We seem to have finally reached and surpassed a critical mass in the trans fat debate. Trans fat has been all over the news lately, spurred on by lawsuits and New York City’s highly publicized ban on artificial trans fat that went into effect on December 5, 2006. But really, the trans fat debate has been going on for almost twenty years. Only recently have consumer and public interest groups been successful in getting the word out to the public: trans fat is BAD. So bad, in fact, that in July 2002 the National Academy of Science’s Institute of Medicine concluded that the only safe level of trans fat in the diet is “zero.”1
Trans fat is a monounsaturated fat that occurs naturally in low levels in milk and beef, but 80 percent of the trans fat Americans consume is from partially hydrogenated vegetable oil. The hydrogenation process creates an artificial “Frankenfat” through an industrial process that causes the hydrogen molecules in unsaturated and polyunsaturated fats to switch over from one side of the carbon chain to the other. Normally unsaturated fatty acids are in a liquid state. But hydrogenation causes the unsaturated fatty acids to solidify at room temperature. The inexpensive oils are attractive to food manufacturers because they have a longer shelf life and longer fry life than other oils. That makes them useful for fried foods like French fries, donuts, and taco shells. And they give baked goods like cookies, crackers, and pies the texture that previously came from lard.
Trans fat, like saturated fat, increases the “bad” (LDL) cholesterol in our blood. And unlike saturated fat, trans fat also decreases the “good” (HDL) cholesterol in blood. It changes the membrane composition of your cells, making the cellular membranes more rigid, in exactly the same way it makes liquid oil turn into a rigid stick of margarine. A Harvard School of Public Health Report estimates that eliminating trans fats from diets could prevent 30,000 to 100,000 deaths in the United States annually.2 Partially hydrogenated oils, notwithstanding their harmfulness, are considered by the U.S. Food and Drug Administration (FDA) to be “Generally Recognized As Safe” (GRAS).
In 1994, the Center for Science in the Public Interest (CSPI), a health-advocacy organization, petitioned the FDA to require food manufacturers to disclose trans fat contents in packaged foods. In 2003, the FDA finally agreed, but gave food companies until 2006 to comply. The labeling regulation has spurred many food manufacturers (including Frito-Lay and Kraft) to replace partially hydrogenated vegetable oil with ingredients that do not contain trans fat, simply so that they don’t have to tell consumers that their foods do contain trans fat. Food manufacturers have practically raced to make the switch.
During the 1990s and early 2000s, new studies confirmed that trans fat was even more harmful than other fats and attention turned from prepackaged food to restaurants, yet the FDA has been slow to act. In July 2000, CSPI petitioned the FDA to require restaurants immediately to disclose on menus, menu boards, or signs the presence of artificial trans fat in their foods, but the FDA rejected the petition. On May 6, 2004, CSPI petitioned the FDA to revoke the GRAS status of partially hydrogenated oils. That petition is still pending. Major chains like Wendy’s, Pizza Hut, Subway, and Starbucks are finally starting to replace partially hydrogenated oils with healthier alternatives. Even McDonald’s says it has a “large-scale test market” underway. But some other big chains, like Burger King, and thousands of small restaurants have shown little or no signs of switching. Restaurants are not required to disclose the amounts of trans fats in their foods, meaning there is no labeling incentive. Thus, other incentives are being pursued – namely lawsuits and local bans like the one in New York. Many of these efforts have been successful. In June 2006, for example, CSPI and a private law firm represented a DC physician in a lawsuit against KFC for serving foods that contained large amounts of trans fat. Just a few months later, KFC announced that it would switch from partially hydrogenated oil to healthier oil. CSPI withdrew from the lawsuit.
