by Kim Krisberg

When it comes to public health law, it seems the least coercive path may also be the one of least resistance.

In a new study published this month in Health Affairs, researchers found that the public does, indeed, support legal interventions aimed at curbing noncommunicable diseases such as diabetes, heart disease and obesity. However, they’re more likely to support interventions that create the conditions that help people make the healthy choice on their own. They’re less likely to back laws and regulations perceived as infringing on individual liberties. It’s a delicate balance, but encouraging news for public health workers.

“Public health should feel emboldened by this study,” said co-author Michelle Mello, director of the Program in Law and Public Health at the Harvard School of Public Health. “There is public support for the enterprise they’ve embarked on…the question is how to do it in a way that capitalizes on (that support).”

Mello and her co-author Stephanie Morain examined public perceptions of what they called the “new frontier” in public health law — legal interventions focused on human behavior to prevent noncommunicable disease. Such “new frontier” interventions include reducing trans fat consumption, increasing cigarette taxes or implementing school-based efforts to identify overweight or obese children. The study notes that in 2000, the nation’s three leading causes of death were tobacco use, poor diet and physical inactivity, and alcohol consumption. More than 75 percent of U.S. health care costs are related to preventable chronic conditions. Mello and Morain write:

The controversy calls into question the public’s willingness to view as legitimate uses of the power of the state any new-frontier interventions that attempt to use the law to prevent noncommunicable disease by influencing personal health behavior. Securing and maintaining legitimacy — that is, the public belief that officials have moral and legal authority to address the problem of noncommunicable disease and its behavioral underpinnings — is critically important because that authority affects people’s willingness to support and comply with public policies. Compliance with such interventions, in turn, is a critical determinant of the extent to which the policies will achieve their objectives.

“We were really interested in the novel efforts by public health departments to make new entrees into the chronic disease realm,” Mello told me. “This isn’t a totally new realm (for public health), but there is a new emphasis.”

In surveying more than 1,800 U.S. adults, the two researchers found high support for government action on “new frontier” public health efforts. For example, more than 80 percent of respondents supported government action to prevent cancer, heart disease, childhood obesity and to help people control their diabetes. An even higher proportion of respondents said the government had a responsibility to address more traditional public health issues, such as providing vaccines and preventing food-borne illness. Respondents also had positive opinions of public health agencies, especially the Centers for Disease Control and Prevention and state and local health officials.

A particularly interesting, but probably not surprising, finding was dramatically lower levels of support for measures believed to be individually coercive. For example, policies to make fresh fruits and vegetables more affordable or to post calorie counts received supports of 83.6 percent and 80.8 percent, respectively. But support for an insurance premium surcharge for obese individuals only received the support of 37.6 percent of respondents. Similarly, more than 72 percent of respondents supported providing people with free nicotine patches; only 20 percent supported allowing employers to test and fire employees for tobacco use.

“These findings suggest that continuing the current focus on using law to shape health environments, instead of exerting more direct pressure on individual behavior, is a sound strategy for maximizing the legitimacy of policies,” the study authors wrote.

Engaging the public in public health

Mello told me she was surprised at the high levels of support almost all the interventions received, noting the constant warnings of encroaching nanny states and over-reaching government that tend to dominate the media. In contrast, “our study revealed a quiet majority that supports the aims of these types of interventions…actually they want the government to do more,” she said. She said she also thought that those people targeted by the interventions would be less likely to support them. But, with the exception of smokers, that wasn’t the case. People who were overweight or living with diabetes tended to welcome public health interventions.

“In terms of political feasibility…we saw a gradient in public support that matched the gradient in coercion,” said Mello, who is also a professor of law and public health in Harvard’s Department of Health Policy and Management. “As a political matter, the smoothest path is to pick interventions that aren’t choice restricting, that don’t infringe on personal liberties. The dilemma, however, is that those (interventions) might not be the most effective.”

Both Mello and Morain said engaging the public in the policymaking process could be key to public buy-in and compliance. Their study noted that the “strongest predictor among the belief measures we tested was the perception that ‘people like me’ can influence government priorities in public health.” Morain, a doctoral candidate in the ethics tracks of the Interfaculty Initiative in Health Policy at Harvard, told me that support levels ticked up when people believed the government understood their values.

“It’s really important to involve the public in priority-setting activities, to understand the values held by different populations and to be able to communicate how their values are being reflected in the policymaking process,” Morain said.

Scott Burris, director of the Public Health Law Research Program at Temple University, said the Health Affairs study is among those “exploding the myth that people don’t like public health interventions.” Referencing his own body of work, Burris said that in the last 50 years, there’s been few public health developments more important, more effective or more popular than the use of law to intervene on behaviors and environments to make people safer. For instance, he cited laws restricting tobacco use and making motor vehicles safer — “today, nobody would say we shouldn’t have laws against drunk driving or promoting seat belts,” he said.

“What’s happening now is we’re moving toward deeper causes … how health is built into our society,” Burris told me. “We’re not talking about someone crashing into a wall and being saved by an airbag — there’s that strong link between intervention and harm. …We don’t have the epidemiology yet that has convinced people that buying a Big Gulp soda is the same as smoking a cigarette.”

The food and beverage industries are formidable — as was witnessed this week when a judge struck down New York City’s law restricting certain establishments from selling sugary drinks larger than 16 ounces (the ruling will go to appeal this summer) — but they’re not unbeatable, Burris noted.

“If you take the long view and look at our public health successes and how they’ve bubbled up from all over the place…you see that we continue to have a pretty good record of beating the big money,” he said.

Luckily, people are beginning to realize that serious problems such as obesity and diabetes aren’t simply related to a person’s individual choice. It’s also the physical, organizational and social environments that shape our behaviors — “now, people are saying, ‘hold on, this isn’t just natural, it’s a logical consequence of the way we organize our communities and our society,'” said Alex Wagenaar, associate director of the Public Health Law Research Program and a professor of health outcomes and policy at the University of Florida. Wagenaar said it’s entirely conceivable that in a couple of decades, laws targeting obesity and diabetes will be as commonplace and accepted as the public health laws and regulations we take for granted today. (For example, he noted that it was a big fight to get car manufacturers to install seat belts and yet today buckling up is the norm.)

“It’s hard at the start, but it seems like we have no other choice,” Wagenaar told me. “We have to take on these issues…and use policies to shape the environment in a more healthy way.”

Mello noted that an interesting solution is to use “nudge interventions” in which choices aren’t restricted, but the choice environment is altered. For example, in a cafeteria, make the healthy food choices the first choices people see. In other words, use what we know about human decision-making tendencies to the advantage of better health, she said.

“I think we’ll see gradual changes over time,” Mello said “This all very new and it may take a generation for people to appreciate the magnitude of these health threats and to really accept concrete interventions.”

To read more about the Health Affairs study, click here.

Kim Krisberg is a freelance public health writer living in Austin, Texas, and has been writing about public health for more than a decade.