1.13 Implementation

Get settled in! Profs Greer and Jarman talk about policy implementation- putting the law on the books into practice. We look at common problems with implementation, go long on understanding the lessons learned by public health advocates attempting to implement Tobacco 21 laws and discuss how those lessons might apply to mask mandates during the COVID-19 pandemic. 

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• Music: 'Blippy Trance' by Kevin MacLeod

Transcript

Holly Jarman: 0:11

Hello, and welcome to the HMP governance lab podcast. I'm Professor Holly Jarman. And I'm here with my colleague, Scott Greer to talk about policy implementation. So Scott, can you start us off by giving us an overview of what do we mean when we use the word implementation? And why is it important to pay attention to policy implementation,

Scott Greer: 0:33

that means actually getting something done, it's translating the law on the books into law on the streets, it's translating your intentions and your thinking about how things work into an actual policy output that people can notice and care about, and from which they can benefit.

Holly Jarman: 0:48

That's a really good point, actually, because I feel like quite often, especially in our public conversations, and in the news media, we pay an enormous amount of attention to whether the bill is going to pass and what the law actually is. And we pay relatively little attention to everything that happens after that.

Scott Greer: 1:09

That also happens on the local level, where I can't imagine the number of times that I have been in meetings where a group of people with a shared interest in a shared place who kind of know each other, get together, they're filled with good ideas. They do good meeting hygiene, things like having identified action points and timelines before the next meeting. And yet somehow, it turns out that nobody's got the energy and no organization has the right priorities to actually make their good collaboration happen.

Holly Jarman: 1:37

Right. So with implementation, the reason we care about it is because this is the part of the process that really affects policy outcomes, it affects health outcomes, it is the difference between a policy that actually works, and one that really doesn't. And a lot of that, please notice in both of those scenarios, the law hasn't changed, the content of the policy hasn't changed. But in the good scenario, where we get the out the the outcome that we want, there is good implementation, there's follow through. And there's a process of trying to fit the policy in practice to the people who are and organizations who are being regulated. In the bad scenario, there are a bunch of hurdles that prevent the policy from actually been translated into practice.

Scott Greer: 2:25

There's also of course, a variety of other scenarios, for example, in which the policy in your opinion is a bad idea. And you frustrate its implementation, or in which the policy is directed to some other objective and you turn the policy towards your end, from some points of view, that's a huge implementation failure, but you might think it's quite a good day at the office.

Holly Jarman: 2:45

So in some of our other podcasts, we've touched on this a little. We've talked about the regulatory process, where, really where we're dealing with agencies that are making rules that try to fit the primary legislation to practice in the field and stakeholder expectations. And so that is really the crux of the implementation process. And it's also a really strong, important focus for lobbyists and advocates who want to see the policy on the books translated into practice in a particular way. Or as Scott said, many don't want to see the policy on the books actually being effective in the real world.

Scott Greer: 3:28

So what I'm supposed to do now is read off the formal definition. But I'd rather start with a story that illustrates it all. Long ago, cops always used to travel together in patrol cars, every cop movie for several decades feature that nowadays they travel alone. It was a cost saving issue in the 1970s. Now Kansas City when they made that move, decided to bring in evaluators and they had a university team that gathered really good data on everything that cops did that was measurable. How many people did they pull over? Who did they pull over? Where did they pull them over? What kinds of arrests happened? What were the arrests for what other interactions Do they have with the citizens. And they found out that there was absolutely no effect on any of these measures from essentially cutting the number of police per car in half. So cost savings, more police on the street, and you get the same level of performance. It looked great. Until one evening, one of the evaluators left his or her desk and went on down to the police headquarters and just hung out for a while in the dispatchers office and learned something important. The dispatchers did not believe that it was safe or appropriate for one police officer to go to a call. So for every call where they would have dispatched one car with two officers, they were systematically dispatching two cars with two officers, perfect implementation failure and perfect definition of the kinds of challenges that you face when you're trying to evaluate something that has to be implemented in the real world. Now if you want translate that into a more rigorous formal definition. implementation is the process of putting a government program into effect, total process of translating a legal mandate, whether an executive order in the formal or informal sense, or enacted statute into appropriate program directives and structures that provide services or create goods.

