The municipalities can do almost nothing about unhealthy food

To the first question, what is possible or impossible for the councilor to manage the fast food supply in his own municipality, Leon Meijer (ChristenUnie) says with some scorn: “Everything is impossible.” Meijer, the first councilor for ‘food’ in the Netherlands, has just got on his bike and is looking over the large sand mountains where the new Ede-Wageningen train station is to be built. The new station is the reason we are here in Ede: The councilor wants the station shops, managed by NS, not to be full of unhealthy snacks in the future.

The World Food Center, an ‘interactive museum’ about food, will open next year close to the station. In addition, in 2013 Ede christened itself a ‘food municipality’. Meijer: “We have many farmers in the area and 80 percent of the agri-food research in the Netherlands is located in the region”, mainly because of Wageningen University. At the same time, Ede has the problems that every municipality has: more and more obesity, especially in poorer districts.


So much attention to food is not appropriate for a station hall that smells of frying fat, Meijer believes. “So I asked NS: ‘What do you want to do?’ Well, the answer was: ‘The RAL colors on the railing are fixed. And everyone else too.’ In short, nothing is possible at all. You get what you see at each station.” Croissants from Kiosken and croquettes from Smullers.

After a year of Meijer’s involvement, “something is starting to move,” he says. Albert Heijn is considering a To Go with a more prominent healthy selection. NS will open a pop-up shop with healthy local products in September. But the guiding principle for NS is ‘passengers’ needs’.

Meijer takes a quarter turn. A little further on, another problem appears. Where the synthetic silk producer Enka once stood, a new district is under construction. “And what did I read three weeks ago: There will be a plinth with shops.” This means that new fast food offers can also be found on the ground floor of the apartment complex. “No way! Then we’ll just get NS going and then we’ll get all the McDonald’s, Kentucky Fried Chickens and Dunkin’ Donuts there.”

They are just examples; It is not yet known who the property developer will rent to. But his point is: As a councilor, you don’t have much to say about it.

Toolbox

Other municipalities have the same problem in their own way: They can do almost nothing against the growing supply of unhealthy food. Commissioned by the four big cities and Ede, the University of Amsterdam in 2020 carried out research into the legal options to stop fast food. Conclusion: The municipality’s ‘toolbox’ falls short. Management of the catering service is only permitted if there is a possible inconvenience to the citizens. Remember: no permission to serve alcohol due to noise. No chip shop due to odors or litter on the street.

Extra complicated: each municipality has its own subdivision plan. Ede only distinguishes between catering establishments where alcohol is served and where alcohol is not served. Amsterdam also distinguishes between restaurants and places to grab a quick bite, such as a snack bar or a döner shop.

In 2018, the municipality of Amsterdam stopped a New York Pizza branch in the De Pijp district because the permit for the building allowed catering, but not fast food, according to the zoning plan. New York Pizza went to court: the chain claimed that it is a restaurant because guests can also sit there. The case was fought to the council, which agreed with the municipality.

The question wasn’t about how unhealthy New York Pizza food is. But in this case, you can also see a shortcut to keep unhealthy food out. But do we think that municipalities should be dependent on shortcuts, wonders Anniek de Ruijter, co-author of the UvA study and lecturer in health law. “Why can’t the municipality just say: The food supply in this neighborhood is now becoming too unhealthy, we are going to intervene?”

Furthermore, the municipality cannot do much now. The building New York Pizza had in mind, on the corner of Albert Cuyp Market, now houses a Dunkin’ Donuts (now called Dunkin’). Against the wishes of the city council, but in line with the zoning plan, which allows pastry shops, coffee shops and ice cream shops in that location.

It is the kind of twists and restrictions that have caused municipalities in The Hague to knock on the door. They want the cabinet to come up with legislation and regulations that make it easier to stop new snack bars, hamburger restaurants and other fast food. State Secretary Maarten van Ooijen (Public Health, ChristenUnie) is now investigating what is legally possible. The municipalities cited the UvA research in their appeal. It argues that governments must ensure a healthy food environment based on national, international and European legislation, but that they have few legal options to do so.

