Protecting Tobacco Advertising Under the Commercial Speech Doctrine: The Constitutional Impact of Lorillard Tobacco Co.

Since 1980, the Supreme Court has used a complex form of intermediate constitutional scrutiny-the Central Hudson analysis-when government regulations of commercial speech are challenged on First Amendment grounds. In Lorillard Tobacco Co. v. Reilly, the Court used this analysis for the first time to test the constitutionality of government restrictions on tobacco advertising. This article reviews the Court's commercial speech doctrine including previous treatment of governmental attempts to restrict harmful product advertising. The article then provides an overview of the national regulatory framework for tobacco advertising and analyzes the Supreme Court's 2001 opinion in Lorillard Tobacco. The article then explores the impact of the case on the Court's commercial speech doctrine and in subsequent lower court opinions.     

Do adolescent smokers know the risks?

Professor Slovic challenges Professor Viscusi by suggesting that "risk" is a term with varying meanings and the potential for misinterpretation by study participants. He distinguishes between the probability and severity of a risk, and suggests that teens who know the probability of smoking causing cancer are not aware of the severity of the experience of cancer. He goes on to note that people often perceive themselves as being less at risk than others, and observes that Professor Viscusi's study posed questions about others, instead of asking teens to assess their own risks. Thirdly, he argues that teens perceive each individual cigarette as posing a small risk even if they seem to be aware of the larger risk of smoking. Finally, since many teen smokers intend to quit, he contends, they do not see smoking as hazardous to themselves. He argues that Professor Viscusi underrates the misperception of the risks of personal addiction. Professor Slovic augments his argument with original research demonstrating that smoking teens are more likely than nonsmoking teens to perceive the short term risks of smoking as trivial.     

试论我国关于公司转投资主体的法律限制

公司进行转投资是公司法人实现其自身目的的重要手段,然而我国现有公司法律法规存在着诸多有关公司转投资主体的限制,包括对内外资公司的转投资主体作出了区别规定的歧视性限制,以及对投资公司、控股公司等存在着立法缺口以至于无法正确适用的限制等。然而,从内外环境来看,此诸多限制已越来越不合时宜。从内部环境来看,我国的市场经济逐步建立起来,要求市场主体具有平等的地位;从外部环境来看,我国已加入WTO,WTO协议要求我们给予外资公司以国民待遇,同时要求我国法律在立法和实施过程中严格遵循透明度原则。试图对我国关于公司转投资主体的法律限制及其不足与对策进行初步探讨和分析,以期对我国公司法等相关法律的修改提供些许参考。     

Taking behavioralism seriously: some evidence of market manipulation

Over the last ten to fifteen years, economists and legal scholars have become increasingly interested in and sensitive to behavioralist insights. In a companion article, Jon Hanson and Douglas Kysar argued that those scholars have nevertheless given short shrift to what is, at least for policymaking purposes, perhaps the most important lesson of the behavioralist research: individuals' perceptions and preferences are highly manipulable. According to Hanson and Kysar, one theoretical implication of that insight for products liability law is that manufacturers and marketers will manipulate the risk perceptions of consumers. Indeed, to survive in a competitive market, manufacturers and marketers must do so. In this Article, Hanson and Kysar present empirical evidence of market manipulation--a previously unrecognized source of market failure. The Article begins by surveying the extensive qualitative and quantitative marketing research and consumer behavioral studies that discern and influence consumer perceptions. It then provides evidence of market manipulation by reviewing common practices in everyday market settings, such as gas stations and supermarkets, and by examining familiar marketing approaches, such as environmentally oriented and fear-based advertising. Although consumers may be well-aware of those practices and approaches, they appear to be generally unaware of the extent to which those tactics are manipulative. The Article then focuses on the industry that has most depended upon market manipulation: the cigarette industry. Through decades of sophisticated marketing and public relations efforts, cigarette manufacturers have heightened consumer demand and lowered consumer risk perceptions. Because consumers are aware that smoking may pose significant health risks, the tobacco industry's success in manipulating risk perceptions constitutes especially strong evidence of the power of market manipulation. The Article concludes by arguing that the evidence of market manipulation may justify moving to a regime of enterprise liability. Indeed, according to Hanson and Kysar, the evidence of market manipulation confirms the intuitions of the first generation of product liability scholars, who worried about manufacturers' power to manipulate and called for just such a regime.     

