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As a general idea, law is characterized as a set of formal rules that specify obligations. Mostly these are written down in legislation, regulations, and ordinances. Laws can be made by national or regional parliaments or by local government. Sometimes the decisions of courts will also spell out obligations or establish standards of practice or add to or explain existing laws. The law relating to public health comes from many of these sources and can best be described as a disparate collection of obligations often to be found in areas that are not regarded as having great social significance, such as in the by-laws or ordinances of local government or in city codes. Furthermore, public health law does not yet operate under a unifying umbrella of a ‘grand theory’ insofar as it does not reflect systematic or overarching ideas about public health (although these ideas are to be found in the public health literature, the Ottawa Charter for Health Promotion (1986) being one). Rather, public health law is seemingly uncoordinated, scattered over a range of fields of public health interests, more the ad-hoc response to particular issues than a planned enterprise. Sometimes public health laws are so old and so out of touch with modern needs as to still reflect ideas about the causes of disease that were replaced over a century ago by the germ theory. Perhaps because of this they have often been eclipsed by newer and more powerful legislation, such as that relating to environmental protection or the control of pollution, where the traditional public health issues have been recast as environmental issues. Yet communities will always rely upon effective public health responses that are necessarily underpinned by laws, and newly emerging problems, such as the potential of pandemic influenza, continue to remind us of this fact.
In short the criticisms that could be made of public health law are that it is antiquated, uncoordinated and overshadowed by more modern forms of regulation. It is also slow to develop, particularly in response to chronic diseases, such as those caused by tobacco, excessive alcohol consumption and, increasingly, obesity. When it is changed it is often in an ad hoc manner and in response to a crisis. Yet public health advocates are aware of these deficiencies and change is on the way; in some parts of the world, new ideas and principles are being developed to form the basis of new and thoughtfully planned public health legislation. Potentially these promise to make the most substantial reforms to public health law since the traditional birth of the discipline as a systematic form of regulation in English-speaking countries in the midnineteenth century.
The Scope Of Public Health Law
Granted the scattered nature of public health law, it does traditionally have a generally understood content that is taken to cover a number of core areas. These are environmental health (sanitation and clean environments), communicable disease, food, drugs (which includes the regulation of alcohol and tobacco), radiation control, and occupational health and safety. To these areas we might also argue that the laws that regulate product safety, the use of the roads or which restrict access to firearms, also qualify as public health laws because, if effective, they also stand to prevent avoidable deaths and injury. However, laws that focus on public health serve other interests as well, creating a confusing and sometimes inconsistent set of objectives. For example, food laws can further public health needs by regulating hygiene standards, yet food laws might also seek to encourage a profitable and dynamic food industry. Although potentially conflicting interests can often be compatible in practice, there will be some cases where public health is balanced against the industry’s needs, most clearly where the issues of public health are not so obvious and there is debate about what amounts to an acceptable risk. Another example of this might be the laws controlling the number of liquor outlets, which although they may seem to have a public health benefit, more typically are driven by the competing financial interests of those already in the business of selling alcohol and those seeking a license to enter it.
Similarly, laws can have confused objects and appear to be operating from competing sets of values. For example, a public health approach to illicit drugs focuses on the harms that drugs cause and the best way of minimizing them. This approach differs from that of drug laws that are based on a moral view that the use of particular types of drugs is wrong. A harm-minimization view is more pragmatic and more focused on outcomes, allowing seeming inconsistencies such as needle exchange programs or injecting-rooms to coexist with the general ban on possession and use as a legitimate component of a policy on illicit drugs. By contrast, a moral view is less inclined to accept these approaches, preferring a more complete and prohibitionist position.
Further, some fields of public health have been recast as the province of other areas. In the nineteenth century the health and safety of workers were often regulated by public health law (requiring factories to be ventilated and have proper sanitation). But this was replaced by newer and more comprehensive bodies of occupational health and safety law and the creation of agencies to administer and enforce them. Similarly, the first environmental laws were also public health laws; today specialist agencies protect the environment. As a result, many countries now have up-to-date, sophisticated, and versatile legislation specifically focused on the workplace or the environment that have long since replaced the original public health-based laws.
However, notwithstanding this fragmentation of interests and erosion of many of its areas of territorial responsibility, public health law still offers an important safeguard for communities, and as this research paper discusses, new developments in the discipline suggest that future laws will sustain a visionary and reformist approach to public health policy.
The Structure Of Public Health Laws And Systems Of Governance
The administration of public health is as complex as the levels of government of the country in which it operates. It exists at a national level at which issues such as quarantine or the importation of regulated substances are involved, but it also exists within other levels of government.
Typically, within a federal system much public health law is administered at a regional (state or provincial) level, since this level of government is generally responsible for issues such as food, disease control, or tobacco regulation. Much environmental health is also administered through local ordinances or by-laws at a local (county, shire, or city) level, and it is here that important links can be made between land use controls and the regulation of new developments (as provided by local zoning and planning controls) and the health impacts of those activities. The international perspective is also important for public health law insofar as both national and local domestic regulation should be influenced by the various international instruments such as the Framework Convention on Tobacco Control, the International Health Regulations, and the Codex Alimentarius, to name three prominent examples. Regional arrangements such as those created within the European Community are also a source of public health law, with its enactments being adopted by member states.
