The Legal Foundation for
U.S. Public Health Practice
National Indian Health Board
National Tribal Public Health Summit
May 31, 2012
Public Health Law Program
Office for State, Tribal, Local, and Territorial Support
Disclaimer
The contents of this presentation have not been formally
disseminated by the Centers for Disease Control and
Prevention and should not be construed to represent any
agency determination or policy. This presentation is for
instructional use only and is not intended as a substitute
for professional legal or other advice. Nor is it an
endorsement for the implementation of any specific
legislation. While every effort has been made to verify the
accuracy of these materials, legal authorities and
requirements may vary from jurisdiction to jurisdiction.
Always seek the advice of an attorney or other qualified
professional with any questions you may have regarding
a legal matter.
CDC’s Public Health Law Program
Who We Are
and
What We Do
CDC’s Public Health Law Program
Mission
– To provide support to public health
practitioners and their counsel using
legal tools and strategies that when
implemented improve public health
outcomes.
• Converging science, policy and law into
specific strategies that are promising
practices or best practices.
CDC’s Public Health Law Program
Vision
– Using Law to Improve Public Health
Outcomes
• Customers
– STLT Public Health Agencies and Practitioners
– Legal Counsel to Public Health Practitioners
– CDC Programs
– CDC Partners
– CDC Grantees
CDC’s Public Health Law Program
PHLP Services
– We provide consultation and technical
assistance that is coordinated with
multidisciplinary subject matter experts,
focused on jurisdiction specific public health
issues, and encourages a team approach
between public health practitioners and their
legal counsel.
Public Health Law: Why?
An increasing need for legal clarification
regarding the way public health programs are
implemented on the state and local level:
– Conducting routine, daily activities, such as public
health surveillance, inspections, and enforcement
– Investigating outbreaks: setting clear parameters
– Responding to natural disasters and other public
health emergencies
– Federal legislation (e.g. ACA) and policy initiatives
U.S. Public Health Law: Why here?
It is important that AI/AN public health
practitioners have a basic understanding
of the role of law in U.S. public health
practice in order to better:
– Foster understanding among AI/AN communities and
policymakers on the state and local level
– Equip and empower interested participants in being a
voice in public health law and policy making on the
state and tribal governmental level
– Demonstrate the critical role that law plays in
advancing public health goals
Law’s Paramount Role:
10 Great Public Health Achievements,
United States, 1900-1999*
Do you know how law contributed to these
achievements?
• Vaccination
• Motor-vehicle safety
• Safer workplaces
• Control of infectious diseases
• Decline in deaths from coronary heart disease and
stroke
• Safer and healthier foods
• Healthier mothers and babies
• Family planning
• Fluoridation of drinking water
• Recognition of tobacco use as a health hazard
Law’s Paramount Role:
10 Great Public Health Achievements,
United States, 1900-1999*
Public Health Achievement
Selected Laws/Legal Tools
Vaccination
School vaccination laws; childhood vaccination
programs
Motor Vehicle Safety
Speed limits; alcohol laws; helmet and seatbelt
laws; child safety seat laws; graduated drivers
licensing
Safer Workplaces
Authority to inspect for unsafe conditions;
inspection of workplace safety/minimum
standards, including toxic exposure
Control of infectious diseases
Sanitary codes; drinking water standards;
quarantine/isolation laws; mosquito/rodent
control; food inspection
Decline in heart disease/stroke
Education/info programs; food labeling; bike and
walking paths
Law’s Paramount Role:
10 Great Public Health Achievements,
United States, 1900-1999*
Public Health Achievement
Selected Laws/Legal Tools
Safer/healthier foods
Inspection/minimum standards for retail food;
mandated enrichment of flour; standards for
chemicals; school lunch programs
Healthier mothers/babies
Milk pasteurization; drinking water code;
education/information programs; Medicaid services
and funding; WIC
Family Planning
Authorization for birth control services; authority to
provide prenatal/postnatal care to indigent mothers
Fluoridation of drinking water
Laws/ordinances authorizing drinking water
fluoridation
Recognition of tobacco as a
health hazard
Excise taxes; restriction on sale to minors; smoke free
laws; education/information programs; lawsuits
leading to settlement agreements
Public Health Law
Key Definitions
and
Concepts
Definitions: Law
•
Law has many definitions
– Rules that are subject to the enforcement
power of a government entity.
– The structures, norms, and rules that a
society uses to resolve disputes, govern
itself, and order the relations between
members of the society.
– “The enterprise of subjecting human
conduct to the governance of rules.”
