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

Abstract

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 GMO Labelling 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.

Keywords: health law, public health law, food law, food policy, obesity, genetic modification, healthy eating, organics, sugary drinks, food labeling, trans-fat,