Public Health Laws PDF

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Since January 2020 Elsevier has created a COVID-19 resource centre with free information in English and Mandarin on the novel coronavirus COVID- 19. The COVID-19 resource centre is hosted on Elsevier Connect, the company's public news and information website. Elsevier hereby grants permission to make all its COVID-19-related research that is available on the COVID-19 resource centre - including this research content - immediately available in PubMed Central and other publicly funded repositories, such as the WHO COVID database with rights for unrestricted research re-use and analyses in any form or by any means with acknowledgement of the original source. These permissions are granted for free by Elsevier for as long as the COVID-19 resource centre remains active. 30 Latin American Social Medicine Laurell AC (2003) What does Latin American social medicine do when De Almeida Filho N (1992) Epidemiologı´a sin Números. Washington, it governs? The case of the Mexico City government. American DC: Organización Panamericana de la Salud. Journal of Public Health 93: 2028–2031. Franco S (2003) A social-medical approach to violence in Colombia. Muntaner C, Salazar RM, Benach J, and Armada F (2006) Venezuela’s American Journal of Public Health 93: 2032–2036. Barrio Adentro: An alternative to neoliberalism in health care. Franco S, Nunes E, Breilh J, and Laurell C (1991) Debates en medicina International Journal of Health Services 36: 803–811. social. Quito, Ecuador: Organización Panamericana de la Salud. Waitzkin H, Iriart C, Estrada A, and Lamadrid S (2001a) Social medicine Laurell AC (1989) Social analysis of collective health in Latin America. then and now: lessons from Latin America. American Journal of Social Science and Medicine 28: 1183–1191. Public Health 91: 1592–1601. Tajer D (2003) Latin American social medicine: Roots, development Waitzkin H, Iriart C, Estrada A, and Lamadrid S (2001b) Social medicine during the 1990s, and current challenges. American Journal of in Latin America: productivity and dangers facing the major Public Health 93: 2023–2027. national groups. The Lancet 358: 315–323. Testa M (1993) Pensar en salud. Buenos Aires, Argentina: Lugar Waitzkin H (2006) One and a half centuries of forgetting and Editorial. rediscovering: Virchow’s lasting contributions to social medicine. Waitzkin H (2004) The social origins of illness: Medicine is not enough. Social Medicine 1: 5–10. In: Waitzkin H (ed.) At the Front Lines of Medicine: How the Health Care System Alienates Doctors and Mistreats Patients... and What We Can Do about It. Lanham, MD: Rowman and Littlefield. Further Reading Breilh J (1989) Epidemiologı´a: Economı´a, Medicina y Polı´tica. Mexico City, Mexico: Fontamara. Relevant Website Breilh J (1993) Género, Poder y Salud. Quito, Ecuador: Centro de Estudios y Asesorı́a en Salud. http://hsc.unm.edu/lasm – Latin American Social Medicine (LASM), Cohen H, de Santos B, Fiasché A, et al. (1994) Polı´ticas en salud mental. University of New Mexico Health Sciences Center. Buenos Aires, Argentina: Lugar Editorial. Law, and Public Health Policy R Martin, University of Hertfordshire, Hatfield, UK ã 2008 Elsevier Inc. All rights reserved. Introduction action that sets out a vision of identified public health goals. In the context of public health, policy is usually States have a moral and political mandate to protect their determined by the political or executive arm of the state, populations from threats to health. Two of the most impor- although private public health agencies may also formu- tant tools which assist states in this task are public health late policy in relation to their own public health objectives. policy and public health law. Policy and law play different The British AIDS charity, the Terrence Higgins Trust but interrelated roles in the protection of the public’s health. (THT), for example, has developed a corporate strategy Public health law has been defined as the power and duty setting out the purpose, boundaries, and methodologies of of the state to ensure the conditions for people to be healthy their AIDS services (Terrence Higgins Trust, 2004). As and the limitations on the state’s power to constrain auton- with THT, an objective of private agency policy will often omy, privacy, liberty, and proprietary interests of individuals be to influence formulation of government policy. and businesses (Gostin, 2000). This definition encompasses Policy is a statement about values as to the importance both strategic public health policy of the state in terms of its of identified goals and the appropriateness of mechanisms role and responsibilities in relation to population health, for achieving them. In the context of public health, states and functional policies setting out the interventions it is have developed and refined policies which represent a prepared to undertake to carry out its strategy. cohesive and focused set of responses to particular public health problems. Most states have, with a varying degree of sophistication, policies which address threats such as Definition and Boundaries of Policy communicable disease, contaminated food, environmen- and Law tal harms, and smoking harms. As new public health threats emerge, such as the obesity epidemic, policy is Public Health Policy formulated or adapted to address those threats. Public health policy is determined by a process of consul- A policy may be descriptive in that it sets out an tation, negotiation, and research, which leads to a plan of approach to an issue of public health, or prescriptive in  Law, and Public Health Policy 31 that it requires some follow-up action (Ham, 1990). The wellbeing of learners and