Holly Jarman: 5:20

Yeah, so you can see from that definition, how sensitive the implementation process is to individual failures, different individual interpretation of how the policy is supposed to work in practice, professional priorities, organizational constraints, lack of resources, people being confused about how the policy supposed to work, all of these kinds of things can be barriers to good implementation. I'm reminded by Scott's example of all of the promises that were made around health information exchange at the federal level, the federal government in recent years put millions of dollars into promoting health information exchange between different actors in the health system. And that was supposed to save a ton of money and improve the quality of care. One of the ways in which there was an implementation failure in this regard, is, even with good health information exchange, the way that doctors work is they want to see the test results for themselves. And they don't try to trust the test results from other providers. So what was happening is doctors instead of being able to access easily, the test results on relevant information from other parts of the health system that the patient had been to, they were ordering their own tests. So there was a duplicate testing and additional costs and that the money was actually not saved. So now, that is a good example of how, in this case, professional norms and behavior, which we might not have anticipated prior to the policy being put in place and implemented, really changed the potential outcomes.

Scott Greer: 7:11

I'll see you your health information technology example. And I'll raise you surgical quality, because implementing protocols for improving the quality of surgery sounds like a great idea in medicine surgery is the land of the checklist. The problem is, if you taught up all the checklists that are supposed to be applied to a patient going into surgery, you'll frequently find that the preparation for surgery that is supposed to be 10, or 15 minutes would have lasted a couple of hours. So in reality, implementing doesn't mean doing what the checklist authors said, implementing from the perspective of the surgical team will frequently mean trying to figure out how to do the best job out of all these different checklists that can't all be done. So we've met shown the complexity of it, I'm sure you can think of more examples. There's three really good questions that we're going to think about here when we sort of present the theory of implementation. First is why do good ideas on paper fall apart in the field? The second is what is good implementation, what can we actually expect? And the third is how do we evaluate and improve it?

Holly Jarman: 8:17

So Scott, why do these good ideas that maybe think tanks produce individual policy entrepreneurs produce, sometimes just not work in practice, when we get to the implementation stage, wider policies sometimes just fall apart and not produce the desired outcomes?

Scott Greer: 8:35

In a lot of cases, you should expect nothing to change. Because if it's not in the interests of the people on the ground, then they're probably going to keep on doing whatever they're doing. Because you haven't disturbed the the, the power balances the power imbalances. You haven't provided new resources, you haven't provided a compelling reason for them to change what they're doing. There's other reasons, of course that you can break down, there's cognitive, they don't think that way. They don't relate to what you're trying to do. There's interest based, their salary depends on doing it some other way. Epic makes a ton of money out of health information technology that is not interoperable and creates walled gardens for different providers. Epic doesn't necessarily have incentive to play along with HIV schemes for portable records. There's political issues, you don't necessarily want to help your opponent succeed. You also just don't necessarily care about your opponents agenda, or even your predecessors agenda or even your colleagues agenda. Finally, all organizations are energy poor of how two people are working to live, they're not living to work, they want to go home at the end of the day, they don't want to do something new, and they've kind of got a point. So this is going to vary from setting to setting an organization. But a lot of the time, you should expect that when an organization will do tomorrow is exactly what it's doing today. And if it changes what it's doing, it's because of some interest calculator. As understood by the people in the organization, and that's very hard to control from Washington, DC or even Lansing.

Holly Jarman: 10:07

Yeah, from, from my perspective, good implementation relies on a handful of things, there has to be good information about how things work in this policy area. So the regulating agency has to really know how businesses or organizations or individuals are going to act under the new policy. They are very dependent upon information from organizations and businesses about, you know, how did things work in their sector, what are the technical things that could prevent the policy being implemented properly. And so consultation there is important. Also, from the point of view of organizations, businesses and individuals, they have to be aware of what the policy is and how to actually comply with it. So good communication is incredibly important. You can see from the covid 19 pandemic, just how difficult it is sometimes to convey accurate information about complicated policies and actually obtain compliance from populations, some of whom some people who don't want to comply with the law, some people who are confused with what the law is, and you know, businesses who might be really struggling to keep up their bottom line and recruit customers, but at the same time struggling to comply with some quite often shifting recommendations. So good information and information exchange between the regulators and the regulated is kind of important here.

Scott Greer: 11:42

That's exactly the Kansas City example. It looked like it was being implemented, until the evaluators got better information.

