Swamped: How Local Governments
Can Improve Health by Balancing
Exposure to Fat, Sugar, and Salt-Laden
Fringe Foods
Jada Fehn
I. Desert to Swamp....................................................................................566
II. Details of the Imbalance.......................................................................567
A. Poor Access...................................................................................... 567
B. On the Ground................................................................................ 571
1. Baltimore .....................................................................................571
2. Chicago ........................................................................................571
3. Detroit ..........................................................................................573
4. Los Angeles ................................................................................573
III. Why? ........................................................................................................574
A. Product Manipulation.................................................................... 574
B. Advertising ...................................................................................... 575
C. Exodus to the Suburbs................................................................... 576
IV. The Link Between Food Imbalance and Health Inequity ..............577
V. Public Health Consequences ...............................................................578
VI. Responses ................................................................................................581
A. The White House............................................................................ 581
B. Food Stamps .................................................................................... 581
C. Michelle Obama .............................................................................. 582
D. Small Pharmacies............................................................................ 582
E. Local Initiatives ............................................................................... 583
VII. Proposed Solution..................................................................................585
VIII. Conclusion ..............................................................................................587
“In many urban neighborhoods, it’s easier to buy a pint of
liquor, a fried chicken wing, or a gun than a fresh tomato.”
—MARIAN WRIGHT EDELMAN
Jada Fehn ([email protected]) is Assistant Teaching Professor at
Mitchell-Hamline School of Law and the Director of the medical-legal partnership
with United Family Medicine. She earned her J.D. and Health Law Certificate at
the former Hamline University School of Law in St. Paul, Minnesota, and her B.A.
at the University of Minnesota–Twin Cities.
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I. Desert to Swamp
Ingrid Cruz grew up in Huntington Park, California, a suburb of Los
Angeles.1 She remembers a neighborhood with “lots of convenience stores
filled with pre-packaged, processed foods, fast food restaurants, and small
liquor stores with overpriced, overripe produce.”2 After emigrating from El
Salvador, the family bought food from small grocery store because it was
close, but the quality was not good.3 “When my mother finally bought a
car, we started shopping at a larger market, which was about a 10-minute
drive away.”4 Strangely, spending money to purchase the car improved the
family’s ability to save money on food.5 Cruz’s hometown has the “highest
percentage of childhood obesity in all of California.”6
In 2006, Mari Gallagher popularized the term “food desert” to describe
the lack of grocery stores in core urban areas.7 Poor food access is considered a serious component of the health disparity that plagues residents in
food deserts because stores that are distant or poorly stocked are less convenient and less affordable for purchasing healthy food.8
Recent research has unearthed an additional issue. Food deserts are also
usually “food swamps.” It is not only the lack of large grocery stores that
lead to unhealthy eating.9 In areas with high levels of racial segregation
and great income inequality, the main sources are corner stores, convenience stores, gas stations, and fast food restaurants, providing easy access
to options that are not nutritious, but affordable and extremely convenient.10 “[L]arge relative amounts of energy-dense snack foods, inundate
1. Ingrid Cruz, 5 Things You Probably Didn’t Know About Living in a Food Desert,
CIVIL EATS ( July 24, 2015), available at http://civileats.com/2015/07/24/growingup-in-a-food-desert-5-things-you-should-know/.
2. Id.
3. Id.
4. Id.
5. Id.
6. Id.
7. Mari Gallagher Res. & Consulting Grp., Response to “Studies Question
Pairing of Food Deserts and Obesity” 1 (2012), available at http://marigallagher.
com/site_media/dynamic/project_files/RESPONSE_NYT_FOODDESERTSOBESITY.pdf (responding to Studies Question Pairing of Food Deserts and Obesity,
N.Y. TIMES, Apr. 18, 2012, at A1, A3) (last visited Jan. 5, 2016).
8. Rebecca Flournoy & Sarah Treuhaft, Healthy Food, Healthy Communities: Improving Access and Opportunities Through Food Retailing 4 (2005), available at http://
www.policylink.org/atf/cf/%7B97C6D565-BB43-406D-A6D5-ECA3BBF35AF0%
7D/HEALTHYFOOD.pdf.
9. Sarah Treuhaft & Allison Karpyn, The Grocery Gap: Who Has Access to
Healthy Food and Why It Matters 5 (2010) (demonstrating that low-income communities of color suffer the most from the disparity). See AAP Council on Health Equity & Children’s Rights, Health Equity and Children’s Rights, 125:4 PEDIATRICS (Apr.
2010), available at http://pediatrics.aappublications.org/content/125/4/838.full.
10. Grocery Gap, supra note 9, at 7.
Balancing Exposure to Fat, Sugar, and Salt-Laden Fringe Foods
567
healthy food options.”11 Not only is this fat, sugar and salt-laden “fringe
food” widely available, it is intensely marketed, especially to youth.12
A strong link exists between poor food access and health inequity.13
Americans already disadvantaged by the lack of health care and education are being granted access to convenient supplies of unhealthy food
and, in turn, suffer poor health.14 Policy makers, city planners, and regular citizens need to take note because the rising financial and health costs
of malnourished populations have far-reaching effects. Balanced food environments are imperative for the health of all Americans. Local governments can take further steps to address the issue.
Part II of this article lays a foundation by defining poor food access and
illustrating with examples from several large cities. Part III explores the
theories about the causes of food access disparity. In Part IV, food access
is linked with health inequity. Part V catalogs the public health consequences, particularly those for minority communities of color, that flow
from the inequity. Next, Part IV explains the solutions that have been
put into action thus far. Lastly, a novel solution to rebalance the ratio of
unhealthy outlets to grocers selling fresh, healthy food will be proposed.
II. Details of the Imbalance
A. Poor Access
Long known as food deserts, large geographic areas with poor access to
mainstream grocery stores make buying healthy food a challenge.15 Fresh
food is available only at the cost of a long and often expensive trip.16 In
context, a food desert is “an area of relative exclusion where people experience physical and economic barriers to accessing healthy food.”17 The
11. Donald Rose et al., Deserts in New Orleans? Illustrations of Urban Food Access
and Implications for Policy, presentation at Understanding the Economic Concepts
and Characteristics of Food Access, Nat’l Poverty Ctr., Jan. 23, 2009.
12. See Fed. Trade Comm’n, Food for Thought: Interagency Working Group Proposal
on Food Marketing to Children 1 (2011), http://www.ftc.gov/os/2011/04/
110428foodmarketfactsheet.pdf.
13. Grocery Gap, supra note 9, at 5.
14. Andrea Freeman, Fast Food: Oppression Through Poor Nutrition, 95 CAL. L.
REV. 2221, 2221 (2007) (“The overabundance of fast food and lack of access to
healthier foods, in turn, have increased African American and Latino communities’
vulnerability to food-related death and disease.”).
15. Sonje Hawkins, Desert in the City: The Effects of Food Deserts on Healthcare Disparities of Low-Income Individuals, 19 ANNALS HEALTH L. ADVANCE DIRECTIVE 116, 118
(2009).
16. Tess Feldman, Re-Stocking the Shelves: Policies and Programs Growing in Food
Deserts, 16 PUB. INT. L. REP. 38, 38 (2010).
17. Hillary Shaw, What Is a Food Desert?, FOOD DESERT WEBSITE, http://www.
fooddeserts.org/images/whatisfd.htm (attributed to the Low Income Project
Team in 1996) (last visited Jan. 4, 2016).
