November 2009 - CDC Public Health Law News
Thursday, November 19, 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
*** H1N1 Emergency Authorities Matrix. The Department of Homeland Security Office of General Counsel, including the FEMA Office of Chief Counsel, prepared the "H1N1 Infuenza Pandemic Emergency Authorities Matrix" as a synopsis of selected provisions of the Public Health Service Act, the National Emergency Act, and the Stafford Act especially relevant to government response to the A (H1N1) influenza pandemic. The matrix reflects those authorities as of Oct. 27, 2009. The matrix is available at http://www.cdc.gov/phlp/docs/H1N1%20Authorities%20Matrix%20_27%20Oct%202009.pdf.
*** Permavir EUA. The Food and Drug Administration issued an Emergency Use Authorization for the emergency use of the unapproved drug Permavir administered intravenously for the treatment of 2009 H1N1 influenza virus on October 23, 2009. To read the EUA, visit http://www.cdc.gov/h1n1flu/eua/peramivir.htm.
*** Social Security Act Waiver or Modification of Requirements. On October 27, 2009, Department of Health and Human Services Secretary Kathleen Sebelius issued a Waiver or Modification of Requirements under Section 1135 of the Social Security Act. For more information, visit http://www.flu.gov/professional/federal/h1n1_1135waiver_10272009.html.
*** Public Health Impact of Tobacco Regulation. On November 18, 2009, CDC Public Health Grand Rounds presented "The Public Health Impact of Tobacco Product and Advertising Regulation." Archived broadcasts of the presentation will be available at http://www.cdc.gov/about/grand-rounds/.
*** Safe Routes to School. The Robert Wood Johnson Foundation has published "Safe Routes to School State Network Project: Final Report, 2007-2009. The report summarizes the progress that the State Network achieved in making it safer and easier for children to be physically active by walking and bicycling to school. To read the report, please visit http://www.rwjf.org/
*** Tobacco Control RFA. The National Cancer Institute has announced the release of the State and Community Tobacco Control Policy and Media Research RFA. The purpose of the RFA is to solicit cooperative agreement applications for research projects to investigate the effectiveness of the State and community tobacco control policy and media interventions. For more about the RFA, please visit http://grants.nih.gov/grants/guide/rfa-files/RFA-CA-10-008.html.
*** Job Opening: Senior Associate, Pew Charitable Trusts. The Pew Charitable Trust seeks an individual to serve as a Senior Associate with the Health Impact Project, a collaboration between the Robert Wood Johnson Foundation and Pew to promote the use of health impact assessments as a planning tool for policy/decision-makers and a way to factor health into the decisions of sectors that do not typically consider health. The individual should have a public health or policy background with experience in developing and carrying out multi-year policy/advocacy strategies. For details, please visit http://jobs-pct.icims.com/jobs/1819/job.
1. National: Obama lifts a ban on entry into the U.S. by HIV-positive people
States and Localities
2. California: Are Proposition 65 warnings healthful or hurtful?
3. Nevada: Botox lawsuit raises issues on injections
4. Virginia: Chief Justice blasts Va. drunk driving ruling
5. Wisconsin: Foster care workers to be held accountable
6. FDA holds off on oyster ban
Massachusetts firm antiviral stockpiles · Michigan migrant H1N1 outbreak · Nevada OSHA scrutinized · New Jersey car snow removal · New York flu shot requirement · South Dakota smoking ban vote · Texas H1N1 sales · Virginia alcohol ad ban · National web cigarette sales · Flu sick leave · China flu measures · Great Britain norovirus outbreaks · International Asian flu alarm
Youth alcohol consumption · Adolescent smoking · Retail alcohol monopoly · Hospital PPE · Land use and walking · Household smoking ban · Vaccine postlicensure · Student tobacco use · Nutrition labeling · Pandemic decision-making · Emergency legal preparedness · Immigration and health · Food choice · Calorie labeling · Fast food zoning · Breast cancer bills · Nutrition standards · Texas school nutrition · School health providers · Informed consent · HIV travel ban · UK smoking bill · German health reform · Sugar-sweetened beverage tax · H1N1 preparedness
Restaurant Hepatitis A conviction · Long-term care violations · Mosquito control policy · V.A. standard of care · New tobacco control Act · School immunization · Pharmacy rules
"Obama lifts a ban on entry into the U.S. by HIV-positive people"
New York Times (10/31/2009) Julia Preston
On October 30, President Barack Obama announced that the ban on travel to the United States by people who are HIV-positive would be lifted. The ban, which had been in effect since 1987, required public health officials to classify HIV as a "communicable disease of public health significance." United States immigration law bars foreign nationals with such a disease from entering the country and requires anyone applying for legal permanent residency to take an HIV test. Although waivers are available, they are complicated to obtain and are only available for immigrants who are in a heterosexual marriage. International health officials have championed the ban, saying it ends an inconsistency in United States health policy. "If we want to be a global leader in combating HIV/AIDS, we need to act like it. Now, we talk about reducing the stigma of this disease, yet we've treated a visitor living with it as a threat," said President Obama. President George W. Bush began the process to lift the ban last year by signing legislation to repeal the statute on which the ban is based. An announcement of a rule ending the ban was printed in the Federal Register on November 2, and the rule will become effective January 4, 2010.