Definitions:
Public Health Laws
• Any laws or regulations
that have important
consequences for the
health of defined
populations
• Not limited to laws
related to “the official
health department”
Public Health Laws
One suggested definition:
“The legal powers and duties of the state
to assure the conditions for people to be
healthy, and the limitations on the power of
the state to constrain the autonomy,
privacy, liberty, proprietary, or other legally
protected interests of individuals for the
protection or promotion of community
health.”*
Public Health Laws
• Some examples of how public health laws work:
– Change the physical environment
• Examples: Fluoridation of water; zoning of certain areas as
residential v. industrial, building codes requiring smoke
alarms
– Penalize risky behavior
• Examples: Tickets for not wearing seatbelts; fines for
polluting
– Alter the informational environment
• Examples: Violence or drug prevention programs in schools;
food labeling; regulation of advertising of cigarettes or alcohol
Public Health Law
Two Fundamental Concepts
S
T
A
T
E
L
O
C
A
L
F
E
D
E
R
A
L
Two Fundamental Concepts
– Federalism power is
divided between a
national government
and smaller state
governments
– Police Powers
Powers exercised by the
states to enact
legislation and
promulgate regulations
to protect the public
health, welfare, and
morals, and to promote
the common good.
S
T
A
T
E
L
O
C
A
L
F
E
D
E
R
A
L
Police Powers
• Defined: Powers exercised by the states to enact
legislation and promulgate regulations to protect the
public health, welfare, and morals, and to promote the
common good.
• Examples:
• Investigations of infectious disease outbreaks
• Childhood vaccinations as condition for school entry
• Ban on distribution of free cigarette samples in areas around
schools and other places frequented by minors
• Involuntary detention of persons with certain communicable
diseases
• Property seizure and destruction to control toxic substance
threats
Basic Sources of Law
• Constitutions
• Statutes
• Regulations
• Common law
Constitutions
• U.S. Constitution is the source of all
legal authority for the federal
government
• Both state and federal constitutions are
sources of law for the states
• State constitutions differ in significant
ways, producing different styles of
government in the states
The U.S. Constitution
• “Supreme law of the land”
(drafted 1787)
• Establishes 3 branches of
federal government and
separation of powers
• Legislative
• Executive
• Judicial
• Confers limited set of
enumerated federal powers
Commerce Clause
• Federal government has exclusive
power to regulate commerce with
foreign nations.
– Direct or indirect regulation by states
that unduly burdens foreign or
interstate commerce is
unconstitutional.
• The federal government may regulate:
– Interstate commerce that crosses
state borders.
– Intrastate commerce that affects
interstate commerce.
U.S. Constitutional Design:
Implications for Public Health
• Most public health activities carried out by
state and local governments
• Federal government functions in public
health carried out through regulatory (e.g.,
FDA) and non-regulatory (e.g., CDC)
agencies
• Federal government shapes state / local
public health through funding and
defunding
Law as a Public Health Tool
Obesity:
An Urgent Public Health Threat
Obesity:
An Urgent Public Health Threat
• 34.3% of U.S. adults are obese and 32.7%
are overweight
• 16.9% of U.S. children and adolescents are
obese
• Trends suggest growing numbers of obese
adults, adolescents, and children in the next
decade
• Medical costs associated with obesity
estimated $147 billion in 2008
CDC Evidence-Based Target Areas and
Settings for Obesity Prevention and Control
•
•
Target Areas
‾ Reduce consumption of high-calorie foods
‾ Reduce consumption of sugar-sweetened beverages
‾ Reduce TV viewing and video game play
‾ Increase consumption of fruits and vegetables
‾ Increase physical activity across the lifespan
‾ Increase initiation and duration of breastfeeding
Settings
‾ Schools
‾ Daycare
‾ Worksite
‾ Healthcare
‾ Community
Law and Nutrition
•
Examples of existing laws that influence obesity through
nutrition:
• School food programs
– West Virginia (HB 2816) implemented the IOM Nutrition
Standards for food in schools
– California (SB 19/56) set nutritional standards for all foods
and beverages sold in schools
• Bans
– New York City – First jurisdiction to eliminate artificial trans
fats in restaurants (Section 81.08 of the NYC Code)
• Supplemental nutrition programs
– Special Supplemental Nutrition Program for Women, Infants,
and Children (WIC)
– Summer Food Service Programs
School Lunch Program
•
•
•
•
•
Federal program provides nutritionally balanced, low-cost
or free lunches in public and private schools
Established in 1946; permanently authorized
Administered by the USDA and state education agencies
• Schools decide on food offered
Serves more than 30 million students daily
Requires lunches meet guidelines
