Public Health Law Program

1. The Legal Foundation for U.S. Public Health Practice National Indian Health Board National Tribal Public Health Summit May 31, 2012 Office for State, Tribal, Local, and Territorial Support Public Health Law Program

2. The contents of this presentation have not been formally disseminated by the Centers for Disease Control and Prevention and should not be construed to represent any agency determination or policy. This presentation is for instructional use only and is not intended as a substitute for professional legal or other advice. Nor is it an endorsement for the implementation of any specific legislation. While every effort has been made to verify the accuracy of these materials, legal authorities and requirements may vary from jurisdiction to jurisdiction. Always seek the advice of an attorney or other qualified professional with any questions you may have regarding a legal matter. Disclaimer

3. CDC’s Public Health Law Program Who We Are and What We Do

4. CDC’s Public Health Law Program Mission To provide support to public health practitioners and their counsel using legal tools and strategies that when implemented improve public health outcomes. Converging science, policy and law into specific strategies that are promising practices or best practices.

5. CDC’s Public Health Law Program Vision Using Law to Improve Public Health Outcomes Customers STLT Public Health Agencies and Practitioners Legal Counsel to Public Health Practitioners CDC Programs CDC Partners CDC Grantees

6. CDC’s Public Health Law Program PHLP Services We provide consultation and technical assistance that is coordinated with multidisciplinary subject matter experts, focused on jurisdiction specific public health issues, and encourages a team approach between public health practitioners and their legal counsel.

7. Public Health Law: Why? An increasing need for legal clarification regarding the way public health programs are implemented on the state and local level: Conducting routine, daily activities, such as public health surveillance, inspections, and enforcement Investigating outbreaks: setting clear parameters Responding to natural disasters and other public health emergencies Federal legislation (e.g. ACA) and policy initiatives

8. U.S. Public Health Law: Why here? It is important that AI/AN public health practitioners have a basic understanding of the role of law in U.S. public health practice in order to better: Foster understanding among AI/AN communities and policymakers on the state and local level Equip and empower interested participants in being a voice in public health law and policy making on the state and tribal governmental level Demonstrate the critical role that law plays in advancing public health goals

9. Do you know how law contributed to these achievements? Vaccination Motor-vehicle safety Safer workplaces Control of infectious diseases Decline in deaths from coronary heart disease and stroke Safer and healthier foods Healthier mothers and babies Family planning Fluoridation of drinking water Recognition of tobacco use as a health hazard Law’s Paramount Role:10 Great Public Health Achievements, United States, 1900-1999*

10. Law’s Paramount Role:10 Great Public Health Achievements, United States, 1900-1999*

11. Law’s Paramount Role:10 Great Public Health Achievements, United States, 1900-1999*

12. Public Health Law Key Definitions and Concepts

13. Definitions: Law • Law has many definitions • Rules that are subject to the enforcement power of a government entity. • The structures, norms, and rules that a society uses to resolve disputes, govern itself, and order the relations between members of the society. • “The enterprise of subjecting human conduct to the governance of rules.”

14. Definitions:Public Health Laws • Any laws or regulations that have important consequences for the health of defined populations • Not limited to laws related to “the official health department”

15. One suggested definition: “The legal powers and duties of the state to assure the conditions for people to be healthy, and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the protection or promotion of community health.”* Public Health Laws

16. Public Health Laws • Some examples of how public health laws work: • Change the physical environment • Examples: Fluoridation of water; zoning of certain areas as residential v. industrial, building codes requiring smoke alarms • Penalize risky behavior • Examples: Tickets for not wearing seatbelts; fines for polluting • Alter the informational environment • Examples: Violence or drug prevention programs in schools; food labeling; regulation of advertising of cigarettes or alcohol

17. S T A T E LOCAL F EDERAL Public Health Law Two Fundamental Concepts

18. Federalism power is divided between a national government and smaller state governments Police Powers Powers exercised by the states to enact legislation and promulgate regulations to protect the public health, welfare, and morals, and to promote the common good. S T A T E LOCAL F EDERAL Two Fundamental Concepts