On December 5, 2006, the New York City Board of Health approved an amendment to the Health Code requiring the phase-out of trans fats. The Health Code applies to all food service establishments that the Department of Health inspects. First, restaurants within the city will have until July 1, 2007, to make sure that all oils, shortening, and margarine containing artificial trans fat used for frying or for spreads have less than 0.5 grams of trans fat per serving. Oils and shortening used for doughnuts and baked goods are not included in the first deadline. The deadline for those foods is July 1, 2008. By that date, all foods containing artificial trans fat must have less than 0.5 grams of trans fat per serving. Packaged foods served in the manufacturer’s original packaging are exempt.
A Call to Arms
The fight against trans fats has had a measure of success, but much more work needs to be done. State legislatures and City Councils must enact these bans to protect their own citizens. Philadelphia followed New York City’s example in approving a trans fat ban on F3ebruary 8, 2007. These bans are clear, effective, and they will hold up under legal scrutiny. The bans do face two legal hurdles: preemption challenges and Commerce Clause challenges. However, the bans should survive both of these types of legal challenges.
The restaurant industry may fight back with a number of legal arguments against a straight-out ban, including federal preemption. But there is no preemption issue here, as the FDA regulations do not address anything other than the GRAS status of trans fat and the labeling requirements. A state is free to set and enforce more rigorous standards than those set or enforced by the federal government.4 Thus, absent express preemptive language, the state law must either create a fatal conflict with compliance with federal laws or regulations or be so broad so as to frustrate the purposes of those laws or regulations.5
It is true that under Hillside Dairy Inc. v. Lyons, 539 U.S. 59 (2003) stricter state laws on the same point are preempted by the Food, Drug, and Cosmetic Act (FDCA). However, since the only federal laws or regulations in place in the United States regarding trans fat are FDA’s grant of GRAS status and FDA’s regulations requiring the disclosure of trans fats on nutrition labels, any preemption argument would probably focus on some conjectured FDA policy that favors disclosing trans fat in food rather than banning it.6 But even the current do-nothing FDA is very unlikely to come out in support of trans fat, so there is only a very slim chance for conflict with federal policy.7
State and local governments are legally free to set standards that are more protective of public health than the FDA has established in those areas – such as the safety of food ingredients – for which Congress has not explicitly pre-empted such action. Moreover, there is a basic presumption against preemption of state law.8 That presumption is even stronger when state regulation of matters of health and safety are involved,9 and when federal regulation would work to preempt state tort remedies.10
Therefore, any preemption-based argument against local bans on trans fat is almost certain to fail.
Under the Commerce Clause of the U.S. Constitution, Congress may regulate the following: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce or persons or things in interstate commerce, and (3) activities that substantially affect interstate commerce.11
A local ban on trans fat does not violate the Commerce Clause any more than would zoning limits on porn palaces, regulation of plumbers, or speed limits. This is because a ban does not prevent anyone from buying, selling, or trading in interstate commerce and does not discriminate against out-of-state commerce. Mere inconvenience – alternatives to partially hydrogenated oil are generally available – to multi-state restaurant chains does not amount to a violation of the Commerce Clause.
When analyzing a state regulation under the Commerce Clause, the first question is whether the regulation is discriminatory on its face. Such discrimination exists if the regulation treats in-state economic interests differently from economic interests of companies in other states.12Discriminatory regulations are subject to a strict scrutiny analysis and have been held to be virtually per se invalid.13
Non-discriminatory violations, on the other hand, which have only an incidental impact on interstate commerce, are subject to the balancing test outlined in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). A regulation is a valid exercise of state power unless it imposes a burden on commerce that is “clearly excessive in relation to the putative local benefits.”14 The issue dividing these two categories is the “overall effect” of the state regulation on “both local and interstate activity.”15
Even under the Pike balancing test, if one argues only a disparate effect on interstate commerce (there is no facial discrimination here), the ban is unconstitutional only if the burden on interstate commerce “clearly exceeds the local benefit.”16 Such is not the case here: the cost to some restaurants of using less-deadly oils does not exceed the benefit of saving lives.
