February 2009 - CDC Public Health Law News
Wednesday, February 18, 2009
From the Public Health Law Program,
Office for State, Tribal, Local and Territorial Support,
Centers for Disease Control and Prevention
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 http://www.deprisonmonitor.org/downloads/MonitorReport0901.pdf 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 http://www.iom.edu/Object.File/Master/61/836/HIPAA%20report%20brief%20FINAL.pdf.
*** 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 http://www.carswell.com/description.asp?DocID=5365&pgid=description.
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
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
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
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
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 http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=%2F%2FP_40_1%2FP40_1_A.htm and scroll to sections 248 and 249.]
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 http://www.belmont.gov/SubContent.asp?CatId=240001764&C_ID=240002655.]
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 http://www.floridasupremecourt.org/decisions/2006/sc03-1856.pdf.]
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.
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.
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 http://www.cdc.gov/ncipc/duip/biteprevention.htm. For more on canine legislation, visit the American Kennel Club's Legislative Alerts page at http://www.akc.org/news/sections/legislative_alerts.cfm.]
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 http://www.ncsl.org/statefed/health/SCHIPreauth.htm.]
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).
Florida: EPA tells state to set pollution limits
Sarasota Herald-Tribune (01/24/09) Kate Spinner
Georgia: Experts say food-borne pathogen outbreaks rarely result in criminal charges
Associated Press (01/31/09) Greg Bluestein
Illinois: Bill details how violations and violators should be handled
State Journal-Register (02/04/09) Eric Naing and Andrew Thomason
Illinois: Patient to be tracked by GPS, could face jail time
Associated Press (01/22/09)
Montana: Bill would make failure to buckle up a primary offense
Associated Press (02/05/09)
New York: Ruling forces couples to choose between divorce or poverty over nursing home care
New York Times (01/24/09) Anemona Hartocollis
Pennsylvania: Warning letters fail to give details
Standard-Speaker (01/25/09) Kelly Monitz
Texas: Advocates worry that elected officials shirk responsibility by refusing to give evidence
American-Statesman (02/01/09) Eric Dexheimer
Virginia: Jury awards family $4.75 million for medical problems caused by mold
Washington Post (02/01/09) Jonathan Mummolo
National: Public comment period on greenhouse gas emissions to reopen
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
CNN (01/23/09) Miriam Falco
National: U.S. District Court to hear case of HIV+ employee working for government contractor
Washington Post (01/28/09) Joe Davidson
National: State social hosting laws target parents whose homes are used for drinking parties
CNN (02/12/09) Stephanie Chen
National: Series of incidents spurs calls for closer look at food safety
The New York Times (02/08/09) Michael Moss
National: CPSC votes to delay enforcing law protecting children from lead, phthalates
Washington Post (01/31/09) Annys Shin
China: Melamine scandal killed at least 6 infants, sickened nearly 300,000 others s
CNN (01/22/09) John Vause
Tanzania: Healers said to murder albinos for use in potions s
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
Associated Press (01/30/09)
United Kingdom: Health and Safety (Offences) Act 2008 went into effect last month
Times Online (01/12/09) Morwenna Coniam
American Journal of Public Health (02/09) Maryann Davis and others
Harvard Journal of Law and Technology (Fall 2008) Sharona Hoffman and Andy Podgurski
NYU Annual Survey of American Law (2008) James Hodge Jr. and Evan Anderson
Lancet (01/24/09) David Fidler, Nick Drager, and Kelley Lee
(subscription required) )
Public Health Reports (03-04/09) Stephen Waterman and others
Public Health Reports (03-04/09) Michael Hogue and others
Public Health Reports (03-04/09) Daniel Barnett and others
Public Health Reports (03-04/09) Perry Payne Jr. and others
California: Demurrer to nuisance cause of action for failure to limit secondhand smoke reversed
Court of Appeal of California, 2nd Appellate District, Division 7
Filed January 12, 2009
Opinion by Judge Fred Woods
Nevada: Issues concerning adjustment of state's annual MSA payment must be arbitrated
Supreme Court of the State of Nevada
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"
Supreme Court of New Jersey y
Decided January 29, 2009
Opinion by Justice John E. Wallace Jr.
Wisconsin: Cheerleading is contact sport; participants cannot be sued for accidental injuries
Supreme Court of Wisconsin
2009 WI 10
Filed January 27, 2009
Opinion by Justice Annette Ziegler
Federal: HHS Secretary motion to dismiss suit for unlawful, inadequate staffing granted
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
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
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
__________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.
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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.