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term originated in the United Kingdom in the 1990s.18 “A food desert is
not a complete absence of food; rather, it is an imbalance of food choice.”19
Further research has brought understanding about the root causes of the
issue. The lack of grocery stores or supermarkets is important,20 but even
more important is the overwhelming number of unhealthy outlets. Instead of grocery stores, farmers’ markets, or other sources of fresh food,
residents are “bombarded by fast food and convenience stores selling
high-fat, high-sugar, processed food.”21 “Fringe foods,” quick meals that
are highly convenient, are widely available but cannot support a healthy
diet on a regular basis.22 The concept has also been equated to food insecurity. “Food insecurity is the lack of access to enough food for an active
and healthy lifestyle for all household members due to financial
constraints.”23
Reliance on convenience stores in food deserts also forces citizens to
pay higher prices than they would at supermarkets.24 “A key concern
for people who live in areas with limited food access is that they rely
on small grocery or convenience stores that may not carry all the foods
needed for a healthy diet and that may offer these foods and other
foods at higher prices.”25 The U.S. Department of Agriculture found
that low- and middle-income households purchase food at supercenters,
like Cosco or Sam’s Club, with the lowest prices, when they can.26 Yet,
the very poorest households27 may pay about 1 percent more for their groceries than households earning slightly more.28 The food insecure must fill
up “on low-cost foods with little nutritional value (such as noodles, fast
food, or junk food).”29 Food shopping behavior of food stamp program
18. Id.
19. Hawkins, supra note 15, at 118.
20. Tom Larson, Why There Will Be No Chain Supermarkets in Poor Inner-City
Neighborhoods, 7 C AL . J. P OL . & P OL ’ Y 22, 23 (2003), available at http://www.
calstatela.edu/faculty/tlarson/LarsonSupermarkets.pdf (“Stores are not needed
just for shopping convenience; they also affect the nutrition and health of a
neighborhood, provide jobs, and increase the central city’s tax base.”).
21. Grocery Gap, supra note 9, at 11.
22. Mari Gallagher Res. & Consulting Grp., Food Desert and Food Balance Indicator Sheet 1 (2008), http://www.marigallagher.com/site_media/dynamic/project_
files/FdDesFdBalFactSheetMG_.pdf (last visited Jan. 5, 2016).
23. Maureen Black, Food Security: Ensuring the Health of Baltimore’s Babies 2
(Dep’t of Pediatrics, Univ. of Maryland Sch. of Med.) (2008), http://www.
childrenshealthwatch.org/wp-content/uploads/balt_foodsecurityreport_
summer_08.pdf (last visited Jan. 4, 2016).
24. Id. at 2.
25. Id.
26. Id.
27. Id. (earning less than $8,000 per year).
28. Id. (earning $8,000 to $30,000).
29. Id. at 2.
Balancing Exposure to Fat, Sugar, and Salt-Laden Fringe Foods
569
participants demonstrates that those who shop less frequently at supermarkets purchase fewer healthier options—fresh fruits, vegetables, and
milk.30
The problem is widespread. About 9 percent of the continental U.S.
population live in areas with poor supermarket access.31 About 2.3 million
U.S. households live more than a mile from a supermarket or large grocery store and do not have access to a vehicle.32 Another 3.4 million live
between one-half and one mile without a car.33 Adjusting that number
so that only low-income areas are included, about 4 percent of the U.S.
population live more than a mile from a supermarket.34 In a report with
a comprehensive bibliography of 132 studies, inequitable access was remarkably consistent: “people living in low-income neighborhoods, minority neighborhoods, and rural communities face much greater challenges
finding healthy food, especially those who lack transportation options
to reach full-service grocery stores.”35
In June 2009, the U.S. Department of Agriculture weighed in on the issue
in a report to Congress.36 The report notes that some studies show the consumption of healthy foods does not necessarily lead to lower body mass
index (BMI).37 “Easy access to all food . . . may be a more important factor
in explaining increases in BMI and obesity.”38 A University of North Carolina study points to the existence of food swamps,39 “filled with convenience stores selling calorie-loaded packaged foods, gallon cups of soda,
and other sugar-loaded beverages, and fast-food chains peddling burgers,
fries, and fried chicken on almost every street corner.”40 By 2005, the United
States had more fast food restaurants than public libraries or hospitals.41
30. Id.
31. Judith Bell et al., Access to Healthy Food and Why It Matters: A Review of the
Research 9, POLICYLINK (2013), https://www.policylink.org/sites/default/files/
GROCERYGAP_FINAL_NOV2013.pdf.
32. U.S. DEP’T OF AGRIC., ERS REPORT SUMMARY, ACCESS TO AFFORDABLE AND NUTRITIOUS FOOD-MEASURING AND UNDERSTANDING FOOD DESERTS AND THEIR CONSEQUENCES: REPORT TO CONGRESS 1 (2009), available at http://www.ers.usda.gov/Publications/AP/
AP036/AP036_reportsummary.pdf.
33. Id.
34. Id. at 2.
35. Grocery Gap, supra note 9, at 13.
36. ACCESS TO AFFORDABLE AND NUTRITIOUS FOOD-MEASURING, supra note 32.
37. Id.
38. Id.
39. Janne Boone-Heinonen et al., Fast Food Restaurants and Food Stores: Longitudinal Associations with Diet in Young to Middle-Aged Adults, 171 ARCHIVES OF INTERNAL
MED. 1162, 1162 (2011).
40. In-Depth Briefing: America’s “Food Deserts,” WK. (Aug. 12. 2011, 10:15 A.M.),
theweek.com/article/index/218167/americarsquos-food-deserts.
41. See MORGAN SPURLOCK, DON’T EAT THIS BOOK: FAST FOOD AND THE SUPER SIZING
OF AMERICA (2005).
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Journal of Affordable Housing
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There are five fast-food restaurants,42 not to mention all the convenience
stores, corner stores, and gas stations,43 for every supermarket. “The people
don’t want [fast food meals], but when they don’t have any other options,
they may gravitate to what’s there,” according to Los Angeles Councilwoman Jan Perry, who proposed a two-year moratorium on new fastfood restaurants in South L.A. in 2007.44
Urban core areas with altered food access are characterized by higher
levels of racial segregation and greater income inequality.45 African Americans are the group most disadvantaged by food access issues.46 There are
four times as many supermarkets in predominantly white neighborhoods
compared to black ones.47 Only 8 percent of African Americans live in a
tract with supermarket, while 31 percent of whites do.48 “Predominantly
black zip codes have about half the number of chain supermarkets compared to predominantly white zip codes, and predominantly Latino
areas have only a third as many.”49
“[S]imply plopping down a grocery store doesn’t mean that these problems are instantly solved.”50 The trifecta approach suggested by Joel Gittelsohn of Johns Hopkins requires three elements: increased availability,
reduced price, and promotion of healthy choices.51 In the Wall Street
42. According to a trade publication, McDonald’s, Subway, Burger King,
Wendy’s, and Taco Bell were the top five fast food chains in 2014. Interestingly,
Starbucks actually came in second place on the “limited service” ranking of chains.
The QSR 50, The Top 50 Brands in Quick Service and Fast Casual, QSR MAG. (Aug. 2015),
https://www.qsrmagazine.com/reports/qsr50-2015-top-50-chart.
43. In-Depth Briefing, supra note 40.
44. Tami Abdollah, A Strict Order for Fast Food, L.A. TIMES, Sept. 10, 2007, available at http://articles.latimes.com/2007/sep/10/local/me-fastfood10.
45. ACCESS TO AFFORDABLE AND NUTRITIOUS FOOD-MEASURING, supra note 32.
46. Mari Gallagher Res. & Consulting Grp., Good Food: Examining the Impact of
Food Deserts on Public Health in Chicago 7 (2006), available at http://www.agr.
state.il.us/marketing/ILOFFTaskForce/ChicagoFoodDesertReportFull.pdf.
47. Grocery Gap, supra note 9, at 13 (citing L. Moore & A. Roux, Associations of
Neighborhood Characteristics with the Location & Type of Food Stores, 96 AMER. J.
PUB. HEALTH 325 (2006)).