Holly Jarman: 11:50

The second important thing to understand about implementation is that it requires good managerial skills and processes. So implementation is really a managerial problem. In a lot of cases, you are trying to get people or organizations or businesses to comply with a set of rules. And figuring out how these people or organizations or businesses are going to behave ahead of time. And figuring out what the management strategy is to reach that point of compliance is actually really important. So thinking about this as an ongoing thing that takes a long time and takes planning and takes important communication skills, as well as broader managerial skills is a really important thing to keep in mind.

Scott Greer: 12:39

And that including involves relationships, because a lot of the time, the secret to resilience in any policy or any activity is that the people actually like each other and know how the other people work. And they're willing to work around obstacles that come up, they're willing to respond to crises. And if you don't have relationships, and you don't have a sense of the lay of the land, then you're much less likely to know how to get people to work with you, and you're much less likely to be able to address the inevitable hiccups.

Holly Jarman: 13:09

And the third thing that's very important here, good political skills. So yes, again, I know you're tired of hearing me saying this, but implementation is a political and partisan process. Surprise, surprise. So the political skills are very important for regulators because they need to understand how to use their own authority in an area. We have primary legislation, which outlines the scope of the policy in quite general terms. And then in a lot of cases, there's an agency or regulatory body that is responsible for putting the policy into practice. And that agency, those regulators have to understand politically how to use the authority that they have, sometimes creatively, to translate the policy on the books into practice, and to ensure that there's compliance among the regulated

Scott Greer: 14:05

and bear in mind that all the politics that made it hard to pass the policy continue at the implementation phase. So a business that doesn't want to be regulated or a surgeon who doesn't want to be given a new checklist aren't going to get any happier and more interested in compliance once it's a policy whose implementation they can help to frustrate

Holly Jarman: 14:24

right. So as a person or organization or business that's regulated, and you may well need these political skills to understand the environment in which you're operating. So, many of you may go on to work for different organizations within the health sector, where you are trying to translate the policy environment for your organization and ensure that your organization is compliant with requirements. And so the political skill there is being able to understand the environment, understand how your organization has To change, and potentially representing the interests in your organization, when your organization doesn't necessarily want to change. And so political skill areas is really important too. For those who are on the outside of the regulatory framework.

Scott Greer: 15:18

I would also point out that all of these things are efforts to address at different levels. The basic problem that the easiest form of implementation is to do it yourself, a lot of learning to manage, is learning how to delegate and learning how to motivate people to use their own creativity to solve problems. And it's often a management failure when you have to do it yourself. But it's very tempting, because you know how you want it done, and you know how you would do it. Now, the problem with keep it simple and do it yourself is that a lot of the time the political compromises necessary to get your policy passed, cut in exactly the opposite direction, bring in more and more people with more and more different assets, there's bonomi at the meeting, but you have got to come up with reasons why all of these different groups are actually going to stapley work together. And then you're going to need to manage what inevitably happens, which is one of them changes, chief executive in the new chief executive doesn't know why we're doing this and needs to be persuaded blah, blah, blah.