[Editor's Note: To read the announcement of the rule in the Federal Register, visit http://edocket.access.gpo.gov/2009/pdf/E9-26337.pdf.]
"Are Proposition 65 warnings healthful or hurtful?"
L.A. Times (11/02/2009) Brendan Borrell
Over two decades ago, California adopted the Safe Drinking Water and Toxic Enforcement Act of 1986, or Proposition 65, which requires businesses to disclose the existence of potentially harmful chemicals and prohibits them from releasing the chemicals into drinking water. Now, signs warning of "chemicals known to the State of California to cause cancer and birth defects or other reproductive harm" have been posted at scores of businesses, and both private citizens and the California attorney general have brought lawsuits against businesses to enforce the law. In spite of the seeming success of Proposition 65, critics of the law say that it has led to frivolous lawsuits. Lisa Halko, a defense attorney with Greenberg Traurig in Sacramento, said the law allows anyone to file suit even if the amount of a chemical in a product is so small that it has "no observable effect." "The defendant can prove the level is meaninglessly low - but that is extremely expensive to do in court. Defendants end up settling with the plaintiff even when they are not liable," she said. Halko also claims the abundance of warnings has made them less effective. Supporters, however, say the law has allowed consumers to make informed choices, and has held manufacturers and businesses accountable by shifting the burden to them to prove that their products are safe. Many companies have even reformulated their products in order to avoid posting a warning. "If the law pushes companies to make their products safer, the public is a winner," said James Wheaton, president of the Environmental Law Foundation.
"Botox lawsuit raises issues on injections"
Las Vegas Review-Journal (10/18/2009) Paul Harasim
Las Vegas physician Ivan Goldsmith filed suit on September 29, 2009, in the United States District Court for the Central District of California alleging that Allergan, Inc., the maker of Botox, promotes multi-patient use of 50-unit or 100-unit single-use medication vials. Generally, patients need far less Botox than provided in the 50 or 100-unit vials; however, the medication must be thrown away after four hours and thus cannot be saved for use by the same patient on a later date. Health officials have linked a recent outbreak of Hepatitis C to the practice of reusing syringes in a way that contaminates the single-use vials, although none of the cases have been connected to Botox. Physicians and spa owners providing Botox argue that Allergan has consistently represented that the single-use vials could be used on multiple patients. Discontinuing this process would result in throwing away the remaining medication, which would not be financially feasible. Allergan spokesperson Kellie Reagan says the product is clearly labeled for single use only; however, plastic surgeon Dr. Julio Garcia says, "Allergan seminars have demonstrated multiple patient use of the product for years." The lawsuit argues that the Botox business model creates "an unacceptable and unreasonable risk of serious and debilitating injuries and illnesses, including HIV and Hepatitis B and C."
[Editor's Note: For more information on Hepatitis C, visit http://www.cdc.gov/hepatitis/index.htm.]
