalidating, on preemption grounds, a Maine law aimed at preventing youth access to tobacco from the Internet and mail-order sales by requiring carriers to ensure that cigarettes were delivered only to adults).

157 N.Y. State Rest. Ass'n v. N.Y.C. Bd. of Health (NYSRA I), 509 F.Supp. 2d 351, 361–63 (S.D.N.Y. 2007) (holding that the 2006 version of the calorie labeling mandate, which required restaurants that had voluntarily provided calorie information in some form to post that information on their menus, sought to regulate nutrient content claims and was thus preempted by the NLEA).

158 NYSRA II, 556 F.3d 114 (2d Cir. 2009) (upholding the 2008 version of the calorie labeling mandate, which applied to chain restaurants regardless of whether they voluntarily made calorie information available in any form).

159 See, e.g., Cal. Health & Safety Code § 114094 (West 2012).

160 But see Andrew Martin, Inside the Powerful Lobby Fighting for Your Right to Eat Pizza, bloomberg bus. (Mar. 3, 2015), (“Other corners of the fast-food industry have folded against public pressure for healthier choices. Not pizza ….”).

161 See Dylan Scott, Philly Feuds with Feds over Calorie Counts on Menus, Governing (Mar. 20, 2013),

162 Syngenta Seeds, Inc. v. County of Kauai, Civ. No. 1:14–CV–00014–BMK, 2014 WL 4216022 at *9-13 (D. Haw. Aug. 25, 2014).

163 Bates v. Dow Agrosci. LLC, 544 U.S. 431 (2005).

164 Nat'l Meat Ass'n v. Harris, 132 S. Ct. 965 (2012).

165 See Diller, Paul, Intrastate Preemption, 87 B.U. L. Rev. 1113 (2007)Google Scholar (analyzing city and state law preemption schemes).

166 See id. at 1124-27.

167 See, e.g., Ill. Const. art. VII, § 6 (granting broad authority to local governments to “exercise any power and perform any function pertaining to … [local] government and affairs including … the power to regulate for the protection of the public health, safety, morals, and welfare ….”).

168 See Cleveland, 989 N.E.2d 1072 (Ohio Ct. App. 2013).

169 State v. City of Denver, 139 P.3d 635 (Colo. 2006).

170 Id.

171 See Nolon, John R. & Gavin, Steven E., Hydrofracking: State Preemption, Local Power, and Cooperative Governance, 63 Case W. Res. L. Rev. 995, 1013-26 (2013)Google Scholar.

172 See, e.g., Midwest Emp'rs Council, Inc. v. City of Omaha, 131 N.W.2d 609 (Neb. 1964) (holding, inter alia, that Omaha's home rule charter did not fairly imply that the city had authority to enact an ordinance prohibiting employment discrimination on the basis of race, religious creed, color, national origin, or ancestry because a home rule charter must be “construed strictly in favor of the public and against the public officials of the charter city”).

173 Home rule is sometimes mistakenly contrasted with “Dillon's Rule,” but the two doctrines can and do co-exist in the majority of states. Whereas home rule refers to the breadth or narrowness of the local government's grant authority, Dillon's Rule is a judicial rule of construction. Jesse J. Richardson, Jr. et al., Brookings Inst. Ctr. on Urban And Metro.Policy, Is Home Rule the Answer? Clarifying the Influence of Dillon's Rule on Growth Management 3-4 (2003). Under Dillon's Rule, “a municipal corporation possesses and can exercise the following powers, and no others: first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable, doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied.” Clark v. City of Des Moines, 19 Iowa 199 (1865). Under the competing “Cooley Doctrine” some state constitutions are understood to create an absolute right to local self-government, which cannot be abridged by the state legislature. Cooley's view was that local governments pre-dated the formation of state governments and therefore should be treated as parallel to the state, rather than as creatures of the state. People ex rel. Le Roy v. Hurlbut, 9 Am. Rep. 103 (Mich. 1871).

174 See Hendrik Hartog, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730-1870 235 (1983) (stating that the strict construction of delegations to local governments “provided one [important] technique for justifying judicial intervention” to block actions judges regarded as unwarranted).

175 Mowery, Paul D. et al., The Impact of State Preemption of Local Smoking Restrictions on Public Health Protections and Changes in Social Norms, 2012 J. Envtl. & Pub. Health 1, 2 (2012)Google ScholarPubMed.

