Fighting the Flu With One Hand Tied

The World Health Organization and the Centers for Disease Control and Prevention are responsible for containing swine flu -- a critical job that could affect tens of thousands of people in the United States and perhaps millions worldwide. But the public health agencies that are suddenly so much in the public eye lack key powers and resources. In fact, successive U.S. administrations have marginalized both, essentially rendering them less effective in times such as these.

The outbreak of severe acute respiratory syndrome (SARS) a few years ago helped to prepare the world for today's pandemic threat because it galvanized the revision of the badly antiquated International Health Regulations in 2005. The new regulations require countries to notify the WHO of all events that may constitute a public health emergency of international concern; they grant the WHO authority to issue temporary and standing recommendations such as travel advisories and restrictions and to regulate invasive medical exams and vaccinations as a condition of entry for travelers. Yet while all other major countries with federal systems signed on without reservation, the United States gave notice that it might not comply with the regulations under principles of federalism if a public health power belonged to the states rather than the federal government.

During the SARS outbreak, China's failure to report cases in a timely manner seriously hindered the international response. It's not clear whether the more expansive International Health Regulations will curtail the widespread noncompliance that undermined past efforts to protect public health globally. Health experts are already concerned about delays in the Mexican government's response to swine flu. The WHO is empowered to use "unofficial" sources of information, but nothing substitutes for the rapid action of countries. And the frightening truth is that the WHO has no real power. It lacks an effective mechanism for monitoring and enforcing national reporting. Its recommendations to countries are expressly "non-binding." Countries do not even have to share virus samples with it. Indeed, despite painful negotiations over the past two years, the agency has not been able to persuade Indonesia to share samples of avian influenza, threatening vaccine production and public health preparedness.

Perhaps more worrying is the lack of capacity in poor countries to detect and respond to emerging threats. This is of particular concern because influenza often emerges in Asia, where crowded cities and close proximity between animals and humans can breed infectious disease. Although Mexico is the likely center of the current outbreak, the genetic material in the swine flu virus is of Eurasian origin. Many poor countries lack adequate surveillance, early warning systems and modern laboratories; they also have negligible public health infrastructures. Although the revised International Health Regulations urge capacity building, Western governments have donated precious little funding, and the WHO has no mechanism or resources for expanding public health capacities within individual countries.

We like to think that highly developed countries have all the power and resources they need to respond forcefully. But the Canadian commission that reviewed the response to the SARS outbreak was highly critical of the lack of legal power and resources available to public health agencies. Eventually, this resulted in fundamental reform of public health law and an influx of resources in Canada.

America has not learned those lessons. The CDC's legal authority to prevent the introduction, transmission or spread of communicable diseases into or within the United States dates to 1944, but its critical powers -- to quarantine, inspect, disinfect and even destroy animals that are sources of dangerous infection to humans -- have limited applicability to a few diseases. If the CDC did try to exercise power in response to swine flu, its legal authority would surely be challenged, causing needless delays and uncertainty -- and its actions might be ruled unconstitutional. To its credit, the CDC has tried for more than a decade to modernize its legal authority. But its proposed fundamental revision was submitted more than three years ago, and regulations have yet to be finalized.

The CDC and state health departments also have been starved of resources by successive administrations. As the cost of health care has soared, only 1 to 2 percent of total health spending in the United States has gone toward prevention and public health -- not nearly enough to ensure preparedness. A few states, such as Minnesota, have strong surveillance systems, but others have virtually none outside of HIV reporting. The response to swine flu in many, if not most, states could be sadly lacking.

The WHO and the CDC are our frontline defense against infectious diseases that can rapidly mutate and travel across continents. It is easy to criticize these agencies and deprive them of resources. It is much harder, but necessary, to build strong public health agencies to do the vital work that we all rely on, especially in the face of an international public health emergency.

Lawrence Gostin, a professor of global health law and faculty director at Georgetown University Law Center's O'Neill Institute for National and Global Health Law, as well as a member of the World Health Organization International Health Regulations Roster of Experts and director of the WHO Collaborating Center on Health Law.