Holly Jarman: 16:13

And in a policy context, a lot of the time the policy has written doesn't really fit with everyday practice amongst organizations or individual behavior even. So quite often, and law as if you go and read some bills, as we suggest in the legislative process podcast, you'll find out quite quickly that the law paints the policy in broad terms. And sometimes there's a lot of detail to be filled in there in order to put it into practice and get anything like the outcomes that legislators anticipate will happen. And so a good example of this that I want to draw on from my own research is tobacco 21 policies. So tobacco 21 laws have proliferated in the United States at state and local government level for a number of years. And then the Trump administration recently put into place a national law, that it would be illegal to sell tobacco products to anybody who is under the age of 21. And this applies to a wide range of tobacco products, including things like e cigarettes and more novel tobacco products, not just more traditional products, like cigarettes and cigars. And so this is something that is actually an evidence based policy, public health, people have been arguing for tobacco 21. For some time now, there's some evidence to suggest that people don't really become addicted to nicotine after the age of 21. There are some physiological changes and some behavioral cultural changes that make it less likely that after that age, you will really become addicted to nicotine and take up smoking or tobacco use long term. So the evidence is pretty clear in that regard. However, this is the policy area where there's a huge amount of ambiguity around implementation, and how to implement the policy successfully in order to get the outcomes that policy advocates say will happen. So largely a reduction in the number of people who are smoking and using tobacco products. And in particular, there was a lot of attention to tobacco 21 over the last couple of years because of a strong increase in the use of E cigarettes and vaping products amongst young people, including kids in school. So the problem is that with the commercial availability increasingly of products like joule, which is a pretty discreet thing, if you've ever seen one, it's a small package, it's slim, it looks a bit like a stick drive, it's an easy thing for kids to hide, and multiple kids can vape from the same device. So it's accessible portable thing, unfortunately for kids in school. And so we've seen a an uptick with the commercial availability of jewel and other similar products in youth vaping and smoking, the policy solution put forward by public health advocates and taken up actually, not just by public health advocates, but also ultimately by jewel, which is an interesting thing that we'll get into later. Was tobacco 21 raging, raising the legal age of sale for these products. The problem is passing a tobacco 21 law is not as easy as taking the existing law on the eight legal age of sale and crossing out the bit where it says 18 and putting in the part where it says 21. So a lot of jurisdictions in the United States did that much they passed a law they changed the law to say Well, the New Age legal age of sale is 21. After this point, things get very ambiguous because there's a lot of implementation problems. And especially here, we're talking about a policy where we have to try to get compliance from retailers. This is an age of sale policy, it is trying to affect youth behavior indirectly by trying to affect retailers. And so if you know anything about retail stores, retail is very, incredibly widely. So you've got grocery stores, you've got big supermarkets like Walmart, you've got small community owned businesses, in some areas where that that shop is really the only shop in the community, you've got hotels and vending machines, you've got other stores that sell other stuff, like cell phones that also sell vaping products. And so really, regulators here had a headache in terms of trying to translate this policy into practice, because they had to do outreach with all these retailers. So one of the early problems was, we don't know who the retailers are not a lot of jurisdictions have a master list of who the retailers are in a particular place. So we did a study of tobacco 21. And its potential effects on Michigan. And in particular, to try and get some places that looked a little bit like Michigan, we went to Ohio, where they had existing tobacco 21 laws. And we did some interviews and some research in Cleveland and Columbus and surrounding areas. And in Columbus, for example, they didn't have a list of who the retailers were, they passed the tobacco 21 law, but they didn't actually know who they were regulating. So the first thing they had to do with next to no resources, was send people out to actually track down all the retailers and there were about 900 in the Columbus region, and figure out who they were and the diversity of the retailers. And so it was quite surprising, I think, for the people in Columbus because they found that these retailers were just not exactly what they were thinking in terms of like gas stations or grocery stores. There were also all these other categories of places that were selling these products, and they had to figure out a strategy to reach out to all these places, the kind of strategy that they were following in Columbus and Cleveland was what we would call a responsible regulation strategy. They were really trying to create if you can imagine a pyramid of different penalties that escalate, as retailers become less compliant with the law or they refuse to comply with the law over time. So what this starts out with is outreach. In terms of outreach, they reached out to retailers by engaging their sanitarian workers. So sanitarians are health inspectors. And most places have that have a public health department have sanitarians on staff. So these people go out, and they do like restaurant inspections, for example. And they inspect a lot of other places that sell food. And a number of these places are also places that sell tobacco. So what they did is they created training for the sanitarians use that workforce to reach out to retailers and inform them about the new tobacco 21 law. They also sent out letters and did some public messaging and education around the new law. So this was a key step in implementation, trying to do outreach, trying to get businesses on their side, and trying to get compliance. Now, outreach is important in some regards, because some of the communities we were studying are heavily reliant upon the stores in their area. These are community owned businesses. These are predominantly black areas where people are lower income than average in the state. And so that outreach is actually kind of important so that the tobacco control advocates that we talked to in those places were saying they wanted to get businesses on side and highlight the role that they play within the community and highlight the fact that selling tobacco products to kids is really undercutting that role, and not assisting and helping the community. So there was a lot of discussion and back and forth between the advocates and the retailers to try and come to an understanding. The other reason outreach is really important is the people employed in retail that are actually the people who are selling the products on the counter are more likely to be in a vulnerable economic position. than the people who own the stores, or who own the franchise for the store. And so the outreach is kind of important to make sure that we're not immediately going in and placing criminal penalties or legal penalties against the person who is the Clark in the store. Quite often, in both of our cases, these were people who might be foreign born, more recent immigrants have English as not a first language and have other economic constraints upon them. So what the advocates didn't want to do is go in immediately with a high level of like legal threat against people who are that are themselves economically vulnerable, socially and politically vulnerable. So if you imagine that that kind of outreach is the bottom of the pyramid pyramid, as we move up the pyramid of responsive regulation, we move from outreach, to more for more threats, basically, to try to get retailers to comply. So first of all, we try outreach and relationship building, we try notification and public education, we try and make examples of retailers and get their voices heard, that are good at complying and have them explain to other retailers why they're complying and why that's important. And then as we move progressively up the pyramid, the pyramid, where, as a regulator, the regulators were issuing more formal warnings. So more letters, more notices that there were was not compliance with the law. Really, basically, here, the tobacco control advocates were pushing for a system, where really there was some intermediate steps which result were looked a little bit more like suspending the license of the store for a short period. So the store could not sell goods for a couple of weeks, which certainly would impact the owners bottom line and the money that they were recouping and then only at the very top pursuing formal legal action against the store for non compliance. But I hope you can see by this, that the implementation here of the law, which was almost entirely constructed by the cities of Columbus, and Cleveland, in these cases, required a lot of manpower, it required information gathering to know who the retailers were, it required outreach and education. in Columbus, they also held education sessions for free for Walmart employees, because Walmart was a big retail retailer for them, and had a lot of clocks, which would rotate in and out of jobs. So they felt like in order to get higher compliance, they needed to do education and outreach with those clocks. So it's quite labor intensive. It's a long period, too. So I hope you can see how the implementation took a lot of resources and organization and it took a long time. Initially, in both places, Columbus and Cleveland, business compliance with the new law was quite low. And eventually, in Columbus compliance, became quite high, but only after a nine month period or a year, did they really see good results from their outreach and education programs and trying to partner with retailers? did things go differently in Cleveland? They did. What actually happened in Cleveland is there was very little implementation of the policy. So in Cleveland, they did not have the level of resources that the public health agency had in Columbus. And so they did not really have access to the same manpower or information. And so they passed the law, and they did some public education, which they were able to fund with a grant program. But they couldn't actually do the outreach and education that Columbus was doing. And that was a problem because an investigative journalist, a local journalist, went and did some investigation looked at a lot of different local retailers and made the local news, local television news, because their finding was that there was really poor compliance among retailers and a lot of kids were still able to get tobacco products and buy them despite being under the age of 21. So the concern here and the learning curve, I think, in both places, was initially tobacco control advocates were quite keen before the policy was passed to have really strong punishment against individuals that were caught buying the products under age and against retailers that was selling the products to underage kids. And the issue there is that Guess who was doing the enforcement?

