State Policy Options

State Policy Options to Increase Access to Healthy Food

Introduction

State and local governments both pass laws that impact the citizens that live within their respective jurisdictions. Local governments come in many shapes and sizes, and include municipal governments such as towns, cities, and counties, and also “special” local governments such as park districts, local boards of health, school boards, etc. Local-level policymakers live in the communities they represent, and local laws are more easily tailored to meet specific community needs. Local governments often also serve as trailblazers—they may be more willing to try something new or to experiment with a cutting-edge policy idea that shows promise in responding to constituent needs. This has been particularly true in the area of community health, where local governments have taken action to reduce commercial tobacco use, support healthy eating, and promote physical activity quicker and more nimbly than state or federal governments. In this way, local laws have advanced public health progress by changing the conversation from “if” to “when,” and creating a context conducive for state or even federal policy action.

At the same time, local governments are typically subordinate to their state governments, and states continue to wield a great deal of power in regulating issues that affect the public welfare and health of their citizens.1 Public health challenges such as access to healthy food typically involve food systems that span more than just one community or even one county. Thus, state governments play a crucial role in addressing these challenges. In recognition of this fact, the Healthy Food Policy Project conducted a review of state laws enacted from 2015 to mid-20182 related to healthy food access to identify high-level trends and opportunities for state policy development. This review was based on laws captured in the Rudd Center legislative database.

In this section, we describe policy trends and opportunities that stood out to us in our review. These include policy efforts in the following areas:

  • State administration of the Supplemental Nutrition Assistance Program (SNAP)
  • Food sovereignty
  • Food recovery
  • Creating healthier retail food environments
  • State procurement of locally grown foods

State Administration of the Supplemental Nutrition Assistance Program (SNAP)

SNAP’s statutes and regulations provide states with various policy options that enable state agencies to adapt their programs to meet the unique needs of states.3 Many states have passed legislation to tailor the implementation of SNAP, formerly known as the Food Stamp Program, to their populations. In contrast, a few states have passed laws that restrict the state, or localities within the state, from adopting more inclusive regulations for SNAP than those set forth by federal guidelines.4,5 There are indications that the federal government may also be moving to restrict state flexibility to extend SNAP benefits to certain households. On December 20, 2018, the United States Department of Agriculture (USDA) announced that it is working on a proposed rule that would restrict the ability of states to seek waivers from federal limits on SNAP eligibility for “able-bodied adults without dependents” in areas of high unemployment.6

In addition to expanding eligibility for participation, states can take actions to administer SNAP in ways that make healthy food more accessible to low-income and marginalized populations. For example, California has rebranded the SNAP program as “CalFresh” and implemented enrollment mechanisms that help low-income families already receiving SNAP automatically receive additional support from other programs.7 Uniquely, California is the first state in the nation to extend SNAP benefits to certain students.8 New Jersey has also made progress in establishing waivers for income eligibility for certain applicant groups9 and streamlining the SNAP and WIC (Special Supplemental Nutrition Program for Women, Infants, and Children) authorization requirements for farmers’ market vendors.10 Florida law permits farmers’ markets that do not have SNAP Electronic Benefits Transfer (EBT) systems to allow certain groups to operate EBT systems in those markets on behalf of the sellers.11 Bills passed in Arkansas12, Illinois,13 and Maryland14 support programs that double the purchasing power of SNAP recipients at farmers’ markets when buying fresh or minimally processed fruits and vegetables.

Food Sovereignty

“Food sovereignty” is a global movement15 that is slowly gaining traction in the United States. It is defined as “the right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods, and their right to define their own food and agriculture systems. It puts the aspirations and needs of those who produce, distribute and consume food at the heart of food systems and policies rather than the demands of markets and corporations.”16

A few states have passed laws embracing the basic tenets of food sovereignty by empowering localities to legislate and regulate in the area of food production, consumption, and distribution. For example, in 2017 Maine passed what food advocates deemed the first sweeping “food sovereignty law”—one which vests in municipal governments the power to regulate local food systems.17 On a much smaller scale, Wyoming’s Food Freedom Act or “cottage food” bill deregulates small exchanges of homemade goods.18

