Coalitions, Autonomy, and Regulatory Bargains in Public Health Law

Abstract

This paper investigates three examples of policy innovation by public health agencies navigating difficult political environments. It then connects these descriptions to an analysis of agency capture theories, their limits, and the development of the state in a pluralist democracy. The first episode occurred during the 1990s, when USDA sought to target foodborne pathogens through new regulatory rules. The effort culminated with implementation of the Hazard Analysis Critical Control Point (HACCP) framework to harness the private sector’s knowledge about how to improve safety conditions, along with a more demanding pathogen testing regime. Across town, the Food and Drug Administration (FDA) undertook an effort to assert jurisdiction over tobacco products, a goal opposed by tobacco companies. After the U.S. Supreme Court invalidated the FDA regulation, the FDA and congressional allies sought statutory changes and eventually helped to enact the Family Smoking Prevention and Tobacco Control Act of 2010. The third story discusses the evolution of the CDC as its health surveillance capacity has grown, and the under-appreciated role the agency plays in shaping public health responses – including some with considerable implications for powerful economic actors such as pharmaceutical companies. These examples showcase how Americans live and work in a public health context different from what existed two or three decades ago. The cases also reflect how agency-driven policy innovations played a major role in some of those changes. I compare these experiences to the work of agencies performing functions that the public may associate less with public health — irrespective of the actual connection between these functions and population health — such as immigration or firearms regulation, and discuss some preliminary ideas about how the public health agencies managed to use their partial autonomy to advance bold but reasonable reforms despite a political context that did not favor their work.

Keywords: Administrative law, agency autonomy, regulatory capture theory, public health law, Food and Drug Administration, U.S. Department of Agriculture, Centers for Disease Control, organizations, political economy of discretion, biosecurity, food safety, tobacco

JEL Classification: D24, D72