1 / 37

2006 CDC Diabetes and Obesity Conference May 18, 2006 The Use of Zoning to Restrict Access to Fast Food Outlets: A Po

2006 CDC Diabetes and Obesity Conference May 18, 2006 The Use of Zoning to Restrict Access to Fast Food Outlets: A Potential Strategy to Reduce Obesity. James G. Hodge, Jr., J.D., LL.M.

betty_james
Download Presentation

2006 CDC Diabetes and Obesity Conference May 18, 2006 The Use of Zoning to Restrict Access to Fast Food Outlets: A Po

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. 2006 CDC Diabetes and Obesity Conference May 18, 2006 The Use of Zoning to Restrict Access to Fast Food Outlets: A Potential Strategy to Reduce Obesity James G. Hodge, Jr., J.D., LL.M. Associate Professor, Johns Hopkins Bloomberg School of Public Health; Executive Director, Center for Law & the Public’s Health at Georgetown and Johns Hopkins Universities

  2. Principle Objectives • Discuss (briefly) the connections between fast food and obesity • Examine the legal theories for regulating fast food • Explore the legal bases for zoning • Determine possible effects of zoning on consumption of fast food • Assess zoning as a tool for creating incentives to healthier eating habits • Highlight case law supporting zoning of fast food outlets

  3. Major Resource: • Center for Law and the Public’s Health, The Use of Zoning to Restrict Fast Food Outlets: A Potential Strategy to Combat Obesity Julie Samia Mair, Matthew Pierce, Stephen P. Teret • See also the Center’s Companion Manuscript: City Planner’s Guide to the Obesity Epidemic: Zoning and Fast Food • Funded by CDC’s National Center for Environmental Health • Available online at: www.publichealthlaw.net/Research/Affprojects.htm#Zoning

  4. Fast Food - Defined • Inexpensive food that is prepared and served quickly to consumers, often through drive-thru or curbside service, that tends to be high in fat and low in nutritional value • Alternatively stated, fast food isfatty food served fast

  5. Connecting Obesity and Fast Food • Fast foods contribute to the obesity epidemic for many reasons, including: • large, inexpensive portion sizes • high energy density coupled with poor nutrition • frequency of consumption by the average American • ease of availability

  6. Legal Approaches to Limit Fast Food Consumption - 1 There are many legal theories and approaches to regulate or limit fast food consumption among consumers.

  7. Legal Approaches to Limit Fast Food Consumption - 2 • Create Financial Incentives to Encourage Healthier Behaviors • Example - Use of tax incentives to control purchases • Shown to be effective in limiting consumption of tobacco products • Recall the proposed Seattle “coffee” tax

  8. Legal Approaches to Limit Fast Food Consumption - 3 • Require Improvements in Food Quality or Diversity • Example 1 – federal regulations to limit additives to foods served in fast food environments (and elsewhere) • Example 2 – threats of potential regulation can result in similar benefits (e.g., Oreo cookies, sodas in public schools)

  9. Legal Approaches to Limit Fast Food Consumption - 4 • Litigate to Compensate Injured Persons Seeking Recourse Against Fast Food Outlets or other Suppliers of Unhealthy Foods • Example – proliferation of “fast food” suits in recent years • While the success of these claims is limited to date, they raise awareness of the poor quality and effective marketing of fast foods, especially related to children

  10. Legal Approaches to Limit Fast Food Consumption - 5 • Control Marketing/Advertising of Fast Food Outlets • Example – FCC limits on content and amount of advertising during children’s programming, including ads related to fast food outlets • Though potentially useful, First Amendment “commercial speech” protectionslimit scope

  11. Legal Approaches to Limit Fast Food Consumption - 6 • Limit Access to Fast Food Outlets through Zoning Requirements at the Local/Community Level

  12. Essential Questions • What is the supporting scientific evidence for zoning laws that address fast food outlets? • What underlies the enactment of zoning laws that limit, restrict, or regulate fast food outlets? • Have these zoning laws withstood judicial scrutiny?

  13. Basic Definitions - 1 • Zoning- action by the state, or by a city under delegated authority, to control: • the heights of buildings or structures (e.g., signage) • the amount of free space in a community • legitimate uses of buildings and lots (aka. “use zoning”).

  14. Basic Definitions - 2 • Police Power- the inherent authority of government to protect the health, safety, and general welfare of the public, which may involve imposing restrictions on private rights. • Home Rule –the delegated authority of a local government to regulate on matters of local concern • “Arbitrary or Capricious”- laws that are not rationally related to a legitimate governmental purpose under due process.

