A. Justifying Product Bans
Different reasons motivate product bans. Laws criminalizing heroin, for
example, are relatively straightforward; no one may possess or use this
product because of known physical harms to individuals and secondary
harms to society.
27 The federal government’s temporary saccharin ban
proved more complex and raised important policy questions about scientific
findings, certainty, and who should bear the health risk.
28 Other bans focus
on specific audiences to help safeguard vulnerable populations.
29 To illus-
trate the gamut of justifications and related common themes for product
bans, consider the following three case studies centered on different types
of products: ( 1) trans fats, ( 2) marijuana, and ( 3) tobacco.
1. Trans Fats
In November 2013, the FDA determined that partially hydrogenated oils
(PHOs) (the primary source of trans fat) are not generally recognized as
safe for use in food based on scientific evidence showing the health risks
associated with their consumption.
30 As a result, PHOs are classified as
food additives and require FDA preapproval for use.
31 This new legal clas-
sification is expected to practically ban trans fats from future use.
Even though many foods once contained trans fats, there is scant public
opposition facing the ban.
32 Support for banning trans fats grew over several decades as studies consistently showed that its consumption contributed
significantly to high cholesterol and heart disease.
33 In 2003, the FDA be-
27. The U.S. first adopted laws regulating heroin in 1914. Steven B. Dukes, Drug Prohibition: An Unnatural Disaster, 27 CONN. L. REV. 571, 572 (1994); see also John Kaplan,
The Role of the Law in Drug Control, 6 DUKE L.J., 1065, 1065-70 (1972) (discussing the
primary and secondary harms stemming from drug use).
28. William B. Schultz, The Bitter Aftertaste of Saccharin, 40 FOOD DRUG COSM. L.J.
66, 66-68 (1985).
29. Certain bans, like those on tobacco and alcohol, are based on the recognition that
minors and young adults should receive greater protection under the law.
30. Tentative Determination Regarding Partially Hydrogenated Oils, 78 Fed. Reg.
67,169, 67,173-74 (request for comments and for scientific data and information, Nov. 8,
2013) (period for comments extended until Mar. 23, 2014 in 78 Fed. Reg. 79,701, 79,701).
31. Foods containing unapproved “unsafe additives” are considered adulterated and
banned from interstate commerce. 21 U.S. C. A. §§ 331, 342 (West, WestlawNext through
Pub. L. No. 113-93 (excluding Pub. L. No. 113-79) approved Apr. 1, 2014).
32. Trans Fat Doesn’t Stir Much ‘Nanny State’ Debate, USA TODAY, Nov. 9, 2013,
33. Dariush Mozaffarian et al., Trans Fatty Acids and Cardiovascular Disease, 354 N.
ENGL. J. MED., 1601, 1611 (2006) (“[G]iven the 1. 2 million annual myocardial infarctions
and deaths from [coronary heart disease] in the U.S., near-elimination of industrially produced trans fats might avert between 72,000 ( 6 percent) and 228,000 ( 19 percent) [coronary
heart disease] events each year.”); see also Ctrs. for Disease Control & Prevention, Nutrition
for Everyone: Trans Fat (updated Jan. 8, 2014), http://www.cdc.gov/nutrition/everyone/