Cleveland Strikes Back: Asserting and defending local public health authority from state preemption through litigation

In 2011, several states enacted laws preempting innovative legal approaches by local governments to curb obesity rates. For example, Arizona now prohibits local governments from restricting toy giveaways by fast food restaurants. In Alabama, the state legislature reserved the right to regulate nutritional information on menus, despite the fact that no local government has attempted such an effort. After the City of Cleveland passed an ordinance restricting the use of trans fats by restaurants, Ohio's legislature added a last minute amendment to the state's budget bill prohibiting local governments from adopting laws regulating restaurant operations (e.g., trans fat bans, toy giveaway restrictions, nutritional information requirements, etc.). In early 2012, Cleveland sued Ohio alleging the state's preemption of the city's restaurant regulations violates the home rule provision of the Ohio Constitution. Cleveland's assertion and defense of its authority to protect and improve public health is encouraging to those concerned with state preemption of not only obesity prevention efforts but other public health measures as well. This presentation will examine the background to the City of Cleveland's lawsuit against Ohio, discuss the city's legal arguments for protecting its public health authority, provide an update on the case, and review recent preemption efforts and tactics by state legislatures.