Hostname: page-component-cd9895bd7-8ctnn Total loading time: 0 Render date: 2024-12-26T04:07:00.215Z Has data issue: false hasContentIssue false

Mapping the Scope and Opportunities for Public Health Law in Liberal Democracies

Published online by Cambridge University Press:  01 January 2021

Extract

The two questions, “What is public health law?” and “How can law improve the public’s health?”, are perennial ones for public health law scholars. They are ideological questions because perceptions about the proper boundaries of law’s role will shape perceptions of what law can do, in an operational sense, to improve health outcomes. They are also theoretical questions, in the sense that, without closing down debate about the limits of public health law, these questions can be addressed by mapping the range of perspectives on how law might “go to work” for the public’s health. Finally, these are immensely practical questions. On our ability to understand the roles that law can play in public health improvement rests our capacity, as a society, to use law strategically as a policy tool.

Type
Symposium
Copyright
Copyright © American Society of Law, Medicine and Ethics 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Institute of Medicine, The Future of the Public's Health in the 21st Century (Washington, D.C.: National Academy Press, 2003): at 23.Google Scholar
See Terris, M., “The Complex Tasks of the Second Epidemiologic Revolution: The Joseph W. Mountin Lecture,” Journal of Public Health Policy 4, no. 1 (1983): 824, at 17–18.CrossRefGoogle Scholar
See, e.g., Curson, P., Times of Crisis: Epidemics in Sydney, 1788–1900 (Sydney: Sydney University Press, 1985): At 137–59, 168–71.Google Scholar
See Porter, D., Health, Civilization and the State: A History of Public Health from Ancient to Modern Times (London: Routledge, 1999): At 111–27, 149–62.Google Scholar
Rosen, G., A History of Public Health, expanded ed. (Baltimore: Johns Hopkins Press, 1993): At 199–200; see also Fee, E. Brown, T., “The Public Health Act of 1848,” Bulletin of the World Health Organization 83, no. 11 (2005): 866–67; see id., at 118–21.Google Scholar
See Terris, , supra note 2, at 18.Google Scholar
See Rothstein, M., “Rethinking the Meaning of Public Health,” Journal of Law, Medicine & Ethics 30, no. 2 (2002): 144–49. Rothstein argues at 148, for example, that public health measures are “justified by the natural law of self-preservation applied on a societal basis.” Any derogations from personal freedom must be narrowly defined and based on good evidence.CrossRefGoogle Scholar
See Gostin, L., “Legal Foundations of Public Health Law and its Role in Meeting Future Challenges,” Public Health 120, Supplement 1 (2006): 815; Gostin, L., Public Health Law: Power, Duty, Restraint (Berkeley: University of California Press, 2000): At 18–21.Google ScholarPubMed
Gostin, L., “Law and Ethics in Population Health,” Australian & New Zealand Journal of Public Health 28, no. 1 (2004): 712, at 10.CrossRefGoogle Scholar
See, e.g., Hall, M., “The Scope and Limits of Public Health Law,” Perspectives in Biology and Medicine 46, no. 3, Supplement (2003): S199S209; Epstein, R., “Let the Shoemaker Stick to His Last,” Perspectives in Biology and Medicine 46, no. 3, Supplement (2003): S138–59. See, in reply, Gostin, L. Bloche, M., “The Politics of Public Health: A Response to Epstein,” Perspectives in Biology and Medicine 46, no. 3, Supplement (2003): S160–75.Google Scholar
Hunter, N., “‘Public-Private’ Health Law: Multiple Directions in Public Health,” Journal of Health Care Law & Policy 10 (2007): 101–32. Hunter states at 106: “Command and control, in some form, is surely an indispensable mode for governmental response to an emergency….But in a form of mission creep and professional norm migration, all aspects of health emergency policy have shifted towards the framework of enhanced executive authority.”12. See Martin, R., “Domestic Regulation of Public Health: England and Wales,” in Martin, R. Johnson, L., eds., Law and the Public Dimension of Health (London: Cavendish Publishing, 2001): 75–112, at 76–83; Gostin, L., “Public Health Law: A Renaissance,” Journal of Law, Medicine & Ethics 30, no. 2 (2002): 136–40, at 138; Reynolds, C., Public Health Law & Regulation (Sydney: Federation Press, 2004): At 5–8.Google Scholar
See Gostin, , supra note 8, at 8–11.Google Scholar
See Epstein, , supra note 10, at S138–59; Epstein, R., “In Defense of the ‘Old’ Public Health,” Brooklyn Law Review 69 (2004): 1421–70, at 1423–26, 1433, 1443–44.Google Scholar
See Epstein, , supra note 10, at S155; Epstein, , supra note 14, at 1463; Epstein, R. A., “What (Not) to Do About Obesity: A Moderate Aristotelian Answer,” Georgetown Law Journal 93, no. 4 (2005): 1361–86, at 1368–9. Ultimately, it seems that this reasoning comes to rest, implicitly, on deeply held (and distinctively American) beliefs about liberty, self-sufficiency, and the responsibilities of the individual.Google Scholar
See Gostin, Bloche, , supra note 10, at S172.Google Scholar
