October 2009 - CDC Public Health Law News
Thursday, October 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 Strategy and Innovation, CDC
*** Public Health Emergency Law FAQs. The new report "Frequently Asked Questions about Public Health Emergency Law" provides clear and authoritative information on 37 issues often posed regarding key federal laws that shape response to all-hazards public health emergencies. The content of the report is derived from the April 28, 2009, teleconference "Federal Public Health Emergency Law: Implications for State and Local Preparedness and Response." The report does not represent CDC policy and does not constitute legal advice, but may provide helpful information. To read the report, please visit http://www2a.cdc.gov/phlp/fphelfaq.asp.
*** Mass Antibiotic Dispensing Seminar. The Centers for Disease Control and Prevention will present a webcast exploring some of the legal issues facing state and local Strategic National Stockpile planners as they prepare for a mass antibiotic dispensing campaign. "Mass Antibiotic Dispensing: Legal Ease" will be presented on October 22, 2009, from 1:00 to 2:30 PM Eastern. Please visit http://www2a.cdc.gov/phtn/ for more information.
***Federal Ban on Fruit-Flavored Cigarettes. The Food and Drug Administration enacted a ban on candy, fruit, and other flavored cigarettes on September 22, 2009. The ban is one of several actions authorized by the Family Smoking Prevention and Tobacco Control Act. For more information on the ban, please visit http://www.fda.gov/TobaccoProducts/
*** Crisis Standards of Care in Disaster Situations. Guidance that state and local health departments can use to establish and implement standards of care in disaster-related settings has been released by the Institute of Medicine. Guidance for Establishing Crisis Standards of Care for Use in Disaster Situations is available at http://www.nap.edu.
*** State Environmental Health Legislation. The American Public Health Association Environment Section's Fall 2009 newsletter includes a summary of 2009 state legislative session environmental health actions. The newsletter is available at http://www.apha.org/membergroups/newsletters/sectionnewsletters/
*** Informed Consent and Authorization Toolkit. The Agency for Healthcare Research and Quality (AHRQ) has developed a free toolkit to help researchers obtain potential research participants' informed consent and authorization to use their health data in accordance with the Privacy Rule of the Health Insurance Portability and Accounting Act (HIPAA). The toolkit is available at http://www.ahrq.gov/fund/informedconsent/.
*** Provider Liability Article. Sharona Hoffman, Professor of Law & Bioethics and Co-Director of the Law-Medicine Center at Case Western Reserve University School of Law, and Andy Podgurski have published the article E-Health Hazards: Provider Liability and Electronic Health Records Systems in the Berkeley Technology Law Journal. For the full text of the article, please visit http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1463671.
*** New Tobacco Law Webinar. The Technical Assistance Legal Center and the Center for Tobacco Policy & Organizing will present a webinar on the Family Smoking Prevention and Tobacco Control Act on October 20 from 11 a.m. to 12:30 p.m. For more information, please visit www.phlpnet.org/tobacco-control/news/webinar-new-fda-law.
1. Massachusetts: House OK's bill clarifying quarantine rules
States and Localities
2. Georgia: Vaccination reporting spotty
3. Massachusetts: Farmers, got (raw) milk?
4. New York: A crackdown on bake sales in city schools
5. Africa: In Africa, courts shape views on AIDS
6. Vietnam: Multinationals break Vietnam law in formula sales
Alabama school nurses · Hawaii special education · Indiana mesothelioma suits · Montana CHIP · Nevada medical assistant shots · North Carolina fat tax · Ohio booster seats · Pennsylvania needle sales · Washington mercury in shots · National E.coli · Tobacco law challenge · Illegal immigrant vaccinations · Travel industry · WIC vouchers · Canada H1N1 suits
Russian alcohol mortality • Victorian Tobacco Act • Binge drunk driving • Alcohol-impaired driving • Workplace physical activity • Rear-seat vehicle travel • Obesity prevention • Incarcerated research participants • Foreclosure and health • Australian advertising • Healthcare reform costs • Climate change agenda • Mental health services • FDA tobacco regulation • School tobacco policies • South African injuries • Pacific tobacco control • Global health governance • Baucus' bill • DNA testing of nationality • Public trust doctrine
Ohio Smokefree Act violation • Texas mental retardation defense • Federal quarantine violation • Medicaid EPSDT services • Anthrax vaccination approval
"House OK's bill clarifying quarantine rules"
Boston Globe (10/09/2009) Stephen Smith
On October 8, the Massachusetts House approved a bill which updates emergency regulations to clarify the powers of public health officials. Among other provisions, the bill allows someone who has been quarantined to appeal to the courts, prohibits employers from firing employees who have been quarantined, and, while prohibiting forced vaccination, allows public health officials to quarantine people who decline vaccination during a public health emergency. Opponents of the bill have protested in Boston, arguing that the legislation gives too much power to public health officials. "People have enough concerns right now relative to government control invading in their personal space and in their personal lives," said Representative Todd Smola of Palmer. However, most legislators disagreed. "The bill strikes that balance between protecting the community in the case of an emergency but also protecting the civil liberties of individuals," said Representative Jeffrey Sanchez of Boston. The Legislature now must reconcile the bill with similar legislation the Senate passed in the spring.