19. Police Powers • Defined: Powers exercised by the states to enact legislation and promulgate regulations to protect the public health, welfare, and morals, and to promote the common good. • Examples: • Investigations of infectious disease outbreaks • Childhood vaccinations as condition for school entry • Ban on distribution of free cigarette samples in areas around schools and other places frequented by minors • Involuntary detention of persons with certain communicable diseases • Property seizure and destruction to control toxic substance threats

20. Basic Sources of Law • Constitutions • Statutes • Regulations • Common law

21. Constitutions • U.S. Constitution is the source of all legal authority for the federal government • Both state and federal constitutions are sources of law for the states • State constitutions differ in significant ways, producing different styles of government in the states

22. The U.S. Constitution • “Supreme law of the land” (drafted 1787) • Establishes 3 branches of federal government and separation of powers • Legislative • Executive • Judicial • Confers limited set of enumerated federal powers

23. Commerce Clause Federal government has exclusive power to regulate commerce with foreign nations. Direct or indirect regulation by states that unduly burdens foreign or interstate commerce is unconstitutional. The federal government may regulate: Interstate commerce that crosses state borders. Intrastate commerce that affects interstate commerce.

24. Most public health activities carried out by state and local governments Federal government functions in public health carried out through regulatory (e.g., FDA) and non-regulatory (e.g., CDC) agencies Federal government shapes state / local public health through funding and defunding U.S. Constitutional Design:Implications for Public Health

25. Law as a Public Health Tool Obesity: An Urgent Public Health Threat

26. Obesity: An Urgent Public Health Threat • 34.3% of U.S. adults are obese and 32.7% are overweight • 16.9% of U.S. children and adolescents are obese • Trends suggest growing numbers of obese adults, adolescents, and children in the next decade • Medical costs associated with obesity estimated $147 billion in 2008

27. CDC Evidence-Based Target Areas and Settings for Obesity Prevention and Control • Target Areas • Reduce consumption of high-calorie foods • Reduce consumption of sugar-sweetened beverages • Reduce TV viewing and video game play • Increase consumption of fruits and vegetables • Increase physical activity across the lifespan • Increase initiation and duration of breastfeeding • Settings • Schools • Daycare • Worksite • Healthcare • Community

28. Law and Nutrition • Examples of existing laws that influence obesity through nutrition: • School food programs • West Virginia (HB 2816) implemented the IOM Nutrition Standards for food in schools • California (SB 19/56) set nutritional standards for all foods and beverages sold in schools • Bans • New York City – First jurisdiction to eliminate artificial trans fats in restaurants (Section 81.08 of the NYC Code) • Supplemental nutrition programs • Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) • Summer Food Service Programs

29. School Lunch Program • Federal program provides nutritionally balanced, low-cost or free lunches in public and private schools • Established in 1946; permanently authorized • Administered by the USDA and state education agencies • Schools decide on food offered • Serves more than 30 million students daily • Requires lunches meet guidelines • No more than 30% of calories from fat, 10% saturated fat • Must provide ¼ daily recommendation for protein, calcium, iron, vitamins A & C, and calories

30. Competitive Foods in School Vending Machines • Many jurisdictions restrict vending machine competitive foods in schools • Examples • Arkansas (HB 1583, Act 1220) bans elementary school student access to vending machines • Colorado (SB 103, Chapter No. 166) encourages 50% of all vending machine items to be healthful • Kentucky (KY 158.854) requires the Board of Education to promulgate an administrative regulation restricting the sale of beverages to water, 100% fruit juice, low-fat milk, and any beverage with <10 grams of sugar/serving

