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Wednesday, March 18, 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



*** Surge Capacity Disaster Planning Tool. The Agency for Healthcare Research and Quality has released a web-based interactive tool to help hospitals and emergency planners identify resource requirements to treat an influx of patients due to major disasters such as an influenza pandemic or a terrorist attack. For more information, visit

*** NJ Hospital Emergency Planning Tool. The New Jersey Hospital Association recently published "Planning Today for a Pandemic Tomorrow," a 10-unit assessment and planning tool for hospitals to use in planning for emergencies. For more information, visit

*** GAO Reports. The Government Accountability Office has released three new reports on emergency preparedness: Past Experiences Offer Recovery Lessons for Hurricanes Ike and Gustav and Future Disasters, available at; Sustaining Focus on the Nation's Planning and Preparedness Efforts, available at; and Actions to Implement Select Provisions of the Post-Katrina Emergency Management Reform Act, available at

*** AJPM Diet, Physical Activity, Weight Supplement. The American Journal of Preventive Medicine April 2009 Supplement presents articles on the theme, "Measurement of the Food and Physical Activity Environments Enhancing Research Relevant to Policy on Diet, Physical Activity, and Weight." The table of contents for the April Supplement is available at

*** Milbank Quarterly Report Obesity Issue. The March 2009 issue of the Milbank Quarterly is dedicated to the issue of obesity prevention and control. The table of contents for the March issue is available at

*** IOM HIPAA Privacy Rule 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 on February 4, 2009. The report examines the impact of the HIPAA Privacy Rule on protecting health information, and offers major recommendations for legal and policy reforms. The full report is available at

*** BC Sewer System Report. TheSewerage System Regulation Improvement Coalition called on the British Columbia government to immediately reform the Sewerage System Regulation -- a 2005 law that radically deregulated the province's 300,000 onsite septic systems. The Coalition warns that a public health disaster may be imminent, and has submitted a report to the government, which is available at

*** Health Reform Legal Solutions. The O'Neill Institute for National and Global Health Law at Georgetown University has launched the "Legal Solutions in Health Reform" project to provide analysis of legal issues relating to health reform, and to outline solutions to legal problems in the health reform debate. Reports are available at

*** Flavored Tobacco Products Law Synopsis. The Tobacco Control Legal Consortium has released Pick Your Poison: Responses to the Marketing and Sale of Flavored Tobacco Products. The synopsis describes various types of flavored tobacco products and evidence that the marketing of these products, and the products themselves, target youth; and reviews legal approaches to regulating such products. The synopsis is available online at

*** Prescription Drug Report. The February issue of the Council of State Governments' State News magazine features "Accidental Overdoses from Legal Drugs," by Ann Kelly. The article documents state efforts to find legislative solutions. To download the article, visit

*** Ireland Folic Acid Report. The Implementation Group on Folic Acid Fortification has released its final report to Ireland's Department of Health and Children, including the recommendation that there are no potential benefits to public health to introduce mandatory folic acid fortification. The group's report is available at

*** Massachusetts Drowsy Driving Report. The Legislature-convened Special Commission on Drowsy Driving has released Asleep at the Wheel: Report of the Special Commission on Drowsy Driving. The report reviews data on drowsy driving and endorses several pieces of legislation. To access the report, visit

*** Research and Policy Making Guide. The Council of State Governments partnered with CDC to develop Using Research in Public Health Policymaking, designed to help state legislators and other policymakers use the available science when making public health policy decisions. To access the guide, visit

*** Harvard Research Associate Position. The Harvard School of Public Health has announced a fellowship opportunity in the Program in Law and Public Health. The successful candidate will work closely with Law and Public Health faculty on research projects involving the relationship between law and health. Candidates must hold a law degree from a U.S. law school or receive one by June 2009. Please send a letter of application, including a statement of research interests, a curriculum vitae, a sample publication or working paper, and the names of three referees, to Michelle Mello at More information is available at

*** ABA Children and Law Conferences (5/13-5/14 and 5/15-5/16). The American Bar Association presents two conferences: "The First National Parents' Attorneys Conference," on May 13 and 14, 2009 and "The 2009 National Conference on Children and the Law," on May 15-16, 2009. Both conferences will be held in Washington D.C. More information about both conferences is available at