All laws and regulations are subject to powers of parliament, usually established by a written constitution, and these provide the legal authority to make statutes. For example, in the United States the federal government draws its powers to make laws from section 8 of the U.S. Constitution, which provides a list of areas within which laws can be made. Although there is no reference to ‘public health’ as a specific area, the power to make laws about taxation or to regulate commerce can sustain laws that potentially have great significance for the public’s health. The same is true in Australia, where the Commonwealth Constitution (section 51(ix)) allows the federal parliament the power to make laws only in one area that is clearly about public health (quarantine). However, the power to make national laws with respect to corporations and trade and commerce, or to use the tax power to achieve good public health outcomes, has sustained a significant body of federal public health laws. Similarly the Canadian Constitution establishes fields of federal legislative authority, notably trade and commerce, and general criminal law, which includes public health statutes that carry penalties. For example, in RJR-McDonald v. Canada (1995) the Canadian Supreme Court held that the Tobacco Products Control Act 1988 (Canada) was ‘in pith and substance a criminal law.’ Other Canadian public health laws can be made in the fields of taxation and the power to regulate quarantine and establish ‘marine hospitals’ (section 91). The Constitution further sets out areas of provincial (state) responsibility that by implication pick up basic public health functions (establishment of hospitals generally, municipal institutions, liquor licensing, taxation for provincial purposes, and local laws within the province) (section 92).
When legislation is made subject to constitutional power, it is always open to challenge in the courts as being beyond the scope of that power and thus unconstitutional.
For this reason there will always be some uncertainty about the validity of some federal public health laws, particularly when they are controversial and therefore more likely to attract a challenge.
Inevitably, the distribution of public health powers between levels of government does not always go smoothly. There can be arguments that national controls should be expanded to deal with a national or international public health problem rather than relying on a body of patchy and potentially inconsistent regional laws. Alternatively, persons concerned about the growth of central authority at the expense of the states or provinces will argue against the imaginative use of constitutional powers to sustain public health laws that were not directly envisioned by their constitutions’ framers. These problems have often been resolved by collaborative arrangements (sometimes called ‘new federalism’) that allow policy and standards to be developed nationally (typically via a process that involves all parties, including representatives from all of the states or provinces), which are then adopted uniformly through regional legislation. In this way national unity is achieved and the federal balance is preserved.
By contrast, unitary countries such as England and New Zealand tend to concentrate their legislative powers in a central parliament. In these cases the distribution of power and public health responsibilities is between the central government and the local governments.
Constitutional Rights In Public Health
Rights can affect the public’s health status in ways that can be both productive and problematic. For example, a constitutional right to housing or to a healthy environment (a social and economic right) provides the basis from which advocates can argue for better services or against a policy or proposed development that might have adverse health impacts. By comparison, a right to liberty (a civil and political right) should prevent quarantine measures from being used in an arbitrary or unreasonable manner. A right to free speech (also a civil and political right) might allow a corporation to argue that its advertising is commercial speech that falls within the right, thus overturning an advertising ban on its products. Similarly a right to compensation for property ‘taken’ by government action might be argued to apply if an environmental agency prevents a potentially polluting factory from being built.
Social And Economic Rights In Public Health
Social and economic rights (also called ‘positive rights’ in the sense that they bring expectations on governments to satisfy them) are a feature of international agreements and some constitutions. Article 12 of the United Nations International Covenant on Economic, Social and Cultural Rights (1966) provides that signatories ‘recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ This has been reflected and made more explicit by Article 35 of the Charter of Fundamental Rights of the European Union:
Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.
Good environmental health is predicated on the existence of a healthy and unpolluted environment. In some cases, this is also the subject of constitutional rights. For example, article 11 of the Constitution of the People’s Republic of China provides that ‘The State protects the environment and natural resources and prevents and eliminates pollution and other hazards to the public.’ Among other rights, section 24 of the South African Constitution provides:
Everyone has the right
a. to an environment that is not harmful to their health or well-being; and
b. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that:
i. prevent pollution and ecological degradation;
ii. promote conservation; and
iii. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
Article 19(8) of the Chilean Constitution provides ‘the right to live in an environment free from contamination,’ and further provides that ‘it is the duty of the State to watch over the protection of this right and the preservation of nature.’ India also has a constitutional right to a clean environment, insofar as the Constitution imposes the following rights on the State and its citizens:
48A. The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.
51A. It shall be the duty of every citizen of India: (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
How can these rights be given meaning? They are not absolute guarantees; for example, an individual’s health depends on many factors (genetics, luck, personal choices) and also on the capacities of individual governments to provide adequate care and public health responses.
But a right to health should drive policies that provide persons with the opportunities and the environments to lead a healthy life to his or her full potential. Domestic laws can then adopt and apply these rights. One example is written into the preamble to the South African National Environmental Management Act 1998, which commences with the statement that ‘everyone has the right to an environment that is not harmful to his or her health or well-being,’ followed by the accompanying duty of the State to ‘respect, protect, promote and fulfill the social economic and environmental rights of everyone and strive to meet the basic needs of previously disadvantaged communities.’
Courts can also apply constitutional rights and give them meaning. For example, in the case of the right to housing, also provided for in the South African Constitution, the Constitutional Court required the government to move toward this obligation and to do what it reasonably can to meet it. In doing this it should take account of the most needy (Government of the Republic of South Africa v. Grootboom, 2001; Kende, 2003).
