An Ohio appeals court has determined that Ohio legislators improperly enacted an appropriations bill rider that was intended to preempt a Cleveland ordinance prohibiting the use of “industrially produced trans fat” in foods prepared by retail food establishments and food service operations, such as fast-food restaurants, unless the foods were served “in a manufacturer’s original sealed package.” City of Cleveland v. Ohio, No. 98616 (Ohio Ct. App., 8th App. Dist., Cuyahoga Cty., decided March 28, 2013). Additional information about Cleveland’s lawsuit challenging the state law appears in Issue 422 of this Update.

The court agreed with the city that the state law was an unconstitutional attempt to preempt the city from exercising its home rule powers under the state constitution and that the provisions, enacted as amendments to a state appropriations bill, violated the constitution’s one subject rule. In determining that the appropriations bill amendment was not a “general law,” the court found that it (i) was “largely devoid of specific food content regulation” such as the prohibition found in the city ordinance and thus that the state law “is not part of a statewide and comprehensive legislative enactment”; (ii) failed to address retail food establishments, because by its terms it “applies only to food service operations,” and thus did not have “a uniform application throughout the state”; (iii) did not set forth any regulation on food content while preempting municipal legislative action on food content, thus serving only to curtail Cleveland’s police powers; and (iv) “fails to prescribe any rule of conduct upon the citizens of Ohio in regard to the broader topics of food nutrition information and food content that it purports to regulate.”

As for the one-subject rule violation, the court addressed the process of its enactment and concluded, “[T]he amendments were drafted on behalf of a special interest group with the specific purpose of snuffing out the Ordinance.” The preemption provisions were “tucked away” in a two-year Senate appropriations bill and “were not vetted by the usual committee process.” The House did not vote on the provisions, nor were there any hearings on them. They were unsupported by nutritionist, dietitian or other health care professional testimony. And they took “up less than two pages of an appropriations bill in excess of 3,000 pages.” According to the court, these facts “create a strong suggestion that the provisions were combined for tactical reasons. The amendments in this case present us with a classic instance of impermissible logrolling.” The court affirmed the trial court’s grant of the city’s motion for summary judgment.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.