State and local agencies and federal grant recipients often have access to the best available evidence that can guide public health policy. It is therefore important for them to bring that evidence to the attention of policymakers through public health advocacy, but within the guidelines established by rules and regulations governing such activities.
Rules and regulations on the use of government and other grant funds to engage in certain advocacy activities have existed for a long time. However, many fund recipients are unclear on the scope of the relevant rules and regulations. This can lead to grantees refraining from engaging in permitted activities or inadvertently engaging in non-permitted activities. Recent changes regarding the use of Department of Health and Human Services funds contained in the Consolidated Appropriations Act of 2012 have brought this issue to the forefront and caused confusion among some grantees, officials, and organizations. In addition, state anti-lobbying laws that place restrictions on the use of state funds vary widely among jurisdictions.
To address a public health problem, public health practitioners, attorneys and/or advocates must consider what entity or agency has the authority to best address the problem. Determining the answer may be difficult because it often requires an understanding of complex legal doctrines, the ability to harmonize conflicting or obscure laws and analyze and apply relevant court opinions. It is also important for practitioners to understand that in certain areas related to public health, federal law preempts or takes precedence over state law. For example, federal law preempts state law for establishing car safety standards under Congress’s constitutional authority to regulate interstate commerce. But in other cases, state law might preempt local law. For example, some state laws give state government the exclusive authority to regulate smoking in bars or restaurants throughout that state. In other cases, authority to protect the public’s health may rest with multiple agencies, including agencies at the federal, state and local levels of government.
Once they have determined what entity or agency has responsibility for a particular public health issue, public health practitioners, attorneys and advocates must also consider the approaches or remedies available to address this problem. Before jumping to legislative solutions, they should examine existing authority for potential applicability.
Depending on the public health issue at hand, they may consider ethical factors relevant to solving the problem as well. For example, does a proposed law or action unfairly burden certain individuals or groups of individuals? Is the proposed law or action going to have an impact that disproportionally affects the public health threat to be addressed? Finally, those dealing with public health issues with legal ramifications must also remember to consider practical considerations when choosing an approach or remedy, including public acceptability, enforceability, availability of resources to implement and political feasibility.
Network attorneys are able to provide technical assistance and training on these issues as well as broader questions related to public health advocacy and lobbying. The Network can also provide training and answer questions regarding specific regulations and restrictions related to advocacy and lobbying.
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The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided does not constitute legal advice or legal representation. For legal advice, please consult specific legal counsel. For more information on the type of legal assistance the Network can provide, please see frequently asked questions.