session of caloric-sweetened beverages among minors in the United States
take a similar tact.
B. Policy Perspectives Underlying Bans
As illustrated in these brief case studies, public health-driven product
bans reflect recurring themes. First, a strong public health rationale is gen-
erally necessary to sustain a ban on products that allegedly harm individual
or communal health. Any negative impacts caused by products cannot
merely be suggested or illusory. Some amount of harm or a known negative
health outcome must be attributed to the product. For example, the public
associates poor health outcomes with trans fats and tobacco products be-
cause studies have consistently shown that these products are harmful, med-
ical practitioners communicate these harms, and individuals (or people they
know) experience them often to their own detriment. At some point, the
perceived benefits of using these consumables are outweighed by their sig-
nificant damaging health effects. In contrast, positive health outcomes asso-
ciated with medical marijuana use may weigh more favorably against the
negative impacts of prolonged use.
Second, public opinion strongly influences whether a product should be
banned, spurring policymakers to act.
54 Public opinion supports the continued strict regulation of tobacco and, conversely, the lessening of restraints
55 Third, incremental government action through local or state
restrictions, coupled with corporate initiatives, may contribute to a national
52. See James G. Hodge, Jr. et al., New Frontiers in Obesity Control: Innovative Public
Health Legal Interventions, 5 DUKE F. FOR L. & SOC. CHANGE 1, 23-30 (2013) (arguing for a
proposed ban on the sale and possession of sugar-sweetened beverages among minors in
53. There is not a clear consensus among health professionals regarding whether medical marijuana’s benefits outweigh its risks. While most medicines derived from nature are
tested before they reach the public, the process to evaluate marijuana has been confounded
by its status as an illegal drug. The seminal Institute of Medicine report on medical marijuana does not clarify the issue. See INST. OF MED., MARIJUANA AND MEDICINE: ASSESSING THE
SCIENCE BASE 1-12 (1999), available at
Rather, the report suggests that more research about the risks and benefits of medical marijuana is needed. Id. It concludes, however, that smoking marijuana is not preferred because
“numerous studies suggest that marijuana smoke is an important risk factor in the development of respiratory disease.” Id. at 6.
54. Public opinion also drove FDA to re-examine Bisphenol A (BPA) after it went on
the market. FDA initiated additional studies regarding the product’s safety “[b]ecause of
concerns expressed [by the public] in the last few years.” Food & Drug Admin., Update on
Bisphenol A (BPA) for Use in Food Contact Applications (updated Mar. 2013),
http://www.fda.gov/newsevents/publichealthfocus/ucm064437.htm. Thus government intervention can also be used to restore public confidence in a product, such as BPA, if it can
clearly demonstrate that the product is safe.
55. Broad public support for banning smoking in vehicles with kids present, supra note
51; Press Release, Nat’l Insts. of Health, 66% of 12th graders Do Not View Regular Marijuana Use as Harmful (Dec. 18, 2013), http://www.nih.gov/news/health/dec2013/nida-18.htm.