students with HIV/AIDS’ Philippine tobacco strategy consists of both descriptive (National Education Policy Act, 1996). These more policy (‘ It is the policy of the State to protect the populace detailed policies contain details of the powers and duties from hazardous products and to protect the right to which are necessary to meet the strategic policy goals. health...’) and prescriptive policy (‘... the government Policy can exist without recourse to law, although it may shall institute a balanced policy whereby the use, sale and choose to use law as a tool of implementation, as in the advertisements of tobacco products shall be regulated in example above. Policymakers call upon law when policy has order to promote a healthful environment...’) (Tobacco been designed for a long-term purpose, when policy pro- Regulation Act, 2003). Policy may be confidential to the grams of education and voluntary compliance are unsuc- policymaker or published to the wider population. The cessful in achieving policy goals, and when the effective process of policymaking is ongoing. The values underpin- implementation of policy requires a heavier hand. The ning policy are always up for debate and subject to chal- more detailed the policy, the more likely it is that, to achieve lenge not only by developments in public health science policy implementation, the policy will be embodied in law. but also by interest groups. In the United States for exam- ple, policies on needle exchange programs to reduce cases Public Health Law of HIV, although supported by scientific evidence, have been undermined by political objections (Rosenstock and Public health law consists of legislative (passed by parlia- Lee, 2002), and in Latin America the development of ment) and judicial (the judgment of a court) statements of policies on protection from secondhand smoking have rules or norms governing health interventions or health been hindered by the focused strategies of the tobacco behaviors. Law is by its nature in the public domain. industry (Barnoya and Dlantz, 2002). Legislation consists of written documents setting out Policy may be decided after a long period of consulta- rules of behavior of individuals, private and public bodies; tion or hurriedly in response to a new threat, and can be powers of public bodies; limitations on powers; and the rights flexible in its response to new knowledge. Policies may be of persons subject to those powers. Such a written document designed to be short term or longer term in their applica- will in some legal systems be called a statute, an act of tion, but the shelf life of government policy is likely to be parliament, or an ordinance, and in other systems be called limited to the government’s term of office. a code. The statute or act or ordinance or code may be Not all policies are of equal weight. Within each state accompanied by ‘secondary’ legislation, which carries less there will be a hierarchy of policy determined by who authority and which sets out in greater detail how the legis- makes the policy and the purpose it is designed to serve. lation is to be implemented. This secondary legislation may The closer the policymaker is to the seat of power, the be called a regulation but might also be called a code of more powerful and influential will be the policy. Policy practice or a decree or a circular. The characteristics which which represents strategic management will rank higher make these written documents legislation rather than policy than policy which is task oriented or which defines man- are the process by which they are formulated and the author- agement functions. Higher-level policies will be of a ity of the state to enforce the provisions of the document. greater level of abstraction and generalization, whereas Legislation in a democratic state is determined by lower-level policies, which filter down from strategic pol- a parliamentary process that enables the parliamentary icy, will contain more detailed specification. The South representatives of the public to contribute to the shaping African Department of Education has published strategic of law. The process by which legislation is made will be policy on AIDS and education which makes clear that clearly defined, such that any flaw in the process will render the legislation invalid and unenforceable. The ‘the Ministry is committed to minimize the social, eco- authority of legislation derives from public recognition nomic and developmental consequences of HIV/AIDS of the validity of the law-making body together with to the education system, all learners, students and public confidence that legislation has been determined educators, and to provide leadership to implement an in accordance with the legislative process. In a nondemo- HIV/AIDS policy’ cratic context, legislation may be made by rulers of the (South African Department of Education, 1999). state without public representation and without compli- The South African government then published legisla- ance with rules of process, and in such a case the enforce- tion which set out the detailed policies which serve to ability of legislation derives from the power of military implement the strategy, such as that ‘public funds should support rather than from the rule of law. be made available to ensure the application of universal In some legal systems, especially those modeled on the precautions and the supply of adequate information and Napoleonic Code, the total body of law is contained in education on HIV transmission,’ and ‘schools and institu- the written documents which make up legislation. Other tions should inform parents of vaccination/inoculation countries, such as Canada, Australia, New Zealand, India, programs and of their possible