The Increasing Weight of Regulation: The Role(s) of Law as a Public Health Tool in the Prevention State
Project responsable Mélanie Levy
Abstract Background and rationale - The rise of the prevention state raises fascinating questions as to the role(s) of law as a public health tool. This project investigates the legal theory underlying public health law, with an emphasis on the propriety, scope, and tools of state intervention in health promotion and prevention. As such, it restates the somewhat ironic yet profound question raised by Justice Scalia in the historic "Obama care" ruling of the US Supreme Court: can the state force, or rather nudge you, to eat your broccoli?

Individual behaviors affecting health outcomes such as malnutrition, physical inactivity, alcohol, and cigarette consumption constitute pressing public health challenges and thus preoccupy current law and policymakers. Poor nutritional choices, for example, lead to significant increases in obesity and overweight. For the first time in decades, general life expectancy in the developed world is declining. The increasing prevalence of non-communicable diseases (e.g., cancer, diabetes, cardiovascular diseases) linked to modern lifestyle places a heavy cost burden on Switzerland’s economic productivity and health care system.

In parallel, public health law has evolved from a field concerned primarily with epidemic threats caused by infectious diseases to the study of the legal powers and duties of the state to assure the conditions for people to be healthy. Public health law responses to non-communicable diseases are necessarily different from the traditional regulatory tools designed to fight infectious diseases. Such responses deploy the law to manage individual behaviors and promote healthy choices. Legal mechanisms include, e.g., calorie-labeling mandates for restaurants; taxation of tobacco, alcohol, junk food ("fat tax"), and sweet beverages ("soda tax"); advertisement restrictions; and regulation of sugar content in soft drinks. These mechanisms encourage health-promoting choices, with a view to improve health outcomes and contain health care costs. However, such prevention tools raise challenging questions as to collective and individual responsibility for health and disease. They also imply an intriguing balance of collective interests and individual liberties.

Overall objective and specific aims - The project’s objective is to critically analyze the opportunities and constraints of law as a public health tool to address the burden of non-communicable diseases. To meet this objective, the project strives to achieve the following aims:
(1) To establish a taxonomy of public health governance instruments in the prevention state;
(2) To pursue normative contemplation of the propriety and scope of state intervention to promote healthy behavior in a federal state structure such as in Switzerland;
(3) To examine the traditional legal understanding of individual responsibility for health outcomes and evaluate the possibility of integrating a broader concept of social responsibility within a legal framework;
(4) To theoretically describe and normatively assess innovative health-promoting legal tools such as nudges, public-private-partnerships, social impact bonds, and health insurance incentives;
(5) To advance de lege ferenda proposals for future law reform seeking to improve the design and efficacy of federal and cantonal public health governance instruments.

Research questions - To reach its objective and aims, the project will pursue the following working plan by addressing five research questions. While question (A) pursues principled issues of law and political theory, questions (B) to (E) pertain to the design and legal implications of innovative regulatory tools to promote healthy behavior. This working plan is crucial in terms of division of labor, synergies, and research output among the team members.
(A) The delicate balance of collective interests in public health versus individual liberty
(B) "Judge the nudge", or the choice (architecture) of regulatory instruments to promote public health
(C) Overcoming the liberal tradition: a broadened concept of social responsibility for health outcomes
(D) The risks and promises of public-private-partnerships in health promotion
(E) Health incentives in illness insurance to promote public health

Methods - The legal theory underlying this project is a realist conception of law. The distinction between the descriptive "is" and the normative "ought" plays an important role in legal theory. According to Hume's law, scientific facts cannot serve (directly) as the basis for moral judgments or regulation. Yet being a study that bridges scientific evidence with public health law is one of the distinctive features of this project. Our critical legal analysis will involve both empirical data and normative evaluation. Through the project’s methods, we will make its descriptive and normative aspects explicit.

To carry out this project successfully, we will deploy four methods, which will ensure that data collected is relevant, comprehensive, and soundly analyzed. The four methods will be systematically applied to all research questions.

The first method is positivist. We will map existing public health initiatives within the Swiss legal framework whose goal is to influence health behavior. For that purpose, we will collect and analyze text-based federal and cantonal legal sources linked to three objects of study: legislation, public policies, and judicial decisions. This existing legal framework will serve as the starting point for our critical analysis.

The second method is comparative. As the challenges analyzed are present globally, the project will also refer to legislation, public policies, and judicial decisions in other relevant jurisdictions with a federal state structure (e.g., Canada, USA, Germany). This will lead us to discover regulatory tools promoting health behavior that might be pertinent to the Swiss context.

Thirdly, the project will pursue an evaluative and thus normative method. We will critically analyze the research questions from the point of view of constitutional, administrative, and social security law. To nourish our critical assessment, we will consult secondary literature originating in legal scholarship from relevant fields and in non-legal disciplines pertinent to our analysis (behavioral and social sciences).

Finally, the project builds on a prospective and thus normative method. Based on the project’s findings, we will articulate de lege ferenda proposals for future law reform in Switzerland.

To locate relevant Swiss and foreign legal sources, we will consult official state websites and specialized legal databases. The secondary literature is accessible in the libraries of the University of Neuchâtel and through the Swiss inter-library loan system.

Expected results and impact - The project will make a crucial scholarly contribution, pursuing a critical analysis of the evolving social contract of health and the boundaries of collective and individual, but also corporate, responsibility for health and disease, in the current era of self-optimization and the "moralizing state". Beyond this principled question of law and political theory, the project will focus on innovative regulatory tools designed to promote healthy behavior. It will advance public health law scholarship through its original and promising approach, which relies on a realist conception of law and hence goes beyond traditional legal dogmatics. The project’s originality also lies in its rigorous approach weaving important interdisciplinary links with research in social and behavioral sciences. Practically, it will articulate de lege ferenda proposals for future law reform. These recommendations will serve Swiss federal and cantonal law and policymakers, health and legal practitioners in designing and applying legal tools that strive to enhance Switzerland’s public health outcomes.
Keywords Health promotion
Responsibility for health outcomes
Public health law
Constitutional law
Social security law
Legal theory
Project homepage http://p3.snf.ch/project-181125
Type of project Fundamental research project
Research area Health law; public policy; law and society
Method of financing Swiss National Science Foundation
Status Ongoing
Start of project 1-9-2020
End of project 31-8-2025
Contact Mélanie Levy