48. Id. at 13 (citing K. Morland et al., The Contextual Effect of the Local Food Environment on Residents’ Diets: The Atherosclerosis Risk in Communities Study, 92
AMER. J. PUB. HEALTH 1761 (2002)).
49. Id. (citing Lisa M. Powell et al., Food Store Availability and Neighborhood Characteristics in the US, 44 PREVENTATIVE MED.189 (2007)).
50. Ilan Brat, Do “Food Deserts” Cause Unhealthy Eating, WALL ST. J. ( July 12,
2015, 11:10 P.M.), http://www.wsj.com/articles/do-food-deserts-causeunhealthy-eating-1436757037.
51. Jim Smith, Encouraging the Growth of Urban Agriculture in Trenton and Newark
Through Amendments to the Zoning Codes, 14 VT J. OF ENVTL. L. 71,81 (Fall 2012) (citing INST. OF MED. & NAT’L RES. COUNCIL, PUBLIC HEALTH EFFECTS OF FOOD DESERTS: CONFERENCE SUMMARY 12 (2009)).
Balancing Exposure to Fat, Sugar, and Salt-Laden Fringe Foods
571
Journal last year, Mari Gallagher made it clear that the solution to the food
insecurity issue is not simple, but access is foundational.52 “[A]ll the
knowledge and willpower in the world won’t allow food-desert residents
to choose healthy food unless they also have access.”53
B. On the Ground
1. Baltimore
One in four Baltimore residents live in areas identified as food deserts
and African Americans are the most likely of any racial or ethnic group to
live in a food desert neighborhood.54 In an assessment of nearly 1,200 residents, white, college-educated, and higher-income households had significantly higher availability of healthy food options compared with
black, less-educated, low-income households in the city.55 In 2008, 13.5 percent of Baltimore families with young children suffered from food insecurity.56 Within Baltimore’s food insecure families, 24 percent of adults reported not eating for a whole day because there was not enough money
for food.57 In East Baltimore, focus groups with residents living in a lowincome area of color found “they were reliant on small neighborhood stores
that charged extremely high prices and lacked a good variety and selection
of healthy foods.”58 A healthy food availability survey of 226 supermarkets,
grocery stores, convenience stores, and behind-glass stores in Baltimore
found that 43 percent of predominantly black neighborhoods were in the
bottom third of availability and scored lower for healthy food availability
as well.59
2. Chicago
The food deserts of Chicago have been the most acutely studied, in part
because of the work of the Mari Gallagher Research and Consulting
52. Brat, supra note 50.
53. Id.
54. City of Baltimore, Mapping Baltimore City’s Food Environment, 2015 Executive
Summary 1 ( June 2015), available at http://archive.baltimorecity.gov/portals/0/
agencies/planning/public%20downloads/Baltimore%20Food%20Environment%
20Executive%20Summary%202015.pdf.
55. Bell, supra note 31, at 9 (citing Latetia V. Moore et al., Measuring Availability
of Healthy Foods: Agreement Between Directly Measured and Self-Reported Data, 175 AM.
J. OF EPIDEMIOLOGY 10 (2012)).
56. Black, supra note 23, at 4.
57. Id.
58. Grocery Gap, supra note 9, at 14 (citing Alan Ehrenhalt, The Grocery Gap, GOVERNING (Apr. 2006), http://www.governing.com/topics/mgmt/Grocery-Gap.
html).
59. Id. at 15 (citing Maureen Black, Food Security: Ensuring the Health of Baltimore’s
Babies 2 (Dep’t of Pediatrics, Univ. of Maryland Sch. of Med.) (2008), http://www.
childrenshealthwatch.org/wp-content/uploads/balt_foodsecurityreport_summer_
08.pdf).
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Volume 24, Number 3
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Group.60 Additionally, Chicago is the hometown of First Lady Michelle
Obama whose Let’s Move Campaign focuses on childhood obesity.61
With this focus, the city has seen some improvements. The population
in food deserts shrank to 383,954 in 2001 from 632,974 in 2006.62 Mayor
Rahm Emanuel’s administration claimed a 21 percent reduction of lowincome residents living more than one mile from a grocery store from
June 2011 to August 2013.63 The Englewood neighborhood is slated to
get a Whole Foods store in 2016.64
The close study of Chicago’s food deserts provides special insight into
the underlying and inherent racial and ethnic disparities.65 In 2006, the
food deserts in Chicago were almost exclusively African American, who
traveled the farthest, about 0.81 miles on average, to any type of grocery
store.66 Fast food sources were also slightly closer to African Americans,
making it “much easier to access fast food than other types of food.”67
As the distance to the nearest grocer increases relative to the distance to
the nearest fringe food outlet in Chicago, the Years of Potential Life
Loss (YPLL) due to disease increases significantly for African American
communities.68 Experts also raised transportation as a food access issue
for the elderly or handicapped living in Chicago neighborhoods.69
60. See Gallagher, supra note 46.
61. Let’s Move, America’s Move to Raise a Healthier Generation of Kids, http://
www.letsmove.gov/about.
62. Blair Euteneuer, Michelle Obama Urges Mayors to Adopt Chicago’s Food-Desert
Fight, BUS. WK. (Oct. 26, 2011), available at http://www.bloomberg.com/news/
articles/2011-10-25/michelle-obama-urges-mayors-executives-to-add-healthyfoods (last visited Jan. 5, 2016).
63. City of Chicago, Emanuel Administration Food Desert Update: Two Years of
Progress (Aug. 2013), available at http://www.cityofchicago.org/content/dam/
city/depts/mayor/general/FoodDesert1.pdf.
64. Lolly Bowean, As Whole Foods Ventures to Englewood, Many Eyes on Detroit
Store, C HI . T RIB . (Mar. 16, 2015, 5:59 A.M.), available at http://www.chicago
tribune.com/business/ct-detroit-whole-foods-met-20150316-story.html.
65. Hawkins, supra note 15, at 120.
66. Gallagher, supra note 46, at 7.
67. Id.
68. Grocery Gap, supra note 9, at 19 (citing Maureen Black, Food Security: Ensuring the Health of Baltimore’s Babies 2 (Dep’t of Pediatrics, Univ. of Maryland Sch. of
Med.) (2008), http://www.childrenshealthwatch.org/wp-content/uploads/balt_
foodsecurityreport_summer_08.pdf).
69. Ellyn Fortino, Experts: New Chicago Food Desert Numbers Not As Rosy As Emanuel Says, PROGRESS ILL. (Aug. 21, 2013 1:24 P.M.), available at http://progressillinois.
com/posts/content/2013/08/21/experts-new-chicago-food-desert-numbers-notrosy-emanuel-says-0.
Balancing Exposure to Fat, Sugar, and Salt-Laden Fringe Foods
573
3. Detroit
In 2005, eleven supermarkets closed in metropolitan Detroit.70 By 2009,
there was not a single grocery chain store within the city limits.71 The
Food Trust’s Brian Lang addressed the issue, stating, “While low-income
neighborhoods may have some small markets that are classified as ‘grocery
stores,’ they stock mostly snacks, and the fresh food on their shelves is lowquality and expensive.”72 Produce quality is lower in predominantly black,
low-income neighborhoods in Detroit compared to adjacent suburban communities that are racially mixed and middle-income.73 In the East Side
neighborhood, African American women with lower incomes are less likely
to shop at supermarkets and less likely to eat fruits and vegetables.74 A
study of low-income, urban, food-desert consumers of color in Detroit
found that consumer income plays a significant role in determining purchasing behaviors and that increased income or lower prices leads to increased fruit consumption.75 Like most large cities, there has been improvement in recent years. In 2013, Whole Foods opened a store in midtown.76
4. Los Angeles
Los Angeles reflects similar trends. A 2013 report of the Los Angeles
Food Policy Council reflected that “42 percent of low-income adults are
food insecure, and 61 percent of all adults are obese or overweight.”77
70. Alan Ehrenhalt, The Grocery Gap, GOVERNING (Apr. 2006), http://www.
governing.com/topics/mgmt/Grocery-Gap.html.
