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Unformatted text preview: Obesity, Courts, and the New Politics of Public Health Rogan Kersh Syracuse University, Maxwell School James A. Morone Brown University Abstract Health care politics are changing. They increasingly focus not on avowedly public projects (such as building the health care infrastructure) but on regu- lating private behavior. Examples include tobacco, obesity, abortion, drug abuse, the right to die, and even a patients relationship with his or her managed care organiza- tion. Regulating private behavior introduces a distinctive policy process; it alters the way we introduce (or frame) political issues and shifts many important decisions from the legislatures to the courts. In this article, we illustrate the politics of private regulation by following a dramatic case, obesity, through the political process. We describe how obesity evolved from a private matter to a political issue. We then assess how different political institutions have responded and conclude that courts will con- tinue to take the leading role. The image is among the most memorable in recent political history. Seven tobacco company executives stood before a House subcommittee in April 1994, affi rming under oath that nicotine is not addictive and that ciga- rette smoking does not cause cancer. Both claims were quickly exposed as fraudulent, inspiring public outrage, offi cial inquiries, legislative pro- posals, and denunciations from every quarter including the Oval Offi ce. Government action eventually followed, but it took a distinctive form one that does not fi t neatly into our usual models of health care policy making. Journal of Health Politics, Policy and Law , Vol. 30, No. 5, October 2005. Copyright 2005 by Duke University Press. Grateful thanks for helpful comments and advice to Kelly Brownell, Mark Schlesinger, an anonymous JHPPL reviewer, and audiences at Johns Hopkins, Carleton College, Yale, Harvard, Michigan, and Berkeley. For able and timely research assistance, thanks to Ari Greenberg, Kate Farrar, and Kjersten Nelson. 840 Journal of Health Politics, Policy and Law Congress debated bold changes but failed to enact any signifi cant leg- islation affecting the tobacco industry. Parts of the executive branch also attempted strong action and fell short; the U.S. Food and Drug Admin- istration (FDA) moved to regulate tobacco as a drug but the industry blocked the effort in the courts. State and local governments wrestled with the issue and came up with limited restrictions, most notably smoking bans in some public places. Decisive government actionsa whopping $246 billion fi nancial settlement, dramatic limits on marketing, restric- tions on advertising, and selective smoking bansall took place in the judicial branch. In a relatively speedy and creative burst, the courts broke a legislative logjam, dramatically reshaped a vast public health domain, and changed the public policy calculus for activists, policy makers, medi- cal professionals, the tobacco industry, and millions of smokers.cal professionals, the tobacco industry, and millions of smokers....
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