HIPAA privacy: the compliance challenges ahead

This Article reviews the HIPAA Privacy Standards' impact on healthcare organizations. It discusses whether a healthcare organization is a "Covered Entity" under the regulations, what information the Privacy Standards protect, what restrictions the regulations place on the use and disclosure of protected health information, what individual rights the Privacy Standards create, and what agreements they require between healthcare organizations and their business associates. The author provides relatively extensive guidance to organizations that are embarking upon their voyage of compliance with these broadly applicable regulations, but notes that the full extent of necessary compliance remains unclear, pending DHHS issuance of the next iteration of the rulemaking in this area. The Article was finalized in January 2002, before HHS issued any modifications to the Privacy Standards.     

The High Court's lost chance in medical negligence: Tabet v Gett (2010) 240 CLR 537

In 2010 the High Court of Australia in Tabet v Gett (2010) 240 CLR 537 determined an appeal in a medical negligence case concerning a six-year-old girl who had presented to a major paediatric hospital with symptoms over several weeks of headaches and vomiting after a recent history of chicken pox. The differential diagnosis was varicella, meningitis or encephalitis and two days later, after she deteriorated neurologically, she received a lumbar puncture. Three days later she suffered a seizure and irreversible brain damage. A CT scan performed at that point showed a brain tumour. As Australia does not have a no-fault system providing compensation to cover the long-term care required for such a condition, the girl (through her parents and lawyers) sued her treating physician. She alleged that, because a cerebral CT scan was not performed when clinically indicated after the diagnosis of meningitis or encephalitis and before the lumbar puncture, she had "lost the chance" to have her brain tumour treated before she sustained permanent brain damage. She succeeded at first instance, but lost on appeal. The High Court also rejected her claim, holding unanimously that there were no policy reasons to allow recovery of damages based on possible (less than 50%) "loss of a chance" of a better medical outcome. The court held that the law of torts in Australia required "all or nothing" proof that physical injury was caused or contributed to by a negligent party. The High Court, however, did not exclude loss of chance as forming the substance of a probable (greater than 50%) claim in medical negligence in some future case. In the meantime, patients injured in Australia as a result of possible medical negligence (particularly in the intractable difficult instances of late diagnosis) must face the injustice of the significant day-to-day care needs of victims being carried by family members and the taxpayer-funded public hospital system. The High Court in Tabet v Gett again provides evidence that, as currently constituted, it remains deaf to the injustice caused by State legislation excessively restricting the access to reasonable compensation by victims of medical negligence.     

The Organization and Operation of Teen Courts in the United States: A Comparative Analysis of Legislation

Teen courts are juvenile justice diversion programs found in most states. Programs vary significantly between, and even within, states, making regulation cumbersome. Their grass roots nature requires legislative latitude so each program can meet the specific needs of the communities they serve. States have passed both specific and broad legislation acknowledging their existence and providing referral sources. This article examines teen court legislation from every state, analyzes each, and draws conclusions about teen courts from a legislative perspective.     

烟草管制与公民权利的包容与界分

毋庸置疑,对已沦为习俗的吸烟行为予以管制,必然会滋生侵犯公民权利方面之不妥,一般而言,其表现为与吸烟者行为自由权、烟商言论自由权、以及吸烟者与企业主财产权三方面存有冲突。我们经由对自由权本质属性的剖析可以明确,有碍他人健康之吸烟行为非属行为自由其类;同时,亦并非所有烟草宣传皆可归属言论自由权范畴,在烟控制度结构中,我们理应对烟草宣传保持"尊重与戒惧"的基本态度。另外,限制购买以及征收烟草税所造成的财产限制,事实上和一般意义上的财产权侵犯亦是有所差别的,购买香烟是一种特殊的财产支配情形,对其予以限制并不违背法经济学上的资源配置法则。最后,对企业主而言,单纯的获利机会、商业利益、赢利预估或期待并非属于财产权的保障范围。     

THE FACTUAL FOUNDATION FOR CERTAIN KEY ASSUMPTIONS OF GUN CONTROL

The case for legal restrictions on gun ownership and use as a strategy for reducing criminal violence relies on factual assumptions about the nature of gun ownership and violent behavior. Five of the most crucial ones are identified and subjected to a comparison with the available empirical evidence. All of the following assumptions were found to be substantially at variance with the evidence: (1) Guns are five times deadlier than the weapons most likely to be substituted for them in assaults in which guns are not available. (2) The sight of a gun can elicit aggression, due to the learned association between guns and violence. (3) If guns are made more expensive, more difficult to obtain, or legally risky to own, people will do without them. (4) Guns are useless for self-defense or protection of one's family, home, or business, and have no deterrent effect on criminals. (5) Homicides are largely "crimes of passion" committed by otherwise law-abiding citizens not distinguishable from other people. Therefore, control must be directed at all gun owners rather than select criminal subgroups.     