71. Sheena Harrison, A City Without Chain Grocery Stores, CNNMONEY ( July 22,
2009, 4:13 A.M.), http://money.cnn.com/2009/07/22/smallbusiness/detroit_
grocery_stores.smb/. As would be expected, trade associations did not take
kindly to the claim that they were not meeting the grocery needs of the
community. In November 2015, the president of the Associated Food and
Petroleum Dealers reported to the Detroit News that there were seventy-seven
full-service grocery stores, defined as a location with 10,000 square feet of selling
space with fresh meat, produce, and dairy as well as a deli counter and frozen
and dry goods. Jennifer Chambers, Grocery Options: Detroit No Longer a “Food
Desert”, D ETROIT N EWS , Nov. 14, 2015. In contrast, a photography project on
Tumblr demonstrates that many of these locations have the words “liquor, beer,
and wine” blazoned on the signs in much larger letters than the words “food or
groceries,” http://detroitgrocerystores.tumblr.com/ (last visited Feb. 25, 2016).
72. Brat, supra note 50.
73. Grocery Gap, supra note 9, at 15 (citing Tom Larson, Why There Will Be No Chain
Supermarkets in Poor Inner-City Neighborhoods, 7 CAL. J. POL. & POL’Y 22, 23 (2003)).
74. Grocery Gap, supra note 9, at 17.
75. Bell, supra note 31, at 15 (citing D. Weatherspoon et al., Price and Expenditure
Elasticities for Fresh Fruits in an Urban Food Desert, 50 URB. STUD. 1 (2013)).
76. Bowean, supra note 64.
77. L.A. Food Pol’y Council, Los Angeles Food System Snapshot 2013 (2013),
http://goodfoodla.org/wp-content/uploads/2013/03/Snapshot_ExecSummary_
Final.pdf.
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In South Los Angeles, 72 percent of restaurants are fast-food establishments. Looking at low-poverty areas versus high poverty areas, there
are 2.3 times as many supermarkets per household in the areas with
less poverty.78 “Sprawling Los Angeles, which in 1970 boasted nearly
1,100 supermarkets, was down to fewer than 700 two decades later.”79
“An analysis of resident consumer expenditures by Rebuild LA in 1995 indicated that at least thirty-six more supermarkets were needed in South
Central.”80 Stores in low-income and very low-income zip codes in Los
Angeles are less likely to stock healthy foods than stores in higher-income
areas.81 Traveling a longer distance to a grocery store has also been associated with a higher BMI in Los Angeles.82 Thirty percent of adults in
South L.A. are obese, compared with 20.9 percent in the county overall;
for children, the obesity rate was 29 percent in South L.A., compared
with 23.3 percent in the county.83
III. Why?
The problem of food access in American cities is clear, but there are further questions to address. This section of the paper will explain the factors
that compound the issue, including product manipulation, food advertising, and retail migration.
A. Product Manipulation
The food industry has a strong incentive to sell foods that are less
healthy. When humans eat sugar, fat, and salt layered in processed
foods, the reward center of the brain is activated by opioid molecules reinforcing sensations of pleasure.84 “[T]he . . . [food] industry has spent a
great deal of time learning the most effective ways to incorporate the
core ingredients of sugar, fat, and salt into its products.”85 “[O]ne of the
most consequential battles we face to protect our health”86 is the struggle
to avoid overeating, according to David Kessler, former Commissioner of
the U.S. Food and Drug Administration. Chemical flavoring, both artificial
and natural, allows the food industry to enhance the already pleasurable
78. Grocery Gap, supra note 9, at 14.
79. Ehrenhalt, supra note 70.
80. Larson, supra note 20, at 23 (citing Rebuilding LA’s Urban Communities: A
Final Report from RLA, MILKEN INST. (1995)).
81. Grocery Gap, supra note 9, at 14 (citing Judith Bell et al., Access to Healthy Food
and Why It Matters: A Review of the Research 9, POLICYLINK (2013), https://www.
policylink.org/sites/default/files/GROCERYGAP_FINAL_NOV2013.pdf).
82. Grocery Gap, supra note 9, at 19 (citing Bell, supra note 81).
83. Abdollah, supra note 44.
84. Id. at 5–37.
85. Id. at 88.
86. DAVID A. KESSLER, THE END OF OVEREATING: TAKING CONTROL OF THE INSATIABLE
AMERICAN APPETITE ix (2009).
Balancing Exposure to Fat, Sugar, and Salt-Laden Fringe Foods
575
experience of eating.87 “Refining foods through processing ensures that
you get a lot of calories without chewing.”88 Because there is less fiber
and water in processed food, consumers do not experience the feeling
of fullness. Expensive ingredients, like meat, are minimal and overwhelmed by breading, sauce, and injected water, keeping industry costs
low.89 “Food product developers seem perfectly willing to exploit . . .
lack of consumer awareness.”90 By selling foods that are more pleasurable, less expensive to make, and less filling, the food industry ensures
that people will eat more and profits will increase.
B. Advertising
“Food marketing to children has also been singled out as playing a key
role in this national crisis.”91 Eating habits developed at a young age while
children are impressionable are likely to be retained through life; children
are effective targets because they are susceptible to the underlying communication delivered through jingles, imagery, and slogans.92 The overwhelming majority of food and beverage advertising targeted to the
young is for products of poor nutritional quality.93 “Cookies and cakes,
pizza, and soda/energy/sports drinks are the top sources of calories in
the diets of children 2 through 18.”94 French fries account for about
one-quarter of children’s vegetable intake.95
When it comes to fast food, youth of color are exposed to significantly
more marketing than white youth.96 “Some fast food restaurants target
87. Id. at 116.
88. Id. at 95.
89. See id.
90. Id. at 102.
91. J. MICHAEL MCGINNIS ET AL., FOOD MARKETING TO CHILDREN AND YOUTH: THREAT
OR OPPORTUNITY? 1 (Inst. of Med. 2006); see also ERIC SCHLOSSER; FAST FOOD NATION: THE
DARK SIDE OF THE ALL-AMERICAN MEAL 42–46 (explaining that marketing to children
exploded in the 1980s: “The growth in children’s advertising has been driven by
efforts to increase not just current, but also future, consumption.” Children often
recognize the McDonald’s logo before they recognize their own name. “The aim
of most children’s advertising is straightforward: get kids to nag their parents
and nag them well.”).
92. Jonathan Goldman, Take That Tobacco Settlement and Super-Size It!: The DeepFrying of the Fast Food Industry?, 13 TEMPLE POL. & CIV. RTS. L. REV. 113, 119 (2003).
93. Pub. Health L. Ctr., Food Marketing to Kids, http://www.publichealthlaw
center.org/topics/healthy-eating/food-marketing-kids (last visited Jan. 4, 2016).
94. Food for Thought, supra note 12.
95. See Barbra Lorson et al., Correlates of Fruit & Vegetable Intakes in US Children,
109(3) J. OF AM. DIETETIC ASS’N 474 (2009) .
96. Yale Rudd Ctr., Fast Food Targeted Marketing 4, available at http://www.
fastfoodmarketing.org/media/FastFoodFACTS_TargetedMarketing.pdf.
