— From the Perspective of the Realization of the Right to Health in the Prevention and Control of Chronic Diseases

 

 

Abstract: Noncommunicable chronic diseases have become the most important public health problem in the world today, so the focus of public health services should be shifted from the traditional area of communicable diseases to the prevention and control of chronic diseases. Since bad living habits are the most direct cause of chronic diseases, the most effective measure to prevent and control chronic diseases is to promote healthy lifestyles for the individual citizen. The theories of equal health opportunity, the right to health from the perspective of human rights, and determinants of a healthy society provide justified reasons for the intervention of public power in individual health choices. In the current legal system, the intervention of public power is limited to flexible measures such as health education, which shows respect for individual autonomy. However, it is inconsistent with the needs of current public health practice. We should expand diversified intervention means to encourage individuals to make healthy choices under the guidance of the management model. The “ladder of intervention” outlines a panoramic view of the intervention measures available. However, for the selection of specific measures, it is necessary to consider the public health objectives and the invasion of individual freedom, introduce the “legal reservation principle” and “proportionality principle” as policy analysis tools, and reasonably choose intervention measures at different levels on the ladder to properly handle the tension between public power and private rights.

 

Keywords: public health service · prevention and control of chronic diseases · right to health · personal lifestyle · ladder of intervention

 

 

The focus of traditional public health services is on the control of infectious diseases which the outbreak of COVID-19 has aggravated. However, the prevention and control of non-communicable chronic diseases represented by cardiovascular and cerebrovascular diseases, cancer, diabetes and chronic respiratory diseases have become the most critical public health problem today. In 2012, 38 million people worldwide died of chronic diseases, accounting for 68 percent of all deaths. More than 40 percent of chronic disease-related deaths occurred in the labor force under the age of 70.¹ In China, the proportion of deaths caused by chronic diseases in total deaths rose from 80.9 percent in 2000 to 88.5 percent in 2019. The main ones include cardiovascular and cerebrovascular diseases, cancer, and chronic respiratory diseases which account for 80.7 percent of the total deaths.² Different from infectious diseases or other fatal diseases, chronic diseases are considered to be “silent” health problems because of their long course of disease, no direct cause of death or serious disability.

 

Research shows that smoking, heavy drinking, lack of exercise and an unhealthy diet are common risk factors for chronic diseases³, so chronic diseases are called “lifestyle” diseases. Unlike the medical fields which focus on the treatment of diseases, the core philosophy of chronic disease prevention and treatment is that prevention is better than treatment. The most effective prevention and control measures for such “lifestyle” diseases are direct changes to personal lifestyles. The Outline of the Healthy China 2030 Plan and the Medium- to Long-term Plan for the Prevention and Treatment of Chronic Diseases in China (2017-2025) (hereinafter referred to as the Medium- to Long-term Plan for the Prevention and Treatment of Chronic Diseases) both regard the formation of a healthy lifestyle as a strategy that the government should follow in the prevention and control of chronic diseases; article 69 of the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care (hereinafter referred to as the Law on the Promotion of Basic Medical and Health Care) mentions the formation of a healthy lifestyle, and Article 74, 75 and 78 mentions the formation of a healthy lifestyle from the aspects of diet, sports, and tobacco and alcohol control, which is undoubtedly great progress. However, most of the above provisions are advocacy norms, and the role of government is basically limited to flexible legal means of health education and health guidance in the formation of a healthy lifestyle for citizens. As personal lifestyle belongs to the category of individual autonomy, in principle, it is not suitable to adopt mandatory means to adjust it, but from the perspective of the effect of legal regulation, the effect of flexible means is limited. Therefore, it is necessary to further explore the intervention limits that can be exerted for the formation of a personal healthy lifestyle for the prevention and control chronic diseases. Can public power take more “radical” and diversified intervention measures to promote healthy choices? What are the reasons for intervention? How should the boundary of intervention be set? Are there measurable criteria for interventions? In order to answer the above questions, this paper will, on the basis of the justification of public power intervention, draw on the “ladder of intervention” theory to set up a basic framework for public power intervention, and determine the applicability of different types of intervention measures through the analysis of the legality of means. 

 

 

As a major threat to public health, chronic diseases are an important issue of national health strategy and law-based governance. However, unlike the legitimacy of infectious disease prevention and control, there is a problem with the legitimacy of state intervention in the prevention and control of chronic diseases. Chronic diseases are the consequence of a bad lifestyle, and the formation of a personal lifestyle essentially results from personal choice. As an individual’s choice of what to eat and drink, whether to exercise, whether to smoke, and so on is only related to his or her own health interests, it should be under individual autonomy. How can public power intervene in it? Behind this question is the idea that “I am the master of my health.” It is undeniable that citizens should be the first responsible person for their own health, but this does not mean that the state does not have to bear any obligations in promoting a health lifestyle. Therefore, whether public power should intervene in citizens’ health, in essence, lies in whether health is a “personal responsibility” or a “social responsibility.” Some scholars have pointed out that, in the aspect of health, the“self-cultivation” proposed by Confucianism emphasizes the individual’s responsibility for health. In particular, to avoid diseases related to a bad lifestyle, individuals should try to restrain their own desires, take a hard look at themselves, resist all kinds of temptations, and be self-disciplined.⁴ However, when we deeply explore the principles behind health and personal choice, we will find that the pure concept of “personal responsibility” is not a reasonable and effective solution to chronic disease prevention and control.

 

 

As early as 1974, Marc Lalonde classified the factors affecting health into four categories: Human biology, lifestyle, environment and availability of health services.⁵ This shows that it is not just personal behavior that determines a person’s health. The theory of “social determinants of a healthy society” explores the social factors that affect health for individual reasons. According to the definition of the World Health Organization, the determinants of a healthy society refer to the fact that people’s health is to a large extent affected by many factors such as individual birth circumstances, healthy growth, life and work which involve social, economic, political, cultural and environmental aspects.⁶ The theory of “social determinants of a healthy society” came into being with the change in the epidemiological research model. The original perspective of epidemiological research was based on individualism, and the occurrence of diseases was only investigated according to individual conditions and causes. However, the model of social epidemiology turns its focus to the social environment on which individuals depend. In addition to considering pathogenic factors and individual behavior factors, the social and physical environment including the interaction between pathogenic factors and personal behavior factors has been brought into the perspective of public health,⁷ thus completing the transformation from the perspective of the individual to the holistic view of the group and the whole society. This has had an impact on the scope of public health law and the government’s actions in this field.⁸

 

The social determinants of health have become the fundamental reasons affecting health, which has been confirmed by many empirical studies. The well-known 20-year Whitehall Study on the health of civil servants in the United Kingdom started in 1967 shows that the rank of civil servants in the United Kingdom is negatively correlated with the prevalence and mortality of various diseases, that is, the higher the rank, the lower the morbidity (such as the prevalence of angina pectoris, chronic bronchitis symptoms) and mortality of diseases, and vice versa. The study also shows that there are significant rank differences when it comes to risky health behavior, economic environment, work environment and social support, and these factors further affect the health of individuals.⁹ A study in the United States shows that between 1980 and 2000, the life expectancy of groups with higher socioeconomic status increased more than that of poor groups, and the poverty gradient of life expectancy expanded significantly.¹⁰ Some scholars in China have also found that the degree of freedom in workplace decision-making is positively related to the risk of chronic diseases. Those with higher degrees of freedom have a higher risk of chronic diseases.¹¹ Family income, education level and other factors are closely related to the risk of chronic diseases in the elderly.¹²

 

More importantly, various social factors also have a fundamental impact on personal lifestyle. Take smoking for example. It can lead to chronic obstructive pulmonary diseases, cardiovascular and cerebrovascular diseases, diabetes, malignant tumors and other chronic diseases.¹³ Research shows that smoking is a learned experience. Growing up in a family where one or both parents smoke, having a smoking spouse, and often interacting with smokers are all environments that promote smoking. Smokers also show a typical social model. Whether to smoke is not a random, personal decision completely independent of social influence. Those from poor social environment collectively show bad health habits like smoking. Smoking is caused by the social environment, and involves the socioeconomic factors non-conducive to quitting smoking (such as debt, pressure, and unemployment).¹⁴ Environmental factors make it easier for some groups to start smoking and make it more difficult for them to quit. 

