Kansas goes further than any other state in kicking local and state government out of decisions about nutrition labels and portion sizes, leaving that and other food policy up to federal lawmakers.
In a recent study, New York University researcher Jennifer Pomeranz said Kansas did more to limit local control than the 13 other states that passed similar laws.
A 2016 Kansas law keeps counties, school districts, councils and other lower levels of government from enacting restrictive policies around food sales. So even if a city with a really high obesity rate wants to require calorie listings, it can’t.
Food policy preemption bills have been cropping up across the country. In 2013, Mississippi — which then had the highest rate of obesity in the country — banned its cities and counties from preventing restaurants from selling super-sized soft drinks or forcing eateries to post nutritional information about meals.
Kansas is among 14 states to pass new laws restricting municipalities’ food and health efforts. But Kansas went further than others by also limiting the state Legislature’s power, Pomeranz said.
“The state basically handed over to the federal government control of these issues,” she said. “It’s basically saying ‘we’re not acting, and the locals can’t act either.’”
The Kansas law, which went into effect in July 2016, prevents local authorities from restricting portion sizes, taxing soda and sugary drinks, and banning “incentive items” — such as toys in a Happy Meal. The bill was mostly cribbed from the American Legislative Exchange Council, an organization of conservative state legislators and representatives from the private sector who draft and share state-level legislation.
For health advocates in Kansas, the bill felt like a solution in search of a problem.
The legislation seemed to reflect national anxieties about efforts elsewhere — such as when former New York City Mayor Michael Bloomberg famously tried to ban super-sized sodas. But, Missty Lechner, community advocacy advisor for the American Heart Association in Kansas, said it didn’t reflect what advocates and food policy councils were actually trying to do in Kansas.
“No one was talking about wanting to ban soda sizes,” Lechner said.
What localities have considered includes requiring park concession stands to provide healthy options alongside hot dogs, nachos and other typical snack foods. But Lechner says some have been scared off by the state law.
The language of the law has also created confusion. Based on ALEC’s model, it lacks some definitions that would specify what the legislation means in Kansas. When Pomeranz, the NYU researcher, analyzed the testimony on Kansas’ bill, she found that both proponents and opponents talked about issues the bill didn’t address, such as labeling for genetically engineered foods.
Adam Mills is president of the Kansas Restaurant and Hospitality Association, which testified in favor of the bill at the time. He said his organization, working with the Kansas Department of Agriculture and the state regulatory department, was trying to avoid a patchwork of federal and local rules dictating how restaurants and hotels can serve food.
“Safe food delivery is extremely important to our industry as we continue to comply with complex food safety regulation,” he said in an email.
State lawmakers did ultimately add in allowances for some policies Kansans have been pushing, such as ensuring healthy concession foods. The 2016 law also protects the popular Double-Up Food Bucks program, which provides a dollar-for-dollar match for the value of food stamps at participating grocery stores and farmer’s markets.
Otherwise, attorneys say it’s not always clear what local rules are and aren’t permitted. Natasha Frost, an attorney at the Public Health Law Center, said it’s had a “chilling effect,” with local authorities steering clear of policies they think might not be allowed.
“Where we’re concerned is where innovative ideas might be stifled,” Frost said.
Madeline Fox is a reporter for the Kansas News Service, a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio covering health, education and politics. Follow her on Twitter @maddycfox.
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