"Chief Justice blasts Va. drunk driving ruling"
The Washington Post (10/21/2009) Robert Barnes
The United States Supreme Court has decided not to review a case in which the Virginia Supreme Court overturned a drunken driving conviction where the officer did not personally see the defendant driving erratically, but pulled over the vehicle based on an anonymous tip. When a Richmond police officer stopped Joseph A. Moses Harris, Jr. based on a tip that he was driving erratically, Harris stumbled out of the car reeking of alcohol and subsequently failed a sobriety test. The Virginia Supreme Court overturned Harris's conviction, stating that the officer had violated Harris's constitutional right against unreasonable search and seizure by pulling Harris over without personally observing him driving dangerously. U.S. Chief Justice John G Roberts, Jr., joined by Justice Antonin Scalia, argued that the case should be heard. Roberts wrote in the dissent that while anonymous tips are treated with suspicion, "close to 13,000 people die in alcohol-related car crashes" and "the imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases." Giving drivers "one free swerve" could result in disastrous consequences, stated Roberts. Other federal and state courts have considered this issue and most have held that police can follow up on an anonymous tip without the responding officer personally witnessing a traffic violation.
[Editor's Note: To read the denial of writ of certiorari, visit http://www.supremecourtus.gov/opinions/09pdf/08-1385.pdf.]
"Foster care workers to be held accountable"
Journal Sentinel (10/20/2009) Crocker Stephenson
In a bi-partisan effort to protect children, Wisconsin's Senate and Assembly passed The Child Welfare Disclosure Act, amending portions of state law that control what information can be released to the public following severe cases of child abuse and death. The new law stems from public outrage over the death Christopher Thomas, a child who was beaten to death less than a year ago by a court-appointed kinship-care provider, even though child welfare workers were making visits to the home. The current law permits the Department of Children and Families to disclose some information; however, while the new bill still keeps the names of the child, perpetrator, and persons who worked with the family a secret, the new law both broadens and deepens child welfare agency reporting requirements and sets deadlines for the release of the information. The Department of Children and Families supports the new measures, stating that the current law impedes their ability to inform the public of what services were being offered to children and families, and that their inability to disclose this information causes difficulty in correcting public misunderstandings. State Senator Bob Jaunch of Poplar stated that this law is the first step to improving Wisconsin's child welfare system, "but we must do much, much, much more."
[Editor's Note: For the text of the act, visit http://www.legis.state.wi.us/2009/data/acts/09Act78.pdf.]
"FDA holds off on oyster ban"
L.A. Times (11/14/2009) Richard Fausset
On November 13, the Food and Drug Administration (FDA) announced that it was delaying implementation of new guidelines that would ban the sale of untreated raw Gulf Coast oysters, until further studies had been conducted. The guidelines, which were announced in October and set to take effect in 2011, would have required sterilization of any oysters sold from April to October in an effort to reduce cases of severe illness and death from Vibrio vulnificus, a harmful bacterium. V. vulnificus can infect the bloodstream, causing fever, septic shock, blistering skin lesions, and death; the bacterium commonly infects oysters and shellfish in warm ocean waters during summer months. Critics of the guidelines said sterilization ruins the taste of the oysters, and that the sterilization equipment is extremely expensive. Several members of Congress claimed implementation of the guidelines would drive many oyster companies out of business, devastating the Gulf Coast industry. Senator David Vitter of Louisiana co-sponsored a bill that would cut-off funding for the guidelines. FDA officials point to a similar California ban on untreated raw oysters that rid the state of the disease. Officials plan to study how processing treatments can be implemented in the fastest, safest and most economical way.
[Editor's Note: For more information on V. vulnificus, visit http://www.cdc.gov/nczved/dfbmd/disease_listing/vibriov_gi.html. To read the FDA statement announcing the implementation delay, visit http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm190513.htm.]
