American Journal of Law & Medicine

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

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.


Our food system--the food that's available in stores, restaurants, schools, workplaces, and our homes; how it is produced and sold; how it is consumed and by whom (1)--has crucial implications for our health and our environment. Converging food reform movements are fostering coalitions among environmental, public health, alternative food, and food justice advocates who share an interest in equitable access to healthy, sustainably-produced food. Working together, these groups are increasing access to fresh fruits and vegetables through incremental agricultural subsidy and nutrition assistance reforms. (2)

When it comes to the food and beverage products targeted for increased regulation and decreased consumption, however, the priorities of the various food reform movements diverge. While public health advocates are seeking to reduce overconsumption of sugar, salt, and unhealthy fats, environmental and "alternative food" advocates are seeking to reduce our reliance on genetically modified (GM, otherwise known as genetically engineered) foods and our exposure to pesticides, herbicides, and chemically-processed ingredients. (3) As one Internet meme puts it, "There are too many people counting calories, and not enough people counting chemicals." (4) Many public health advocates view measures that target "unnatural" production methods (involving genetic modification and synthetic herbicides and pesticides) as a distraction from more pressing concerns. (5) Some food justice and alternative food advocates are seeking to deregulate unpasteurized dairy products and small-scale food production, adopting a libertarian perspective counter to the proactive government role that public health groups advocate. (6) Moreover, the fetishization of "naturalness" and distrust of the mainstream scientific community evident among many alternative food advocates is the same wellspring from which opposition to public health priorities like vaccination, water fluoridation, and sunscreen use also flows. (7)

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 among food reform advocates than discrete priorities around issues like sugary drinks, genetic modification, or organics. In Part II, I describe four recent cases in which industry groups have challenged the authority of state and local governments to regulate the food system: Grocery Manufacturers Ass'n v. Sorrell (8) (challenging Vermont's disclosure mandate and advertising restrictions for packaged GM foods); Syngenta Seeds, Inc. v. Kauai (9) (striking down Kauai's reporting requirement for GM crop cultivation and buffer zone regulation for high-dose pesticide application); New York. Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health & Mental Hygiene (10) (striking down New York City's portion cap rule for sugary drinks sold in food service establishments); and City of Cleveland v. State (11) (striking down a state law broadly preempting local government authority to ban trans fats and regulate food service establishments in other ways). In Part III, I draw on these case studies to discuss the foundational legal challenges faced by diverse food reformers, even when their discrete reform priorities diverge. I urge a collaborative response to the deregulatory toolkit being used by the food, beverage, and agriculture industries. I conclude in Part IV by exploring the broader implications of cooperation among groups with divergent perspectives on the mainstream scientific community for notions of democratic governance. Environmental and public health experts respond differently to the "irrationalities" (from the public health perspective) or "values" (from the environmental perspective) that permeate public risk perception. (12) I suggest that each of these perspectives adds to our understanding of democratic governance in the face of scientific uncertainty and that greater discourse between the two could have benefits for both.


Our food system is hotly contested territory. In the midst of widespread concern about obesity-related disease and toxic exposures, manufacturers have flooded the market with products touted as "natural," "organic," and "GMO-free," including many that are high in sugar, salt, and fat. Consumers are demanding more information about the food and beverage products they buy and the ways in which they are produced. (13) At a time when federal regulation to protect the public's health, consumers, and the environment has been stymied by legislative inaction and constraints on agency rulemaking, state and local governments have taken on a high-profile role in "regulating to the detriment of politically powerful industries and their allies for the purpose of conferring diffuse benefits on the public." (14) City, county, and state governments have become crucial innovators, particularly in areas such as tobacco control, obesity prevention, Genetically Modified Organisms (GMOs), and pesticide use. Industry groups are responding with increasingly sophisticated litigation and legislation strategies, using the First Amendment, Due Process, Equal Protection, federalism, and separation of powers constraints to challenge and preempt food system regulations. In this Part, I introduce four recent cases that illustrate the complexity of these issues.


A little more than forty years after the discovery of recombinant DNA (15) and twenty years after the U.S. Food and Drug Association (FDA) first approved an additive used to produce GM foods, (16) GM crops and foods are now ubiquitous. About 70-80% of foods purchased for home consumption and sold in restaurants contain at least one GM ingredient. (17) About half of U.S. cropland was seeded with GM crops in 2013, including 93% of soybean acreage and 90% of com acreage. (18) In spite of, or perhaps because of, the dominant presence of GM products in our food system and repeated assurances from federal agencies that they are safe, the majority of Americans express concern about their safety and environmental impacts. (19) In surveys, consumers overwhelmingly favor mandatory labeling of GM foods, (20) though statewide ballot measures in California, Washington, Colorado, and Oregon have been unsuccessful. (21)

