Public Health Policy, Food Systems and Preemption: A Public Health Approach

Food and agricultural policies are exceedingly complex and have a significant impact on the health of populations. Both state and federal governments have responsibilities in this area often leading to conflict. Preemption is a legal doctrine applied to resolve this conflicts. Preemption plays a role in issues such as menu labeling, school food, nutrition programs, and food safety. Current preemption doctrines will likely have an effect that undermines rather than promotes public health. In food and agricultural policy, both public health and legal doctrine counsel against preemption provisions in federal laws except in narrow circumstances. The United States' food culture is diverse and policies to confront food-related illness must be configured to meet the specific cultural practices of each state and locality rather than establishing one national standard. Second, federal preemption of state public health regulation undermines the police power of the state and its constitutional role protecting public health. While preemption has had positive results in other contexts (i.e., airline regulation), history and current politics suggest that public health is not an area where the same can result. Due to ever-changing science, different local needs and a lack of resources, preemption provisions cannot be effective in the public health legislation, regulation or litigation contexts.