[Editor's note: To read the text of the bill, visit http://www.mass.gov/legis/bills/house/186/ht04/ht04271.htm.]
"Vaccination reporting spotty"
Atlanta Journal-Constitution (10/05/2009) Alison Young
Georgia law requires health care providers to record all vaccinations into the Georgia Registry of Immunization Transactions and Services (GRITS), a secure database run by the Georgia Department of Community Health, but data reported to the Centers for Disease Control and Prevention (CDC) showed that only 26 percent of providers are entering the data. State law has required mandatory reporting of vaccinations given to children and teens under age 18 since 1996, and reporting of all vaccinations, regardless of age, since 2004. The law is intended to allow schools to electronically verify student immunization records and to monitor vaccine safety. State officials say that compliance is so low because the registry law has no enforcement provision. "We have a law, but the law doesn't have any teeth. There's nothing we can do to force providers to participate," said Michelle Conner, Director for Infectious Disease and Immunization at the Georgia Division of Public Health. When the Atlanta Journal-Constitution (AJC) contacted various providers, they gave several reasons for not complying with the registry law, including believing that participation is optional or that only children's vaccinations need to be reported, technology problems, and inaccurate information on the health department's web site. Compliance may increase, however, because the Department of Community Health is requiring providers who receive H1N1 vaccines to participate in GRITS. Providers contacted by the AJC indicated that they would provide data: "In four hours, all our immunizations will be over in GRITS, and once a week, we will automatically transmit data," said Willie Ballard, office manager of the Children's Wellness Center in Atlanta.
"Farmers, got (raw) milk?"
Boston Globe (10/01/2009) Christine Legere
As consumer demand for organic and antibiotic-free foods has increased, many have also become interested in unpasteurized or "raw" milk, but many public health laws impede its sale.
Only 28 states allow the sale of unpasteurized milk, and some allow sales only for animal consumption; pasteurization is considered an important public health tool because it kills milk-borne bacteria such as E.coli, Listeria, Staphylococcus aureus, and Salmonella. The Georgia legislature recently debated legislation requiring unpasteurized milk to be dyed charcoal gray, in an effort to dissuade humans from drinking it. Maine and Connecticut, however, allow retail stores to sell raw milk, and New Hampshire allows dairy farmers to deliver it directly to customers. Massachusetts law stipulates that unpasteurized milk can only be sold at the farm where it is produced and that local health officials must inspect and license the dairy. The Massachusetts Department of Agricultural Resources reports that there are 27 raw-milk dairies in the state and operations are carefully monitored. Inspectors visit once per month and sample batches of the milk; dairies that do not pass inspection are shut down. Proponents of unpasteurized milk say that raw milk is a safe product and that it is healthier because it contains more vitamins and healthy bacteria. The U.S. Food and Drug Administration, however, says that pasteurization saves lives by destroying harmful pathogens and that it does not reduce milk's nutritional value.
[Editor's note: To learn more about foodborne illness from CDC, visit http://www.cdc.gov/foodsafety/.]
