Quick, Effective Public Health Measures

By Stephen Latham [cross-posted at his blog, A Blog on Bioethics]

I’m freshly back from the annual meeting of the Public Health Law Research program, sponsored by Robert Wood Johnson.

At most academic meetings, I prefer schmoozing in the halls to listening to the talks. That’s part personal vice, and part stage-of-career: at this point, it matters more who I talk to than whose paper I hear. This conference was different, though–perhaps because I’m new to it. A very large percentage of the papers (and posters!) repaid close attention.

But the best session of the conference, to my mind, was the “Critical Opportunities” session. The session, which is apparently an annual affair, is presented as a competition: a handful of public health law scholars are invited to present their best ideas for high-impact, evidence-based public health interventions that have a chance at actual enactment. The audience votes on which one they think is (to put it roughly) most worth peddling to health-policy folk under the banner, “Do it now!”

PHLR Annual Meeting Post-Mortem

This past week, PHLR hosted 150 researchers, lawyers, public health practitioners and others for our fourth annual meeting. With our theme for the conference in mind, “Driving Legal Innovation,” our attendees shared results of evaluations of laws and regulations, offered up suggestions for new ways to use law to improve health, and attacked head on the issues facing the United States and our public health.

While you wait for more multimedia content, here are a few highlight moments: Read More

Where Are We Now: Post 5, Ways of Being Wrong – and Opportunities to be Right

By Scott Burris

The main contests (a summary of previous posts):

A lot of people in public health practice seem to be (appropriately) concerned about our public health infrastructure – the agencies within public health systems where day to day work is done. Public health infrastructure tends to get taken for granted and neglected. Core prevention activities, from surveillance to restaurant inspection, easily become invisible.  Health agencies become collateral damage in the war on government.  Our challenge here is to get noticed and appreciated – and to deserve it by being demonstrably effective, efficient, smart. Legal infrastructure is a meaningful part of this, so there is work for legal academics both in institutional design and in helping health agencies use their legal authority effectively and creatively.

In public health law (and PHLR), most of us tend to be working on legal interventions. Public health work can be pretty straightforward and even popular when it has to do with preventing proximate and substantial harms, and this is true even when the legal intervention involves changing behavior. Law changes norms and expectations, so initial resistance often gives way to acceptance.  The fact that sometimes the industry whose profits are implicated can fight back, and even win, defines the hard part of the game – and challenges our field to be more legally and politically effective.

Then there is a third game, in which public health (in a not altogether new or unprecedented way) has concerned itself with the structure of the healthy society, and (perhaps to an unprecedented extent) taken on distal contributors to complex, multi-factoral health threats, case in point obesity.  I’m not sure we have an effective game plan for this. But in each case, there are things we are doing poorly – or that we should think about doing better.

Challenges and opportunities:

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Where Are We Now: Post 4, Looking in the Mirror, or 3 Games in Public Health

By Scott Burris

In a well-known exchange, Richard Epstein argued that modern public health had strayed far outside its traditional and proper work of preventing epidemics and injuries into a realm of social engineering in which it lacked both competence and legitimacy. William Novak, the historian, disagreed, emphasizing the continuity of our public quest for well-ordered, salubrious (and virtuous) communities. Deciding whether public health is winning or losing in the legal arena – and figuring out how we win more often — depends to some degree on what game it is we think we are playing – that is, on whether Epstein or Novak is right.

I think they both are, and it is worth considering how. I suspect that most of us think, without going too deeply, that we’re doing pretty much the same thing that Lemuel Shattuck was doing at the dawn of modern American public health: marshaling collective resources to use data to diagnose, treat and prevent harm to public health.  And if that’s what you think you’re doing, his report is still an excellent guide to making the case for legal action: evidence shows that we can prevent morbidity and mortality in a cost-effective way that does not significantly interfere with anyone’s rights and makes our society stronger and more competitive.

But law, at least, is a very good area for asking whether we are doing something quite different than our grandmother’s public health.  The use of law as a tool of intervention in public health – as a way of creating safer products and environments and incentivizing healthier behavior — has exploded since the 1960s. Yes, you can find public health law at work in the early 17th century, but when I was born in 1956, there was no OSHA, no EPA, no NHTSA. No warning labels on dangerous products. No safety belt standards or laws. Minimal limits on drinking and driving. No federal clean water or air standards. An unrecognizable FDA. And so on it goes.  In the great Novak-Epstein debate, Novak is right that we have a rich tradition of public health regulation, and plenty of paternalism and interference with individual rights based on epidemiological evidence of preventable harms. This is public health as sic utere, then and now largely a matter of showing how someone is doing something that demonstrably imposes costs on others. That’s why the debate Shattuck was waging sounds so familiar to contemporary ears. (And, by the way, that extends to the moralism implicit in our “scientific” recommendations about healthy lifestyles.)