Public health advocates, on the other hand, would no doubt feel completely comfortable picking and choosing the areas in which “market efficiency” should have priority. Why should any weight be given to the value of having an efficient and competitive tobacco sector, for example, if efforts to reduce smoking prevalence require a substantial regulatory burden on tobacco businesses? The aim of the Federal Cigarette Labeling and Advertising Act (15 U.S.C. §§1331–41), for example, is both to “adequately inform the public about the relationship between smoking and health” and to protect “commerce and the national economy”: §1331. However, the latter aim takes clear priority in §1334, which pre-empts state labelling laws, and in §1340, which exempts cigarettes exports from federal labelling requirements completely. The symbolic meanings conveyed by this latter provision, are, for non-Americans, difficult to ignore.Google Scholar
For other economic perspectives on public health, see Beaglehole, R. Bonita, R., Public Health at the Crossroads: Achievements and Prospects, 2nd ed. (Cambridge: Cambridge University Press, 2004): At 56–63; Jack, W., Principles of Health Economics for Developing Countries, World Bank, Washington, D.C., 1999, at 171–74, 180–81; McCarthy, M., “The Economics of Obesity,” The Lancet 364, no. 9452 (2004): 2169–70; Suhrcke, M. Nugent, R. Stuckler, D. Rocco, L., Chronic Disease: An Economic Perspective (London: Oxford Health Alliance, 2006).Google Scholar
See, e.g., Larson, A. Gillies, M. Howard, P. Coffin, J., “It's Enough to Make You Sick: The Impact of Racism on the Health of Aboriginal Australians,” Australian and New Zealand Journal of Public Health 31, no. 4 (2007): 322–29; Harris, R. Tobias, M. Jeffreys, M. Waldegrave, K. Karlsen, S. Nazroo, J., “Effects of Self-Reported Racial Discrimination and Deprivation on Maori Health and Inequalities in New Zealand: Cross-Sectional Study,” The Lancet 367, no. 9527 (2006): 2005–09. Findings, such as those reported by Harris and colleagues – that disparities between the self-reported health status of Maori and European New Zealanders were substantially accounted for by the combination of deprivation and discrimination – call for a model that identifies the pathways through which discrimination is translated into poorer health outcomes: From the social to the cellular. While institutional racism may affect health indirectly, by entrenching socio-economic disadvantage (a separate health determinant), discrimination may also impact more directly on health by reinforcing health-harming behaviors, and through the physiological impact of chronic stress and mental health status upon health. See, further, Hertzman, C. Frank, J., “Biological Pathways Linking the Social Environment, Development, and Health,” in Heymann, J. Hertzman, C. Barer, M. Evans, R., eds., Healthier Societies: From Analysis to Action (New York: Oxford University Press, 2006): 35–57.Google Scholar
Burris, S. Kawachi, I. Sarat, A., “Integrating Law and Social Epidemiology,” Journal of Law, Medicine & Ethics 30, no. 4 (2002): 510–21. See also Parmet, W., “The Impact of Law on Coronary Heart Disease: Some Preliminary Observations on the Relationship of Law to ‘Normalized’ Conditions,” Journal of Law, Medicine & Ethics 30, no. 4 (2002): 608–21.CrossRefGoogle Scholar
Id. (Burris, Kawachi, Sarat, ), at 518.Google Scholar
Gruskin, S. Mills, E. Tarantola, D., “History, Principles and Practice of Health and Human Rights,” The Lancet 370, no. 9585 (2007): 449–55.Google Scholar
See Rothstein, , supra note 7, at 144.Google Scholar
See Institute of Medicine, supra note 1, at 5253.Google Scholar
See, e.g., Awofeso, N., “What's New About the ‘New Public Health’?” American Journal of Public Health 94, no. 5 (2004): 705–09.CrossRefGoogle Scholar
Lewis, J., “The Origins and Development of Public Health in the U.K.,” in Holland, W. Detels, R. Knox, G., eds., Oxford Textbook of Public Health, Volume 1: Influences of Public Health, 2nd ed. (Oxford: Oxford University Press, 1991): 2334, at 27; Fee, D., “The Origins and Development of Public Health in the United States,” in Holland, W. Detels, R. Knox, G., eds., Oxford Textbook of Public Health, Volume 1: Influences of Public Health, 2nd ed. (Oxford: Oxford University Press, 1991): 3–22, at 7–9.Google Scholar
Id. (Lewis), at 2728.Google Scholar
See Fee, , supra note 26, at 9–11.Google Scholar
42 U.S.C., chapter 7, sub-chapters XVIII-XIX; see Institute of Medicine, supra note 1, at 6769.Google Scholar
See Fee, , supra note 26, at 13–18; Lewis, , supra note 26, at 28–33.Google Scholar
Hamlin, C., “The History and Development of Public Health in Developed Countries,” in Detels, R. McEwen, J. Beaglehole, R. Tanaka, H., eds., Oxford Textbook of Public Health, Volume 1: The Scope of Public Health, 4th ed. (Oxford: Oxford University Press, 2004): 2137, at 32–33; see Beaglehole, Bonita, , supra note 18, at 117–21; Beaglehole, R., “Overview and Framework,” in Detels, R. McEwen, J. Beaglehole, R. Tanaka, H., eds., Oxford Textbook of Public Health, 4th ed. (Oxford: Oxford University Press, 2004): 83–87.Google Scholar
Ottawa Charter on Health Promotion, First International Conference on Health Promotion, Ottawa, November 21, 1986, WHO/HPR/HEP/95.1, available at <http://www.who.int/hpr/NPH/docs/ottawa_charter_hp.pdf> (last visited September 12, 2007).+(last+visited+September+12,+2007).>Google Scholar
Australian Institute of Health and Welfare (AIHW), Australia's Health 2006, Canberra, 2006, at 141.Google Scholar
See, e.g., Leeder, S. Raymond, S. Greenberg, H. Liu, H. Esson, K., A Race Against Time: The Challenge of Cardiovascular Disease in Developing Economies (New York: Columbia University, 2004): At 59–70; McKinlay, J. Marceau, L., “To Boldly Go…,” American Journal of Public Health 90, no. 1 (2000): 2533, at 28–29.Google Scholar