 

If smoking is affected by the specific social stratum, living and working environment in which individuals live, then obesity is a negative effect of modern social development on human beings. Around the world, the number of overweight children under five years old increased from 32 million in 2000 to 41 million in 2014. The prevalence of obesity among adults doubled from 1980 to 2014. For men, this figure increased from 5 percent to 11 percent, and for women, from 8 percent to 15 percent. It is estimated that overweight and obesity cause 3.4 million deaths every year.¹⁵ By 2020, more than half of China’s adults were obese or overweight, and the overweight and obesity rates of minors over the age of 6 and children under the age of 6 reached 19 percent and 10.4 percent, respectively.¹⁶ Obesity has become one of the biggest challenges facing global public health. Obesity increases the risk of chronic diseases such as metabolic syndrome, diabetes, hypertension, high cholesterol, cardiovascular disease, asthma and some types of cancer.¹⁷ Is obesity really caused by people eating too much or consuming too little? In fact, it is not true. In addition to individual genes, health awareness and other changes, another more important reason for the continuously growing number of obese and overweight people is that the world today has created various conditions for obesity and overweight. As TV, computers and mobile phones have become a part of our lives, people live a more sedentary life than people did in the past. The extensive use of cars and elevators has reduced the opportunities for energy consumption. All kinds of unhealthy snacks and fast food are cheaper and easier to get, and we dine out more often. These forces that permeate all aspects of our lives are making people fatter.¹⁸

 

The theory of social determinants of health shows that individual choice will be affected by a series of factors other than individual will, such as social class, education level, early family education, and working environment. Besides, many policies of the government will have an invisible impact on individual choices, such as improving the standards of food processing, setting up sidewalks, and regulating the types and nutritional ingredients of food provided by fast-food restaurants. To a large extent, this should be the responsibility of the whole society and the country. In this regard, it is too simple to view chronic diseases as the result of personal behavior choices, which is not conducive to solving the problem.

 

 

There is no doubt about the significance of health for everyone. Regardless of our age, gender, socio-economic status or ethnic background, we all regard health as our most basic and important asset.¹⁹ However, in the view of Norman Daniels, an American philosopher, this does not constitute a legitimate reason for a country to prioritize health among its numerous needs.²⁰ In his book Just Health, Daniels put forward the famous “equal health opportunity” theory explaining the particularity of health relative to other needs. Daniels believes that in society, everyone enjoys a “normal opportunity range,” within which rational people can plan their life. Disease and disability constitute a functional deprivation of the normal range of opportunities that individuals can obtain according to their ability and intelligence under normal circumstances.²¹ That is to say, health has become an important factor affecting whether individuals can effectively access opportunities, so health has a special importance in morality. Health care needs which focus on maintaining the normal function of health organizations are also special relative to other social needs.²² Based on social justice, as the state has the obligation to ensure the fair distribution of opportunities, it also has the obligation to meet health care needs. Following this logic, being protected from chronic diseases is the citizens’ basic health needs for maintaining their equal opportunities. Even if the causes are closely related to personal life, occupation and other factors, they should enjoy the right to hold the state accountable for safeguarding health and restoring opportunities. By taking the initiative to protect such obligations, the state can also actively intervene in the lifestyles, and maximize the health benefits of the whole society with limited health resources. Only when individuals have a fair opportunity for a healthy life and are supported by public power in making healthy choices is it legitimate for individuals to assume full responsibility for their own behavior. The state plays a key role in promoting the health and well-being of its citizens and providing special protection to vulnerable groups.²³

 

The theory of “equal health opportunity” provides an ethical basis for the country to actively promote the health of the population. On this basis, Daniels believes the priority of the country’s active protection obligation is to fairly allocate medical care resources. In his view, the realization of a just health care system only needs to be discussed within the scope of health care without paying attention to the overall social justice, which is why he uses the pun “just.” The enjoyment of individual health is more related to medical care, but in so doing, we fail to notice the social feature of health. In the book Just Health: Meeting Health Needs Fairly which was later published as the “sequel” of Just Health, Daniels pointed out this problem. He realized that previous studies focused only on medical treatment and traditional public health rather than the broader determinants of health, so he failed to provide adequate ethical advice on how to reduce unjust health inequalities and how to identify them. Therefore, Daniels further proposed that if health has special moral importance because of its impact on opportunities, then other determinants of health have the same special importance as health care.²⁴ In short, in ensuring the fairness of health care, in addition to considering the fairness of the health care system, we also need to pay attention to the social justice of other factors that have an important impact on health. Social justice and health care justice are closely linked. If diseases and disabilities caused by biological reasons are regarded as a result of bad luck, then the state has the obligation to reduce such misfortune by meeting people’s health care needs,²⁵ as diseases and disabilities compromise the “normal opportunity range”; the health inequality caused by other socially controllable factors should be regarded as an unacceptable injustice²⁶. For such injustice, it is more justified for citizens to ask the state to assume its due responsibilities.

 

Daniels extended Rawls’ theory of justice to the field of medical and health care. By explaining the logical relationship between health, health care and the range of opportunity, he demonstrated the responsibility of the state in the fair distribution of medical and health care resources. Noting that social factors have an important impact on health, it then expands the obligation of the state to fairly distribute social products that have an important impact on health. The responsibility of the state in health has gone far beyond the scope of health care which traditionally includes medical services and public health services.

 

 

 

The view that the right to health is a human right has been widely accepted. Since the Constitution of the World Health Organization in 1946 first regarded the right to health as a human right, the human rights attribute of the right to health has been further consolidated through the provisions of the Universal Declaration of Human Rights in 1948, the International Covenant on Economic, Social and Cultural Rights in 1966, the Convention on the Elimination of All Forms of Discrimination against Women in 1979 and other international conventions on the right to health.²⁷ In response to the protection of the right to health in those international laws, countries have recognized the right to health in their constitutions. The Office of the United Nations High Commissioner for Human Rights issued the document Fact Sheet No.31 in 2008, pointing out that the right to health or the right to health care has been stipulated in 115 constitutions.²⁸ Although China’s Constitution does not explicitly use the term “right to health,” it is generally believed that Article 21, Clause 1 of Article 26, Clause 3 of Article 33, Clause 3 of Article 36, and Clause 1 of Article 45 of the Constitution can serve as the normative basis for the right to health in the Constitution.²⁹

 

Corresponding to the right to health as a human right is the obligation undertaken by the state. There is a close relationship between the specific content of the state’s obligations and the right attribute of the right to health. The right to health is usually regarded as a kind of social right which is different from the traditional right to freedom that “regards the state power as the greatest threat to human rights violations.”³⁰ Social rights emphasize the positive action and obligation of the state, so they are regarded as a positive right.³¹ However, the division between negative rights and positive rights is relative. In fact, modern rights have the dual characteristics of negative rights and positive rights.³² Therefore, the right to health is mainly embodied as a positive right, but also has a negative right attribute. In its General Comments No.14 on Article 12 of the International Covenant on Economic, Social and Cultural Rights issued in 2000 by the Committee on Economic, Social and Cultural Rights, the obligations of the state in relation to the right to health were divided into the obligations of respect, protection and realization.³³ The obligation of respect and the obligation of protection emphasize that the state should protect the right to health from public power and third-party intervention, while the obligation of realization emphasizes that the state should take positive measures to promote the realization of the right to health. Human rights have been closely linked with individual citizens since their inception.³⁴ As an individual human right, the core element of the right to health is the availability of medical services.³⁵ Therefore, how to distribute health resources fairly among social members should be the main obligation of the state in promoting the realization of this right.

 

 

The establishment of the right to health as a human right was in the golden age of medicine. The unlimited possibilities of medical development led doctors to believe a state of “complete” health was possible. The protection of individual medical rights was considered as a necessary condition for achieving the “highest attainable health standard.”³⁶ On the one hand, the process of globalization has aggravated the health inequality between developed countries and developing countries, as well as among nationals within a country; on the other hand, today’s threats to health are not mainly disease risks medical technology, but more from large-scale environmental violations, water pollution, biological security risks and other situations. This series of health dilemmas can not be solved only by the protection of medical rights. Besides, the theory of social determinants of health shows that social, economic, cultural and other factors are affecting public health in ways that cannot be explained by medical health models. The most effective way to deal with these basic determinants is not through personal medical or behavioral intervention, but through changing the national and international public health and social welfare systems.³⁷ Therefore, taking the right to health only as a human right advocated by individuals is not conducive to the realization of the right to health, nor can it meet the new needs of contemporary health development. In this regard, some scholars put forward the concept of a collective right to public health.³⁸

 

The proposition of the theory of the right to public health means that the obligation of the state extends from ensuring citizens’ fair access to medical resources to using public health measures for promoting health and preventing disease. In this way, it solves the public health problems faced by the current health field and resolves the dilemma of the individual right to health. Within the framework of the right to public health, the state certainly has the obligation to take various measures to respond actively to public health problems, including chronic diseases. However, the right to public health is not a negation of the right to individual health, but a supplement to its application. In the context of globalization, it is also a prerequisite for the realization of the right to individual health.³⁹ Some words used by the Committee on Economic, Social and Cultural Rights in its General Comments No.14 also reflect the meaning of the right to public health. As stated in Article 37, “the State has the obligation to take positive measures to assist individuals and communities in enjoying the right to health”; article 59 stipulates that “any individual or group whose right to health has been violated has the right to judicial or other effective remedies at the national and international levels.” In particular, it is mentioned in the note at the end of the comments: “No matter whether the group can seek relief as a different right holder from the individual, the contracting parties are bound by Article 12 of the Convention at the collective and individual levels. Collective rights are essential in the field of health; modern public health policies rely to a large extent on the prevention and promotion activities for the targeted groups.”⁴⁰

 

To sum up, the occurrence of chronic diseases is the responsibility of individuals and the responsibility of the whole society. The state has a unshirkable responsibility for the health of the population, and it needs to play a positive role in making people healthier. In fact, only the state has the ability to improve people’s health. Whether it is the change of personal lifestyle or the improvement of the overall social environment, it is impossible to achieve it through individual efforts alone.

