April 2009 - CDC Public Health Law News
Wednesday, April 15, 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
*** Overview of Federal Public Health Emergency Law (4/28). The CDC Public Health Law Program will co-host the facilitated conference call "Federal Public Health Emergency Law - Implications for State and Local Preparedness and Response," on April 28, 2009. Senior legal counsel to CDC, the Department of Health and Human Services, and the Federal Emergency Management Agency will present a comprehensive overview of the principal federal laws that frame responses to all-hazards public health emergencies. The conference call will be held from 2:00 p.m. to 4:00 p.m. ET; there is no charge for participation. For more information, including the call-in number and passcode, visit http://emergency.cdc.gov/coca/callinfo.asp.
*** Biosecurity and Bioterrorism Legal Perspectives Column. Biosecurity and Bioterrorism: Biodefense Strategy, Practice, and Science, the peer-reviewed journal of the Center for Biosecurity of the University of Pittsburgh Medical Center, recently launched a "Legal Perspectives" column. The column is aimed at informing health care providers, emergency planners, and other decision makers about important legal issues related to public health and health care preparedness and response. For additional information, please visit the journal's website at http://www.liebertonline.com/toc/bsp/6/4.
*** Public Health March Issue. The international journal Public Health has devoted its March 2009 issue to the role of law in public health. Visit http://www.sciencedirect.com/science/journal/00333506 to view the journal's table of contents.
*** Climate Change and Public Health Publication. Public Health Law & Policy recently released An Action Plan for Public Health - Initial Recommendations for Involving Public Health in Climate Change Policy. The publication presents an initial assessment of public health's abilities to fully engage in climate change work as well as a preliminary set of recommended actions. To access the publication, visit http://www.phlpnet.org/ClimateChangeReport_web_090318.pdf.
*** State Children's Health Legislation Report. The American Academy of Pediatrics has published The 2008 State Legislation Report, which outlines activity on 11 issues related to children's health and safety. To access the report, visit http://www.aap.org/advocacy/statelegrpt.pdf.
*** School Preparedness Analysis. The Agency for Healthcare Research and Quality has released "School-Based Emergency Preparedness: A National Analysis and Recommended Protocol." The report is available at http://www.ahrq.gov/prep/schoolprep/.
*** EU Biomedical Research Rules. In 2008, the European Parliament initiated updating and standardizing rules governing use of nonhuman primates and other animals in biomedical research across member states. The Parliament's Agriculture Committee recently voted on proposed amendments to the existing rules, which are intended to strike a balance between maintaining minimum numbers of animals available for research while improving their welfare. To learn more about the legislation, visit http://www.europarl.europa.eu/oeil/file.jsp?id=5713682.
*** FEMA Hearing (4/23). The U.S. House Transportation and Infrastructure Committee will hold a hearing entitled "An Independent FEMA" on April 23, 2009, at 11:00 a.m. The hearing will be held in Room 2167 of the Rayburn House Office Building. More information is available at http://transportation.house.gov/hearings/hearingDetail.aspx?newsid=880.
*** Health Reform Solutions Symposium (4/27). The O'Neill Institute for National and Global Health Law will present "Legal Solutions in Health Reform Spring Symposium," on April 27, 2009, from 9:00 a.m. to 1:00 p.m. ET. For more information, visit http://www.oneillinstitute.org/projects/reform.
*** EEOC Notice of Proposed Rulemaking (5/1). The U.S. Equal Employment Opportunity Commission (EEOC) has released a Notice of Proposed Rulemaking implementing employment provisions of the Genetic Information Non-Discrimination Act of 2008 (GINA). The public comment period closes May 1, 2009. View the text of the proposed rule at http://edocket.access.gpo.gov/2009/E9-4221.htm.
*** RWJF Call for Proposals in Public Health Law (5/19). The Robert Wood Johnson Foundation seeks to build the evidence for and strengthen the use of regulatory, legal, and policy solutions to improve public health. RWJF is launching this program to build a field of research and practice in public health law, and will accept proposals until May 19. For more information, visit http://www.rwjf.org/applications/solicited/cfp.jsp?ID=20761&c.
