Bloggers

FDA: Preemption and Menu Labeling

Monday, July 19, 2010

by

The critical issue of preemption is missing from FDA’s recent request for comments on new menu labeling regulations.  Strange, given how important preemption is to the restaurant chains.  (Pre-emption Of State And Local Menu Labeling Laws Good News For Franchise Restaurants)

Federal (and state) preemption of smokefree laws has been one of the tobacco industry’s top goals for decades.  But so far, the tobacco industry has failed to pass federal preemption.

Not so with menu labeling.  The menu labeling provisions (and preemption) are part of the health care reform legislation enacted in March.  In spite of the fact that more than 19 states or local jurisdictions have already passed menu labeling laws, Congress preempted state and local laws “of the type” required by federal law.  The new law does exempt chains of under 20 outlets and allows for “a warning concerning the safety” of a food or component of food.  But the rapidly growing grassroots movement for meaningful menu labeling may never recover.

Given that President Obama issued a memo last May opposing preemption in all federal rulemaking, it is especially odd that the FDA has not addressed this central issue up front.  As the President says in his memo to the heads of all departments and agencies, “Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.”  Hopefully, the FDA will consider the President’s comments as it decides exactly how much state and local authority to strip away.

14 Comments to FDA: Preemption and Menu Labeling

Matt
August 30, 2010

Interesting topic. Just FYI – the Ohio legislature preempted local menu labeling laws a few years ago, restricting legislative authority to the state department of Agriculture. I wonder if other states have done the same.

mark@preemptionwatch.org
August 30, 2010

California also passed preemptive state menu labeling legislation just before the federal menu labeling preemption passed. A number of people are working on the issue of whether states (and locals) can still take some action of their own on menu labeling – like the Rudd Center at Yale and NPLAN (the National Policy and Legal Analysis Network on Obesity).

[...] what I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never [...]

[...] I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never recover.” He [...]

[...] what I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never recover.” He [...]

[...] health lawyer Mark Pertschuk noted, “The rapidly growing grassroots movement for meaningful menu labeling may never recover.” He [...]

[...] what I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never [...]

[...] what I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never [...]

[...] what I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never [...]

[...] what I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never [...]

[...] what I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never [...]

[...] what I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never [...]

[...] what I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never [...]

[...] what I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never recover.” He [...]

Leave a comment

Blog

  • Risk of Preemption in the Smoke-Free Housing Movement

    Over the last few years, the movement to promote smoke-free policies for multi-unit housing has been extremely successful.  Thousands of privately own apartment buildings have voluntarily implemented policies prohibiting or significantly restricting smoking in common areas, individual units, on patios and balconies and on the entire property.  Public housing authorities…

  • IOM Takes the Lead on Local Public Health and Preemption

    The Institute of Medicine has addressed federal and state preemption in a new report on law and policy in public health. Among the most authoritative, and unbiased, voices in public health, the IOM has concluded that federal and state preemption should be avoided “unless there are compelling reasons to the…

  • Preempting a movement for childhood obesity prevention

    Taking a well-worn page from the playbook of the Tobacco Industry, the fast food industry is quietly, and so far successfully, eliminating local control over nutrition policy. In March, the Arizona legislature passed a preemption bill written by the Arizona Restaurant Association.  The new law, which goes into effect in July, takes away the authority…

  • Preemption threatens grassroots fire prevention movement

    About 3000 Americans die in home fires every year and thousands more are injured. Home fires are the greatest cause of fire deaths and injuries, and children under five and older adults face the highest risk. One of the great public health success stories of the past decade is the grassroots movement for…

  • Preemption should be the exception, not the rule

    There’s been bad news on the federal preemption front recently, but there’s some good news, too. Last month, the Administrative Conference of the United States published a Recommendation for the first time in fifteen years—about preemption in federal rulemaking. The Recommendation explains a Clinton-era Executive Order (that builds upon a…

News

  • Regulating Guns in New Orleans: An Op-Ed

    Louisiana is one of 42 states…that prohibits any political subdivision from passing an ordinance or regulation concerning the sale, purchase, or ownership of guns that’s more restrictive than state law.

  • Cleveland files in court to keep its ban on trans fats

    Jackson was joined…by council members Phyllis Cleveland and Joe Cimperman… Cleveland, council majority leader, noted that she had voted against the trans fat ban last year…
    “But I stand here in support of our mayor and our partners,” she said… We see our city power being attacked by Columbus… [O]ur right to govern ourselves is being eroded.”

  • IOM Report: Revitalizing Law and Policy

    “[U]nless there are compelling reasons to the contrary, the federal government ought not preempt state and local authority in advancing the public’s health.”

  • Governor blocks limits on sprinkler rules

    By TOM FAHEY State House Bureau Chief CONCORD — A second legislative attempt to block local fire and planning officials from setting rules on residential…

  • Local Laws Fighting Fat Under Siege

    NY Times, June 30, 2011 By STEPHANIE STROM Several state legislatures are passing laws that prohibit municipalities and other local governments from adopting regulations aimed at…

Resources

› Fact sheet

› Glossary

› Links

› Preemption Framework

› IOM Presentation