Levin, Lytton, & Rabin on Using State Consumer Protection Law to Advance National Public Health and Environmental Policies

Hillel Levin, Tim Lytton, and Bob Rabin have posted to SSRN Using State Consumer Protection Law to Advance National Public Health and Environmental Policies. The abstract provides:

State Unfair and Deceptive Acts and Practices (UDAP) statutes—once regarded as niche consumer protection tools—have emerged over the past two decades as powerful policy instruments for addressing urgent public health and environmental challenges. Private parties and government entities have filed UDAP lawsuits aimed at reducing tobacco-related illness, opioid addiction, firearms violence, e-cigarette use among children, youth mental health disorders linked to social media, climate change, and plastics pollution. This Article explains the growing use of UDAP litigation as a policy tool and addresses concerns about its legitimacy, effectiveness, and efficiency.

The Article argues that state UDAP litigation has comparative institutional advantages over administrative regulation and common law in addressing complex and newly emerging public health and environmental problems. UDAP statutes delegate broad, open-ended enforcement powers, which makes them highly adaptable and comparatively nimble policy instruments. Collaboration among state attorneys general pools litigation resources to match those of deep-pocketed industry defendants. Private UDAP claims are immune to political capture and, in the aggregate, can provide a powerful deterrent to corporate wrongdoing. The litigation process frames issues in ways that highlight institutional reform, uncovers policy-relevant information, increases the salience of issues, and mobilizes policy constituencies—all of which are especially useful in policy domains dominated by powerful interest groups.

Finally, the Article confronts influential but flawed critiques of UDAP litigation. Critics argue that using UDAP claims to promote public health and environmental goals is a politically opportunistic misuse of consumer protection laws and that litigation is an ineffective and costly substitute for administrative regulation. These attacks rest on a combination of rhetorical tropes, incomplete legal analysis, and unsupported empirical assertions. A fair assessment must consider the flexibility of UDAP statutes, the political accountability of state attorneys general, and the costs and benefits of litigation. Based on careful consideration of these issues, the Article offers a qualified endorsement of using UDAP litigation to promote public health and environmental policy and highlights areas for further scholarly inquiry.