Berkeley Bans So-Called Junk Food from Checkout Aisles

These kinds of interventions don't work, but they do force retailers to waste money.

Last month, Berkeley, California, became the first city in the nation to ban so-called "junk food" from grocery checkout aisles. Food with more than 5 grams added sugar or 200 mg sodium will be banished from the checkout aisle. The ordinance takes effect next year, with enforcement set to phase in starting in 2022.

"Grocery stores larger than 2,500 square feet will no longer be allowed to sell unhealthy food and beverages at the checkout line, and instead will be encouraged to offer more nutritious food and drink," the San Jose Mercury News reported. "Gone will be chips, candy bars, sodas and other sweetened beverages."

The ordinance impacts around two-dozen stores in Berkeley, including Safeway, Whole Foods, CVS, Walgreens, and two independent grocers, along with all of their customers.

The ordinance was supported with the help of the Center for Science in the Public Interest, a nonprofit that's long advocated for government intervention to restrict or alter people's food choices.

"The Center for Science in the Public Interest has created a suggested list of products that meet the criteria of the ordinance," the ordinance notes. Sure enough, CSPI says traditional checkout items—such as bubble gum, candy bars, Slim Jims—will yield to "fruit, vegetables, nuts, seeds, legumes, dairy, whole grains, and chewing gum and mints with no added sugars." (Note the photo accompanying the CSPI post doesn't show a checkout area but does appear instead to show a sterile grocery aisle…in Italy.)

Beyond sugarless gum or snack bags of nuts or seeds, most of the items don't seem checkout-realistic. Legumes? As in, like, a can of beans? Yup.

"Fresh, canned, or otherwise hermetically sealed dried fruits, vegetables, or legumes with no more than 5 grams added sugars," the ordinance recommends.

The impetus for the ban appears to be a belief on the part of Berkeley lawmakers that parents are powerless over their 5-year-olds.

"Cheap, ready-to-eat foods high in salt, saturated fat, and added sugars dominate checkout aisles, where shoppers are more likely to make impulse purchases and where parents struggle with their children over demands to buy treats at the end of a shopping trip," the ordinance itself declares.

"We're not saying you can't have these goods," says Berkeley Councilmember Kate Harrison. "We're just saying they're not going to be right at the eye level of your children when they walk into the store and you're waiting in that long line at check out."

(I suspect I'll never be a fan of any law that requires a "We're not saying…. We're just saying…" explanation and justification.)

In 2014, Berkeley was also the first in the nation to adopt a soda tax. Predictably, that tax—which helped usher in a statewide ban on similar taxes—has reduced soda consumption in Berkeley. I've seen no evidence it's achieved its stated goal of combating obesity and other nutrition-related diseases. That Berkeley sees the need to adopt the new checkout ordinance to, well, do the same thing—combat obesity and other nutrition-related diseases—doesn't exactly suggest the soda tax is working.

It wouldn't be the first tax or ban of its ilk to fail. Indeed, there's plenty of independent research out there that shows the folly of lawmakers who believe they can legislate us thin.

In 2011, Denmark's conservative government adopted a "fat tax," targeting a host of putatively unhealthy foods. But, as I explained here, the tax was a disaster. It didn't change eating habits, didn't combat obesity, resulted in higher consumer prices, and caused something on the order of 1,000 job losses. Just a year later, in 2012, the new liberal government repealed the tax. In other words, the fat tax was a flop.

In 2007, the Los Angeles City Council banned new fast-food restaurants from South Los Angeles. The move was intended to combat obesity there. In 2015, the RAND Corporation released a National Cancer Institute-sponsored study on the results from South Los Angeles.

"Since the fast-food restrictions were passed in 2008, overweight and obesity rates in South Los Angeles and other neighborhoods targeted by the law have increased faster than in other parts of the city or other parts of the county," RAND reported. In other words, the fast-food ban was a flop.

In a 2014 column, I focused on a first-of-its-kind Minneapolis effort, the Staple Foods Ordinance, that required many convenience stores and gas stations to stock fresh produce and other "healthy" foods. That ordinance cost Minneapolis shop owners thousands of dollars in lost sales and wasted food. A subsequent study, published last year in the International Journal of Behavioral Nutrition & Physical Activity, compared Minneapolis with neighboring St. Paul, which had no such ordinance. The study found "no significant differences" in food buying habits between people in the two cities and concluded, "[f]ew changes were observed in the healthfulness of customer purchases or the healthfulness of home food environments." In other words, the Staple Foods Ordinance was a flop.

In 2014, a Robert Wood Johnson Foundation-funded study on four cities' efforts to force small grocers to sell healthier foods concluded that "interventionists and researchers working in this area must focus as much effort on increasing customer demand for healthy products as they do on improving store supply of these products for such interventions to be successful."

In other words, cities can pass all the healthy food ordinances they like. But if stores are forced to offer putatively healthier foods that customers don't buy, then those ordinances will have made everyone worse off and no one better off.

Do Berkeley businesses impacted by the new checkout ordinance have any recourse? Here's one: sell sugar—including 5-pound bags of cane sugar, those cute little bear-shaped honey containers, pure maple syrup, and the like. Since none of those foods contains added sugar and little if any sodium, I suspect they'd be allowed in the checkout aisle under the Berkeley ordinance. How sweet it is.