significance for the and the United States, have a common law system 32 Law, and Public Health Policy modeled on the British legal system, where legislation is does have a role to play in informing the public of the complemented by case law determined by a judicial pro- importance of policy and the seriousness with which the cess in which interested parties are given an opportunity government intends to execute policy. It can also serve to to argue their case. In a common law system, legislation prepare the population for the later introduction of func- passed by a parliamentary process takes precedence over tional policy measures. Law setting out strategic policy judge-made law, but where legislation is lacking or is will address the actions of public bodies, including politi- ambiguous, judge-made law may assume the importance cal bodies, rather than the actions of private bodies and of legislation. For example, in England and Wales, the law individuals. Such law will not generally provide enforce- which regulates the age at which a young person can ment measures, although public law might enable chal- consent to sexual intercourse can be found in a statute lenge of actions which contravene law. A more important (Sexual Offences Act 2003), but as there is no statute purpose of law in the context of strategic policy is to regulating the age at which a young person can consent formulate in unambiguous legal language the govern- to medical treatment; this is governed by judgments of ment’s stance on a policy issue and so to provide tools the courts (Gillick v. West Norfolk and Wisbech Area Health and language for debate on the ways and means with which Authority, 1985). Case law cannot be found in a definitive government policy is to be implemented. Law implement- legal document but rather results from a synthesis of court ing strategic policy can be used to establish public entities judgments giving rise to legal principles. and to clarify their objectives, values, and functions. Law, at least good law, results from and is underpinned The Hong Kong Legislative Council, for example, by policy and is usually framed after the policy debate is initiated its approach to the prevention of smoking concluded. Although it would be naive to propose that the harms by establishing the Hong Kong Council on Smoking content of law is unassailable by vested interests, and and Health. This was achieved by means of a statute which although law may be based on policy which has been expressed a broad mission statement setting out the gov- hijacked by political or economic factions, the parliamen- ernment’s strategic policy goals in relation to smoking tary and judicial processes are designed to work toward a harms, such as informing and educating the public, co- balanced reflection of views. Law will reflect but not overtly ordinating research, and advising bodies and agencies on state values, and any challenge of law in the courts must be health protection measures (Hong Kong Smoking and confined to a challenge of the process of law and not of the Health Ordinance). The statute provided no specific values on which it is based. Objection to law on the grounds duties or powers and no enforcement mechanisms, but it of its underlying values will require challenge of the policy made clear how the government intended to proceed and which lies behind law rather than of law itself. provided a platform for a more focused debate on the The framing of new law, whether by parliament or by nature of the powers and interventions which might be the courts, is a slow and often laborious process, which is used to protect against tobacco harms. In pursuance of both a good and a bad thing. The complexity of the law- these strategic goals, and after consultation and debate making process renders law inflexible and impotent in the on how the goals could be achieved, the Legislative Coun- face of unforeseen harms, so law may be useless if the cil then passed legislation implementing the functional public threat is new in kind. At the same time, once law is policy interventions the government intended to take in place, its amendment or removal requires a new pro- to ensure that strategic aims were implemented, such as cess, and incoming governments may have difficulty sum- regulating tobacco advertising and specifying the informa- marily overturning law which has been made in response tion which must be contained on a cigarette packet (Smok- to policies determined by an earlier government. Law’s ing (Public Health) Ordinance). This legislation was then advantage lies in its weight. It is difficult to challenge, it in turn supported by regulations which contain the detail carries with it powers of enforcement by the authority or of implementation, such as the powers of the government custom of the state, and it is a powerful influence on the chemist to determine the nicotine and tar levels of cigar- attitudes and behavior of citizens. While much policy will ettes (Smoking (Public Health) Regulations). never be implemented, law should be, and generally is, enforced. Indeed the enforceability of law is one impor- Law and Functional Public Health Policy tant factor which distinguishes it from policy. Law is a more effective and efficient tool for ensuring compliance with specific, detailed, and functional norms The Relationship Between Public Health of behavior than for expressing strategic policy. Laws Law and Public Health Policy implementing functional policy can address the actions of public executive bodies, private bodies, and individuals. Law and Strategic Public Health Policy They prescribe and proscribe identified actions and beha- Law is not always an effective vehicle for the expression of viors and dictate the circumstances of application of law, abstract principles and strategic policy. Nevertheless, law calling on other branches of law such as criminal law, tort  Law, and Public Health Policy 33 law, public law (in particular judicial review), taxation behavior. Law is habitually obeyed, not because of the law, and licensing law for enforcement. Much public nature of its content but because it derives from a legal health law is dedicated to stating and enforcing functional act of the sovereign or government of the state (Austin, public health policy. 