Scott Greer: 30:07

Oh,

Holly Jarman: 30:09

well, local police. And that was a big problem for people in Cleveland, especially who were public health advocates and felt uncomfortable about the idea that the police could be enforcing this tobacco 21 law. And essentially, they would be able to find people stop people question people. So to back up and explain, most states have on the books somewhere, a tobacco law that is called a pop law, purchase, use and possession. And so Cleveland was no exception, purchase, use and possession is a misdemeanor. And so there was a lot of concern amongst tobacco control advocates that basically you would be expanding the number of people who could be subject to a stop and questioning by police and potentially slapped with a misdemeanor. And they were really concerned that for their communities, this was just exacerbating injustice. And the chance that people young people would be coming into contact with the criminal justice system, which doesn't have a good reputation. And so over time, the tobacco control advocates really worked this through in discussions with local community members, and came to this kind of compromise position where they would adopt this more responsible regulation pyramid were really criminal charges against individuals and against the retailers would be a last resort. And in Euclid, for example, which is part of a suburb outside of Cleveland, they decided that they would actually reduce the misdemeanor crime that was in local law of possession use and purchase down to a lower tier misdemeanor for which there would not really be many consequences if someone were to be charged. The reason

Scott Greer: 32:18

I hesitated as to who might be enforcing it is who does the local police mean Cleveland Cuyahoga County, Ohio State Police haven't knows what kind of special district?

Holly Jarman: 32:27

Well, I think the the issue here is that it's law on the books for the whole state. So it could be any of those law enforcement officers. And the thing with tobacco law is it's not like the police have a lot of time to be going around. Looking for people who are breaking the law on on tobacco 21, or any other tobacco regulation. But what tends to happen is when there is contact with a police officer, tobacco is one of the things that can be used against the individual in order to make a charge stick.

