ban. Fourth, product bans are more socially accepted when used to protect
vulnerable populations, notably those who lack capacity to make decisions
for themselves, such as minors or persons particularly susceptible to health
Finally, product bans are not intended to curtail every risk, as evinced by
some failed or attempted bans.
57 Product bans are more successful when
used to address unwanted or involuntary risks, such as exposure to
secondhand smoke in public places or formaldehyde used in temporary
housing. Whenever consumers are unable to consciously accept the risks
associated with a product, banning a product may be appropriate.
III. EXPLORING LEGAL PATHS AND PITFALLS OF PUBLIC HEALTH BANS
Accompanying the varied policy perspectives that underlie product bans
are several legal powers and processes to effectuate them. Attorneys general
and private citizens may bring lawsuits challenging the safety or regulation
of a product.
59 Congress may enact statutes that have legal implications na-
tionwide, or a city council may pass an ordinance banning a product or
56. For example, sulfite preservatives were banned after asthmatics (persons with accentuated health risks) suffered adverse health events. In various contexts, vulnerable populations may also include individuals with disabilities, pregnant women, elderly persons, certain members of ethnic minorities, people with language barriers, and the poor. See, e.g.,
David Blumenthal et al., The Efficacy of Primary Care for Vulnerable Population Groups,
30 HEALTH SERVS. RES. 253 (1995) (discussing vulnerable populations in a primary
57. The temporary saccharin ban demonstrates this point. Relying on a Canadian study
that demonstrated saccharin caused cancer in laboratory rats, the FDA stated that a human
would have to drink 800 cans of diet soda each day to reach the level of exposure as that of
the Canadian rats. The FDA banned the substance, however, because federal law required it
to ban all food additives that cause cancer in animals. The saccharin ban did not last long.
Saccharin is now one of the most popular artificial sweeteners in use. See Schultz, supra
58. This policy perspective – consumers’ ability to make an informed and voluntary
decision regarding health risks - underlies the reasoning behind product bans for minors as
well. Minors are not legally deemed to have the same mental capacity as adults when making
decisions about their actions. Thus, minors may not be able to make fully informed decisions
about the products that they use or purchase, which justifies limiting their access to certain
products. Similarly, adult consumers could not easily discern which foods contained trans
fats. Therefore, consumers could not make an informed decision about certain products until
the FDA required food labels to list trans fat content. Consumer behavior, together with studies showing the negative health outcomes associated with trans fats, laid the groundwork for
59. See, e.g., Plaintiff’s Original Petition and Application for Ex Parte Temporary Restraining Order, Temporary Injunction, and Permanent Injunction, Tex. v. Redux Beverages,
No. 07-03962 (44th Judicial D. Tex., May 2, 2007), available at https://www.oag.
state.tx.us/newspubs/releases/2007/050107redux_pop.pdf; Cleveland v. Ohio, 989 N.E.2d
1072 (Ohio Ct. App. 2013).