Civil And Political Rights In Public Health
For the most part countries have more civil and political rights enshrined in legislation than social and economic rights. These are the more familiar rights to free speech, rights of association, and guarantees of due process. Actions and prohibitions done in the interests of public health sometimes conflict with the strict language of these rights, but usually they are justifiable on the grounds that no right is absolute but can be abridged where there is a demonstrated need. For example, section 7 of the New Zealand Bill of Rights Act 1990 provides that the ‘rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ However public health legislation has infringed constitutional rights in some cases. A notable example was the RJR-McDonald Inc v. Canada case (1995). This was a challenge in the Canadian Supreme Court to the national Tobacco Products Control Act 1988. The Act established a complete prohibition on tobacco advertising and promotion and the court found that the ban breached the Canadian Charter of Rights and Freedoms insofar as the Act went beyond what was a reasonable limit on the right of free communication. In particular, the total ban imposed by the Act was only going to be constitutionally valid if it could be shown to be
necessary in order for the legislation to achieve a pressing and substantial goal. When the evidence is unclear whether a partial prohibition is as effective as a full prohibition, the Charter requires that the legislature enact the partial denial of the implicated Charter right.
The Charter allowed the regulation and prohibition of advertising but in a way that required government to be able to demonstrate that the method used was reasonable and not disproportionate to the burden on free communication guaranteed by the Charter.
Further, when coercive public health powers are used to detain and quarantine persons or to oblige them to undergo a clinical examination, they involve the placing of restrictions on personal liberty and the rights to associate with others (both are fundamental civil and political rights). However much they may be justified, it is crucial that these powers are used subject to a respect for rights. Good public health practice is completely compatible with a respect for human rights and operates more effectively in an environment where those rights are properly respected.
The Law Relating To Environmental Health And Planning For Health
Public health laws typically have followed public health crises. During the Black Death of the mid-fourteenth century, European cities imposed a series of quarantine controls, arguably the first recognizable public health laws. One of these was Venice, whose Great Council isolated new arrivals for a period of 40 days (said to be chosen by analogy with Christ’s sufferings in the wilderness; Zeigler, 1997: 39). Trade and movement across the globe prompted a series of more general quarantine laws, some of them extraordinarily harsh. English laws put in place during the eighteenth century allowed persons breaching quarantine to be hanged and their vessels sunk (Reynolds, 1995: 161). However, the threat of visiting epidemics (for which quarantine controls were the logical response) was compounded by another set of threats to public health in the nineteenth century, when the inhabitants of newly emerging cities (the new populations of a rapidly industrializing world) became the victims of chronic diseases caused by poverty, crowding, and an unhealthy environment. Although these problems were not new then, nor have they been solved, the midnineteenth century did see a period of sanitary reform that was expressed in legislation. From this period, our first recognizably modern public health laws emerged, whose basic structure remains in many countries to this day. England was the focus for these laws. In the 1840s it had significant urban growth together with medical and social reformers willing to report on and then address the issues of chronic sickness and premature death.
Thus, the Public Health Act 1848 (UK) was primarily driven by social and political ideals and was an example of how laws might be used as an instrument in the reform process. As an early example of public health law, the Act had its failings: it was limited in its scope, had many opponents, notably from landlords and other vested interests, and was premised on a miasmatic view of disease causation (that miasmas, effluvia of ‘vapors,’ generally recognizable physically as ‘bad smells’ emerging from unsanitary conditions, were responsible for spreading disease). Although this view of disease causation was to be replaced by current knowledge, it did prompt a focus on the urban environment as unhealthy, as well as unpleasant, and the first public health laws were also the first environment protection laws.
The Public Health Act 1848 offered a legislative framework to respond to public health issues that continues to be reflected in public health laws of the countries that have inherited a British legal system and a British structure of governance. This includes many Commonwealth countries, including the Canadian provinces and the Australian states. Thus in Southern Africa, the Public Health Bill 1999 of Swaziland or the Public Health Act 1972 of Botswana reflect a standard ‘English model’ of comprehensive public health legislation. The United States also offers a similar model of regional public health regulation. This framework centrally contains a statutory power to identify and remove unsanitary conditions or sanitary nuisances, generally after a complaint has been made by a neighbor. For the most part these powers were administered by local governments as part of their wider municipal powers, and the philosophical underpinnings of the legislation were in the utilitarian tradition of the first sanitary reformers. The framework has lasted over 150 years without significant change. However, this traditional approach is now much criticized and challenged by new ways of protecting the public’s health. The main challenge has been the rise of environmental protection agencies and the laws that sustain them. Today we see many traditional public health problems as environment protection problems and the ‘heartland’ of public health concerns. Clean water, clean air, and the control of waste are typically dealt with in many countries as aspects of their environmental protection laws and, therefore, many day-to-day problems of human health are now addressed by the environmental protection laws. This raises the question, how can public health legislation remain relevant when so much of its core areas have been absorbed elsewhere? The response in the United Kingdom has been to transfer the key environmental health remedies from the public health laws into the Environmental Protection Act 1990. In the United States and other parts of the world, these provisions remain in the local municipal ordinances and bylaws. In Canada, New Zealand, and Australia the environmental health laws remain in the public health acts, many of them old and in need of substantial reform. Since 2000 Australia has done substantial rethinking of the future role of environmental health law. A new approach based on a general unifying idea rather than a detailed problem-by-problem approach is being considered. This involves the proposition that persons should have a statutory obligation to conduct their affairs in a way that does not pose a risk to health, the idea being that risks to health are evolving and are not necessarily tied back to the limited sanitary contexts in which most environmental health acts currently operate. This general duty is then to be supported by administrative powers to issue abatement orders and to produce guidelines that spell out the scope of the duty in particular cases and also by an offence of ‘causing a risk to health,’ with penalties that in serious cases rival the offences associated with major environmental crimes.