 

 

 

Since we acknowledge that the state has the obligation to assume the responsibility for chronic disease prevention and control and have an impact on the health of individuals, the ensuing question is to what extent the state can influence the choice of individuals or intervene in their private life and what measures the state should take to achieve the goal of chronic disease prevention and control. The individual health choice is the individual’s exercise of the right to health and control over his or her health interests. The intervention of public power in individual health choices is reflected in the limitation of the state on citizens’ right to health. Therefore, the limitation of public power on individual health choices is essentially the scope and extent of the state’s role in citizens’ right to health. The answer to this question is related to the protection scope of citizens’ right to health and subject to the obligations of the state in the protection process.

 

Due to the broad scope of health, it is difficult to make a definite and undisputed definition of the right to health. The dependence of health on society also means that there is no universal concept of the right to health. The connotation of the right to health must vary between countries and the times. In this regard, it is more feasible and realistic to seek the relevant basis from the positive law.⁴¹ As mentioned above, although there is no such a clear term as the “right to health” in our current Constitution, it can be inferred from the provisions of Article 21, Clause 1 of Article 26, Clause 3 of Article 33, Clause 3 of Article 36, and Clause 1 of Article 45 that the “right to health” is actually one of the basic rights recognized by our Constitution. The characteristics of basic rights show that the right to health first has the meaning of freedom and confrontation against public power,⁴² and citizens have the freedom to maintain a healthy state and to be free from public power and third-party interference. The right to health as a social right means that citizens have the right to obtain various resources, goods and services conducive to health from the state. The declarative nature of constitutional norms makes it impossible for us to find the basis for the specific content of this right directly from the Constitution, so we need to rely on the specific norms of departmental laws. The Law on the Promotion of Basic Medical and Health Care which centers on the right to health clearly stipulates the right to health of citizens in the form of public law for the first time, which is also a concrete implementation of the basic right to health in the Constitution. In the Clause 1 of Article 4, the law states that the state and society respect and protect citizens’ right to health, and respect for the right to health is the embodiment of the negative right of the right to health. Besides, Clause 3 of Article 4, Clause 1 of Article 5, Article 21, and Clause 2 of Article 82 of the Act stipulate that citizens have the right to health education, basic medical and health services, vaccination rights, and the right to participate in basic medical insurance. This is the expression of the positive right to health, as it further enriches the content of the right to health. However, whether as a negative right or a positive right, the freedom enjoyed by the right subject is relative and will inevitably be subject to certain restrictions. Meanwhile, the right to health also has the dual attributes of individuality and sociality. The close relationship between citizens’ right to health and specific subjects shows that the right to health is related to individual rights in the first place, and the most direct interest subject of health is the individual. However, the diversity of health-influencing factors and the importance of the overall health of the people in the country also show that the right to health is not only related to personal interests, and individual health is not just an individual matter. No matter from the perspective of citizens’ interests or a state, the state has the obligation to protect and promote national health. Therefore, individual health choice is no longer only related to individual freedom, but also carries the value of realizing the public health goal to a certain extent. The state must certainly intervene and restrict the individual right to health to a certain extent. The scope of intervention depends on the determination of state obligations.

 

Just as a coin has both the front side and the flip side, the law endows citizens with the right to health, which inevitably means that the country needs to bear certain obligations. Although the “obligation of the state to realize the right to health” in the first draft was deleted in the final Law on the Promotion of Basic Medical and Health Care, and only the obligation to respect and protect citizens’ right to health was retained, the specific content of the whole law shows that many provisions reflect the obligation of the state to realize the right to health, such as Clause 2 of Article 4, Article 9, Article 11, Article 16, Article 20 and Article 22 which are manifestations of the state’s obligation to promote the right to health actively. The traditional fulfillment of national obligation focuses on providing citizens with higher standards of medical care resources as fairly as possible. However, under the background of the concept of health for all, the fulfillment of national obligation extends to the field of health promotion. Health promotion is an activity that takes prevention as the core concept and strengthening people’s ability to manage health as the purpose, eliminates the adverse effects of peripheral factors such as policy, economy and environment on individual health choices through state intervention, and “enables or empowers” individuals, thereby realizing the overall health of the population. In essence, health promotion is an activity to “change the health-related lifestyle and living conditions in a planned way” through various individual, community, social environment and other multi-level changes.⁴³ Health promotion is a response to new global public health problems, including the spread of non-communicable chronic diseases.⁴⁴ It is the embodiment of the concept of health for all. The obligation of the state in health promotion shows that public power can actively intervene in the health choices that affect the healthy lifestyle of individuals. 

 

Whether from the perspective of the Constitution or from the perspective of Law on the Promotion of Basic Medical and Health Care, the exercise of the individual’s right to the health needs to be subject to certain restrictions, and accordingly, public power has the right to intervene appropriately in individual health choices.

 

 

The specific scope and limit of public power intervention in individual health choices should be interpreted in combination with the legal norms in the current legal system. As the basic law in the field of health, the Law on the Promotion of Basic Medical and Health Care for the first time raised the formation of citizens’ healthy lifestyle to the level of legal norms, and stipulated that the state has a positive obligation to promote citizens’ health choices. The relevant contents can be seen in the Clause 1 of Article 69, Article 74, Article 75 and Article 78 of the Law.

 

Article 69 is a general provision on citizens’ health responsibility. Clause 1 of this article clarifies that citizens are the first responsible person for their own health, thus establishing the obligation of citizens to actively improve their health literacy and strengthen health management, and taking the formation of a healthy lifestyle as the specific goal of citizens’ health promotion. The provision that “citizens are the first responsible person for their own health” here does not contradict the active intervention obligation of the state in the health field emphasized in this article. Citizen’s personal health and population health are like part and whole. The personal behavior of citizens and national health promotion activities are internal and external factors that affect the health of citizens. The health goal at the population level can only be achieved when each individual is healthy, and the realization of individual health ultimately depends on individual behavior. Only when citizens have the awareness of living a healthy life can they make healthy choices voluntarily. The role of public power is to help citizens make healthy choices through the change of external factors. Therefore, this provision establishes a basic model for public power to intervene in individual health choices, that is, in principle, public power can only assist individuals in making healthy choices. This also sets the tone for the intervention of public power, i.e., to highlight individual responsibility and increase individual initiative. In this sense, citizens must be the first responsible person for their own health. The active participation of individuals is crucial to both personal and national health.

 

Article 74 is about diet. In relation to people’s diet, this article uses three expressions: “Implementing a nutrition intervention plan,” “carrying out nutrition improvement action” and “advocating healthy eating habits.” In 2010, the former Ministry of Health issued the Measures for the Administration of Nutrition Improvement. It can be seen from its content that the purpose of nutrition improvement activities is to solve the problem of unbalanced nutrition among residents, and the target audience is undernourished or overnourished people. Nutrition intervention, nutrition monitoring, nutrition education and nutrition guidance are together central to realizing the nutrition improvement plan. What the relevant departments should do in the nutrition intervention is to provide food resources, financial support and service support. This activity is a right that can be enjoyed by individuals, but cannot be forced upon them. Different from the first two activities, advocating healthy eating habits (low-oil, lowsalt, low-sugar diet) is for all people. However, the provisions of this article on this activity are advocacy norms and have no substantive content. Therefore, although there are some differences between the target objects and specific measures of the above three activities, on the whole, what laws and policies resort to are all flexible interventions such as health education and guidance.