176 See, e.g., Dale Kunkel & Doug Taren, Pre-emptive Bill on Fast Food and Kids Reeks of Hollow Politics, Ariz. Daily Star (March 1, 2011, 12:00 AM),

177 S. 727, 27th Leg., Reg. Sess. (Haw. 2013).

178 Id.

179 Syngenta Seeds, Inc. v. County of Kauai, Civ. No. 1:14-CV-00014-BMK, 2014 WL 4216022, at *8-13 (D. Haw. Aug. 25, 2014).

180 In January 2014, shortly after the Kauai and Hawaii County ordinances were adopted, somewhat less broad preemption bills were introduced in the state legislature. Identical bills introduced in the House and Senate would have revised Hawaii's “Right to Farm” legislation by adding language to specifically bar local governments from enacting legislation prohibiting the use of “agricultural technology, modern livestock production, and ranching practices” that are legal under state and federal law. H.R. 2506, 27th Leg., Reg. Sess. (Haw. 2014); S. 3058, 27th Leg., Reg. Sess. (Haw. 2014). Both bills died in committee.

181 Complaint for Declaratory and Injunctive Relief at 13, Grocery Mfrs. Ass'n v. Sorrell, No. 5:14-CV-117 (D. Vt. June 12, 2014).

182 Id. (citing Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2664 (2011)).

183 See Pifer, Ross H., Mandatory Labeling Laws: What Do Recent State Enactments Portend for the Future of GMOs?, 118 Penn St. L. Rev. 789, 808 (2014)Google Scholar.

184 See Cleveland, 989 N.E.2d 1072, 1081 (Ohio Ct. App. 2013); Williams, Rachael, How Growing Legislation Geared Towards Restricting America's Expanding Waist Lines Is Restricting Consumer Choice, 22 U. Miami Bus. L. Rev. 145, 155 (2014)Google Scholar.

185 See Chaplinsky v. New Hampshire, 315 U.S. 568, 573-74 (1942).

186 Valentine v. Chrestensen, 316 U.S. 52, 54 (1942) (“We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.”).

187 Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56 (1978).

188 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980).

189 Id. at 566.

190 Mermin, Seth E. & Graff, Samantha K., The First Amendment and Public Health, at Odds, 39 Am. J.L. & Med. 298, 299 n.11 (2013)Google ScholarPubMed; Rauer, Samantha, Note, When the First Amendment and Public Health Collide: The Court's Increasingly Strict Constitutional Scrutiny of Health Regulations that Restrict Commercial Speech, 38 Am. J.L. Med. 690, 691 (2012)Google ScholarPubMed.

191 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).

192 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).

193 Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).

194 Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002).

195 Sorrell v. IMS Health Inc., 131 U.S. 2653 (2011).

196 Rauer, supra note 190, at 703.

197 Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985).

198 Id. But see Ibanez v. Fla. Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 146–47 (1994) (finding the exhaustive disclaimer required in certain accountant advertisements to be overbroad).

199 Zauderer, 471 U.S. at 651.

200 NYSRA II, 556 F.3d 114, 136 (2d Cir. 2009).

201 The 2012 circuit courts' decisions assessing proposed graphic warning labels for cigarette packs are split over the applicability of Zauderer. The Sixth Circuit, in a challenge to the 2009 Tobacco Control Act, applied Zauderer and upheld the statute's requirement of graphic warnings. The court found the warnings were needed to correct “decades-long deception by Tobacco Companies” and that “advertising promoting smoking deceives consumers if it does not warn consumers about tobacco's serious health risks.” Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 562 (6th Cir. 2012). In a lawsuit challenging the FDA's final rule on graphic warning labels, the D.C. Circuit disagreed and invalidated the rule, holding that FDA's interest in requiring graphic warnings—disclosure of health and safety risks—was not, alone, sufficient justification. The court found that the agency had not shown the labels were needed to prevent deception; therefore the Zauderer test was inapplicable. In 2014, the D.C. Circuit expressly overruled this holding in an unrelated case, but the FDA had already withdrawn its proposed warnings to avoid Supreme Court review. Am. Meat Inst. v. U.S. Dep't of Agric., 760 F.3d 18, 22-23 (D.C. Cir. 2014) (finding that “Zauderer's characterization of the speaker's interest in opposing forced disclosure of [purely factual and uncontroversial] information as “minimal” seems inherently applicable beyond the problem of deception” and expressly overruling previous holdings “limiting Zauderer to cases in which the government points to an interest in correcting deception …” (citing R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1214)(2012)).

202 Plaintiffs' [Proposed] Amended Complaint for Declaratory and Injunctive Relief at 17, Grocery Mfrs. Ass'n v. Sorrell, No. 5:14-CV-117-CR (D. Vt. Sept. 11, 2014).