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this group with advertising specifically designed to appeal to them.”97 African American youth viewed 50 percent more fast food television ads
compared to white youth.98 The big guns, McDonald’s and KFC, got
their ads in front of African American teens 75 percent more than white
teens.99 “McDonald’s is the most frequent fast food restaurants to advertise on Spanish language TV, accounting for one-quarter of youth exposure to Spanish-language fast food ads.”100 Experts agree a shift in the
marketing can have a significant impact on public health.101
C. Exodus to the Suburbs
Large chain stores have exited urban core areas in favor of suburban
locations. There are a variety of theories put forth to explain the phenomenon. Retailers claim that inner-city stores carry added costs, like security
expenses and the need for more staff. Perhaps low-income shoppers make
more trips to buy fewer products at a time, increasing labor needs.102 Yet,
a study “conducted by the U.S. Department of Agriculture in 1994, concluded that supermarket operating costs were essentially identical in the
suburbs and in the inner city.”103 Profit margins on grocery stores are notoriously low and the products are all perishable so their collateral value is
very low. “The grocery industry today is dominated by large chain supermarkets. Even though supermarkets constitute fewer than 20 percent of all
grocery stores, over 80 percent of all grocery sales are accounted by
them.”104 Inner city neighborhoods are likely to remain unattractive to
major corporations that are pursuing oligopolistic markets, which permit
large markups and provide the high profits needed in today’s economic
environment.105 “So many chains’ desire to play it safe is not surprising.”106 Government food assistance programs also play a part in profit
cycles. When the majority of shoppers in an area get help from food assistance programs, stores struggle with maintaining supply and meeting demand because there is a surge in shopping at the beginning of the month
when Supplemental Nutrition Assistance Program (SNAP) funds are
97. Id.
98. Id.
99. Id.
100. Id. at 5.
101. Food for Thought, supra note 12.
102. Ehrenhalt, supra note 70.
103. Id.
104. Larson, supra note 20, at 23.
105. Id. at 35.
106. Karen Auge, Abandoned Stores Leave Grocery Graveyards in Denver Area, DENVER P OST (May 9, 2010, 1:00 A.M.), http://www.denverpost.com/news/ci_
15047968#ixzz1tl0O1fqh.
Balancing Exposure to Fat, Sugar, and Salt-Laden Fringe Foods
577
issued.107 Purchasers become few and far between at the end of the month
when funds run low.108
Staffing and unions may be another factor at play in urban environments. Unions oppose non-union grocers like Wal-Mart.109 For example,
United Food and Commercial Workers (UFCW) has more than 1.3 million
members working primarily in grocery and retail stores and in the food
processing and meat packing industries.110 The UFCW website states
“non-union retail and grocery stores . . . are often in direct competition
with grocery and department stores where UFCW members work.” Additionally, difficulty in hiring and retaining good local workers has been
cited as a concern for big retailers.111
Lastly, bureaucratic clumsiness and land acquisition prove challenging
in urban areas. In the suburbs, usually one developer or former farmer
owns a huge parcel of land that meets the needs of a big box store.
“Merely acquiring the inner-city land for a 50,000-square-foot store can
sometimes mean negotiation with 25 or 30 individual small property owners, some who are determined to hold out for a big windfall and some
who may not want to see the store built in the first place.”112
Consumers are being affected by the manipulation of processed foods
and advertising. Food choice becomes more about availability and convenience. It does not matter whether the reason large supermarkets have
fewer stores in the urban core is the SNAP cycle, labor issues, or land acquisition costs. There is a necessity to shift the ratio of businesses so there
are more grocers offering fresh, healthy food and fewer places around to
buy only soda, chips, burgers, and fries.
IV. The Link Between Food Imbalance and Health Inequity
There are fewer grocery stores and instead more convenience stores
and fast food outlets in inner city neighborhoods all over this country,
compounded by products formulated to be addictive, intense marketing
to youth, and chain supermarkets motivated primarily by profit. All of
this could be swept under the rug as purely capitalistic concerns, but a
107. Hawkins, supra note 15, at 117 (citing a telephone interview with Laura
Fox, program coordinator, Virtual Supermarket Program in Baltimore, “Grocers
say that as the month goes on, the shopping goes down. Almost everyone uses
[food stamps] in the first two weeks. Think about how hard it is to have enough
food in stock—and then your sales plummet [in] the second half. It is difficult
for them as businessmen . . .”).
108. Id.
109. United Food & Commercial Workers Int’l Union, Grocery Workers United,
http://www.ufcw.org/industries/retail-food/ (last visited Jan. 6, 2016).
110. United Food & Commercial Workers Int’l Union, Who We Are, http://
www.ufcw.org/about/, (last visited Jan. 6, 2016).
111. Harrison, supra note 71.
112. Ehrenhalt, supra note 70.
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fundamental issue is at stake—the health of the American people. Even
more crucial, the disparate impact is causing inequity between the health
of different racial groups and those with fewer resources are getting the
short end of the stick.
Communities that have out-of-balance food environments have higher
rates of residents dying prematurely from diabetes.113 African American
communities are most likely to experience the greatest total years of life
lost from the disease.114 “[T]here are . . . links that can be made from
lack of food access to nutritious food to health care disparities.”115 These
links affect low-income individuals and especially certain racial and ethnic
groups.116 “Limited access to nutritious food and relatively easier access to
less nutritious food may be linked to poor diets and, ultimately, to obesity
and diet-related diseases.”117 Food insecurity is associated with poor physical health of young children and their caregivers, poor mental health of
caregivers, and increased developmental risk for children.118
Even if we point to personal choice for adult eating habits, there are
still young, vulnerable lives at stake. Nutrition in formative years is important for later health. A study that tracked kindergarteners for four
years found that when the prices in a city are higher for fruits and vegetables, there is increased weight gain.119 A study of adolescents found that
proximity of convenience stores was associated with reduced fruit and
vegetable intake.120 Caregivers in food insecure families are significantly
more likely to report that they are concerned for their child’s development
and their child is in poor health.121
Citizens with disease and decreased quality of life deserve a balanced
food environment that does not contribute to negative health conditions,
particularly because of the public health consequences.
V. Public Health Consequences
The greater community will feel the blow of this health inequity. Defined
as “the differences in the incidence, prevalence, mortality, and burden
of diseases and other adverse health conditions that exist among specific
113. Gallagher, supra note 46, at 6.
114. Id.
115. Hawkins, supra note 15 at 117.
116. Id.
117. ACCESS TO AFFORDABLE AND NUTRITIOUS FOOD-MEASURING 1, supra note 32.
118. See id.
119. Grocery Gap, supra note 9, at 18 (citing Let’s Move, Healthy Communities,
http://www.letsmove.gov/healthy-communities).
120. Id. at 17 (Maureen Black, Food Security: Ensuring the Health of Baltimore’s
Babies 2 (Dep’t of Pediatrics, Univ. of Maryland Sch. of Med.) (2008)).
121. Black, supra note 23, at 4.
Balancing Exposure to Fat, Sugar, and Salt-Laden Fringe Foods
579
population groups,”122 health disparities often demonstrate inequality
and become a social justice issue. Inequities, or the causes of disparities
in context, result in differences in health status that are unfair, unjust,
avoidable, and unnecessary.123 “The causes of health disparities–and the
barriers to good health and health care–are multiple and overlapping.”124
A convergence of race, poverty, and environmental elements leads to
greater overall threats to health.125 “[T]he recognition that preventing
disease and promoting health–rather than just treating disease once it
appears–has tremendous potential for reducing health disparities and improving our nation’s health.”126
“African Americans have long suffered from poorer health and premature mortality as a direct result of their disproportionately high rates of
uninsurance, HIV/AIDS, cancer, diabetes, heart disease, and obesity as
well as from the social determinants of health that not only sustain, but
that exacerbate racial and ethnic health disparities.”127 Residents with
greater access to supermarkets or a greater abundance of healthy foods
in neighborhood food stores consume more fresh produce and other
healthful items.128 “African Americans living in a census tract with a
supermarket are more likely to meet dietary guidelines for fruits and vegetables, and for every additional supermarket in a tract, produce consumption rose 32 percent.”129 Those living in neighborhoods with no supermarkets and access to only convenience stores or smaller grocery
stores had the highest rates of obesity (32 percent–40 percent) and overweight (73 percent–78 percent).130
The U.S. Surgeon General reports that two-thirds of American adults
are overweight or obese.131 The ramifications of all this extra weight are
122. Leslie Mikkelsen et al., Eliminating Health Disparities: The Role of Primary
Prevention 1, PREVENTION INST. (2002).