Public health practice is focused on prevention. Within the framework of controls that regulate environmental health issues, the best opportunity for prevention is offered by the planning system, which decides whether a new development, for example a proposed factory, can be built in a particular locality and, if so, whether conditions designed to shield neighbors from its visual or polluting impacts should be imposed on the builders. An effective planning system is a ‘gateway control’ with the potential to prevent public health problems from coming about as a result of bad and unhealthy developments. In this regard planning systems will be more sensitive to human health needs if health concerns are part of the formal criteria for assessing applications. Much work has been done recently on health impact assessment (HIA). HIA needs to be built into the planning controls to ensure that public health questions are identified and then taken into account in the process of development control. More generally, land use controls need to make the raising and addressing of human health questions a central part of their decision-making processes.
Modern public health acts need to support these ideas and create links between environmental health and land use and other areas of social and environmental policy. Although few public health laws currently have moved very far beyond their traditional origins, Quebec’s Public Health Act 2001 reflects a forward-thinking approach to public health law. It provides for ongoing planning and surveillance requirements in relation to a range of public health problems generally, rather than a narrow focus on sanitation. The framework for a new public health act based generally on ideas of ‘risk to health’ was also set out in a discussion paper released in 2005 (Western Australia Department of Health, 2005). Initiatives such as these offer to restate the case for environmental health and reestablish the discipline as a distinct approach rather than as a somewhat overshadowed aspect of the wider field of environment protection. Yet the links with the environment and the laws that relate to it remain crucial for environmental health practice and, as is discussed in a following section, there is value in establishing a theory that unifies both traditions.
Finally, legislation can play a role in implementing the ideas and values of both traditional and new public health thinking and philosophy. It can do this by incorporating these ideas and values of public health as objects and principles in legislation. One example is the Swedish Public Health Objectives Bill 2003. Formal objectives and principles serve as a mechanism of accountability for governments and their public health administrators and also as a way of supporting the administration, on the basis that specific obligations and programs must be sustained financially because they are mandated by legislation.
The Regulation Of Communicable Disease
The control of communicable diseases has long been a core part of public health law. As we have seen, quarantine controls were among society’s earliest attempts to control such diseases. Later these controls were included in the general public health laws of many countries. More recently, special laws have been put in place for particular diseases, notably human immunodeficiency virus/acquired immunodeficiency syndrome (HIV/AIDS). Indeed, the experience with HIV/AIDS, with its immense global public health impacts, and more recently with the more contained threat of SARS, together with the potential for a new influenza pandemic, has led to a rethinking of disease controls in many countries. Quarantine laws still remain the most fundamental of the disease controls. They are most obviously controls at the frontiers and have an impact on travelers. For example, Article 1 of the Frontier Health and Quarantine Law of the People’s Republic of China provides that the legislation ‘is formulated in order to prevent infectious diseases from spreading into or out of the country, to carry out frontier health and quarantine inspection and to protect human health.’ However, in implementing quarantine controls there will always be some uncertainty as to how ‘deeply’ they can intrude into domestic areas (such as the closure of cinemas or schools) and still be exercises of a quarantine law. This is particularly important for countries such as Australia, whose federal quarantine controls are limited by a Constitutional reference to the term. At a minimum, all countries should have the capacity to implement the WHO International Health Regulations of 2005, which provide the most up-to-date requirements for quarantine and related controls.
Domestic disease control laws exist as part of the public health laws of many jurisdictions. Some are general provisions, dealing with the notification and investigations of cases of specified diseases. Other powers allow compulsory examination and the imposing of orders that might restrict a person’s activities or require the person to maintain medical contact or to continue with treatment. In extreme cases, isolation (either in a person’s home or an institution) is also an option. Laws such as these can either apply generally to a series of listed diseases or to a specific disease. Thus in 1987 The People’s Republic of China promulgated Regulations on the Monitoring and Control of AIDS. In 1993 the Australian State of Tasmania passed the HIV/AIDS Preventive Measures Act. By comparison, the United Kingdom has a general disease control law, the Public Health (Control of Disease) Act 1984, and Japan has a general Infectious Diseases Law 2003.
Traditionally the infectious disease controls of many countries were applied without any check and with no regard for the rights of the persons they affected. There are many examples of persons, notably foreigners or minorities, being singled out and in effect victimized by public health laws as part of a wider campaign against them. During the Black Death of 1348, Jews were tried and executed for spreading the plague by poisoning wells. This trend continues: in the nineteenth century marginalized immigrants (the Chinese or the Irish) were said to be responsible for a range of public health problems. This has even been a feature of recent times, and in the late twentieth century AIDS was variously characterized in Western countries as a disease of homosexuals or outsiders. Modern approaches should require that the laws are never able to be used unless there are reasonable grounds; namely where a person is known or reasonably likely to be suffering from an infectious disease and is behaving in a way that places others at risk. Modern communicable disease laws also provide an umbrella of values and principles under which individual powers should be exercised. For example Article 3 of the International Health Regulations (IHR) (2005) establishes the following principles under which the legislation is to be implemented:
The implementation of these Regulations shall be with full respect for the dignity, human rights and fundamental freedoms of persons.
The implementation of these Regulations shall be guided by the Charter of the United Nations and the Constitution of the World Health Organization.
The implementation of these Regulations shall be guided by the goal of their universal application for the protection of all people of the world from the international spread of disease.
States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to legislate and to implement legislation in pursuance of their health policies. In doing so they should uphold the purpose of these Regulations.
Article 42 further requires that all processes undertaken in accordance with the IHR are subject to the general requirement that they must be ‘initiated and completed without delay, and applied in a transparent and non-discriminatory manner.’
More specifically, domestic communicable disease control laws establish lists of rights and obligations. Rights were identified in the Western Australia Discussion Paper (Western Australia Department of Health, 2005) as the right to:
- privacy and confidentiality
- dignity and appropriate care and treatment, without any discrimination other than that genuinely necessary to protect public health and only to the extent necessary to do this
- be given information about the condition, its potential impact on the person diagnosed with the disease, and on others that he or she might have contact with and its treatment
- consent to treatment and examination, unless this is specifically overridden by an order under the Act
- have access to legal representation and advice and support from family and friends.
