In 2016, life expectancy at birth in the United States fell for the second year in a row. Since his inauguration in 2017, President Trump and his administration have taken a number of actions that arguably weaken America’s public health infrastructure.
At the same time, the Unites States remains one of the world’s great innovators. With 52 States and more than 89,000 local and city governments, the United States frequently functions as a social laboratory for social policies, and public health laws and practices. While constrained in some areas by its constitutional design, the United States remains a leader: its influence and innovations in public health law cannot be ignored.
What can Australia learn from recent American experience with public health law and regulation? What are the good ideas? What should be avoided? How can Australian jurisdictions adapt the best American innovations and create an enabling legal and political environment for public health and wellbeing?
This seminar features presentations reviewing public health law and leadership in the United States, with particular reference to: communicable diseases and pandemic preparedness, non-communicable diseases, health care, injuries and global health leadership.
This event features a keynote presentation by Professor Lawrence Gostin, who is the Linda and Timothy O’Neill Professor of Global Health Law, Georgetown University Law School, Washington DC, and Faculty Director of the O’Neill Institute for National and Global Health Law. Prof. Gostin is also the Director of the WHO Collaborating Center on National and Global Health Law.
For further information on this event, further speaker details, and to register for this event, click here.
After killing 17 people with an AR-15 style semi-automatic weapon, and injuring 17 more, 19 year-old former student Nikolas Cruz left the school premises, blending in with the crowd and remaining free for an hour before arrested.
They’re trying to start a movement. You can join them.
“To the leaders, skeptics and cynics who told us to sit down and stay silent, wait your turn! Welcome to the revolution!” said student Cameron Kasky.
Barack Obama tweeted: “Michelle and I are so inspired by all the young people who made today’s marches happen. Keep at it. You’re leading us forward. Nothing can stand in the way of millions of voices calling for change.”
In the thick of it, as usual, my friend Professor Lawrence Gostin from Georgetown University Law School, who leads the O’Neill Institute for National and Global Health Law. You can read about the march on his twitter account here.
He writes: “From a long life’s experience on health and human rights I have found that no meaningful change happens without bottom up social mobilization.”
He’s right. This is true of gun control, tobacco control, and much else in public health.
Is there constitutional space for rational, evidence-based gun control laws in the United States?
It’s sometimes assumed that the US Second Amendment, which states that “the right of the people to keep and bear Arms, shall not be infringed”, leaves little room for rational, evidence-based gun control policies and laws.
In fact, rational firearms laws are compatible with the Constitution and with recent caselaw, suggesting that the real problem is a political one. Rational, evidence-based measures to reduce firearms deaths in the United States could include:
mandating a higher minimum purchasing age for firearms
prohibiting dangerous individuals from purchasing or owning firearms
requiring safe storage
banning weapons with especially hazardous properties such as military-style rapid-fire firearms and high capacity magazines, and
banning open carry of firearms (an emerging issue for college campuses, where academics receive advice about what to do in “active shooter” situations).
Young people exercising another of their constitutional rights, March for our lives, Washington DC, 24 March 2018. (However, Rick Santorum suggests they would be better served taking CPR classes)
What makes bottom-up change happen?
This is a neglected but vitally important questions for public health lawyers.
Will the anger and conviction that fuels the “March for our lives” movement endure? Will it prove capable of raising the resources that will be necessary to make a compelling case for change to the American people?
Public health advocates often focus on content: the technical content of the policies they advocate, the evidence, and the rational case for change. And then nothing happens.
More than ever, advocates need to better understand the factors that catalyse change, the factors that make social movements successful, and enduring.
For social constructionists like Shiffman, global health problems like HIV, polio, or non-communicable diseases do not have any inherent priority or significance. The attention an issue receives, while not unrelated to epidemiological facts, is “always mediated by social interpretations”.
From a social constructionist perspective, the “core activity” of global health advocates is ideational: health advocates must advance truth claims about the problem and its solutions that resonate with the values and shared interpretations of political leaders and those who control resources.
Yet increasingly, reality itself is no longer a shared experience. Gun control advocates and gun enthusiasts might as well live in different universes. Their sources of information are completely unrelated; the things they find persuasive utterly different.
Speaking in Sydney on a recent visit, Barack Obama said that “social and political structures had not yet worked out how to deal with rapidly changing communications technology, a world in which people no longer watched the same TV channels or read the same newspapers. The rapid pace of change was having a flow-on effect across the globe, and was likely to get faster still. Discourse was becoming increasingly fragmented, with people becoming hermetically sealed off from each other inside very different information universes.”
The triple cocktail of extreme individualism, neoliberalism, and populism have created a social landscape in which there is less and less shared ground when it comes to values and visions for a better life.
Speaking as a non-American, it seems to me that the scale of the challenge, for gun control advocates, is reflected in the reflexive tendency of the pro-gun lobby to castigate the very mention of rational gun laws, following [America’s latest semi-automatic gunfire massacre: insert details here] as exploitative – as politicizing a tragedy.
