possession of products that harm communal health so long as they have scientific support. Consistent with, or in the absence of, federal actions, states
(and local governments with sufficient home rule) are equipped with broader public health powers to intervene. Judicious use of these broad powers is
essential to avoid the pitfalls of contrary legal arguments that can derail
well-intended product bans.
What science supports and the law allows may still not result in an effective product ban if the means or ends of government action are not ethically-sustainable. American consumers are often reticent to allow government
to dictate the terms in which specific products may or may not be sold.
Communities may resist or reject public sector paternalism designed to protect autonomous consumers from product harms when they could essentially protect themselves from these products through their own choices. Attempts to control obesity in New York City by limiting soda consumption
through container size limits have been summarily rejected by many as
“nanny” state interventions.119 Even though empirical evidence and legal
authority to institute the ban on large portion sizes of sodas may be sufficient, public acceptance of the measure is not.120
The public’s perception of the ethicality of proposed bans is coupled
with the political acceptability of governmental intervention. Political actors
at all levels must either support, or at least remain neutral toward, proposed
bans for obvious reasons. Absent political support, public health officials
may be stymied in their attempts to even propose a ban. When political
forces are neutral, apathy for proposed bans may result in inaction. Political
resistance or opposition is a death knell for otherwise solid product ban
Finally, targeting appropriate populations is key to any proposed ban.
through Pub. L. No. 113-93 (excluding Pub. L. No. 113-79) approved Apr. 1, 2014).
15 U.S. C. A. § 2601.
119. See, e.g., Lawrence O. Gostin, Bloomberg’s Health Legacy: Innovator or Meddling Nanny?, 43 HASTINGS CTR. REP. 19 (2013).
120. See HODGE, JR., supra note 1, at 183. New York City’s Mayor, Michael Bloomberg, and its Health Department’s campaign against the sale of large sugar-sweetened beverages (SSBs) was meant to deter their consumption through education and restricted portion
controls. On March 11, 2013, a local court blocked implementation of the City’s portion size
proposal, which was affirmed on appeal on July 30, 2013. N.Y. Statewide Coal. of Hispanic
Chambers of Commerce v. N. Y. C. Dep’t of Health & Mental Hygiene, No. 653584/12, 2013
WL 1343607 (N. Y. App. Div. 2013)).
121. No better example of this point exists than tobacco regulation in the United States.
Prior attempts to regulate tobacco products by FDA may have led to a complete product removal given the significant harms of tobacco use coupled with no known benefits to consumers. However, in 2009, Congress clarified through the Family Smoking Prevention and
Tobacco Control Act that tobacco was to remain a lawful product on the market notwithstanding significant controls on access among minors and restrictions on its advertising and
21 U.S. C. A. § 387 (West, WestlawNext through Pub. L. No. 113-93 (
excluding Pub. L. No. 113-79) approved Apr. 1, 2014).