203 Id. at 14.

204 See Plaintiffs' Memorandum in Support of Motion for Partial Summary Judgment of Claims One, Three, Four, and Five of First Amended Complaint at 39, Syngenta Seeds, Inc. v. County of Kauai, No. 1:14-CV-00014-BMK (D. Haw. Apr. 14, 2014).

205 Id. (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)).

206 Id. at 41-46.

207 Verified Article 78 & Declaratory Judgment Petition at 29, NY Statewide Coal. II, 110 A.D.3d 1 (N.Y. App. Div. 2013) (No. 653584/12).

208 NY Statewide Coal. I, No. 653584/12, 2013 WL 1343607 at, *20 (N.Y. Sup. Ct. Mar. 11, 2013).

209 Plaintiffs' [Proposed] Amended Complaint for Declaratory and Injunctive Relief at 17, Grocery Mfrs. Ass'n v. Sorrell, No. 5:14-CV-117-CR (D. Vt. Sept. 11, 2014).

210 See, e.g., Abigail Alliance for Better Access to Dev. Drugs v. Eschenbach, 495 F.3d 695 (D.C. Cir. 2007) (holding that terminally ill adult patients had no fundamental right protected by the Due Process Clause to have access to investigational drugs, after surveying the long history of safety and efficacy regulation of drugs for personal use); Lange-Kessler v. Dep't of Educ., 109 F.3d 137 (2d Cir. 1997) (holding that the right to privacy does not encompass a woman's right to choose a direct-entry midwife to assist during childbirth). See also Wiseman, Samuel R., Liberty of Palate, 65 Me. L. Rev. 737, 744 (2013)Google Scholar (concluding that there is no constitutionally protected right to consume the foods of one's choosing, based on “the long history of curtailment of food choice, and the lack of any constitutional protection or tradition of broadly protecting food rights …”). “[T]he Court declared decades ago its ‘abandonment of the use of the “vague contours” of the Due Process Clause to nullify laws which a majority of the Court believed to be economically unwise.’” In re Late Fee and Over-limit Fee Litig., 741 F.3d 1022, 1029 (9th Cir. 2014) (quoting Ferguson v. Skrupa, 372 U.S. 725, 731 (1963)); see also Phillips, Michael J., Another Look at Economic Substantive Due Process, 1987 Wis. L. Rev. 265 (1987)Google Scholar (describing the rejection of constitutionally protected economic rights).

211 See United States v. Carolene Prods. Co., 304 U.S. 144 (1938).

212 Belzer, Aaron, Putting the “Review” Back in Rational Basis Review, 41 W. St. U. L. Rev. 339, 342-50 (2014)Google Scholar.

213 For a discussion of Lochnerism see Cushman, Barry, Some Varieties and Vicissitudes of Lochnerism, 85 B.U. L. Rev. 881 (2005)Google Scholar.

214 Plaintiffs' [Proposed] Amended Complaint for Declaratory and Injunctive Relief at 15, Grocery Mfrs. Ass'n v. Sorrell, No. 5:14-CV-117-CR (D. Vt. Sept. 11, 2014) (quoting Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2667 (2011)) (citing Int'l Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 73 n.1 (2d Cir. 1996)).

215 Id. at 11 (citing the findings and statement of purpose of Act 120).

216 Id. at 16.

217 See Int'l Dairy Foods Ass'n, 92 F.3d at 73 (holding that “strong consumer interest and the public's ‘right to know’”–in contrast to “health and safety concerns”–are “insufficient to justify compromising protected constitutional rights”).

218 In addition to citing Int'l Dairy Foods Ass'n, the plaintiffs quote the Supreme Court's use of the term “governmental interest” in IMS Health. Plaintiff's Proposed Amended Complaint for Declaratory and Injunctive Relief, supra note 214, at 15. By adding emphasis to the word “governmental,” the plaintiffs imply that IMS Health supports the idea that an interest may be deemed non-governmental, but in fact, IMS Health, like Int'l Dairy Foods Ass'n, focused on the substantiality of the governmental interest, not its governmental nature.

219 See generally Wiley, Lindsay F., Rethinking the New Public Health, 69 Wash. & Lee L. Rev. 207 (2012)Google Scholar (discussing the public/private distinction as central to debates over the legitimate scope of public health law).

