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How Legal and Policy Levers Can Amplify Efforts to Reach Healthy People Goals

Public Health Legal and Policy Tools Framework: Lindsay Wiley, Health Law and Policy Program

It can be helpful to have frameworks to assess whether a legal or policy strategy might work to address a health challenge—and to think about the best approach in a particular community or context. Public health law scholars Lawrence Gostin, JD, and Lindsay Wiley outlined one such framework in Public Health Law: Power, Duty, Restraint, which organizes the types of legal or policy tools into a regulatory toolkit in terms of:

  • Direct regulation of persons, professionals, and businesses
  • Deregulation
  • Taxation and spending
  • Indirect regulation through civil courts and the tort system

These tools can help alter the built environment, information environment, and social and socioeconomic environment that impact health. It is important to note that laws and policies can protect and promote public health, but they can also impede health. For example, laws and policies were instrumental in creating and sustaining the unequal conditions that led to the racial disparities we see in health outcomes.

  • Direct Regulation of Persons, Professionals, and Businesses: Direct regulation can range from highly prescriptive command and control regulations to softer “nudge”-style approaches that modify default actions or the presentation of information intended to influence behavior.

    Command and control regulations tend to impose clearly defined rules that are enforced through an inspection process and assessment of penalties, such as mandated food signage in restaurants to remind employees to wash their hands and nutritional labels on menus and packaged food. When applied to some public health challenges, such as promoting healthy eating, this type of regulation has been criticized for being intrusive and paternalistic. In response, regulators have turned to “nudge” approaches that rely on choice architecture to “make the healthy choice the easy choice”—while still allowing individuals with clear preferences to make their own decisions about their family’s health.

    This approach can be illustrated by opt-out rather than opt-in requirements for school-based sex education classes, which increase participation rates for the classes while respecting parents’ rights to make decisions about their children’s sexual health education.

  • Deregulation: Deregulation can remove legal barriers that impede certain kinds of public health interventions. For example, to address the opioid epidemic, many states removed regulations to facilitate third-party prescribing of medication. This allowed prescribers and pharmacists to provide naloxone to family members and others likely to encounter individuals suffering from opioid overdoses. Deregulation is closely tied to the principle of harm reduction, which aims to reduce the disease and injury risks—as well as other social costs associated with illegal or socially disfavored activities—without directly aiming to disrupt those activities.

  • Taxation and Spending: Taxation provides incentives to engage in beneficial behaviors and disincentives to engage in high-risk activities. In economic terms, where consumption of a product poses a cost to society, taxes can be used to ensure that the cost paid by the consumer reflects the true cost of consumption—accounting for things like health care costs or lost productivity.

    Additionally, tax relief can be offered for health-producing activities, goods, or services. For example, tax-exempt entities, especially nonprofit hospitals, can be required to provide certain community benefits to maintain their privileged tax status.

    All of these approaches can be considered under the purview of taxation as indirect regulation. However, it’s important to note that taxation can be a controversial policy approach. It has been criticized in some circumstances as paternalistic and meddlesome, as well as inequitable and regressive, since sales taxes disproportionately impact people with lower incomes.

    Spending is another indirect policy decision that impacts health. The spending decisions of governments and other entities support a broad array of health-related services ranging from education and research to safety net programs for individuals and families. Congress or other legislative bodies can impose health-related conditions on the receipt of government funds. For example, Medicaid, housing assistance, and nutrition assistance programs impose various conditions on beneficiaries, retailers, service providers, and others.

    However, compared to other similarly situated countries, U.S. spending priorities are not always well aligned with a social determinant strategy for public health. For example, other members of the Organisation for Economic Co-operation and Development spend twice as much on non-health care social expenditures as they do on health care. But in the United States, government spending on health care far exceeds these kinds of social expenditures.

  • Indirect Regulation Through the Civil Courts and the Tort System: Attorneys general, public health authorities, and private citizens can redress many kinds of public health harms through civil litigation. Public health advocates have brought lawsuits against various industries—including tobacco, pharmaceutical manufacturers and distributors, fast food corporations, and auto manufacturers—to seek damages for health-related harms.

    In particular, several state attorneys general included public nuisance claims in their successful suit against tobacco manufacturers. This was based on the idea that there is a public right, collectively held and therefore enforceable by a government actor, to be free from unwarranted injury, disease, and sickness. Under this legal theory, the damage caused by tobacco to public health and safety was actionable in court. This kind of tort liability can be an effective deterrent for harmful conduct, and it can encourage innovation in safety measures and prevention. Beyond this, litigation can also play a key role in raising awareness. Through the civil discovery process, the public and regulators can gain access to new information about health-related harms or benefits in ways that can inform the creation or strengthening of regulatory systems. This process is occurring in ongoing opioid litigation.

    Though litigation can be effective, it is not an unmitigated good. It can be an expensive and lengthy process, and tort actions can deter beneficial activities. For example, companies may not pursue vaccine development or the creation of recreational facilities due to the threat of legal liability for harms. So, in some instances, conditional immunity from tort suits can be considered a special form of deregulation that can serve public health goals.

 

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