store in certain locales.
60 Federal, state, and local agencies may also promulgate regulations to proscribe products pursuant to legislative delegations.
Yet, the legal authority to ban products for public health purposes also includes countervailing individual and commercial protections. The primary
legal themes implicated by public health-driven product bans are examined
A. Federal, State, and Local Authority to Regulate Products
Federal, state, and local governments are empowered to regulate prod-
ucts that harm public health under different legal authorities. Chief among
the federal government’s ability to ban products is Congress’ use of its
commerce authority and powers to tax and spend. The Commerce Clause of
the U.S. Constitution directs Congress “[t]o regulate commerce with foreign
Nations, and among the several States, and with the Indian tribes.”
have broadly interpreted this Clause, consistent with the “Necessary and
62 and Congress has long relied on it to legislate in many
fields to promote and protect public welfare.
63 Congress used its Commerce
authority to adopt the Food, Drug, and Cosmetic Act of 1938, which estab-
lished a comprehensive scheme for regulating drugs.
64 Congress similarly
exercised its commerce power to pass the Consumer Protection Act in
1972, authorizing CPSC to protect consumers from unsafe products.
In addition to regulating trade among the states, Congress may also legis-
60. See, e.g., Brown v. Entm’t Merch. Ass’n, 131 S. Ct. 2729 (2011); U.S. Smokeless
Tobacco Mfr. Co. v. City of New York, 708 F.3d 428 (2d Cir. 2013); Corrosion Proof Fittings v. Envtl. Prot. Agency, 947 F.2d 1201 (5th Cir. 1991); Nutraceutical Corp. v. Von
Eschenbach, 459 F.3d 1033 (10th Cir. 2006).
61. U.S. CONST. art. 1, § 8.
62. Id.; see also Champion v. Ames, 188 U.S. 321 (1903) (holding that lottery tickets
are items of commerce and Congress’ power to regulate includes the power to prohibit);
Hipolite Egg Co. v. United States, 220 U.S. 45 (1911); United States v. Lexington Mill &
Elevator, 232 U. S. 399 (1914) (developing Commerce Clause jurisprudence).
63. See, e.g., Thomas I. Parkinson, Congressional Prohibitions of Interstate Commerce,
16 COLUM. L. REV. 367, 368 (1916) (discussing the breadth of Commerce Clause power
based on the Supreme Court’s decision to uphold “congressional prohibitions of interstate
commerce enacted for the protection of public morals or for the advancement of the public
welfare,” rather than limiting congressional power to the regulation of interstate commerce)
(emphasis added); Louis Maier, Federal Regulation of Manufacturing under the Interstate
Commerce Power, 24 MARQ. L. REV. 175 (1940) (discussing cases in which the federal government extended the scope of its authority over previously unregulated activities by using
the commerce clause).
64. 21 U.S. C. A. §§ 301-399f (West, WestlawNext through Pub. L. No. 113-93 (
excluding Pub. L. No. 113-79) approved Apr. 1, 2014); see also Charles Wesley Dunn, Our Food
and Drug Law, 9 FOOD DRUG COSM. L.J. 346, 347-48 (1954) (discussing interstate commerce and broad jurisdictional reach of 1938 Act).
65. Congress passed the Consumer Product Safety Act in 1972, which created the
CPSC. 15 U.S. C. A. §§ 2051-2084.