See Institute of Medicine, supra note 1, at 2425.Google Scholar
Id., at 47.Google Scholar
See, e.g., Wilkinson, R. Marmot, M., eds., Social Determinants of Health: The Solid Facts, 2nd ed., World Health Organization, 2003; Marmot, M. Wilkinson, R., eds., Social Determinants of Health, 2nd ed. (Oxford: Oxford University Press, 2006); Eckersley, R. Dixon, J. Douglas, B., eds., The Social Origins of Health and Well-Being (Cambridge: Cambridge University Press, 2001).Google Scholar
See Beaglehole, Bonita, , supra note 18, at 257.Google Scholar
See Institute of Medicine, supra note 1, at 47–48; Rose, G., The Strategy of Preventive Medicine (Oxford: Oxford University Press, 1992): At 64–84. It follows that the policy interventions indicated by this approach need to be evaluated not by their impact on individual-level behaviors and risk factors, but “through the use of higher-level outcomes – improvements of the community or organization independent of individuals and their risky behaviors.” See McKinlay, J. Marceau, L., “A Tale of 3 Tails,” American Journal of Public Health 89, no. 3 (1999): 295–98, at 296.Google Scholar
Frank, J. Lomax, G. Baird, P. Lock, M., “Interactive Role of Genes and the Environment,” in Heymann, J. Hertzman, C. Barer, M. Evans, R., eds., Healthier Societies: From Analysis to Action (New York: Oxford University Press, 2006): 1134, at 19. See also Rose, G., “Sick Individuals and Sick Populations,” International Journal of Epidemiology 14, no. 1 (1985): 32–38.CrossRefGoogle Scholar
Jarvis, M. Wardle, J., “Social Patterning of Individual Health Behaviours: The Case of Cigarette Smoking,” in Marmot, M. Wilkinson, R., eds., Social Determinants of Health (Oxford: Oxford University Press, 2006): 224–37.Google Scholar
Id., at 234.Google Scholar
Krieger, N., “Theories for Social Epidemiology in the 21st Century: An Ecosocial Perpsective,” International Journal of Epidemiology 30, no. 4 (2001): 668–77. For discussion of the impact of psychosocial factors, see Hertzman, C. Frank, J., “Biological Pathways Linking the Social Environment, Development, and Health,” in Heyman, Hertzman, Barer, Evans, , supra note 40, at 35–57.CrossRefGoogle Scholar
Marmot, M., “Social Determinants of Health Inequalities,” The Lancet 365, no. 9464 (2005): 10991104, at 1103.CrossRefGoogle Scholar
See Navarro, V. Muntaner, C. Borrell, C. Benach, J. Quiroga, Á. Rodríguez-Sanz, M. et al. , “Politics and Health Outcomes,” The Lancet 368, no. 9540 (2006): 1033–37.CrossRefGoogle Scholar
Martin, R., “Constraints on Public Health,” in Martin, R. Johson, L., eds., Law and the Public Dimension of Health (London: Cavendish Publishing, 2001): 3373, at 45–46.CrossRefGoogle Scholar
See Epstein, , supra note 14, at 1424.Google Scholar
See Leeder, Raymond, Greenberg, Liu, Esson, , supra note 34, at 60.Google Scholar
See Gostin, Bloche, , supra note 10, at S163.Google Scholar
Gostin, L., “Legal Foundations of Public Health Law and its Role in Meeting Future Challenges,” Public Health 120, Supplement 1 (2006): 815, at 11; see Gostin, , supra note 9.CrossRefGoogle Scholar
For the United States, see Gostin, , supra note 8, at 2559.Google Scholar
See Victorian Health Promotion Foundation (VicHealth), Fact Sheet 1: VicHealth Funding Model, February 2006, available at <http://wwwvichealth.vic.gov.au/Content.aspx?topicID=3> (last visited September 24, 2007); see also VicHealth, , “The Story of VicHealth: A World First in Health Promotion,” November 2005, available at <http://www.vichealth.vic.gov.au/Content.aspx?topicID=280> (last visited September 24, 2007). In Ha v. New South Wales (1997) 189 CLR 465, the High Court held that tobacco licence fees – levied in accordance with the amount of tobacco sold – were excises, which states are prohibited from imposing under s 90 of the Australian Constitution. As a result, this source of funding for VicHealth disappeared. Since 1997, VicHealth has been funded by the Victorian government from consolidated revenue.+(last+visited+September+24,+2007);+see+also+VicHealth,+,+“The+Story+of+VicHealth:+A+World+First+in+Health+Promotion,”+November+2005,+available+at++(last+visited+September+24,+2007).+In+Ha+v.+New+South+Wales+(1997)+189+CLR+465,+the+High+Court+held+that+tobacco+licence+fees+–+levied+in+accordance+with+the+amount+of+tobacco+sold+–+were+excises,+which+states+are+prohibited+from+imposing+under+s+90+of+the+Australian+Constitution.+As+a+result,+this+source+of+funding+for+VicHealth+disappeared.+Since+1997,+VicHealth+has+been+funded+by+the+Victorian+government+from+consolidated+revenue.>Google Scholar
Pandemic and All-Hazards Preparedness Act, Public Law 109–417, 109th Congress (2006), available at <http://www.govtrack.us/congress/bill.xpd?bill=s109–3678> (last visited September 24, 2007); also available at <http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3678enr.txt.pdf> (last visited September 24, 2007). For discussion, see Hodge, J. Jr. Gostin, L. Vernick, J., “The Pandemic and All-Hazards Preparedness Act: Improving Public Health Emergency Response,” JAMA 297, no. 15 (2007): 1708–11.Google Scholar
For example, the Pandemic and All-Hazards Preparedness Act s 202 requires the establishment of a national electronic network for early detection and rapid response to infectious disease outbreaks and other public health emergencies (42 U.S.C. § 247d-4[d]-[f]).Google Scholar