"A crackdown on bake sales in city schools"
New York Times (10/03/2009) Jennifer Medina
The New York City Education Department has promulgated new regulations limiting the sugar and fat content of foods sold in school vending machines and student run stores. One consequence of the regulations, which are part of Mayor Michael Bloomberg's plan to improve public health by limiting consumption of trans fat, salt, and high fat foods, is to ban bake sales during the school day. Parent groups are allowed to hold bake sales once per month after lunch, and restrictions are lifted after 6 p.m. on weekdays. Students and teachers involved in student clubs worry the regulations will negatively impact student fundraising, which traditionally has relied on bake sales. "There was never any cotton candy or something like that, and there weren't sales all the time, but they were definitely a way kids count on to get money," said John Sommers, assistant principal of organization at La Guardia school. In response, Education Department officials have suggested that students use physically active pursuits such as walk-a-thons to raise money. "We have an undeniable problem in the city, state, and the country with obesity. During the school day, we have to focus on what is healthy for the mind and the body," said Eric Goldstein, chief of school support services. The regulations are part of a growing nationwide trend to limit unhealthy foods at school. "Schools are supposed to be a place where we establish a model environment, and the last thing kids need is an extra source of pointless calories," said Howard Wechsler, direct of the Division of Adolescent and School Health at the Centers for Disease Control and Prevention.
"In Africa, courts shape views on AIDS"
Washington Post (09/12/2009) Karin Brulliard
In October, a Zambian court will hear the case of two former Zambian air force members who allege that they were tested for HIV without their knowledge, violating their rights to privacy and protection from inhumane and degrading treatment, and then were unfairly discharged. Legal experts say that the case may help to answer questions regarding the rights of people with HIV, a frequent issue debated by courts and legislatures in Africa, where the HIV prevalence rate is as high as one in five adults. African legislatures have debated whether people with HIV should have constitutional protections, whether infecting others with HIV is a criminal offense, and whether employers can test their employees for HIV. Courts have also been asked to decide these questions, and recent rulings in Namibia and South Africa found bans on people with HIV unconstitutional. In the Zambian case, the government alleges that the men were not tested for HIV and were discharged because one had Karposi's sarcoma and the other had tuberculosis. The men were discharged in 2002, when the Zambian military had no policy regarding service members with HIV. A policy was implemented in 2003 which bans recruits who are HIV-positive, but does not allow discharge based on HIV status of service members who contract the virus after enlistment. A military official defended the policy, saying "defense is not kindergarten or Red Cross. We need people who are fit." But AIDS activists say that anti-retroviral drugs can keep people fit and healthy and that militaries should assess fitness for duty through health exams, rather than banning all HIV-positive soldiers. "In this society, unless you want to go and look for people from Sweden for your armed forces, you're not going to get away from HIV," said Adila Hassim, head of litigation at the AIDS Law Project in Johannesburg.
[Editor's note: To learn more about CDC's Global AIDS Program, visit http://www.cdc.gov/globalAIDS/default.html]
"Multinationals break Vietnam law in formula sales"
Associated Press (09/24/2009)
Although Vietnamese laws restrict the sale and advertising of baby formula, an AP investigation found that multinational companies often engage in aggressive marketing that breaks the law. Vietnamese law prohibits companies from advertising formula products for children under age one and from approaching providers or mothers at health care facilities. The AP investigation, however, found that the companies often do both, in addition to paying doctors commission for selling their products. Health experts claim that the effect of the advertising is evidenced by formula sales, which jumped about 39 percent in 2008. Moreover, UNICEF data shows that the number of women who breastfeed exclusively for the first six months fell 50 percent in the past decade to just 17 percent. Companies say they follow the law and claim increased sales are due to other factors, like more mothers in the workforce. "We do not compensate doctors, clinics, hospital or their staff for selling or promoting our products," said Jan Bles, Vietnam director for Dutch Lady, a formula company. Gail Wood, spokeswoman for Mead Johnson Nutrition, agreed. "Our employees are routinely trained and held to high standards of compliance," she said. Breastfeeding proponents say that loopholes in Vietnam's law and its status as a developing nation make it difficult to enforce the law. "The companies have millions of dollars and dozens of lawyers, but the Vietnamese government has a tiny budget and just two people promoting breastfeeding," said Annelies Allain of the International Code Documentation Center. Still, Vietnam plans to continue to encourage breastfeeding; during World Breastfeeding Week in August, the country set a goal of attaining a 50 percent exclusive breastfeeding rate by 2015.
[Editor's note: To learn more about breastfeeding from CDC, visit http://www.cdc.gov/breastfeeding/.]
