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January 2009 - CDC Public Health Law News

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Wednesday, January 21, 2009

From the Public Health Law Program,
Office for State, Tribal, Local and Territorial Support,
Centers for Disease Control and Prevention

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From the Public Health Law Program, Office of the Chief of Public Health Practice, CDC



*** Delaware Department of Corrections Report. The fourth report on prison health care by the independent monitor of the Memorandum of Agreement between the United States Department of Justice and the State of Delaware has been released. Visit to read the text of the report.

*** IOM HIPAA Report. The Institute of Medicine Committee on Health Research and the Privacy of Health Information has released its final report, Beyond the HIPAA Privacy Rule: Enhancing Privacy, Improving Health Through Research. A report brief is available at

*** New Public Health Law Text. The recently published text,Public Health Law and Practice in Ontario: Health Protection and Promotion Act, covers all essential legislation, case law, commentaries and precedents in Ontario public health law. For more information, visit

Top Story

1. Canada: The junk food wars

States and Localities

2. California: Smoking ban hits home - truly

3. Florida: Jury: Florida smoker died because of addiction

4. New York: Court upholds the City's rule requiring some restaurants to post calorie counts

5. Wisconsin: Trials for parents who chose faith over medicine


6. Dog attacks prompt cities to look at pit bull bans

7. Obama signs children's health insurance bill


8. United Arab Emirates: Federal anti-smoking law carries stiff penalties

Briefly Noted

Florida pollution limits · Georgia food-borne Salmonella outbreak · Illinois smoking ban clarifications · TB patient · Montana seat belt bill · New York Medicaid rules · Pennsylvania smoking ban letters · Texas blood alcohol testing · Virginia mold suit · National greenhouse gas emissions · Embryonic stem cell study · HIV discrimination · Social hosting laws · Food safety · Lead standards rule delay · China tainted milk case · Tanzania traditional healer ban · United Kingdom drunken horseback riding · Workplace safety rules

Journal Articles

Justice system and young adults · Electronic health records · Legal triage · International trade and health · Quarantine and borders · Pharmacists and Hurricane Katrina · Resource allocation · Health insurance and GINA

Court Opinions

California secondhand smoke · Nevada MSA arbitration · New Jersey public property liability · Wisconsin cheerleading · Federal nurse staffing · Omnibus autism proceeding · Tobacco suit

Quotation of the Month

Ray Goodrich, Belmont, California resident


The junk food wars

National Post (01/27/09) Graeme Hamilton

In a victory for consumer-protection advocates in Quebec, Canada, the makers of Vachon snack cakes pleaded guilty to 22 charges under a Quebec law prohibiting advertising that targets children younger than 13 years of age. Saputo Inc. created the cartoon gorilla Igor, which was marketed to daycare centers across Quebec in 2007. Igor cakes were shaped like gorillas and filled with strawberry, chocolate, or vanilla filling. The marketing scheme included teaching children to do the Igor dance. The anti-obesity group Coalition Poids joined with the Union des Consommateurs to file the complaint, which resulted in a $44,000 fine. The Quebec law, in force since 1980, has rarely led to prosecutions. But similar charges are currently pending in Canada against two fast-food companies and a cereal manufacturer: McDonald's for sponsoring a series of children's movies during Christmas; Burger King for distributing toys with kids' meals; and General Mills for its Lucky Charms web site.

[Editor's note: To determine if advertising is directed at children, the law sets forth three factors: (1) the nature and purpose of the goods advertised; (2) the manner of presenting the advertising; and (3) the time and place shown. For more details, see Quebec's Consumer Protection Act, at and scroll to sections 248 and 249.]


Smoking ban hits home. Truly.

New York Times (01/27/09) Jesse McKinley

Since the passage of a city ordinance banning smoking in apartment buildings, Belmont, California is now Ground Zero in the fight against secondhand smoke. The ordinance, passed in 2007, went into effect on January 9, 2009. The law prohibits smoking in any apartment or condominium that shares a floor or ceiling with another, and all other places in the city except in detached homes and yards, streets and some sidewalks, and designated outdoor smoking areas. Violators can be fined $100. Impetus for the law came from residents of Bonnie Brae Terrace, a retirement complex that is home to tenants who rely on walkers, wheelchairs, and oxygen tanks. Led by Ray Goodrich, an 84 year-old who suffers from pulmonary disease and allergies, a legion of tenants embarked on a letter-writing campaign and followed up with visits to Belmont City Council meetings. Despite complaints and threats from city residents opposed to Goodrich's request to ban smoking in the apartment complex, the Council enacted the law in October 2007. The 14-month grace period gave apartment complexes time to rewrite lease agreements and tenants who opposed the new rule to move. "I think Belmont broke through this invisible barrier in the sense that it addressed drifting smoke in housing as a public health issue. They simply said that secondhand smoke is no less dangerous when it's in your bedroom than in your workplace," said Serena Chen, of the American Lung Association of California.