*** Healthy Foods, Healthy Bodies and Healthy Budgets Webcast (3/25). The National Conference of State Legislatures will host a free, limited-space webcast on policy options for healthy foods and physical activity on March 25, 2009 from 12:00-1:30 p.m. ET. For more information, visit

Top Story

1. Canada: SARS victims get day in court

States and Localities

2. California: State reports hospital errors that shouldn't happen

3. Texas: State sued over babies' blood

4. Virginia: For next disaster, more help for victims


5. New rule enacted by Bush Administration impedes cases against nursing homes


6. United Kingdom: Scotland to ban cheap booze

Briefly Noted

Arkansas Sunday liquor sales · Connecticut chimpanzee attack lawsuit · Georgia peanut inspection system · Iowa shaken baby law · Maryland low-income patients lawsuit · Ohio sewer rules · Oklahoma poultry waste evidence · Pennsylvania newborn blood screening · Virginia smoking ban · Wisconsin exotic pets · Washington D.C. lead-tainted tap water lawsuit · Gulf Coast formaldehyde trailer lawsuits · National sick cows · Banned books · Toxics reporting · Hotel defibrillators · Bahrain seat belt law · China food safety law · England smoking ban suspension · Jordan smoking ban · Obituary Alan Landers

Journal Articles

Texas smoke-free ordinances · Tobacco taxes · Tobacco industry strategy · Truck-crash fatalities · HPV vaccination · Motorcycle helmet laws · Turning Point Act · Indian Country public health legal preparedness · Fat taxes · Trends in blood lead levels

Court Opinions

California methylmercury · Federal psychiatric facility smoking ban · Consumer Product Safety Improvement Act · School drug testing policy · Menu labeling · Toxic exposures · Hurricane Katrina clean-up ·

Quotation of the Month

Deborah Duke, collection management administrator for the Fort Worth, Texas, Public Library


SARS victims get day in court

Toronto Star (02/25/09) Tracey Tyler

Last month, victims of the 2003 Ontario, Canada, SARS outbreak faced the government in court, where they argued that the province put tourism and the economy ahead of the public's health. Lawsuits have been filed by dozens of infected patients, their families, and healthcare workers, but the government is asking the Ontario Court of Appeal to dismiss five of the suits, including one filed on behalf of a group of healthcare workers, for lack of standing. The province argues that members of the public have no right to sue the government for failing to stop the spread of a communicable disease. Plaintiffs allege that provincial officials prematurely declared the emergency over and relaxed infection control procedures. The province also failed to ensure proper respiratory protection and other safety measures in hospitals, say lawyers for a group of nurses. Claims accusing the government of failing to act are expected to turn on a 2006 West Nile Virus case, in which the government successfully argued that the virus posed a risk to all members of the public and the risk was not created by the government. Attorneys for the SARS plaintiffs say there are important differences between the two cases.


State reports hospital errors that shouldn't happen

Ventura County Star (03/08/09) Tom Kisken

A California law requiring hospitals to collect data on 28 different types of preventable errors has triggered reports from hospitals around the state. State health officials say there were 1,031 preventable adverse events at California hospitals in the year ending June 2008. Those events include surgeries performed on the wrong patient or the wrong body part; medication errors; objects left inside surgical patients; and pressure ulcers. Officials caution that the reported numbers may be low, and that they are likely to increase as hospitals become better at reporting. Another theory for the low numbers is that medical teams often do not realize a mistake has been made. "The vast majority go unnoticed and unreported," said Brent James, executive director of the Institute for Health Care Delivery Research in Salt Lake City. "We used to think that people didn't report it because of fear. Now we understand the reason people don't report is they don't have a clue. They don't make the connection." Facilities are required by law to take corrective action after being cited for errors, said Kathleen Billingsley, deputy director in the California Department of Public Health's Center for Health Care Quality. Some critics say hospitals should not be allowed to design their own plans for eliminating preventable errors, and would prefer that the state mandate safeguards for hospitals.

