Exploring Communal Health through Law

In her book, Populations, Public Health, and the Law, Wendy E. Parmet offers something few other legal or policy scholars have produced during the modern "renaissance" in the field of public health law. Beyond merely defining public health law, explaining its parameters, or outlining key topics, Parmet offers a compelling, cohesive account of the need for fundamental change in how lawmakers and policy-makers view the role of law in protecting population health. Through her informed historic perspective and astute, modern assessment, she introduces what she terms "population-based legal analysis," which is comprised of three core elements: (1) recognizing the importance of populations to (and within) the law; (2) promoting the public's health as a fundamental norm to guide the legal system; and (3) deciding difficult public health legal issues using empirical and analytical analyses (pp. 52-53). Parmet applies her approach—a sort of marriage of legal theory and public health methodology—to several critical topics like food safety, public health federalism, emergency preparedness, tort-based litigation, death and dying, and obesity. Along the way, she proffers a new vision for how courts and other legal decision-makers should move past antiquated notions of individual versus communal interests at the core of public health legal issues to consider population-based solutions.

As a theory of public health law, Parmet's lucid insights are fascinating. As a practical guide to public health law and policy-making, however, "things fall apart," as Chinua Achebe would say. Yet discounting the text for its practical limitations is akin to discrediting inventors for failing to lay out the practical uses of their products. Acclaim should fall on those whose ideas lead to true reforms. The remaining question is whether public health laws and policies will actually be transformed through Parmet's ideology.

Although Parmet's text should not be confused with (nor substituted for) more extensive domestic and global treatises on modern public health law, she manages to accomplish two primary goals for readers both new to and familiar with the field: she educates on the role and function of law in protecting the public's health while simultaneously advancing a new methodology on how laws should reflect population-based goals. Parmet unfolds the flaws, gaps, and weaknesses in existing judicial understanding and treatment of the law in varied public health arenas. She then fills the voids with meaningful explanations of how and why courts should decide differently. The result is, at times, illuminating. Each of the specific public health issues she selectively assesses through her population-based legal analysis is noteworthy. However, her discussion of the constitutional limits on commercial speech regulations and the impact on childhood obesity best shows the strengths and self-admitted weaknesses of her approach.

In chapter seven, "The First Amendment and the Obesity Epidemic," Parmet outlines briefly the considerable public health problem of childhood obesity, an American epidemic driven in part by commercial advertising of fattening products and fast food restaurants to youths. Part of the solution to alleviating childhood obesity may be restricting the types and number of these advertisements directed toward children and adolescents. But First Amendment protections of commercial speech adopted by the U.S. Supreme Court stand in the way of increased governmental regulations. Through its multipronged test of the constitutionality of commercial speech in 1980's Central Hudson Gas and Electric Corp. v. Public Service Commission, the Court requires government to demonstrate a substantial interest in its commercial speech restrictions, which must be advanced through means tied to government's laudable end. Government restrictions of commercial speech that burden legitimate expressions of speech outside of those targeted to protect the public's health are typically viewed by courts as unconstitutional. Parmet points out how the Supreme Court and lower courts have rigorously applied the Central Hudson test in subsequent decades to limit how government can control commercial speech to protect communal health. She concludes that courts have incorrectly skewed their analysis toward assessing how commercial speech impacts individual decisions about what products...