From Health Care Reform to Public Health Reform

Congressional Budget Office, “CBO's Analysis of the Major Health Care Legislation Enacted in March 2010,” available at <http://www.cbo.gov/ftpdocs/121xx/doc12119/03–30-Health-CareLegislation.pdf> (last visited June 6, 2011).

Id.

Centers for Disease Control and Prevention, “Chronic Diseases,” available at <http://www.cdc.gov/chronicdisease/resources/publications/AAG/chronic.htm> (last visited June 6, 2011)

Williams D. R. , “Beyond the Affordable Care Act: Achieving Real Improvements in Americans' Health,” Health Affairs 29, no. 8 (2010): 1481–1488: At 1481 (“Although improved access to health care is essential…reducing the risk of getting sick in the first place is even more important to improving the nation's health.”).

Gostin L. O. Bloche M. G. , “Politics of Public Health: A Response to Gostin,” Perspectives in Biology and Medicine 46, no. 3, Supp. (2003): S160–S175, at S163.

McGinnis J. M. , “The Case for More Active Policy Attention to Health Promotion,” Health Affairs 21, no. 2 (2002): 78–93, at 78.

Farley T. A. , “Reforming Health Care or Reforming Health?” American Journal of Public Health 99, no. 4 (2009): 588–590, at 589.

Berman M. L. , “A Public Health Perspective on Health Care Reform,” Health Matrix 21, no. 2 (2011): 352–383.

Id.

Parmet W. E. , Populations, Public Health, and the Law (Washington, D.C.: Georgetown University Press, 2010): At 17.

See Berman , supra note 7, at 360–361.

Schneider M. , Introduction to Public Health, 3rd ed. (Sudbury, MA: Jones and Bartlett Publishers, 2011): At 6.

Ashton J. Seymour H. , The New Public Health (Milton Keynes and Philadelphia: Open University Press, 1988): At vii.

Id.

Baum F. , The New Public Health, 3rd. ed. (Melbourne: Oxford University Press, 2008): At 14.

See Farley , supra note 6, at 589.

See Berman , supra note 7, at 356–360.

See Ashton Seymour , supra note 12, at vii.

Patient Protection and Affordable Care Act, Pub. L. 111–148,” 1001 (2010).

See Berman , supra note 7, at 372.

See Mokdad A. H. , “Actual Causes of Death in the United States, 2000,” JAMA 291, no. 10 (2004): 1238–1245, at 1238 (finding that “[t]he leading causes of death in 2000 were tobacco (435,000 deaths; 18.1% of total US deaths), poor diet and physical inactivity (400,000 deaths; 16.6%), and alcohol consumption (85,000 deaths; 3.5%)”).

Hanson J. Yosifon D. , “The Situational Character: A Critical Realist Perspective on the Human Animal,” Georgetown Law Journal 93, no. 1 (2004): 1–179, at 177–178.

Id., at 6.

See Baum , supra note 14, at 473.

The impact of such educational campaigns is “particularly limited in disadvantaged communities.” Id., at 475.

Patient Protection and Affordable Care Act, Pub. L. No. 111–148,” 4004 (2010).

Id. § 4206.

See Baum , supra note 14, at 472 (spelling modified).

See Yosifon D. G. , “Resisting Deep Capture: The Commercial Speech Doctrine and Junk-Food Advertising to Children,” Loyola of Los Angeles Law Review 39, no. 1 (2006): 507–601, at 591.

Gostin L. O. , Public Health Law: Power, Duty, Restraint, 2nd ed. (Berkeley and Los Angeles: University of California Press, 2008): At 4.

Callahan D. Jennings B. , “Ethics and Public Health: Forging a Strong Relationship,” American Journal of Public Health 92, no. 2 (2002): 169–176, at 170.

See, e.g., Tucker C. , “Behavior the Best Medicine?” Atlanta Journal-Constitution, April 18, 2010, at 22A (summarizing Republican criticisms that the Affordable Care Act would undermine “personal responsibility”).