Gowan, A., “Alexandria's End Run on Public Smoking: City Wants to Use Zoning Laws to Make Eateries Tobacco-Free,” Washington Post, March 1, 2007, at A01.Google Scholar
See, e.g., Prevent All Cigarette Trafficking Bill of 2003 (S. 1177) s. 3, introduced during the 108th Congress, available at <http://thomas.loc.gov/cgi-bin/query/z?c108:S.1177.ES::> (last visited September 24, 2007).+(last+visited+September+24,+2007).>Google Scholar
Daynard, R., “Why Tobacco Litigation?” Tobacco Control 12, no. 1 (2003): 12; Bero, L., “Implications of the Tobacco Industry Documents for Public Health and Policy,” Annual Review of Public Health 24 (2003): 267–88. The terms of settlement of the MSA can be described as having a quasi-legislative effect on tobacco company operations, although this impact should not be overestimated; see Daynard, R. Parmet, W. Kelder, G. et al. , “Implications for Tobacco Control of the Multistate Tobacco Settlement,” American Journal of Public Health 91, no. 12 (2001): 1967–71.CrossRefGoogle Scholar
449 F.Supp.2d 1 (DDC 2006).Google Scholar
Vernick, J. Rutkow, L. Teret, S., “Public Health Benefits of Recent Litigation Against the Tobacco Industry,” JAMA 298, no. 1 (2007): 8689, at 88; see also Tobacco Control Legal Consortium, “The Verdict Is In: Findings from United States v. Philip Morris,” William Mitchell College of Law, Legal Studies Research Paper Series, Paper No. 81, August 2007, available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1004323> (last visited September 24, 2007).CrossRefGoogle Scholar
Anderson, S. Ling, P. Glantz, S., “Implications of the Federal Court Order Banning the Terms ‘Light’ and ‘Mild’: What Difference Could it Make?” Tobacco Control 16, no. 4 (2007): 275–79.CrossRefGoogle Scholar
945 So.2d 1246 (Fla. 2006); Vernick, et al. , supra note 59, at 88.Google Scholar
State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408 (U.S. 2003), at 424–25.Google Scholar
Philip Morris USA v. Williams, 549 US____(2007).Google Scholar
Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006), at 1268.Google Scholar
For discussion of the very specific circumstances in which obesity claims might (just possibly) be successful, see Mello, M. Rimm, E. Studdert, D., “The McLawsuit: The Fast-Food Industry and Legal Accountability for Obesity,” Health Affairs 22, no. 6 (2003): 27.CrossRefGoogle Scholar
Gunningham, N. Sinclair, D., “Instruments for Environmental Protection,” in Gunningham, N. Grabosky, P. Sinclair, D., Smart Regulation: Designing Environmental Policy (Oxford: Clarendon Press, 1998): 3790, at 38.Google Scholar
See Reynolds, , supra note 51, at 100–30.Google Scholar
See Martin, R., “The Limits of Law in the Protection of Public Health and the Role of Public Health Ethics,” Public Health 120, Supplement 1 (2006): 7180, at 74.CrossRefGoogle Scholar
See Public Health Act 1997 (ACT) s 18. Specific controls can be imposed as Codes of Practice, enforced by improvement and prohibition notices: Ss 58, 61.Google Scholar
See Slovic, P., “Perception of Risk,” Science 236, no. 4799 (1987): 280–85; see Gostin, , supra note 8, at 97–98.CrossRefGoogle Scholar
This should not be taken to suggest, however, that public health laws controlling the exercise of state power in public health emergencies are without controversy; see, e.g., Annas, G., “Bioterrorism, Public Health, and Civil Liberties,” New England Journal of Medicine 346, no. 17 (2002): 1337–42; Bayer, R. Colgrove, J., “Public Health vs. Civil Liberties,” Science 297, no. 5588 (2002): 1181; Gostin, L. Bayer, R. Fairchild, A., “Ethical and Legal Challenges Posed by Severe Acute Respiratory Syndrome,” JAMA 290, no. 24 (2003): 3229–37. For perspectives on chronic disease, see, e.g., Fairchild, A., “Diabetes and Disease Surveillance,” Science 313, no. 5784 (2006): 175–76; Hall, M., “The Scope and Limits of Public Health Law,” Perspectives in Biology and Medicine 46, no. 3, Supplement (2003): S199–S209; Reynolds, C., “Law and Public Health: Addressing Obesity,” Alternative Law Journal 29, no. 4 (2004): 162–67.CrossRefGoogle Scholar
See Martin, , supra note 68, at 73–74; McKee, M. Raine, R., “Choosing Health? First Choose Your Philosophy,” The Lancet 365, no. 9457 (2005): 369–70.Google Scholar
See Sugarman, S. Sandman, N., “Fighting Childhood Obesity through Performance-Based Regulation of the Food Industry,” Duke Law Journal 56, no. 6 (2007): 1403–90.Google Scholar
Fidler, D., “A Globalized Theory of Public Health Law,” Journal of Law, Medicine & Ethics 30, no. 2 (2002): 150–61, at 157–58.CrossRefGoogle Scholar
Kickbusch, I. Lister, G., eds., European Perspectives on Global Health: A Policy Glossary, European Foundation Centre, Brussels, 2006, at 7.Google Scholar
Kaul, I., “Global Public Goods: What Role for Civil Society?” Nonprofit and Voluntary Sector Quarterly 30, no. 3 (2001): 588602, at 594–95.CrossRefGoogle Scholar
See Hunter, , supra note 11, at 126–30.Google Scholar
42 USC §§ 1751ff, 1771ff, available at <http://www.law.cornell.edu/uscode/html/uscode42/usc_sup_01_42.html> (last visited September 24, 2007); U.S. Government Printing Office Web site, available at <http://www.gpoaccess.gov/uscode/browse.html> (last visited September 24, 2007); see also Child Nutrition Promotion and School Lunch Protection Act of 2007 (S. 771 IS), introduced into the U. S. Senate, March 6, 2007, available at <http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s.00771:> (last visited September 24, 2007).+(last+visited+September+24,+2007);+U.S.+Government+Printing+Office+Web+site,+available+at++(last+visited+September+24,+2007);+see+also+Child+Nutrition+Promotion+and+School+Lunch+Protection+Act+of+2007+(S.+771+IS),+introduced+into+the+U.+S.+Senate,+March+6,+2007,+available+at++(last+visited+September+24,+2007).>Google Scholar