A mountain or a molehill: is the illicit trade in cigarettes undermining tobacco control policy in South Africa?

This study estimates the size of the market for illicit cigarettes in South Africa between 1997 and 2007 in order to consider the impact of the illicit trade in cigarettes on the effectiveness of tobacco control policies. Estimates of the illicit market are made using data on smoking prevalence and simulations of smoking intensity. The paper shows that the size of the illicit market to have grown substantially from 1997 until peaking in 2000 between 9.4% and 11.5% of the total market. The most recent estimate for 2007 suggests that the illicit market occupied between 7.0% and 11.2% of the total market. These estimates are significantly lower than the anecdotal claims of the tobacco industry. Although the scale of the illicit market is significant it has not undermined tobacco control policy. Consumption in the total market, including both the illicit and legal market, has declined in size consistently. At the same time, tax revenue from higher excise taxes has offset the tax losses as a result of illicit trade.     

Access to health care for undocumented migrants: a comparative policy analysis of England and the Netherlands

The presence of undocumented migrants is increasing in many Western countries despite wide-ranging attempts by governments to increase border security. Measures taken to control the influx of immigrants include policies that restrict access to publicly funded health care for undocumented migrants. These restrictions to health care access are controversial, and evidence suggests they do not always have the intended effect. This study provides a comparative analysis of institutional, actor-related, and contextual factors that have influenced health care policy development on undocumented migrants in England and the Netherlands. For undocumented migrants, England restricts its access to care at the point of service, while the Netherlands restricts through the payment system for services. The study includes an analysis of policy papers and semistructured, in-depth interviews with various actors in both countries. Findings confirm the influence of such contextual factors as immigration considerations and cost concerns on health care policy making in this area. However, these factors cannot explain the differences between the two countries. Previously enacted policies, especially the organization of the health care system, affected the kind of restrictions for undocumented migrants. Concerns about the side effects of generous treatment of undocumented migrants on other groups played a substantial role in formulating restrictive policies in both countries. Evidently, policy development and implementation is critically affected by institutional rules, which govern the degree of influence that doctors and professional medical associations have on the policy process.     

Organized contraband smuggling and its enforcement in Canada: An assessment of the anti-smuggling initiative

This article provides an overview of contemporary cigarette and liquor smuggling affecting Canada and summarizes the results of research that evaluates a Federal enforcement program in this country entitled the Anti-Smuggling Initiative (ASI). To combat the escalation and increased organization of cigarette smuggling, the Canadian Government provided special funding to federal enforcement and prosecution agencies beginning in 1994. The program evaluation concluded that there was a substantial decrease in the contraband tobacco market as a result of the ASI initiatives; however, evidence suggests that reductions in Canadian cigarette taxes made during the same period were the most powerful policy tool in influencing cigarette smuggling. While the ASI laid the foundation for success in dismantling some of the largest known tobacco and liquor smuggling operations in Canada, it does not appear to have had a strong deterrent effect on organized smuggling in general. Instead, the impact on smuggling groups can more accurately be characterized as one of displacement. Indeed, history shows that early successes in organized crime enforcement are often followed by diminishing returns as criminal groups become more adaptive and sophisticated. This research concludes that to most effectively address the smuggling of legal goods, enforcement must be supplemented with taxation policies that reduce the financial viability and attractiveness of this trade.     

Exemption from federal preemption of state and local cigarette and smokeless tobacco requirements; revocation. Food and Drug Administration, HHS. Final rule

The Food and Drug Administration (FDA) is revoking its regulation governing the exemption from Federal preemption of State and local medical device requirements for the sale and distribution of cigarettes and smokeless tobacco to children and adolescents. This action is being taken in response to the Supreme Court Decision of March 21, 2000, in which the court held that Congress has not given FDA the authority to regulate tobacco products as customarily marketed. On March 31, 2000, FDA removed its regulations restricting the sale and distribution of cigarettes and smokeless tobacco to children and adolescents. Because these regulations are not in effect, the State requirements are not preempted. Therefore, FDA is revoking its regulations exempting the State and local requirements from preemption. This rule is also adding a regulation that was inadvertently removed in a previous document.     

A simulation model of tobacco youth access policies

Empirical studies have found that policies aimed at reducing youth access to tobacco have been successful at increasing retail compliance, but their effects on actual tobacco use are mixed. This article presents a model of youth access policies that helps explain the apparently conflicting results in the extant literature, provides a framework for future empirical studies, and suggests implications for public policy. Our model highlights the interaction of components in a well-designed policy, including sufficient compliance checks, penalties, and community involvement. It also illustrates why it will be difficult to eliminate all of youth supply. Nonretail sources, such as borrowing or stealing from parents and siblings and purchasing from older peers through black markets, are an important component of youth supply and become more important as retail access is reduced. The analysis is limited to policies that affect the retail supply of cigarettes but suggests the need for other policies that affect the demand for cigarettes, such as taxes and cessation policies, in order to further reduce youth smoking rates.     

