Underlying the lawful sale and use of any product is a concomitant responsibility of government, manufacturers, and sellers to assess the risks of
harm to the public’s health. When risks are identified, legal or policy options to address them abound. Products may be re-designed (e.g., automobiles, lawn mowers), re-packaged with warnings (e.g., cigarettes), or restricted to specific users (e.g., alcohol).
5 In some cases, federal, state, or
local governments may also ban the sale or use of products that threaten the
public’s health through various legal routes and processes. That government
may ban harmful products to protect communal health is well founded.
When and how government may legally implement such bans is less understood and not easily answered.
Certain products that threaten individual health are taken off the market
almost the moment after their risks are discovered (e.g., contaminated
6; others remain available for decades despite known serious risks or
may be restricted only for minors even though risks continue through adulthood (e.g., tobacco).
7 At the same time, balancing product risks and benefits
for individuals and communities leads to variances among banned products
and creates an incomplete proxy for determining which products can be
prohibited. Broader themes are at play when assessing and implementing
product bans in the interests of communal health.
Against a backdrop of clear and objective governmental powers to proscribe harmful products are countervailing arguments grounded in law, policy, and ethics that influence the consideration and implementation of these
bans. The use and efficacy of public health product bans are predicated on
identifying and navigating a complex legal and political environment that
simultaneously supports bans on one hand, and rejects them on the other.
Lacking a definitive, existing assessment, we seek to lay out a framework
for identifying and implementing bans that are legally effective, and avoiding those that are not.
Part II succinctly reviews the spectrum of products, focused notably on
consumables, whose bans are arguably justified by threats to the public’s
Alec B. O’Connor, Building Comparative Efficacy and Tolerability into the FDA Approval
Process, 303 JAMA 979, 979 (2010). As public opinion has shifted, the risks and benefits of
medical marijuana have become hotly debated. Stanley J. Watson et al., Marijuana and
Medicine: Assessing the Science Base – A Summary of the 1999 Institute of Medicine Report,
57 ARCHIVES GEN. PSYCHIATRY 547, 547 (2000).
5. HODGE, supra note 1, at 135-40.
6. The New England Compounding Center distributed injectable steroids contaminated
with fungal meningitis. Ctrs. for Disease Control & Prevention, Multistate Fungal Meningitis Outbreak Investigation (Nov. 15, 2012), http://www.cdc.gov/hai/outbreaks
7. DEP’T OFHEALTH,EDUC.&WELFARE,SMOKING ANDHEALTH,REPORT OF THE
ADVISORY COMMITTEE TO THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE (1964),