But Epstein is right, too, I think, to observe that something is different. Public health is now a pillar of the regulatory state and the risk society, deeply enmeshed in the project of defining and minimizing risks great and, let’s face it, small.  We deploy complex regulatory systems, some of which work and some of which we continue to defend anyway, in spite of our own commitments to evidence. As matters like obesity and inequality take intervention further and further from proximate to distal links in the causal chain, our ability to back our proposals with evidence, and evidence that speaks to an everyday sense of causality, becomes severely attenuated. Much of what we propose rests on a vision of the good – salus populi – that is as much a matter of values as it is of evidence.  Failing to own that, we fool ourselves without winning over our audience.

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Where Are We Now: Post 3, The Agony (and Potential Ecstasy) of Defeat

By Scott Burris

Law has been an extremely effective mode of public health intervention in the last thirty years, which means that proponents of its use have won more than a few tough political battles.  Nonetheless, it is hard to escape the fact that, in recent years, the public health side has been getting killed wherever law is made. The First Amendment turns out to create a right to mine prescription records for data (Sorrell v. IMS Health), advertise liquor prices (44 Liquormart), keep warning labels off cigarette packs (RJ Reynolds v FDA)  – even operate a tattoo parlor in a city that lacks the resources to regulate its safety.  With the Heller case, the strictest forms of gun control were taken off the table, and there is a lot more litigation ahead to define what can be done. The ACA case raises the possibility of future limits on federal regulation via the spending clause. In the latest and most chilling development, the DC Circuit panel in the FDA label case laid the foundation for questioning whether there is even a rational basis for regulations aimed at discouraging people from using “lawful” but dangerous products:

We are skeptical that the government can assert a substantial interest in discouraging consumers from purchasing a lawful product, even one that has been conclusively linked to adverse health consequences.

Things aren’t a whole lot better over in the elected parts of government.  State and local health departments have been experiencing steady budget strangulation ever since (and even before) the Great Recession. The federal life-line, the Prevention and Public Health Fund, was raided once already by Congress, and remains a tempting target. Using the money we do get to promote legal interventions for health is under attack: with the help or acquiescence of Democrats, the long-standing restriction on lobbying in the HHS appropriations bill was changed. Despite legal analysis concluding that the old lines – educating public and policy makers is OK, just don’t push for specific legislation – are still in place, broad language about “future” legislation and threatening letters from an outfit called “Cause of Action” has reportedly chilled a lot of funding recipients.

For many of us, the succession of reverses and cuts looks like public health as usual: public health is usually the underdog whatever the topic. On the other hand, there are arguments that things are different now, ranging from the simple claim that the cuts have now reached bone to the belief that there is an active effort to put the “new public health” entirely out of business. So what is happening?

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Researchers to Lawmakers: Naloxone Distribution to Prevent Overdose Death is Cost-Effective

By Scott Burris

Phil Coffin and Sean Sullivan have published a cost-effectiveness study of interventions that equip heroin users and others to administer naloxone in the event of a witnessed opioid overdose.  Naloxone is the standard antidote, and can easily be administered by lay people with a minimum amount of training.  Family members and friends of opioid users can quickly get the drug into an overdosing user via injection or a nasal spray. In an accompanying editorial, top brass at NIDA and FDA sum up the news like this: the study

“represents a significant step in the evolution of the science in this area: a detailed analysis of the cost-effectiveness of overdose intervention with naloxone administration for heroin abusers. The authors suggest that lay naloxone administration is likely to be highly cost-effective in this setting, a robust finding that holds up under various assumptions. Future analyses that extend their findings to the setting of prescription opioids would be welcome.”

The editorial flags one of the major legal issues that gets in the way of wider naloxone distribution – its status as a prescription drug approved for use by injection. Changing this is a torturous regulatory process. In the short term, though, lawmakers can do a lot to get distribution going where it is needed.  As of July of 2012, eight states had passed laws to clearly authorize or otherwise reduce legal barriers to the prescription of naloxone to drug users and other potential good Samaritans. That leaves 42 states where programs may have trouble operating out of concerns related to prescribing a drug for a lay person to administer. LawAtlas covers the law and has examples of the legislative approaches these states have taken.