HCFA's new restrictions on the operation of hospital outpatient facilities

The Health Care Financing Administration has promulgated new regulations that substantially alter the manner in which it treats Outpatient Facilities. This Article (1) provides an overview of these new restrictions on the operation of Outpatient Facilities; (2) discusses potential unintended consequences associated with these restrictions; and (3) raises issues that providers must consider as they assess how to comply with these new restrictions.     

Declines in Crime and Teen Childbearing: Identifying Potential Explanations for Contemporaneous Trends

Objectives

The previous 25 years have witnessed remarkable upheavals in the social landscape of the United States. Two of the most notable trends have been dramatic declines in levels of crime as well as teen childbearing. Much remains unknown about the underlying conditions that might be driving these changes. More importantly, we do not know if the same distal factors that are responsible for the drop in crime rates are similarly implicated in falling rates of teen births. We examine four overarching potential explanations: fluctuations in economic opportunity, shifting population demographics, differences in state-level public policies, and changes in expectations regarding health and mortality.

Methods

We combine state and year-specific data from existing secondary sources to model trajectories of violent crime and teen fertility over a 20-year period from 1990 to 2010 using simultaneous fixed-effects regression models.

Results

We find that 4 of the 20 predictors examined—growth in the service sector of the labor market, increasing racial diversity especially among Hispanics, escalating levels of migration, and the expansion of family planning services to low-income women—offer the most convincing explanations for why rates of violent crime and teen births have been steadily decreasing over time. Moreover, we are able to account for almost a quarter of the joint declines in violent crime and teen births.

Conclusions

Our conclusions underscore the far reaching effects that aggregate level demographic conditions and policies are likely to have on important social trends that might, at first glance, seem unrelated. Furthermore, the effects of policy efforts designed to target outcomes in one area are likely to spill over into other domains.

     

Fat and the law: who should take the blame?

The incidence of obesity in both adults and children is rising at a rapid rate in most developed countries, including in Australia. Some obese people are seeking to place the blame for their condition on the fast-food industry, as demonstrated by the recent litigation in the United States brought by two obese plaintiffs against McDonald's. This litigation was unsuccessful, and on existing Australian negligence principles any similar litigation commenced here is likely to suffer the same fate. Principles of personal responsibility, autonomy and free will should prevail to deny a negligence claim. The risk of obesity and concomitant health problems from eating fast food to excess is an obvious risk which the plaintiff should not have ignored and which he or she has voluntarily assumed. It is for the Australian Government, not the courts, to regulate the behaviour of the fast-food industry. The government should take action by requiring all major fast-food chains to label their products with nutritional information, and by imposing restrictions on the advertising of food to children.     

An Evaluation of a Delaware Teen Court

The Kent County Teen Court Program (teen court) provides sanctions for juvenile delinquency from a panel of a juvenile's peers rather than from a Family Court Judge. Part of the concept behind teen peer courts is that the sanction from one's peers carries more weight than sanctions from adults. The Delaware Criminal Justice Council (CJC) awarded a grant to Delaware ‐ Teen Courts, Inc. to support the operation of the Kent County Teen Court Program. The teen court program was designed to provide participants with hands‐on education in the judicial process, to create a sanction pro‐ gram that will not create a permanent record for a juvenile, and to foster, a sense of community responsibility in the program participants. The teen court program is an adult model teen court in which all of the judicial actors are juveniles with the exception of the judge. This article reflects the results of an evaluation on the Kent County Teen Court program's first two years of operation (Garrison, 2001).     

Options for state and local governments to regulate non-cigarette tobacco products

Most tobacco control laws were written to address the scourge of smoking--particularly smoking cigarettes. As a result, these laws frequently exclude non-cigarette tobacco products, which are becoming more prevalent on the market. These regulatory gaps jeopardize public health by increasing the possibility that these products will be used--particularly by minors and young adults. This article examines gaps in regulation using five products as case studies: dissolvable tobacco products, electronic cigarettes, little cigars, snus, and water pipes. In addition, this article presents policy options that state and local governments can adopt to regulate these products more effectively, including regulations relating to price, flavors, youth access, use in public places, point-of-sale warnings, and marketing. Furthermore, this article contains extensive discussion of the recently adopted federal Family Smoking Prevention and Tobacco Control Act, which both limits and expands the power of state and local governments.