Correspondingly, the key obligations and responsibilities were identified as the obligation to:
- ascertain whether the condition has been contracted, and what precautions should reasonably be taken to avoid exposing others to the condition
- comply with preventative measures or treatment that will minimize the risk to others of exposure to the condition
- take reasonable measures to ensure that others are not placed at risk through any action or inaction of the person or any person responsible for the care, support, or education of the person.
The application of the coercive provision, such as compulsory examination and isolation, should also be guided by a requirement that the least intrusive option is always considered first. This has been formalized in the thinking of some jurisdictions. The Western Australian Discussion Paper (Western Australia Department of Health, 2005) envisages that powers are to be exercised in conformity with the objects of the new Act and in particular in accordance with the following provision:
that the liberty and rights of persons are to be respected at all times and infringed upon only when the interest in protecting public health is compelling and then only to the minimum extent necessary to secure this end. Consistent with the interest to protect public health, the least intrusive power necessary is always to be used.
More recently public health concern has focused on the possibility of emergencies caused by a number of possibilities, notably from pandemics or wide-scale outbreaks of bioterrorism. Historically public health law has offered little support for dealing with these contingencies. The last global pandemic was influenza in 1918, but the reviews of legislation over the 1980s and 1990s were, where they occurred, focused on HIV/AIDS, which presents a different set of issues. However, model legislation has been developed to address the range of public health emergencies. The first significant example of this was the Model State Emergency Health Powers Act (2001) prepared by the U.S. Center for Law and the Public’s Health. This Act reflects much current thinking on emergency public health law, which offers comprehensive powers balanced against a concern for human rights.
The Regulation Of Noncommunicable Disease
Noncommunicable disease encompasses a vast range of possibilities, contexts, and causes. The potential for law and legislation to influence their prevalence is huge and often not as well recognized as it should be. The first factory acts were in effect some of the first laws relating to noncommunicable disease, since by requiring better ventilation and cleaner environments they reduced exposures to the causes of cancer and chronic disease. In recent times the emergence of the ‘lifestyle diseases,’ most obviously tobacco-related illnesses, have offered opportunities for law and legislation to support public health policies. More recently, the dramatic increase in obesity (in both rich and poor countries) will have devastating impacts on public health, and once again opportunities exist to craft a legislative response to this issue. It should always be noted, however, that legislative intervention in areas such as tobacco, alcohol, or food, especially when it brings restrictions on marketing, are never easily achieved: there are wealthy and politically influential business interests prepared to commit resources to lobby against proposed changes and then to challenge them in the courts if they are enacted. Despite this, the period from 1980 to 2000 saw the drafting and implementation of a range of controls over the promotion and sale of tobacco products. Typically such controls sought to ban the advertising of cigarettes, including ‘backdoor advertising’ through the sponsorship of sporting events by tobacco companies. This was necessary because sponsorship grew significantly in the wake of the initial controls. First, it was a way of avoiding the bans on advertising (for example, sponsorship messages could be said to be incidental to a televised event and thus escape a direct prohibition). Second, it was a very effective way of getting extensive brand coverage, especially in a globally televised event such as the Formula One Grand Prix motor races. Legislation also banned competitions, ‘giveaways,’ and other devices to sell cigarettes and tobacco. Yet even in the face of a seemingly comprehensive ban, the tobacco industry has created ways to continue promotion. Films can show people smoking and make reference to particular brands in passing. These fall outside the bans because they are said to be ‘incidental’ references to tobacco products rather than direct advertising, yet they are placed there quite deliberately and there is evidence that actors have been paid to be seen smoking or displaying a certain brand (Reynolds, 2004). Tobacco can also be advertised through the
Internet, a medium that nation states cannot easily regulate. The existing laws can also be made to seem oppressive and unreasonable; the cigarette industry has painted restrictions on advertising and sponsorship as evidence of a ‘maternal’ and over regulatory public health system that stifles freedom of choice. A counterargument is that the bans strengthen freedom of choice by ensuring that people make their decisions in a world where smoking is not constantly represented as a glamorous and a desirable pastime.
Tobacco laws also prohibit smoking in particular public places, mainly worksites, restaurants, theaters, and public transport. They have been most controversial when extending into places where smoking is common, such as bars and casinos. In some countries these bans developed rapidly in the 1990s and in the wake of evidence that persons exposed passively to the tobacco smoke of others were risking an additional burden of ill health. In a legal sense this knowledge translated into workers’ compensation claims and civil damages for negligence. Employers especially became concerned with the potential costs of not banning smoking and increasingly introduced their own bans or supported compulsory bans through legislation, although some, particularly in the hospitality industry, sensed that they would lose trade if smoking were to be prohibited in bars and nightclubs. The tobacco industry fought the introduction of bans, largely on the basis that whereas some might find exposure to ambient tobacco smoke annoying, the evidence of physical harm was not strong. For many, however, any evidence of increased mortality and morbidity among nonsmokers exposed was sufficient to justify a ban. Restrictions on smoking in public have been implemented at quite different rates across the world. Where smoking is more prevalent and a strong component of daily life, bans will be much harder to achieve than in countries where smoking is less prevalent and typically declining further. There is also a secondary issue: bans are only effective if they are complied with and are accompanied by an enforcement policy.
