Professor Lindsay Wiley - "Big Gulps, Calorie Counts, and the 'New' Public Health Law"

Faculty Scholarship Highlight, March 2013


Professor Lindsay Wiley - "Big Gulps, Calorie Counts, and the 'New' Public Health Law"

As Assistant Professor Lindsay Wiley describes, the field of “public health law” is at a fascinating evolutionary moment—from “old” public health law, which focused primarily on quarantines and other forms of infectious disease control, to “new” public health law, a field far more focused on governmental regulation targeted at shaping individual behavioral choices. Thus, as she explains in Rethinking the New Public Health, “Walk into a Starbucks in New York City and you'll now see calorie counts listed on the menu. Buy a Coke in Washington, D.C. and you'll pay a sin tax on it. A cupcake from your local bakery might taste a little different now that trans fats have been banned from the baker’s recipe. A session in your local tanning salon is now subject to a 10% federal excise tax.” Among the myriad questions raised by this shift is the extent to which government should be taking such an active part in regulating private consumption of lawful but harmful goods. Is this justifiable governmental intervention to protect us even from ourselves, or is it creeping paternalism in the form of “nanny state-ism”?

Ultimately, Wiley concludes, the answer is some combination of both. Public health law must evolve, she argues, to understand that “public” health includes more than just the protection of members of the public from each other when it comes to the spread of illness or other external threats to our individual well-being; it also includes the regulation of “epidemiological harms”—“those for which causation can be established at the population level, but not necessarily at the individual level.” Thus, Wiley aims “to root the new public health law movement even more firmly in the science of social epidemiology as a means of incorporating the communitarian vision of public health within a legal tradition that is still fundamentally liberal.” Only then, she concludes, can we better understand where the line should be drawn between proper regulation of private choices and excessive governmental intervention in our private lives.