 

Article 75 is about national fitness. It emphasizes that the state should strengthen the construction of public sports facilities as a material guarantee for fitness activities, and to a certain extent, it is conducive to motivating citizens to exercise. Meanwhile, the state should organize and support nationwide fitness activities, provide fitness service guidance and popularize fitness knowledge to promote citizens’ active exercise. These measures are the rights and interests that citizens can enjoy, but they cannot have a binding force on citizens’ fitness will.

 

Article 78 is about the provisions on tobacco products and alcohol products. In terms of tobacco control, this article stipulates three measures, namely, “the obligation of warning signs on tobacco product packaging,” “controlling smoking in public places, strengthening supervision and law enforcement,” and “prohibiting the sale of tobacco products to minors.” The “obligation of putting a warning sign on tobacco product packaging” is a requirement for tobacco producers, which aims to provide consumers with more information while not affecting their freedom of smoking. The expression of “smoking control in public places” is very vague, which may have a lot to do with the fact that China has not reached a consensus on it at present. “Smoking control” is not tantamount to a “smoking ban.” From this provision, we can neither deduce the extent of smoking control nor know its specific measures. It is neither a mandatory norm nor a general arbitrary norm. With regard to the protection of minors, this article stipulates that tobacco and alcohol products shall not be sold to minors. It is a common legal practice for all countries to give special protection to vulnerable groups like minors. Therefore, legal regulation in terms of tobacco and alcohol control is relatively weak.

 

To sum up, the current legal norms are very comprehensive, with the provisions on diet, exercise, tobacco and alcohol related to people’s healthy lifestyles. In the choice of intervention measures, the role of flexible measures such as health education and health guidance is highlighted, and the degree of intervention in citizens’ personal life is low; in terms of the strictness of norms, except for the mandatory provisions on the purchase of tobacco and alcohol for minors, other provisions are basically advocacy norms; in terms of normative content, it focuses more on showing that the state has the obligation to provide various materials and service for the formation of citizens’ healthy life, and the regulation of individual behavior is obviously insufficient. The moderate tone of the legal norms on the regulation of individual behavior as a whole shows that the legislators are cautious in the public power intervention of individual health choices. In the field of “banning smoking in public places” where taking coercive measures is most justified, the legislators also have an ambiguous attitude, which can be seen in their respect for individual autonomy.

 

 

The provisions of the current legal norm system on the scope and limit of state intervention in individual health choices deeply reflect that legislators have adopted a very conservative liberal model in dealing with the relationship between public power and individual freedom. It is generally believed that the relationship between public power and individual freedom mainly includes liberalism, paternalism, libertarian paternalism and management model.

 

If the different relationships between public power and individual freedom are presented on a horizontal coordinate axis, then paternalism would be at the left end, and liberalism, at the right end. The so-called paternalism refers to the idea that the government or individuals do not consider the will of others, and intervene in the behavior of others in the belief that others are better or free from harm.⁴⁵ According to the concept of paternalism, in terms of personal health choices, the government can ban smoking in public places and the sale of high-sugar and high-calorie food. Paternalism does not exclude the government from using coercive means to interfere with personal choices, and what it cannot accept is the government’s inaction. According to the classical liberalism theory, the government should maintain the minimum intervention in the behavior of citizens, and only when a citizen’s behavior harms the interests of the third party can the government intervene. In the view of liberals, as long as individual choices do not harm others, the government should maintain its negative state of inaction.⁴⁶ Liberalism and paternalism deny each other. Liberalism advocates freedom of choice and opposes any form of behavioral intervention beyond the Harm Principle/Non-interference Principle, while paternalism condemns liberalism, holding that freedom of choice without restraint is unwise.⁴⁷ Therefore, Cass R. Sunstein and Richard H. Thaler proposed a third path — libertarian paternalism, trying to guide people’s choices toward the direction of promoting social welfare without hindering people’s freedom of choice. In other words, the government guides people to make choices in the desirable direction of public health without resorting to forceful measures or eliminating choices.⁴⁸ The core idea of libertarian paternalism is to provide people with more options for choice,with the ultimate choice up to the actor. The nudge strategy in public health is based on the practice of libertarian paternalism theory. It promotes the change of people’s behavior through default options, information reminders and other means, but it does not prohibit any options, nor take measures to significantly change people’s economic motivations.⁴⁹

 

For decision-makers, paternalism is too tough, and liberalism is too loose, so is libertarian paternalism the most appropriate choice? Libertarian paternalism has taken a step further than liberalism’s intervention in individuals, but the intervention is only limited to a “slight nudge.” If the measures taken cause substantial pressure or burden on individual choices, it will constitute a transgression. According to libertarian paternalists, decision-makers should not discourage people from buying a piece of cream cake by taxing it. Therefore, the intervention approaches that libertarian paternalists can provide are still very limited. In practice, another solution, the management model, is proposed. Under this model, the state is regarded as the steward of individuals and all citizens, so it needs to play a more active role in promoting national health. It neither absolutely excludes the use of coercive measures, nor applies them as universal measures. While taking into account individual wishes, it seeks to achieve policy objectives with minimum interference.⁵⁰ This model provides an extremely wide range of options for state intervention. It can be applied to tax means or information disclosure rules with the aim of balancing the effectiveness and proportionality of policies.

 

 

To a great extent, which intervention model should be adopted by legislators depends on the current public health practice. From liberalism to libertarian paternalism, to the management model and paternalism, the infringement of public power upon personal freedom has been increasing, which also means that the relationship between public power and private power is becoming increasingly tense. To achieve the public health goals, we need a moderate strategy rather than a radical one. As far as the situation in China is concerned, as mentioned above, the rising incidence rate and mortality rate show that chronic diseases have become the biggest killer, and the prevention and control of chronic diseases have become an urgent task. The extent to which health education-based interventions stipulated in the legal system can promote people’s healthy life needs to be examined. It is undeniable that health education plays a positive role in improving citizens’ health awareness and promoting their healthy life, but the impact of health education on people’s behavior is very limited, and its results can be seen only after long-term promotion. In the face of the urgent public health need to change people’s lifestyles, the existing moderate public health strategies obviously do not suffice. More mechanisms are needed. Does this mean that we should directly take the paternalist practice? The aggressive paternalist approach is conducive to the realization of public health goals, but it can easily trigger a backlash, as it simply deduces the legitimacy of behavior from the results. The biggest problem of paternalism is that the government makes choices on behalf of adults. A normal adult has the ability to make judgments about his or her own behavior, and forcing them to live a healthy life without considering their will is ethically illegitimate. When policymakers have better alternatives, paternalism is the last option. In contrast, the management model better balances the relationship between public power and private power. On the premise of maintaining the boundaries of public and private law, it ensures that the government has enough space to intervene in personal choices, and that it does not cause an excessive burden on personal interests.

 

The “ladder of intervention” theory⁵¹ put forward by the Nuffield Council on Bioethics on the basis of the management model outlines all interventions that public power can choose for individuals in the health field. The “ladder of intervention” divides the policies and measures that the government may take into different levels according to the intrusion of different measures on individual autonomy. They can be summarized into the following eight types (see Figure 1): First, eliminating choice. In other words, individuals have no freedom of choice at all. For example, under specific circumstances, the government makes a mandatory intervention in individuals for the overall interests of society. Second, restricting choice. The choices provided to people by society or the market are limited through specific policies or legal means, so as to enable people to make healthier choices. For example, artificial trans-fatty acids in food or the sale of large-capacity carbonated drinks can be prohibited. Third, guiding choice through disincentives. That is, people’s choices are suppressed through disincentives, such as increasing cigarette taxes to reduce people’s purchasing of cigarettes, or limiting the number of parking spaces to reduce the frequency of car use. Fourth, guiding choices through incentives. Contrary to the previous measure, this one incentivizes people to make the choices that the government hopes for. For example, tax incentives are provided for people to buy bicycles to encourage them to choose bicycles more as a means of travel. Fifth, guiding choices through changing the default policy. In many cases, people’s choices are prone to be influenced by existing information. For example, people are more likely to choose a set meal in a restaurant. If the content of the package is changed, it will indirectly affect people’s choices. Sixth, providing opportunities for people to choose. If the school provides free fruit, it will increase the possibility of students eating fruit and reduce the intake of junk food. Seventh, providing information. More healthy information can be provided for people through publicity and education, so as to affect their behavior, like promoting the standard of a healthy diet. Eighth, doing nothing or simply monitoring the current situation.⁵²

 

There is a clear hierarchy between these eight measures, from serious intervention in personal freedom to “doing nothing.” The higher the ladder, the more serious the intervention in personal freedom. As elimination of choice is an extreme intervention in personal freedom, public power can only be used with extremely legitimate reasons, and “doing nothing” at the bottom of the ladder obviously does not conform to the current public health practice and the concept of service-oriented government, so it should not be used as a reasonable measure in the prevention and control of chronic diseases. Therefore, under the management model, the boundary of public power intervention should, in principle, take “restricting choice” as the maximum intervention, and “providing information” as the minimum intervention. There are a variety of intervention measures with different means and strengths, while the “eliminating choice” can be triggered only as an exception when it meets the statutory reasons.

