Litigation and public health policy making: the case of tobacco control

Many tobacco control advocates, believing that legislators and regulators have failed to enact and implement sufficiently stringent tobacco control laws, have supported litigation as a means of achieving public health policy goals. In this article, we examine the relationship between litigation and public health policy formulation in the context of the debate over tobacco control policy. The fundamental questions are how social policy should be made regarding the use of tobacco products, and which institutions should be responsible for controlling tobacco use: the market, the political system (i.e., the legislative and regulatory branches of government), or the courts. On balance we conclude that litigation is a second-best solution. We see a distinct role for litigation as a complement to a broader, comprehensive approach to tobacco control policy making, rather than as an alternative to the traditional political apparatus of formulating and implementing public health policy. Our analysis suggests that, in general, public health goals are more directly achievable through the political process than through litigation, though situations such as those concerning tobacco control blur the bounds between litigation and the politics of public health. Litigation has stimulated a national debate over the role of smoking in society and may well move the policy agenda. But we conclude that a sustained legislative and regulatory presence ought to be the foundation of meaningful policy changes.