220 Paul Slovic, The Perception of Risk 191 (Ragnar E. Löfstedt ed., 2000).

221 Rick Hills, The Soda Portion Cap, Redux: Why Are New York City's Agencies More Constrained than Federal Agencies?, PrawfsBlawg (July 30, 2013, 3:19 PM),

222 See Wiley, Lindsay F. et al., Who's Your Nanny? Choice, Paternalism and Public Health in the Age of Personal Responsibility, 41 J.L. Med. & Ethics (Special Issue) 88 (2013)CrossRefGoogle ScholarPubMed.

223 Scott Burris, George at APHA I, Bill of Health (November 12, 2013), (describing a presentation by Wendy Parmet).

224 See Gostin, Lawrence O., Bloomberg's Health Legacy: Urban Innovator or Meddling Nanny?, 43 Hastings Ctr. Rep. 19 (2013)CrossRefGoogle ScholarPubMed; Borden, David P., Commentary, Innovative Policies Under Bloomberg's ‘New’ Public Health, 44 Hastings Ctr. Rep. 6 (2014)CrossRefGoogle ScholarPubMed; Jacobson, Peter D. & Parmet, Wendy E., Commentary, Defending Public Health Regulations: The Message Is the Medium, 44 Hastings Ctr. Rep. 4 (2014)CrossRefGoogle ScholarPubMed; Magnusson, Roger, Commentary, Bloomberg, Hitchens, and the Libertarian Critique, 44 Hastings Ctr. Rep. 3 (2014)CrossRefGoogle ScholarPubMed; Whelan Parento, Emily, Commentary, The Affordable Care Act and the Need for Public Health Leadership, 44 Hastings Ctr. Rep. 7 (2014)CrossRefGoogle Scholar.

225 Hills, supra note 221.

226 N.Y. Statewide Coal. III, 16 N.E.3d 538, 548 (N.Y. 2014).

227 See generally Ashby Hardesty, B. Jr.,, Joe Camel Versus Uncle Sam: The Constitutionality of Graphic Cigarette Warning Labels, 81 Fordham L. Rev. 2811 (2013)Google Scholar; Patrick, Bradford J., Snuffing out the First Amendment: The FDA Regulation of Tobacco Company Advertising and Sports Scholarships Under the Federal Food Drug and Cosmetic Act, 8 Marq. Sports L. J. 139 (1997)Google Scholar; Arthur, Ashley, Note, Combating Obesity: Our Country's Need for a National Standard to Replace the Growing Patchwork of Local Menu Labeling Laws, 7 Ind. Health L. Rev. 305 (2010)Google Scholar.

229 Hawaii's Big Island Bans Biotech Companies & GMO Crops, Huffington Post (Nov. 19, 2013, 10:01 PM),

230 Noah, Lars, Genetic Modification and Food Irradiation: Are Those Strictly on a Need-to-Know Basis?, 118 Penn. St. L. Rev. 759, 760-69 (2014)Google Scholar.

231 See, e.g., Alexander C. Wagenaar & Kelli A. Komro, Natural Experiments: Design Elements for Optimal Causal Inference 24 (2011), (concluding that “results from actual field implementations of laws and regulations are more persuasive to policy-makers, public health practitioners, and citizens, facilitating diffusion of successful approaches to other jurisdictions, resulting in major improvements in population health”);. Burris, Scott et al., Making the Case for Laws that Improve Health: A Framework for Public Health Law Research, 88 Milbank Q. 169, 185-88 (2010)CrossRefGoogle ScholarPubMed (explaining how changes in law can form the basis for research regarding the law's efficacy and guide policy development)

232 See generally Kysar, supra note 36.

233 Douglas A. Kysar, Regulating from Nowhere 112 (2010).

234 Id. at 114.

235 Mark Sagoff, The Economy of the Earth 70 (1988).

236 Kysar, supra note 233, at 3.

237 Id. at 1.

238 Id. at 2.

239 See, e.g., Beane, Dorothea, Aids Crisis and the Health Care Community: Public Concerns Triggering Questionable Private Rights of Action for Emotional Harms and Legislative Response, 45 Mercer L. Rev. 633 (1994)Google ScholarPubMed.

240 See generally Rachlinski, Jeffery J., The Uncertain Psychological Case for Paternalism, 97 Nw. U. L. Rev. 1165 (2003)Google Scholar.

242 See Wiley et al, supra note 222; Wiley, Lindsay F. et al., Adventures in Nannydom: Reclaiming Collective Action for the Public's Health, 43 J.L. Med. & Ethics 73 (2015)CrossRefGoogle ScholarPubMed.

243 Kysar, supra note 233, at x.