Scott Greer: 33:05

And this is a subset that have two different problems. One is just the sheer complexity, which police forces are supposed to do this in which ones actually do, which is kind of any inner question of interagency responsibility. And then there's also the broader one of if you're using criminal law or the police. On one hand, they're the go to agency in American society to make people change their behavior. But on the other hand, is we've really seen in the summer of 2020, they aren't necessarily the right ones, if you're trying to build community compliance, better community relations, make our societies function more smoothly,

Holly Jarman: 33:41

right. So in Cleveland, it was telling when the journalist investigated, one of the things that they did was call up the local police department. And the police said, well hang on a minute, we're not enforcing this law. And then they called up the local health department and the local health department said, Well, no, hang on, we're not enforcing this law. And then they caught up the State Department and the state public health officials said, hang on, we're not responsible for enforcing this law. It's a local matter. So there was a lot of confusion, even amongst the people who were supposed to know inside out how this policy was being implemented as to who exactly was enforcing the law. And that ambiguity can be kind of dangerous, I think,

Scott Greer: 34:25

not to make it worse. But isn't there also a federal dimension?

Holly Jarman: 34:28

Oh, yes. Well, now there's a federal dimension. So the federal law has come into place as of the end of last year, actually. And the picture, I think, is that in some places where there is already an infrastructure for local implementation, the tobacco 21 law is being implemented, but that's really not many places across the country. So there are going to be many more cities where the law applies, but there's no implementation. mechanism. And there's not really been this process of thinking about what implementation means, what it means in terms of criminal penalties and what it means in terms of civil compliance. So, Columbus has a licensing regime that they've put in place, because they wanted to avoid these criminal penalties. And they wanted to make sure that penalties were enforced and fell on retail owners rather than retail Clark's or individuals who are young people in possession of tobacco products. And so it's been interesting to see that model in various places throughout the United States. And California, for example, statewide has a lot of a lot of tobacco licensing. But a lot of states, like Michigan don't really have a good system of tobacco licensing. And it's certainly not a civil system of fines in the way that it is in California, and Ohio and some other places in the country. So implementation wise, there is a huge difference between how the policy works out in California and Ohio, and how it works in Michigan or elsewhere in the country.

Scott Greer: 36:14

So starting to wrap this up, what are some of the obstacles using tobacco 21 as an example, what are some of the common obstacles to implementation of a policy.

Holly Jarman: 36:23

So when they were trying to implement this policy in Columbus, the obstacles were lack of resources, they didn't really have any money to implement the policy. And they didn't have the manpower, lack of information. They didn't know who the retailers were, and they had to create a database, they drafted in public health students, actually, as volunteers to go and visit a lot of these retailers and populate the database. They had to build new relationships with the regulated businesses, and figure out how to make that work and how to do outreach and education. They had to institute an entirely new system of licensing. And in the first month in which it operated, it actually operated at a loss because they set the licensing fee too low. And so they had to figure all that out, like what would was the appropriate fee to cover the costs of the new licensing regime. And what was a fee that the businesses could and would bear lack of compliance because of various factors, including not quite enough education, not quite enough outreach, as well as a few retailers being really bad actors that just under no circumstances would really comply. And so having to learn how to escalate those cases, up the hierarchy of regulation up the pyramid. And eventually, in some of those cases, it resulted in legal action. And this is all public health agencies in a local setting doing this. And so they really had a steep learning curve, or a lot of this,

Scott Greer: 38:00

although they did at least seem to learn and exchange information across the state in the country.

Holly Jarman: 38:04

They certainly did. So this model was written down and diagrammed and a lot of these things were worked through, including the public health agency worked out a protocol for police. It worked out how to do the licensing on what level the licensing fee should be set at. It publicized its advice for education and outreach programs. And so a lot of this information passed from Ohio into other areas of the country, through public health networks of expertise,

Scott Greer: 38:40

you've given a lot of the examples of what we have as sort of the key common obstacles to successful program implementation, bureaucratic or popular opposition, bureaucratic meaning the police didn't think they wanted to be doing that. Popular, a lot of business owners didn't particularly want to be doing it. Funding limitations. As you might imagine, declining suburbs of Cleveland don't have a lot of money, resource limitations, who are the people who are available to do it? And what is their training? Do they understand the problem? And what kinds of information do they need? And then also, in this case, it's the devil in the details. One of the risks is a vague policy with unintelligible or multiple goals that getting something past requires making it satisfactory to a bunch of different constituencies. But that means that it can have multiple objectives. Are we doing economic development? Are we doing racial equality? Are we doing environmental justice? What exactly is this policy about? Because multiple goals gets the legislation passed, but it doesn't get it implemented. What are some of the ways that you can get around this problem? Just to summarize before we go into another case study?