One more thing: evidence that naloxone distribution looks to be cost-effective ought to motivate lawmakers to consider these programs.  Many places don’t have them at all: a study published last year in MMWR reported, among other things, that “Nineteen (76.0%) of the 25 states with 2008 drug overdose death rates higher than the median and nine (69.2%) of the 13 states in the highest quartile did not have a community-based opioid overdose prevention program that distributed naloxone.”  In others, programs are operating but with little or no public funding to purchase naloxone, whose price has been rising precipitously (that’s another story about our creaking system for producing essential medicines).

The State of Public Health Law: Post I, “Who Am I? Why am I Here?”

By Scott Burris

Early in January, Lindsay Wiley and the Network for Public Health Law will convene a group of health law professors and (and a few colleagues from public health law practice) in Washington.  They will be spending a couple of days advancing a conversation about how academic health lawyers can make a bigger contribution to the cause of improving the level and distribution of health in the United States.  The conversation will pick up where a smaller group, organized by Wendy Parmet and Leo Beletsky, left off last Summer. You can read more about that meeting here.

The impetus for these meetings has been a sense that there is a well-organized and well-funded legal effort to blunt key initiatives in public health – and that it seems to be winning.  And that “our side” is not putting up much of a fight. Whether it is the creeping First Amendment or the shrinking Commerce Clause – or just the battle for public hearts and minds – many of us law professors shared the feeling that we needed to rethink our game, not just in the short term, but for the long haul.

The discussion in January will be addressing three questions essential to that rethink: (1) where are we now? (2) where would we like to be in 20 or 30 years? and (3) what will we have to do to get there?  In advance of the meeting, we are thinking about these questions, and I have taken on the task of offering some thoughts on question 1, in the form of a series of blog posts over the next three weeks.  These will be personal essays, describing my own perhaps confused thoughts. I consign them to ablog as much for future deniablilty as present dissemination. I’ll be happy to have comments.

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Gun Violence: Lessons Learned from Car Crashes

By Scott Burris, JD

“I have an absolute right to drive any vehicle I want, on any road, at any time, at any speed, and under any conditions.”

That’s an argument few people would take seriously. And few people would take seriously the argument that we should ban or substantially limit automobile use, despite the fact that America suffers more than 30,000 motor vehicle deaths every year.

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Ohio Joins In

By Hosea H. Harvey, JD, PhD

Last week, Ohio joined the vast majority of states that have enacted laws designed to reduce long-term health consequences for youth athletes who suffer concussions (technically, traumatic brain injuries or TBIs) in organized youth sports activities.  Based on my research for an upcoming article “Reducing Traumatic Brain Injuries in Youth Sports” (forthcoming, American Journal of Public Health), it appears that Ohio has followed the lead of most other states by adhering to a common framework and (at the same time) has substantially innovated with respect to certain key provisions of such laws.

Most youth sports TBI laws are organized around three broad risk-reduction methods: 1) educating parents, youth athletes, and/or coaches, 2) requiring the removal of youth athletes suspected of having concussions, and 3) providing criteria that a youth athlete must meet prior to returning to athletic competition. Each of these methods are, in part, derived from legislation crafted after a tragic football injury to Zachary Lystedt in Washington, leading the state to pass the nation’s first such law in April 2009. (You can read the law on LawAtlas™)  Since then, adherence to the “Lystedt framework” has been a common feature of state-level youth sports TBI laws. In this fast-paced legislative environment, unprecedented in scope, Ohio is relatively late to the game. Yet, by moving later, Ohio’s deliberate speed has resulted in legislation that relies on the Lystedt framework but also contains innovations of uncertain efficacy.

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Need Revenue? Taxes that Promote Health

The Congressional Budget Office just released a comprehensive new report investigating the budgetary effects of a hypothetical increase in the federal excise tax on cigarettes and small cigars from, $1.01 to $1.51 in fiscal year 2013. The report’s level of sophistication is unprecedented in its ability to evaluate the effects this change could have. Given the federal budget’s current state of affairs, perhaps the most significant finding from the analysis is that increasing the excise tax on cigarettes could reduce federal budget deficits by a total of about $42 billion through 2021. The value of the health costs and lives saved goes without saying.

Of course, the same could be said for some other products that can be harmful to health.  Alcohol taxes also suppress consumption and reduce the harms associated with drinking, and thanks to inflation and the absence of indexing in state tax laws, they are generally now at real rates we had in the ’50s and ’60s. See Alex Wagenaar’s systematic review for more on the subject.

So, if a majority of Americans are seeing a need for revenue, why not raise it, in part, where the result will also include saved lives and saved health care costs?