The Big Gulp Wins: Public Health Loses

By Wendy Parmet

Public health law took another hit this week. In a unanimous decision (starting on p. 22), the Appellate Division of the New York Supreme Court affirmed a trial court’s earlier ruling striking down the New York City Board of Health’s ban on the sale of large sugary drinks.

In an opinion authored by Justice Dianne T. Renwick, the appeals court ruled that the Board of Health had “failed to act within the bounds of its lawfully delegated authority” in promulgating the so-called soda ban. Relying primarily on the Court of Appeals’ decision in Boreali v. Axelrod, the Appellate Division concluded that the soda ban was unlawful because 1) in framing the regulation, the board took into account factors other than public health; 2) the regulation was not an act of interstitial rule making; 3) the regulation concerned an issue that the legislature had considered and had failed to reach a decision; and 4) the regulations did not require expertise in the field of public health.

Although the Appeals Court did not repeat the trial court’s spurious suggestion that the board’s powers were greater when applied to infectious diseases than chronic diseases, it reiterated the erroneous belief in a binary distinction between public health factors and social and economic factors. In the court’s view, the only factors a health department should consider are “health factors,” which seem to exist totally apart from the social and economic environment. Any consideration of social and economic factors, including as the court noted, consideration of behavioral economics, is outside the scope and beyond the expertise of public health.

This dichotomization of public health and “non-health factors” relies on a false understanding of public health expertise. Public health is not a hard science. Although public health relies on the natural sciences and employs empirical methodologies, it is also a social science that seeks to understand and improve human health as human beings are embedded in their social environments. This applies not only when public health deals with overtly social issues – such as the social determinants of health – but even when it considers more traditional, core public health issues. Consider for example, the question of whether to require schoolchildren to be vaccinated against Hepatitis B, a disease transmitted through sexual and blood contact.  In rendering that decision, public health authorities need to consider, and do consider, not only virology and immunology, but also questions such as “are children more likely to be vaccinated if it is mandated upon entry to school than if it is recommended or mandated at a later age?” In concluding that the answer is “yes,” health agencies are of course drawing upon their knowledge and considerations of social factors, and indeed relying upon insights about the importance of defaults, that are much the same as those the New York Board relied upon in banning large sodas.

By drawing a distinction between public health and social factors, the Court prevents health agencies from doing their job. Health agencies need to consider social factors not only because they relate to and influence health, but because the public would rightly condemn those that failed to do so. A health agency that exercised its coercive powers oblivious of economic, social, and even political costs would impose isolation orders on everyone with influenza. It might also ban all sugary sodas regardless of their size.  Or it would do nothing. What it would not do is precisely what health agencies must do if they are to fulfill their mission to protect public health: develop carefully informed, nuanced policies that improve public health given the social, economic, and political environments in which people face risk, and health agencies operate.  Doing so of course is a mighty challenge, as the political and legal reaction to the soda ban underscores.

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