Holly Jarman: 39:51

Well, I think some of the best things that they did, were really like playing the long game. Sticking with over time. So the public health advocates were trying to establish credibility with the businesses that they were trying to regulate. And with the community at large and key stakeholders within that community, they were trying to show that look, this is a good faith effort to regulate here and to form relationships without necessarily resorting to criminal or criminal prosecution or civil penalties, financial penalties in the first instance. I think they were good at being flexible in responding to the implementation challenges as they came up. So they created new strategies like sending out their sanitarians, who had good relationships with a lot of retailers, and restaurants. And they use those relation existing relationships to try and improve partnerships around tobacco 21. I think they understood the political environment quite well. And basically, tried to navigate public communication and communication with politicians about the intent of the policy, how the policy was being implemented, and had ready answers for why they were doing it this way, as opposed to going in with heavy criminal penalties, which is what some commentators really wanted to see. I think there was some definitely spirit of empathy here with retailers, particularly community owned businesses, with youth, and understanding that tobacco is an addictive product. And that there are various reasons why young people choose to start using tobacco products, and keeping that frame of mind rather than thinking about the individuals using the products as as criminals or deviance. And so I think it was important for the public health agency to understand who they were representing here, they representing the whole community, and they were trying to achieve improvements in community health and population health. Rather than being an authority of government that was keen to go in and insist on strong compliance from day one, they worked with partners, and they gradually achieved better compliance.

Scott Greer: 42:31

Because it's tempting to think you'll roll in and say there's a new sheriff in town. But what we keep saying over and over again, in different ways is play the long game. And that means information, and partnerships and alliances as well as understanding who your enemies are and what they're about. This is all really useful thinking for arguably one of the biggest implementation challenges that we're seeing in the covid 19 pandemic, which is mask mandates,

Holly Jarman: 42:59

right, I feel like, to some extent, public health does tend to make the mistake that because states have quite extensive police powers to enforce public health regulations. And so when I say police powers, I don't mean that states control the police in some extensive way. police powers in the context of public health means that the state has a lot of flexible, broad authority to control public behavior, control business and organizational behavior. And if you think about the COVID pandemic, those police powers relate to the spread of communicable disease in the context of requiring businesses and individuals to do certain things. So an individual masked mandate in retail spaces, for example, is a exercise of the state's police power. So it comes from fundamental authority that is woven into the state's constitution. Now, because public health has that power, we quite often make the mistake that the first thing we should do is resort to using that authority. Whereas when we're talking about implementation, or thority, absolutely matters. Having a legal basis for what you're doing matters and the ability to elicit compliance from individuals and businesses and other organizations is incredibly important. But there is a bunch of other things that you need to consider. So from the tobacco 21 example to the masking example, outreach, education, communication with businesses and the public, trying to understand where people are coming from, and some of the dynamics of who people are in retail spaces, who the people are, who are confronting folks who might go into the retail store without a mask and the risks of doing that and the risks of confrontation and also understanding value. Clearly who is going to be doing the enforcement and the consequences of selecting, for example, law enforcement as a means of enforcing these rules.

Scott Greer: 45:10

And one of the things we noticed, for example, is that it's one thing for a business to have a policy. So target can have a policy. But it turns out the target policy, if it's essentially contested, isn't self enforcing. And you need to put some poor high school student on the door to offer people masks. What happens if people try to come storming in without a mask anyway, because they're grumpy, or because they think COVID-19 is a hoax, it's really helpful for the store manager to be able to say, I am enforcing the law, I am violating the law if I let you run around without a mask, but you can only do that if there's some credible authority behind you. Which is how we end up with some of the nightmare scenarios we've already seen involving confrontations with police as well as people actually getting shot when somebody doesn't want to wear a mask and gets mad at the store security guard.