Alabama: New legislation to increase number of school nurses
"Proration makes it hard to add nurses at schools"
Montgomery Advertiser (09/21/2009) Adrienne Nettles
Hawaii: State required to provide special education services despite employee furlough
"Cutbacks squeeze schedules of Hawaii special-needs kids"
Honolulu Advertiser (10/07/2009) Loren Moreno
Indiana: Mesothelioma victims want more time to file suits against employers
"Mesothelioma victims seek expanded rights to sue"
Associated Press Indiana (10/01/2009) Mike Smith
Montana: Medicaid and CHIP eligibility expanded under Healthy Montana Kids program
"State looks to give kids health coverage"
Helena Independent Record (09/23/2009) Mike Dennison
Nevada: Medical assistants can give shots
"Safety has been restored"
Las Vegas Review-Journal (10/07/2009) Paul Harasim
North Carolina: Obese state employees will pay more for health insurance
"N.C. to impose 'fat tax'"
Charlotte News Observer (10/07/2009) Mark Johnson
Ohio: Children ages four to seven must use federally approved booster seats
"Ohio booster seat law now in effect"
Associated Press (10/07/2009)
Pennsylvania: New law allows over-the-counter sales of needles and syringes
"Sale of needles eased"
Pittsburgh Tribune Review (09/26/2009) Allison M. Heinrichs
Washington: State allows mercury in vaccinations for pregnant women and children
"State lifts limit on mercury preservative in swine-flu shots"
Seattle Times (09/25/2009) Sandi Doughton
National: E.coli in ground beef
"E.coli path shows flaws in ground beef inspection"
New York Times (10/04/2009) Michael Moss
National: FDA responds to tobacco law free speech challenge
"FDA defends against cig makers' challenge of law"
Associated Press (10/01/2009) Michael Felberbaum
National: Health officials say illegal immigrants should receive H1N1 vaccinations
"Health officials seek to vaccinate illegal immigrants against swine flu"
Gannett News Service (09/30/2009) Erin Kelly
National: Travel industry takes actions to prevent flu spread
"Travel sector takes steps to resist flu"
New York Times (10/08/2009) Martha White
National: WIC vouchers can be used for healthier foods
"WIC nutrition program expands to cover fruits, vegetables"
Los Angeles Times (10/01/2009) Mary MacVean
Canada: Federal government will pay damages awarded in H1N1 vaccine suits
"Canadians on hook for any H1N1 vaccine damage"
CBC News (09/30/2009)
"Alcohol and Russian mortality: a continuing crisis"
Addiction (10/09) David A. Leon, Vladimir M. Shkolnikov, and Martin McKee
bsc/add/2009/00000104/00000010/art00008 (subscription required)
"Legislation to institutionalize resources for tobacco control: the 1987 Victorian Tobacco Act"
Addiction (10/09) Ron Borland, Margaret Winstanley, and Dorothy Reading
add/2009/00000104/00000010/art00007 (subscription required)
"Driving after binge drinking"
American Journal of Preventive Medicine (10/09) Timothy S. Naimi, David E. Nelson, and Robert D. Brewer
"Effectiveness of multicomponent programs with community mobilization for reducing alcohol-impaired driving"
American Journal of Preventive Medicine (10/09) Ruth A. Shults and others
http://www.ajpm-online.net/article/S0749-3797%2809%2900488-7/abstract (free registration)
"Meta-analysis of workplace physical activity interventions"
American Journal of Preventive Medicine (10/09) Vicki S. Conn and others
http://www.ajpm-online.net/article/S0749-3797%2809%2900413-9/abstract (free registration)
"Rear-seat motor vehicle travel in the U.S.: using national data to define a population at risk"
American Journal of Preventive Medicine (10/09) Matthew J. Trowbridge and Richard Kent
http://www.ajpm-online.net/article/S0749-3797%2809%2900395-X/abstract (free registration)
"A legal primer for the obesity prevention movement"
American Journal of Public Health (10/09) Seth E. Mermin and Samantha K. Graff
http://www.ajph.org/cgi/content/abstract/99/10/1799 (subscription required)
"Compensation for incarcerated research participants: diverse state policies suggest a new research agenda"
American Journal of Public Health (10/09) Amy B. Smoyer, Kim M. Blankenship, and Brandis Belt
http://www.ajph.org/cgi/content/abstract/99/10/1746 (subscription required)
