New resource on accessing healthy food in the age of COVID-19. Featuring local government policies that accelerate, prioritize or facilitate food access during the pandemic.
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MUNICIPAL POLICY OPTIONS FOR HEALTHY FOOD ACCESS IN STORES AND RESTAURANTS

Municipal Policy Options for Healthy Food Access in Stores and Restaurants

 

Introduction

Counties, cities, towns, and other municipalities can use a variety of policy tools to improve food offerings in their communities. This resource focuses on ordinances and other formalized municipal policies that address healthy food access in food stores and restaurants. It complements the policy examples and legal strategies included in the “Get” section of the Healthy Food Policy Project’s Food System Crosswalk.

This resource is not meant to be comprehensive; rather it provides a sampling of different approaches from around the country as a guide for healthy food advocates, food policy councils, and local policymakers. In reviewing this resource, please note that there are other legal, community planning, and programmatic strategies not discussed here that can affect store and restaurant environments including, for example, safe food handling laws; urban agriculture laws to increase the ability of local, affordable produce; and efforts to address store and restaurant bicycle, pedestrian, and mass transit accessibility.

In addition, there are other retail or retail-like environments that affect community food offerings that can and should be considered when assessing opportunities to increase healthy food offerings throughout a community, such as government-operated food stalls, cafeterias and vending machines, mobile markets, produce carts, farmers’ markets, market gardens, vending machines, meal programs, food shelves, food pantries, and food bank locations.

Keep in mind that not all policy types will work in all communities and that policies relating to healthy food access can sometimes run up against state and federal preemption issues or other conflict of law issues not discussed here.

 

A Menu of Policy Options for Healthy Food Access

Food Stores

Municipalities can use a range of policy options to support, encourage, or require retailers to improve healthy food offerings in existing stores such as grocery stores, corner markets, and bodegas. Policy can also be used to improve siting of new stores throughout communities or in specific areas that lack sufficient access to healthy food. It can also be employed to empower consumers with knowledge to make healthier choices. Some specific policy examples are provided below.

Tax Laws

Tax Credits and Exemptions

Tax credits and exemptions provide one way to encourage development of grocery stores and improvements at existing stores in priority areas. For example, Prince George’s County, Maryland, offers a property tax credit for up to 10 years for grocery store development and improvement in designated food deserts. To qualify as a “grocery store” for purposes of the credit, at least 20% of a store’s gross receipts must be derived from the sale of fresh produce, meats, and dairy products. The credit applies to offset 75% of any property tax increase that occurs as a result of an increase in assessed property value due to the expansion, renovation, or new construction of a grocery store, or reuse of vacant commercial space for a grocery store.1

The City of Philadelphia, Pennsylvania, uses tax credits to encourage stores to sell healthy beverages. For purposes of the credit, “healthy beverages” are defined as beverages that are “non-alcoholic and do not list any form of sugar-based sweetener . . . or non-caloric sugar-substitute as an ingredient.” The amount of the credit is based on the dollar amount qualifying stores spend to purchase healthy beverages during the year, compared to the amount they spent to purchase those types of beverages the previous year. The maximum credit is $2,000, which qualifying stores may claim against their business and income tax receipts.2

Another model is Washington, DC’s Supermarket Tax Incentives Law, which provides tax exemptions to grocery and other retail food stores as well as restaurants located in specific “priority development areas” of the District. These include exemptions from real property tax, personal property tax, and exemptions from sales and use tax on building materials related to the development of a restaurant, store, or supermarket in a designated area.3

Excise Taxes

Taxes provide one option for improving retail store food environments. One common example is the use of an excise tax on the sale of sugary drinks. For example, Berkeley, California, was the first city to adopt a tax on the distribution of most sugar-sweetened beverages, taxing them at a rate of $0.01 per fluid ounce, as well as the “added caloric sweeteners” used to produce them.4

Similarly, Philadelphia imposes an excise tax of $0.015 per fluid ounce on distributors of beverages sweetened with both caloric and non-caloric sweeteners5. Other cities, including Seattle, Washington; San Francisco, California; Oakland, California; Albany, California; and Boulder, Colorado have also passed laws placing distributor excise taxes on many types of sugary drinks.6

These laws tax the distributor, but as distributors typically pass costs down through the supply chain, the laws can help encourage both manufacturers and retailers to change their product offerings by, for example, shifting to beverages that are not subject to the tax. The laws can also influence consumer behavior by raising the price of sugary drinks.7

