The Evolution of Policy as Politics Change

The Evolution of Policy as Politics Change

The Seat Belt Saga

First, there is popular concern about accidents Then interest groups Individual stories - MADD is an example Nader and Public Interest Unsafe at any Speed - 1965 Insurance industry

The Seat Belt Saga II

Then Congress passes the Traffic and Motor Vehicle Safety Act

1967 - regulation requiring seatbelts 1972 - realized that people where not wearing the

seatbelts Regulation requiring automatic seatbelts or

airbags by 1975

The Seat Belt Saga III

Required cars between 1973 and 1975 to have automatic seatbelts or ignition interlocks

Chrysler v. DOT affirmed the regs Industry choose interlocks - why? 1974 - Congress passed a law banning regs

requiring interlocks and said that all future regs on passive restraints had to be submitted to Congress for legislative veto

The Seat Belt Saga IV

DOT under Ford withdrew the regs DOT under Carter (a few months later) passed

new passive restraint regs for 1982 and Congress did not veto them

1979 - Regs were affirmed in Pacific Legal Foundation v. DOT

The Seat Belt Saga V

1981 - DOT under Reagan withdrew the regs because the car companies were going to use automatic seatbelts that could be disconnected.

1983 - Motor Vehicles Manufacturers Assoc. V State Farm hit the United States Supreme Court

The Seat Belt Saga VI

1984 - DOT (Libby Dole) promulgated a reg requiring automatic seatbelts or airbags in all cars after 1989, unless 2/3 of the population were covered by state seatbelt

laws, and the laws met certain criteria

What did some states do? $5 penalty No stop No meaningful seatbelt defense

Most State laws did not meet the criteria

The Seat Belt Saga VII

1997 - most newer cars had airbags 1998 - airbags kill grannies and little kids!

Nothing new - known at the time Save many more

1999 - You can get your airbag disconnected Products liability issues?

Tobacco in the Colonies

What was the role of tobacco in the colonial period?

How was smoking viewed by most people in the 1950s?

What happened in 1964? Why is it so hard to quit smoking?

Federal Cigarette Labeling and Advertising Act - 1965/1969

Required hazard labeling on cigarettes Banned cigarette advertising in electronic medial

regulated by the FCC Why not ban it everywhere?

Prevented state additional requirements Which requirements were they worried about? What happened in torts in 1965?

What about non-tort concerns?

Public Health Impact of Tobacco

#1 preventable cause of illness #1 problem is heart disease

6 out of 7 smokers do not live to get lung cancer

Emphysema is the big lung issue - nasty way to live, then you die

Slow progress in limiting smoking May have plateaued after the tobacco settlement

In Defense of Tobacco

Limits retirement Saves Medicare and Social Security Great for private pension plans as well

Tobacco will reduce life-time health care costs if you smoke enough Ideally you will also eat a lot of burgers

Improves job opportunities for young, cheaper workers

Politics of FDA

Chairman Kessler was appointed by Bush I Liked publicity Wanted to keep his job when Clinton can into

office Banned silicone breast implants - just to be safe

Made 4.5 billion for trial lawyers and got to keep his job

FDA v. Brown & Williamson Tobacco Corp.

The FDA decided to regulation tobacco What was the politics? What had it said about tobacco regulation over

the past 50 years?

FDA Authority

Anything sold in interstate commerce with the intent to affect the structure or function of the body is a drug

Drugs must be proven safe and effective

FDA Regulation of Tobacco

Does it fit within the definition of a drug? What would be the effect of applying the safe and

effective test to tobacco? Does this create a regulatory paradox?

Statutory Provisions

The Act prohibits "[t]he introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adultered or misbranded." 21 U. S. C. §331(a)

§352(j) deems a drug or device misbranded "[i]f it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof."

Tobacco Labeling

Second, a drug or device is misbranded under the Act "[u]nless its labeling bears ... adequate directions for use ... in such manner and form, as are necessary for the protection of users," except where such directions are "not necessary for the protection of the public health." §352(f)(1).

Is it possible to label tobacco so it can be used safely?

Chevron - Step One

Does tobacco fall under the statute? Is it specifically named? Is it specifically prohibited? Why is there a question of ambiguity in what the

statute means? Doesn't tobacco affect the body?

Chevron – Step Two

What was congressional intent? What is the evidence that congress did not intend

for the FDA to regulation tobacco? Alternative regulatory schemes and agencies?

Renewed and expanded the FDA Act without addressing tobacco

United States Supreme Court Opinion

The majority (Scalia) said this was evidence that Congress did not intend for the FDA to regulate tobacco, and that such intent trumped Chevron

Minority (Breyer) said just look at the law Politics trumps principle

Lorillard Tobacco Company v. Reilly, 533 U.S. 525 (2001)

What is MA trying to do? Types of Preemption

Explicit Implicit

How is the United States Supreme Court's preemption analysis similar to a Chevron analysis?

Preemption Language

Congress unequivocally precludes the requirement of any additional statements on cigarette packages beyond those provided in §1333. 15 U. S. C. §1334(a).

Congress further precludes States or localities from imposing any requirement or prohibition based on smoking and health with respect to the advertising and promotion of cigarettes. §1334(b).

What did Congress Intend with the Cigarette Labeling Act?

What was MA's defense against preemption? What did the court find was the congressional

intent? The context in which Congress crafted the

current pre-emption provision leads us to conclude that Congress prohibited state cigarette advertising regulations motivated by concerns about smoking and health.

Justice Steven's Irony

Justice Stevens finds it ironic that we conclude that "federal law precludes States and localities from protecting children from dangerous products within 1,000 feet of a school," in light of our prior conclusion that the "Federal Government lacks the constitutional authority to impose a similarly-motivated ban" in United States v. Lopez, 514 U. S. 549 (1995).

Why is this case different? What could the state do?

Smokeless Tobacco and Cigars

Are these covered by the Act? Why?

What does the court see as the limitation on state regulation of their advertising?

What is the state's justification for limiting advertising near schools?

Why was 1000 feet too far?

Actions v. Speech

Could the state ban the sale of tobacco to minors?

Can it ban the use unattended sales such as vending machines?

Can it ban tobacco sales entirely? Why is this different from bans on advertising? Could Congress preempt state bans on tobacco

sales?

What Should We Do About Tobacco Use?

What is the public interest? What are the individual liberties issues? Are the other substances people want to use that

we ban? Is tobacco different in any physiological, as

opposed to political sense? How well do the other bans work? What are the unintended consequences?

What About Obesity?