1. 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 Publics Health at Georgetown and Johns Hopkins Universities

2. 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. 3 Major Resource: Center for Law and the Publics 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 Centers Companion Manuscript: City Planners Guide to the Obesity Epidemic: Zoning and Fast Food Funded by CDCs National Center for Environmental Health Available online at: www.publichealthlaw.net/Research/Affprojects.htm# Zoning www.publichealthlaw.net/Research/Affprojects.htm# Zoning

4. 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 is fatty food served fast

5. 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. 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. 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. 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. 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. 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 childrens programming, including ads related to fast food outlets Though potentially useful, First Amendment commercial speech protections limit scope

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

12. 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. 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. 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. 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. 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. 17 Zoning to Create a Healthier Food Retail Market Conditional Types of Use Zoning Incentive Performance

18. 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. 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. 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. 21 Two Major Themes of Zoning Laws to Limit Fast Food Outlets BansRestrictions Fast Food Outlets/ Drive-through Service Formula Restaurants Application to Certain Areas Quotas Density of Fast Food Outlets Distance from Other Uses

22. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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/nantu cket.html http://www.newrules.org/retail/nantu cket.html

32. 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/f astfood.html http://www.capeelizabeth.com/news/f astfood.html

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

34. 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. 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. 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. 37 Final Thoughts For more information about these issues or the Center please contact me or my Center colleagues. James Hodge – jhodge@jhsph.edujhodge@jhsph.edu Julie Samia Mair – jmair@jhsph.edujmair@jhsph.edu Stephen P. Teret – steret@jhsph.edusteret@jhsph.edu Please also visit our website at: www.publichealthlaw.net www.publichealthlaw.net