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Healthy Food, Grassroots Action, and Preemption: An Interview with Jill Birnbaum

January 11, 2013

“[Preemption] slows or even ends grassroots movements often before they begin. I think it also drains a lot of our resources for future advocacy efforts. We leave it to the next generation of public health advocates to undo policy compromises that we make today.”


Grassroots Interview: Jill Birnbaum

Jill Birnbaum is the Vice President of State Advocacy and Public Health with the American Heart Association.  She’s one of those rare advocates who, to paraphrase Joni Mitchell, has looked at public health from “all sides now.” At the American Heart Association, she’s been an effective leader in tobacco control, nutrition policy, health care reform and other issues, working at the federal, state, and local levels. She started in Minnesota, and now oversees advocacy operations in all 50 states. Her grassroots experience combined with her national role give her unique insights into public health policy at all levels of government.

In the first part of Grassroots Change’s two-part series, Jill shares her perspective on the threat of preemption in the obesity prevention arena.  Stay tuned for the second part of Jill’s interview about grassroots obesity prevention, the food industry, and lessons learned from tobacco control.

Grassroots Change:  What do you see as the impact of preemption in public health, especially in obesity prevention?

Jill Birnbaum:   It slows or even ends grassroots movements often before they begin. I think it also drains a lot of our resources for future advocacy efforts. We leave it to the next generation of public health advocates to undo policy compromises that we make today. We’re still seeing that in a few states with tobacco, and anticipating the fights both at the federal and state levels that we might have to undo someday [in obesity prevention].

Preemption stifles innovation, and it also makes some assumptions that can be wrong. It assumes that we know everything today and that there’s nothing more that we have to learn tomorrow. That’s especially true in nutrition policy where science continues to evolve and policy needs to evolve along with the science.

It also has the effect of dividing the [public health] community when a small group of people, in some cases even a single individual or organization, negotiates away something that other people really want.

GC:     Are the concerns about preemption in obesity prevention mostly about nutrition policy?  There doesn’t seem to be a major effort to preempt local physical activity policies.

JB:      Yes. It is almost exclusively food, and it’s not just state preemption – we are exceptionally vulnerable federally as well.

GC:     Ohio, Arizona, and Florida, among others, have recently adopted state laws preempting local nutrition ordinances. What do you see on the horizon for state preemption in the obesity arena for 2013?

JB:      We remain incredibly vulnerable on this front because our ability to fight these insider efforts requires two things.  One is experienced lobbyists on our side inside the state capitols.   Those we currently have — while they’re passionate, committed and very talented — really don’t match the resources of industry in the state legislatures, and certainly not at the federal level.  And two, further education of the public health community is needed so that we can be vigilant.  In tobacco, it’s part of our DNA that preemption needs to be avoided. But we’re not there yet on the obesity front. We’re fortunate to have people that have [tobacco control experience] transitioning into the obesity movement, but we also have a lot of new advocates and need to bring them along in that understanding that preemption is something to be avoided.

GC:     One knowledgeable obesity policy advocate predicted that there could be a “tsunami” of state preemption in 2013.  Do you think that’s an accurate assessment?

JB:      I do, and it’s because [the food industry] has seen these local victories, and we don’t have that sensitivity [about preemption] yet among obesity prevention advocates. That tsunami could easily be there, depending on the level of organizing by industry to promote preemption.

One recent example was a [state] constitutional amendment that if passed, would preempt all taxes on foods and beverages. That happens by ballot measure, and the ability to do it differs from state to state. We lack the resources at the field level to fight these battles and [the industry is] very powerful, whether it’s the grocers or the restaurants or the food industry within a state.

In California, they had several local propositions around sugar sweetened beverage taxes.  We estimate we were outspent 70 to 1.  It gives you a sense of how much industry is willing to spend.  They’re trying their best to keep the movement from happening, whether it’s by legislative preemption or constitutional amendments, and my sense is they’re willing to do whatever it takes right now to fend us off long enough that, they hope, we will move on to something else.

GC:     What do you see on the horizon at the federal level?

JB:      We’ve already been touched by preemption with the federal menu labeling law. This is an example of where preemption can be very challenging, not only in terms of movement building, but also in getting the federal government to take a leadership role. We still haven’t seen the [menu labeling] regulations. That law has still not been implemented. It was passed as part of the Affordable Care Act [in 2010], and we don’t know when we’ll see those. And once we get those regulations, we assume that they won’t be as fully implemented as we would have hoped. Then we’ll have to deal with the downstream of preemption, which is, “Oh yeah, there’s absolutely nothing we can do to at the state or local level” to go above and beyond the federal regulations.

As of right now, I don’t see any major federal preemption risks on the horizon, but that said, we are always vulnerable at the federal level.  First, we don’t always have the conversations we need about bottom lines across the spectrum of public health advocates, and second, [we are vulnerable because of] the amount of power that the grocery, restaurant, and food industry in general has at the federal level.

GC:     Who do you think needs to be involved in deciding about federal or state preemption?

JB:      When it comes to federal preemption, there needs to be involvement of those outside of Washington. There can be a lack of appreciation of the role that state and local policy can play in broader public health initiatives. We’ve proven in tobacco control that federal leadership is not always what’s needed in public health policy. In fact, staying away [from an issue at the federal level] may be the decision that we make.  The advantage we’ve had in tobacco is that we had those conversations, and we’ve opposed moving smoke-free policy at the federal level — opposed having it even introduced — in an effort to avoid bad policy, but we got there by having those discussions across the community.

In obesity policy, we’re still in our infancy in having federal, state, and local leaders come together and discuss how to advance our agenda at each of those levels. It needs to be a strategic discussion. If our endpoint is helping consumers demand healthier food, how do we use all of the tools in our toolbox to get there? Preemption then becomes part of that discussion before we even introduce legislation.

GC:     What’s your takeaway message for obesity prevention advocates, and public health professionals in general, about preemption?

JB:      I hope we get to a place where the default position is that we oppose it. We should have those discussions before we’re faced with a difficult choice in a compromised position. So, before we introduce legislation at the federal or state level that could become a vehicle for preemption. We need to have those discussions on bottom lines, and the discussions need to be inclusive of those who are working at the federal, state, and local levels.