– No more than 30% of calories from fat, 10% saturated
fat
– Must provide ¼ daily recommendation for protein,
calcium, iron, vitamins A & C, and calories
Competitive Foods in
School Vending Machines
•
•
Many jurisdictions restrict vending machine competitive
foods in schools
Examples
• Arkansas (HB 1583, Act 1220) bans elementary
school student access to vending machines
• Colorado (SB 103, Chapter No. 166) encourages
50% of all vending machine items to be healthful
• Kentucky (KY 158.854) requires the Board of
Education to promulgate an administrative regulation
restricting the sale of beverages to water, 100% fruit
juice, low-fat milk, and any beverage with <10 grams
of sugar/serving
School Wellness Programs under
Child Nutrition Act
•
•
•
Required all school districts to adopt wellness policy
by 2006
– P.L. 108-265
No language on accountability; states may establish
own mechanisms
• E.g. the Conn. Dept. of Education reviewed school
wellness policies with the Rudd Center for Food
Policy and Obesity
National Alliance for Nutrition and Activity provides
model school wellness policies
• http://www.schoolwellnesspolicies.org/WellnessPoli
cies.html
Breastfeeding
•
•
•
Many studies show breastfeeding reduces the risk for
overweight and obesity
Legality of breastfeeding in public
– No state law prohibits breastfeeding outside the home
and only two states (Illinois and Missouri) place any
limitation on public breastfeeding
Breastfeeding in the workplace
• 24 states and DC have laws to promote breastfeeding
for working mothers, with varying provisions
• The 2010 Patient Protection and Affordable Care Act
(P.L. 111-148), Sec. 4207, provides for “reasonable
break time” (and other provisions) for nursing
mothers.
Physical Education and Activity in
Schools
• As of 2010, 49 states require some level of
physical education in schools
• Quantity requirements vary significantly
• Range is 0-50 minutes/week in K-8
• Usually ½ to 1 credit for physical
education or activity in high school
• Quality requirements vary significantly
– From education alone to required
vigorous activity
Selected Innovative Laws
Snack Taxes:
‾
An excise tax collected from wholesalers or sales tax on targeted
snacks
‾
17 states levy some variation of the tax
Menu Labeling: 2010 Health Reform Act:
– Requires chains of 20+ restaurants and operators of 20+ vending
machines to post calorie and other information
– Secretary of HHS may require additional nutritional disclosure
– Preempts stronger state and local requirements
Trans-fat bans:
•
Bans prohibit restaurants and food preparation centers from using partially
hydrogenated vegetable oils, shortening, and margarine with 0.5 grams or
more trans-fat per serving
– 5 states and 5 municipalities had enacted trans-fat bans as of 2009
Zoning:
•
Use of zoning laws to promote easier access to farmers markets
•
Restrict fast food restaurants within a designated distance of schools
Obesity in the AI/AN population:
An Issue of Health Equity
• AI/AN women are 40% more likely than White
women to be obese
• Over half of AI/AN women are overweight
• AI/AN populations are 1.6 times as likely to be
obese than Non-Hispanic whites
• The problem starts early: At age 4, more than
31% of American Indians are considered obese
• Increased risk of type 2 diabetes, high blood
pressure, cardiovascular disease, asthma, sleep
apnea, low self-esteem, depression, and social
discrimination.
Tribal Public Health Law:
Related Examples
•
Navajo Nation’s Breastfeeding Code: 15 Navajo Code § 704
‾
•
Cherokee Nation’s Criminal Law Exception for Breastfeeding
‾
•
The Cherokee Code of the Eastern Band of the Cherokee Nation (Sec.
14-80.4) carves out an exception in its Indecent Exposure code for breast
feeding
‾
“….a woman may breastfeed in any public or private location where
she is otherwise authorized to be…”
Muscogee (Creek) Nation’s Tribal Food and Fitness Council
‾
•
States that “…all employers…shall provide to each working mother
opportunities to engage in breast-feeding…or the use of a breast pump at
the workplace.”
Resolution to establish a Food and Fitness Council which includes
administrators of the tribe’s diabetes, nutrition, Head Start and WIC
programs, IHS clinicians, a dietician, a tribal gov’t rep, and a farmer
Lummi Nation’s Stop the Pop Resolution: #2004-149
‾ Resolution banning the purchase of sugar-sweetened beverages
for tribally sponsored events
Concluding Thoughts
“In the realm of public health… it’s the law that really
does the work. That’s been demonstrated time and
time again in areas ranging from mandating
vaccinations; to requiring automobile seatbelts, to
improving workplace safety; to the inspections of meat
products; and fluoridation of water. Public health
succeeds by making healthy choices the norm.”
- New York City Mayor Michael Bloomberg in an
address at the Harvard School of Public
Health, 2007
For More Information
WEBSITE:
Visit http://www.cdc/gov/phlp
THE NEWS:
Subscribe to “The CDC Public Health Law News”
CONTACT US:
Send me an email:
mransom@cdc.gov