[Editor's note: To learn more about the Belmont, California Smoking Ordinance, visit]


Jury: Florida smoker died because of addiction

Associated Press (02/13/2009) Curt Anderson

A Florida jury has ruled that a 40-year chain smoker's death from lung cancer was a result of his addiction to nicotine. The lawsuit is the first of some 8,000 similar suits filed after the Florida Supreme Court threw out a $145 billion jury award in what had been the first class action lawsuit against tobacco companies to make it to trial in the United States. The Court upheld the lower court's conclusion that tobacco companies knowingly sold dangerous products and hid the risks of smoking, but held that each claimant must prove causation individually. The jury in the current case must now decide whether defendant tobacco company Philip Morris is culpable and, if so, what damages should be awarded. "It's highly likely that the tobacco companies will be forced to account for their decades-long, reprehensible history of corporate wrongdoing," said Edward L. Sweda, Jr., an attorney with Northeastern University Law School's Tobacco Products Liability Project. But Philip Morris, not conceding defeat, has issued a press release stating that the trial is not over.

[Editor's note: To read the 2006 Florida Supreme Court decision, Engle v. Liggett, visit]


Court upholds the City's rule requiring some restaurants to post calorie counts

The New York Times (02/18/2009) Sewell Chan

This week, a federal appellate court upheld New York City's 2007 regulation requiring most major fast food and chain restaurants to post calorie counts on their menus. A three-judge panel of the United States Court of Appeals for the Second Circuit rejected the New York State Restaurant Association's arguments that the rule was pre-empted by federal regulations and that it violated restaurants' First Amendment rights. The panel ruled that Congress intended to exempt restaurants from the Nutrition Labeling and Education Act of 1990, leaving the issue of whether to require calorie count posting up to state and local governments. The judges held that the First Amendment claim failed because, "the law in question mandates a simple factual disclosure of caloric information and is reasonably related to New York City's goal of combating obesity." The Restaurant Association has not yet said whether it plans to appeal the decision.


Trials for parents who chose faith over medicine

New York Times (01/21/09) Dirk Johnson

This spring, a Wisconsin couple will stand trial on charges of reckless endangerment for the death of their 11-year-old daughter from untreated juvenile diabetes. The couple, Dale and Leilani Neumann, had prayed for their daughter's recovery but did not take her to a doctor. They argue that the charges violate their Constitutional right to religious freedom. But according to Marathon County Circuit Court Judge Vincent Howard, who ordered the Neumanns to stand trial, "[t]he free exercise clause of the First Amendment protects religious belief, but not necessarily conduct." He further wrote that, while Wisconsin law protects parents who treat a child with only prayer from facing criminal charges for neglecting child welfare law, it only does so "as long as a condition is not life threatening." The issue of whether the Neumanns knew their daughter's condition was so dire will be the crux of the case, said Shawn Peters, a religion professor at the University of Wisconsin Oshkosh and an expert on religion and the law. In the last 25 years, about 300 children in the United States have died after their medical care was withheld on religious grounds, according to Rita Swan, executive director of Iowa-based Children's Health Care Is a Legal Duty. In 30 states, criminal codes provide some protection for parents or guardians who practice faith healing, said Swan.


Dog attacks prompt cities to look at pit bull bans

Associated Press (01/26/09) M.L. Johnson

Following a non-fatal attack on a 12 year-old girl, a proposed ordinance that would ban new pit bulls in West Allis, Wisconsin was vetoed by the town's mayor in favor of a broader "dangerous dog" ordinance. The debate in West Allis is not unlike that in other communities: ban a breed believed to be responsible for a high number of attacks or punish dogs of any breed with violent histories? No reliable data exist to demonstrate whether some breeds are more prone to attack humans than others. Most dog laws are local, although Ohio has a state law deeming purebred pit bulls as "vicious dogs" and requiring owners to buy at least $100,000 in liability insurance. Twelve states prohibit breed-specific restrictions and bans. In West Allis, the Common Council is considering a proposal to fine the owners of dogs who chase or attack people or other animals. "I just think that the residents would be better served with a law that would encompass all breeds of dog, all bad dog behavior, and not a specific breed," said Mayor Dan Devine.

[Editor's note: To learn more from CDC about dog attacks, visit For more on canine legislation, visit the American Kennel Club's Legislative Alerts page at]


Obama signs children's health insurance bill

New York Times (02/05/09) Robert Pear

On February 5, 2009, President Obama signed a bill extending the State Children's Health Insurance Program (SCHIP) to millions of low-income children. The Program, created in 1997, was intended to provide insurance coverage for children of families that earn too much to qualify for Medicaid, but not enough to afford private health insurance. According to the Congressional Budget Office, the new legislation will allow states to continue insuring seven million children and extend coverage to at least four million more by 2013. In addition to expanding coverage to more children, SCHIP will also allow states to expand coverage to certain legal immigrants, including children under age 21 and pregnant women. States are also required to insure dental care, and can provide dental coverage as a supplement to private insurance. "Mental health parity," or the provision of equal coverage for mental and physical illnesses, is also a feature of the new legislation. The $32 million price tag will be offset by an increase in tobacco taxes.