In addition, most of these tax laws direct that all or some portions of the revenue should be dedicated to address health equity goals and programs. For example, Seattle uses revenue from their Sweetened Beverage Tax (SBT) fund for a variety of services “intended to expand access to healthy and affordable food; close the food security gap; promote healthy nutrition choices; reduce disparities in social, developmental, and education readiness and learning for children; assist high school graduates entering college; and expand services for the birth-to-five population and their families.”8 In April 2020, the City also allocated $5 million from the SBT fund to create a grocery voucher program to support low-income families facing food insecurity because of the COVID-19 pandemic.9

Although existing sugary drink tax laws are based on beverage volume, another option could be to tax sugary drinks based on the amount of sugar they contain, similarly to the way many places tax alcoholic beverages based on alcohol content.10

Zoning & Land Use Laws

Zoning Requirements

Zoning laws provide another tool to improve retail food environments. They can be used, for example, to require retailers to offer healthy food choices or to curb the density of stores such as gas stations, convenience stores, and “dollar” discount stores that may sell limited and largely unhealthy food offerings.

The City of Hartford, Connecticut, has zoning laws that require convenience stores to dedicate at least five percent of their net floor area to each of five food categories, including fresh fruits and vegetables; whole grains; dairy products (excluding ice cream) and eggs; and canned or dried goods, without added fats, oils, meats, or seasoning (such as dried and canned beans, peas, and legumes).11 The City also prohibits convenience stores and discount variety stores in many of its zoning districts and requires specific use conditions in all districts where they are allowed.12 Additionally, Hartford limits the overall floor space of convenience stores to 3,500 square feet, prohibits siting of convenience stores within less than 1,500 feet of another, and has a similar siting restriction for discount variety stores.13 The law is similar to the Minneapolis and Passaic staple foods ordinances discussed in section II.a.iii.1, below, which rely on licensing provisions, rather than zoning laws.

What are Overlay Districts or Zones?

A resource from the American Planning Association describes an overlay zone as “a zoning district which is applied over one or more previously established zoning districts, establishing additional or stricter standards and criteria for covered properties in addition to those of the underlying zoning district.”14

Likewise, Tulsa, Oklahoma, created a Healthy Neighborhoods Overlay (HNO) district that requires most small box discount stores to be at least 5,280 feet away from each other.15 The HNO is intended to “encourage and streamline grassroots access to fresh meats, fruits and vegetables” and to “encourage a greater diversity of retail activity and purchasing options.”16

Birmingham, Alabama, is one of several cities that has enacted or explored similar policy approaches to restrict the density of food stores with limited fresh food offerings.17 Its zoning code limits overconcentration of small box discount stores within the city’s Healthy Food Overlay District (discussed briefly above).

Zoning Flexibilities and Exemptions

Municipalities may also relax or create exceptions to otherwise applicable zoning requirements to support and incentivize healthy retail. Along these lines, Philadelphia has a law that relaxes zoning height, floor area, density, and parking requirements for new fresh food markets that meet certain accessibility and siting requirements.18 As defined by the city’s code, “fresh food markets” are stores that are “primarily engaged in the sale of grocery products” with at least 5,000 square feet of customer-accessible floor area used for display and sales of a general line of food and nonfood grocery products, with “at least 25 percent of retail inventory by volume . . . in the form of perishable goods, which must include dairy, fresh fruits and vegetables, and frozen foods and that may include fresh meats, poultry, and fish” and “at least 750 sq. ft. of such customer-accessible sales and display area . . . used for the sale of fresh fruits and vegetables.”19

Birmingham, Alabama, has also updated its zoning laws to help increase healthy food retail in the city by creating a Healthy Food Overlay District. Grocery stores in and within a half mile of the Healthy Food Overlay District enjoy reduced parking requirements and larger floor area allowances. District boundaries “are mapped using the low income/low access census tract data identified as food deserts by the USDA.”20 To qualify as a “grocery store,” a business must be a “retail store that provides assorted goods for sale, including but not limited to, food, beverages and personal health items. A minimum of 25% of sales floor area or more than 3,000 square feet of sales floor area dedicated to the sale of fresh or prepackaged meats, fruits, vegetables, and dairy, whichever is greater. Accessory uses may include restaurants, dining areas, and pharmacies.”21

