The old public health law?
Government authority to control infectious disease.
The new public health law?
Government authority to control obesity and chronic illnesses.
Lindsay Wiley is an Assistant Professor of Law at American University’s Washington College of Law.
She is the author of a number of articles on the subject, including Who’s Your Nanny?: Choice, Paternalism and Public Health in the Age of Personal Responsibility and Rethinking the New Public Health.
She is currently working on a revision, with Larry Gostin, of the book ‑‑ Public Health Law: Power, Duty and Restraint.
“One of terms you will hear is our obesogenic environment,” Wiley told Corporate Crime Reporter in an interview last week. “If you just go with the flow, and you are not trying very hard to do something different, you are going to get fat and you are going to be unhealthy and you are going to end up with diabetes. The default options, the basic ways our environment is set up, facilitates unhealthy choices rather than healthy choices.”
There is controversy over the new public health law.
Case in point: Mayor Michael Bloomberg and New York City.
“The Bloomberg soda portion rule is characteristic of new public health law,” Wiley said.
“It’s sometimes inaccurately called the Big Gulp Ban. It’s inaccurate because it doesn’t apply to big gulps and it doesn’t ban soda. It mandates that sugary drinks, which are defined very specifically, can’t be sold in containers larger than 16 ounces.”
“If you want to drink 32 ounces of soda, you certainly can, but you have to buy two cups. If you just order a drink with your meal, it’s going to be a 16 ounce cup if you are ordering a sugary drink. It’s meant to change the default options. It’s based on research suggesting that people tend to consume what is put in front of them, sometimes without really thinking about how much they are consuming.”
“The idea is that if you want to consume more you have to take an affirmative step to choose to consume more rather than just having a large portion ‑‑ and really a quite unreasonably large portion that we used to think of as shocking. But now we’ve come to see it as normal. That wouldn’t be what would automatically accompany your meal. It’s going to be a smaller size in a smaller cup unless you order two cups or three cups or how ever many you want.”
“That’s the New York City portion rule. It’s currently being challenged in the New York Courts. There was just oral argument on that last week.”
“That is in some ways characteristic of the new public health. The new public health is new both in the sense that it addresses chronic disease and not only infectious disease.”
“And also in the sense that it is very interested in what are called the social determinants of health, both for chronic disease and for infectious disease.”
“The idea is that some of the most potent causes of disease, injury and illness in our population are really fairly distant from individual choices that people make.”
“The new public health is interested in the way our environment, our social environment, our built environment, the way our neighborhoods are designed, our information environment, advertising and health warnings, the way those environments shape our choices ‑‑ the way in which things like lung cancer, skin cancer, diabetes, are not best understood as solely the product of individual choices.”
“They are also determined by the kind of culture that we live in, the kind of society we live in.”
Wiley says she was just visiting her high school in Myrtle Beach, South Carolina.
“I noticed that they had put a Taco Bell up right at the entrance to the school,” Wiley said. “It was pretty clear why there is a market for that.”
She says it’s very difficult to flatly prohibit fast food outlets.
“But quite a few local governments have made some effort to restrict the development of new fast food outlets,” Wiley said. “Quite a few cities and towns have moved through zoning laws to restrict the opening of new fast food establishments within a certain distance of a school, for example, where children might have the ability to go off campus to get their meal at Taco Bell rather than the school food, which is now subject to federal nutritional guidelines.”
“Others have flatly tried to reduce the number of new fast food establishments opening within the entire jurisdiction.”
“We are nearing a turning point with regard to obesity and the law. Surveys indicate that a large majority of Americans feel that obesity is an issue that governments have a role in addressing. The question is ‑‑ what should government do? And there it gets much more controversial.”
“Industries threatened with potential regulation ‑‑ certainly the sugary drink industry, most prominently sodas, but also energy and sports drinks that are really not any better for your health, the fast food industry ‑‑ those industries are organizing.”
“You see Pepsi avidly promoting personal responsibility as the root of obesity. A colleague of mine, Kelly Brownell at the Rudd Center at Yale, says personal responsibility is the most important term in this area. And it’s not an accident that people feel that obesity is primarily a problem of people’s individual choices. Industry has actively promoted that understanding.”
“In response to the Bloomberg soda portion rule, you have industry saying New Yorkers need a Mayor not a Nanny. They say this is about personal responsibility and personal choices.”
“But there is a lot of research showing that the choices we make are heavily determined by our environment, including the legal environment.”
[For the complete q/a format Interview with Lindsay Wiley, see 27 Corporate Crime Reporter 25(12), June 24, 2013, print edition only.]