American Journal of Law & Medicine

What's in Store: A Vision for Healthier Retail Environments through Better Collaboration

I. INTRODUCTION

Thousands of small dealers who are barely able to make a living ... would be cut off from supplying their customers with milk, butter, [etc.], which they need for use on Sundays, causing them a very serious loss and great inconvenience to thousands of people ...

L.J. Callanan, grocer in New York City, March 16, 1903 (1)

In 1903, the New York state legislature considered requiring grocers to close on Sundays in response to demands from religious groups. (2) L.J. Callanan, a grocer in New York City, spoke out against this proposal in a letter to the editor of the New York Times, noting the importance of small grocers to communities and the challenges of running a low-margin business. (3) Today, just as in 1903, small food retailers--corner stores, gas stations, and convenience stores--continue to operate on thin margins and play a substantial role in their communities. (4) They include the place around the corner where one grabs a pack of cigarettes, the peddler of snacks to kids on the way home from school, and the one-stop shop for a six-pack and a few gallons of gas on the way home from work.

Although the role of these small stores in communities has not changed much in over 100 years, public health concerns and practice have changed a great deal. When L.J. Callanan wrote his letter, the top three leading causes of death in the United States were pneumonia, tuberculosis, and diarrhea and enteritis, all infectious diseases transmitted easily in the crowded cities of that era. (5) Now, the top three leading causes of death are heart diseases, cancer, and chronic lower respiratory diseases, all chronic diseases linked to tobacco use, poor diet, and alcohol consumption. (6) In 2000, nearly forty percent of deaths in the United States were caused by these factors, whereas the next six leading causes of death combined accounted for less than ten percent of deaths. (7)

People of color and people with lower income experience the brunt of these diseases. (8) The connection between health and environment is never more apparent than when one compares stores in a low income neighborhood to those in a higher income neighborhood. For example, in Baltimore, supermarkets in lower income neighborhoods offer significantly fewer healthy food options, such as fresh fruits and vegetables, skim milk, and whole wheat bread, than supermarkets in higher income, predominantly white neighborhoods. (9) Chain supermarkets in low-income neighborhoods are even designed to promote low-nutrient foods more aggressively than the same chain markets in higher income neighborhoods. (10) Communities of color and lower income neighborhoods also have more liquor stores and higher densities of tobacco retailers than other communities. (11)

Retailers affect the health of communities, particularly in communities experiencing health disparities. Many retailers' business models are currently based on selling products linked to the leading causes of death in America. If we are to reduce chronic disease rates and eliminate health disparities, the public health community needs to look at the whole store and how it affects the surrounding community, with the goal of creating conditions in which the store can thrive by contributing to the health, not the death, of the community.

Our organization, ChangeLab Solutions, began working with California health departments on tobacco control nearly two decades ago. We have seen the evolution and effectiveness of tobacco retail regulation over that period, and we have applied many of those lessons to our work in obesity prevention. Until recently, though, our tobacco and nutrition policy staff operated largely independently. We realized that we were missing key opportunities to use the same tools and draw upon the same legal theories that have been tested in tobacco control for our obesity prevention work. This comprehensive approach to the retail environment has benefited our work, and we believe that local health departments and governments could benefit from a similar approach.

Local and state governments have addressed retail sales of tobacco, food, and alcohol through a variety of voluntary and mandatory regulatory approaches. Most tobacco and alcohol retail interventions involve mandatory regulations, whereas nearly all food-related strategies have been voluntary. The work of health departments also tends to be segregated by risk factor, with tobacco control staff operating separately from nutrition staff, who operate separately from substance abuse staff. (12)

Health department staff who work with retailers on any issue should be coordinating their efforts. Collaboration would allow the staff to share their deep, and often hard won, expertise and find ways to make the whole retail environment healthier for communities. It would also allow the department to identify redundancies in regulating these businesses, which could free up resources for the department to work on other health issues and improve the interactions between government and businesses.

Our vision for a comprehensive approach to the retail environment also entails treating nutrition as an equally important factor for health as tobacco and alcohol. Although many places in the United States have robust regulatory schemes for tobacco and alcohol sales, there has been a reluctance to apply similar regulatory tools to require the provision of healthy foods or to limit access to unhealthy foods. Given that poor diet is responsible for nearly as many deaths per year as tobacco, (13) and increasing evidence has identified specific unhealthy foods and ingredients as major risk factors for chronic disease, (14) the rationale for relying solely on voluntary interventions should be re-examined.

Changing the practice of local and state health departments is easier said than done. Health departments are constantly being asked to do more with fewer resources, and they may not have the support of political leaders or other government agencies, particularly when it comes to new or unfamiliar regulations. However, public health is an evaluative field, constantly asking if what we are doing is evidence based and whether it is working. In that spirit, we present a rationale for this new approach to the retail environment as a way to start a conversation in the public health community broadly, and in individual health departments about whether there is a better way to achieve our shared goals of reducing chronic disease and health disparities in this country.

II. CURRENT STATE OF THE RETAIL ENVIRONMENT AND REGULATION

Each year, the tobacco, food, and alcohol industries spend billions of dollars on in-store marketing. (15) The types of products retailers choose to carry, prices, in-store placement, and promotion (known as the "4Ps" of marketing) play an influential role on consumers' purchasing decisions. (16) Equally influential are the types and number of retail stores in a community. Higher densities of small retail stores--compared with larger grocery stores--often contribute to increased tobacco usage, worse dietary habits, and greater alcohol consumption. (17) As such, strategies that encourage healthier retail practices have become increasingly important to stem this tide and improve community health.

