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Volume 1:
No. 2, April 2004
TOOLS AND TECHNIQUES
Law as a Tool for
Preventing Chronic Diseases: Expanding the Spectrum of Effective Public
Health Strategies
George A. Mensah, MD, Richard A. Goodman, MD, JD, MPH, Stephanie Zaza,
MD, MPH, Anthony D. Moulton, PhD, Paula L. Kocher, JD, William H. Dietz, MD,
PhD, Terry F. Pechacek, PhD, James S. Marks, MD, MPH
Suggested citation for this article: Mensah GA,
Goodman RA, Zaza S, Moulton AD, Kocher PL, Dietz WH, et al. Law as a tool
for preventing chronic diseases: expanding the spectrum of effective public
health strategies [Part 2]. Prev Chronic Dis [serial online]
2004 Apr [date cited]. Available from: URL: http://www.cdc.gov/pcd/issues/2004/
apr/04_0009.htm.
Part 2
Introduction
In part one of this 2-part series, we reviewed the important roles
that laws have played in public health and provided examples of specific laws
and their effectiveness in supporting public health interventions (1). We
suggested that conceptual legal frameworks for systematically applying law to
preventing and controlling chronic diseases have not been fully recognized and
we provided the basic elements of a conceptual legal framework. In part 2 of
this series, we first provide an overview of U.S. jurisprudence, describe the
legal mechanisms, remedies, and tools for applying law to public health, and
summarize the jurisdictional levels at which laws, mechanisms, remedies, and
tools operate. We then identify the potential contours for legal frameworks of
varying complexity and scope by offering examples of legal frameworks in public
health practice. This paper also outlines a plan for increasing the capacity
within the Centers for Disease Control and Prevention (CDC) for developing legal
frameworks and expanding guidance on using legal tools for preventing and
controlling chronic diseases. Finally, we describe resources for building or
enhancing the capacity to use law as a tool for preventing diseases, injuries,
and disabilities at the local level.
Overview of U.S. jurisprudence and legal methods relevant to
public health
The dimensions and elements of a systematic legal framework for
preventing chronic diseases and other public health problems can be drawn from
examining relevant fields of U.S. jurisprudence, legal theories, and legal
methods. These dimensions and elements include the following: 1) basic sources
of U.S. law relevant to preventing and controlling public health problems; 2)
legal mechanisms, remedies, and tools for applying law to disease prevention and
control; and 3) jurisdictional levels at which such laws, mechanisms, and tools
might be appropriately applied.
Basic sources of U.S. law relevant to public health
Basic sources of U.S. law include the federal Constitution and
state constitutions, federal and state legislative enactments, formally ratified
treaties, administrative law promulgated and enforced by agencies to which
legislatures have delegated such authorities, and common law (also frequently
referred to as case law) articulated by the federal and state judiciary
following appellate review. While the term "general welfare" is
mentioned twice in the U.S. Constitution — the supreme law of the land — nowhere is the term "public health" mentioned. This absence may
possibly reflect the view at the time the Constitution was established that
protection of the public’s health was a state responsibility and not a duty to
be assigned to the national government (2). In addition, through police powers —
reserved to the states by the Tenth Amendment — states retained
responsibility for public health (3,4). Despite the absence of the term in the Constitution, several provisions do confer some public
health powers on the federal government as well as affect the exercise of police
power by the states. For example, one provision (Article I, Section 8) confers
on Congress the powers to tax, appropriate monies, and provide for the general
welfare of the United States (3). These authorities have enabled Congress to
establish agencies with responsibilities in public health within the executive
branch, as well as to allocate monies earmarked for public health activities to
the states.
In contrast to the U.S. Constitution’s grant of limited,
enumerated powers to the federal government, individual state constitutions
exist as limits on the sovereign powers of states. While state constitutions
vary in their references to public health, many provide for
their legislatures to establish state — and sometimes county or local — boards
of health. In addition, states may delegate public health responsibilities to
such local authorities.
A combination of federal statutes establishes roles and
authorities of federal agencies in disease prevention and control activities.