Licensing Laws

Licensing Requirements

Licensing laws can promote healthy retail food environments by, for example, requiring food stores to stock certain types and quantities of staple foods. The Minneapolis, Minnesota, staple foods ordinance was the first ordinance of this kind. It was enacted in 2008, and subsequently amended in 2014 and 2018 to strengthen and refine the requirements.22 The Minneapolis law requires most businesses that are licensed as grocery stores to stock minimum amounts of basic food items, including dairy and dairy alternatives, animal and vegetable proteins, fruits and vegetables, juice, whole grains, and legumes. The stocking requirements were based on the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) and were adjusted in 2018, in part to make them more culturally appropriate for a wider range of the people who live in Minneapolis.23

In 2017, Passaic, New Jersey, also enacted a staple foods ordinance.24 The ordinance requires most retailers that are licensed as grocery stores to provide a minimum level of healthy food.25 It is nearly identical to Minneapolis’s original ordinance and requires milk, cheese, eggs, meat and vegetable protein sources, fruits and vegetables, juice, whole grain cereal, whole grains, canned and dried beans, peas, and lentils.26 The Healthy Food Policy Project website contains further analysis of both the Minneapolis and Passaic staple foods ordinances.

The primary advantage of using business licensing requirements to set minimum standards for offerings in retail settings is that retailers must follow the standards, theoretically resulting in uniform application. However, it is important to consider the potential negative and potentially inequitable impacts of strictly enforcing laws that set required standards. Moreover, a recent evaluation of the Minneapolis staple foods ordinance found low levels of compliance among retailers.27 It remains to be seen whether the recent changes to that ordinance will improve compliance.

Licensing Flexibilities and Exemptions

As with zoning laws, municipalities can also relax licensing laws to incentivize and support healthy retail. For example, the District of Columbia’s Supermarket Tax Incentives law, described above, exempts grocery stores and some other retail food businesses from licensing fees in addition to providing tax exemptions.28

Voluntary Programs

Many municipalities encourage existing stores to stock or promote healthier food items through voluntary, incentive-based programs, which may be administered by local public health or another department or office. One example is the San Francisco’s Healthy Food Retailer Ordinance which provides support to small food stores in underserved areas to sell healthy food. Through the ordinance, which is administered by the Economic and Workforce Development Department, the city offers retailers technical assistance, store redesign help, and access to grants and loans. The city also identifies “underserved areas” and obstacles that deter new retailers from offering fresh, healthy foods, then coordinates existing incentives to remove barriers and develops new incentives to recruit, maintain, and develop healthy food retailers in these underserved areas.29

Baldwin Park, California takes a slightly different approach. Its Healthy Corner Market Policy is a voluntary program that was formally adopted as a city administrative policy. Participating corner market stores receive “silver,” “gold,” or “platinum” participation-level incentives. The stores must stock fresh fruits and vegetables, healthy beverages, and healthy snacks and, depending on their chosen participation level, they must also meet between two to six other program standards. These additional standards include, for example, dedicating 50% of the store’s floor area to specifically designated fresh and healthy foods; providing dedicated candy, tobacco and alcohol-free “healthy checkout lanes,” or offering bottled water for sale at a price lower than any other beverage and displaying it at eye-level in a refrigerated case.30 Incentives include offerings such as a healthy selection toolkit, graffiti removal, assistance with a low-interest loan program for store improvements, and public recognition and other forms of publicity and advertisements.31

Although these types of store-based environmental intervention programs are being continually monitored for effectiveness, there is evidence that they are successful in increasing access to and purchasing of healthy foods among consumers, especially those living in underserved areas.32

 

Restaurants

As with food stores, municipalities can also use policy to encourage better restaurant offerings, including at sit-down restaurants, fast food establishments, delis, cafeterias, and other similar venues. Policy opportunities also exist to explicitly require healthy restaurant offerings, or discourage or prohibit less healthy restaurant offerings and siting. Some examples of how these strategies translate into various types of policy opportunities for restaurants are provided below.