Alliance for a Healthier Generation, School Beverage Guidelines, May 2006, available at <http://www.healthiergeneration.org/schools.aspx> (last visited September 24, 2007); Competitive Food Guidelines, October 2006, available at <http://www.healthiergeneration.org/schools.aspx> (last visited September 24, 2007); Clinton Foundation, Alliance for a Healthier Generation – Clinton Foundation and American Heart Association – and Industry Leaders Set Healthy School Beverage Guidelines for U.S. Schools, Press Release, May 3, 2006; Clinton Foundation, President Clinton and American Heart Association Announce Joint Agreement Between Alliance for a Healthier Generation and Food Industry Leaders to Set Healthy Standards for Snacking in School, Press Release, October 6, 2006, available at <http://www.healthiergeneration.org/media.aspx> (last visited September 24, 2007). See also American Beverage Association, School Beverage Guidelines Progress Report 2006–2007, September, 2007, available at <http://www.amer-ibev.org/industry-issues/school-beverage-guidelines/download.aspx?id=157> (last visited September 24, 2007).+(last+visited+September+24,+2007);+Competitive+Food+Guidelines,+October+2006,+available+at++(last+visited+September+24,+2007);+Clinton+Foundation,+Alliance+for+a+Healthier+Generation+–+Clinton+Foundation+and+American+Heart+Association+–+and+Industry+Leaders+Set+Healthy+School+Beverage+Guidelines+for+U.S.+Schools,+Press+Release,+May+3,+2006;+Clinton+Foundation,+President+Clinton+and+American+Heart+Association+Announce+Joint+Agreement+Between+Alliance+for+a+Healthier+Generation+and+Food+Industry+Leaders+to+Set+Healthy+Standards+for+Snacking+in+School,+Press+Release,+October+6,+2006,+available+at++(last+visited+September+24,+2007).+See+also+American+Beverage+Association,+School+Beverage+Guidelines+Progress+Report+2006–2007,+September,+2007,+available+at++(last+visited+September+24,+2007).>Google Scholar
See Heart Foundation Web site, “Tick,” available at <http://www.heartfoundation.org.au/Professional_Information/Tick.htm> (last visited September 24, 2007).+(last+visited+September+24,+2007).>Google Scholar
See Heart Foundation Web site, “Tick – Eating Out,” available at <http://www.heartfoundation.org.au/Healthy_Living/Eating_and_Drinking/The_Tick/Eating_Out.htm> (last visited September 24, 2007).+(last+visited+September+24,+2007).>Google Scholar
National Heart Foundation, McDonald's Australia Earns Heart Foundation Tick on Nine Meals, Media Release, February 5, 2007.Google Scholar
McQueen, M. P., “Wellness Plans Reach Out to the Healthy - Fit Employees Now Qualify for Financial Incentives to Stop Smoking, Lose Weight,” Wall Street Journal, March 28, 2007.Google Scholar
See, further, Institute of Medicine, supra note 1, at 268–306; Simon, P. Fielding, J., “Public Health and Business: A Partnership that Makes Cents,” Health Affairs 25, no. 4 (2006): 1029–39.CrossRefGoogle Scholar
There has been enormous interest in corporate social responsibility (CSR), a great deal of it focusing on how CSR can enhance economic performance and manage the social forces that can destabilize performance. This is, however, quite different from acknowledging moral responsibilities to a wider group of stakeholders as part of the terms upon which a business will be conducted. Although Milton Friedman famously argued that economic performance is the only responsibility of business, the conventional view is perhaps best expressed by Drucker, who argues that “[e]conomic performance is the first responsibility of a business,” and that it is irresponsible for an organization to “accept – let alone to pursue – responsibilities that would impede its capacity to perform its main task and mission.” See Drucker, P., Peter Drucker on the Profession of Management (Boston: Harvard Business School Publishing, 1998): At 120. See also Davis, K., “The Case for and Against Business Assumption of Social Responsibilities,” Academy of Management Journal 16, no. 2 (1973): 312–22.Google Scholar
For example, in the United States, the First Amendment imposes constraints on tobacco advertising bans that do not exist in Australia: Lorillard Tobacco Co. v Reilly, 121 S. Ct. 2404 (2001). More recently, the Supreme Court's ruling that punitive damages punishing harm done to non-parties to litigation amounts to an unlawful “taking” of property, contrary to the Fourteenth Amendment, greatly diminishes the economic threat posed by class actions to tobacco manufacturers. See Philip Morris USA v. Williams 549 US ____ (2007).Google Scholar
15 U.S.C. §§1331–1341; Givel, M. Glantz, S., “The ‘Global Settlement’ with the Tobacco Industry: 6 Years Later,” American Journal of Public Health 94, no. 2 (2004): 218–24, at 218.CrossRefGoogle Scholar
Cipollone v. Liggett Group Inc., 505 U.S. 504 (1992).Google Scholar
Siegel, M. Blum, A., “FDA Regulation: Reprieve for the Malboro Man?” The Lancet 368, no. 9532 (2006): 266–68; see also Family Smoking Prevention and Control Act (S.625), available at <http://www.govtrack.us/congress/bill.xpd?bill=s110–625> (last visited September 24, 2007).CrossRefGoogle Scholar