Proponents of genetic modification argue that GM products (ranging from bacteria that break up spilled oil to treatments for diabetes and malaria to high-beta-carotene rice that prevents nutrient deficiencies) have given scientists and policymakers new tools for feeding people, saving lives, and protecting the environment. (22) Critics express concerns about health, environmental, and economic impacts. GM foods can introduce new allergens into the food system. (23) GM crops may reduce growers' use of highly toxic herbicides in the short run (by increasing the effectiveness of less toxic alternatives like glyphosate), but in the long run they may simply speed up the development of weeds' resistance to less toxic herbicides. (24) Reliance on GM crops reduces biodiversity. (25) GM seeds contaminate non-GM crops, (26) causing economic harm to growers who wish to certify their products as GM-ffee. (27) The market dominance of GM seeds increases growers' economic dependence on a small number of seed manufacturers. (28) More serious health concerns--ranging from birth defects, to liver failure, to a wide range of cancers--have been raised by GM critics, but are not supported by reputable scientific sources. (29)

There is no federal statute specific to GMOs. (30) Pursuant to the Coordinated Framework for Regulation of Biotechnology, (31) which emphasizes that "regulatory oversight should focus on the characteristics and risks of the biotechnology product--not the process by which it is created," (32) federal agencies treat GM foods as equivalent to foods developed using traditional cross-breeding techniques. (33) GMO producers are subject to generally applicable health, safety, and environmental statutes. (34) The FDA has provided nonbinding guidance on voluntary labeling of GM foods, (35) but has not imposed restrictions on genetic modification in food production. (36) The U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) regulates planting and interstate transportation of GMOs that pose a plant pest risk. (37) The U.S. Environmental Protection Administration (EPA) regulates GM plants that produce substances intended to control pests (called plant-incorporated protectants) for environmental safety and safety for use in food. (38) The EPA also regulates GM microorganisms under the Toxic Substances Control Act. (39) Additionally, agencies taking certain actions with regard to GMOs may be required to prepare Environmental Assessments or Environmental Impact Statements under the National Environmental Policy Act. (40)

Frustrated by the lack of more rigorous regulation of GMOs and the GM production process at the federal level, several state and local governments have stepped in. (41) In May 2014, Vermont became the first state to enact a GM foods labeling mandate. (42) Citing "multiple health, personal, religious, and environmental reasons," (43) Act 120 would require GM foods (44) to be labeled as "produced with genetic engineering," "partially produced with genetic engineering," or "may be produced with genetic engineering." (45) It would also prohibit such foods from being marketed using the words "natural," "naturally made," "naturally grown," "all natural" or "any words of similar import that would have a tendency to mislead a consumer." (46) Violation of either provision would be punishable by civil fines of up to $1000 per product, per day. (47) Act 120 authorizes the Attorney General to adopt rules requiring that mandated labels "include a disclaimer that the Food and Drug Administration does not consider foods produced from genetic engineering to be materially different from other foods" and to harmonize Vermont's labeling requirements with those adopted by other jurisdictions. (48)

In June 2014, the National Association of Manufacturers, the International Dairy Foods Association, the Snack Food Association, and the Grocery Manufacturers Association filed a complaint in federal court alleging that Act 120: (1) violates their First Amendment right "to speak freely and the right to refrain from speaking at all"; (49) (2) violates the Fifth Amendment's requirement that "state laws define prohibited conduct with sufficient specificity" so as to afford regulated entities "reasonable notice" and avoid subjecting them to "arbitrary enforcement of the laws"; (50) (3) violates the Commerce Clause's implied prohibition on state regulation of interstate commerce; (51) and (4) is expressly or impliedly preempted by the Federal Food, Drug, and Cosmetic Act (FFDCA), the Nutrition Labeling and Education Act (NLEA), the Federal Meat Inspection Act, and the Poultry Products Inspection Act. (52)

As of this writing, the case was pending in the federal district court, with industry groups, food reform advocates, and other state and local governments watching it closely. GMO labeling legislation has been introduced in more than twenty jurisdictions, including via voter referendum. (53) Commentators have suggested that labeling laws represent the best solution to the debate over the potential health risks of GM foods and have argued that state and local labeling laws should be upheld in the face of constitutional challenges. (54)

The Act 120 case may also have implications for ongoing fraud litigation in the Northern District of California over the deceptive marketing of GM, organic, and conventional foods using terms like "natural." (55) Private parties have filed hundreds of suits in the so-called "food court" (56) alleging deceptive marketing by food and beverage manufacturers and retailers. Many of the suits specifically target companies seeking to capitalize on consumers' growing interest in "natural" products. For example, in Brazil v. Dole Food Co., the plaintiffs claimed that some of the defendant's products (including smoothies and fruit packaged in syrup) are improperly marketed as "all natural," "fresh," "sugar-free," "antioxidant," and "low calorie." (57) In another case, Gitson v. Trader Joe's, the plaintiffs allege that the defendant uses the term "evaporated cane juice" instead of "sugar" on products ranging from yogurt to enchilada sauce to make them seem healthier. (58)


