The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
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
1
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
2
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
3
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
4
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
5
Legal Approaches to Limit
Fast Food Consumption - 1
There are many legal theories and
approaches to regulate or limit fast
food consumption among
consumers.
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
6
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
7
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)
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
8
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
9
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” protections limit scope
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
10
Legal Approaches to Limit
Fast Food Consumption - 6
Limit Access to Fast Food Outlets
through Zoning Requirements at
the Local/Community Level

The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
11
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?
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
12
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”).
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
13
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.
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
14
Zoning as an Incentive to
Healthier Eating Habits - 1
• Zoning options can lead to
improvements in human nutrition
through enabling (+) and limiting
interventions (-)
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
15
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
16
Zoning to Create a Healthier
Food Retail Market
Types of Use Zoning
Conditional
Performance
Incentive
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
17
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”
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
18
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
19
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
20
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
21
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
22
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
23
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
24
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
25
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 fastfood or drive-in restaurant....”
 Justification:
 Encourage the growth of
other businesses
 Maintain compatibility with
rural character of the community
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
26
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)
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
27
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)
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
28
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)
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
29
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.
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
30
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
31
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
32
Recent Developments – 3
 Ogunquit, Maine
 Voters approve a zoning change
banning all “formula” restaurants
from the town (November 2005)
www.mainetoday.com
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
33
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?
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
34
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?
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
35
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?
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
36
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
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law
WHO/PAHO Collaborating Center on Public Health Law and Human Rights
37