The Legal Anatomy of Product Bans to Protect the
James G. Hodge, Jr.** and Megan Scanlon***
The vast array of products available to American consumers can be used
or consumed safely. There are products, however, that pose significant
threats to individual and community health and safety even when used as
intended. Some of these products kill thousands of people each year (e.g.,
tobacco, alcohol, salt, guns) or lead to long- or short-term physical and
mental disabilities (e.g., lead-based paints, asbestos).
Others present less significant risks to most users (e.g., caffeinated beverages).
2 Some products are inherently dangerous only in the hands of certain consumers (e.g., children’s toys).
3 And some products with known,
sometimes significant risks (e.g., prescription and over-the-counter drugs)
are sold lawfully because their benefits outweigh their potential for harms
to intended users.
This manuscript is based in part on a presentation given by James G. Hodge, Jr., entitled “Assessing the Legal Environment for Mental and Behavioral Health Services in Emergencies,” at Florida State University College of Law on October 15, 2013 in Tallahassee, FL,
as well as the following published manuscript: James G. Hodge, Jr. et al., New Frontiers in
Obesity Control: Innovative Public Health Legal Interventions,
5 DUKE F. FOR L. & SOC.
CHANGE 1 (2013). While the authors acknowledge funding for this project through the Robert Wood Johnson Foundation, any views or opinions expressed in this article are those of
the authors and not project partners. The authors thank Susan Russo, Kellie Nelson, and
Rose Meltzer of the Public Health Law and Policy Program at the Sandra Day O’Connor
College of Law, Arizona State University (ASU), for their research and editing assistance
with this manuscript.
J. D., LL.M., Associate Dean for Grants and External Funds; Lincoln Professor of
Health Law and Ethics, Sandra Day O’Connor College of Law, ASU; Director, Public
Health Law and Policy Program, ASU; Adjunct Faculty, The Johns Hopkins Bloomberg
School of Public Health.
M. A., J. D., Sandra Day O’Connor College of Law; M. A., Bowling Green State University. Ms. Scanlon previously worked as a health law attorney at Quarles & Brady LLP.
1. See, e.g., JAMES G. HODGE, JR., PUBLIC HEALTH LAW IN A NUTSHELL 126-27 (2013).
2. James G. Hodge, Jr. et al., The Consumable Vice: Caffeine, Public Health, and the
Law, 27 J. CONTEMP. HEALTH L. & POL’Y
76, 76 (2010).
3. When warning labels were used, seventy-seven percent of consumers chose the age-appropriate toy. Jean Langlois et al., The Impact of Specific Toy Warning Labels, 265 JAMA
2848, 2849 (1991).
4. The Food and Drug Administration (FDA) is responsible for approval of drugs. See