Unhealthy ‘food density’

If municipalities want to ban unhealthy food exclusively from a public health point of view, they conclude that they need additional “legal instruments”. “Perhaps within spatial planning or within the law on goods,” says UvA researcher De Ruijter. “But in any case, you have to know at product level what you define as ‘healthy’ or ‘unhealthy’. In addition, it must be established when an area has approached an unhealthy ‘food density’ that is too high, after which action can be taken.”

According to De Ruijter, the route in environmental law is the most promising, but that would mean a break with the current interpretation of the legislation. At present, the regulation of physical planning only deals with matters “that relate to the relationship between citizens and the space around them”. Things that bother you as a citizen but that you can’t choose, such as walking through dirty air. According to De Ruijter, an excess of unhealthy food supply could also be described as something inevitable, as something that must be limited to protect citizens.

Isn’t it a very big step, as if people are unwilling victims without self-control? Limiting freedom of choice is controversial and is certainly sensitive on the right side of the political spectrum.

De Ruijter is aware of this criticism, but she says: “If in your area almost only unhealthy food is offered, then you can no longer talk about freedom of choice.” Her ghost is what in the US food dessertsfood deserts are called: places where there is almost no fresh and healthy food in the area.

So the question remains: what is unhealthy? And when does the supply become too large? De Ruijter, who is now carrying out follow-up research on this problem together with health researchers from Vrije Universiteit and Amsterdam UMC, believes that with freedom of choice, one should at least be able to guarantee that citizens are offered just as much unhealthy food. food as healthy food in their living environment.” The limit is then 50 percent ‘unhealthy’.

It is very important, she says, to clarify what the food supply must meet, so that the suppliers have legal certainty. For the question of what food is healthy, it could be linked as much as possible to existing pillars such as The Wheel of Five in the Nutrition Center, says De Ruijter.

They already do something similar in the UK. Products with too much fat, sugar or salt will no longer be allowed in prominent places on UK supermarket shelves from October. The Food Standards Agency, says the UK’s NVWA, is responsible for assessing ‘less healthy’.

Stream of lawsuits

If this kind of food regulation in the Netherlands, if it were to be introduced, wouldn’t it guarantee a flood of lawsuits? “So or what,” says De Ruijter. “That’s why the support, and a clear political line, from the national government can help the municipalities so much.”

Anne-Marie Klijn, partner in the law firm NewGround Law and specialist in environmental law, also takes care of these lawsuits. As a municipal lawyer in Amsterdam, Klijn was involved in the ban on tourist shops in the city center in 2017, partly because of the ‘livability’ of these areas. Entrepreneurs also had an extensive lawsuit over these rules. Some of them have successfully challenged being a tourist shop. “But,” says Klijn, “the rules themselves have always passed the judge’s test.” In other words: The municipality can distinguish between tourist shops and other shops and choose accordingly.

It is clear that regulation of the healthy environment fits into a trend. “In the design of public space, for example, there is more and more attention to sports and exercise,” says lawyer Pim Oremans, a colleague of Klijn. The new Environment and Planning Act, where all spatial planning must be accommodated, talks about ‘achieving and maintaining a safe and healthy physical living environment’.

Klijn considers it ‘difficult to achieve, but not impossible’, also on the basis of existing local regulations. According to her, the key is “how to understand the concepts of ‘healthy’ and ‘not healthy’. bulletproof do.” The assessment criteria must be “objective, verifiable and reasonable”.

According to De Ruijter, the legislator “must at some point draw a line somewhere”. But this is also the case with air quality, she says. “If it is clear that this limit has been exceeded, enforcement can be carried out. Then the government must start protecting the citizens.”

That protection is and will be a sensitive point, Councilor Meijer from Ede knows all too well. With a sigh: “Oh, you must not patronize in this country. How often do I hear: You don’t get to decide what I eat.” He therefore emphasizes once again: “It is important to me that the offer is diverse. We really do not want to ban everything.”

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