Tax, Zoning & Licensing Laws

Many municipal policies that address healthy restaurant environments do so through health regulations and voluntary programs. However, there are examples where tax, zoning, or licensing laws policy is used. For example, the District of Columbia’s Supermarket Tax Incentives Law, discussed above, provides tax exemptions to qualified restaurants in addition to food stores.33

Excise taxes on certain foods and beverages, such as sugary drinks, are also an option to influence consumer choices and offering in restaurants as well as in stores. These types of taxes are discussed above in section II.a.i.2. For restaurants, sugary beverage excise taxes may apply to bottled and canned beverage offerings as well as to the syrups used to prepare fountain drinks.34

Likewise, zoning can impact where some kinds of restaurants can operate. For example, Hartford, Connecticut, prohibits restaurant drive-up and drive-through facilities for “eating places” in all but three zoning districts—and requires specific use conditions for drive-throughs in two of those three zones.35 Several other communities have similar zoning laws that restrict drive-through food service facilities.36 However, it should be noted that such laws may not necessarily be designed with healthy food access goals in mind; are not always specific to food-service drive-throughs; and may, for example, be enacted for safety or aesthetic reasons.

In addition, some of the other food store tax, licensing and zoning policy examples above could be modified to address restaurant environments.

Food Code and Other Health Regulations

Healthy Default Choice Laws

Healthy default choice laws are a strategy to increase healthier options and can also support consumers who want to make healthier choices. These laws are often found in municipal health and food code provisions.

Healthy default beverage laws for children’s meals are one common example, but the concept could be extended to adult meals and to offerings beyond beverages. Existing default beverage laws for children’s meals typically require restaurants offering children’s meals to provide milk, unsweetened water, or 100 percent fruit juice as the default beverage, but ordinarily allow the customer to get another beverage if they ask. Research has found that many people tend to stick with defaults, and setting defaults has a high range of acceptability among consumers.37 Many municipalities in California passed default beverage laws for children’s meals before the state went on to enact a statewide law.38 For example: Baltimore, Maryland; Lafayette, Colorado; Louisville-Jefferson County Metro Government, Kentucky; Wilmington, Delaware; and New York City have also passed similar laws.39

Labeling and Warning Laws

Labeling and warning laws provide other avenues for municipal action to encourage improved menu offerings and to empower consumers to make informed choices. Where they exist, these laws are often found in municipal health and food safety code provisions. Calorie labeling laws are one example and have been enacted in various jurisdictions including Ulster County, New York; Philadelphia, Pennsylvania; and New York City.40

Under federal law, chain restaurants and similar retail food establishments with 20 or more locations must display calorie information for standard menu items.41 In response to consumer request, they must also provide additional written nutrition information for those items.42 According to the FDA, express preemption provisions of 21 U.S.C. §343-1(a) bar states and localities from creating requirements for nutrition labeling of food that are not identical “to the federal requirements for entities not voluntarily covered by the federal menu requirements.”43

However, municipal governments may extend these requirements to restaurants that are not covered by the federal requirements. For instance, a local governments could require restaurants with 15 locations to also label their menus, rather than just those encompassed in the federal regulation of 20 or more.44 Minneapolis is an example of a city that has considered extending menu labeling requirements to restaurants with fewer than twenty locations. Municipal governments may also enact laws identical to the federal requirements so that they may exercise local enforcement authority.45

In addition to general calorie or other nutrition labeling, warning label laws may provide another opportunity for local action to increase consumer knowledge by specifically alerting consumers when a food item contains a component or a high level of a component with known health risks. For example, New York City has a law that requires covered food establishments to display warning statements on the menu, menu board, or tag next to any menu item that contains 2300 milligrams or more of sodium.46 However, it should be noted that laws in this field are sometimes subject to litigation and therefore should be crafted with consideration for First Amendment and other potential legal challenges.47

Voluntary Programs

As noted above, some localities have used voluntary programs to encourage changes in restaurant environments. In addition to incentivizing restaurants to change their offerings, some of these programs have the benefit of providing information that the restaurant can display to help inform consumers about the available food choices. As with food stores, voluntary, incentive-based programs for restaurants may be administered by a city department with resources to provide technical assistance.

One example of a municipally operated voluntary program is the “Healthy Restaurant Program” in Minneapolis, Minnesota. The program connects small, independently owned restaurants with city health department staff for help in creating and promoting healthy meals. City staff, along with nutrition and culinary experts work with restaurant owners and chefs to create healthier versions of popular menu items, train servers, and help with marketing material to promote the healthier offerings.48 Participating restaurants receive a $500 stipend to cover start-up costs for ingredients and supplies and the city assists in promoting their efforts, including inclusion on the city’s preferred food vendor list.49 Although Minneapolis’ program is not a formal legislative policy, legislation could be used to memorialize and support similar programs.

