Patching up America’s broken heart: Could regulatory theory offer a solution to gun violence in the US?

Gun violence: America's new normal.

On Wednesday morning, the US suffered another gun-related tragedy. This time, reporter Alison Parker and camera man Adam Ward from WDBJ-TV, Virginia, were shot dead on air by a disgruntled former colleague.

Alison Parker’s father has said that he will not rest until the US introduces stronger gun control laws, and he challenged the media to keep the story as front page news until the government takes action.

The US federal government has been notoriously reluctant to implement stronger gun control laws, despite mass shootings in Sandy Hook, Virginia Tech, Charleston, and Aurora, Colorado, lobbying by high-profile politicians, including Gabrielle Giffords, herself a victim of gun violence, and efforts to tighten restrictions on gun ownership, led by President Obama.

The key barrier to tougher controls is the Constitutional protection on the right to keep and bear arms, which is inextricably linked to a heavily pro-gun culture in some parts of  the country, and a powerful gun lobby that is relentless in its quest to forestall any kind of law that would lessen the perceived rights of gun owners and, presumably, reduce gun sales.

Like many other people living outside the US, I see America’s libertarian approach to gun ownership as irrational, irresponsible, and as posing a serious (and unnecessary) threat to public health and safety. As much as anyone, I would like to see the US introduce comprehensive legislation setting uniform background check requirements, banning the sale of military-assault style weapons to the public, and closing off loopholes in gun trafficking laws – as a start. But I also understand the significant political and cultural barriers that the US faces in introducing strong legislative measures.

In this context, could a regulatory approach offer some inroads into solving the problem of gun violence?

Regulatory theory describes the range of regulatory tools and strategies that are available to governments and private regulators to shape behavior (both that of individuals and of industry or social entities). While regulation may involve “command-and-control” style laws that ban certain forms of conduct outright, more often the aim is to reduce or eliminate the hazards of productive social and economic activities, including risks posed to the environment, to workplace health and safety, and to public health through products such as contaminated food.

Regulatory strategies often involve government-designed laws and regulation, but regulatory theory also stresses the use of various forms of “soft law,” such as co-regulation, self-regulation and even “networked governance,” where large companies use contractual mechanisms to force smaller companies to adopt safe working methods, for example. In this model, governments’ role is often one of “meta-regulation” – encouraging, monitoring and overseeing the adoption of self-regulation and other voluntary measures by industry and civil society.

So what might a regulatory approach to gun control look like? Well, for a start, it could involve pressuring the private sector to adopt voluntary gun control strategies. For example, Walmart has announced that it will stop stocking assault rifles in response to reduced consumer demand. What if there was an industry-wide code on the sale of certain weapons to the public, accompanied by monitoring and oversight by an independent organization?

There are a range of other opportunities here – what about economic mechanisms? Can we harness demand for safer communities in some way, for example, by asking the public to boycott pro-gun businesses, or “naming and shaming” such businesses on The Internet? Are there ways in which safer gun ownership behaviours could be encouraged through education and information-based strategies, creating a shift towards a culture that doesn’t accept mass shootings as the new norm?

Regulatory scholars often suffer from a bad reputation, on the basis that they tend to support “soft” or “hands-off” approaches to social problems. A regulatory approach to gun violence wouldn’t be a final solution. It’s certainly not enough by itself, and it’s no substitute for effective government action. But it might be one step on a long and winding road to a safer American society. I’m sure that for the victims of gun violence and their families – like Andy Parker – anything is better than nothing.

 

 

 

 

 

Local government action: a new pathway for obesity prevention in Australia

Mayor Mick Cornett launches
Mayor Mick Cornett launches “This City is Going on a Diet” in front of Oklahoma City zoo

Writing in the Sydney Morning Herald, Stephen Simpson (Director of the Charles Perkins Centre at the University of Sydney) and Rosemary Calder (health policy Director at the Mitchell Institute for Health and Education Policy at Victoria University), call for community-based action to prevent chronic disease. They point to communities like Broken Hill, which has high rates of obesity, but also a strong self-identity and good social cohesion, offering exciting opportunities for a community-led approach to prevention.

Steven Simpson and Rosemary Calder contrast community-led initiatives to government action, but maybe we could have both. Legislation and regulation could be much better used to support existing local initiatives, encourage community action, and improve local-level obesogenic environments. This is a relatively unexplored area in Australia, but there is growing interest in local level action in obesity prevention in some regions of the country. The City of Sydney encourages active transport, which it links to improving health in the city. The City of Marion, in Adelaide, implemented an obesity prevention program that included community meals and physical activity sessions, targeted to at-risk populations. And some states governments have moved to strengthen the role of local governments in health promotion through legislative measures. For example, South Australia’s Public Health Act 2011 makes local governments responsible (for the first time) for taking action to preserve, protect and promote public health within their area.

