Speaking of excess...

July 11, 9:54 AMSF City Hall ExaminerMelissa Griffin

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Constant Readers,

I hate love am about to say, "I told you so."

Back in March, I wrote about the SF fast food labeling ordinance in the form of an open letter to the law's principal architect, Supervisor Ammiano.  In that letter, I wrote:

And speaking of lawsuits, I suspect that the City might be facing one if your proposal passes because a State law may preempt the City ordinance. Section 113705 of the California Health and Safety Code says: "it is the intent of the Legislature to occupy the whole field of health and sanitation standards for retail food facilities" with the California Retail Food Code.

Sure enough, on July 3, the California Restaurant Association filed a lawsuit against our fair City alleging that the labeling ordinance is preempted by the CA Health and Safety Code. (Complaint and stuff here:  Download MENU-LABELING-CASE-PRESSKIT.PDF.)

NOTE: The suit also alleges that the ordinance is preempted by Federal law and is an invalid restriction on free speech guaranteed by the U.S. Constitution. However, the US District Court handily did away with those arguments when considering a New York City ordinance mandating the disclosure of caloric information in fast food restaurants. (NYC  Decision here: Download NYSRA-V-NYC-RULING.PDF .) Our ordinance requires a listing of calories, saturated fat, carbs and sodium. (See ordinance here: Download SF-MENU-ORDINANCE.PDF.) However, NYC didn't have to deal with a state law like our Section 113705.

Allow me a minit to walk you through this.

(1) Under article XI, section 7 of the California Constitution, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws."

(2) A "conflict" occurs when local legislation enters an area fully and expressly occupied by state law. (Sherwin-Williams Co. v. City of Los Angeles, 4 Cal.4th 893 (1993) - here: Download sherwinwilliams_case.pdf.) This supremacy of State over local law is also known as "preemption."

(3) In this case, Health and Safety Code section 113705 plainly states that "it is the intent of the Legislature to occupy the whole field of health and sanitation standards for retail food facilities."

(4) So, the real question is: does the fast-food labeling ordinance enter into the "field of health and sanitation standards"? Arguably, it does not. Most of the California Retail Food Code deals with restaurant inspections and such - so menu-labeling may be outside of that universe. (Also, local governments are expressly granted the right to create and enforce local inspection schemes.)

On the other hand: the California State legislature is considering a fast-food labeling bill similar to SF's (SB 1420 - currently in the Assembly Appropriations Committee)  and guess where the new requirements would go? In the California Retail Food Code as new section 114094, because "The California Retail Food Code provides for the health and sanitation standards for retail food...."

Here's a thought: perhaps we should have used our political will to get the state law passed - it was vetoed once before, so I agree that it would not be an easy task - but a state law would gut the CRA's only legitimate argument and make it the State Attorney General's burden to defend against the federal claims. Instead our politicians opted to pass this ordinance - so now we get to pay to defend against a lawsuit that was foreseeable and likely unnecessary. And not at all a slam-dunk to win.

Remind me again who needs help with decision-making...

--Melissa

PS - I will say this: the Press Release on the recently-filed lawsuit is filled with hilarious references to the obesity-inducing menu items at CRA member restaurants.