[Editor's note: To learn more about California Health and Safety Code § 1279.1, visit]


State sued over babies' blood

Austin American-Statesman (03/13/09) Mary Ann Roser

Four parents and a pregnant woman have filed suit against the Texas Department of State Health Services for the Department's practice of storing infants' blood. Per a 1965 Texas law, blood is taken from newborns for the purpose of screening for birth defects and other disorders, and the procedure does not require parental consent. Since 2002, the Department has stored the blood samples for use in research and other purposes, amassing 4.2 million samples. Plaintiffs, represented by the Texas Civil Rights Project in Austin, filed suit in U.S. District Court in San Antonio. They claim the state is violating state privacy laws and constitutional protections against unlawful search and seizure, and demand that the state cease the storage of blood samples without parental consent, as well as the destruction of currently-held samples. "The screening (for disorders) is fine," said James Harrington, director of the Civil Rights Project. "It's what they're doing afterwards." The Department argues that the samples could prove valuable for disease research, and that the identity of the infants is not tied to the samples. The Department has offered to consider destroying the blood samples if parents make request it in writing, but Harrington says the plaintiffs find that response inadequate.


For next disaster, more help for victims

Washington Post (03/12/09) Tom Jackman

A panel created to investigate the response to shootings on the Virginia Tech campus in 2007 has prompted the passage of legislation mandating certain provisions be included in campus response plans. The legislation requires Virginia's institutes of higher education, health departments, and emergency management agencies to include victim assistance groups in response plans, and to notify such groups as soon as an emergency begins to unfold. The report, compiled by the Virginia Tech Review Panel, found that "certain state assistance resources were not [summoned] quickly enough and arrived late." Further, "the lack of an adequate university emergency response plan to cover the operation of an onsite, post-emergency operations center ... and a family assistance center hampered response efforts." The Panel found that the delay ensued because of confusion over authority among university and state officials. The legislation also requires emergency operations managers to maintain current contact information with the state Department of Criminal Justice Services and the Virginia Criminal Injuries Compensation Fund.

[Editor's note: To read the report of the Virginia Tech Review Panel, visit To read the text of the bill, SB 1150, "Emergency response plans; ensuring victims' rights," visit]


New rule enacted by Bush Administration impedes cases against nursing homes

Washington Post (02/24/09) Cindy Skrzycki

A regulation issued in September prohibits state health inspectors and contractors from participating in private lawsuits against long-term nursing care facilities. Advocates for nursing-home residents say the new rule restricts access to reports of inspections conducted by government investigators. "This change hurts nursing-home residents and their families by allowing bad practices to be kept in secret by nursing homes and inspectors," said Eric M. Carlson, an attorney with the National Senior Citizens Law Center in Los Angeles. "Government inspectors have the right to go into nursing homes and investigate, and they learn things that residents and families otherwise could never find out." A document supporting the rule indicated that its purpose was to accommodate the hiring of new contractors and prevent employees from being "divert[ed] ... from their federal survey, certification and enforcement responsibilities," by requests to participate in private lawsuits. The effect of the rule is that once-routine requests for information are now stalled between federal and state authorities. Nursing homes are also having difficulty gaining information about how inspectors determine penalties, citations, and orders, said Priscilla Shoemaker, legal counsel for the American Health Care Association in Washington.

[Editor's note: To read the text of the regulation, "Testimony by employees and the production of documents in proceedings where the United States is not a party," 45 C.F.R. § 2.1 et seq., visit]


Scotland to ban cheap booze

Daily Mail (03/03/09) Daniel Martin

The Scottish devolved government is to be the first in Europe to set a minimum price for alcohol in an effort to curb a rise in alcohol-related health problems. "Plummeting prices and aggressive promotion have led to a surge in consumption, causing and adding to health problems ranging from liver and heart diseases to diabetes, obesity, dementia and cancers," said Scottish health minister Nicola Sturgeon. The move will prohibit retailers and pubs from selling drinks below a certain price and will also outlaw special promotions. Last year, a health department report found that setting prices would cut consumption by 2.6 percent and reduce the number of alcohol-related hospital admissions by 40,000 per year in England. Opponents of the plan include David Poley, chief executive of the Portman Group, which represents UK alcohol-makers. "These plans will punish all drinkers while only scratching at the surface of our drinking culture. People who drink to get drunk would not be influenced by these measures," he said. Physicians and police welcome the move.