 

As the orientation of the Law on the Promotion of Basic Medical and Health Care is basic and comprehensive, many norms of this law are general and recapitulative.⁵³ This also means that the implementation of its specific content needs to be continuously enriched by subsequent separate laws or legal interpretations. Prior to the promulgation of this law, the Outline of the Healthy China 2030 Plan and the Medium- to Long-term Plan for the Prevention and Treatment of Chronic Diseases played an important guiding role in health promotion, and they put forward some more diversified and forceful measures than the Law on the Promotion of Basic Medical and Health Care in promoting a healthy lifestyle. For example, in terms of a healthy diet, the Medium- to Long-term Plan for the Prevention and Treatment of Chronic Diseases points out that nutrition labels can be implemented to guide enterprises to produce and sell nutritious and healthy food. In terms of tobacco control, the Medium- to Longterm Plan for the Prevention and Treatment of Chronic Diseases proposed to promote the promulgation of national regulations on smoking control in public places, speed up the process of tobacco control legislation, and meanwhile, study and improve the tax policy on tobacco and alcohol. The Outline of the Healthy China 2030 Plan states that efforts should be made to increase smoking control, improve the effectiveness of smoking control by means of price, tax, law, etc., promote a smoking ban in public places, and gradually realize comprehensive smoking ban in indoor public places. The above measures are consistent with those in the “ladder of intervention,” so the measures in the above-mentioned policy documents can be upgraded to legal means under the guidance of the “ladder of intervention” theory in the future special or separate legal formulation.

 

 

The “ladder of intervention” theory comprehensively summarizes the measures that the government can take to promote individual health choices. But a more important question is: What is the legal basis for decision-makers to choose a certain part of the ladder? With the state’s greater intervention in individual freedom, the legality of intervention has to be justified. We try to make a further typological analysis of the ladder of intervention, and then abstract the guidelines that different types of interventions should follow, so as to provide a legal basis for the country to make a certain intervention. In fact, this is also a restriction on state intervention. Citizens are empowered by the state, so the state can take positive measures to protect and promote their right to health. However, given the natural expansion of public power, it is necessary to restrict power to achieve the goal of the system.

 

According to the degree of intervention, the interventions in the “ladder of intervention” can be further divided into mandatory, comprehensive, and flexible interventions. “Eliminating choice” is a mandatory measure, the most serious intervention for individuals. “Restricting choice,” “guiding choice through disincentives,” “guiding choice through incentives” and “guiding choice through changing default policies” can be categorized as comprehensive measures. The characteristic of such measures is that they do not directly interfere with individual behavior, but indirectly affect it by changing peripheral factors. However, these measures usually involve the interests of enterprises and other social organizations, and may have a direct impact on these subjects. “Providing opportunities for people to choose” and “providing information” can be classified as flexible interventions. These measures hardly infringe upon individual freedom.

 

 

Mandatory intervention measures are highly targeted and can easily achieve the set goals. However, because they are a great restriction on personal freedom, and public power and private power are in a state of extreme tension, its application must be fully justified. Clause 2 of Article 69 of the Law on the Promotion of Basic Medical and Health Care restricts the exercise of citizens’ right to health in stipulating that citizens should respect others’ health rights and interests when exercising their right to health, and should not harm others’ health and social public interests. Article 51 of the Constitution also provides a constitutional normative basis for public power to take coercive intervention measures. This article stipulates that when citizens exercise their freedoms and rights, they shall not hurt the interests of the state, society or the collective, or the lawful freedoms and rights of other citizens. Based on the fact that this article is set after the enumeration of citizens’ basic rights and before the provision of basic obligations, it can be interpreted as a restrictive norm for all basic rights,⁵⁴ Of course, it can also apply to the restriction of citizens’ right to health. These two norms together show that when citizens make healthy choices, only when they damage the public interest and the interests of the third party can the state forcefully intervene in their freedom of choice. When applying the two restrictive norms, two points should be noted: First, the “damage” here should be limited to the direct impact caused by the act. Because individual behaviors have “externalities”, if they are not explained and limited, it means that almost all behaviors will have some adverse effects on others or society in the near or distant future. Second, the “public interest” should be properly interpreted. Due to the fuzziness and universality of “public interest”, any improper expansion will cause undue damage to citizens’ interests. Therefore, the principle of the legal reservation should be observed when restricting the right to health. In other words, only when the law has clear authorization can compulsory intervention be made on the grounds of the right to health.⁵⁵ Public power can apply mandatory intervention measures in the prevention and control of chronic diseases. The most typical situation is the banning of smoking. Smoking will damage the health of smokers themselves, but more importantly, it also harms people exposed to “second-hand smoke.” There is evidence that exposure to second-hand smoke can lead to asthma, lung cancer, coronary heart disease, etc. in children, and even a short time exposure to second-hand smoke can also cause harm to human health.⁵⁶ Therefore, smoking in public places will inevitably harm the interests of a third parties. In this case, despite being compulsory interventions affecting on personal freedom, the measures to prohibit people from smoking in public places have a reasonable basis.

 

If it goes beyond this scope, the compulsory intervention of public power on individuals will lose legitimacy. Since the individual’s choices in diet and exercise do not harm the interests of a third party, no mandatory measures shall be taken to adjust their behavior. The most direct victim of inappropriate drinking behavior is the drinker himself. Therefore, it is not proper to prohibit drinking. The best negative example here is Decree 159 issued by the Ministry of Health, Labor and Welfare of Japan in 2009. This decree is the “standard for implementing special health examination and special public health guidance”, also known as the “metabo law”, and is a measure taken by the Japanese government to respond to the growing number of middle-aged obese people. According to its provisions, all citizens aged between 40 and 74 must measure their waistline every year. If people’s waistlines exceed the prescribed standards, they must go to counseling, and their employers pay a fine for this. This decree has aroused public discontent. Many netizens accused Japan of “fascism” and believed that the government publicly supported discrimination against people, and accused the government of being a “nanny government.”⁵⁷

 

 

Unlike coercive intervention measures, comprehensive measures do not directly restrict individual behavior. Instead, comprehensive measures exert indirect influences on individual behavior by regulating the behavior of enterprises and other market entities. As comprehensive intervention measures are not directly concerned with individual freedom, and affect individual choices in a more covert way, it is easy to overlook the examination of public power’s invasion of individual freedom in practice. However, in terms of intervention effects, the impact of such measures on individual choices far exceeds the force that flexible interventions can exert, and usually, individual choices are limited as a result. For example, taxation is often used in government interventions in market behavior, and there is evidence that imposing excise taxes (also known as fat taxes) on high-calorie foods and sugar-sweetened beverages can effectively reduce the amount of such foods and beverages that people buy.⁵⁸ Through comprehensive measures, public power can achieve the dual goals of direct regulation of market entities such as enterprises, and indirect intervention in the behavior of individuals. 

 

Taking into account the proposal of the World Health Organization,⁵⁹ and the practical experience of countries in promoting healthy lifestyles,⁶⁰ the comprehensive intervention measures government can use include taxation and regulatory approaches. Tax instruments include giving tax incentives (positive) and imposing excise taxes (inhibitive). The targets subject to regulation are producers and sellers of food, tobacco products, alcohol products, etc., which have an important impact on personal lifestyles. The specific measures of regulation can be subdivided into restrictions on raw materials, additives, production and processing standards, product packaging, labeling, marketing methods, the content and form of commercial advertisements, sales targets, etc. These measures bring together administrative and economic instruments, making the evaluation of comprehensive intervention measures more complex as administrative management behavior, economic regulation and regulatory behavior coexist. However, through the complex and diverse phenomena, the shared features behind this relationship can still be found. Be it economic regulation or administrative measures, the subjects of legal link is still composed of the government or government-authorized public authority and private subjects such as enterprises and individuals.⁶¹ The ultimate goal of the implementation of such measures is to protect public health interests. The structure of the legal link is a “power-right” model which is essentially based on whether the actions of public power can achieve public health interests while protecting the free will of private subjects, i.e., achieving the result of the game of interests through the trade-off between measures and goals. In this regard, the principle of proportionality, which aims at resolving the “relationship between ends and means” and is oriented to the realization of “control” and “weighing of interests,” can precisely provide normative guidance for the application of comprehensive intervention measures.⁶²

 

The principle of proportionality is generally considered to consist of three sub-principles: The principle of appropriateness, the principle of necessity, and the principle of equilibrium.⁶³ Specifically, the application of the proportionality principle to evaluate comprehensive intervention measures should be carried out at the following levels. 