[Editor's note: For more information on the reauthorization of SCHIP, visit]


Federal anti-smoking law carries stiff penalties

Khaleej Times (01/24/09) Adel Arafah

Lawmakers in the United Arab Emirates are working to finalize a draft law designed to not only protect the public's health, but also reduce the financial burden placed on the nation for treating people with smoking-related illness. If enacted, the new law would ban tobacco sales to people under the age of 18 - including cigarettes and shisha (tobacco smoked with a hookah). Smoking would be prohibited in offices and public places, including public transit, shopping malls, schools, universities, hospitals, and social and cultural clubs. The new law would also prohibit tobacco cultivation, the establishment of tobacco product factories, and the expansion of currently-existing factories. The law also addresses tobacco marketing by requiring ingredients and warnings to be placed on cigarette packages, and prohibiting advertisements of tobacco products in the media, unless they meet certain conditions. Violations of the marketing restrictions could result in prison time and fines up to Dh50,000 (about $13,612).

_____________________BRIEFLY NOTED_______________________

Florida: EPA tells state to set pollution limits

After 10-year delay, curbing pollutants

Sarasota Herald-Tribune (01/24/09) Kate Spinner

Georgia: Experts say food-borne pathogen outbreaks rarely result in criminal charges

Feds rarely file charges in tainted food cases

Associated Press (01/31/09) Greg Bluestein

Illinois: Bill details how violations and violators should be handled

Governor signs bill clarifying state's smoking ban

State Journal-Register (02/04/09) Eric Naing and Andrew Thomason

Illinois: Patient to be tracked by GPS, could face jail time

Judge orders Illinois TB patient into isolation

Associated Press (01/22/09)

Montana: Bill would make failure to buckle up a primary offense

Senate approves seat belt bill by 1 vote

Associated Press (02/05/09)

New York: Ruling forces couples to choose between divorce or poverty over nursing home care

Change in Medicaid rules may pose stark choice for the chronically ill

New York Times (01/24/09) Anemona Hartocollis

Pennsylvania: Warning letters fail to give details

Smoking ban letters baffle recipients

Standard-Speaker (01/25/09) Kelly Monitz

Texas: Advocates worry that elected officials shirk responsibility by refusing to give evidence

Politicians know to say no to blood alcohol test

American-Statesman (02/01/09) Eric Dexheimer

Virginia: Jury awards family $4.75 million for medical problems caused by mold

Sick house, suffering family

Washington Post (02/01/09) Jonathan Mummolo

National: Public comment period on greenhouse gas emissions to reopen

EPA may seek new comment on California waiver this week

Reuters (02/03/09) Tom Doggett, Ayesha Rascoe, and John Crawley

National: First human trials of human embryonic stem-cell research could begin by summer

FDA approves human embryonic stem cell study

CNN (01/23/09) Miriam Falco

National: U.S. District Court to hear case of HIV+ employee working for government contractor

In dangerous locales, HIV discrimination isn't an open-and-shut case

Washington Post (01/28/09) Joe Davidson

National: State social hosting laws target parents whose homes are used for drinking parties

Officials crack down on booze-serving parents

CNN (02/12/09) Stephanie Chen

National: Series of incidents spurs calls for closer look at food safety

Peanut case shows holes in safety net

The New York Times (02/08/09) Michael Moss

National: CPSC votes to delay enforcing law protecting children from lead, phthalates

Officials delay new toy-testing standards

Washington Post (01/31/09) Annys Shin

China: Melamine scandal killed at least 6 infants, sickened nearly 300,000 others s

Death sentences in China tainted milk case

CNN (01/22/09) John Vause

Tanzania: Healers said to murder albinos for use in potions s

Government bans traditional healers to try to save the lives of albinos

New York Times (01/27/09) Donald G. McNeil Jr.