  15. Zoning as an Incentive to Healthier Eating Habits - 1 • Zoning options can lead to improvements in human nutrition through enabling (+) and limiting interventions (-)

  16. Zoning as an Incentive to Healthier Eating Habits - 2 • Enabling interventions (+) – zoning that leads to or encourages placement of groceries or other food suppliers offering healthy products • Limiting interventions (-) – zoning that limits or restricts the placement or operation of entities, like fast food, that offer less healthy choices

  17. Zoning to Create a Healthier Food Retail Market Types of Use Zoning Conditional Performance Incentive

  18. Conditional Zoning • Definition: site-specific designation of uses of buildings or properties • Example: rezoning of a residential area to only allow the development of restaurants that are not fast-food restaurants • Challenges: “spot zoning,” “contract zoning” • Justification: “Public interest test”

  19. Incentive Zoning • Definition: construction or offering amenities that benefit the public • Example: provision of incentives to developers to build a health food store • Challenges: “contract zoning” • Justification: trade-offs are predetermined

  20. Performance Zoning • Definition: delineate specific standards that any user of the land must adhere to • Example: require a fast food restaurant to offer a minimum number of healthy choices • Challenges: standards must be rationally related to a legitimate governmental objective • Justification: promotion of public health and general welfare

  21. Two Major Themes of Zoning Laws to Limit Fast Food Outlets Bans Restrictions Fast Food Outlets/ Drive-through Service Quotas “Formula” Restaurants Density of Fast Food Outlets Application to Certain Areas Distance from Other Uses

  22. Banning Fast Food Outlets or Drive-through Services • Example: Zoning Bylaw of the City of Concord, MA bans fast food and/or drive-through restaurants • Justification: • Lessen traffic congestion • Preserve the aesthetic qualities of the community

  23. Banning “Formula” Restaurants • Example: City of Calistoga, CA bans “formula” restaurants (e.g., franchise or chain establishments) • Justification: Preserve the uniqueness of the community to preserve viable visitor industry

  24. Banning Fast Food in Certain Areas • Example: San Francisco, CA prohibits “formula retail uses” (including fast food outlets) in its Hayes-Gough Neighborhood Commercial District • Justification: • Protect vibrant small business sector • Preserve the distinctive character of the district

  25. Restrictions through Quotas • Example: Berkeley, CA restricts number of fast food restaurants in its Elmwood Commercial District • Justification: • Preserve the shopping area that serves the surrounding community • Preserve the character of the neighborhood

  26. Restrictions - Density Requirements • Example: Town of Warner, NH: “No fast-food or drive-in restaurant shall be located on a site, lot or parcel within two thousand (2,000) feet of any other site, lot or parcel occupied by another fast-food or drive-in restaurant....” • Justification: • Encourage the growth of other businesses • Maintain compatibility with rural character of the community

  27. Restrictions - Distance from Other Uses • Example: Detroit, MI: certain, fast food restaurants may not be built within 500 feet of an elementary, junior high, or senior high school • Justification: Potential to create a nuisance (e.g., litter, noise, odors, loitering, traffic)

  28. Constitutionality of Zoning Laws • Courts have upheld these zoning laws on the basis of: • public health objectives(e.g., traffic concerns, pedestrian safety) • non-public health objectives (e.g., preserving neighborhood characteristics, economic considerations)

  29. Cases Concerning a Public Health Objective • Bellas v. Planning Board of Weymouth (Massachusetts, 2002) Appellate court affirmed that the Planning Board of Weymouth was justified in denying a drive-through window permit for a Dunkin Donuts that would jeopardize pedestrian safety (specifically children at nearby elementary school)

  30. Cases Concerning a Non-Public Health Objective • Bess Eaton Donut Flour Company, Inc. v. Zoning Board of Review of Town of Westerly (Rhode Island, 2000) Superior Court of Rhode Island upheld the decision of the Westerly Zoning Board of Review to deny a request by Bess Eaton Donut Flour Co. to develop a bake shop with drive-through services because it would adversely impact the neighborhood.

  31. Recent Developments - 1 • Nantucket, Mass. • “Formula” restaurants banned from downtown “in order to maintain a unique retail and dining experience” (April 2006) http://www.newrules.org/retail/nantucket.html

  32. Recent Developments - 2 • Cape Elizabethtown, Maine • Proposal to amend zoning ordinance to prohibit “formula” or fast food restaurants in the business districts (March 2006) http://www.capeelizabeth.com/news/fastfood.html

  33. Recent Developments – 3 • Ogunquit, Maine • Voters approve a zoning change banning all “formula” restaurants from the town (November 2005) www.mainetoday.com

  34. Challenges to Increased Use of Zoning to Combat Obesity - 1 • Will legal support for zoning to restrict access to fast food outlets continue if express purpose is to help American consumers improve their choices of food intake?

  35. Challenges to Increased Use of Zoning to Combat Obesity - 2 • Will additional constitutional concerns (e.g., due process, equal protection, commerce clause) arise if zoning is recast principally as a tool for public health improvement?

  36. Challenges to Increased Use of Zoning to Combat Obesity - 3 • To counter extreme variation in local zoning practices, can (or should) a national standard or model for use zoning be developed?

  37. Final Thoughts • For more information about these issues or the Center please contact me or my Center colleagues. • James Hodge – jhodge@jhsph.edu • Julie Samia Mair – jmair@jhsph.edu • Stephen P. Teret – steret@jhsph.edu • Please also visit our website at: www.publichealthlaw.net

More Related