Holly Jarman: 46:04

Right. And we have to think about racial and ethnic and economic diversity here and the dynamics of these relationships, because quite often, the person who is enforcing the law in the context of the store is a lower tier employee in an economically more vulnerable situation than the person they're talking to. And quite often this disparity between the race and ethnicity of workers in the store and the customers. And so when people come into the store and feel like they are entitled to break the law, and then the person confronting them is someone of color of economically more vulnerable state, then, you know, we're setting that person up for with considerable risk. And I think regulators have to acknowledge that and think about ways in which the authority of that person and the authority of the store can be supported through education, messaging, and sensitive compliance that understands those power disparities,

Scott Greer: 47:13

which is why frequently you need a two pronged understanding. On one hand, you want to understand why people might not be wearing masks. And for example, giving people masks turns out to be pretty effective. It turns out people like being given things and people like being given a little cloth mask more than they like being given a disposable mask, it's hard to get too angry at people who are trying to give you stuff. Equally though, a coercive dimension matters, because it's a lot easier when the high school student is getting yelled at, and summons the manager for the manager to say I just work here, I'm enforcing a corporate policy, I'm enforcing a local government policy. Ma'am, if you don't leave, I might have to call the police. So you don't want to lead with coercion. But it's also quite hard to do it without some level of caution in the background.

Holly Jarman: 48:02

But I think there's also an unexplored civil space here. Like, why are you calling the police? When potentially maybe you're calling the local public health agency, and then you say there's a civil fine for you, individual who's breaking the law, you know, you can choose to leave the premises, or I can call in the local public health official, I'll take your details, and we'll find you. So now I'm not saying that's a perfect solution. But we need to think about who the enforcement agent is here. And is it appropriate and safe to have the police fulfill that role?

Scott Greer: 48:39

Or at least what kinds of incentives Can we give to the manager to think clearly about how they are going to enforce this rule, because inevitably, somebody is going to be absent minded. And so that person might turn out to be angry.

Holly Jarman: 48:51

Yeah. And so I kind of want to go back to my period, pyramid of responsive regulation here and say criminal penalties and enforcement should be a last resort. They're kind of an important thing to have on the table, to backup, the authority of the manager or whoever is saying, Please comply with the rules. But really, we have to think about the lower tiers of the pyramid, community relationships, education for managers and staff in retail environments, clear communication with the public. What can we do on if you think about regulation as a combination of carrot and stick? So incentive and punishment, we have to think about the incentive part, and try to start from a position of incentivizing good behavior, with the idea that we eventually have to escalate to punishment and enforcement for those cases in which there's not compliance in a very egregious way.

Scott Greer: 49:52

And it's good to think about other cases of public health, regulatory success, but don't follow them too blindly. There's an argument through March of 2020, in public health circles between people who thought that mask wearing is like condom wearing, and you should apply lessons from sexual and behavioral health education. And people who thought it was like secondhand smoke, because those are two quite different kinds of activities. And those are two quite different kinds of regulatory responses. And then there's other angles, for example, is it like no shoes, no shirt, no service? What are the different kinds of behavioral changes that you're asking people to make no matter which side of the counter and which side of the door they're on?

Holly Jarman: 50:31

And I think if you're going to use phrases like that, you need to know the historic context, really. I think in the the lessons from tobacco control are quite clear on this. In the 1990s, public health advocates were guilty of calling for extensive criminal penalties for individuals who are under age, so under 18, in possession of tobacco control products, and there was this argument that, well, what we need is stronger enforcement because stronger enforcement will solve the problem, despite the fact that the same people often talked about the the ways in which tobacco is a highly addictive product. And so there was an unfortunate tendency, deliberate tendency to blame the victims blame the people who were using the product, and therefore seek stronger criminal penalties against those people. And I think that thinking was wrong. It resulted in a number of states adopting quite draconian laws on underage use of tobacco products.

Scott Greer: 51:42

And it leads to results that we've seen very strongly over the recent decades where that 1990s faith in criminal severe criminal penalties is the answer to everything, you can fast forward straight through to Eric Garner, who was after all, accused of selling Lucy's before he was murdered.

Holly Jarman: 51:59

Right. And so, you know, the Lucy's weren't the problem, the relationship between Eric Garner and law enforcement was the problem. And the Lucy's, you know, specifically, he was charged with selling the cigarettes without a correct tax stamp on them, I believe. So, you know, this was an excuse to prosecute this individual who had a poor relationship with law enforcement officials. And so that's the price of this I'm, and I think that's why we need to consider very carefully how we use public health authority and the relationship between public health and law enforcement in these contexts.

Scott Greer: 52:42

And in terms of thinking about how you would make an implement a masked mandate. What kinds of information do you need, kinds of allies do you need? What kinds of things do you need to learn about people behave? Who is inclined to comply but confused, who is ideologically disinclined to comply and what do you do about them? Who is outright dangerous? These are the questions you need to think through as you try to develop an implementable maske mandate.

Holly Jarman: 53:20

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