109 Navigating the legal environment ahead of forward-looking
bans, as well as their reversals, involves public health justification, clear legal authority, ethically-sustainable grounds, political support or neutrality,
and appropriate targeting of populations.
In the past, government may have sought to ban products in the interests
of the public’s health with little or illusory scientific grounds to support its
110 Today, federal, state, and local authorities are being held to a
higher standard, requiring strong scientific support for imposing a market-wide or population-specific product ban.
111 Even so, generating support
through empirically-driven studies or clear scientific findings can be relatively easy. For example, showing that an infant’s toy contains lead paint
may result in immediate market removal of the product because prior studies have proven that small amounts of lead exposure are dangerous to children’s health.112 In other cases, however, crafting and communicating scientific support for product bans is precarious, especially when it involves
products whose harms are latent in small doses. Occasional exposures to
particular insecticides among consumers of raw vegetables may raise few
health risks. Yet regular exposures to the same insecticides among farm
workers in the fields may implicate serious, long-term harms sustaining a
product ban.113 As noted below, determining the targeted population for a
product ban (e.g., farmers) is as essential as assessing the potential harms of
occasional versus routine exposures.
Federal, state, and local governments have several legal routes allowing
them to ban products in the interests of the public’s health.114 Identifying
and selecting the appropriate source of legislative or regulatory power are
critical to the success of the ban itself to counter legal arguments based on
procedural or substantive principles raised by inapposite parties.115 Nevertheless, when there is sufficient scientific justification for product bans, adequate legal authority typically follows. Congress authorizes multiple federal agencies (e.g., FDA,116 CPSC,117 and EPA118) to prohibit the sale or
109. See supra Part II.
110. See Marcia Angell, Shattuck Lecture - Evaluating the Health Risks of Breast Implants: The Interplay of Medical Science, the Law, and Public Opinion, 334 NEW ENG. J.
MED. 1513, 1513-14 (1996); see also Schultz, supra note 28, at 66-67.
111. See supra Part II.
112. Ctrs. for Disease Control & Prevention, Brief Report: Lead Poisoning from Ingestion of a Toy Necklace – Oregon, 2003, 53 MORBIDITY & MORTALITY WKLY. REP. 509, 509-
11 (2004), available at
113. Freya Kamel & Jane A. Hoppin, Association of Pesticide Exposure with Neuro-logic Dysfunction and Disease, 112 ENVTL. HEALTH PERSPS. 950 (2004).
114. See supra Part III.
115. See supra Part III. C.
116. See O’Connor, supra note 4.
117. Consumer Product Safety Act, 15 U.S. C. A §§ 2051–84 (West, WestlawNext