Another example is San Francisco, California’s Trans Fat Free Restaurant Program, which allows qualifying restaurants to receive a decal and a listing on the city’s Department of Health website as a trans-fat free restaurant.50 The program was formalized in city law in 2008 before the U.S. Food and Drug Administration banned use of partially hydrogenated oils—the primary dietary source of artificial trans fat in processed food—in all manufactured foods. Given this federal legal change, San Francisco’s program may not be as relevant as it was when first enacted, but it provides a framework that might be used for similar technical support and incentive-based programs.51

 

New Innovations and Emerging Opportunities

Local governments are laboratories of innovation for policy solutions to public health challenges, such as how to encourage and support healthy eating in a community. In fact, they are usually the best situated to address community-specific problems.

Birmingham, Alabama, is one jurisdiction that is innovating in this space.52 In addition to the city’s Healthy Food Overlay District discussed above, Birmingham has undertaken a variety of other efforts, including passing legislation to establish a healthy food incentive program that provides qualifying residents with a benefits card to purchase healthy foods,53 creating a fund to offset the cost of grocery store development,54 and taking steps to explore a consumer sales tax rebate for food purchases.55 Birmingham also has taken steps to improve food offerings in places other than restaurants and brick-and-mortar store environments, including policy changes to allow on-site sale of produce at community gardens; increase the number of days farmers’ markets may operate; and make it easier to operate mobile grocery stores in residential districts.56

Local governments throughout the country are exploring other novel approaches. One area that may represent an emerging opportunity is the incentivizing, encouraging, or even requiring retailers to install “healthy” or “family-friendly” checkout lanes which do not display unhealthy snacks. The theory behind this strategy is that removing unhealthy snacks at the checkout lane will remove the impulse for individuals to get a snack as a “reward” for shopping or as a spur-of-the-moment purchase.57 It may also help parents reduce their children’s exposure to sweets and reduce checkout tantrums. While some retailers have voluntarily added healthy checkout lanes,58 government and health advocates may be able to pass policies that encourage or explicitly require them.

Another emerging area of municipal policy relating to food stores and restaurants is emergency response, which became especially prominent during the COVID-19 pandemic. Laws in this area that intersect with healthy retail food access include, for example, laws that control the price of food in food stores and other locations and laws that require businesses to offer special windows of time for food shopping for elderly persons, immunocompromised individuals, or other priority populations. The Healthy Food Policy Project’s COVID-19 Food Access Municipal Policy Index includes several examples of such policies.

 

Conclusion

The above ideas are meant to inspire and open the doors of innovation for communities. For more information or inspiration on how to encourage healthy eating and active living in your community, visit the Healthy Food Policy Project website for a database of policy ideas.

 