A couple of examples. Jesse Hughes, whose band, Eagles of Death Metal, was performing at the Bataclan theatre in Paris on 13 November 2015 when terrorists stormed in and took hostages, eventually killing 89, went on an on-line rant, calling the Stoneman High School students “disgusting vile abusers of the dead”.
Another right-wing media type tweeted the following about David Hogg, one of the Florida students advocating for stricter gun laws: “I’ve been hanging out getting ready to ram a hot poker up David Hogg’s ass tomorrow.”
All because some students who survived a mass murder at their school dared express their opinion that government ought to introduce gun control laws to help make such rampages less frequent.
Like the tragedy of the massacre at Sandy Hook Elementary School, the gun massacre at Stoneman Douglas High School reflects the failure of policy, the failure of politics and politicians, and ultimately, the potential failure of a society.
What becomes of a country that cannot – or will not – protect its young?
Authoritarian regimes, that fail the protect basic freedoms, or do so only partially, start to look a whole lot better.
That’s bad news for freedom, and bad news for America.
Professor Larry Gostin will be speaking at Sydney Law School on 19 July, as part of an evening event titled: ‘Public health and health leadership in the USA: what can Australia learn’. Sydneyhealthlaw.com will advertise this event in due course. Professor Gostin will be teaching the unit of study, Global Health Law on 17-20 July; for more information on this unit, click here. For more information on Sydney Law School’s Master of Health Law, click here and here.
As recognised by the WHO Framework Convention on Tobacco Control, which Australia has signed, tax and price measures are a powerful, cost-effective tool for reducing tobacco consumption, particularly among young people.
The Directive includes a requirement for mandatory health warnings, comprising text and colour photographs, covering 65% of the back and front of tobacco packages (Art. 10.1).
Article 24.2 of the Directive preserves the right of member states to introduce further requirements for the standardisation of tobacco packaging “where it is justified on grounds of public health, taking into account the high level of protection of human health achieved through this Directive”.
These further measures must be proportionate, and must not be a disguised form of trade restriction.
The California Bill contains an exception for Military personnel in active duty who are aged over 18 but under 21 years.
This is not the first time U.S. legislatures have bent the rules to facilitate smoking by members of the US armed services.
California Senate Bill No. 5, also signed into law, expands the definition of the term “tobacco products” in the Business and Professions Code to include e-cigarettes, and requires retailers to pay a licence fee to sell e-cigarettes.
It requires all cartridges for e-cigarettes to be in child-resistant packaging;
Higher minimum purchasing age laws make sense, since few smokers begin smoking or become addicted to nicotine beyond the vulnerable mid to late teens and early twenties.
A 2013 study of smoking initiation rates in New Zealand confirmed that while initiation after age 24 is rare, the highest initiation rates occur among those aged 15-21 years. Over a four-year period, the rate of smoking initiation for those aged 15-17, 18-19, and 20-24 was 14.2%, 7.0%, and 3.1%, respectively.
An expert Committee of the Institute of Medicine concluded that raising the minimum purchasing age would substantially reduce smoking prevalence and smoking-related mortality, given the numerous life transitions young adults experience between 18 and 20 years.
It could also help to improve foetal, maternal and infant health, by reducing the numbers of young parents smoking.
The Tasmanian Government has released a 5-year strategic plan for health that includes raising the minimum legal smoking age to 21 or 25 as an option for consideration.
Raising the minimum purchase age for tobacco would not be costly to implement, although resources should be budgeted for its enforcement, and this includes close monitoring and evaluation of its net effects.
Think about it. Will there be any parents, including smoking parents, who wish their child had been able to buy smokes on their 18th birthday?
Conversely, how many 30 year olds – facing the economic challenges of life, including breaking into the property market – will be thankful they missed the bullet of nicotine addiction and aren’t now making generous weekly donations to Australia’s tobacco giants?
Are you interested in studying health law? Sydney Law School offers a Graduate Diploma and a Masters degree in health law that is open to qualified applicants. For further details, click here, and here.
Christopher Snowdon is a Research Fellow for the UK-based Institute of Economic Affairs, a think tank that receives tobacco funding. He is an opponent of plain tobacco packaging, keeper of the pure flame of libertarianism etc.
My sin – contained in a paper forming part of a symposium on public health regulation and the “nanny state”, was to reflect on a self-confessed “crime spree” Hitchens took in New York City in late 2003.
During the course of an autumn day, Hitchens broke as many of the city’s “petty ordinances” as he could, particularly its smoke-free laws.
At the time, Michael Bloomberg was in the second year of his first, 4-year term as NYC Mayor. He went on to serve 3 full terms, introducing tobacco control laws that saw the adult smoking rate fall by 28% between 2002 and 2012, and the youth smoking rate fall by 52% between 2001-2011 .
Which is a terrible result, if you’re a tobacco company, but a magnificent result for New Yorkers – with changed life trajectories and longer, healthier lives for hundreds of thousands of people.
You can read about Michael Bloomberg’s public health legacy here.
Apparently embittered at the constraints on his smoking, Hitch lashed out, reflecting on the “shriveled core of the tiny Bloombergian mind”, and ending with:
“Who knows what goes on in the tiny, constipated chambers of his mind? All we know for certain is that one of the world’s most broad-minded and open cities is now in the hands of a picknose control freak.”