The place of taxation in tobacco control programs has been debated, given its potential for unwanted consequences as well as public health benefits. The case for taxation as an aspect of public health policy is that as cost increases (the additional tax is generally passed on to the consumer as a higher retail price), demand will decline. When applied to goods and services generally, this argument may hold true. But when the commodity is tobacco, the situation is complicated by the fact that many smokers are habitual, even addicted, and in this context pricing is often a ‘blunt instrument’ that makes some people poorer rather than achieving the desired public health goal of reducing consumption. However, in the case of persons with limited disposable income who are not habitual smokers, pricing stands to be effective. Typically, these are children – many of whom risk commencing a lifelong habit. Since the first object of tobacco strategy should be to prevent the incidence of smoking (i.e., new cases), taxation may have a positive role in tobacco policy notwithstanding its potential to make some people poorer without, in their cases, achieving public health gains. Taxation should always be seen as a health promotion strategy and part of a wider program to assist persons to quit using tobacco, not as a relatively uncontroversial way of raising revenue, because it ‘punishes iniquity.’
Global issues have impacted tobacco regulation in two important ways. First, the WHO Framework Convention on Tobacco Control offers a global statement of the significance of tobacco as a public health issue. The preamble makes the following points:
Recognizing that the spread of the tobacco epidemic is a global problem with serious consequences for public health that calls for the widest possible international cooperation and the participation of all countries in an effective, appropriate and comprehensive international response.
Reflecting the concern of the international community about the devastating worldwide health, social, economic and environmental consequences of tobacco consumption and exposure to tobacco smoke.
Seriously concerned about the increase in the worldwide consumption and production of cigarettes and other tobacco products, particularly in developing countries, as well as about the burden this places on families, on the poor, and on national health systems.
The Convention places obligations on signatories to ‘implement, periodically update and review comprehensive multisectoral national tobacco control strategies, plans and programmes.’ This includes the use of pricing and taxation, packaging and labeling, imposing bans on advertising and sponsorship, and enforcing laws on sales to minors. Compensation claims by governments against the industry are also envisaged. Article 19 provides that:
For the purpose of tobacco control, the Parties shall consider taking legislative action or promoting their existing laws, where necessary, to deal with criminal and civil liability, including compensation where appropriate.
The Framework Convention on Tobacco Control is a global response to a global epidemic, and is a hugely significant document provided that its provisions are adopted by the countries that have signed it. However, international agreements can also be detrimental to public health, and the demands of global trade increase opportunities for a range of products that are adverse to public health, notably tobacco, to penetrate local markets. Any attempt to prevent the sale of such products can be painted as an unlawful restriction on trade that is designed to protect the local industry rather than the public’s health. Although the free trade agreements do allow exclusions if they are necessary to protect plant and animal quarantine and human health, the case for public health could be overwhelmed by a well-resourced and energetic campaign designed to promote the interests of global business. Furthermore, in many cases the adverse public health outcome will be less obvious than, for example, the immediate threat of an introduced disease.
The experience with tobacco offers a useful template for legislative policy in the area of nutrition. In the face of increasing global obesity, governments must begin to craft effective policies to deal with the problem and prevent the diseases linked to it. However, the analogy with tobacco can only be taken so far; there are some obvious differences between food and tobacco. Food is necessary for survival and comes in a range of types, healthy and unhealthy. In moderation, food is mostly healthy. Tobacco is an addictive carcinogen, unsafe at any dose. Further, tobacco-related diseases are specific to tobacco and are generally attributable entirely to smoking. Obesity potentially has many causes: diet, genetics, and insufficient exercise. Unlike tobacco, no one type of food can be blamed for a person’s obesity. This makes the role that bans and restrictions might play in food marketing far less clear than it might be with tobacco. However, the size of the obesity problem and its huge impacts on the health system has meant that legislation restricting promotion of certain foods, particularly where children are the target audience, is being canvassed as a possible component of a wider public health strategy to address obesity. They have yet to be implemented in legislation and governments remain tentative as to the desirability of controls on advertising and sponsorship, though the WHO has recommended that food and beverage advertisements should not exploit children and that ‘messages that encourage unhealthy dietary practices or physical inactivity should be discouraged’ (WHO, 2004: 13).
A range of options could be crafted to limit the reach of food advertising. Self-regulation may be an option, but often it is ineffective, designed more to forestall legislation than to achieve clear public health goals. Legislative options might include bans on some types of advertising (for example, where a toy associated with a meal is the focus of the advertisement, or advertisements for certain types of high-energy foods during the prime time for children’s television). Similarly, sponsorships could be regulated. But unlike tobacco, where a complete ban is feasible, enacting controls on food advertising presents the great difficulty of distinguishing between ‘good’ and ‘bad’ food, and crafting the partial ban would present legal problems, as well as public health policy problems. Yet some regulatory agencies are recognizing that a move toward some degree of effective control over the marketing of food to children needs to happen. In the United Kingdom, the Food Standards Agency made the following recommendations as part of a series of strategies and expressed the view that:
action to address the imbalance in TV advertising of food to children is justified action on relative amounts of advertising for foods, meals or snacks high in fat, sugar or salt and for healthier foods, and the times at which these adverts are scheduled, is likely to be the most effective option to address the imbalance
(UK Food Standards Agency, 2004).
In 2005 a private members bill was introduced into the UK Parliament that allowed for the banning of advertising of certain foods. In particular it envisaged regulations that prohibited specified kinds of marketing to children ‘of classes of food which may be considered detrimental to the health, well-being or educational performance of such children.’ The bill also sought to improve the nutritional content of school lunches both by prohibiting specified unhealthy options and by setting standards for meals. Implicit in the proposal is the idea that the state has a responsibility for the food marketed to children and consumed by them. Although this may be seen as a controversial idea, and sharply at odds with the notion of personal responsibility, it provides an example of how legislation might have a role in what is increasingly a major public health problem (Children’s Food Bill 2005 (UK)).