31. School Wellness Programs under Child Nutrition Act • Required all school districts to adopt wellness policy by 2006 • P.L. 108-265 • No language on accountability; states may establish own mechanisms • E.g. the Conn. Dept. of Education reviewed school wellness policies with the Rudd Center for Food Policy and Obesity • National Alliance for Nutrition and Activity provides model school wellness policies • http://www.schoolwellnesspolicies.org/WellnessPolicies.html

32. Breastfeeding • Many studies show breastfeeding reduces the risk for overweight and obesity • Legality of breastfeeding in public • No state law prohibits breastfeeding outside the home and only two states (Illinois and Missouri) place any limitation on public breastfeeding • Breastfeeding in the workplace • 24 states and DC have laws to promote breastfeeding for working mothers, with varying provisions • The 2010 Patient Protection and Affordable Care Act (P.L. 111-148), Sec. 4207, provides for “reasonable break time” (and other provisions) for nursing mothers.

33. Physical Education and Activity in Schools • As of 2010, 49 states require some level of physical education in schools • Quantity requirements vary significantly • Range is 0-50 minutes/week in K-8 • Usually ½ to 1 credit for physical education or activity in high school • Quality requirements vary significantly • From education alone to required vigorous activity

34. Selected Innovative Laws Snack Taxes: • An excise tax collected from wholesalers or sales tax on targeted snacks • 17 states levy some variation of the tax • Menu Labeling: 2010 Health Reform Act: • Requires chains of 20+ restaurants and operators of 20+ vending machines to post calorie and other information • Secretary of HHS may require additional nutritional disclosure • Preempts stronger state and local requirements Trans-fat bans: • Bans prohibit restaurants and food preparation centers from using partially hydrogenated vegetable oils, shortening, and margarine with 0.5 grams or more trans-fat per serving • 5 states and 5 municipalities had enacted trans-fat bans as of 2009 Zoning: • Use of zoning laws to promote easier access to farmers markets • Restrict fast food restaurants within a designated distance of schools

35. Obesity in the AI/AN population:An Issue of Health Equity • AI/AN women are 40% more likely than White women to be obese • Over half of AI/AN women are overweight • AI/AN populations are 1.6 times as likely to be obese than Non-Hispanic whites • The problem starts early: At age 4, more than 31% of American Indians are considered obese • Increased risk of type 2 diabetes, high blood pressure, cardiovascular disease, asthma, sleep apnea, low self-esteem, depression, and social discrimination.

36. Tribal Public Health Law: Related Examples • Navajo Nation’s Breastfeeding Code: 15 Navajo Code § 704 • States that “…all employers…shall provide to each working mother opportunities to engage in breast-feeding…or the use of a breast pump at the workplace.” • Cherokee Nation’s Criminal Law Exception for Breastfeeding • The Cherokee Code of the Eastern Band of the Cherokee Nation (Sec. 14-80.4) carves out an exception in its Indecent Exposure code for breast feeding • “….a woman may breastfeed in any public or private location where she is otherwise authorized to be…” • Muscogee (Creek) Nation’s Tribal Food and Fitness Council • Resolution to establish a Food and Fitness Council which includes administrators of the tribe’s diabetes, nutrition, Head Start and WIC programs, IHS clinicians, a dietician, a tribal gov’t rep, and a farmer • Lummi Nation’s Stop the Pop Resolution: #2004-149 • Resolution banning the purchase of sugar-sweetened beverages for tribally sponsored events

37. Concluding Thoughts “In the realm of public health… it’s the law that really does the work. That’s been demonstrated time and time again in areas ranging from mandating vaccinations; to requiring automobile seatbelts, to improving workplace safety; to the inspections of meat products; and fluoridation of water. Public health succeeds by making healthy choices the norm.” - New York City Mayor Michael Bloomberg in an address at the Harvard School of Public Health, 2007

38. For More Information WEBSITE: Visit http://www.cdc/gov/phlp THE NEWS: Subscribe to “The CDC Public Health Law News” CONTACT US: Send me an email: mransom@cdc.gov