The alcohol and tobacco retail environments are regulated at the federal, state, and local levels for the purpose of protecting public health. For example, a store owner who wishes to sell cigarettes may be subject to federal restrictions around how much nicotine is in a cigarette, (18) state regulations around minimum purchasing age, (19) and local zoning ordinances that prohibit tobacco retailers from locating near schools. (20) In contrast, there is little nutrition-driven regulation in the food retail environment.

Retail regulation must comport with a complex series of federal and state law, and must not infringe on rights afforded to retailers under the U.S. and state constitutions. A detailed discussion of each of the legal and constitutional considerations relevant to the retail environment is beyond the scope of this article, but has been explained elsewhere in the literature. (21) Every community should become familiar with these legal issues (and engage legal counsel) when contemplating new retail regulations.

In this section, we briefly review the connections between tobacco, food, and alcohol sales and health. We also provide examples of the most common local, state, and federal regulations of sales of these products. Table 1, below, organizes these regulations according to whether they target specific products, the broader store environment, or the location of the store within the larger community.

A. TOBACCO SALES AND REGULATION

The retail environment is the tobacco industry's dominant marketing channel. (22) When the Master Settlement Agreement (MSA) (23) in 1998 imposed certain marketing restrictions, such as eliminating billboards and use of cartoon figures in ads, it prompted the tobacco industry to shift the core of its marketing strategy away from more traditional media and toward in-store promotional efforts, including tobacco product displays and price promotions. (24) Today, tobacco companies spend almost eighty-five percent of their promotional dollars on in-store marketing. (25) A substantial portion of this is spent on promotions to reduce the price of cigarettes and tobacco products for price-sensitive consumers. (26)

Partly in response to the lucrative marketing opportunities available in the retail environment, the number of tobacco retailers has also increased substantially. While convenience stores, supermarkets, and pharmacies accounted for eighty percent of U.S. tobacco sellers in 2012, the number of tobacco-only stores has doubled since 1998 to more than 9,000. (27) Similarly, the number of "vape shops"--independent retail stores that sell electronic cigarettes and related accessories--has grown exponentially to 3,500 stores nationwide. (28)

The ubiquity of tobacco marketing in retail stores and the recent growth in the number of tobacco retail outlets increases tobacco usage and hampers cessation attempts among adults. (29) These factors also increase youth experimentation and uptake. (30) Neighborhoods with higher tobacco outlet density may promote smoking among minors not only by making cigarettes more accessible, but also by "normalizing" smoking behaviors. (31) Even low levels of brand exposure (32) can increase the likelihood of youth uptake and brand loyalty. (33) One study found that adolescent smokers preferred to smoke the brand most heavily advertised in the convenience store closest to their schools. (34)

The 2009 Family Smoking Prevention and Tobacco Control Act is the first federal law that regulates the tobacco retail environment. (35) It gives the Food and Drug Administration (FDA) regulatory authority over cigarettes, smokeless tobacco and roll-your-own tobacco, and also provides the authority to regulate all tobacco products in the future. (36) The federal Tobacco Control Act specifically does not preempt local regulation of tobacco retail sales. (37) Beyond this new federal law, state and local health departments typically regulate tobacco retailers. However, only twenty-five percent of local health departments report regulating, inspecting, or licensing tobacco retailers, and most of these are located in only a few states such as California, Massachusetts and New York. (38) Table 1, below, provides examples of common state and local tobacco retail environment policies.

B. FOOD SALES AND REGULATION

Food retailers are the primary sources from which people buy food. (39) Compared with other food retailers, supermarkets generally offer a wider variety of healthful food products at the lowest price. (40) Yet thirty million people--ten percent of the U.S. population--live in low-income areas more than a mile from a supermarket and two million households are more than a mile from a supermarket and do not have a vehicle. (41) Even when a household is close to a supermarket, it still may be in an area rife with fast food restaurants and other junk food purveyors; these areas are known as "food swamps." (42)

When grocery stores are not easily accessible, residents instead frequent their nearby convenience stores and purchase the higher-calorie, lower-nutritional quality foods sold there. (43) Greater access to convenience stores is related to an increased risk for obesity, while better access to a supermarket is associated with a reduced risk. (44) In California, adults who have the most fast food restaurants and convenience stores near them--relative to grocery stores and produce vendors--have the highest prevalence of obesity and diabetes. (45) Teenagers who live near convenience stores have higher body mass indexes (BMIs) and consume more sugar-sweetened beverages than those who live farther away. (46)

Compounding the healthy food access problems in food deserts and swamps are the marketing strategies used by food and beverage companies. Retail stores are often designed to maximize sales of junk food by strategically placing and promoting items to encourage impulse purchases. (47) Indeed, dietary decisions are largely automatic responses to contextual factors--such as the placement (48) of foods--resulting in higher caloric intake and poor dietary patterns. (49) Many unhealthy products are intentionally created for and directly marketed to children. (50) Studies have long shown that children are not only more susceptible to marketing than are adolescents and adults, but also that children have the ability to influence family purchases by nagging and pestering their parents; this ability is often called "pester power." (51) And in fact, five categories of food compose two-thirds of all promotions targeted at children--cereals, fruit snacks, meal products, frozen dessert, and candy. …

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