Tobacco Advertising Prohibition Act 1992 (Cth) s 6, available at <http://www.austlii.edu.au/au/legis/cth/consol_act/tapa1992314/index.html> (last visited September 24, 2007). In other respects, the Australian Constitution (s 109) invalidates State law to the extent that it is inconsistent with Commonwealth law, or whenever Commonwealth legislation evidences an intention to “cover the field” (thereby pre-empting the States from entering that field).+(last+visited+September+24,+2007).+In+other+respects,+the+Australian+Constitution+(s+109)+invalidates+State+law+to+the+extent+that+it+is+inconsistent+with+Commonwealth+law,+or+whenever+Commonwealth+legislation+evidences+an+intention+to+“cover+the+field”+(thereby+pre-empting+the+States+from+entering+that+field).>Google Scholar
For example, the Pandemic and All-Hazards Preparedness Act s. (supra note 53) authorizes the Secretary of the DHHS to make conditional grants to state and other entities to develop their public health security preparedness in accordance with national benchmarks; see also Hodge, Gostin, Vernick, , supra note 53.Google Scholar
Lueck, T. Severson, K., “New York Bans Most Trans Fats in Restaurants,” New York Times, December 6, 2006; New York City, Department of Health and Mental Hygiene, Board of Health, Notice of Adoption of an Amendment (§81.08) to Article 81 of the New York City Health Code, Press Release, December 5, 2006, available at <http://www.nyc.gov/html/doh/html/notice/notice.shtml> (last visited September 12, 2007). In Australia, a National Collaboration on Trans Fats led by the National Heart Foundation of Australia, the Dietitians Association of Australia, the Australian Food and Grocery Council, and the food regulator, Food Standards Australia New Zealand (FSANZ), was recently established to propose initiatives to reduce trans fats in food sold in Australia. See Australian Associated Press, “National Body Aims to Reduce Trans Fats,” Sydney Morning Herald, October 24, 2006.Google Scholar
New York City, Department of Health and Mental Hygiene, Board of Health, Notice of Adoption of an Amendment (§81.50) to Article 81 of the New York City Health Code, Press Release, December 5, 2006, available at <http://www.nyc.gov/html/doh/html/notice/notice.shtml> (last visited September 12, 2007). These requirements supplement the federal Nutrition Labeling and Education Act of 1990 (21 C.F.R. § 101), which imposes standard labelling requirements on mandated foods, permitting comparison between the nutritional content of a food and the recommended daily values (RDVs) for nutrients including fat, saturated fat, sodium, carbohydrates, and fiber (although not protein or sugar).+(last+visited+September+12,+2007).+These+requirements+supplement+the+federal+Nutrition+Labeling+and+Education+Act+of+1990+(21+C.F.R.+§+101),+which+imposes+standard+labelling+requirements+on+mandated+foods,+permitting+comparison+between+the+nutritional+content+of+a+food+and+the+recommended+daily+values+(RDVs)+for+nutrients+including+fat,+saturated+fat,+sodium,+carbohydrates,+and+fiber+(although+not+protein+or+sugar).>Google Scholar
E.g., Knapp, A., “States Go After Smoking in Vehicles with Kids,” Stateline Web site, available at <http://www.stateline.org/live/details/story?contentId=186298> (last visited September 24, 2007). Similar legislation has been passed in the State of South Australia: Tobacco Products Regulation Act 1997 (SA) s 48.+(last+visited+September+24,+2007).+Similar+legislation+has+been+passed+in+the+State+of+South+Australia:+Tobacco+Products+Regulation+Act+1997+(SA)+s+48.>Google Scholar
Ranalli, R. Saltzman, J., “Jury Finds Heavy Smoking to Be Grounds for Eviction: Verdict Is Said to Be One of First in Nation,” Boston Globe, June 16, 2005; Bazar, E., “Public Housing Kicks Smoking Habit,” USA Today, April 4, 2007. In Sydney, Australia, the New South Wales Consumer, Trade and Tenancy Tribunal recently ordered residents in one city apartment complex to cease smoking on the basis that they were breaking strata by-laws by creating a nuisance to adjoining residents. See Munro, C., “Neighbours See Off Smokers in Tribunal,” Sydney Morning Herald, February 28, 2007.Google Scholar
Editorial, “Monitoring Diabetes Treatment in New York City,” The Lancet 367, no. 9506 (2006): 183; Stein, R., “New York City Starts to Monitor Diabetics,” Washington Post, January 11, 2006, at A03; Steinbrook, R., “Facing the Diabetes Epidemic - Mandatory Reporting of Glycosylated Hemoglobin Values in New York City,” New England Journal of Medicine 354, no. 6 (2006): 545–48.Google Scholar
See Creagh, S., “Footpaths Next as No-Smoking Zones,” Sydney Morning Herald, March 19, 2007; Creagh, S. Munro, C., “Puffed Up but Yet to Pounce,” Sydney Morning Herald, March 28, 2007; Chapman, S., “Evidence, Ethics, Hubris and the Future of Second-Hand Smoke Policy,” Tobacco Control 16, no. 2 (2007): 7374.Google Scholar