The CDC and the Food and Drug Administration (FDA) are 2 such agencies for which
Congress has statutorily conferred explicit public health responsibilities and
authorities to address public health problems. The responsibilities and powers
of these agencies are reflected in provisions of the Public Health Service Act (PHSA)
and the Food, Drug, and Cosmetic Act. Sections of Title III of the PHSA
encompass a range of powers and duties for disease control and prevention,
including conducting scientific research relating to causes, treatment, control,
and prevention of diseases (Section 301), and for federal–state cooperation in
disease prevention and control (Section 311). Examples of PHSA provisions more
targeted to chronic disease issues are Section 317H,
which covers surveillance
and juvenile diabetes, Sections 399W-Z, which cover programs to improve the health
of children, including, for example, grants to promote childhood nutrition and
physical activity, and applied research into childhood obesity, and Sections
1501-1510, which cover breast and cervical cancer screening.
State legislatures, by acting under their broad plenary
authorities and by expressing their police powers to protect the health and safety
of their populations, enact numerous statutes for disease control and prevention.
These statutes create public health agencies at state and local levels,
articulate express authorities for such agencies to assure the public’s health
through regulatory and non-regulatory actions, and may even delegate such powers
to lower-level agencies. While the states’ legal authorities for preventing
and controlling many infectious diseases have been comprehensively described
(5), such information has not been well-characterized for chronic diseases.
In addition to constitutions and statutes,
other important sources of law affecting public health include administrative
law and common law. Administrative law is created by administrative agencies
through rules, regulations, orders, and procedures designed to promote policy
goals enacted by legislation (6). Responsibility for implementing and enforcing
such regulations may be delegated by legislatures to public health departments
and other regulatory agencies which, through the processes of issuing and
enforcing regulations, create a body of administrative law. Administrative law
requirements may govern a spectrum of public health actions that range from the
designation of notifiable diseases reported through public health surveillance
and the development of sanitation codes to the enforcement of environmental
regulations (7).
The United States has a common law system, encompassing what
frequently is referred to as "case law," in which judges interpret
constitutions and statutes through written opinions that guide the application
of the law. Within this system, the U.S. Supreme Court is the final authority
over a hierarchy of courts. The hierarchy extends from municipal and other local
courts that hear many public health cases, through the district, appeals, and
supreme courts of each state, and finally, to federal district and appellate
courts. Within this hierarchy, the opinions of an appeals court are binding on
subordinate courts. Although state courts in one state do not bind the courts in
other states, state courts often are influenced by courts in other states that
have considered similar problems. This common law system allows judges to modify
constitutions and statutes to adjust to changing conditions and unanticipated
problems. Many cases with important ramifications for public health, such as the
U.S. Supreme Court’s landmark decision Jacobson v Massachusetts,
illustrate this process of applying constitutional provisions to public health
situations that were not anticipated by the Constitution (8). Well-known areas
of common law include contract, criminal, real property, and tort law, some of
which have been important in public health (9). Tort law, for example, has
addressed injuries caused by unsafe conditions. Although historically the body
of judge-made tort law was almost entirely a common-law creation of judges, most
states have now clarified and limited these judicial decisions by statute and
regulation.
Legal mechanisms, remedies, and tools
Under the sources of U.S. law described above, public health
departments and other governmental agencies, as well as non-governmental
organizations and parties, can opt to employ a variety of legal mechanisms,
remedies, and tools for applying law to the prevention of diseases and injuries.
Legal mechanisms represent several categories of governmental methods and
interventions including not only the powers to tax and spend, but also the
direct regulation of individuals (e.g., seatbelt requirements) and of
businesses (e.g., licensure, inspections, fines, occupational safety standards) (3,7). Public health agencies also can turn to a
broad set of remedies and sanctions to enforce regulations. Such remedies
include civil sanctions — fines, suspension or revocation of
licensure, and injunctions (also known as court orders) requiring termination of
a defined activity required by law — and, in some instances, even
criminal sanctions (7). Claims for damages under tort and property theories
represent an additional legal tool for states, localities, individuals, or
groups addressing public health problems. This tool has been used to protect the
public from injury risks associated with products such as motor vehicles and
tobacco (10).
Jurisdictional levels
The jurisdictions at which mechanisms, remedies, and
tools may be applied to public health problems span the federal, state, and local
levels. While correspondence between the levels of enactment and application
of laws can be straightforward, the fit and interplay of laws and mechanisms can
be complicated for a multitude of public health policies and
problems. For some problems, there may be a clear relationship between the source(s) of law and its jurisdictional application. For an ordinance enacted by
a county commission to ban smoking in restaurants or entertainment venues, for
example, the law will be highly specific to a narrowly defined geographic and
political jurisdiction. For other problems, however, the relationship between
the source(s) of law and the target public health problem may be extremely
complex, involving a combination of federal, state, and local laws, and possibly
even invoking the principle of preemption — the legal effect resulting when a
superior governmental unit blocks an inferior governmental unit from regulation
(7).
