摘要：Public health practitioners are familiar with the general outlines of legal authority and with judicial standards for reviewing public health regulations. What may not be as familiar are 3 emerging judicial doctrines that pose considerable risks to public health initiatives. We explain the contentious series of judicial rulings that now place health departments’ broad grant of authority in jeopardy. One doctrine invokes the First Amendment to limit regulatory authority. The second involves the Supreme Court’s reinterpretation of federalism to limit both federal and state public health interventions. The third redefines the standard of evidence required to support regulations. Together, these judicial trends create a pincer movement that places substantial new burdens on the ability of health departments to protect health. THE YEAR 2013 WAS NOT KIND to efforts to use law to protect public health. In July the Appellate Division of the New York Supreme Court affirmed a lower-court ruling enjoining New York City’s innovative ban on the sale of large sugary sodas. 1 A few months earlier, the Food and Drug Administration (FDA) announced that it would not appeal a federal appeals court ruling striking down regulations requiring graphic warning labels on cigarette packages. 2 Although the fates of both New York’s ban on large sugary sodas and the graphic warning labels remain uncertain—the city is appealing the Appellate Division’s decision, and the FDA is revisiting its regulatory options—these decisions are emblematic of a worrisome development for public health. Despite a growing body of research demonstrating the powerful role that law can play in public health protection, 3 adversaries of public health laws have won several high-profile court challenges. Their victories have helped to shift legal doctrine in ways that present new dangers for public health law. Three emerging judicial doctrines pose the greatest risk to public health initiatives, especially those targeting noncommunicable diseases. One doctrine invokes the First Amendment to limit regulatory authority. The second involves the Supreme Court’s reinterpretation of federalism to limit both federal and state public health interventions. The third redefines the standard of evidence required to support regulations. Together, these judicial trends create a pincer movement that places substantial new burdens on the ability of health departments (HDs) to protect health.
