Cleveland Fights Ohio Over Transfat Ban

CLEVELAND (CN) - Cleveland told Ohio to butt out of the city's restaurant business, and sued the state for trying to pre-empt a new city law barring "industrially based trans fats."

Cleveland says Ohio amended its Revised Code "with the intent of preempting the City and other municipalities from adopting and enforcing local ordinances ... to protect public health," including a new Cleveland ordinance banning industrially based trans fats.

Trans fats, also called monounsaturated or polyunsatured, are rare in nature but occur in food preparation, and are believed to contribute to coronary disease and high cholesterol.

In its complaint in Cuyahoga County Court, Cleveland says, "to address the recognized public health concerns and increased risks of disease associated with the consumption of industrially based trans fats, City Council enacted Codified City Ordinance 241.42 ('CCO 241.42') as an emergency ordinance on April 25, 2011."

The law states that "(a) No foods containing industrially produced trans fat, as defined in this section, shall be stored, distributed, held for service, used in preparation of any menu item or served in any food shop, as defined in Section 241.03(b) of this code or successor provision, except food that is being served directly to patrons in a manufacturer's original sealed package."

Shortly after the ordinance was adopted, the Ohio Restaurant Association asked the General Assembly to amend its "Revised Code 3717.53 as part of Am. Sub.H.B. No. 153, a bill purporting 'to make operating appropriations for the biennium beginning July 1, 2011 and ending June 30, 2013; and to provide authorization and conditions for the operation of programs including reforms for the efficient and effective operation of state and local government.'" (graf 25)

Among the changes in the bill were these stipulations: "The regulation of the provision of food nutrition information and consumer incentive items at food service operations and how food service operations are characterized are matters of general statewide interest that require statewide regulation, and rules adopted under this section ... shall be applied uniformly throughout this state.

"(C) No political subdivision shall do any of the following:

"... (3) Ban, prohibit, or otherwise restrict food at food service operations based on the food nutrition information or on the provision or nonprovision of consumer incentive items."

Cleveland says the amendments are unconstitutional because R.C. 3717.53 is not a general law; attempts to pre-empt the city's municipal home rule; and violates the one subject rule of the Ohio Constitution.

Specifically, "The City believes and therefore avers that the amendments to sections R.C. 3717.53, excepting those amendments addressing 'consumer incentive items,' were included by the General Assembly in Am. Sub.H.B. No. 153 for the specific purpose of preventing the city and other municipalities from addressing identified municipal public health concerns through the adoption and enforcement of local legislation."

Cleveland says, "CCO 241.42 was enacted to protect the public health by banning local sale and use of industrially based trans fat in foods prepared and sold locally by food shops located within the City.

"CCO 241.42 does not conflict with the general laws of the State."

Cleveland seeks declaratory judgment that enforcement of the amended state code is unconstitutional. It is represented by Gary Singletary.

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