Endnotes

1PRINCE GEORGE’S COUNTY, MD., COUNTY CODE subtitle 10, div. 23 (Municode, Municipal Code Corporation, current through Dec. 16, 2019).
2PHILADELPHIA, PENN., CITY CODE title 19, chapter 19-2600, § 19-2604 (American Legal Publishing, current through March 10, 2020); see also, City of Philadelphia, Payments, Assistance & Taxes: Healthy Beverage Tax Credit, CITY OF PHILADELPHIA (Sept. 12, 2019), https://www.phila.gov/services/payments-assistance-taxes/tax-credits/healthy-beverages-tax-credit/.
3CODE OF THE DISTRICT OF COLUMBIA title 47, chapter 38, § 47-3802 (current through May 13, 2020).
4BERKELEY, CAL., MUNICIPAL CODE title 7, chapter 7.72 (Code Publishing Co., current through March 17, 2020); see also Berkeley, Cal., Ordinance No. 7,388-N.S. (December 18, 2014) (imposing a general tax on the distribution of sugar-sweetened beverage products). The term “added caloric sweetener” is defined by the Berkley law to mean “any substance or combination of substances that meets all of the following four criteria: 1. Is suitable for human consumption; 2. Adds calories to the diet if consumed; 3. Is perceived as sweet when consumed; and 4. Is used for making, mixing, or compounding Sugar-sweetened beverages by combining the substance or substances with one or more other ingredients including, without limitation, water, ice, powder, coffee, tea, fruit juice, vegetable juice, or carbonation or other gas. An Added caloric sweetener may take any form, including but not limited to a liquid, syrup, and powder, whether or not frozen.” “Added caloric sweetener” includes, without limitation, sucrose, fructose, glucose, other sugars, and high fructose corn syrup, but does not include a substance that exclusively contains natural, concentrated, or reconstituted fruit or vegetable juice or any combination thereof.”
5PHILADELPHIA, PENN., CITY CODE title 19, chapter 19-4100 (American Legal Publishing Co., current through March 10, 2020).
6SAN FRANCISCO, CAL., BUSINESS & TAX REGULATIONS CODE art. 8; OAKLAND, CAL., CODE § 4.52; BOULDER, COLO., MUNICIPAL CODE title 3, Chapter 16; ALBANY, CA, MUNICIPAL CODE Chapter 4, § 4-13; SEATTLE, WASH., MUNICIPAL CODE title 5, subtitle II, Chapter 5.53; BERKELEY, CA., MUNICIPAL CODE title 7, chapter 7.72.
7See, e.g., Taxing Sugary Drinks, HEALTHY FOOD AMERICA, http://www.healthyfoodamerica.org/taxing_sugary_drinks (last visited May 15, 2020); Oliver Mytton, Dushy Clarke, & Mike Rayner, Taxing Unhealthy Food and Drinks to Improve Health, 344 (e2931) BMJ (2012).
8SEATTLE, WASH., MUNICIPAL CODE chapter 5.53, § 5.53.055 (Municode, Municipal Code Corporation, current through May 11, 2020 legislation).
9SEATTLE, WASH., ORDINANCE No. 126063 (Apr. 1, 2020).
10Taxing Sugary Drinks, HEALTHY FOOD AMERICA, http://www.healthyfoodamerica.org/taxing_sugary_drinks (last visited May 15, 2020).
11HARTFORD, CONN., ZONING REGULATIONS § 3.3.4.E (current through March 5, 2020).
12HARTFORD, CONN., ZONING REGULATIONS Table 3.2-A (current through March 5, 2020); HARTFORD, CONN., ZONING REGULATION §§ 3.3.4E-F (current through March 5, 2020).
13HARTFORD, CONN., ZONING REGULATIONS §§ 3.3.4.E-F (current through March 5, 2020).
14BIRMINGHAM, ALA., ZONING ORDINANCE title I, chapter 8, art. V, section 2 (last visited May 15, 2020).
18PHILADELPHIA, PENN., CITY CODE title 14, chapter 14-600, § 14-603(7) (American Legal Publishing, current through March 10, 2020).
19PHILADELPHIA, PENN., CITY CODE title 47, chapter 14-600, § 14-601(6)(d)(.1) (American Legal Publishing, current through March 10, 2020).
20BIRMINGHAM, ALA., ZONING ORDINANCE title I, chapter 8, art V. (last visited May 15, 2020); BIRMINGHAM, ALA., ZONING ORDINANCE title I, chapter 4, art. II, section 5 (v).
21BIRMINGHAM, ALA., ZONING ORDINANCE title I, chapter 8, art. V, section 2 (last visited May 15, 2020).
22Healthy Food Policy Project, The Minneapolis Staple Foods Ordinance: A novel policy approach to improving healthy food offerings in neighborhoods without full-service grocery stores, HEALTHY FOOD POLICY PROJECT, https://healthyfoodpolicyproject.org/case-studies/minneapolis-mn (last visited December 12, 2019).
