Cities on the Forefront of Public Health Regulation

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Scholar examines ways that local governments are combating issues like obesity and asthma.

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Former New York City mayor Michael Bloomberg made headlines when he declared that local restaurants could no longer sell sugary drinks larger than 16 ounces. Although courts ultimately struck down the regulation, the “soda ban” stirred public debate on the issue, and drew attention to the efforts of local governments to regulate public health within their jurisdictions.

In a recent paper, Matthew Parlow, the dean of the Chapman University Dale E. Fowler School of Law, analyzes ways that local governments, and in particular, cities, are using their regulatory and land use powers to combat public health issues like obesity and asthma.

As Parlow explains, a growing body of evidence exists indicating that a community’s physical environment can contribute to negative health outcomes. He further connects urban sprawl to increased automobile usage and an uneven distribution of grocery stores between high-income and low-income neighborhoods. Consequently, these physical changes contribute to higher rates of obesity and asthma by encouraging sedentary lifestyles and poor nutrition—a connection that many local governments have taken note of.

In response, cities including San Francisco and New York City have taken steps to improve public health through local regulations and zoning.

Shortly before Bloomberg proposed New York City’s “soda ban,” San Francisco imposed a “happy meal ban” using its general regulatory powers. The ban, which applies to all fast food chains and other restaurants that provide take-out services, prohibits restaurants from including toys with children’s meals unless the meal meets minimum nutrition requirements. These requirements include ensuring that the meal does not exceed 600 calories or contain more than 640 milligrams of sodium. Meals must also contain the minimum amounts of fruits and vegetables required before a restaurant can market it toward children using toys.

The ban’s purpose, Parlow notes, “is to improve the health of children and adolescents in San Francisco by setting healthy nutritional standards for children’s meals sold at restaurants in combination with free toys or other incentive items.”

Yet, it is unclear whether the ban has achieved its intended public health impacts in San Francisco. Commentators have stated that certain fast food chains have circumvented the ban by tweaking the incentive model without changing the nutritional content of their offerings. McDonald’s in particular continues to offer toys in San Francisco, but makes them available with an additional charge of 10 cents rather than automatically including them in children’s meals—a distinction that thus far, remains outside the purview of the ban.

Parlow observes that neighboring states have also taken measures of their own to regulate public health. For instance, Arizona enacted a law that withdraws its cities’ powers to regulate these types of incentive meals. As Parlow states, Arizona’s law eliminates the possibility that any of its cities could follow San Francisco’s lead.

Despite the specter of state preemption, Parlow writes that, by and large, “local government laws aimed at health policy have been both noteworthy and successful.” And apart from enacting new regulations, cities are also using their zoning and land use powers to improve public health outcomes.

New York City, Philadelphia, and Baltimore in particular are using zoning incentives to encourage grocery stores to expand into inner-city neighborhoods. Parlow observes that the lack of grocery stores has created “food deserts” in low-income, urban neighborhoods. In these areas, fresh options are largely unavailable and residents must instead shop for food at liquor stores, convenience stores, and fast food chains.

Unsurprisingly, these communities, Parlow states, “tend to have higher rates of obesity and other attendant health problems because of this lack of access to healthy food options.”

To meet these public health concerns, New York City is encouraging grocery stores to enter neighborhoods identified as being food deserts by reducing minimum parking requirements, and allowing developers to build in areas zoned for light manufacturing. Philadelphia is similarly creating incentives for grocery stores that offer their customers a minimum percentage of fresh foods. Like New York City, Philadelphia provides qualifying grocery stores an exemption from parking requirements, and has loosened restrictions on permitted square footage. According to Parlow, these steps have produced measurable results. For instance, he notes that Baltimore successfully introduced nineteen new grocery stores between 2000 and 2011 by using similar zoning powers.

Critically, these local exercises of regulatory and land use power have also sparked change at the state and federal level. Parlow observes that local laws served as the inspiration for parts of the federal Patient Protection and Affordable Care Act, such as the Act’s provisions requiring restaurants to list calories on their menus. These local changes exemplify new “approaches to combating obesity and other health-related concerns that the federal and state governments have not been successful in addressing” and provide some much-needed innovation in health policy.