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?

They are out to get us.  Cause of Action and its chilling effect on health departments may or may not be paid for by the Koch Brothers, but of course there are well-organized and well-funded efforts to block governments from enacting laws that raise the costs or reduce the use of unhealthy “legal products.” And to prevent researchers from studying them and health organizations from advocating for them.  This is how business works in the face of regulation.  (Read Hacker and Pierson on the 1971 Powell Memo, or Drahos and Braithwaite on Global Business Regulation; look at the tobacco industry’s Project Sunrise or the NRA’s efforts to suppress gun research.) And, after all, we are out to get them: the growth of law as a tool of public health is a result of the fact that epidemiology now points to the products we consume (and how much and under what circumstances) as key vectors of chronic disease and injury. So what else should we expect?

They are out to get us, II: Starve-the-beast small government advocacy is also hurting public health. Good regulation costs money for good people who will make a career and have the resources to stand up to powerful interests.  There is probably some overlap with the opposition to health regulation, but I’m not convinced that small-government advocates have it in for public health in particular. When even police departments are being downsized, it is hard to call this an attack on public health. The result, however, is the same. This is an issue we have to take on, but it is hardly our issue alone.

No one appreciates us:  This is our old sweet song.  Prevention is never noticed. People don’t realize all we do, or how bad it would be if we stopped. There is some truth to this: public health can be invisible.  But we are also in your face these days – that goes with the territory when we are interfering – er, intervening – with what people eat, drink and play with. So to our traditional theme, we might want to add a new verse: people are sick of us.

One can isolate various elements of our troubles, but they come together in real life and the law: courts express doubts about legitimacy of regulating legal products; regulation is just one more example of big government inefficiency; enough with the nanny state already. Though I am not convinced doomsday has come for public health, I like the idea of conceding defeat, and here’s why: losing is great for clear thinking, and clear thinking is what we need to rebuild. Whether we are losing, or just not winning enough, we should be winning more. That means asking hard questions about both our goals and strategies.

Next: Looking in the mirror

Temple University Center for Public Health Law Research

Based at the Temple University Beasley School of Law, the Center for Public Health Law Research supports the widespread adoption of scientific tools and methods for mapping and evaluating the impact of law on health. It works by developing and teaching public health law research and legal epidemiology methods (including legal mapping and policy surveillance); researching laws and policies that improve health, increase access to care, and create or remove barriers to health (e.g., laws or policies that create or remove inequity); and communicating and disseminating evidence to facilitate innovation.

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