Many of the concerns associated with GMOs focus on the production process, rather than on consumption. The process of developing new GM seeds involves heavy application of pesticides and herbicides. (59) Thousands of GM field trials have taken place in the state of Hawaii, where growing conditions are good year-round. (60) Concerns about biodiversity loss, crop contamination, and exposure to pesticides and herbicides have prompted local governments there to regulate GM producers. (61)

In November 2013, the Council of the County of Kauai adopted Ordinance 960, which would require farms and agricultural companies to disclose the use of restricted-use pesticides or GMOs and create "pesticide buffer zones" to prohibit the use of restricted-use pesticides within specified distances from homes, roadways, and bodies of water. (62) The following month, the Council of the County of Hawaii adopted an ordinance prohibiting open-air cultivation, propagation, and development and testing of GM crops. (63)

While preemption legislation targeting these ordinances was pending in the state legislature, (64) four manufacturers of GMOs and pesticides brought suit against Kauai County to invalidate Ordinance 960, alleging that it: (1) was preempted by the Hawaii Pesticides Law, the Right to Farm Act, the State Planning Act, and the Agribusiness Development Corporation statute, (65) as well as the Federal Insecticide, Fungicide, and Rodenticide Act, the Plant Protection Act, and the FFDCA, which the plaintiffs characterized as intentionally deregulatory; (66) (2) violated the Due Process (67) and Equal Protection (68) rights of the companies; and (3) represented a regulatory taking requiring compensation. (69) The complaint further alleged that the process by which the ordinance was adopted was improper under the state's Open Meetings Law. (70) Four non-profit organizations, including the Center for Food Safety and the Pesticide Action Network of North America, intervened in support of the ordinance. (71)

In Syngenta Seeds, Inc. v. County of Kauai, (72) a federal district judge struck down Ordinance 960 on the ground that state agriculture laws (even in the absence of amendments targeting the ordinance, which failed to pass in the state legislature) vested regulatory authority over pesticides and potentially harmful plants with the state's Board of Agriculture. (73) The County and intervener-defendant NGOs had argued that the absence of explicit reference to county authority in the relevant state agriculture laws indicated that the legislature did not intend for those laws to restrict counties' broad authority to protect health, life, and property (74) or their obligation to protect public trust resources under the state constitution. (75) In rejecting this argument, the district court adopted Dillon's Rule to construe local government authority narrowly (76) and relied upon field preemption analysis. (77) The court found that the Ordinance was not preempted by federal law. (78) Having decided the case on preemption grounds, the court refrained from adjudicating the plaintiffs' other constitutional claims. (79) As of this writing, an appeal was pending in the Ninth Circuit. In November 2014, voters in Maui County approved a referendum that amends the county's charter to impose a moratorium on cultivation of GMOs. (80) Suits were immediately filed by the drafters of the initiative to ensure that the county enforces it and by Monsanto to prevent implementation. (81)


Dietary composition is the leading risk factor contributing to disease burden in the United States. (82) One-third of U.S. adults have high blood pressure and about 14% have high cholesterol--both major risk factors for chronic disease. (83) More than 8% of Americans have been diagnosed with diabetes, with about half as many more estimated to be living with undiagnosed diabetes. (84) Nearly 40% of U.S. adults have abnormal fasting glucose levels designating them as "pre-diabetic." (85) Two-thirds of adults and one-third of children have a body mass index above the healthy range, and 35% of adults, 20% of adolescents, 18% of 6-11 year olds, and 8% of 2-5 year olds are obese. (86)

Until very recently, federal efforts in response to diet-related non-communicable disease threats were largely confined to raising awareness and encouraging physician-patient counseling. (87) After decades of minimal federal action to promote healthy eating, (88) in 2009 Congress enacted The Healthy, Hunger-Free Kids Act (HHFKA) directing the USD A to establish more stringent nutrition standards for school meal programs and other foods available in participating schools. (89) Meanwhile, USDA reformed its nutrition assistance program for Women, Infants, and Children (WIC) with health and nutrition goals in mind. (90) By mid-2010, however, the political climate had shifted. A new federal tax on sugar-sweetened beverages was proposed as part of the Affordable Care Act (ACA), but the proposal was dropped after lobbying from the beverage industry. (91) In the intervening years, the 2009 school food reforms have come under attack in Congress, (92) and a calorie labeling rule for chain restaurant menus promulgated by the FDA pursuant to an ACA directive has languished amidst repeated delays attributed to lobbying by grocery stores, convenience stores, and pizza chains for exemptions and weaker penalties. …

Log in to your account to read this article – and millions more.