This document summarizes key developments in public health law in 2013. It discusses how public health law grew as an academic field but faced challenges as legal doctrine from increased scrutiny of public health regulations under the First Amendment, federalism, and administrative law. Notable court cases limited graphic warning labels and portion size restrictions. However, public health law advanced in some areas like vaccine requirements and trans fat bans. Overall, it was an ordinary year that highlighted ongoing issues like obesity and tensions between public health and civil liberties.

1. Health Law Year in P/Review:
Public Health Law
Wendy E. Parmet
Northeastern University

2. “It was the best of times, it was
the worst of times.”
Library of Congress
…or maybe it was just ordinary times.

3. • For the field of public health law it was the
best of times;
• For public health law as legal doctrine, times
were tough;
• For public health law as a body of legal
interventions, times were ordinary.

4. The Field of Public Health Law
• In Defining the Field of Public Health Law,,
(DePaul Journal of Health Care Law (2013)),
Micah Berman argues that public health law
has over the past two decades developed into
a distinctive field of study, “with its own
valuable perspective to contribute to legal
analysis”

5. Characteristics of the Field
• An interdisciplinary field
• That shares (broadly speaking) a population-
perspective;
• That draws from the work of public health
researchers, ethicists, and social scientists;
• And contributes to the normative discourse
over the role of government in addressing
health risks at a population level.

6. Signs of Growth
• Growth of JD/MPH programs
• Continued growth in curriculum
• Public Health Law Legal Network
• Public Health Law Research Program
• The George Consortium
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7. Public Health Law as Positive Law
3 doctrinal developments are eroding the
traditional deference given to public health
laws
 1st Amendment
 Federalism
 Review of Administrative Findings
*The Courts and Public Health: Caught in a Pincer, Peter D. Jacobson and
Wendy E. Parmet, American Journal of Public Health (forthcoming)

8. The First
Amendment & Public
Health Law
• Clash between the First Amendment’s
protection of speech and public health laws is
due to:
– Epidemiological transition
– Increasing reliance on the regulation of speech as
more respectful of autonomy
– Increasing protection given to commercial speech

9. Tobacco – Graphic Warning
Labels Put on Hold
• In March 2013 FDA announced it would
not appeal R.J. Reynolds Tobacco Co. v.
FDA, 696 F.3d. 1205, 1222 (D.C. Cir.
2012), striking down regulations
requiring graphic warning labels on
cigarettes.
• The R.J. Reynolds decision raises the
question: is compelled speech no longer
the less restrictive alternative?
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10. Regulating Unsafe Sex
• Vivid Entertainment, Inc. v. Fielding, 2013 WL
4451068 (C.D. Cal. Aug. 16, 2013).
– First Amendment challenge to Measure B,
requiring use of condoms in filming adult films
– Court found that plaintiffs’ First Amendment
challenge to the condom requirement was
unlikely to succeed on the merits, but
enjoined claims relating to fees, administrative
searches and prior restraints.

11. Review of Regulatory Actions
• The Big Gulp Case
– NYC’s soda portion rule exceeded
the authority of the Board of Health
– Trial court distinguished between Board
of Health’s authority over infection and non-
infectious disease
– Appellate Division said “soda consumption cannot
be classified as a health hazard per se.”
*N.Y. Statewide Coalition v. New York City Dep’t of Health, 970 N.Y.S. 2d 200 (N.Y.
App. Div. 2013), perm app. granted 2013 slip op. 88505 (N.Y. Oct. 13, 2013 )
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12. The Nanny State Trope
• A renewed debate about public
health paternalism and
government’s role in protecting
public health.
• Is this the fate of
the “new public health”
or just ordinary
times?
http://commons.wikimedia.org/wiki/File:Mary_Poppins5.jpg

13. Ordinary Times
• In the past 25 years, public health law has
moved from crisis to crisis
• 2013 was notable for the absence of a crisis
• This created “space” for challenges to the
scope of public health authority

14. Public Health Law is Popular!
• 75 % of the public rates the performance of CDC as
“good” or “excellent”
• 60 % of the public rates the performance of state
health departments as “good” or “excellent”
• Over 80 % support laws requiring the posting of
calories
• Over 63 % support graphic warning labels on
cigarette packages
*S. Moran & M. Mello, Survey Finds Public Support for Legal
Interventions Directed at Health Behavior to Fight
Noncommunicable Disease, 32 Health Affairs 486-96(2013).

15. Forward Momentum
• In June Oregon enacted a law requiring parents to
receive education about vaccines before refusing to
vaccinate their children;
• In March state court strikes down an Ohio law barring
localities from regulating trans fats;
• In Nov. FDA announced rulemaking to eliminate trans
fats;
• In Oct. NYC forbid individuals under 21 from
purchasing tobacco;
• In Dec. NYC Council approved measure banning use
of e-cigarettes in public (following N.J., Utah & N.D.).
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16. Continuing Challenges
• E-cigarettes: Harm Reduction or Harm Creation?
• Firearm-related mortality & morbidity
• Obesity
• Rising inequality & social determinates of health
• Paradox of prevention & the invisibility of public health

17. Imperatives for 2014
• Move beyond the “epidemic” metaphor
• Improve messaging and show greater respect
for popular priorities
• Implement evidence-based policies
• Focus on the social determinants of health
• Recognize public health as self-governance
• And continue the conversation about the
appropriate role of public health law.