United Kingdom: 1872 Licensing Act bars being drunk in charge of horse, cattle, steam engine

British man fines for riding horse while drunk

Associated Press (01/30/09)

United Kingdom: Health and Safety (Offences) Act 2008 went into effect last month

Employees warned over strict new workplace safety rules

Times Online (01/12/09) Morwenna Coniam

___________________JOURNAL ARTICLES______________________

Justice system involvement into young adulthood: Comparison of adolescent girls in the public mental health system and in the general population

American Journal of Public Health (02/09) Maryann Davis and others

(subscription required)

Finding a cure: the case for regulation and oversight of electronic health record systems

Harvard Journal of Law and Technology (Fall 2008) Sharona Hoffman and Andy Podgurski

Principles and practice of legal triage during public health emergencieses

NYU Annual Survey of American Law (2008) James Hodge Jr. and Evan Anderson

Managing the pursuit of health and wealth: the key challenges

Lancet (01/24/09) David Fidler, Nick Drager, and Kelley Lee

(subscription required) )

A new paradigm for quarantine and public health activities at land borders

Public Health Reports (03-04/09) Stephen Waterman and others

(subscription required)

The nontraditional role of pharmacists after Hurricane Katrina

Public Health Reports (03-04/09) Michael Hogue and others

(subscription required)

Resource allocation on the frontlines of public health preparedness and response

Public Health Reports (03-04/09) Daniel Barnett and others

(subscription required)

Law and the public's health: health insurance & the Genetic Info. Nondiscrimination Act of 2008

Public Health Reports (03-04/09) Perry Payne Jr. and others

(subscription required)

___________________COURT OPINIONS____________________

California: Demurrer to nuisance cause of action for failure to limit secondhand smoke reversed

Birke v. Oakwood Worldwide

Court of Appeal of California, 2nd Appellate District, Division 7

No. B203093

Filed January 12, 2009

Opinion by Judge Fred Woods

Nevada: Issues concerning adjustment of state's annual MSA payment must be arbitrated

Attorney General v. Dist. Ct. (Philip Morris)s)

Supreme Court of the State of Nevada

No. 49426

125 Nev. Adv. Op. No. 5

Filed January 29, 2009

Opinion by Justice Michael Cherry

New Jersey: City liable for injuries only when actions are "palpably unreasonable"

Ogborne v. Mercer Cemetery Corporation

Supreme Court of New Jersey y

No. A-66/67-07

Decided January 29, 2009

Opinion by Justice John E. Wallace Jr.

Wisconsin: Cheerleading is contact sport; participants cannot be sued for accidental injuries

Noffke v. Bakke

Supreme Court of Wisconsin

No. 2006AP1886

2009 WI 10

Filed January 27, 2009

Opinion by Justice Annette Ziegler

Federal: HHS Secretary motion to dismiss suit for unlawful, inadequate staffing granted

American Nurses Association v. Leavitt

U.S. District Court for the District of Columbia

Civil Action 06-01087 (HHK)

Filed January 13, 2009

Opinion by Judge Henry H. Kennedy Jr.

Federal: Omnibus autism proceeding finds vaccines do not cause autism

Cedillo v. Secretary of Health and Human Services Case No. 98-916V

Hazlehurst v. Secretary of Health and Human Services Case No. 03-654V

Snyder v. Secretary of Health and Human Services Case No. 01-162V

Filed February 12, 2009

Opinions by Special Masters Hastings, Campbell-Smith, and Vowell, respectively

Federal: 7 year-old suit against New York by tobacco companies dismissed

Freedom Holdings, Inc. v. Cuomo

U.S. District Court for the Southern District of New York

02 Civ. 2939 (AKH)

Decided January 12, 2009

Opinion by Judge Alvin K. Hellerstein

(subscription required)

__________PHL NEWS QUOTATION OF THE MONTH___________

"The worst place you can be is between an addict and their fix."

-- Ray Goodrich, Belmont, California resident, on the backlash he has experienced since advocating for the city's ordinance prohibiting smoking in apartments. [See item 2, above.]


The CDC Public Health Law News is published the third Wednesday of each month except holidays, plus special issues when warranted. It is distributed only in electronic form and is free of charge. News content is selected solely on the basis of newsworthiness and potential interest to readers. CDC and DHHS assume no responsibility for the factual accuracy of the items presented. The selection, omission, or content of items does not imply any endorsement or other position taken by CDC or DHHS. Opinions expressed by the original authors of items included in the News, or persons quoted therein, are strictly their own and are in no way meant to represent the opinion or views of CDC or DHHS. References to products, trade names, publications, news sources, and non-CDC Websites are provided solely for informational purposes and do not imply endorsement by CDC or DHHS. Legal cases are presented for educational purposes only, and are not meant to represent the current state of the law. The findings and conclusions reported in this document are those of the author(s) and do not necessarily represent the views of CDC. The News is in the public domain and may be freely forwarded and reproduced without permission. The original news sources and the CDC Public Health Law News should be cited as sources. Readers should contact the cited news sources for the full text of the articles.

For past issues or to subscribe to the CDC Public Health Law News, visit For help with subscriptions or to make comments or suggestions, send an email to Rachel Weiss at

The News is published by the Public Health Law Program, Office of Strategy and Innovation, Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services (DHHS). Rachel Weiss, J.D., Editor; Karen M. Leeb, J.D., M.L.S., Editorial Advisor.

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