Langer G. , “Poll: Concern, But Little Action on Obesity,” ABC News, May 30, 2004, available at <http://www.abcnews.go.com/sections/us/Living/Obesity_poll_040530.html> (last visited June 6, 2011).

Sherry K. , “Uphill Climb for ‘Prevention’; GOP Legislators See No Health Savings in Parks and Similar Projects,” Chicago Tribune, August 5, 2009, at C14.

Id.

Editorial, “So Much for that Ounce of Prevention,” New York Times, April 25, 2011, at 24.

Patient Protection and Affordable Care Act, Pub. L. No. 111–148, § 1501 (2010).

Parmet W. E. , “The Individual Mandate: Implications for Public Health Law,” Journal of Law, Medicine & Ethics 39, no. 3 (2011): 401–413.

Hall M. A. , “The Scope and Limits of Public Health Law,” Perspective in Biology and Medicine 46, no. 3, Supp. (2003): S199–209, at S206.

See Benforado A. Hanson J. , “The Great Attributional Divide: How Divergent Views of Human Behavior Are Shaping Legal Policy,” Emory Law Journal 57, no. 2 (2008): 311–408, at 324–325.

Id.

Id., at 324.

Schwartz M. B. Brownell K.D. , “Actions Necessary to Prevent Childhood Obesity: Creating the Climate for Change,” Journal of Law, Medicine & Ethics 35, no. 1 (2007): 78–89, at 84.

Brownell K. D. , “Personal Responsibility and Obesity: A Constructive Approach to a Controversial Issue,” Health Affairs 29, no. 3 (2010): 378–386, at 384.

Id., at 384–385.

Office of the First Lady, “Remarks by the First Lady at a Grocery Manufacturers Association Conference,” March 16, 2010, available at <http://www.whitehouse.gov/the-press-office/remarks-first-lady-a-grocery-manufacturers-association-conference> (last visited June 6, 2011).

See Malone R. E. , “The Tobacco Industry,” in Wiist W. H. , ed., The Bottom Line or Public Health (Oxford and New York: Oxford University Press, 2010): At 167, 171.

Gostin L. O. Gostin K. G. , “A Broader Liberty: JS Mill, Paternalism, and the Public's Health,” Public Health 123, no. 3 (2009): 214–221, at 216.

See Benning v. Vermont, 641 A.2d 757, 762 (Vt. 1994) (“Although plaintiffs argue that the only person affected by the failure to wear a helmet is the operator of the motorcycle, the impact of that decision would be felt well beyond that individual. Such a decision imposes great costs on the public…. Whether in taxes or insurance rates, our costs are linked to the actions of others and are driven up when others fail to take preventive steps that would minimize health care consumption.”).

See Gostin Gostin , supra note 46.

Id.

Gostin also notes that “[a]nother defense of paternalism holds that people face constraints (both internal and external) on the capacity to pursue their own interests.” Id. (spelling modified). This argument concedes that public health regulations are paternalistic, but argues that they can be justified by the cognitive constraints and cultural influences that make it difficult for people to make decisions that are in their own best interest. Although people do indeed face such cognitive limitations, justifying public health interventions on this basis is a political non-starter. As mentioned in the text, people are deeply committed to the belief that they are fully autonomous, rational agents, however erroneous that belief may be.

See id., at 215.

World Health Organization, “Obesity and Overweight,” March 2011, available at <http://www.who.int/mediacentre/factsheets/fs311/en/index.html> (last visited June 6, 2011) (noting that “[o]nce considered a high-income country problem, overweight and obesity are now on the rise in low- and middle-income countries, particularly in urban settings”).

See Brownell ., supra note 42, at 379.

Those who view public health issues through the individualist/biomedical perspective often fail to recognize that public health issues pose collective action problems because they see individual decision making as the key to health. See, e.g., Epstein R. , “In Defense of the ‘Old’ Public Health: The Legal Framework for the Regulation of Public Health,” Brooklyn Law Review 69, no. 4 (2006): 1421–1470, at 1425–1426.