23Healthy Food Policy Project, The Minneapolis Staple Foods Ordinance: A novel policy approach to improving healthy food offerings in neighborhoods without full-service grocery stores, Healthy Food Policy Project, https://healthyfoodpolicyproject.org/case-studies/minneapolis-mn (last visited December 12, 2019).
24PASSAIC, N.J., MUNICIPAL CODE part II, chapter 162 (eCode360, current through Jan. 8, 2019, legislation).
25PASSAIC, N.J., MUNICIPAL CODE part II, chapter 162, § 162-1 (eCode360, current through June 18, 2019, legislation).
26PASSAIC, N.J., MUNICIPAL CODE part II, chapter 162, § 162-2 (eCode360, current through June 18, 2019).
27Melissa Laska, STORE Study Team, Minneapolis Staple Foods Ordinance Evaluation Study, U. MINN. (2018).
28CODE OF THE DISTRICT OF COLUMBIA title 47, chapter 38 (current through May 13, 2020).
29SAN FRANCISCO, CAL., ADMINISTRATIVE CODE chapter 59, § 59.4 (American Legal Publishing, current through Nov. 15, 2019).
30City of Baldwin Park, Cal., Staff Report, Approval of Administrative Policy #29 Entitled “Healthy Corner Store Policy” (2014).
31City of Baldwin Park, Cal., Staff Report, Approval of Administrative Policy #29 Entitled “Healthy Corner Store Policy” (2014); see also Baldwin Park, Cal., City Council Regular Meeting Minutes at 4 (Aug. 20, 2014) (memorializing approval of the policy).
32See Guadalupe X. Ayala et al., Efficacy of a Store-Based Environmental Change Intervention with a Delayed Treatment Control Condition on Store Customers’ Intake of Fruits and Vegetables, 16 PUB. HEALTH NUTRITION 1953 (2013).
33CODE OF THE DISTRICT OF COLUMBIA title 47, chapter 38 (current through May 13, 2020).
34SWEETENED BEVERAGE TAX: ILLUSTRATIVE EXAMPLES, CITY OF SEATTLE, https://www.seattle.gov/Documents/Departments/FAS/BusinessLicenseTax/SBT-Examples.pdf.
35HARTFORD, CONN., ZONING REGULATIONS Table 3.4-A (current through March 5, 2020).
36See, e.g., BRENTWOOD, CAL., MUNICIPAL CODE § 17.468.003 (Quality Code Publishing, current through January 2020) (requiring “special consideration” and a conditional use permits for drive-through permits for restaurants and cafes in the “Neighborhood Commercial” area, with the exception of one specific business location) ; CANNON BEACH, OR., CODE § 17.22.040 (2019); RANDOLPH TWP., N.J., LAND DEVELOPMENT § 15-29.3 (2019) (including “drive-in restaurants” in a list of prohibited uses in its general commercial district).
37Y. Tony Yang and Sara Benjamin Neelon¸ Recent Progress in Children’s Meals Laws in Restaurants in Baltimore City and California State: Making a Healthy Beverage Option the Default Choice, 123 PREVENTIVE MEDICINE 160 (June 2019).
38See BERKELEY, CAL., MUNICIPAL CODE § 12.72 (Code Publishing Co., current through Mar. 12, 2019); CATHEDRAL CITY, CAL., MUNICIPAL CODE chapter 5.92 (Quality Code Publishing, current through Mar. 29, 2019); DAVIS, CAL., CODE chapter 17, § 17.02 (Quality Code Publishing, current through May 7, 2020); STOCKTON, CAL., CODE § 5.70; CITY OF PERRIS, CAL., MUNICIPAL CODE chapter 7.46 (Municode, Municipal Code Publishing, current through January 31, 2020); SANTA CLARA COUNTY, CAL., CODE § A18-350 et seq. (Municode, Municipal Code Publishing, current through April 27, 2020).
39BALTIMORE, MD., HEALTH CODE § 6-509 (current through 2019); WILMINGTON, DEL., CODE OF ORDINANCES § 5-2 (Municode, Municipal Code Publishing, current through April 29, 2020); CITY OF LAFAYETTE, COL., CODE OF ORDINANCES chapter 55, art. IX; LOUISVILLE-JEFFERSON COUNTY METRO GOVERNMENT, KY., CODE OF ORDINANCES § 118.0; NEW YORK CITY, N.Y., ADMIN. CODE §17-199.11 (American Legal Publishing Co., current through March 29, 2020).
40ULSTER COUNTY, N.Y., CODE §§ 205-1, 205-6 (eCode360, current through September 2019); PHILADELPHIA, PENN., CODE title 6, chapter 6-300, § 6-308 (American Legal Publishing Co., current through March 26, 2020); NEW YORK CITY, N.Y., HEALTH CODE § 81.50 (American Legal Publishing, current through April 14, 2020).
4121 C.F.R. § 101.11 (2019).
4221 C.F.R. § 101.11 (2019).