1995). Citizens obey laws because they accept law as Law can uniquely impose enforceable duties on both expressing standards that justify criticism and punishment public bodies and individuals. If implementation of public of deviation from those standards (Hart, 1994). Citizens health strategy requires assurance that an action or activ- will, with this view, obey law even where they question its ity has been performed, law is the most appropriate moral or logical merit, simply because it is the law. Law is mechanism for achieving performance. Communicable accepted as a dictator of good or acceptable behavior, and disease control, for example, is reliant on data as to citizens adjust their behavior to comply with law irrespec- the prevalence and incidence of disease, and many states tive of the likelihood of enforcement or penalty. have within their public health armory laws which impose Law has played an important part in the shaping of duties of disease notification. public health behaviors. Road traffic fatalities in many Law can provide powers to act in ways which might states have been significantly reduced by laws requiring otherwise contravene other laws or impinge on human seat belts and child safety seats when traveling in a motor rights. If a public health official is required to act to limit vehicle. It may initially have been the case that citizens the exposure of a person with infectious disease to others, wore seat belts or purchased safety seats because they the state will need to frame legal powers of detention or feared prosecution, but it quickly came to be accepted isolation to enable the official to act without challenge. that the good citizen regarded vehicle restraints as evi- Otherwise the forcible detention might amount to a crim- dence of good behavior. Similar attitudes to acceptability inal trespass or a breach of the right to liberty. The of behavior have been observed after the introduction of Swedish government was found by the European Court smoking legislation. Although it might once have been the of Human Rights to have exceeded its powers by detain- case that a nonsmoker would object to a smoker on ing a man who was HIV positive because it feared his grounds that smoking invaded the nonsmoker’s personal health behaviors created a public health risk. The deten- right to clean air, after the intervention of law the smoker tion was found to have infringed the detainee’s rights to in a regulated nonsmoking zone is perceived as offending liberty and to private and family life, and he was awarded not against the individual nonsmoker but against society. compensation for breach of rights (Enhorn v Sweden, 2005). The smoker’s behavior ceases to be an individual nuisance Law also serves to provide limits to the exercise of and becomes a public offence, incorporating a moral judg- powers. At strategy level, government policy will deter- ment of the social acceptability of the smoker’s behavior. mine the relationship between the state and the individual The role of law as a setter of social norms plays an and the balance between public good and individual important role in the execution of functional public rights. In a nonauthoritarian state, those relationships health policy. Public health policy on tobacco smoke, will need legal expression. Compulsory vaccination and even supported by extensive public health advocacy and compulsory medical treatment, for example, may serve public health education, did little to reduce the incidence the utilitarian and communitarian objectives of reducing of smoking. Voluntary codes of practice have not proved disease threat, but does the strategic policy of the state successful ( Jones et al., 1999). Although it is too early to endorse such measures? Each state, in light of its political, pronounce on the success of law in reducing smoking historical, and social environment, will have developed levels, there is some evidence to suggest that in places formal or informal policy on the extent to which public where smoke-free laws are in place, the sale of cigar- good might justify interference with individual autonomy ettes has fallen (Euromonitor International, 2006), that and privacy. Unless that policy has legal expression, workers’ health has benefited from protection from individuals will have no basis for challenging abuses of secondhand smoke (Allwright et al., 2005), and that law power, and public health officials will have no clear indi- has served to change attitudes to smoking behaviors cation of the limits to their power to act in pursuance of (Fichtenberg and Glantz, 2002). Evidence also suggests public health goals. Most states will have laws, expressed that citizens in states which lack smoking laws are edu- either in legislative or customary form or through the cated by legal developments elsewhere to question the process of litigation, which determine individual rights absence of law in their own state (Pilkington et al., 2006). and provide remedies for the breach of those rights. Law performs another, more pervasive role in the implementation of functional policy. Law carries with it The Limits of Law in the Implementation status, integrity, and sanctity (a value which should not be of Public Health Policy violated) which give it authority beyond the expression of policy. In an organized society, citizens look to law Although there is much that law can do to implement to define good and bad, acceptable and unacceptable policy, there are times when the measures law can provide 34 Law, and Public Health Policy are inappropriate or powerless, and policy is a more be a legitimate use of the power of the state to require effective tool than law. Law is not helpful in providing individuals to act for the benefit of the public good open-ended obligations on state bodies, such as an obliga- (Jacobson v. Commonwealth of Massachusetts). Historically, tion to protect the right to health. An attempt was made in however, attempts forcibly to vaccinate, such as with the South African Constitution to provide that everyone smallpox vaccination programs in England, the United has the right of access to health-care services, and the States, and South Asia, proved counterproductive. Such constitution imposed an obligation on the state to take programs provoked violent resistance and noncoopera- reasonable legislative and other measures to achieve the tion, weakened the effectiveness of emergency measures, realization of this right. When individuals came to chal- and caused administrative and financial problems for lenge refusal of health-care services in the South African public health agencies (Albert et al., 2001; Wellcome Constitutional Court, the court recognized that the real- Trust Centre). ity of such rights was that they were limited by resources. Policy is a more effective tool in these circumstances. If The state could not be held responsible for the absolute government were to take the view that in certain defined health of any individual citizen, and in an open and circumstances, for example when pandemic human influ- democratic society based on principles of dignity, free- enza threatened, all infected or exposed persons should be dom, and equality, the principles of rationing of health- made subject to isolation powers or should undergo vac- care provision were found to be integral to a human rights cination, then functional policy can be framed speedily approach to health care (Chinkin, 2006). and flexibly and be time-limited to address the concern at Nor is law particularly effective in imposing obliga- hand. Measures other than legal enforcement, such as tions on individuals to act positively to protect the best state compensation for loss of earnings or the offer of interests of others. Law can regulate intentional, reckless, free medical treatment, are more likely to produce com- or negligent behavior, for example by criminalizing reck- pliance than the heavy hand of law. Some states, such as less transmission of disease, or by providing remedies to the United States and France, make childhood vaccination persons who have been negligently exposed to radiation, a precondition to state-provided services such as school- or by clarifying the constraints on medical practitioners in ing, thus achieving something close to compulsory vacci- their treatment of patients. But difficulties arise where law nation by administrative means. purports to require an individual to undertake an obliga- Law is also a poor vehicle for forcing public bodies to tion such as a duty to rescue an accident victim or a duty use powers they might have. It is common, for example, to stay away from work if an employee develops symp- for public health officials to have the power to isolate toms of influenza. The problem lies with the extent to persons with infectious disease. If the official declines to which the law can require an individual to undergo a exercise that power such that others are put at risk, law personal sacrifice for the benefit of another. Should an rarely provides a mechanism to enable those others to individual be required to put himself or herself at risk of enforce the exercise of the power. This is because the physical harm to rescue another from drowning or from a nature of a legal power is such that it incorporates a violent attack? Should an individual be legally obliged to discretion to act or not act, and responsibility for deter- forego earnings so that others can work without fear of mining the exercise of discretion lies with the person infection? Law tends to operate on the assumption that provided with the power. Rarely do legal systems provide individuals have responsibility for their own safety out- the means to force the official to act, even when significant side the deliberate, reckless, or negligent actions of others. harm might result from failure to act, for to do so would Workers who wish to be free of infection risk must make serve to convert the power into a duty. Had the legislature the financial sacrifice themselves by staying away from intended there to be a duty to act, the legislation would infection zones. have said so. Exceptionally, there might be a remedy when Policy, however, has no difficulty accommodating the the failure was to prevent a breach of a legally protected obligation to act for the benefit of others. Vaccination human right, or the failure to exercise the power was policy, for example, encourages individuals to undergo completely irrational. The Supreme Court of India has vaccination even where the immunization policy is for recognized that the right to life incorporates the right to the benefit of herd protection rather than for the protec- the bare necessities of life (Francis Coralie Mullin v. The tion of the immunized individual. Most states have for- Administrator, Union Territory of Delhi, 1981), and that water mulated vaccination policies which include advocacy is a community