The US is much further ahead than Australia in local level prevention efforts, with states and municipal governments around the country trialling innovative obesity prevention policies. A US national prevention policy framework encourages local obesity prevention policies, as do federal grants for community-based initiatives. Local efforts in obesity prevention in the US could provide some lessons for Australian local governments that want to take action in obesity prevention, but they also illustrate some of the challenges that our local governments may face in taking legislative action.

High profile initiatives in the US have attracted significant media attention, as when the former Mayor of New York City, Michael Bloomberg, attempted to ban large sized sodas sold by food service establishments in the city. However these kinds of controversial initiatives are just the tip of iceberg. A range of state and local governments are experimenting with measures to improve the obesogenic environment and encourage physical activity, including Californian legislation that reduces taxes for landowners who make their land available for urban agriculture, and laws in Maine that require grocery stores to stock a minimum number of ‘staple foods.’ Some localities have introduced broad-ranging programs that combine infrastructure development, improved urban design, and health education. In this TED talk, Mayor Mike Cornett describes his obesity prevention strategy for Oklahoma City, and how it resulted in the loss of over one million pounds by city residents. Mayor Cornett also attributes his initiatives with encouraging economic revitalisation in the city.

There are many benefits to local level action. In both Australia and America, the division of powers between state, local, and federal governments enables local governments to act as ‘laboratories of innovation,’ i.e., to trial innovative policies without facing the political barriers that would impede federal-level initiatives (e.g., aggressive industry lobbying). Local governments use their legislative and administrative powers to develop policies that are tailored to the social, economic, and demographic features of their region, and which can diffuse ‘horizontally’ to other localities and ‘vertically’ – upwards to states and national government levels. Local leaders are closer to their constituents, allowing them to be more responsive to community needs, and facilitating ‘bottom-up’ initiatives that are built on a base of community consultation and ownership.

However, local policy making in the US illustrates some of the challenges that local governments in Australia may face in preventing obesity. As in Australia, local governments in the US are creatures of state government. Some US municipalities have expansive rule-making authority, but other states delegate only narrow powers, constraining local action and creating variation in the extent to which local governments can pursue obesity-prevention measures. Popular and media discourse frame obesity mainly as the result of individual’s poor consumption choices, meaning that government intervention to encourage healthy eating and drinking are often seen as paternalistic. Critics of the soda ban referred to Mayor Bloomberg as Nanny Bloomberg, and the soda portion rule was eventually declared invalid following a legal challenge.

Another concern is that some obesity-prevention strategies disproportionately impact vulnerable communities. Like tobacco taxes, soft drink taxes can be seen as regressive because they fall more heavily on lower-income groups who drink more soft drink and have fewer resources to absorb tax increases. Policies that actively target at-risk communities may also be discriminatory when they are based on ethnicity or race, as opposed to targeting neighbourhoods or communities with poor health indicators. Effective policies can also fail to reduce – or even exacerbate – health inequalities. Redesign of the urban landscape can increase gentrification, pushing low-income residents out of the inner city into areas with fewer amenities.

A final issue is that community-level prevention policies are a relatively new area of intervention and the results of evaluating studies are still emerging. Supporters of local-level innovation argue that policies such as the soda portion rule are supported by evidence linking soft drink consumption to diabetes and obesity, for example. However, many policies lack causal evidence to support their effectiveness in producing tangible obesity prevention outcomes. Yet some local initiatives have produced demonstrable changes in health-related behaviour and weight status, with particularly good evidence for school-based initiatives.

Despite these challenges, local government action could form the centrepiece of a revitalised approach to obesity and chronic disease prevention in Australia. Local government action is particularly important in Australia, where the current federal government appears entirely disinterested in chronic disease prevention (having recently cut funding for prevention efforts, including for local policies and programs), and some state governments are withdrawing from health promotion, and actively devolving preventive efforts to local governments.

Further, local government law making could be designed to address some the barriers outlined above. Health law academics in the US call for a participatory, inclusive approach to the design of public health law and regulation, where local communities are involved in identifying areas for action, as well as in processes of policy design and implementation. Their argument is that inclusive law-making processes are more likely to produce initiatives that reflect community interests, and have a strong base of community support, potentially ameliorating the concerns about nanny statism that attach to initiatives championed by public health’s ‘elites,’ such as Michael Bloomberg. Inclusive law making that is tailored to local concerns could also help to address health inequalities, while preventing initiatives from being perceived as discriminatory.