123. Am. Acad. of Pediatrics, Policy Statement—Health Equity and Children’s
Rights (2010) (citing N. Krieger, A Glossary for Social Epidemiology, 55 J. EPIDEMIOLOGY
CMTY. HEALTH 693 (2001)).
124. National Stakeholder Strategy for Achieving Health Equity, Executive Summary 2, available at http://minorityhealth.hhs.gov/npa/files/Plans/NSS/
NSSExecSum.pdf.
125. Mikkelsen, supra note 121, at 1.
126. Executive Summary, supra note 123, at 3.
127. Congressional Black Caucus, Our Issues: Healthcare, http://cbc-butterfield.
house.gov/issues/health-care (last visited Jan. 4, 2016).
128. Grocery Gap, supra note 9, at 12.
129. Id. at 17 (citing MORGAN SPURLOCK, DON’T EAT THIS BOOK: FAST FOOD AND THE
SUPER SIZING OF AMERICA (2005)).
130. Id. at 18 (citing L. Mikkelsen et al., Eliminating Health Disparities: The Role of
Primary Prevention, PREVENTION INST. (2002)).
131. U.S. Dep’t of Health & Human Servs., Office of the Surgeon Gen., The Surgeon General’s Vision for a Healthy and Fit Nation 1 ( 2010), available at http://www.
ncbi.nlm.nih.gov/books/NBK44660/pdf/TOC.pdf (citing K.M. Flegal et al.,
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extensive. “Obese adults are at increased risk for many serious health conditions, including high blood pressure, high cholesterol, type 2 diabetes
and its complications, coronary heart disease, stroke, gallbladder disease,
osteoarthritis, sleep apnea, and respiratory problems, as well as endometrial, breast, prostate and colon cancers.”132 The epidemic can have a huge
toll on health: the number of Americans with diabetes has tripled since
1980.133 Lowered quality of life is a big concern but ultimately, obesityrelated disease leads to more deaths. Obesity plays a part in an estimated
112,000 preventable deaths annually.134 Obesity in the United States has
reached epidemic proportions.135
No one can deny that weight gain happens over time when you take in
more calories than you use;136 eating a diet full of highly processed, highcalorie, and high-fat foods is a major cause of the crisis.137 As in real estate,
location matters: proximity of fast food restaurants is correlated with BMI
and obesity.138 When high fat, high sugar, and high salt “fringe foods” are
widely available, the cost is not just about health.
Obesity-related disease causes staggering economic costs for both the
system and individuals.139 The medical costs of obesity were estimated
at $147 billion in 2008.140 A study of data from the late 1990s revealed
that obesity-related costs were at least $10.7 billion of the total expenses
of Medicaid.141 An increase of medical spending of $271 per overweight
Prevalence and Trends in Obesity Among US Adults, 1999–2008, 303(3) J. AM. MED.
ASS’N 235 (2010)).
132. Id at 2 (citing NAT’L INSTS. OF HEALTH, CLINICAL GUIDELINES ON THE IDENTIFICATION, EVALUATION, AND TREATMENT OF OVERWEIGHT AND OBESITY IN ADULTS—THE EVIDENCE REPORT (1998)).
133. Id. at 4 (citing Ctrs. for Disease Control, Diabetes Data & Trends; Number (in
Millions) of Civilian/Noninstitutionalized Persons with Diagnosed Diabetes, United
States, 1980–2006, available at http://www.cdc.gov/diabetes/statistics/prev/
national/figpersons.htm).
134. Id. (citing K.M Flegal et al., Excess Deaths Associated with Underweight, Overweight, and Obesity, 293(15) J. AM. MED. ASS’N 1861 (2005)).
135. Ctrs. for Disease Control, U.S. Obesity Trends: Trends by State 1985–2009,
http://www.cdc.gov/obesity/data/trends.html.
136. Nat’l Insts. of Health, Diseases and Conditions Index—What Causes Overweight
and Obesity?, http://www.nhlbi.nih.gov/health/dci/Diseases/obe/obe_causes.html.
137. Eat Less Processed Food, Say Experts, BBC NEWS (Mar. 3, 2003, 11:25 A.M.),
http://news.bbc.co.uk/2/hi/health/2814253.stm.
138. See ACCESS TO AFFORDABLE AND NUTRITIOUS FOOD-MEASURING, supra note 32.
139. John Cohan, Obesity, Public Policy and Tort Claims Against Fast-Food Companies, 12 WIDENER L.J. 103, 106 (2003).
140. Ctrs. for Disease Control, Vital Signs, Adult Obesity: Obesity Rises Among Adults,
http://www.cdc.gov/vitalsigns/AdultObesity/index.html (last visited Jan. 4, 2016).
141. Eric A. Finkelstein et al., National Medical Spending Attributable to Overweight and Obesity: How Much, and Who’s Paying?, W3 HEALTH AFFAIRS 219 (2003),
available at http://nepc.colorado.edu/files/CERU-0305-71-OWI.pdf.
Balancing Exposure to Fat, Sugar, and Salt-Laden Fringe Foods
581
adult and an $864 increase for obesity can be attributed to extra weight.142
On a state level, “obesity-attributable Medicaid expenditures range from
$23 million (Wyoming) to $3.5 billion (New York).”143 The burden of
these costs paid by government programs falls on taxpayers.
VI. Responses
From broad national programs to neighborhood nonprofit plans, the
lack of food access is being addressed on many fronts. There are too
many programs to detail them all here but a sampling of what is being
done provides some insight.
A. The White House
The Healthy Food Financing Initiative (HFFI),144 launched by the
Obama administration, “is a partnership between the U.S. Departments
of Treasury, Agriculture, and Health and Human Services to provide financing for developing and equipping grocery stores, small retailers, corner stores, and farmers markets selling healthy food in underserved
areas.”145 HFFI brings the expertise and resources together to give stakeholders a full range of tools to increase access to healthy foods.146
B. Food Stamps
Food stamps have served as the nation’s first line of defense against
hunger and offer a powerful tool to improve nutrition among low-income
people.147 “In fiscal year 2014, about 46.5 million people living in nearly
22.7 million U.S. households participated in the USDA Supplemental Nutrition Assistance Program, on average, per month.”148 Among food insecure families, nutrition-related assistance programs (WIC and food
stamps) are associated with better health.149 Yet, less than half of food
142. Id.
143. Ctrs. for Disease Control, Overweight and Obesity: Economic Consequences,
http://www.cdc.gov/obesity/causes/economics.html (last visited Jan. 4, 2016)
(citing E.A. Finkelstein et al., State-Level Estimates of Annual Medical Expenditures
Attributable to Obesity, 12(1) OBESITY RESEARCH 18 (2004)).
144. Office of Cmty. Servs., Healthy Food Financing Initiative, http://www.acf.
hhs.gov/programs/ocs/programs/community-economic-development/healthyfood-financing (last visited Jan. 6, 2016).
145. Let’s Move, Healthy Communities, http://www.letsmove.gov/healthycommunities.
146. Healthy Food Financing Initiative, supra note 143.
147. U.S. Dep’t of Agric., Building a Healthy America: A Profile of the Supplemental
Nutrition Assistance Program 1 (2012), available at http://www.fns.usda.gov/sites/
default/files/BuildingHealthyAmerica.pdf.
148. U.S. Dep’t of Agric., Characteristics of Supplemental Nutrition Assistance Program Households: Fiscal Year 2014 (Summary), http://www.fns.usda.gov/sites/
default/files/ops/Characteristics2014-Summary.pdf.
