Whether an amendment to state law that is not a general law for purposes of home-rule analysis, and that purports to preempt the home rule authority of Ohio cities to address serious public health problems such as food-based health disparities, violates the Ohio constitution’s home rule amendment and one-subject rule.
In April 2011, the City of Cleveland adopted Cleveland Codified Ordinance 241.42, which restricts artificial trans fat in the City’s restaurant foods. In June 2011, the Ohio General Assembly added language in an omnibus appropriations bill that, among other things, amended a section of the State’s food safety law, R.C. 3717.53. In effect, this amendment would preempt municipal legislative authority over the state’s restaurant industry, immunizing fast food chains from local laws such as Cleveland’s trans fat ordinance, and extinguishing the authority of cities to regulate restaurants to protect public health. On January 3, 2012, the City filed a declaratory judgment against the state of Ohio, claiming that (1) R.C. 3717.53 is not a “general law”; (2) R.C. 3717.53 represents an unconstitutional attempt to preempt the city’s municipal home rule authority; (3) amendments to R.C. 3717.53 violate the one-subject rule of the Ohio Constitution; and (4) the city’s enactment and enforcement of its trans fat ordinance is a proper exercise of local home rule authority. On June 11, 2012, the trial court granted summary judgment in favor of Cleveland, and the State of Ohio appealed.
On September 18, 2012, the Public Health Law Center and ChangeLab Solutions filed an amicus brief at Ohio’s Eighth District Court of Appeals, supporting the City of Cleveland. Our brief pointed out that, absent a valid conflicting general state law, Ohio’s home rule amendment protects the ability of Ohio cities to address serious public health problems such as food-based health disparities. The brief described health disparities – and food-based health disparities in particular – in Cleveland and other parts of Ohio and argued that protecting the public from artificial trans fat is a classic example of using home rule authority to protect public health. Finally, our brief argues that the State of Ohio has a flawed understanding of the content and application of the federal Nutrition Labeling and Education Act and that Ohio has no statewide comprehensive legislation addressing nutritional regulation.
“In sum, the so-called ‘Informed Consumer Food Choice Law,’ as the State imaginatively styles it, provides neither information, nor choices, to anyone but the restaurant industry. Perhaps better described as the ‘Junk Food Protection and Home Rule Subversion Act of 2011’ it is a disservice to the people of Ohio, and in particular, those striving to emerge from the shadows of chronic disease and food insecurity.”
On March 28, 2013, the Court of Appeals of Ohio affirmed the trial court’s holding that R.C. 3717.53 is not a general law; that the amendment is an unconstitutional attempt to preempt the city from exercising its home rule powers; that its language is unconstitutional and contrary to the one-subject rule of the Ohio Constitution; that Cleveland’s trans fat ordinance does not conflict with the general laws of Ohio; and that the ordinance’s enactment and enforcement constitute a proper exercise of the city’s home rule authority.