health. Three selected case studies focused on trans fats, marijuana, and tobacco help illustrate the legal and policy issues underlying product bans.
Themes culled from these case studies and other attempts to ban products
contribute to the analyses in Part III, which explores the legal paths used to
ban products that harm individual or communal health in contrast with key
legal arguments that may derail such bans. These arguments include structural and rights-based constitutional claims designed to preempt statutory or
regulatory authorities, as well as procedural hurdles that temporarily or
permanently stall product bans.
Based on this information, Part IV sets forth core elements that affect
when and how a product may be banned in furtherance of the public’s
health. Collectively, these factors establish the “legal anatomy” of product
bans for which non-legal components are interwoven. Ethical considerations arise, often related to the juxtaposition of perceived paternalistic objectives behind product bans and their imposition on consumer choices.
Bans that are legally and ethically viable may only become operational if
they are also scientifically grounded and politically supported. Finally, we
address the need to determine suitable consumers for specific products, and
effectively targeting appropriate populations for certain product bans.
II. BANNING PRODUCTS TO PROTECT THE PUBLIC’S HEALTH: PAST AND
PRESENT
Protecting individual and communal health in the United States are
common justifications for product bans both historically and in present-day.
During the Colonial Era, colonies enacted laws to prohibit the sale of adul-
terated bread and other “unwholesome provisions.”
8 In 1888, the U.S. Su-
preme Court upheld a state ban on oleomargarine to protect the public’s
health.
9 New York City restricted lead paint for health-related reasons in
1959.10 In 1988, the federal Consumer Products Safety Commission
8. Colonies passed the laws to protect and promote both public health and trade. Wallace F. Janssen, America’s First Food and Drug Laws, 30 FOOD DRUG COSM. L.J. 665, 666-
69 (1975). For example, bakers would substitute cheap ground beans or chalk in the place of
more expensive flour when making bread. Id. By regulating the weight of baked goods, the
colonies protected health and trade interests alike. Id.
9. Powell v. Pa., 127 U.S. 678, 685 (1888) (“The power which the legislature has to
promote the general welfare is very great, and the discretion which that department of the
government has, in the employment of means to that end, is very large.”). Oleomargarine is
also known as margarine. See Gerry Strey, The “Oleo Wars”: Wisconsin’s Fight over the
Demon Spread, 85 WIS. MAG. HIST. 3 (2001).
10. New York City banned the use of lead paint twelve years before the federal government enacted a similar ban. David Rosner & Gerald Markowitz, Why It Took Decades of
Blaming Parents Before We Banned Lead Paint, THE ATLANTIC (Apr. 22, 2013),
http://www.theatlantic.com/health/archive/2013/04/why-it-took-decades-of-blaming-parents-
before-we-banned-lead-paint/275169/ (“In the case of lead paint, after three decades of industry lobbying, propaganda, and denial of danger, local health departments began to assert