4321 U.S.C. § 343-1(a)(4) (2020); 84 Fed. Reg. 208 (Oct. 28, 2019), https://www.federalregister.gov/d/2019-23276/p-103; 79 Fed. Reg. 230 (Dec. 1, 2014), https://www.federalregister.gov/d/2014-27833/p-1146. Note: whether the FDA’s analysis of the federal preemptory effect of section 343-1(a) is correct is not considered here.
44Express preemption provisions of 21 U.S.C. § 343-1(a) bar states and localities from creating requirements for nutrition labeling of food that are not identical “to the federal requirements for entities not voluntarily covered by the federal menu and vending machine labeling requirements,” but do not bar other state action.
4521 U.S.C. § 343-1 (a)(4) (2020); 84 Fed. Reg. 208 (Oct. 28, 2019), https://www.govinfo.gov/content/pkg/FR-2019-10-28/pdf/2019-23507.pdf.
46NEW YORK CITY, N.Y., HEALTH CODE § 81.49 (American Legal Publishing Co., current through March 29, 2020).
47For example, San Francisco passed an ordinance requiring for certain type of outdoor advertising for sugary drinks in 2015. SAN FRANCISCO, CAL., HEALTH CODE § 4203. However, the United States Court of Appeals for the Ninth Circuit enjoined the City from enforcing the law on grounds that the law likely violated the First Amendment. In early 2020 the City made amendments to the law. CITY & CNTY. OF SAN FRANCISCO, ORDINANCE No. 26-20 (Feb. 4, 2020). Now, the amendments are also being challenged. American Beverage Ass’n v. City & County of San Francisco, PUBLIC GOOD LAW CTR., https://publicgoodlaw.org/american-beverage-assn/ (last visited Sept. 25, 2020).
48Healthy Restaurant Program, CITY OF MINNEAPOLIS (Jan. 2, 2019), http://www.minneapolismn.gov/health/living/eating/WCMS1P-132676.
49Minneapolis Healthy Restaurant Program: Participation Agreement Form, CITY OF MINNEAPOLIS, http://www2.minneapolismn.gov/health/living/eating/WCMS1P-132676#:~:text=The%20Minneapolis%20Healthy%20Restaurant%20Program,satisfying%2C%20and%20a%20good%20value.
50SAN FRANCISCO, CAL., HEALTH CODE art. 37 (American Legal Publishing Co., current through April 27, 2020).
5183 Fed. Reg. 23358 (May 21, 2018), https://www.federalregister.gov/documents/2018/05/21/2018-10714/final-determination-regarding-partially-hydrogenated-oils.
52Press Release from Mayor Woodfin, Mayor of Birmingham, Ala., An Update on Healthy Food (March 26, 2019).
53See BIRMINGHAM, ALA., ORDINANCE No. ____, https://www.birminghamalcitycouncil.org/wp-content/uploads/2017/07/Healthy-Food-Incentive-Program-Ordinance_3.pdf (referring to some aspects of the ordinance), and BIRMINGHAM, ALA., ORDINANCE No. 17-23, < ahref="https://library.municode.com/al/birmingham/codes/code_of_ordinances">https://library.municode.com/al/birmingham/codes/code_of_ordinances (regarding codification status).
54Press Release from the City of Birmingham, Ala., City of Birmingham Establishes Healthy Food Fund (last visited May 15, 2020).
55Press Release from the City of Birmingham, Ala., Birmingham City Council Inviting the Public to Attend Public Hearing on Proposed Food Tax Rebate (Nov. 18, 2016).
56See Press Release from the City of Birmingham, Ala., Mayor Woodfin Secures Successful Passage of Amendment to Help Reduce Food Deserts in Birmingham (July 10, 2019) (regarding July 9, 2019, legislation). The Healthy Food Policy Project team has not located a copy of the legislation, but this version of the City’s Zoning Ordinance: Birmingham, Ala., Ordinance 1219 indicates that it includes legislative changes from that date.
57Barbara Ruhs, The Retail RD: Promoting Health in the Checkout Lane, 19(8) TODAY’S DIETITIAN 10 (2017), https://www.todaysdietitian.com/newarchives/0817p10.shtml (noting that 46% impulse purchases occur in the checkout lanes).
58Margarita Raycheva, Food Retail Industry Feels Pressure to Offer Healthier Checkouts, IEG POLICY (Oct. 12, 2018), https://iegpolicy.agribusinessintelligence.informa.com/PL217973/Food-retail-industry-feels-pressure-to-offer-healthier-checkouts (mentioning Raley’s, a West Sacramento-headquartered grocery chain which introduced then healthier checkout model in all of its 129 stores in California and Nevada, as well as, Aldi)

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