resource which is held by the state in programs to encourage vaccination on the premise that public trust. This has been held to mean that the state is in the interests of public good individuals may be required under a legal duty to protect water sources, and failure to to make some sacrifices. Rarely do states impose compul- exercise its powers to do so, by for example cleaning rivers sory vaccination, although legal challenges to state powers and wells, could be challenged in court (M.C. Mehta v. of compulsory vaccination have not generally been suc- Union of India, 1988). However, in most circumstances cessful, confirming that compulsory vaccination may well policy is better suited than law to directing the exercise  Law, and Public Health Policy 35 of a power, and might well dictate to public bodies a is an agreement that, among other things, sets out strategic political or social obligation to exercise powers in certain policy on the patenting of pharmaceutical products with defined circumstances. Policy has the flexibility to respond the objective of reaching a balance between technological to changing circumstances and social needs. Law is too innovation and the social and economic welfare of con- blunt and clumsy an instrument for this purpose. sumers. In 2003 it was amended by the Doha Declaration Another limitation of law is that law is a weak and to enable developed states to export pharmaceutical pro- inappropriate tool where negotiation or compromise is ducts to other states in which there was an identified necessary. Law is by its nature adversarial, and although national health concern, so long as products were not law might be used to establish and authorize mediation exported as part of a commercial arrangement. The agree- bodies, and may well provide leverage to persuade indi- ment relies on signatory states to then make appropri- viduals or bodies to engage in negotiation or mediation, it ate laws, and provides justification for state laws which is too inflexible a tool to provide a framework for negoti- derogate from patent-holder rights in circumstances such ation or mediation. Again, policy is a better mechanism as national emergencies. The WHO DOTS (Directly for setting terms of negotiation and is better placed to Observed Therapy) is a strategy for tuberculosis control compromise those terms when it is pragmatically or polit- that sets out standardized TB treatment practices, some of ically desirable to do so. which may require legislative backing. Russia, for exam- A final limitation of law is that laws are generally ple, has passed regulations to support TB control in line promulgated by national legislatures and judiciaries, with with the DOTS strategy in order to address its serious the result that laws rarely operate beyond state borders. tuberculosis threat (Marx et al., 2007). Public health threats, however, do not respect borders. International conventions are mostly aimed at the The power of states to act extraterritorially is extremely obligations of the state to protect the rights of its citizens. limited, although such powers have been invoked excep- The strongest expressions of obligation lie in instruments tionally to prosecute pedophiles operating abroad in rec- that contain civil and political rights such as the right to ognition of obligations under Section 34 of the United life and the right to be free from torture, for example the Nations Convention on the Rights of the Child, which International Declaration of Human Rights. Convention requires states to take national, bilateral, and multilateral signatory states are expected to provide such protections measures to prevent the exploitative sexual use of children. in national law. Instruments which aim to protect eco- The exception to the domestic character of law is law nomic and social rights such as the right to work, the right made by a supranational body such as the European to education, and the right to freedom from discrimina- Union, which has power to issue directives with which tion in the distribution of public goods such as health member states are obliged to comply. Supranational law- services, are premised on more ‘progressive’ realization making powers may facilitate public health in member of rights within national law, recognizing that the social states by imposing coordinated frameworks for protection and economic environment of some states may make against global public health threats such as contaminated these rights more difficult to implement. But in relation food or environmental harms. But supranational law to all rights conventions, implementation depends on which is framed to serve a purpose other than public the state’s willingness to enact laws which reflect agreed health may have the consequence of constraining a nation international policy. state from protecting its citizens from health harms. A more novel use of the device of the convention instru- The European Common Agricultural Policy, for example, ment is the WHO Framework Convention on Tobacco is credited with increasing the price of healthy fruit and Control, which advocates the use of law at both the interna- vegetables by requiring that produce be destroyed to tional and national level in support of policy in relation to maintain prices, but one of the concerns in the struggle tobacco harms. The Convention constitutes a unique use of to contain epidemic obesity is that processed food is WHO’s international treaty-making powers to address a cheaper than fresh food. global public health concern, in recognition of the enormity International agreements, strategies, conventions, and of scale of tobacco addiction and tobacco-related disease regulations also operate across states. These international