Common Legal Issues in Public Health

Efforts to promote commercial tobacco control, healthy eating and active living can implicate many areas of the law, including constitutional issues such as the First Amendment, the Dormant Commerce Clause, the Fifth Amendment’s Takings Clause, as well as Equal Protection, and preemption.


First Amendment

Food and beverage manufacturers and retailers may argue that some regulations designed to promote healthy eating, such as menu labeling laws or policies restricting food advertising in schools, violate their First Amendment rights because they affect how these companies can advertise their products. Opponents to smoke-free laws may claim that smoking bans violate their constitutionally protected right to freedom of speech or right to associate.


Commercial Speech Doctrine

The First Amendment of the U.S. Constitution and the free speech clauses of state constitutions limit the government’s ability to restrain or compel speech. The U.S. Supreme Court has held that the First Amendment also protects the right of businesses to advertise and market their products, but that commercial speech is subject to lesser degree of constitutional protection than political or expressive speech. Government restrictions on the expression of ideas are subject to a high level of scrutiny (“strict scrutiny”), while laws regulating speech about commercial transactions are generally analyzed under an intermediate level of scrutiny known as the Central Hudson test (named after a U.S. Supreme Court decision, Central Hudson Gas & Electric Corp. v. Public Service Commission. Laws, however, that require the disclosure of purely factual commercial information are generally subject to a reasonable relationship test, similar to rational basis review, under which the law’s disclosure requirements must be reasonably related to a legitimate government interest. 

Under the Central Hudson test, a court first asks if the advertising being regulated promotes an illegal activity or is false or inherently misleading. If so, then the speech receives no constitutional protection. If not, then the advertising warrants First Amendment protection and the government’s regulation must meet a fairly high standard: the government must have a substantial interest that it intends to achieve through the restriction; the regulation must directly and materially advance this interest; and the regulation must not restrict more speech than is necessary to achieve the government’s goals – that is, there must be a reasonably close fit between the regulation and the achievement of the government’s objectives.

In recent years, the Central Hudson test has posed a significant obstacle to laws regulating commercial speech in the interests of protecting public health. The U.S. Supreme Court has made clear that laws restricting commercial speech, even those designed to protect the health of children, face significant constitutional hurdles. For example, the Supreme Court has struck down regulations prohibiting tobacco billboards and signs from being located within 1000 feet of schools and other locations where children are likely to be, on the grounds that such a ban limited too much advertising directed to adults about a legal product. 


Forum Analysis

The Court’s free speech analysis also depends on the forum in which the speech occurs. Laws restricting speech in public forums, such as city streets and parks, almost always attract heightened scrutiny. However, laws restricting speech in non-public or limited public forums – that is, places that are not traditionally open to all speakers or advertisers – do not raise the same constitutional concerns. Because a school is considered a non-public forum, regulations limiting advertising in schools are likely to be viewed under a more lenient standard. Generally, governments can regulate in-school advertising as long as the restriction is reasonable and viewpoint neutral. A “reasonable” regulation conforms to the particular school district’s concern in preserving school property for its dedicated use, and a “neutral” regulation restricts all advertising on a given subject and does not discriminate against a particular viewpoint. For these reasons, local government regulations restricting food and beverage marketing in schools are likely to be deemed constitutionally permissible under the First Amendment.



Another legal issue that proponents of tobacco control laws and healthy eating policies may face is whether such regulations are preempted by state or federal law. Smoke-free regulations, food rating systems, menu labeling regulations and school nutrition standards are just a few public health areas where federal laws and regulations can preempt, or restrict, state and local authority. 

Preemption refers to the ability of a higher level of government to prevent or prohibit a lower level of government from regulating in a particular area. The doctrine of preemption stems from the Supremacy Clause of the U.S. Constitution, which establishes that federal law is the “supreme law of the land.” The Supremacy Clause allows for acts of Congress (federal statutes) or federal agencies (agency regulations) to preempt, or invalidate, state or local laws on the same subject.  Similarly, state statutes or state agency regulations can preempt local laws.

There is a basic presumption against federal preemption of state or local law. That presumption is stronger when the state or local regulation in question involves matters of public health or safety. Legislation aimed at protecting public health is traditionally seen as a matter of local concern, to be carried out by state and local governments under their police powers. Despite this presumption, federal laws or regulations can preempt state or local public health laws when federal law expressly or impliedly occupies the entire field of regulation in a particular area. Congress may expressly state in a federal law, or a court may conclude based on legislative history, that uniform federal regulation is desirable in a particular context.  Similarly, state law may exclusively regulate certain matters that impact public health, depriving local governments of the ability to pass ordinances or regulations on the same subject.


Types of Preemption

Federal law can preempt state or local law in several different ways: 

  • A federal statute or regulation may explicitly say that no state or locality can regulate in a given area. This is known as express preemption
  • Even where a federal statute or regulation is silent on the issue, a court may find that an area has been so comprehensively regulated by the federal government in the past that Congress clearly intended for the federal government to occupy the field and not leave room for states and localities to act. This is known as field preemption.
  • Finally, preemption may occur when there is a conflict between federal and state or local law. This is known as conflict preemption. When a state or local law stands in direct conflict with a federal law, courts will generally hold that the federal law preempts the lower laws. Courts find that a direct conflict exists when it is not possible for a regulated entity to comply with both a federal and a state or local mandate at the same time. Even in the absence of a direct conflict, a state or local law may be deemed preempted if it stands as an obstacle to the full accomplishment of the objectives of Congress in passing a federal law.