1. Canada: Murder verdict in HIV case sets off alarm
States and Localities
2. California: California schools' risks rise as vaccinations drop
3. Massachusetts: Public schools to send home weight reports
4. Ohio: Did popcorn flavoring hurt woman's lungs?
5. Ban on feet-nibbling fish leaves nail salons on the hook
6. High Court won't take up award against Philip Morris
California smoker decline · Tainted jewelry investigation · Sewer suit · Colorado carbon monoxide law · Idaho daycare rules · Massachusetts breastfeeding law · Nevada TB investigation · New York eco-police · National smoking costs · House FDA tobacco vote · Congressional IRB sting · Tobacco tax · Canada pesticide ban · Health emergency law · China health-care reform · Scotland whole milk ban · United Kingdom health tourism · European Union cellphone rules · Obituary Claude Brinegar
Infection prevention and disaster planning · Trans fat rules · PREP Act liability protection · School physical activity policy and BMI · Health information exchange · HIPAA Privacy Rule · BMI screening · Secondhand smoke
California methylmercury in tuna · Connecticut OWI law · Indiana OWI law · Maryland inmate medical care consent · Federal Hurricane Katrina response
Quotation of the Month
Lynda Elliott, a New Hampshire Board of Barbering, Cosmetology and Esthetics official
Canwest News Service (04/06/09) Jordana Huber and Tiffany Crawford
A jury in Ontario, Canada, recently convicted 52-year old Johnson Aziga of murder for the deaths of two women who died after contracting HIV from him. Aziga was found guilty of intentionally causing the deaths by having unprotected sex and failing to tell his sexual partners he knew he was HIV positive. He was also found guilty of 10 counts of aggravated sexual assault, and one count of attempted aggravated sexual assault for similar incidents with nine other women. The murder conviction was the first of its kind in Canada, and possibly the world. The verdict has set off intense debate among those who believe criminalizing HIV transmission is wrong. "Do we as a society think not telling someone you're living with a sexually transmitted infection is the equivalent of murder?" asked Alison Symington, of the Canadian HIV/AIDS Legal Network. Others worry that the risk of criminal prosecution may deter people from seeking medical treatment or disclosing their status to authorities. In 1998, the Supreme Court of Canada ruled that a defendant may be convicted of aggravated sexual assault (a lesser included charge of murder) if he or she engages in the conduct for which Aziga was convicted. "Normally, we have no interest in what is going on in the bedrooms of HIV-positive individuals," said Crown attorney Karen Shea. "But when you have circumstances in which the individual is engaging in conduct knowing full well that he is endangering the health and lives of others, it's not only appropriate but completely warranted to invoke the criminal law."
[Editor's note: To read the full text of R v. Cuerrier,  2 S.C.R. 371, visit http://www.canlii.org/en/ca/scc/doc/1998/1998canlii796/1998canlii796.html.]
Los Angeles Times (03/29/09) Rong-Gong Lin II and Sandra Poindexter
A Los Angeles Times analysis of data from California indicates that the number of parents refusing to vaccinate their school-age children is on the rise, putting hundred of other children at risk. According to the Times, personal belief exemptions from state-mandated school-entry vaccination requirements have more than doubled since 1997, and are largely attributed to fears shared by many affluent parents about autism. More than 10,000 California kindergarteners started the 2008 school year with exemptions to some or all of the required vaccinations, including measles, mumps, rubella, and hepatitis B. The analysis of data from the California Department of Public Health led to the determination that any school with an exemption rate of 7.5 percent or more among kindergarteners is at risk for disease, said the Times. Last year, a 7 year-old boy who had traveled abroad triggered a measles outbreak in San Diego among 11 children, including his two siblings and three infants, and affected seventy other children who were voluntarily quarantined for three weeks. According to the Times, local public health officials noted that nearly 10 percent of students at the boy's school were exempt from vaccination requirements. Some parents told the Times that they carefully weighed risks to their children against responsibility to society. "It seems like a social contract," said Kami Cotler, the mother of an 8 year-old. "If we all stop immunizing, that has serious ramifications as far as society is concerned." But, despite medical research and court opinions discrediting any link between vaccines and autism, many parents remain skeptical, making the job of public health officials difficult. "I think it's hard to unscare people," said Paul Offit, chief of infectious diseases at Children's Hospital of Philadelphia and a co-inventor of the rotavirus vaccine.
[Editor's note: Related articles from the Los Angeles Times include Immunization laws and attitudes vary, by Rong-Gong Lin II (03/29/09), Measles case led to concern, quarantines, by Rong-Gong Lin II (03/29/09), and an interactive map of high-risk schools in Southern California.]