But when the “public health paradigm” is employed, the collective action problems are apparent. For example, “[a]gricultural subsidies have helped bring us high-fructose corn syrup, factory farming, fast food, a two-soda-a-day habit and its accompanying obesity,” but no individual has an incentive to push for reforming such incentives. M. Bittman, “Don't End Agricultural Subsidies, Fix Them,” New York Times, March 1, 2011, available at <http://opinionator.blogs.nytimes.com/2011/03/01/dont-end-agricultural-subsidies-fix-them/> (last visited June 6, 2011). To the contrary, the higher cost of unsubsidized products is likely to be much more salient to individuals than the more diffuse public health benefits.

See Korobkin R. , “Libertarian Welfarism,” California Law Review 97, no. 6 (2007): 1651–1685, at 1676–1677.

See Parmet , supra note 9, at 17.

Emphasis on the democratic process should not be misconstrued as license to trample on individual rights. The objections to public health policies, however, are often grounded in an overbroad conception of individual rights and business rights that has no basis in law. For example, there simply is no constitutionally protected “right to smoke,” and smoke-free laws do not impinge on the legal rights of either smokers or business owners.

See Graff S. K. , Tobacco Control Legal Consortium, “There Is No Constitutional Right to Smoke: 2008,” available at <http://publichealthlawcenter.org/sites/default/files/resources/tclc-syn-constitution-2008_0.pdf> (last visited June 6, 2011).

See supra note 20 and accompanying text; see also National Prevention Council,

“National Prevention Strategy: America's Plan for Better Health and Wellness,” available at <http://www.healthcare.gov/center/councils/nphpphc/strategy/report.pdf> (last visited June 18, 2011) (listing “Tobacco Free Living,” “Preventing Drug Abuse and Excessive Alcohol Use,” “Healthy Eating,” and “Active Living” among the nation's top preventive health priorities).

Brownell K. D. Frieden T. R. , “Ounces of Prevention – The Public Policy Case for Taxes on Sugared Beverages,” New England Journal of Medicine 360, no. 18 (2009): 1805–1808.

For a list of the group's members, visit <http://nofoodtaxes.com/about/#coalition> (last visited June 6, 2011).

Hamburger T. Geiger K. , “Soda Tax Fizzles: Targeting Lawmakers and Nutritionists, Beverage Firms Put a Stopper in Campaign,” Los Angeles Times, February 7, 2010, at A1.

Id.

Id.

See generally Nestle M. , Food Politics: How the Food Industry Influences Nutrition and Health, 2nd ed. (Berkeley and Los Angeles: University of California Press, 2007) (discussing efforts by various industries to influence food-related policies)

McGarity T. O. Wagner W. E. , Bending Science: How Special Interests Corrupt Public Health Research (Cambridge: Harvard University Press, 2008) (surveying efforts by tobacco manufacturers, asbestos producers, and others to manipulate or mischaracterize scientific findings in order to avoid regulation or liability).

This effort to control the terms in which a problem is conceptualized and discussed has been referred to by David Yosifon and Jon Hanson as “deep capture.” See, e.g., Hanson J. Yosifon D. , “The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture,” University of Pennsylvania Law Review 152, no. 1 (2003): 129–346.

Americans Against Food Taxes, “Camping” (Television Commercial) (2010), available at <http://www.youtube.com/watch?v=0zmDwMNaTzA&NR=1> (last visited June 6, 2011).

Chaloupka F. J. , “Effectiveness of Tax and Price Policies in Tobacco Control,” Tobacco Control 20, no. 3 (2011): 235–238.

Wiist W. H. , “Public Health and the Anticorporate Movement: Rationale and Recommendations,” American Journal of Public Health 96, no. 8 (2006): 1370–1375, at 1370.

Ludwig D. S. Nestle M. , “Can the Food Industry Play a Constructive Role in the Obesity Epidemic?” JAMA 300, no. 15 (2008): 1808–1811, at 1809.

