Public Health Law Map - Beta 5 - Medical and Public Health Law Site

consumer protection, such as requiring the sanitary inspection of imported milk and
banning the import of contaminated milk, are constitutional, provided they also apply
to milk produced within the state. This distinction between laws affecting commerce
and laws affecting health and safety is important to medical care practitioners
because the regulation of the practice of medicine is considered a health and safety
issue and thus reserved to the states as a police power.
2. The Police Power
Police power is the right to protect the country and its population from threats to the
public health and safety. The term “police power” predates the development of
organized police forces, which did not develop until the postcolonial period. In the
colonial period, police power was used to control nuisances, such as tanneries that
fouled the air and water in towns, to prevent the sale of bad food, and to quarantine
persons who were infected with communicable diseases. Many of the colonies had
active boards of health to administer the police power. This was one of the main
governmental functions in the colonial period.
Under the Constitution, the states retained much of their police power but share the
right to regulate health and safety issues with the federal government. Examples of
the federal use of the police power are food and drug regulations, environmental
preservation laws, and workplace safety laws. The states have companion laws in
most of these areas, plus local public health enforcement such as restaurant
inspections, communicable disease control, and drinking water sanitation. In most
cases, the states share jurisdiction with the federal government and the courts will
enforce whichever is the more strict law. State and local public health laws are
exercises of the police power.
3. Federal Preemption
Given the broad sweep of federal legislation and the activities of 50 state legislatures,
it is inevitable that there will be conflicts between state and federal law. If there is a
conflict, the Constitution provides that federal law preempts the conflicting state law
unless it is an area specifically reserved to the states. These conflicts arise in two
ways: explicit or implicit preemption. Explicit preemption occurs when Congress
passes a law that explicitly reserves a given area of legislation to the federal
government. There are several important areas of explicit federal preemption in
medical care. One example is the federal law that specifies the necessary labeling for
medical devices and limits what additional requirements a state may impose without
FDA permission. When Massachusetts passed a law requiring more information on
hearing aid labels, a federal court barred enforcement of the law. Perhaps the most
controversial is the Employment Retirement Income Security Act (ERISA), which
preempts state regulation of many types of employer- provided health insurance
plans.
Federal law implicitly preempts a state’s right to regulate if the federal government
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