Examples of legal frameworks in public health practice
Despite the foundational role of law in framing public health, as well as the
important roles laws have played as interventions for public health problems, only
a limited number of explicit, conceptual legal frameworks have been developed
for preventing and controlling diseases and injuries. An historical example of
the role of law in the modern public health movement is the Shattuck Report on
sanitary conditions in Boston in 1850 (11).
That report concluded with a proposed bill establishing a framework for public
health regulation. This approach later was applied to zoning and city planning
to improve the public’s health by separating residential housing from
industrial areas, creating green spaces, and improving lighting and ventilation
in multifamily housing.
A more recent example of the role of law in public
health is a model — explicitly labeled as a legal framework — for improving
the built environment (12). Other examples can be drawn from analyses of legal
authorities related to public health problems such as acute disease and public
health emergencies, environmental health, injuries, food-borne illnesses, and
tobacco use-related diseases (13).
In outlining a model for modifying the design of the built environment to
facilitate healthy behaviors and to create conditions for health, the authors
noted that educating people about healthy lifestyles is by itself insufficient
and that the built environment must allow for people to engage in healthy
behaviors (12). The authors suggested that law be used as a tool to achieve the
goals of a modified built environment and they proposed a
framework of 5 legal approaches: 1)
environmental regulation to reduce toxic emissions; 2) zoning ordinances to
designate specific uses for areas; 3) building codes to set standards for
structures; 4) taxation to encourage or discourage activities; and 5) spending
to provide resources for projects that enhance the built environment (12). These
legal approaches reflect not only constitutional principles but also the
potential use of laws arising from a variety of federal, state, and local
legislative enactments, and from administrative agencies.
While not explicit legal frameworks per se, some
legal powers have been outlined as tools for addressing other public health
problems. Legal authorities necessary for interventions during
public health emergencies draw from a combination of constitutional sources,
statutory enactments, and applications of the state’s police power — for
example, the powers to seize property, abate nuisances, and implement personal
control measures such as quarantine, isolation, and mandatory vaccination (14).
To control and prevent food-borne diseases, public health and other government
agencies at the federal, state, and local levels rely on a set of laws including
federal statutes, such as the Federal Food, Drug, and Cosmetic Act and the
Federal Meat Inspection Act, the uses of administrative law by agencies
possessing delegated regulatory powers, such as the FDA and the
Environmental Protection Agency (EPA), and myriad state and local legislated
and delegated authorities (15). Other legal tool constructs exist for
environmental health, tobacco control, and injury control (16,17). These
constructs employ legislative and administrative laws and also identify a
prominent role for litigation.
A final example is an analysis of laws related to potentially
modifiable risk factors associated with coronary heart disease (CHD) (18). While
this analysis was not advanced explicitly as a legal framework for the control and
prevention of CHD, it nonetheless offers ideas and elements for a legal
framework for addressing this and other chronic disease problems. The author of
this analysis examined selected risk factors for CHD, such as smoking, in
relation to laws most directly related to modifiable socio-environmental
determinants for the factor (e.g., the Federal Cigarette Labeling and Advertising Act, state and local clean indoor air laws), as well as in relation to laws more remotely
related to such determinants (e.g., state product liability laws, public
health laws, and consumer fraud laws).
Building the CDC’s public health law capacity in chronic disease
prevention and control
Systematic legal frameworks in chronic disease prevention and
control, like those described in the previous section, can be used to 1) assure
that all potential legal avenues are considered; 2) provide a structure within
which legal interventions can be monitored for appropriateness and
effectiveness; and 3) assist in ensuring that laws, rules, orders, and
regulations developed within these frameworks are implemented and enforced.
Specific legal frameworks could be derived for a number of
issues within the arena of chronic disease prevention — prevention of heart
disease, stroke, diabetes, asthma, obesity, cancer, or complications of
diabetes, for example — and health
promotion, such as reducing tobacco use, increasing physical activity, and improving
nutrition. Indeed, the CDC’s National Center for Chronic Disease
Prevention and Health Promotion (NCCDPHP) in collaboration with the CDC’s Public
Health Law Program has launched the development of legal frameworks in 2 of
these areas — prevention of cardiovascular disease and obesity — and aims to develop
additional frameworks in other high-priority areas.