See, e.g., Kluger R. , Ashes to Ashes: America's Hundred-Year Cigarette War, the Public Health, and the Unabashed Triumph of Philip Morris (New York: Alfred A. Knopf, 1997): At 333–334 (discussing how the tobacco industry inserted a preemption provision into the Federal Cigarette Labeling and Advertising Act “that would have an effect not fully grasped by [tobacco control advocates] for the better part of twenty years”).

The impact of the 2009 Federal Smoking Prevention and Tobacco Control Act, which was the product of negotiations between tobacco control advocates and Philip Morris, has yet to be seen. Cf.

Glantz S. A. , “Compromise or Capitulation” US Food and Drug Administration Jurisdiction Over Tobacco Products,” PLoS Medicine 6, no. 7 (2007): e1000118, at 2.

See, e.g., North Carolina Gen. Stat. § 130A-491 (2011)

Lexington Fayette County Food & Bev. Ass'n v. Lexington-Fayette Urban County Gov't, 131 S.W.3d 745 (Ky. 2004) (upholding Lexington, Kentucky's smoke-free law).

See Mello M. M. , “New York City's War on Fat,” New England Journal of Medicine 360, no. 19 (2009): 2015–2020.

National Complete Streets Coalition, “Complete Streets Policy Analysis 2010: A Story of Growing Strength,” available at <http://www.completestreets.org/webdocs/resources/cs-policyanalysis.pdf> (last visited June 6, 2011).

See Ashe M. , “Land Use Planning and the Control of Alcohol, Tobacco, Firearms, and Fast Food Restaurants,” American Journal of Public Health 93, no. 9 (2003): 1404–1408.

See Glennon T. , “Lawyers and Caring: Building an Ethic of Care into Professional Responsibility,” Hastings Law Journal 43, no. 4 (2009): 1175–1186, at 1177 (“[Legal] faculty reinforce the vision of a social world peopled by separate individuals in competition with one another through both the content of their courses and the teaching methodologies they employ. The legal system is presented as an endless series of bipolar disputes, of individual persons or businesses in competition before the courts. Each dispute appears as unconnected to other disputes. The parties are isolated from social or institutional structures. Issues of race, gender and class are often muted. Legal disputes that do not appear in judicial opinions simply do not exist.”).

See Parmet , supra note 9, at 55.

Id., at 54

see also Hanson Yosifon , supra note 21, at 13–20 (discussing examples of how “dispositionism” is embedded into various doctrinal fields of law).

See Rabin R. L. , “Institutional and Historical Perspectives on Tobacco Tort Liability,” in Rabin R. L. Sugarman S. D. , eds., Smoking Policy: Law, Politics, and Culture (New York: Oxford University Press, 1993): 110–130, at 122–125 (discussing the tobacco companies' use of the assumption of risk defense and their attempts to codify a “common-knowledge defense”)

Parmet , supra note 9 at 225 (explaining the individualistic assumptions underlying the assumption of risk defense).

“Jones/Day Liability Summary” (1986) (Bates No. 681879272), available at <http://tobaccodocuments.org/landman/37575.html#images> (last visited June 6, 2011) (emphasis added).

Newby P. K. , “Moving Forward the Discussion on Childhood Obesity,” Journal of Law, Medicine & Ethics 35, no. 1 (2007): 7–9 (introducing symposium articles considering “solutions beyond the individual”).

See Parmet , supra note 9.

See Leonard E. W. , “State Constitutionalism and the Right to Health Care,” University of Pennsylvania Journal of Constitutional Law 12, no. 5 (2010): 1325–1406, at 1379.

Lazarus R. J. , “Lloyd K. Garrison Lecture Reunion and Roundtable Transcript,” Pace Environmental Law Review 19, no. 2 (2002): 755–804, at 756 (discussing the conscious decision by legal academics and practitioners to establish environmental law as a distinct field in the late 1960s).

See Gostin , supra note 28, at 4.