"Health status of people undergoing foreclosure in the Philadelphia region"
American Journal of Public Health (10/09) Craig Evan Pollack and Julia Lynch
http://www.ajph.org/cgi/content/abstract/AJPH.2009.161380v1 (subscription required)
"The cost-effectiveness of removing television advertising of high-fat and/or high-sugar food and beverages to Australian children"
International Journal of Obesity (10/09) A. Magnus and others
"Bending the cost curve: a critical component of health care reform"
Journal of the American Medical Association (9/16/09) Stephen M. Shortell
http://jama.ama-assn.org/cgi/content/full/302/11/1223 (subscription required)
"The international response to climate change: an agenda for global health"
Journal of the American Medical Association (9/16/09) Lindsay F. Wiley and Lawrence O. Gostin
http://jama.ama-assn.org/cgi/content/full/302/11/1218 (subscription required)
"Applying health care reform principles to mental health and substance abuse services"
Journal of the American Medical Association (10/7/09) Kavita Patel and Kenneth Wells
http://jama.ama-assn.org/cgi/content/full/302/13/1463 (subscription required)
"FDA regulation of tobacco: politics, law, and the public's health"
Journal of the American Medical Association (10/7/09) Lawrence O. Gostin
http://jama.ama-assn.org/cgi/content/full/302/13/1459 (subscription required)
"Evaluating the strength of school tobacco policies: the development of a practical rating system"
Journal of School Health (10/09) Jennifer C. Boyce and others
http://www.ingentaconnect.com/content/bpl/josh/2009/00000079/00000010/art00007 (subscription required)
"Violence and injuries in South Africa: prioritising an agenda for prevention"
The Lancet (9/19/09) Mohamed Seedat and others
http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(09)60948-X (free registration)
"WHO's Western Pacific region agrees tobacco-control plan"
The Lancet (10/10/09) Margaret Harris Cheng
"Working through the issues of global governance for health"
The Lancet (10/10/09) Michael Marmot
"Baucus's bill and the long road to reform"
The New England Journal of Medicine (10/8/09) J. K. Iglehart
http://content.nejm.org/cgi/content/short/NEJMp0908719v1 (subscription required)
"Public health advocacy in the courts: opportunities for public health professionals"
Public Health Reports (11/09) Jonathan N. Kromm and others
http://www.publichealthreports.org/archives/issuecontents.cfm?Volume=124&Issue=6 (subscription required)
"Scientists decry isotope, DNA testing of 'nationality'"
Science (10/2/09) John Travis
http://www.sciencemag.org/cgi/content/short/326/5949/30 (subscription required)
"Response - public trust doctrine"
Science (10/2/09) Mary Turnipseed and others
Ohio: Private employer's violation of Smokefree Act upheld
Northside Amateur Boxing School Bingo Club v. Hamilton County General Health District et al.
Court of Appeals of Ohio, Tenth Appellate District, Franklin County
Rendered September 29, 2009
Opinion by Judge Brown
Texas: Death row inmate found not mentally retarded under rational basis scrutiny
Ex parte Woods
Court of Criminal Appeals of Texas
Filed October 7, 2009
Opinion by Judge Hervey
Federal: Habeas and civil rights claims for violation of quarantine denied
Livingston v. Md. Division of Correction
U.S. District Court for the District of Maryland
Civil Action No. WDQ-09-682
Decided September 18, 2009
Opinion by Judge Quarles
http://dockets.justia.com/docket/court-mddce/case_no-1:2009cv00682/case_id-166639/ (subscription required)
Federal: Class action for Medicaid EPSDT services sustained
John B. v. Goetz
U.S. District Court for the Middle District of Tennessee, Nashville Division
Decided September 18, 2009
Opinion by Judge Haynes
Federal: Servicemembers' challenge of anthrax vaccine approval denied
Rempfer v. Sharfstein
U.S. Court of Appeals for the D.C. Circuit
Decided September 29, 2009
Opinion by Judge Garland
The CDC Public Health Law News is published the third Thursday 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). Lindsay Culp, M.P.H., Editor. Special thanks to Tara Ramanathan and Stacie Kershner for their help on this issue.