The Maine food sovereignty law was viewed as a victory for many food advocates in Maine because it sought to return direct control of the food system to the people who harvest, distribute, and consume food. However, the USDA required the bill to be amended because of federal inspection requirements for meat and poultry that preempt state law. The federal agency threatened to withdraw Maine’s inspection authority, which would mean that local meat producers would have to be inspected by federal inspectors. In response, Maine legislators added a clause clarifying that any local ordinance related to such matters must comply with state and federal food safety regulations. This experience demonstrates the difficulty states face in acting as an intermediate level of authority: when delegating power to localities, state legislators must be aware of the risk of noncompliance with and preemptive effect of federal regulations.19

Food Recovery

According to the Food and Agriculture Organization of the United Nations, approximately one-third of food is wasted globally, amounting to about 1.3 billion tons per year.20 Industrialized countries such as the U.S. are responsible for more of this waste compared to developing countries.21 States have the ability to enact regulations that encourage the safe donation of unused food within their borders. Although not specific to the issue of healthy food access, states may also provide for and regulate environmentally friendly disposal of food waste.

Food waste can occur at any stage of the food system.22 For example, food can be lost or wasted on farms during harvesting, during the distribution process, or by consumers. A New Jersey law requires the Department of Environmental Protection to establish voluntary guidelines for K-12 schools and institutions of higher education to reduce, recover, and recycle food waste.23 State laws may also provide liability protections for food banks and agricultural donors or gleaners in order to encourage the distribution of surplus food that may otherwise be wasted.24 Other state laws allow nonprofit organizations to redistribute donated food to schools25 and institute a tax credit to encourage agricultural producers to donate excess produce to food banks.26

Creating Healthier Retail Food Environments

The Centers for Disease Control and Prevention recommends three strategies for states and communities interested in supporting healthier retail food environments. These approaches include: 1) the creation of new retail food outlets in underserved areas to increase access to healthier foods and beverages; 2) the improvement of the quality, variety, and amount of healthier foods and beverages in existing stores; and 3) the promotion and marketing of healthier foods and beverages to consumers.27

In recent years, a majority of enacted state legislation in the area of healthy food retail has provided incentives (i.e., loans or state grants) for supermarkets to establish businesses in underserved areas and/or exempted new grocery developments in certain neighborhoods from various forms of taxation and fees. For example, a Michigan law creates incentives for the development of new grocery stores in urban areas, including tax exemptions and state funding.28 Legislation that passed in the District of Columbia encourages grocery store development in underserved, food-insecure neighborhoods by exempting new grocery developments in such designated areas from property, recordation, transfer, corporate franchise, sales, and use taxation.29

State Procurement of Locally Grown Foods

Several states have adopted laws or administrative policies that establish minimum nutrition standards for food purchased or served on state property, or by state agency programs.30 As part of these policies or as stand-alone policies, states also continue to adopt procurement policies that give preference to locally grown foods. State laws have the potential to increase institutional purchasing of locally grown products and benefit the economy by supporting local producers operating within the state.

One way states are doing this is by requiring state agencies to set local food procurement goals. For example, Arkansas passed a bill initially requiring agencies to allocate 10 percent of food purchases to local farm or food products, with the percentage increasing to 20 percent in subsequent years.31

Another exciting development in this area is the growth of state farm to school programs across the U.S. One of the primary goals of the farm to school movement is increasing local food procurement by educational institutions. The National Farm to School Network’s State Legislative Survey 2002-2017 provides an extensive overview of state laws on this topic.

Conclusion

States have the opportunity to enact laws that address statewide public health concerns, provide tax incentives and exemptions, and control the disbursement of state and allocated federal funds in ways that promote access to healthy food. States can also empower local governments to regulate areas of the food system that uniquely meet the needs of individuals within their communities. Taken together, state and local governments have a variety of policy options available to increase access to healthy food in equitable and sustainable ways.