Prentice, B. Flores, G., “Local Health Departments and the Challenge of Chronic Disease: Lessons from California,” Preventing Chronic Disease: Public Health Research, Practice, and Policy 4, no. 1 (2007): 16, available at <http://www.cdc.gov/pcd/> (last visited September 24, 2007); Frieden, T., “Asleep at the Switch: Local Public Health and Chronic Disease,” American Journal of Public Health 94, no. 12 (2004): 2059–61. No approach based on environmental changes and health promotion will be able to eliminate all the causes or obesity, and nor is this approach likely to result in large amounts of weight loss for individuals. The key assumption, however, is that by addressing impediments to healthier patterns of eating and physical activity, it will be possible, over time, to stabilize and perhaps achieve modest reductions in the average weight of the population; see World Health Organization (WHO), Obesity: Preventing and Managing the Global Epidemic, WHO Technical Report Series 894, Geneva, 2000, at 190, and generally at 174–96.Google Scholar
World Health Organization, Revision of the International Health Regulations (2005), WHA58.3, May 23, 2006, available at <http://www.who.int/csr/ihr/IHRWHA58_3-en.pdf> (last visited September 24, 2007). Under the Constitution of the World Health Organization, regulations made by the World Health Assembly bind Members on an opt-out basis (Articles 21–22). See, further, Fidler, D. Gostin, L., “The New International Health Regulations: An Historic Development for International Law and Public Health,” Journal of Law, Medicine & Ethics 34, no. 1 (2006): 8594.Google Scholar
Note that regulations made by the World Health Assembly, including the International Health Regulations (2005), bind members on an opt-out basis. See World Health Organization Constitution, at Articles 21–22.Google Scholar
Foster v. Neilson, 27 U.S. 253 (1829), at 314. By contrast, in Australia, no treaty has domestic effect until implemented by federal legislation.Google Scholar
See Murphy, J., The United States and the Rule of Law in International Affairs (Cambridge: Cambridge University Press, 2004): 7483.CrossRefGoogle Scholar
Fidler, D., “International Law,” in Smith, R. Beaglehole, R. Woodward, D. Drager, N., eds., Global Public Goods for Health: Health Economic and Public Health Perspectives (Oxford: Oxford University Press, 2003): 177–95.Google Scholar
See, e.g., Lee, K. Buse, K. Fustukian, S., Health Policy in a Globalising World (Cambridge: Cambridge University Press, 2002); Huynen, M. Martens, P. Hilderink, H., “The Health Impacts of Globalisation: A Conceptual Framework,” Globalization and Health 1, no. 14 (2005); Taylor, A., “Governing the Globalization of Public Health,” Journal of Law, Medicine & Ethics 32, no. 3 (2004): 500–08; Fidler, supra note 74.Google Scholar
See Taylor, A. Bettcher, D. Fluss, S. DeLand, K. Yach, D., “International Health Instruments: An Overview,” in Detels, R. McEwen, J. Beaglehole, R. Tanaka, H. eds., Oxford Textbook of Public Health, 4th ed. (Oxford: Oxford University Press, 2002): 359–86.Google Scholar
See Epstein, , supra note 10, at S154.Google Scholar
Taylor, A. Bettcher, D., “WHO Framework Convention on Tobacco Control: A Global ‘Good’ for Public Health,” Bulletin of the World Health Organization 78, no. 7 (2000): 920–29.Google Scholar
Chopra, M. Darnton-Hill, I., “Tobacco and Obesity Epidemics: Not So Different After All?” BMJ 328, no. 7455 (2004): 1558–60; Lee, E., “The World Health Organization's Global Strategy on Diet, Physical Activity, and Health: Turning Strategy into Action,” Food and Drug Law Journal 60 (2005): 569–601; Magnusson, R., “Non-communicable Diseases and Global Health Governance: Enhancing Global Processes to Improve Health Development,” Globalization and Health 3, no. 2 (2007), available at <http://www.globalizationand-health.com/content/3/1/2> (last visited September 25, 2007); cf. Yach, D. Hawkes, C. Epping-Jordan, J. Galbraith, S., “The World Health Organization's Framework Convention on Tobacco Control: Implications for Global Epidemics of Food-Related Deaths and Disease,” Journal of Public Health Policy 24, nos. 3/4 (2003): 274–90.CrossRefGoogle Scholar
World Trade Organization, Agreement on the Application of Sanitary and Phytosanitary Measures, at Article 3(2), available at <http://www.wto.org/English/docs_e/legal_e/15sps_01_e.htm> (last visited September 24, 2007) [hereinafter cited as SPS Agreement].+(last+visited+September+24,+2007)+[hereinafter+cited+as+SPS+Agreement].>Google Scholar
Id., at Articles 3(3), 5.Google Scholar
See European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291, WT/DS292, WT/DS293, September 29, 2006, at §§7.3019–7.3034, available at <http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds293_e.htm> (last visited September 24, 2007).+(last+visited+September+24,+2007).>Google Scholar
World Trade Organization, Agreement on Technical Barriers to Trade, at Articles 2.2, 2.4, 2.5, available at <http://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm> (last visited September 24, 2007) [hereinafter cited as TBT Agreement].+(last+visited+September+24,+2007)+[hereinafter+cited+as+TBT+Agreement].>Google Scholar
Gray, D. Hicks, N., “The Contribution of the Acute Sector to Promoting Public Health,” in Griffiths, S. Hunter, D., eds., New Perspectives in Public Health, 2nd ed. (Oxford: Radcliffe Publishing, 2007): At 251–58; see Institute of Medicine, supra note 1, at 247–250.Google Scholar