The editor of Vanity Fair, Graydon Carter, who at the time was being serially fined by the NYC Health Department for flouting its smoke-free laws and smoking in his office, published the whole account.
Then, in June 2010, at the height of his powers, Hitchens announced he had cancer of the oesophagus. As one journalist wrote, “The celebrated drinker and smoker who once claimed that “booze and fags are happiness” had succumbed to a cancer most often associated with drinking and smoking.”
Like his hero Hitchens, Snowdon believes that smoke-free laws are anti-libertarian. The mind boggles at this point, given that globally, one in ten people who die from tobacco are non-smokers who are unintentionally harmed (poisoned) by smokers….
However, to my mind the more interesting theme that excites Snowdon is the question of whether Hitchens’ diagnosis challenged his libertarian convictions. Snowdon assumes that the rationale for discussing this issue was to concoct some sort of contrived, deathbed confession:
“Magnusson clearly thinks that Hitchens got his comeuppance when he died of cancer and wants to believe that he renounced his principles on his death bed.”
The record shows that Christopher Hitchens castigated those who promoted effective tobacco control, yet spoke frankly and publicly about his own cancer, acknowledging that it was probably caused by his smoking and drinking.
Hitchens made his choices, and talked about them freely. He made his private life a public matter.
So we have permission, I think, to talk about Hitchens – who I suspect would have approved of being the topic of conversation.
“I’ve come by this particular tumor honestly”, he told Anderson Cooper on CNN in August 2010. “If you smoke, which I did for many years very heavily with occasional interruption, and if you use alcohol, you make yourself a candidate for it in your sixties.” “I might as well say to anyone who might be watching – if you can hold it down on the smokes and the cocktails you may be well advised to do so”.
Cooper responded “That’s probably the subtlest anti-smoking message I’ve ever heard”.
“The other ones tend to be more strident”, Hitchens replied, “and for that reason, easy to ignore”.
“Even if this weren’t incredibly tasteless” Snowdon writes, “Magnusson could hardly have found a less fitting person to use as an example.”
Snowdon seems to think that the point of discussing Hitchens is to trip him up on his words, seek to make an object lesson out of him, or worse, to gloat.
But there are other reasons why Hitchens’ account of his illness is worth reflecting on.
Certainly, it was a compelling story. Statistics are easy to brush off: just ask a smoker. But stories are a little harder.
Here comes this libertarian prophet – as sure as any libertarian ever was about the infantilising effect of public health laws – suddenly forced to come face to face with his own premature (and probably preventable) death. Did he have conflicting feelings, second thoughts? It’s not an unfair question.
“In whatever kind of a ‘race’ life may be”, Hitchens wrote in 2010, “I have very abruptly become a finalist….In one way, I suppose, I have been ‘in denial’ for some time, knowingly burning the candle at both ends … .[F]or precisely that reason, I can’t see myself smiting my brow with shock or hear myself whining about how it’s all so unfair … . Instead, I am badly oppressed by a gnawing sense of waste. I had real plans for my next decade and felt I’d worked hard enough to earn it. Will I really not live to see my children married? To watch the World Trade Center rise again?”
Through his story, we catch a glimpse of the public interest that public health laws and policies are intended to protect.
The public interest in tobacco and alcohol control laws does not exist for the sake of some abstracted, disembodied “public”, but ultimately for the sake of all those individuals who might otherwise die prematurely, or just as frequently, as Simon Chapman writes, live long in distress and isolation due to the disintegrating impacts of their illness.
Bloomberg’s tobacco control laws were intended to help prevent the kind of death Hitchens died. To say that is not to gloat.
Consequences tend to be trivialised or absent when libertarians set out their plans for how the world ought to be.
The narrative we tend to get is the one written by the be-suited Hitchens in 2003, flying through Central Park with his feet off the bicycle pedals, witty, cancer-free, not the man 7 years later, who writes “The chest hair that was once the toast of two continents hasn’t yet wilted, but so much of it was shaved off for various hospital incisions that it’s a rather patchy affair. I feel upsettingly de-natured. If Penélope Cruz were one of my nurses, I wouldn’t even notice”.
How should public health advocates talk about consequences?
In the United States, gun enthusiasts have become so highly proficient at ignoring consequences that anyone who dares link the most recent gun-related massacre [insert dates & details] with that shocking, leftist, evil thing called “gun control” – is howled down for seeking to “politicise a personal tragedy“.
Plenty of compelling stories, it seems, but never a teachable moment.
But for the rest of us, prevention matters because people matter. Their needless suffering or death is relevant to how we evaluate the wisdom of government actions, laws and policies.
The nanny state conspiracy theorists overstate their case. Hitchens’ freedom to make choices about smoking, drinking, diet and lifestyle were his for the taking. No one stood in his way.
Hitchens had no Damascus conversion over tobacco, or anything else for that matter, but his public expressions of regret were no less powerful for their subtlety.
“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.”
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.
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.
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.
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…