 

1 These powers are known as “police powers.” Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 443 (1827). For a discussion of the origins of police powers in the U.S., see Santiago Legarre, The Historical Background of the Police Power, 9 Pa. J. Const. L. 745 (2007).
2 State laws were found through the Rudd Center’s legislative database. The Rudd Center database shows that 879 food-related bills were proposed at the state level across the nation between 2015 and June 14, 2018; of these, 92 were adopted. See Legislation Database, Rudd Ctr. for Food Policy & Obesity, http://www.uconnruddcenter.org/legislation-database (last updated June 13, 2019).
3 Food & Nutrition Serv., U.S. Dep’t of Agric., State Options Report 1 (2018), available at https://fns-prod.azureedge.net/sites/default/files/snap/14-State-Options.pdf.
4 See Ark. Code Ann. § 20-76-115 (2019).
5 See Miss. Code Ann. §§ 43-12-1 to -47 (2019).
6 See Press Release, U.S. Dep’t of Agric., USDA to Restore Original Intent of SNAP: A Second Chance, Not a Way of Life (Dec. 20, 2018), https://www.usda.gov/media/press-releases/2018/12/20/usda-restore-original-intent-snap-second-chance-not-way-life.
7 Some states have accepted the invitation from the U.S. Centers for Medicaid Services (CMS) to use SNAP data to engage in targeting enrollment for other public health programs, like Medicaid. See Dep’t of Health & Human Servs., Policy Options for Using SNAP to Determine Medicaid Eligibility and an Update on Targeted Enrollment Strategies (2015).
8 See Cal. Educ. Code §§ 66025.93, 69519.3 (2019); Cal. Welf. & Inst. Code § 18901.11 (2019).
9 See N.J. Stat. Ann. §§ 44:10-105 (West 2019) (officially published by Thomson Reuters, unofficial version here).
10 See N.J. Stat. Ann. § 26:1A-36.3d (West 2019) (officially published by Thomson Reuters, unofficial version here).
11 Fla. Stat. § 414.456 (2019).
12 See Ark. Code Ann. § 20-76-116 (2019).
13 See 30 Ill. Comp. Stat. 105/5.878 (2019); 305 Ill. Comp. Stat. 5/12-4.50 (2019).
14 See Md. Code Ann., Agric. §§ 10-2001 to -2005 (West 2019).
15 The six pillars of food sovereignty, as identified by Global Justice Now and the international food sovereignty movement, provide a helpful guide for understanding this concept. The Six Pillars of Food Sovereignty, Global Justice Now, https://www.globaljustice.org.uk/six-pillars-food-sovereignty (last visited June 17, 2019).
16 What Is Food Sovereignty?, U.S. Food Sovereignty All., http://usfoodsovereigntyalliance.org/what-is-food-sovereignty/ (last visited June 14, 2019).
17 Me. Stat. tit. 7, ch. 8-F (2018).
18 Wyo. Stat. Ann. ch. 49 (2019).
19 Cf. Doug Farquhar, Maine Clarifies Its Food Sovereignty Law, Nat’l Conference of State Legislatures (Nov. 6, 2017), http://www.ncsl.org/blog/2017/11/06/maine-clarifies-its-food-sovereignty-law.aspx (discussing how Maine had to revise a food sovereignty statute that exempted municipalities from federal food safety requirements).
20 Food & Agric. Org. of the U.N., Global Food Losses and Food Waste: Extent, Causes and Prevention, at v (2011), available at http://www.fao.org/docrep/014/mb060e/mb060e.pdf.
21 Food & Agric. Org. of the U.N., supra note 18. (“We estimate that the per capita food waste by consumers in Europe and North-America is 95-115 kg/year, while this figure in sub-Saharan Africa and South/Southeast Asia is only 6-11 kg/year.”).
22 Food & Agric. Org. of the U.N., supra note 18.
23 N.J. Stat. Ann. § 13:1E-99.115 (West 2019) (officially published by Thomson Reuters, unofficial version here).
24 See N.J. Stat. Ann. §§ 4:10-25.2d, 24:4A-3 (West 2019) (officially published by Thomson Reuters, unofficial versions here and here, respectively).
25 See Okla. Stat. tit. 47, § 5-147.1 (2018).
26 See W. Va. Code §§ 11-13DD-1 to -7 (2019).
27 Healthy Food Environments, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/obesity/strategies/healthy-food-env.html (last updated Apr. 10, 2019).
28 Mich. Comp. Laws §§ 125.2090a.2090b (2017).
29 D.C. Code § 47-4667 (2019).
30 See H. Zaganjor et al., Food Service Guideline Policies on State Government-Controlled Properties, 32 Am. J. Health Promotion 1340 (2018).
31 Ark. Code Ann. §§ 15-4-3801 to -3808 (2019).
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