 

First, the principle of appropriateness. The principle of appropriateness requires that the measures taken must be conducive to the achievement of the purpose. The application of this principle requires two aspects. First, before determining which measures can be used, it is necessary to clarify the purpose of the act to be achieved, and the purpose needs to be specific, as macroscopic goals will make the application of the principle meaningless. For example, in the sale of high-sugar and high-calorie foods, the government may consider measures such as imposing excise tax, banning the sale of high-calorie foods, limiting the portion size of high-sugar beverages, and increasing the disclosure obligations of producers in terms of product labeling. At this time, should the purpose of the program be to promote healthy lifestyles for individuals, or suppress obesity, or reduce the amount of high-sugar and high-calorie foods purchased by consumers? The purpose of the program is to provide a reference for the screening of subsequent measures, so how to ensure the proper screening of subsequent measures should be our standard. If the purpose is too general and ambitious, it means that the number of means to achieve the purpose will be extremely large. Besides, the review of “whether the approaches will help to achieve the purpose” is very lax in practice, which will make it difficult to determine subsequent specific means. In this sense, the meaning of “appropriateness” review is lost. Given that “personal healthy lifestyles” include various factors such as people’s food intake, exercise intensity, and consumption of tobacco and alcohol products, we hereby conclude it is too broad to limit the purpose of this. Similarly, obesity suppression is one dimension of living a healthy life, but this goal can be achieved both in terms of people’s diet and physical activity, so it is not appropriate to make it a specific goal as well. In contrast, it is more appropriate to define the reduction of the amount of high-sugar and high-calorie food people buy as a specific purpose in this domain. Second, it is important to determine whether the means contribute to the achievement of the purpose. The principle of appropriateness is a review of the relevance of the means to the purpose. It is a “qualitative” review, not taking into account the “quantitative.” It does not care about the extent to which the means can contribute to the realization of the purpose, and whether the means can contribute to the purpose directly or indirectly. As long as the means contribute to the achievement of the purpose, the requirements of the appropriateness principle are met. This is a factual judgment indeed, but the conclusion relies heavily on people’s rules of thumb. By adopting the principle of appropriateness, those means that do not contribute to the achievement of specific purposes can be excluded, narrowing the scope of the necessity review. 

 

Second, the principle of necessity. After the review of the principle of appropriateness, it is necessary to select the means that least infringes on the interests of the right holder from the multiple means that can promote the achievement of the purpose. This also indicates that there must be more than one means because if a certain purpose can only be achieved by one means, there is no room for the principle of necessity. With a focus on the protection of the interests of the right holder, the principle of necessity falls into the category of consequence review.⁶⁴ However, in evaluating which means has the least implications for the interests of the right holder, it is necessary to consider the means to minimize the damage and the actual effects of the means on the achievement of the purpose. For example, in order to achieve the goal of curbing obesity, the above-mentioned measures, such as levying excise tax, limiting the sugar content in food and banning the sale of high-sugar and high-calorie food, can be adopted. However, restricting the sugar content in food, undoubtedly, is the least effective means of doing so. And, in terms of the three measures to achieve the goal of curbing obesity, it is clear that limiting the sugar content in food is also the least effective. Therefore, the process of applying the principle of necessity should be based on the consideration of the effect of the implementation of the measures, and then efforts can be made to evaluate whether the measures cause the least damage to the right holder. In other words, the means that causes the least damage to the right is chosen from the “same effective means to achieve the purpose.”⁶⁵ The need to consider both the effect and the damage means that after the review of the necessity principle, the selected means may be one or more. Strictly speaking, both the determination of effects and the assessment of damages require the use of evidence-based science. For example, when a choice is made between a “fat tax” and a “restriction on the sale of large portions of sugar-sweetened beverages,” the choice of whether these two measures will achieve the goal of curbing obesity, the extent to which they will be effective, and the extent to which they will harm rights holders will need to be reflected in empirical data analysis. However, due to technical and cost considerations, public authorities may not always rely on scientific data when making these decisions. They rely heavily on people’s experience. Besides, there may be situations where several instruments differ in their effectiveness in achieving the ends, and the degree of damage to rights is also different, i.e., measure A may be effective, but means greater damage, while measure B may be less effective, but the damage it causes is relatively smaller. In practice, the situation is much more complex than the theoretical explanation here. Under such circumstances, the decision-maker must make a choice in that process featuring value measurement to some degree.

 

Third, the principle of equilibrium. the principle of equilibrium requires that the ends promoted by the means must be proportional to the harm caused by the means. It mainly addresses the weighing of benefits between the ends and the means, which is considered to be the essence of the principle of proportionality. The measurement of interests is essentially a kind of value measurement, so the principle of equilibrium is characterized by abstractness and subjectivity, and this is also the very main reason why the principle of proportionality has been accused of “subjective, anti-rational (emotionalist) consequences” and “rule by violence.”⁶⁶ However, the skepticism does not negate the positive role the principle of proportionality plays in theory and practice, so it is more important to overcome the shortcomings in the application of the principle of proportionality. When the principle of equilibrium is applied to evaluate the ends and means, it is crucial to solving two problems. First, how to strike a balance? That is, how to judge whether the means are proportional to the ends? In other words, what should be the specific law of balance? In this regard, many valuable theories have been proposed, such as Robert Alexy’s “component formula” (“weight formula”) theory,⁶⁷ Liu Quan’s “balance judgment formula”⁶⁸ and Dai Xin’s view of directly replacing the proportionality principle with cost-benefit analysis.⁶⁹ The author has no intention to evaluate the merits and demerits of the above theories, but in determining the specific law, the following concept should be upheld. No matter which theory is applied, the purpose is to provide a more objective and operational measurement tool for the principle of equilibrium. In this sense, the relationship between the analytical tools and the principle of equilibrium is also one of “means and purpose.” Although the principle of proportionality has a methodological value, it also carries the values of “human rights protection” and “justice,” and therefore has an ontological significance.⁷⁰ Comparing the principle of proportionality with a certain analytical tool is actually equivalent to considering the principle of proportionality as a tool for measuring interests, which fundamentally reduces the status of the principle of proportionality. Therefore, the author does not agree with the idea of using the cost-benefit analysis method to replace the proportionality principle directly, but it is commendable to introduce the cost-benefit analysis into the proportionality principle to reduce the uncertainty of the application of the principle of equilibrium.⁷¹ In fact, the “ladder of intervention” also provides a reference standard for the judgment of “proportionality” as the “ladder of intervention” theory ranks the degree of influence of public power intervention in individual autonomy from the strong to the weak. In the trade-off process, a higher place the intervention occupies at the upper end of the ladder indicates greater harm done by the means. If this measure needs to be proven proportional, greater interests must be achieved by the means at the other end of the scale. Second, what needs to be balanced? That is, what factors can be placed at each end of the scale when the means and the ends are balanced? Compared with “how to strike a balance,” “what needs to be balanced” is more important. The former can be seen as the form of interest measurement, while the latter is the substantial content of interest measurement. According to the traditional connotation of the equilibrium principle, it should be measured between the public interest contributed by the means and the damage caused by the means to individual rights. In other words, what is measured is the public interest and the private interest. However, from the perspective of function orientation, the principle of equilibrium reflects more the principle of effectiveness, i.e., weighing the benefits contributed by the means against the costs incurred, and avoiding the situation of high costs but low benefits.⁷² Therefore, the cost should not be limited to the damage caused to individual rights. Instead, all “side effects” arising from the realization of benefits should be taken into account. Of course, the damage to individual rights should be viewed as the most important factor. Besides, the feasibility, practicality, and social acceptability⁷³ of the means, and the financial cost of the government⁷⁴ should all be included in the cost. Meanwhile, in the process of trade-offs, it is also necessary to note whether an instrument, in achieving a particular purpose, will have a negative impact on other policy ends. Take the excise tax on high-calorie and high-sugar foods mentioned above as an example. The excise tax is a kind of turnover tax in China, which will eventually be paid by consumers in the guise of product prices. Since different social classes are different in consumption structure and the tolerance of tax burden, the final impact of excise tax on them will be differentiated. People with higher economic status are much less affected by the tax burden than the poor. This means that the adverse consequences of taxation are more likely to be borne by the poor, which can lead to greater inequality. In the prevention and control of chronic disease, in addition to the realization of the goal of group health, the elimination or reduction of health inequalities is also an extremely important aspect. In this context, the proportionality of excise tax should be judged by the damage it causes to individual autonomy and by the inequality it causes as a cost consideration. 