[Editor's note: To read the findings from an analysis of written responses to the Scottish Government consultation, "Changing Scotland's relationship with alcohol: a discussion paper on our strategic approach," visit]

_____________________BRIEFLY NOTED______________________

Arkansas: Liquor retailers haven't made up mind about new rules

New law allows voters to decide on Sunday liquor sales

Northwest Arkansas Times (03/06/09) Dustin Tracy

Connecticut: Suit alleges chimpanzee owner negligent, reckless for wild animal

Family of Conn. chimp attack victim seeks $50M

Associated Press (03/17/09) Dave Collins

Georgia: Investigative report inspects Agriculture Department inspectors

Peanut inspection system filled with holes

Atlanta Journal-Constitution (03/08/09) Alan Judd

Iowa: Law requires Department of Public Health to establish program; offers no funds

Iowa gov signs shaken baby measure

Chicago Tribune (03/06/09) Mike Glover

Maryland: Group claims state moves low-income patients to nursing homes to save money

Legal Aid sues Md. over care of patients

Baltimore Sun (03/06/09) Kelly Brewington

Ohio: State law leaves village residents no choice but connect to sewer line

Some think sewer line's a raw deal

Columbus Dispatch (03/01/09) Mary Beth Lane

Oklahoma: Key evidence in poultry waste suit rejected for publication twice

Journal rejects science used in state's poultry lawsuit

Associated Press (03/09/09) Justin Juozapavicius

Pennsylvania: 22 additional disorders added to state blood testing requirements

Babies' blood tests to expand

Morning Call (03/02/09) Veronica Torrejón

Virginia: Home of RJ Reynolds bans smoking in restaurants beginning December 1

Kaine signs restaurant smoking ban legislation

Roanoke Times (03/10/09) Michael Sluss

Wisconsin: Health board votes to uphold law regulating exotic pets

South Milwaukee Board of Health says no to pet goat

Milwaukee Journal Sentinel (03/05/09) Jesse Garza

Washington D.C.: Dad claims lead-tainted tap water poisoned sons

Father sues D.C. water authority for $200 million

Associated Press (02/18/09) Gillian Gaynair

Gulf Coast: Plaintiffs say manufacturers, government failed to warn of danger

Four jury trials set in trailer lawsuits

Times-Picayune (02/18/09) Gwen Filosa

National: Sick cows permanently banned from slaughter

Government bans 'downer' cows from food supply

Associated Press (03/14/09)

National: One-year enforcement delay for books with lead-based inks

Librarians fight to get all children's books exempted from new lead rules

Star-Telegram (03/05/09) Anna Tinsley

National: 1986 law restored; companies must report release of toxics

Reporting rules for chemical releases toughened

Washington Post (03/12/09) Juliet Eilperin

National: Hotels worry that 'no good deed would go unpunished' if AEDs installed

Why hotels resist having defibrillators (subscription required)

Wall Street Journal (02/24/09) Scott McCartney

Bahrain: 80% of drivers ignore law, top traffic official says

Drivers defying seat belt rules

Gulf Daily News (03/12/09) Soman Baby

China: New law strengthens penalties against makers of tainted food

Some skeptical of China's new food safety law

USA Today (03/01/09) Calum MacLeod

England: Government criticized over plans to lift smoking ban for London summit

Labor 'double standards' as smoking ban is lifted for G20 world leaders

Daily Mail (03/12/09) Ryan Kisiel and Claire Ellicott

Jordan: Smokers defiant despite attempts to enforce public smoking ban

Malls struggle to impose smoking ban

Jordan Times (03/02/09) Khetam Malkawi


Florida: Former model's suit against RJ Reynolds scheduled for April trial date

Lauderhill resident Alan Landers, the 'Winston Man' dies at 68, battling cancer

South Florida Sun-Sentinel (03/03/09) Liz Doup

___________________JOURNAL ARTICLES____________________

Smoke-free ordinances in Texas worksites, restaurants, and bars, 2000-2007

American Journal of Preventive Medicine (02/09) Phyllis M. Gingiss and others

Taxation reduces social disparities in adult smoking prevalence (subscription required)

American Journal of Preventive Medicine (02/09) Mohammad Siahpush and others

Competing initiatives: a new tobacco industry strategy to oppose statewide clean indoor air ballot measures (subscription required)

American Journal of Public Health (03/09) Gregory Tung, Yogi Hendlin, and Stanton Glantz

The effect of state regulations on truck-crash fatalities (subscription required)

American Journal of Public Health (03/09) Grant Neeley and Lilliard Richardson Jr.