In addition to these issue-specific frameworks, an overarching legal
framework could guide the
development of legal tools for the entire range of chronic diseases, health
behaviors, and environmental conditions. The framework could borrow effective
legal tools from one area and apply them creatively to another. An
overarching framework could be developed by incorporating the common elements of
issue-specific frameworks and by analyzing cross-cutting issues in chronic
disease prevention and health promotion.
To build the capacity of NCCDPHP to provide guidance and
technical assistance in the emerging field of public health law, we plan to
initiate several projects. First, a public health law work group has formed
within NCCDPHP to oversee promising activities. An attorney-analyst and medical
epidemiologist will coordinate efforts of a cross-NCCDPHP, multidisciplinary
team with representatives from each category-specific division — for
example, the Division of
Adult and Community Health and the Office on Smoking and Health.
Initial plans include a one-day meeting with external (non-CDC) program and public
health law experts to develop the next steps in building capacity. Priorities
include creating category-specific and overarching legal frameworks for chronic
disease prevention and health promotion, hosting seminars on public health law
and its current and potential uses in chronic disease, and expanding our ability
to guide and collaborate with constituents in using legal tools for chronic disease prevention and
health promotion.
Existing resources
A growing body of information resources can assist public health
professionals and others interested in building organizational capacity for using law as a
tool for chronic disease prevention (17,19-24). The initial activities listed above
and others will generate future articles in this and other journals.
Readers may review statutes and case law within
their own jurisdictions and also consult their legal counsel on
laws relating to their program's goals. Finally, public health conferences
increasingly are offering educational sessions and programs on laws for preventing
chronic diseases. The CDC Public Health Law Program Web site offers
information on 2 past conferences (25) and on the upcoming conference, The Public's
Health and the Law in the 21st Century, to be held June 14–16, 2004, in
Atlanta, Ga (26).
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Conclusions
This paper outlined the variety of legal tools, remedies, and
mechanisms available to public health practitioners and policy makers for achieving public health
goals and also examined law as a tool for expanding strategies for preventing and controlling
chronic diseases. We emphasize that the use of law should complement, not supplant,
existing strategies based on well-established principles of public health
practice (27). Law can bolster existing strategies when used prudently by public
health practitioners who have a clear understanding of how it shapes public health infrastructure and can promote program goals.
In addition to giving examples of the effectiveness of laws in
public health, we described the broad jursiprudential landscape upon which legal
frameworks address chronic diseases across a wide array of programs not limited
to officially designated public health agencies. Medicare and Medicaid programs, for example, set
policies that determine access for large segments of the U.S. population to
screening and secondary prevention activities for a number of chronic disease
risk factors and conditions. Similarly, the EPA and its state counterparts
determine to a large extent exposure levels to airborne and waterborne
toxins and to particulates linked to cancer, asthma, and other chronic diseases.
Municipal water systems, many independent of officially designated
public health agencies, influence oral health through fluoridation policies.
Even federal and state revenue agencies, while established largely for other
purposes, affect the public’s health through policies that assign taxable
status to preventive medical treatments.
Legal frameworks provide exciting opportunities for expanding the spectrum of
effective public health strategies. In collaboration with the CDC’s Public Health
Law Program, other legal experts, and our external partners, NCCDPHP will continue to explore the development, dissemination, and use of these
legal frameworks for the prevention and control of chronic diseases.
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Acknowledgments
We thank Professor Edward P. Richards of the
Louisiana State University Law Center for reviewing this manuscript and offering
valuable comments.
Author Information
Corresponding author: George A. Mensah, MD, Cardiovascular
Health Branch, Division of Adult and Community Health, National Center for
Chronic Disease Prevention and Health Promotion, Centers for Disease Control and
Prevention, 4770 Buford Hwy, NE, Mail Stop K-47, Atlanta, GA 30341-3717. Telephone:
770-488-2424. E-mail: ghm8@cdc.gov.
Author Affiliations: Richard A. Goodman, MD, JD, MPH,
Public Health Law Program, Public Health Practice Program Office, CDC; Stephanie
Zaza, MD, MPH, Office of the Director, NCCDPHP, CDC; Anthony D. Moulton, PhD,
Public Health Law Program, Public Health Practice Program Office, CDC; Paula L.
Kocher, JD, Office of General Counsel, CDC; William H. Dietz, MD, PhD, Division
of Nutrition and Physical Activity, NCCDPHP, CDC; Terry F. Pechacek, PhD, Office
of Smoking and Health, NCCDPHP, CDC; James S. Marks, MD, MPH, NCCDPHP, CDC.
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