149. Black, supra note 23, at 6.
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insecure families in Baltimore receive both WIC and food stamps.150
SNAP benefits have decreased: the average monthly benefit received by
SNAP households in 2014 was $253, as compared to $275 in 2013.151
C. Michelle Obama
“Let’s Move! is a comprehensive initiative, launched by the First Lady,
dedicated to solving the problem of obesity within a generation so that
children born today will grow up healthier and be able to pursue their
dreams.”152 At the launch of the initiative, President Barack Obama
signed a presidential memorandum creating the first-ever Task Force on
Childhood Obesity to conduct a review of every single program and policy relating to child nutrition and physical activity, develop a national action plan to maximize federal resources, and set concrete benchmarks toward the First Lady’s national goal.153 Part of Let’s Move is ensuring that
every family has access to healthy, affordable food.154 In her 2012 book,
American Grown, Michelle Obama writes about the White House Kitchen
Garden and explores “communities that are transforming the lives and
health of their citizens.”155 The First Lady also attended a summit hosted
by Chicago Mayor Rahm Emmanuel about strategies to increase the availability of healthy, affordable food in underserved communities in October
2011.156 She invited the audience to “[t]hink about all the neighborhoods
that could be transformed . . .”157
D. Small Pharmacies
In 2012, Walgreens planned “to turn at least 500 of its 7,800 U.S. stores,
most in low-income neighborhoods, into . . . ‘food oases.’ ”158 Spokesman
Jim Graham said “the company is committed to expanding healthy food
options.”159 According to the company’s website, “Walgreens is reviewing opportunities to bring its expanded food selection to other food deserts across the country.”160 Marjorie Sawicki, assistant professor of
150. Id. at 7.
151. Characteristics of Supplemental Nutrition Assistance Program Households, supra
note 147.
152. Let’s Move, America’s Move to Raise a Healthier Generation of Kids, http://
www.letsmove.gov/about.
153. Id.
154. Id.
155. MICHELLE OBAMA, AMERICAN GROWN (2012).
156. America’s Move to Raise a Healthier Generation of Kids, supra note 151.
157. Id.
158. Georgina Gusin, Walgreens Targets “Food Deserts” in Cities, ST. LOUIS TODAY
(Jan. 22, 2012, 12:15 A.M.), http://www.stltoday.com/business/local/walgreenstargets-food-deserts-in-cities/article_35433d92-439b-11e1-9e05-0019bb30f31a.html.
159. Id.
160. Walgreens, Creating Access to Healthier Food Options, http://www.
walgreens.com/topic/sr/sr_diversity_food_desert.jsp (last visited Jan. 19, 2016).
Balancing Exposure to Fat, Sugar, and Salt-Laden Fringe Foods
583
nutrition and dietetics at St. Louis University, thought the program at
Walgreens could “make a small dent in nutrition-poor diets,”161 but the
pace thus far has been disappointing. In 2015, fruits and vegetables
were sold in only 160 stores.162
E. Local Initiatives
In 2003, it was first suggested that communities could combat the public health threat posed by fast food by issuing zoning laws that restrict
where and how fast food outlets operate.163 Communities have the opportunity to exert a wide variety of restrictions on fast food restaurants
through zoning laws.164 Permits can be made conditional and used to encourage restaurants to improve the nutritional quality of their food and
create buffer zones between fast food restaurants and schools.165 Several
California cities have moved forward with zoning restrictions. Carlsbad
and Calistoga, in an effort to preserve the historic character of their
towns, have banned drive-through service restaurants.166 Westwood Village in Los Angeles limits how close restaurants can be to one another.167
“[P]olicy changes monitoring new construction and zoning may steer grocery stores into food deserts.”168
Los Angeles has several programs under the umbrella of the Los Angeles Food Policy Council (LAFPC), a nonprofit group that is housed in the
Los Angeles City Hall.169 LAFPC’s Good Food Purchasing program,
161. Id.
162. Barbara Soderlin, Some “Food Deserts” Remain Just That, Even As Retailers
Open Supermarkets Here and Nationwide, OMAHA WORLD HERALD (Dec. 21, 2015), available at http://www.omaha.com/money/some-food-deserts-remain-just-that-evenas-retailers-open/article_6bc4ee31-9c16-5994-96a8-193d16139311.html.
163. Marice Ashe et al., Land Use Planning and the Control of Alcohol, Tobacco,
Firearms, and Fast Food Restaurants, 90 (9) AM. J. OF PUB. HEALTH 1404 ( 2003).
164. See Sally Lawrence et al., Fast Food Primer: A Tool for Community Advocates
( June 2008), available at http://eatbettermovemore.org/SA/enact/neighborhood/
documents/community.fastfood.tools.primer_advocates.pdf.
165. Strategic Alliance, Setting the Bar: Recommendations for Food and Beverage
Industry Action (2006), available at www.preventioninstitute.org/sa/fruit/
settingthebar.pdf.
166. Julie Samia Mair et al., The City Planner’s Guide to the Obesity Epidemic: Zoning and Fast Food 5–6, Ctr. for Law & Public’s Health at Johns Hopkins & Georgetown Univs. (2005).
167. Id.
168. Feldman, supra note 16.
169. Los Angeles Food Policy Counsel, History, http://goodfoodla.org/about/
history/ (“In September 2009, Mayor Antonio Villaraigosa announced the creation
of the Los Angeles Food Policy Task Force. . . . In July 2010, the Los Angeles Food
Policy Task Force presented the ‘Good Food for All Agenda’ to Mayor Villaraigosa.
The Los Angeles Food Policy Council (LAFPC) was created as a result. LAFPC
continues to be housed at Los Angeles City Hall thanks to the Office of Mayor
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adopted by the city and the LA Unified School District, fuels procurement
of “local, sustainable, fair and humanely produced foods, while improving access to healthy, high-quality food for all communities.”170 The
Healthy Neighborhood Market Network is also a LAFPC program. The
Network offers free training for food businesses, entrepreneurs, and market makeovers to “build the capacity of corner store and neighborhood
market owners to operate as successful healthy food retailers in underserved communities.”171 Over 600 neighborhood market owners and
food entrepreneurs have been touched by the Network’s outreach
efforts.172
In 2010, the Baltimore Food Policy Initiative (BFPI), an intergovernmental collaboration, was founded “to improve health outcomes by increasing
access to healthy affordable food in Baltimore City’s food deserts.”173 BFPI
has made some progress. The process for a farmer’s market permit was
simplified and streamlined, the building code was improved to reduce
the amount of red tape for urban agriculture, regulations were updated
so residents can keep chickens and bees, and mobile food vending rules
were updated. In May 2015, Baltimore also passed an urban farm tax
credit.174
The Food Trust has worked hard to influence the food environment in
Philadelphia. The organization’s director points to “a growing a network
of over 600 bodegas that now offer healthier options, passing a menulabeling law for fast-food restaurants, banning soda in the schools, offering strong nutrition-education programs, opening 10 new farmers’ markets in low-income neighborhoods and working in partnership with the
state to invest in grocery-store development” as positive changes.175
Expanding these programs, particularly city zoning, will improve the
food imbalance but more must be done. Municipal and county governments could address the problem through the housing code.
Eric Garcetti and operates as an independent nonprofit under fiscal sponsorship of
Community Partners.”)
170. L.A. Food Pol’y Counsel, Good Food Purchasing Policy, http://goodfoodla.
org/policymaking/good-food-procurement/.
1 7 1 . H e a l t h y N e i g h b o r h o o d M a r k e t N e tw o r k , A b o u t Us , h t t p s : / /
communitymarketconversion.files.wordpress.com/2014/05/about-hnmn-v2.pdf.
172. L.A. Food Pol’y Counsel, Healthy Neighborhood Market Network, http://
goodfoodla.org/policymaking/healthy-neighborhood-market-network/.
173. City of Baltimore, Baltimore Food Policy Initiative (2010), http://archive.
baltimorecity.gov/Government/AgenciesDepartments/Planning/BaltimoreFood
PolicyInitiative/About.aspx.
