Annals of Health Law
HOW TO REGULATE TOXIC FOODS
who die, many others who smoke suffer from a variety of illnesses that
adversely impact their quality of life. 119 Additionally, second-hand smoke
threatens the health of those in the vicinity of the smoker because there are
no safe levels of exposure to second-hand smoke. 120 The health care costs
and lost productivity associated with tobacco use is estimated at
approximately 193 billion per year, 121 with another ten billion in costs
associated with second-hand smoke. 122
Due to the number of people who smoke, the danger it presents to others,
and the financial costs associated with tobacco use, there are many legal
restrictions on tobacco products. 123 These restrictions include mandated
warnings, advertising and age restrictions, andgeographic limitations on
where smokers can light up. Tobacco laws mirror public health laws in
general, as they include every level and type of government entity. 124
requiring non-uniform labeling requirements). Moreover, the 1998 Master Settlement
Agreement between the states and the tobacco industry, gave the industry assurance that if it
paid the requisite sums of money, state and local governments could not sue them for future
actions unless criminal in nature or to enforce the terms of the settlement agreement. C.
Stephen Redhead, Tobacco Master Settlement Agreement (1998): Overview, Implementation
by States, and Congressional Issues, CRS REPORT FOR CONGRESS (last updated Nov. 5,
Thus, tobacco companies were permitted to stay in business, for a price. States that sell the
most tobacco products receive the greatest amount of money under the settlement agreement,
so they may have conflicting interests in terms of limiting sales. As noted above, sugar
consumption rivals tobacco in public health deaths and costs when the entire range of
diseases with which it is linked is taken into account.
119. See SURGEON GENERAL, U.S. DEPT OF HEALTH AND HUMAN SERVICES, EXECUTIVE
SUMMARY, THE HEALTH CONSEQUENCES OF SMOKING (2004) (In addition to lung cancer,
smokers are at greater risk for other diseases , including emphysema, aneurysms, pancreatic,
kidney and stomach cancers, and heart disease).
120. U.S. DEP’T OF HEALTH & HUMAN SERVS., THE HEALTH CONSEQUENCES OF
INVOLUNTARY EXPOSURE TO TOBACCO SMOKE: A REPORT OF THE SURGEON GENERAL 65
121. CENTERS FOR DISEASE CONTROL AND PREVENTION, Smoking & Tobacco Use: Fast
Facts, http://www.cdc.gov/tobacco/data_statistics/fact_sheets/fast_facts/#cost (last visited
Sept. 27, 2012).
123. See infra notes 125-163 and accompanying text.
124. Public health laws exist at every level of government. In addition to federal
legislation, federal agencies like the National Institutes of Health, Centers for Disease
Control and Food and Drug Administration (FDA), all of which are encompassed within the
Department of Health and Human Services, play a role in protecting public health as do
agencies like the Federal Trade Commission (unfair and deceptive trade practices), Federal
Communications Commission, The Department of Alcohol, Tobacco and Firearms (illegal
sales), and Internal Revenue Service (taxing unhealthy products). States and municipalities
also play a central role in promoting public health. See Jacobson v. Massachusetts, 197 U.S.
11, 25 (1905) (Court upheld a state statue empowering local boards of health to require
smallpox vaccinations if they felt it necessary. The Court broadly construed state police
power to regulate public health and safety. The regulations must not be “arbitrary or
oppressive” and must substantially relate to the public health threat. ). In addition, private