across the developed and underdeveloped world. Unlike instruments address the actions of states and may dictate problems of alcohol and obesity, tobacco harms are greatest strategic policy, and although they do not generally in the poorer countries as a consequence of the efforts of the address directly the actions of private bodies and indivi- tobacco industry to target these markets (Taylor and duals or dictate issues of functional policy, they can be Bettcher, 2000). Although it has long been recognized that an important public health tool. Functional policies implementation of tobacco control strategies can serve to derived from internationally agreed strategic policy avert the health costs of tobacco, and that law is an essential are then embodied in national laws. The World Trade vehicle for such strategies (World Bank, 1999), the use of Organization (WTO)-administered TRIPS agreement international law to address an international health concern (Trade-related Aspects of Intellectual Property Rights) is a new approach. 36 Law, and Public Health Policy Although the WHO has power to make regulations for by providing enforcement mechanisms by way of penal- the protection of health, it has rarely used this power. ties and license suspension, but also by educating riders With the renewed awareness of the threat of communica- and drivers as to good and bad road behaviors. Law can ble disease following severe acute respiratory syndrome also impose speed restrictions for two-wheeled vehicles or (SARS), in 2005 the WHO revised their dated and in- regulate the built environment to provide cycle paths. In effectual International Health Regulations to provide an lower-income countries such as China, law could also play international legal regime for communicable disease con- a part in facilitating access to helmets by requiring fac- trol. The TRIPS agreement, the DOTS strategy, human tories producing helmets for export to use excess plant rights conventions, the Tobacco Convention, and the capacity to produce helmets for local consumption at International Health Regulations all presuppose that reduced or subsidized cost (Hendrie et al., 2004). national laws will be framed to reflect international con- Policy underpinned by law has proved the most effective trol measures. It is the international documents which approach to public health harms resulting from alcohol contain in legislative form the global policy strategies, abuse. The contribution of alcohol consumption to mortal- and national laws will serve to implement the functional ity and morbidity is well recognized. Many states, particu- strategies aimed at particular public health interventions larly English-speaking and northern European states, have or particular health harms. developed strategic policies (for example, the Alcohol Harm Reduction Strategy for England) in relation to alcohol-related problems, accompanied by functional poli- Law and Policy as Dual Mechanisms cies addressing particular concerns such as alcohol-fuelled in Public Health violence, alcohol-related motor accidents, alcohol-induced psychiatric disorders, and alcohol-induced physical disease. Neither law nor policy on their own can provide effective Such policies support a range of programs including means to deal with contemporary public health concerns. education and public information campaigns, but these Policy is more effective when it is enshrined in law, have largely proved unsuccessful in reducing alcohol operating a strategy of law and policy as dual mechanisms. consumption. The powerful interests of the alcohol industry Such an approach might consist of strategic public health have been influential in inhibiting the implementation of policy, embodied perhaps in legislation to indicate politi- policy-based programs (Room et al., 2005). cal will, combined with purpose-oriented functional poli- Legal measures in support of policy, however, have cies, some of which are embedded in law to provide been effective. Taxation of alcohol to increase alcohol duties, powers, and enforcement provisions. prices, introduction of driving laws stipulating maximum An example of how law might be used as a tool for the alcohol levels, imposition of licensing conditions on pubs realization of policy can be seen in relation to the issue of and restaurants, and civil liability of persons who serve cyclist road safety. In the region of Wuhan, China, cyclists alcohol to inappropriate persons have all worked either to account for 45% of traffic fatalities, and cycle accidents are reduce alcohol consumption or to reduce alcohol harms. the leading cause of brain injury in China (Li and Baker, Similarly, it is now accepted that policy strategies to 1997). Bicycle and motorcycle safety is recognized as a address epidemic obesity will work only with the support serious public health issue in China, as it is in many other of law. Voluntary agreements for broadcasters on adver- states. The WHO has addressed the problem of cycle tising of foods high in fat, salt, and sugar (HFSS) aimed at safety, and its Helmet Initiative is one component of a children, voluntary codes of practice on nutritional stan- policy strategy to reduce bicycle and motorcycle fatalities. dards of school food, voluntary codes on inclusion of The implementation of policy has, however, been ham- nutritional information in food labeling, and voluntary pered in many countries by social attitudes and by avail- agreements within the retail trade on the pricing of ability and price of safety helmets. In China, as in Vietnam, healthy foods have all failed to achieve strategic policy Thailand, and the Philippines, states with fatality rates objectives. Food manufacturers argue that unlike alcohol similar