 

It must be admitted that no matter how well-designed the rules are, there will inevitably be an element of subjectivity involved in activities concerning value measurement. The theoretical tools are designed to minimize the impact of subjectivity, so it is unrealistic to expect that the rules will be designed to wipe out all subjective factors. For example, is it reasonable for the government to introduce a smoking ban in outdoor public spaces in order to control the increase in the number of smoking people? In terms of equilibrium, the overall health benefits arising from efforts to quit smoking need to be weighed against the harm done to citizens’ autonomy and the financial costs of implementing the measures. The “component formula,” “equilibrium judgment formula,” and the “cost-benefit analysis” method cannot accurately translate the benefits and harms here into specific numbers. The so-called numbers in the formula are only the results of human measurement, making it difficult to evaluate their objectivity. Any decision-maker will inevitably be influenced by subjective factors such as personal legal, and social preconceptions when making an interest measurement. In this regard, the principle of proportionality solely provides an analysis framework for us to think about the rationality of the actions of public power, and the application of this principle is nothing like a mathematical problem that can be solved by applying existing formulas to come to a conclusion. The application order of the three sub-principles is not unchanging, especially between the principle of necessity and the principle of equilibrium. The decision-maker may not apply a theory for a time. Instead, he often needs to combine two principles to find the best answer.

 

 

Flexible intervention measures are designed to help people develop a healthy lifestyle so as to make healthier choices by providing the public with more opportunities to make healthier choices and more scientific health knowledge. The goal of flexible intervention measures is to help citizens foster a health-related awareness, thereby guiding them to take actions that are beneficial to their health. Such measures do not affect personal freedom, but in fact, contribute to it. What is better is that there is no resistance to their implementation. It is because of this that such measures are generally favored by the government, but their disadvantage is that results cannot be achieved in the short term. For example, there are many options for government intervention measures: Building and opening more parks, constructing more convenient bicycle lanes, installing more fitness equipment, increasing the supply of vegetables and fruits in farm produce markets, making health knowledge known to all, and providing health guidance and services. Compared to the active intervention of public power, it seems that inaction is nothing wrong. In the prevention and control of chronic diseases, however, “inaction” sometimes requires a certain rational basis. Whether or not the government should do something in a particular area has something to do with a judgment of value goals. The achievement of a health goal requires the government to take certain active measures. If the government does harm to the general public, if it takes no measures, it still remains inactive. Then it should definitely be condemned. 

 

Although diet, smoking, alcohol, and exercise habits together constitute the main contents of a person’s lifestyle, each element plays a different role in citizens’ personal lives and contains different values, so the public power cannot adopt the same unchanged measures when taking interventions. Even interventions that are at the same level on the ladder of intervention will differ in their plausibility in different contexts. Since the most direct impact of individual lifestyle choices is on individuals themselves, in the prevention and control of chronic diseases, flexible measures with less intervention in individual freedom should be chosen as much as possible. The choice of compulsory measures should be strictly limited, and the choice of comprehensive measures should conform to the requirements of the principle of proportionality. What public power should do is to provide more opportunities for individuals to make choices on their own instead of directly making choices for them. “Attempts to force adults to lead a healthy life should be forbidden. Interventions without the permission of the individuals affected or with no fully authorized procedural justice arrangements should be decreased as much as possible, and so should the interventions that are seen as unduly intrusive and in conflict with important personal values.”⁷⁵ These are the important guidelines for governments to consider when undertaking interventions.

 

 

The complexity of the pathogenic factors of chronic diseases determines that the prevention and control of chronic diseases cannot be achieved by any one party alone. Instead, it requires the combined efforts of individuals, society and the state. For the purpose of achieving the goal of group health, many actions are indispensable: The enhancement of individual health awareness, the development of a good lifestyle, the efforts of enterprises and other social organizations to assume their social responsibilities, and the active role of the government in policy guidance and administrative intervention. In that process, the government plays an overarching and exemplary role, which becomes an irreplaceable part in the prevention and control of chronic diseases. The intrusion of public power into personal lives will inevitably have a certain impact on citizens’ right to health. When protecting and promoting citizens’ right to health, the state should do two things. For one thing, it needs to maintain basic respect for citizens’ health freedom and restrain the impulse to expand its power. For another thing, it needs to provide institutional support for the overall realization of citizens’ right to health and intervene in moderation in personal health choices. The determination of intervention strategies should be based on national public health practices, with the achievement of health goals and the disadvantages to individuals caused by public power interventions taken into account. Besides, efforts should be made to guard against arbitrary infringement upon individual free will on the pretext of seeking public interests, as should individualistic thinking about public health problems. The scope of public power interventions should be reasonably delineated with properly defined intervention measures, in a bid to provide a benign institutional guarantee for public power to promote the formation of personal healthy lifestyles. 

 

(Translated by TIAN Tong)

 

* MAN Hongjie ( 满洪杰 ), Professor and Ph.D of laws at the East China University of Political Science and Law.

 

** NIU Chunyan ( 牛春燕 ), Ph.D candidate at the Shandong University School of Law. This paper is the phased research result of the major research project “Global Health and Human Rights Education” of humanities and social sciences of the Ministry of Education in 2020 (Project No. 20JJD82005).

 

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2. Chinese Center for Disease Control and Prevention, Report on Chronic Diseases in China (2006), the website of the National Health Commission, accessed March 25, 2022; Report on Nutrition and Chronic Diseases of Chinese Residents (2020), the website of the State Council Information Office, accessed March 25, 2022.

 

3. WHO, 2008-2013 Action Plan for the Global Strategy for the Prevention and Control of Non-communicable Diseases, page 5, the website of the World Health Organization, accessed March 28, 2022.

 

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5. Quoted from Fu Hua, Preventive Medicine (Beijing: People’s Medical Publishing House, 2018), 4.

 

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8. Ibid., 24-25.

 

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13. National Health Commission, Report on the Health Hazards of Smoking in China 2020, the website of the Central People’s Government, accessed April 20, 2022.

 

14. William C. Cockerham, Bryant W. Hamby and Gabriela R. Oates, “The Social Determinants of Chronic Disease,” American Journal of Preventive Medicine 52 (1Sl) (2017): 6.

 

15. WHO Western Pacific Region, Overweight and Obesity in the Western Pacific Region: an Equity Perspective, 2017, page 1, the website of the World Health Organization, accessed April 25, 2022.

 

16. National Health Commission: Report on Nutrition and Chronic Diseases of Chinese Residents (2020), the Central People’s Government website, accessed April 20, 2022.

 

17. WHO Western Pacific Region, Overweight and Obesity in the Western Pacific Region: an Equity Perspective, 2017, page 2.

 

18. Michael Cardin, Thomas A. Farley, Amanda Purcell and Janet Collins, “Preventing Obesity and Chronic Disease: Education vs. Regulation vs. Litigation,” Journal of law, Medicine & Ethics 35, no. 4 (2007): 121-122.

 

19. Office of the United Nations High Commissioner for Human Rights, The right to health. Fact Sheet No.31, page 1, the United Nations website, accessed April 23, 2022.

 

20. Norman Daniels, Just Health Care (Cambridge: Cambridge University press, 1985), 27.

 

21. Ibid,. 27-28 and 33-35.

 

22. Ibid., 33.

 

23. Liang Chunqi and Shi Guang, “Challenges and Prevention and Control Countermeasures of Chronic Diseases in China,” Chinese Journal of Hospital Administration 7 (2013): 535.

 

24. Norman Daniels, Just Health: Meeting Health Needs Fairly (Cambridge: Cambridge University Press, 2008), 4.

 

25. Ibid,. 13.

 

26. Ibid., 101.

 

27. Office of the United Nations High Commissioner for Human Rights, The right to health. Fact Sheet No.31, page 9-10.

 

28. Ibid., 10.

 

29. Wang Chenguang, “Expansion of the Theory and Practice of the Right to Health,” Human Rights 4 (2021): 36; Xie Zhiyong, “On the Basic Principles of Health Law,” Journal of Comparative Law 3 (2019): 18; Li Guangde, “Empirical Study on the Norm Type of the Right to Health,” Human Rights 4 (2021): 51; Chen Yunliang, “Research on Basic Issues of Basic Medical and Health Legislation — Comments on China’s Law on the Promotion of Basic Medical and Health Care (Draft),” Political Science and Law 5 (2018): 101.

 

30. Qiu Ben, “New Classification and New Summary of Human Rights,” Social Scientist 12 (2015): 8.

 

31. Zhang Binfeng and Ma Jun, “From Dichotomy to Trilogy: The Rebuilding of the Basic Rights System,” Social Sciences in Nanjing 10 (2010): 102.