The moral justification for a compulsory human papillomavirus vaccination program (subscription required)

American Journal of Public Health (04/09) Joseph Balog

Motorcycle helmet laws in the United States from 1990 to 2005: politics and public health (subscription required)

American Journal of Public Health (03/09) Jenny Homer and Michael French

Transitions in state public health law: comparative analysis of state public health law reform following the Turning Point Model State Public Health Act

American J. Public Health (03/09) Benjamin Mason Meier, James Hodge, Kristine Gebbie

Public health legal preparedness in Indian Country (subscription required)

American Journal of Public Health (04/09) Ralph Bryan and others

"Fat taxes" and the financial crisis (subscription required)

The Lancet (03/07/09) Karen McColl

Trends in blood lead levels and blood lead testing among US children aged 1 to 5 years, 1988-2004 (subscription required)

Pediatrics (03/09) Robert Jones and others

___________________COURT OPINIONS____________________

California: Companies exempt from warning mandate because methylmercury occurs naturally

The People ex rel. Edmund Brown Jr. v. Tri-Union Seafoods

Court of Appeal of California, First Appellate District, Division Four


Filed March 11, 2009

Opinion by Associate Justice Timothy A. Reardon

Federal: Complete ban against smoking in psychiatric facility violates no Constitutional right

Giordano v. Connecticut Valley Hospital

U.S. District Court for the District of Connecticut

No. 3:07cv1444 (MRK)

Decided December 3, 2008

Memorandum Opinion by Judge Mark Kravitz

Federal: CPSC found in violation of Consumer Product Safety Improvement Act

Natural Resources Defense Council* v. U.S. Consumer Product Safety Commission

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

08 Civ. 10507 (PGG)

Memorandum Opinion and Order by Judge Paul Gardephe

* caption in official style of the case incorrectly identifies plaintiff as National Resources Defense Council

Federal: Privacy interests of school employees not outweighed by drug testing policy

American Federation of Teachers v. Kanawha Co. Board of Education

U.S. District Court for the Southern District of West Virginia, Charleston Division

Civil Action No. 2:08-cv-01406

Decided January 8, 2009

Memorandum Opinion by Joseph R. Goodwin

Federal: Menu labeling law not preempted by federal law, no First Amendment infringement

New York State Restaurant Association v. New York City Board of Health

U.S. Court of Appeals for the Second Circuit

Docket No. 08-1892-cv

Decided February 17, 2009

Opinion by Judge Rosemary Pooler

Federal: Petition for review of toxic exposure notification granted; case remanded to OSHA

Public Citizen Health Research Group v. Occupational Safety and Health Administration

U.S. Court of Appeals for the Third Circuit

Nos. 06-1818 and 06-2604

Filed February 23, 2009

Opinion by Marjorie Rendell

Federal: FEMA discretion not to fund Katrina clean-up under Stafford Act upheld

St. Tammany Parish v. Federal Emergency Management Agency

U.S. Court of Appeals for the Fifth Circuit

No. 08-30070

Filed January 22, 2009

Opinion by Judge Carolyn King

__________PHL NEWS QUOTATION OF THE MONTH___________

"We've had children's books for 100 years. Other than the occasional expanded mind, we haven't heard of them harming any children."

-- Deborah Duke, collection management administrator for the Fort Worth, Texas, Public Library, on new federal rules designed to protect children from lead-based paints and toys. The use of lead pigments in ink and dye used to publish books was banned in 1985, but many such books remain on library shelves. Last month, the government agreed to delay enforcement of the new law against libraries. [See Briefly Noted item, 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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