Local governments may provide a route for stronger action on prevention in Australia, particularly in light of the apathy of the current Liberal federal government. But if we are to frame obesity as a collective problem requiring community-based solutions, we need to reconceptualise public health law as a democratic, participatory and collaborative project that ensures recognition and supports self-determination for marginalized communities. Public health doesn’t need nannies; it needs local champions, facilitators, mediators, guides and leaders.

Why is the U.S. Chamber of Commerce playing patsy to the tobacco industry, and what does this mean for Australia?

NYS postcard

“From Ukraine to Uruguay, Moldova to the Philippines” – according to the New York Times – the U.S. Chamber of Commerce and its affiliates “have become the hammer for the tobacco industry”.  This is revealed by “interviews with government ministers, lobbyists, lawmakers and public health groups in Asia, Europe, Latin America and the United States.”

By Presidential order, U.S. federal agencies are not supposed to promote the export or sale of tobacco products in their global trade promotion activities.  However, the U.S. Chamber of Commerce is a business federation of American companies and business associations, so it can do what it likes.  It spends more on lobbying than any other U.S. industry group.  There’s an Australian branch with offices in all state capitals.  They may be wining and dining our politicians even as we speak.

The pro-tobacco lobbying activities of the U.S. Chamber are summarised in a report recently published by a coalition of U.S. public health and consumer rights groups, entitled U.S. Chamber of Commerce – Blowing Smoke for Big Tobacco.

As the BMJ points out, in 2009, the U.S. Chamber made a submission to Australia’s Preventative Health Taskforce, which had been tasked by former Health Minister Nicola Roxon to develop a national strategy to reduce the burden of disease from alcohol, tobacco, and obesity.  That submission protested against the proposal for mandatory plain packaging of tobacco products.

In 2011, the Commonwealth Parliament passed the Tobacco Plain Packaging Act.  Evidence shows that it was immediately and highly successful in increasing the rate of quit attempts.  For more evidence, see this open access special supplement in Tobacco Control (April 2015) , or read on here.

In 2012, Ukraine lodged a complaint against Australia, arguing that the Act breached Australia’s obligations under a number of World Trade Organisation (WTO) Agreements.

According to Ukraine’s Prime Minister, Arseniy Yatsenyuk, Ukraine’s complaint against Australia was initiated at the request of the U.S. Chamber of Commerce.  The costs of the action were reported to be at least partly funded by British American Tobacco.

In May 2015, the WTO panel hearing the complaint was suspended at Ukraine’s request.  The reasons for this change of heart may include the closer ties between Australia and the Ukraine following the shooting down of MH17 (Australia has opened an embassy in Kiev and provided $100 million in assistance).   Ukraine’s complaint is not only inconsistent with its status as a party to the Framework Convention on Tobacco Control, but with its aspirations for a closer relationship with the EU and perhaps EU membership.  In 2014, the European Parliament and EU Council adopted the revised EU Tobacco Products Directive.

Multinational corporations producing harmful products – such as tobacco, or alcohol – can’t bring proceedings by themselves alleging that the laws and policies of foreign countries breach the WTO rules.  Instead, they rely on friendly governments to pursue complaints for them.  On the other hand, standing may be granted to foreign investors through investor-state dispute resolution clauses in trade and investment agreements.  Within the Asia-Pacific, the U.S. Chamber of Commerce has been lobbying heavily for the inclusion of investor-state dispute resolution clauses in the Trans Pacific Partnership Agreement – with no carve-outs or exclusions for tobacco.

The protection of wealth in the globalized trading system relies increasingly on large and powerful corporations using trade and investment agreements as a political tool, lobbying governments to weaken or abandon domestic health policies that could undermine revenues, and when they fail, trying to claw back compensation under variously worded clauses.  Trade and investment agreements might be complex, but countries that give foreign corporations – especially tobacco firms – the capacity to meddle in domestic health policies risk losing a significant measure of health sovereignty.