In Australia, for example, currently about 12 percent of the population is over 65 years of age. This is expected to rise to 20 percent by 2030, with the over 80 group rising from 2.5 percent to 5 percent of the population. See Organization for Economic Co-operation and Development, Reforms for an Ageing Society, Paris, 2000, at 133. There is a large literature on the health workforce and chronic disease; see, e. g., A. DiP- iero and Sanders, D., “Condition Based Payment: Improving Care of Chronic Illness,” BMJ 330, no. 7492 (2005): 654–57; Gask, L., “Role of Specialists in Common Chronic Diseases,” BMJ 330, no. 7492 (2005): 651–53; and Mann, L., “From ‘Silos’ to Seamless Healthcare: Bringing Hospitals and GPs Back Together Again,” Medical Journal of Australia 182, no. 1 (2005): 34–37.Google Scholar
Zwar, N. Richmond, R., “Role of the General Practitioner in Smoking Cessation,” Drug and Alcohol Review 25, no. 1 (2006): 2126, at 24–25.Google Scholar
For smoking, see, e.g., Manley, M. Griffin, T. Foldes, S. Link, C. Sechrist, R., “The Role of Health Plans in Tobacco Control,” Annual Review of Public Health 24 (2003): 247–66; Coleman, T., “ABC of Smoking Cessation: Cessation Interventions in Routine Health Care,” BMJ 328, no. 7440 (2004): 631–33; Hollis, J. Bills, R. Whitlock, E. Stevens, V. Mullooly, J. Lichtenstein, E., “Implementing Tobacco Interventions in the Real World of Managed Care,” Tobacco Control 9, Supplement I (2000): i18–i24.CrossRefGoogle Scholar
Hall, M. Peeples, R. Lord, R. Jr., “Liability Implications of Physician-Directed Care Coordination,” Annals of Family Medicine 3, no. 2 (2005): 115–21.CrossRefGoogle Scholar
New York City Department of Health and Mental Hygiene, City Health Information: Treating Nicotine Addiction, November 2002, vol. 21, no. 6, available at <http://www.nyc.gov/html/doh/downloads/pdf/chi/chi21–6.pdf> (last visited September 24, 2007).+(last+visited+September+24,+2007).>Google Scholar
Stein, R., “New York City Starts to Monitor Diabetics,” Washington Post, January 11, 2006, at A03; Fairchild, A. L., “Diabetes and Disease Surveillance,” Science 313, no. 5784 (2006): 175–76; see also New York City of Health and Mental Hygiene, “The New York City A1C Registry,” available at <http://www.nyc.gov/html/doh/html/diabetes/diabetes-nycar.shtml> (last visited September 25, 2007).Google Scholar
Gladwell, M., “The Moral-Hazard Myth” The New Yorker, August 29, 2005; see also Institute of Medicine, supra note 1, at 229–30.Google Scholar
Australia's Medicare system gives patients a rebate for 85 percent of the “scheduled cost” of defined services, as set out in the Medical Benefits Schedule (MBS), and 100 percent of the scheduled rate when this “gap” exceeds a specified amount in any year. Doctors are entitled to charge above the schedule fee, as set out in the Medicare Benefits Schedule, and many do. Those who do not are reimbursed directly by the Health Insurance Commission, a practice known as “bulk-billing.” See Duckett, S., The Australian Health Care System (Melbourne: Oxford University Press, 2000): At 34–38, 189–94. Another feature of Australia's Medicare system is that those attending public hospitals as “public patients” are treated free of charge; this is a condition of the “Medicare agreements” between the Commonwealth and State governments, pursuant to which the Commonwealth subsidizes the cost of hospital care. There may, however, be a long queue for popular elective procedures. Australia also has a Pharmaceutical Benefits System (PBS) which provides a subsidized (flat) rate for those medicines that are assessed and included on the PBS list. The Pharmaceutical Benefits Pricing Authority uses international price benchmarking, pharmaco-economic analysis and its own position as a national purchaser to reduce the price of PBS medicines. As a result, pharmaceutical prices are three to four times lower than those in the United States. See Harvey, K. Faunce, T. Lokuge, B. Drahos, P., “Will the Australia-United States Free Trade Agreement Undermine the Pharmaceutical Benefits Scheme?” Medical Journal of Australia 181, no. 5 (2004): 256–59.Google Scholar
Private Health Insurance Act 2007 (Cth) s. 121.5, defining “hospital treatment”.Google Scholar
Private Health Insurance Act 2007 (Cth) s. 121.10, defining “general treatment”.Google Scholar
See Institute of Medicine, supra note 1, at 241; Manley, Griffin, Foldes, et al. , supra note 116.Google Scholar
Rosenbaum, S. Kamoie, B., “Managed Care and Public Health: Conflict and Collaboration,” Journal of Law, Medicine & Ethics 30, no. 2 (2002): 191200.CrossRefGoogle Scholar
Parmet, W., “Introduction: The Interdependency of Law and Public Health,” in Goodman, R. et al. , Law in Public Health Practice, 2nd ed. (New York: Oxford University Press, 2007): xxviixvii, at xxxxi.Google Scholar
Australian Senate, Community Affairs Legislation Committee, Tobacco Advertising Prohibition, Parliament of the Commonwealth of Australia, Canberra, September 2004, at paras. 1.43–1.54.Google Scholar
See supra note 52.Google Scholar
See, e.g., French, S. Story, M. Jeffery, R., “Environmental Influences on Eating and Physical Activity,” Annual Review of Public Health 22 (2001): 309–35; Brownson, R. Haire-Joshu, D. Luke, D., “Shaping the Context of Health: A Review of Environmental and Policy Approaches in the Prevention of Chronic Disease,” Annual Review of Public Health 27 (2006): 341–70; Nestle, M. Jacobson, M., “Halting the Obesity Epidemic: A Public Health Policy Approach,” Public Health Reports 115, no. 1 (2000): 12–24.CrossRefGoogle Scholar
Lang, T. Rayner, G. Rayner, M. Barling, D. Millstone, E., “Policy Councils on Food, Nutrition and Physical Activity: The U.K. as a Case Study,” Public Health Nutrition 8, no. 1 (2005): 1119.CrossRefGoogle Scholar