to those in China, cycle helmets may be available and tobacco, HFSS foods are not intrinsically harmful if only in luxury-good stores and at a luxury price. Yet many eaten in moderation, and that it is therefore inappropriate helmets on the market are manufactured in these states. to make food products subject to regulation. The food It has been shown elsewhere, in Sweden for example, lobby is an economically powerful one, and potential that public health education programs do not significantly loss of revenue from food advertising and food marketing reduce cycle fatalities and that mandatory helmet wearing has discouraged compliance with policy strategy. Govern- is one of the most effective strategies in reducing fatality ments across the world are turning to law to provide more and injury rates from cycle accidents (Svanström et al., powerful tools to tackle obesity, and some states (for 2002). In pursuance of WHO policy, Thailand introduced example, Sweden and Quebec) have begun to legislate helmet wearing laws, and this was followed by a 56% to constrain the actions of food manufacturers in the cause reduction in fatalities (WHO, 2002). Law works not only of obesity prevention.  Law, and Public Health Policy 37 Conclusion: A Marriage of Law and legislation would then be to make clear the state’s policy Policy? determination of acceptability of levels of risk. The pre- cautionary principle in the context of public health results Traditionally, law and policy have operated as separate from a recognition that public health risk analysis is but interrelated tools. Some states are considering a new relevant not just at the functional level of policymaking, form of public health law which enables law to serve as a but also at the strategic level of public policy determina- public expression of state public health policy even as that tion, that it is relevant not just to quantitative risk assess- policy evolves to respond to changing public health con- ment but also to more discursive qualitative risk, and that cerns (Martin, 2006). The potential inflexibility of law in it is relevant not only to economic risk but also to value the advent of new and unpredictable health threats was system risk (Steele, 2004). Subsidiary legislation in the realized in the face of SARS, and since 2003 many states form of regulations and codified rule of practice would have begun the process of rewriting their infectious dis- then set out details of functional health policy, on the ease laws. Some have attempted a complete rethinking of understanding that subsidiary legislation can, within lim- how law might best serve public health, premised on the its, be amended and extended without requiring a full notion that contemporary public health practice operates parliamentary process. in a framework of risk regulation. Risk is not a concept This new-generation public health legislation is still in that has traditionally been addressed, overtly at least, in the gestation stage. Its importance lies in recognition that law, although more recently reforms in environmental law the separation between policy and law, which has proved and in occupational health law, both areas with implica- valid in protection against harms with identifiable and tions for public health, have incorporated risk assessment isolated causes, may be artificial and unhelpful in dealing into their legal approaches. with public health concerns which result from manmade Western Australia has published a discussion paper risks, lifestyle choices, health inequalities, and social liv- on public health law reform in which it is suggested ing conditions. Legislation which can incorporate refine- that law should take a ‘new approach driven by risk’ in ment of policy as circumstances dictate, and which can which legislation should be ‘driven by the philosophy accommodate policy change at a functional level, will of minimizing risk to the public’s health’ (Department of provide a far more useful public health tool than tradi- Health, Western Australia, 2005). What is proposed is tional public health law. Whether there can be a success- legislation which includes, alongside traditional duties ful, workable, united expression of law and policy within a and powers, a statement of policies and guidance detailing legislative document remains to be seen. What is clear is risk assessment criteria to assist in the exercise of those that public health law must be sufficiently flexible to duties and powers. A similar approach has been suggested provide a vehicle for public health intervention in unfore- in the New Zealand consultation paper on public law seeable circumstances, and the incorporation of strategic reform, which proposes application of its public health policy into the legal framework of health protection might laws not only to defined diseases and conditions but to serve both to enhance the status of public health policy any condition, disease, risk factor, or other matter of and to provide law which better reflects the realities of public health concern (Ministry of Health, New Zealand, public health practice. 2002). The proposed legislation, far from purporting to remain value neutral, would make clear the value frame- See also: Environmental Protection Laws; Foundations in work of law, listing the fundamental principles which Public Health Law; Health Policy: Overview; Human would guide any exercise of risk assessment or discretion Rights, Approach to Public Health Policy; International in exercise of public health powers. Law, and Public Health Policy; The State in Public Health, Such law is new in that it brings policy, as well as The Role of. ethics, into the fold of law. 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