Boston Globe (04/09/09) Stephen Smith
This month, the Massachusetts Public Health Council unanimously approved a plan to send home body mass index (BMI) reports to parents of elementary, middle, and high school students. The initiative will be phased in during the next two school years, and is expected to include more than 286,000 students in first, fourth, seventh, and 10th grades. The reports to parents will include the BMI number, information about how to interpret the number, and also recommendations about where to go for help. In the hours after the Council's decision, the Massachusetts Association of School Committees heard from parents concerned mainly with the cost of implementing the program. State officials expect the financial cost to school districts will be nominal, because many already weigh and measure students annually. "Right now, in many situations, the data from height and weight measurements sit in a file, and even if it's concerning, the parent may not find out," said state Public Health Commissioner John Auerbach. Others worry that the BMI report will create more problems for children. "Mandatory BMI reporting laws force parents to walk the fine line between encouraging healthy eating and promoting unhealthy weight loss strategies," wrote Rebecca Manley, of the Multiservice Eating Disorders Association, in a letter to the Department of Public Health. But health officials say parents can opt out of the program. "Nobody wanted to create an environment in which we are going to induce more unhealthy behaviors rather than healthful behaviors," said Jewel Mullen, of the state Health Department.
Plain Dealer (04/06/09) Sabrina Eaton
Earlier this month, opening arguments began in a case brought by an Ohio woman against the makers of diacetyl, a butter flavoring used in microwave popcorn. Kathryn Rayburn developed bronchiolitis obliterans after working for nearly a decade at a popcorn factory. Her lawsuit alleges that Givaudan Flavors Corp. and International Flavors and Fragrances Inc., knew their products caused health problems but failed to warn workers about the hazards. Frank Woodside, an attorney representing International Flavors and Fragrances, said Rayburn's lung condition was attributable to other causes. Woodside also argued that the company did issue warnings about diacetyl. "As new knowledge developed, this decade, we increased our warnings significantly to reflect new information discovered," he said. David Egilman, an associate professor of public health at Brown University who has researched the issues posed by diacetyl, is expected to testify on Rayburn's behalf. "It's a shame they didn't test these products before they put them on the market," he said. "And it's a shame the government isn't protecting workers and consumers from food additives that have killed and seriously injured workers." Missouri-based attorney Ken McClain, who has tried and settled a number of successful diacetyl cases on behalf of popcorn factory workers, is representing Rayburn in the suit.
[Editor's note: To learn more about flavorings-related lung disease from CDC, visit http://www.cdc.gov/niosh/topics/flavorings/.]
Wall Street Journal (03/23/09) Philip Shishkin
Health departments, cosmetology boards, and state legislatures across the country are faced with the dilemma of how to regulate a new practice in the United States - the fish-assisted pedicure. Skin-eating fish were first brought to the United States by John Ho, a Virginia nail salon owner, last year. Ho was searching for an alternative to the pedicure razor, which is banned in many states because of the risk of injury. After experiencing the treatment first-hand in China, Ho imported 10,000 Garra rufa, a toe-sized carp that sucks dead skin from human feet. He set up a communal fish tank at one of his Virginia salons, but the tank was consequently deemed a public swimming pool by the Fairfax County Health Department, and closed on health grounds. Ho responded by building individual tanks and changing the water after every use, which put the practice outside the realm of the existing health regulations. Since the Health Department no longer had jurisdiction, the technique was allowed to continue. The practice has spread to other states, at least 14 of which have passed laws to end it. Fish pedicures have not been outlawed in Virginia.
Washington Post (04/01/09) Robert Barnes
Last month, the U.S. Supreme Court ruled against cigarette maker Philip Morris USA, ending the company's decade-long challenge of a $150 million punitive damage award to the widow of an Oregon smoker. In 1999, an Oregon jury awarded Mayola Williams nearly $80 million after finding that Philip Morris misled her husband into believing that cigarettes were not harmful or addictive. Philip Morris appealed the decision and twice the case was remanded to state court, after U.S. Supreme Court justices strongly implied the award was too large. Following those rulings, in 2005 and again in 2008, the Oregon Supreme Court declined to reverse the award. Philip Morris again petitioned the U.S. Supreme Court for certiorari, and was unceremoniously denied in the March decision. Williams' attorney Robert Peck, of the Center for Constitutional Litigation, said the U.S. Supreme Court had passed up three opportunities to find the now $150 million award was too large (as the company challenged the $80 million decision through successively higher courts, the sum increased as interest accrued), sending a clear signal to large companies. Under Oregon law, the award will be shared between Williams and the state.
[Editor's note: The 2003 U.S. Supreme Court ruling is available at http://openjurist.org/540/us/801/02/1553. The 2007 U.S. Supreme Court opinion is available at http://www.supremecourtus.gov/opinions/06pdf/05-1256.pdf. The final Oregon Supreme Court ruling, filed January 31, 2008, is available at http://www.publications.ojd.state.or.us/S051805.htm. To read the full text of the March 2009 Supreme Court ruling Philip Morris USA INC. v. Williams, visit http://www.supremecourtus.gov/opinions/08pdf/07-1216.pdf.]