By contrast, other countries have sought to protect their food industries from the legal liability that might flow from its marketing practices. At both a federal and regional level the United States has introduced legislation (Personal Responsibility in Food Consumption Act of 2005, 109th Congress H.R. 554) that is essentially designed to protect food manufacturers, sellers, and their trade associations ‘for claims of injury relating to a person’s weight gain, obesity, or any health condition associated with weight gain or obesity.’ The idea that obesity is a matter only of personal or parental choice provides the underpinning for the legislation. Section 1714.4 of the Californian Civil Code (the equivalent of the Federal Act) was amended in 2005 to make the point that ‘[i]ndividuals remain ultimately responsible for the choices they make regarding their bodies, despite any commercial influences.’
The notion of ‘personal responsibility’ has become prevalent in the discussions of obesity and public policy. But it is also a component of more general questions about responsibilities for public health and the role of government that have been part of the public health debate since public heath laws were first drafted. Even accepting the argument that mostly persons do have responsibility for their own health, they make their choices within environments that can be either supportive or destructive of healthy outcomes. For example, it is the case that the fast food industry can ‘out advertise’ healthy food promotions many times over. This creates an environment in which persons are consistently provided with cues to consume and the ‘playing field’ is not level but tilted substantially in favor of industry interests. This is quite at odds with a key idea from the Ottawa Charter on Health Promotion (1986), that ‘healthy choices should be easy choices.’ It is far easier to exercise personal responsibility in a world where families are not subject to continuing messages to make unhealthy choices. It is far harder to exercise personal responsibility in a world where the messages are so skewed towards the unhealthy.
Other social issues might successfully be addressed by the same kind of approaches as those discussed for tobacco and obesity. In New Zealand the Gambling Act 2003 provides the underpinning for a public health model to address problem gambling. Such an approach moves the focus away from the individual gambler as an ‘addict’ or the issue of personal responsibility. Rather it focuses on the environment in which gambling occurs and the responsibilities of the operators of clubs and casinos. This public health approach contrasts with a revenue raising model in which the focus is on the taxation received (Raeburn and Herd, 2003).
Litigation As A Source Of Public Health Law
The restrictions on smoking in public places illustrate the influence that civil litigation can have on public policy. Indeed, the threat of legal actions against employers or proprietors of places of entertainment provided a strong argument for a public response in the form of bans on places where people could smoke. Without the threat of litigation it is unlikely that smoking bans in public places would have developed in many countries to the extent that they did. This raises a general point: although public health law is principally to be found in legislation, the influence of the courts should also be recognized as an important source of public health law. Another good example of this is ‘server liability’ or ‘dram shop liability,’ the argument being that under common law systems, the person serving alcohol has a duty of care to those buying it and to others who might be affected by the purchase. With this duty of care comes the obligation on a person to act responsibly, and in the context of serving alcohol, to not serve people if they are intoxicated and to provide as far as is reasonable and practical a safe environment, not only for drinkers but for those who might be directly affected by their actions. This potential for civil liability can be reinforced by statutes and many jurisdictions across the world make it an offence in their liquor licensing laws for a person to serve alcohol to someone who is already intoxicated.
More generally, the principle of a duty of care has a broad application in public health and could apply to persons and companies marketing fast food and to persons who operate gambling facilities such as places where poker machines are located or online betting occurs. The extension of liability in this way is controversial, because it is said to be driven by lawyers’ financial interests or to represent an example of an overbearing and overprotective state stifling free enterprise or depriving people of their personal autonomy. And, as discussed previously, attempts have been made in a number of jurisdictions to limit the extent to which claims can be made. But civil actions such as these do make the point that persons whose activities impact on public health (whether serving food or alcohol, selling guns, or operating gambling venues) are responsible for the consequences of their actions and should act reasonably under the circumstances. More particularly, the public health value of successful litigation cannot be underestimated. For example, a successful claim against the owner of a bar for the injuries that have occurred as a result of careless serving of alcohol to an intoxicated client, who then injures another person, has the direct effect of compensating that person for the losses or injuries suffered, which is the primary purpose of litigation. But it also has a more general public health impact; it sends a warning across the whole industry to lift its standards to an acceptable level, with all of the future potential public health benefits that this will bring.
Public Health Law: Future Directions
The future of public health law will be shaped by the emerging problems and threats to the public’s health both regionally and globally. The threats of a new pandemic of human influenza, the ongoing mortality of AIDS, and the increasing burdens of lifestyle diseases have been well described in the public health literature. However, potentially more significant public health problems will result from the impacts of our unsustainable lifestyle with its ongoing process of environmental degradation and climate change. The developed countries and increasingly many other countries across the world are running unsustainable economies that are drawing on finite resources and outstripping them (Loh and Wackemagel, 2004). This will bring vast long-term public health problems directly through the immediate impacts of storms, droughts, and increased temperature and indirectly if, as a result, regional economies that are dependent on depleting natural resources fail and poverty increase. Yet these issues are seen generally as environmental issues and, to the extent that legislation seeks to address them, the responses are considered as a body of environmental law and policy. The Western Australian Discussion Paper (Western Australia Department of Health, 2005) argued that the opportunity exists for public health and environmental legislation to discover a common source under the principles of sustainability and that new public health legislation needs to support sustainable policy and decision making wherever possible. This is a new idea, but it does illustrate that public health legislation needs to respond to the emerging public health problems of the day. It has been argued, for example, that requirements such as the health impact assessments described earlier could be set in legislation and influence decision making with a view to long-term sustainability.