174. Press Release, Johns Hopkins Bloomberg Sch. of Public Health, Baltimore
Passes Urban Farm Tax Credit (May 4, 2015), http://www.globalobesity.org/
gopc-news/2015/baltimore-urban-farm-tax-credit.html.
175. Brat, supra note 50.
Balancing Exposure to Fat, Sugar, and Salt-Laden Fringe Foods
585
VII. Proposed Solution
Local governments have another tool to address food access imbalance
on a community level. Food swamps need more outlets selling healthy
food and fewer fast food restaurants, convenience stores, corner stores,
and liquor stores selling chips, candy, and soda. One way to address
the problem is to shift the burden from those who lack political power
to those who have resources.
Poor minorities residing in food deserts often lack the resources to
make their voices heard in government and effectuate change. Putting
pressure on those with power and resources would address the problem.
If the burden of the food desert is shifted to those with resources and influence, it is more likely that solutions would be brought to fruition.
One way to enact a shift would be revision of local housing policy. For
example, a city could require that the application or renewal of a property
rental license be contingent on access to a retail food establishment selling
healthy options within a reasonable distance of the rental property.176
This could be a grocery store or supermarket, but it could also be a corner
store selling fruits, vegetables, and meal ingredients rather than chips,
soda, and candy. Municipalities could base this access on a reasonable distance that is appropriate for the local area. In essence, cities would be codifying an extension of the implied warranty of habitability by requiring
landlords to ensure that healthy food is available for tenants.
Local governments have different avenues to enact a housing food access policy through legislative action or administrative regulation. In jurisdictions where lawmakers are concerned about the health disparities
caused by poor food access, advocates should consider legislative action.
For example, in a city where the council is interested in enacting public
health change, an ordinance could be proposed.
In less politically temperate governments, administrative rulemaking
may be more viable. Paul A. Diller of the Willamette University College
of Law points out that “evidence from big cities shows that food retail
regulations have been implemented by administrative rule more frequently. . . .”177 Diller calls cities’ record of administrative regulation in
the public health realm “impressive.”178 He also notes that action first
176. Bell, supra note 31, at 9 (noting “The Reinvestment Fund (TRF) considers a
‘reasonable distance’ to be one that is “comparatively acceptable” to the distance
traveled by residents in well-served areas. TRF defines ‘comparatively acceptable’
as the distance that residents of well-served areas (block groups with incomes
greater than 120 percent of the area’s median income) travel to the nearest supermarket. The USDA defines ‘reasonable distance’ as the presence of a supermarket
within one mile of a person’s residence.”).
177. Paul A. Diller, Local Health Agencies, the Bloomberg Soda Rule, and the Ghost of
Woodrow Wilson, 40 FORDHAM URB. L. J. 1859, 1865 (Oct. 2013).
178. Id at 1861.
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taken at the local level by an administrative agency can diffuse horizontally to other jurisdictions or vertically to higher levels of government.179
San Francisco’s Housing Code already recognizes that preparation of
adequate food is a necessary right for tenants. Every dwelling unit must
have “a kitchen having adequate and clean facilities for the preparation,
storage and preservation of food. . . .”180 Other municipal housing codes
can follow San Francisco’s lead and take it a step further by requiring
access to adequate, healthy food.
Opponents of a housing food access policy may argue that access to
food is a service outside of a building owner’s control. Yet, local laws in
some jurisdictions already require similar services. For example, in New
York City, the owner of multi-unit dwellings must provide mail receptacles that meet federal law and post office regulations.181 Minneapolis also
requires owners to provide a “mail deposit box for each rental unit.”182
Another similar obligation is the requirement for owners of apartment
buildings in New York City to provide janitorial services.183 When landlords are already providing for external services like cleaning and mail,
it is not a stretch to require access to a proper healthy food retailer.
“When public health advocates seek to address the root causes of noncommunicable diseases and injuries, they put themselves on a collision
course with powerful, wealthy interests. . . .”184 Based on recent events
in Pittsburgh185 and Portland,186 jurisdictions considering imposing a
housing food access policy on property owners should be prepared for
a legal challenge.
Although “[c]ities across the state use common sense licensing programs” to regulate landlords,187 local governments should explore the
risk of a challenge on jurisdictional grounds. Pittsburgh landlords recently
sued the city over rental licenses based on restricted authority under
179. Id at 1866.
180. S. F. HOUSING CODE, Ch. 5, § 505(c) (2013).
181. N.Y.C. ADMIN. CODE § 27-2047 (2015).
182. MINNEAPOLIS HOUSING CODE, ch. 244, art. VI, § 655 (2015).
183. N.Y.C. ADMIN. CODE § 27-2053 (2015).
184. Lindsay F. Wiley et al., Who’s Your Nanny? Choice, Paternalism and Public
Health in the Age of Personal Responsibility, (1-SI) J.L. MED. & ETHICS 88, 89–90 (Feb.
2013), available at http://www.aslme.org/media/downloadable/files/links/j/l/
jlme-41_1-wiley-supp.pdf.
185. Bob Bauder, Pittsburgh Landlords Sue City over Registry Ordinance, TRIBLIVE
(Dec. 30, 2015, 2:06 P.M.), available at http://triblive.com/news/allegheny/
9715174-74/landlords-pittsburgh-ordinance#axzz3xjY8efqU.
186. Nigel Jaquiss, Portland Landlord Challenges New City Ordinance on Rent Increases, WILLAMETTE WK. (Nov. 17, 2015), available at http://www.wweek.com/
2015/11/17/portland-landlord-challenges-new-city-ordinance-on-rent-increases/.
187. Bauder, supra note 184.
Balancing Exposure to Fat, Sugar, and Salt-Laden Fringe Foods
587
home rule.188 In November, a Portland, Oregon, landlord challenged a notice ordinance, arguing that it was preempted by state law. These challenges echo the court rulings that limited the power of local government
in New York City on soda size and Bullit County, Kentucky, on indoor
smoking.189 By considering jurisdictional challenges at the outset, a municipality can prepare a legally sound policy or at least be ready for any
litigation.
Landlords, with more resources at their disposal and stronger political
voices, are generally in a stronger position than tenants. If a requirement
for grocery access left property owners unable to rent their units, change
would be more rapid. Local governments that forge ahead with a housing
food access policy can be comforted that they may be taking “the crucial
first step in policy diffusion.”190
VIII. Conclusion
The impact of food access issues on the American urban core falls inequitably on minority communities of color. Examples from Baltimore,
Chicago, Detroit, and Los Angeles make it clear that the problem touches
all parts of the country. This issue is not just about fairness and disparity.
The consequences affect economics and public health; productivity of
workers is lost and more tax dollars are spent on health care.
To dry the swamps and hydrate the deserts, we need to shift the burden
to powerful landlords. A serious component of the health disparity that
plagues residents in the urban core must be addressed with meaningful
change. National programs and local zoning ordinances limiting fringe
food outlets are positive steps, but municipal and county governments
can take another step by making rental licenses contingent on the availability of a healthy food source in the area. All local government policy makers
need to provide convenient and affordable ways for citizens to bypass junk
food and choose fresh vegetables to balance the food environment.
188. Id.
189. Bullitt Fiscal Court v. Bullitt Cty. Bd. of Health, 434 S.W.3d 29 (Ky. 2014); In
Re N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. New York City
Dep’t of Health & Mental Hygiene, 110 A.D.3d 1 (N.Y. App. Div. 2013). See also
Oral Argument Transcript No. 134, In Re N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. New York City Dep’t of Health & Mental Hygiene ( June 4,
2014), available at https://www.nycourts.gov/ctapps/arguments/2014/Jun14/
Transcripts/060414-134-Oral-Argument-Transcript.pdf.
190. Diller, supra note 176, at 1866.