“The fact that the burden of a state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce.”17 “Unless the law discriminates against interstate commerce expressly or in practical effect, there is no reason to require special justification” for that law.18 The Commerce Clause invalidates “local laws that impose commercial barriers or discriminate against an article of commerce by reason of its origin or destination out of state.”19
A ban might touch on interstate commerce in some way, merely by virtue of the fact that certain restaurants have locations both inside and outside New York City and some of those restaurants use trans fats. But any law that merely affects interstate commerce, without being a per se violation or even a law that is neutral on its face but bears more heavily on interstate commerce than local commerce, will survive if it has a rational basis.20
The New York City trans fat ban has no protectionist purpose: it merely affects all restaurants within New York City limits. It does not discriminate against restaurants that have locations both inside and outside of New York City under the Commerce Clause simply because it burdens them with having to use non-trans fat oils in their New York City locations. Such restaurant chains are no more inconvenienced by having to switch oils than those restaurants located only within the city. And the benefit goes to the health of New York City residents, a rational basis indeed for imposing a ban on this artificially created Frankenfat.
Trans fat is bad. Really bad. And so far, the FDA has refused to do anything about the problem beyond requiring disclosure on packaged food labels. Local and state health departments have a duty to protect the health of their citizens, and one very effective way to do so is an outright ban on the use of these fats in public restaurants or at least trans fat disclosure requirements for restaurants. Legal challenges to these bans may be made, but they are unlikely to succeed, making such bans very effective weapons in the battle against trans fat.
* Sarah Romero is a Staff Attorney at the Center for Science in the Public Interest. Stephen Gardner, Director of Litigation, Center for Science in the Public Interest, provided helpful input.
 NATIONAL ACADEMY OF SCIENCES INSTITUTE OF MEDICINE, LETTER REPORT ON DIETARY REFERENCE INTAKES FOR TRANS FATTY ACIDS (2002), available athttp://www.iom.edu/File.aspx?ID=13083.
 ALBERTO ASCHERIO, MEIR J. STAMPFER & WALTER C. WILLETT, HARVARD SCHOOL OF PUBLIC HEALTH, TRANS FATTY ACIDS AND CORONARY HEART DISEASE 3 (1999), available at http://www.hsph.harvard.edu/reviews/transfats.pdf.
 Patrick Kerkstra, For Council, a Speedy Session, PHILA. INQUIRIRER, February 16, 2007, at B3.
 California v. ARC Am. Corp., 490 U.S. 93, 101 (1989).
 Michigan Canners & Freezers Ass’n v. Agric. Mktg. & Bargaining Bd., 467 U.S. 947, 961 (1984); Merrill, Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 127 (1973); Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
 See, e.g., Grocery Mfrs. of Am., Inc. v. Gerace, 581 F.Supp. 658, 668 (S.D.N.Y. 1984) (state law preempted where it conflicts with FDA purpose to encourage development of nutritious foods).
 However, in the past the FDA has protected entrenched business interests in the food industry. See In re Farm Raised Salmon Cases, 48 Cal.Rptr.3d 449 (2d Dist. 2006) (claiming federal preemption in lawsuits against fish farmers in California for failing to disclose the use of artificial coloring in salmon).
 See Maryland v. Louisiana, 451 U.S. 725, 726 (1981).
 See Hillsborough County v. Automated Med. Labs., 471 U.S. 707, 715 (1985)
 See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984); Mazur v. Merck & Co., 742 F.Supp. 239, 246 (E.D. Pa. 1990).
 United States v. Lopez, 514 U.S. 549, 558-59 (1995).
 Oregon Waste Systems, Inc. v. Dept. of Envtl. Quality, 511 U.S. 93, 99 (1994).
 Id. (quoting Pike v. Bruce Church, 397 U.S. 137, 142 (1970)).
 Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986).
 Pike, 397 U.S. at 142.
 Exxon Corp. v. Governor of Md., 437 U.S. 117, 126 (1978).
 Nat’l Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124, 1132 (7th Cir. 1995).
 C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 390 (1994).
 Nat’l Paint, 45 F.3d at 1131.