There are also opportunities for sustainable decision making to influence public health outcomes in both the long and the short term. A cogent example of this is the potential for public policy to change commuting patterns. Increasingly in developed countries people commute by private vehicles. Journeys to work and to school that were formerly partially or completely active, comprising a mix of public transport and/or physical exercise (walking or cycling), are now replaced by door-to-door journeys in private vehicles that are largely passive. This trend has increased over the past decades and is unsustainable. But it is also a contributing factor to the problems of obesity, especially among children for whom a built-in opportunity to exercise (the opportunity to walk or cycle to school) is lost. Government policies usually underpinned by legislation can influence travel patterns. For example, taxation can either encourage or discourage private vehicle ownership and use. Public transport use can be encouraged by a number of policy options. Physical environments in which people feel safe to walk and exercise do not occur by chance but are the product of a planning control system whose zoning controls set the criteria for new developments that can either be ‘pedestrian friendly’ or ‘pedestrian unfriendly.’ Indeed, in many ways laws can be used as an instrument to encourage commuting choices that are healthier for individuals and more sustainable for communities. This example of bringing together two areas of public health concern is reflected in the provisions of the New Zealand Land Transport Management Act 2003, which specifically incorporate the two ideas of the protection and promotion of public health and ensuring environmental sustainability as key issues to be considered in the national and regional planning process required under the Act (S12).
Research In Public Health Law
A remarkable feature of public health law is the modest research capacity devoted to it. Unlike environmental law, which is taught in most law schools and environmental studies programs and sustains many specialist research centers, public health law is restricted to a few centers, typically funded or supported through government agencies or through the work of individual researchers with an interest in the field. Most notably, the United States has the Center for Law and the Public’s Health, which was established in 2000 as a joint initiative of Georgetown and Johns Hopkins universities and is a collaborating center of the Centers for Disease Control and Prevention (CDC). The Center is the source of a series of model legislation for public health law generally and emergency health powers in particular. Also in the United States, the Louisiana State University has a Program in Law, Science and Public Health. The U.S. CDC has provided the initiative for much research in public health law, and in 2005 the CDC Foundation announced the creation of an Institute of Public Health Law. In Australia, a National Centre for Public Health Law (at LaTrobe University, Melbourne) was funded from 2002 to 2005.
Specialist law texts exist in a number of areas of public health, notably food and drug law and environmental health law. General texts include Gostin (2001), Goodman et al. (2003), and Reynolds (2004). Although all three tend to be confined to their national contexts (the United States in the case of the first two and Australia for the third), they do offer general ideas and perspectives on the state of public health law.
- Charter of Fundamental Rights of the European Union (2000) Available at: https://www.europarl.europa.eu/charter/pdf/text_en.pdf
- Children’s Food Bill (2005). UK Parliament Available at: https://publications.parliament.uk/pa/pabills/200506/childrens_food.htm
- Constitution of the Republic of Chile (1980) Available at: https://www.constituteproject.org/constitution/Chile_2015.pdf?lang=en
- Constitution of the Republic of South Africa (1996) Available at: https://www.constituteproject.org/constitution/South_Africa_2012.pdf?lang=en
- Goodman RA, Rothstein MA, Hoffman RE, et al. (eds.) (2003) Law in Public Health Practice. Oxford, UK: Oxford University Press.
- Gostin L (2000) Public Health Law: Power, Duty, Restraint. Berkeley, CA: University of California Press.
- Government of the Republic of South Africa v. Grootboom (2001) (1) SA 46 (CC).
- International Covenant on Economic, Social and Cultural Rights (2001) Available at: https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx
- International Health Regulations (2005) WHA58.3 Available at: https://www.who.int/health-topics/international-health-regulations#tab=tab_1
- Kende MS (2003) The South African Constitutional Court’s embrace of socio-economic rights: A comparative perspective. Chapman Law Review 6: 137.
- Loh J and Wackemagel M (2004) Living Planet Report. Gland, Switzerland: WWF-Worldwide Fund for Nature.
- Ottawa Charter for Health Promotion (1986) First International Conference on Health Promotion Ottawa. Available at: https://www.euro.who.int/__data/assets/pdf_file/0004/129532/Ottawa_Charter.pdf
- Raeburn J and Herd R (2003) Gambling and Public Health. Auckland, New Zealand: Hapai Te Hauora Tapui Ltd & The Problem Gambling Foundation of NZ.
- Reynolds C (1995) Public Health Law in Australia. Sydney, Australia: The Federation Press.
- Reynolds C (2004) Public Health Law and Regulation. Sydney, Australia: The Federation Press.
- RJR-MacDonald, Inc. v. Canada (Attorney, General) (1995) 3 S.C.R. 199.
- Western Australia, Department of Health (2005) New Public Health Act for Western Australia: A Discussion Paper, pp. 73 Perth, Australia: WA Department of Health.
- WHO Framework Convention on Tobacco Control (2003) Available at: https://www.who.int/fctc/en/
- WHO (2004) Global Strategy on Diet, Physical Activity and Health. WHA57.17 The Fifty-Seventh World Health Assembly.
- Zeigler P (1997) The Black Death. London: The Folio Society.
- Burris S (2002) Introduction: Merging law, human rights and social epidemiology. The Journal of Law, Medicine and Ethics 30: 498–509.
- Burris S, Kawachi I, and Sarat A (2002) Integrating law and social epidemiology. The Journal of Law, Medicine and Ethics 30: 510–521.
- UK Food Standards Agency (2004) Food Standards Agency Agrees Action on Promotion of Foods to Children.