Abstract

CUNHA FILHO, Hilson; MARQUES, Rita Fonseca  and  FARIA, Paula Lobato de. Political ethical and legal difficulties in the creation and enforcement of legislation on alcohol and tobacco: a contribution to the development of research in Public Health Law. Rev. Port. Sau. Pub. [online]. 2010, vol.28, n.2, pp.205-218. ISSN 0870-9025.

Introduction: The application of laws of Public Health in the area of health determinants related to lifestyles and behaviors, which include the fight against harmful use of alcohol and tobacco control, needs to be analyzed and discussed taking into account the very particular complexity of this reality, where it is not possible to decouple the action to be taken from the various social stakeholders involved. Indeed, in these areas, the lobbying activities of industry and distribution and sales sectors, show the existence of competing interests with the policies of Public Health, interfering in the results of these and preventing their effectiveness. Material and methods: Taking as a background the above mentioned assumption, this article presents a brief reflection on the strengths and weaknesses of the use of legal instruments in Public Health, taking as example the Portuguese laws on alcohol and tobacco, for which situations of ambiguity and imprecision in its enforcement and a lack of effective monitoring and sanctioning of its non-compliance have put a stop to a effectiveness of the same legislation in practice. The article also shows recent foreign examples which illustrate the pitfalls that can arise even in Public Health laws with clear objectives to reduce the consumption of health hazardous substances and their potential harm. Such is the case with U.S. Law No. 111-31 of 22 June 2009 which gave the FDA (Food and Drug Administration) the power to control tobacco products and has been the aim of harsh criticism from Public Health authorities and academics. In this article, although affirming the undeniable power of the legislative instrument to change attitudes and behaviors we, express, however, some concerns respecting the fact that the law is still an unexplored and poorly evaluated instrument in the Public Health domain. To identify the strengths and weaknesses in the laws concerning public health is indeed as complex as the multidisciplinary sciences and the social diversity of the actors there involved. Therefore, one of the premises of the drafting and implementation of future good public health laws is the need of a thorough understanding of the context to which these same laws will apply, including the environment and stakeholders who are their main target. The potential effects of the law are difficult to predict or to standardize, however, in the line of some authors who have focused recently on the subject, this article supports the use of a logical model to analyze and evaluate the legislative process in Public Health and its obtained results. Knowing that although alcohol consumption and the harm associated with it as well as the dangers of tobacco use and environment tobacco smoking are fully documented with regard to individual and collective health risks, public policies advocated are still far from be effective to curb these life style behaviors, it appears to be essential to deepen the discussion on the question of an ideal conception of Public Health Law in order to start to achieve more desired results in public health and not just the possible outcomes from the clash with the interests at stake. Conclusion: With the reflections in this article, we wish to equip the actors and bodies acting on behalf of Public Health in Portugal with some tools and arguments that will benefit the discussion to promote a better action of the law in the areas mentioned above. This also includes a more enlightened and pro-active legislation procedure, and a contribution to the development of research in Public Health Law, plus the construction and use of effective methods of evaluating the impact of laws and policies concerning behavioral outbreaks related to lifestyle in order to improve their results and thereby to promote a healthier society.

Keywords : Public Health Law; Public health research; Public health legislation; Alcohol; Tobacco; Health policy; Logical model; Public Health.

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