Larger countries may be willing to defend their sovereign laws, although doing so may come with a hefty price tag.  Smaller countries may lack not only the money, but the specialist knowledge, and the money to hire the specialist knowledge.  Australia’s bill for defending the complaint brought by Philip Morris Asia under Australia’s bilateral investment treaty with Hong Kong – claiming that the Tobacco Plain Packaging Act represents an expropriation of PM’s investments in Australia – has been estimated so far at $50 million. No wonder the U.S. Chamber doesn’t want any tobacco carve-outs. It knows that the value of the TPPA lies only partly in the legal rights conveyed through the terms of the agreement itself, and perhaps mostly in the political value of the agreement as a tool for tobacco companies to bully governments in an effort to weaken tobacco controls.

But back to the Ukraine. Thanks, apparently, to the U.S. Chamber of Commerce, a country with negligible trade links with Australia, and no tobacco trade, was able to begin the process of hauling a democratically elected government over the coals for passing legislation to reduce death and disease from tobacco use.

This raises some important questions.  Does the U.S. itself think its Chamber of Commerce has acted appropriately, and if not, does it have the capacity to haul it in?  If the Australian Business Council had lobbied, say, Indonesia, to bring a WTO claim against the U.S. attacking certain provisions of the U.S. Family Smoking Prevention and Tobacco Control Act, would that have been considered appropriate by our American friends?  Just how close has the U.S. Chamber gotten to Australian Ministers and negotiators in the current TPPA negotiations?  This is an important question that should be answered, especially since public health experts have been completely frozen out.  If the U.S. Chamber of Commerce is a tobacco lobby, shouldn’t the Australian government declare all meetings with it in which the status of tobacco in the TPPA is discussed, in order to meet its obligations under the Guidelines for Article 5.3 of the FCTC?

Free trade is central to Australia’s economic prosperity, now and in the future.  But saying that doesn’t mean we need to abandon all nuance, and give  tobacco, alcohol, food, pharmaceutical or indeed any other kind of corporations the right to claim compensation if our non-discriminatory health policies undermine their revenues.  For diseases caused by tobacco use, harmful use of alcohol, and poor diet, better health necessarily means avoiding or moderating consumption, and that necessarily means fewer sales.

Currently, Australians can have no confidence that the government is not trading away its health sovereignty under the TPPA.  The government doesn’t trust you to see the draft text. The only way you will see it is if it is leaked.  The TPPA perfectly illustrates the structural weakness in global health governance generally: negotiations that could have a massive impact on the health of future generations are being carried out in secret, in trade and economic forums, and health has no seat at the table.

For cynically disregarding the health sovereignty of nations, for being a shameless patsy to the U.S. tobacco industry in violation of U.S. federal policy, the U.S. Chamber of Commerce is hereby re-named the U.S. Chamber of Tobacco.  Off to the dog box, now, Chamber.  No supper for you…

Those pesky Dutch are at it again

Amsterdam8

Those pesky Dutch are at it again.  Rather than slashing investments in renewable energy, or preparing for the imminent threat of global cooling, a court in the low country has ruled that the Dutch government has a legal duty to contribute to global efforts to mitigate climate disaster caused by excess greenhouse gas emissions.

The proceedings were initiated by a civil society organisation, the Urgenda Foundation. The judgment in English can be found here.

The Hague District Court ruled that although the State has wide discretion how to frame national climate policy in the Netherlands, it did not follow that the State’s discretionary power was unlimited.  Due to the global nature of the hazard, and the need for shared risk management approach, the objectives and principles in the UN Framework Convention on Climate should be considered in “determining the scope for policymaking and duty of care” (para 4.55).  The principles drawn from the Framework Convention included the protection of the climate system, “for the benefit of current and future generations, based on fairness”, the precautionary principle, and the sustainability principle.

After considering the relevant principles, the court concluded: Since it is an established fact that the current global emissions and reduction targets of the signatories to the UN Climate Change Convention are insufficient to realise the 2° target and therefore the chances of dangerous climate change should be considered as very high – and this with serious consequences for man and the environment, both in the Netherlands and abroad – the State is obliged to take measures in its own territory to prevent dangerous climate change (mitigation measures). Since it is also an established fact that without far-reaching reduction measures, the global greenhouse gas emissions will have reached a level in several years, around 2030, that realising the 2° target will have become impossible, these mitigation measures should be taken expeditiously (para 4.65).

The court concluded that the State had acted negligently by starting from a reduction target for 2020 of less than 25% of greenhouse gas emissions compared to the year 1990; accordingly, it ordered the State to take measures to limit Dutch greenhouse gas emissions in order to reach the 25% reduction target (paras. 4.93, 5.1). Although framed in terms of a duty of care, it is far from clear that Australia courts would regard the Commonwealth as owing a duty of care, nor that civil society groups could expect to have standing to press such a claim.