California: Smoker decline attributed to voter-approved California Tobacco Control Program
Los Angeles Times (04/09/09) Eric Bailey
California: Company faces hearing for refusing to provide customer names
Los Angeles Times (03/29/09) Jeff Gottlieb
California: Recurring sewer back-ups said to cause smells, unsanitary conditions
Vallejo Times Herald (04/07/09) Tony Burchyns
Colorado: Most new homes required to have detectors installed near bedrooms
Associated Press (03/25/09) Steven Paulson
Idaho: Legislature fails to approve regulation of all daycares
Spokesman-Review (03/16/09) Betsy Russell
Massachusetts: An Act to Promote Breastfeeding protects women from lewd conduct charges
Associated Press (04/09/09)
Nevada: Disease investigation, law work together to contain TB transmission
Las Vegas Review-Journal (03/29/09) Annette Wells
New York: State Department of Environmental Conservation patrols City streets
New York Times (03/26/09) Mireya Navarro
National: Tobacco tax critics argue non-smokers, smokers costs on par
Associated Press (04/07/09) Erica Werner
National: House votes 298-112 but bill faces uphill battle in Senate
Wall Street Journal (04/02/09) Jared Favole and Alicia Mundy
National: Concerns over IRB actions, oversight result in Congressional sting
Wall Street Journal (03/26/09) Alicia Mundy
National: Tobacco tax's intended consequence
Associated Press (03/31/09)
Canada: U.S. chemical company claims Quebec restrictions breach NAFTA obligations
Canwest News Service (04/10/09) Juliet O'Neill
Canada: Updated Public Health Act officially proclaimed 3 years after enactment
Sun Media (04/01/09)
China: 2-year debate yields Guidelines on Deepening the Reform of Health-Care System
Xinhua General News Service (04/06/09) Yuan Ye and Jiang Guocheng
Scotland: Parents petition Parliament, argue kids denied essential fats
The Scotsman (03/31/09) Tanya Thompson
United Kingdom: Committee votes to give patients clearly defined rights to seek treatment
Evening Herald (04/08/09) Keith Rossiter
European Union: Parliament votes to regulate mobile phone towers, electromagnetic devices
Canwest News Service (04/03/09) Sarah Schmidt
National: Official led effort to create legislation for national 55 mph speed limit
New York Times (03/18/09) Douglas Martin
Update on infection prevention in disaster planning: new resources and policies (subscription required)
American Journal of Infection Control (04/09) Terri Rebmann and others
American Journal of Preventive Medicine (05/09) Jeff Niederdeppe and Dominick L. Forsch
Biosecurity and Bioterrorism (12/08) Peggy Binzer
CMAJ (03/31/09) Kevin Harris and others
A state-based approach to privacy and security for interoperable health information exchange (subscription required)
Health Affairs (03-04/09) Linda Dimitropoulos and Stephanie Rizk
Reforming the HIPAA Privacy Rule: safeguarding privacy and promoting research (subscription required)
JAMA (04/01/09) Lawrence O. Gostin and Sharyl Nass
Parent reactions to a school-based body mass index screening program (subscription required)
Journal of School Health (05/09) Suzanne Bennett Johnson and others
Nicotine & Tobacco Research (04/07/09) Jennifer Ellis and others
California: Naturally occurring methylmercury in tuna removed from reach of Prop 65
Court of Appeal of California, First Appellate District, Division Four
171 Cal. App. 4th 1549
Filed March 11, 2009
Opinion by Judge Timothy Reardon
Connecticut: "Operating" a motor vehicle includes sitting in car with engine running
Supreme Court of Connecticut
Filed March 31, 2009
Indiana: Misdemeanor operating while intoxicated statute applies to vehicles on private property
Indiana Supreme Court
Filed April 8, 2009
Opinion by Justice Brent E. Dickson
Maryland: Circuit court upheld; inmate cannot be compelled to submit to dialysis, treatment
Court of Special Appeals of Maryland
No. 243, September Term, 2008
184 Md. Ap. 268
Filed February 6, 2009
Opinion by Judge Arrie W. Davis
Federal: Gov't did not waive immunity for discretionary acts during Hurricane Katrina
United States Court of Appeals for the Fifth Circuit
Filed January 22, 2009
Opinion by Judge Carolyn Dineen King
__________PHL NEWS QUOTATION OF THE MONTH___________
"And there's no way to sanitize them unless you bake them for 20 minutes at 350 degrees."
-- Lynda Elliott, a New Hampshire Board of Barbering, Cosmetology and Esthetics official, on skin-eating fish used by some nail salons to exfoliate patrons' feet. Cosmetology rules generally require that tools be discarded or sanitized after each use. The New Hampshire Board outlawed fish pedicures last year. [See item 5, 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.