Prof David Sweanor

Adjunct Professor

Faculty of Law

University of Ottawa

Evidence and harm reduction – what are the legal and ethical responsibilities of Public Health?

E-Cigarette Summit, Royal Society

November 13, 2014

David Sweanor, University of Ottawa

Legal and ethical responsibilities

•These are important – and related

•Ethics informs how we should act

•Law codifies it

‘Thou shalt not lie’ •Not a bad starting point for a discussion on ethics and consumer information

The Noble Lie?

• We have learned that much deceit for private gain masquerades as being in the public interest

• Those in government and other positions of trust should be held to the highest standards.

• Their lies are not ennobled by their positions; quite the contrary

• Sissela Bok, Lies for the Public Good, in Lying

The impact of vested professional interests

• Thomas Kuhn, The Structure of Scientific Revolutions

• Vested Interests are everywhere, and they shape world views.

Moral psychology

• Six fundamental ideas that commonly undergird moral systems:

• Care, fairness, liberty, loyalty, authority and sanctity

• People are fundamentally intuitive, not rational

• When you ask people moral questions they reach conclusions quickly and produce reasons later only to justify what they’ve decided

• Jonathan Haidt, The Righteous Mind

Blinded by ideology

• An example: A belief in social determinants and not biological bases for nicotine use.

• Political orientation: Anti-markets, antipathy to ‘selling addiction’. Or . . . pro-markets and liberal on drug use.

• Anti-tobacco industry

• Often . . .

• Simplistically

• Non-strategically

• Counter-productively

Responsibilities

•The Role of Consumer Information in Public Health:

The biggest breakthroughs often come from two very simple principles: • Give people enough information to make

informed decisions

• Give them the ability to act on that information

Victim Blaming

•People can only make decisions that are as good as the information provided to them.

• Robert Cirino, Don’t Blame the People,

Responsibilities of Public Health Groups

•There are consequences from not meeting an acceptable standard: • Reputational, Regulatory, Legal

Evidence: Where to set the bar?

• Should the onus change when the risk differential from the status quo is immense?

How have we dealt with past cases of market transformation?

• The role of precedent

• Food, pharmaceuticals, automobiles, etc.

• Some innovation is welcomed.

• Some is only initially opposed.

• Some is destined to be a prolonged cultural war.

Watch out!

• Unintended consequences of oversight from those concerned about unintended consequences!

• Administrative law – the evidentiary basis for getting laws vs. applying them.

• Fear of change protects the status quo.

Tort responsibilities

•Government agencies and non-governmental organisations

•They CAN be sued

•They can lose reputation even if not successfully sued

Understanding tort implications for tobacco companies

• They have learned from past experience.

• They cannot oppose reduced risk products that are an existential threat to the cigarette business.

• Anti-smoking groups have hopefully learned more than that Nietzsche was correct.

• ‘Choose your enemies carefully, for you will take on their characteristics’

Obstacles or Opportunities?

• Finding a shared goal

• Science Council: "Science is the pursuit of knowledge and understanding of the natural and social world following a systematic methodology based on evidence."

• That systematic methodology must be based on finding the truth rather than supporting a pre-existing view.

• Objectivity, rigour, humility, empathy, messaging:

• Best practices from other areas of public health.

• Learning from other issues.