 

32. Chen Yunliang, “Normative Structure of the Right to Health,” China Legal Science 5 (2019): 66-69; Wang Chenguang, “Expansion of the Theory and Practice of the Right to Health,” Human Rights 4 (2021): 28-29.

 

33. CESCR, General Comments No.14: The Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), U.N.Doc. E/C.12/2000/4, para. 34-36, the World Wide Web, accessed April 26, 2002.

 

34. Zhang Wenxian, “On the Subject of Human Rights and Human Rights for the Subject,” China Legal Science 5 (1991): 27.

 

35. The Office of the United Nations High Commissioner for Human Rights took the enjoyment of the right to medical treatment as one of the key points of the right to health in the document Fact Sheet No.31, Quoted from Fu Hua, Preventive Medicine (Beijing: People’s Medical Publishing House, 2018), 1; Morris King believed that the right to health in the Convention should be regarded as “a right to access drugs and medical service.” Maurice King, Person Health Care: The Quest for a Human Rights, in Human Rights in Health, 227, Quote from Benjamin Mason Meier, Ashley M. Fox, “Development as Health: Employing the Collective Right to Development Achieve the Goals of the Individual Right to Health,” Human Rights Quarterly, vol. 30, no. 2 (2008): 300; the realization of the health goal stipulated in Clause 2 of Article 12 of the International Covenant on Economic, Social and Cultural Rights also requires, to a large extent, the protection of citizens’ medical rights by the state.

 

36. Benjamin Mason Meier, “Advocating Health Rights in a Globalized World: Responding to Globalization through a Collective Human Right to Public Health,” Global Health Law, Ethics and Policy (Winter 2007): 548.

 

37. Ibid., 546-547.

 

38. Ibid., 551.

 

39. Ibid., 553.

 

40. CESCR, General Comments No.14: The Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), U.N.Doc. E/C.12/2000/4, para. 34-36. Zhang Wenxian, “On the Subject of Human Rights and Human Rights for the Subject,” China Legal Science 5 (1991): 27.

 

41. The right to health mentioned in this article is a citizen’s right to health in the sense of public law which is different from the right to health enjoyed by natural persons in the field of civil law.

 

42. Zhang Xiang, Normative Structure of Basic Rights (Law Press · China, 2017), 64.

 

43. Carl I. Fertman, Diane D. and Allensworth Editors, Health Promotion Programs: From Theory to Practice(San Francisco: Jossey Bass, 2010), 5.

 

44. WHO, The Ottawa Charter for Health Promotion; Colin Sindall, “Health promotion and chronic disease: building on the Ottawa Charter, not training it?,” 16 Health Promotion International 3 (2001): 215.

 

45. Fernando D. Simoes, “Paternalism and Health Law: Legal Promotion of a Healthy Lifestyle,” 4 European Journal of Risk Regulation 3 (2013): 352.

 

46. Simon Planzer and Alberto Alemanno, “Lifestyle Risks: Conceptualising an Emerging Category of Research,” European Journal of Risk Regulation 4 (2010): 336.

 

47. Cass R. Sunstein and Richard H. Thaler, “Libertarian Paternalism Is Not an Oxymoron,” 70 The University of Chicago Law Review 4 (2003): 1160.

 

48. Ibid., 1161-1163.

 

49. Jean-Frederick Menard, “A ‘Nudge’ for Public Health Ethics: Libertarian Paternalism as a Framework for Ethical Analysis of Public Health Interventions?,” Public Health Ethics 3 (2010): 233.

 

50. Nuffield Council on Bioethics, Public health: ethical issues, Nov. 2007, page 25-26, the website of Nuffield Council on Bioethics, accessed April 28, 2022.

 

51. Ibid., 41.

 

52. Ibid., 42.

 

53. Wang Chenguang and Zhang Yi, “Functions and Main Contents of the Law on the Promotion of Basic Medical and Health Care,” China Health Law 2 (2020): 3.

 

54. Wang Qinghua, “Principles of Legal Reservation, Protection of Citizens’ Rights and the 1982 Constitution Order,” Zhejiang Social Sciences 12 (2014): 59.

 

55. Zhang Xiang, “Systematic Thinking of Fundamental Rights,” Tsinghua University Law Journal 4 (2012): 35.

 

56. National Health Commission, Report on the Health Hazards of Smoking in China 2020, the website of the Central People’s Government, accessed April 20, 2022.

 

57. Barron T. Oda, “An Alternative Perspective to Battling the Bulge: The Social and Legal Fall of Japan’s Anti Obesity Legislation,” 12 Asian Pacific law & Policy Journal 1 (2010): 251-252 and 264-266.

 

58. Laurie P. Whitsel, “Government’s Role in Promoting Healthy Living,” Progress in Cardiovascular Diseases 59 (2017): 494.

 

59. The World Health Organization proposes that all member states can consider a variety of measures to promote healthy choices by reducing salt content in food, banning the use of trans fatty acid in industrial production, reducing the use of saturated fat and free sugars, raising taxes on tobacco and alcohol, banning tobacco advertisements, promotion, and sponsorship, banning smoking in public places, and encouraging people to adopt healthier modes of transportation. WHO, 2008-2013 Action Plan for the Global Strategy for the Prevention and Control of Non-communicable Diseases, page 19-21.

 

60. Some countries and regions have experimented with measures such as excise taxes on high-sugar, high-calorie foods and restrictions on the sale of large portions of sugary drinks. Thomas A. Farley, “The Role of Government in Preventing Excess Calorie Consumption: The Example of New York City,” 308 Journal of American Medical Association 11 (2012): 1094.

 

61. The administrative organs with government at their core is one of the subjects of administrative and legal relations, and the main subject of regulation and control in the legal relations of economic law. See Jiao Haitao, “Reconstruction of the Subject System of Economic Law: From the Perspective of Common Sense,” Modern Law Science 3 (2016): 75; Xiao Jiangping, “A Study on the Chinese Academic History Defined by Economic Law — Focus on the Objects Adjusted by Economic Law,” Journal of Peking University (Philosophy and Social Sciences) 5 (2012): 122.

 

62. Jiang Hongzhen, On the Principle of Proportionality: the Judicial Evaluation of Government Regulation Tool (Law Press · China, 2010), 23-25.

 

63. Zhou Youyong, “The Legislative Construction of the Basic Principle System in the General Principles of Administrative Law,” Administrative Law Review 1 (2021): 22; Yang Dengfeng, “From the Reasonable Principle to the Unified Proportion Principle,” China Legal Science 3 (2016): 89.

 

64. Mei Yang, “The Scope and Limits of Application of the Principle of Proportionality,” Chinese Journal of Law 2 (2020): 61.

 

65. Chen Xinmin, The Basic Theory of German Public Law (Volume II) (Jinan: Shandong People’s Publishing House, 2001), 369; Jiang Hongzhen, “The Paradigm Shift of the Application of the Principle of Proportionality,” Social Sciences in China 5 (2021): 118.

 

66. Chen Xinmin, The Basic Theory of German Public Law (Volume II) (Jinan: Shandong People’s Publishing House, 2001), 387.

 

67. For details, see Liu Quan, “The Concretization of the Principle of Equilibrium,” Jurists Review 2 (2017): 20-22; Dai Xin and Zhang Yongjian, “The Principle of Proportionality or Cost-Benefit Analysis: A Critical Reconstruction of the Jurisprudential Approach,” Peking University Law Journal 6 (2018): 1533-1536.

 

68. Liu Quan, “The Concretization of the Principle of Equilibrium,” Jurists Review 2 (2017): 28.

 

69. Dai Xin and Zhang Yongjian, “The Principle of Proportionality or Cost-Benefit Analysis: A Critical Reconstruction of the Jurisprudential Approach,” Peking University Law Journal 6 (2018): 1521.

 

70. Shi Xinyuan, “The Application of the Principle of Proportionality in Economic Law,” Modern Law Science 2 (2022): 38-40; Jiang Hongzhen, “The Paradigm Shift of the Application of the Principle of Proportionality,”Social Sciences in China 5 (2021): 115.

 

71. Liu Quan, “The Precision of the Principle of Proportionality and Its Limits — From the Perspective of the Introduction of Cost-benefit Analysis,” Studies in Law and Business 4 (2021): 108.

 

72. Ibid., 105.

 

73. Jiang Hongzhen, On the Principle of Proportionality: the Judicial Evaluation of Government Regulation Tool, 115.

 

74. Liu Quan, “The Precision of the Principle of Proportionality and Its Limits,” 111.

 

75. Nuffield Council on Bioethics, Public health: ethical issues, Nov. 2007, page 26.