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

Many tobacco control advocates, believing that legislators and regulators h ave failed to enact and implement sufficiently stringent tobacco control la ws, 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 m ade 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 court s. 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 t o the traditional political apparatus of formulating and implementing publi c health policy. Our analysis suggests that, in general, public health goal s are more directly achievable through the political process than through l itigation, 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 m ay well move the policy agenda. But we conclude that a sustained legislativ e and regulatory presence ought to be the foundation of meaningful policy c hanges.