Takings Clause

The Fifth Amendment’s Takings Clause may create another potential obstacle for healthy eating policies, particularly those involving land use regulation. This claim has also been raised by opponents to smoke-free laws – often restaurants and other businesses that are dependent on the patronage of smokers.

The Takings Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides that the government may not take private property for public use without providing just compensation to the owner. A taking may occur in three different ways. First, if the government takes permanent physical occupation of a landowner’s property, such as through its eminent domain power, a physical taking has occurred and the government must pay just compensation to the owner for the value of the property appropriated. A second type of taking occurs when a government regulation deprives a property owner of all economically viable use of their property. This is known as a complete regulatory taking. Courts rarely find that regulations result in complete regulatory takings and render land completely commercially nonviable. A third type of taking occurs when a government regulation imposes a burden on one individual property owner that should, in all fairness, be borne by the public at large. This is known as a partial regulatory takingTo determine whether a partial regulatory taking has occurred, courts will examine the following factors: (1) the economic impact of the regulation; (2) the degree of interference with the owner’s reasonable “investment-backed expectations”; and (3) the character of the governmental action. In practice, few land use restrictions are deemed to be compensable takings under this three-part analysis.

A land use regulation is more likely to inspire a takings challenge when it prohibits a use that was previously permitted. For this reason, some states’ laws specifically exempt  or “grandfather” preexisting uses of land that become nonconforming when local zoning ordinances are amended, or they require that any new land use regulation will not apply to existing business concerns for a particular period of time.

Prospective regulations are less likely to raise constitutional concerns than ordinances that are retroactive. For example, a complete ban on fast food restaurants in a particular area where they already exist, or an ordinance retroactively regulating the density of fast food restaurants by requiring such establishments to be spaced a particular number of feet from one another, are more likely to invite scrutiny. However, a requirement that developers set aside a certain amount of green space for recreational activity in future developments would be unlikely to trigger a takings challenge.


Equal Protection Arguments

The Fifth and Fourteenth Amendments guarantee all persons equal protection of the law. Laws that discriminate against a protected class or impinge on a fundamental right are strictly scrutinized and rarely pass. If, however, a law does not affect a fundamental right or a protected class, it need only be rationally related to a legitimate state interest. Equal protection challenges to smoke-free ordinances typically fall into categories: equal protection of smokers and that of business owners. Both arguments generally fail to prevail, since they are based on the ill-conceived premise that smoke-free ordinances somehow “discriminate” against smokers or business owners.


Void for Vagueness Doctrine

The “void for vagueness” doctrine is derived from the Due Process Clause of the Fifth and Fourteenth Amendments. According to the U.S. Supreme Court, “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Smoke-free ordinances are sometimes challenged on the ground that a word, phrase, provision, requirement – some language in the text – is unconstitutionally vague. Although the vast majority of these claims fall, the frequency with which they are raised points to the need for clarity and precision in the drafting of legal documents.


Dormant Commerce Clause

The Commerce Clause of the U.S. Constitution grants Congress the “power … to regulate commerce … among the several states.”  U.S. Const., art. I, § 8, cl. 3. The courts have found in this provision an implicit, or dormant, limitation on the ability of states and localities to pass regulations that affect interstate commerce.

Under the Dormant Commerce Clause, a state or local regulation may be invalidated if it facially discriminates against out-of-state businesses or has the effect of favoring in-state economic interests over out-of-state interests. Thus, laws which basically amount to economic protectionism for in-state businesses will be struck down. Even if a state or local regulation is non-discriminatory, if it has an effect on interstate commerce, it may still be invalidated under the Dormant Commerce Clause. A court will use a balancing test to determine whether the burden imposed on interstate commerce outweighs the local benefits to be gained by the regulation. Under this test, the burden on interstate commerce must be significant. A state or local regulation is considered a valid exercise of the police power unless it imposes a burden on commerce that is “clearly excessive in relation to the putative local benefits.” In general, courts are more inclined to favor the regulation when the local benefits involve matters of public health, as opposed to, for instance, preservation of the local or historic character of a particular area. 

For example, a local ordinance in Florida banning all formula restaurants, which was defined to include all chain fast food restaurants, was deemed to violate the Dormant Commerce Clause by a federal appeals court. The appellate court found that the ordinance's complete prohibition of formula restaurants “serves to exclude national chain restaurants from competition in the local market.” The ordinance’s stated purposes included preservation of the locality’s “unique and natural,” “small town” community characteristics, and avoiding increased traffic and litter. Although public health benefits were likely to flow from an ordinance that limited restaurants selling calorically dense foods, obesity prevention was not cited as one of the ordinance’s purposes. 

Public health lawyers can help draft laws, policies and regulations that are clear and specific, and can help identify legal loopholes and other issues that could leave legislation vulnerable to legal challenge.