Massachusetts: Companies stockpiling antiviral medicine
"Firms' deals for flu drug draw fire"
Boston Globe (10/30/2009) Liz Kowalczyk
Michigan: Migrant worker camps hit by H1N1, may have been overcrowded
"H1N1 outbreak hits migrants"
Detroit News (11/04/2009) Karen Bouffard
Nevada: U.S. Department of Labor examines Nevada OSHA's oversight of workplace fatalities
"Feds' appraisal of Nevada OSHA practices damning"
Las Vegas Sun (10/21/2009) Lisa Mascaro and Michael Mishak
New Jersey: Drivers must remove snow and ice from cars
"New Jerseyans must clear ice, snow from their vehicles or face fines"
New Jersey Newsroom (10/20/2009)
New York: Due to vaccine scarcity, regulation compelling flu shots lifted
"Flu vaccine requirement for health workers is lifted"
New York Times (10/23/2009) Anemona Hartocollis and Sewell Chan
South Dakota: Citizens can refer expanded smoking ban to statewide vote
"Judge rules smoking ban can go to vote"
Capital Journal (11/13/2009) Bob Mercer
Texas: Company selling H1N1 shots misrepresented itself to Texas Department of Health
"As public clinics begin H1N1 shots, state says private provider shouldn't have 10,000 doses"
Dallas Morning News (10/31/2009) Jeffrey Weiss
Virginia: College newspapers claim alcohol ad ban violate right to free speech
"Court reviewing Va. college booze ad ban"
Associated Press (10/29/2009) Larry O'Dell
National: FDA notifies web-based companies that they are violating ban on flavored cigarettes
"FDA warns Web companies not to sell flavored cigs"
Associated Press (11/06/2009) Michael Felberbaum
National: Senator Dodd proposes bill requiring paid sick leave for flu-like symptoms
"Senators debate requiring sick leave for flu"
Reuters (11/10/2009) Maggie Fox
China: Chinese say quarantines and medical detentions have helped slow spread of flu
"China's tough flu measures appear to be effective"
New York Times (11/12/2009) Edward Wong
Great Britain: Law firm claims travel companies are slow to warn about norovirus outbreaks
"Norovirus cases 'on the rise'"
Daily Telegraph (10/24/2009) Charles Starmer-Smith
International: Growing flu alarm in Asian nations
W.H.O. Rushes Drugs to Nations Hit by Swine Flu
New York Times (11/13/2009) Pam Belluck
"Alcohol control policies and alcohol consumption by youth: a multi-national study"
Addiction (11/09) Mallie J. Paschall, Joel W. Grube, and Kypros Kypri
add/2009/00000104/00000011/art00014 (subscription required)
"Association between tobacco control policies and smoking behaviour among adolescents in 29 European countries"
Addiction (11/09) Anne Hublet and others
add/2009/00000104/00000011/art00023 (subscription required)
"Changes in per capita alcohol sales during the partial privatization of British Columbia's retail alcohol monopoly 2003-2008: a multi-level local area analysis"
Addiction (11/09) Tim Stockwell and others
http://www.ingentaconnect.com/content/bsc/add/2009/00000104/00000011/art00012 (subscription required)
"Stockpile of personal protective equipment in hospital settings: Preparedness for influenza epidemics"
American Journal of Infection Control (11/09) Mayuko Hashikura and Junko Kizu
http://www.ajicjournal.org/article/S0196-6553%2809%2900657-9/abstract (free subscription)
"Land use, residential density, and walking: The multi-ethnic study of atherosclerosis"
American Journal of Preventive Medicine (11/09) Daniel A. Rodriguez and others
http://www.ajpm-online.net/article/S0749-3797%2809%2900508-X/abstract (free subscription)
"Longitudinal study of household smoking ban adoption among Korean Americans"
American Journal of Preventive Medicine (11/09) Suzanne C. Hughes and others
http://www.ajpm-online.net/article/S0749-3797%2809%2900484-X/abstract (free subscription)
"What should an ideal vaccine postlicensure safety system be?"
American Journal of Public Health (10/09 s. 2) Marie R. Griffin, M. Miles Braun, and Kenneth J. Bart
"Density of tobacco retailers near schools: effects on tobacco use among students"
American Journal of Public Health (11/09) William J. McCarthy and others
http://www.ajph.org/cgi/content/abstract/99/11/2006 (subscription required)
"Improving patrons' meal selections through the use of point-of-selection nutrition labels"
American Journal of Public Health (11/09) Yong H. Chu and others
http://www.ajph.org/cgi/content/abstract/99/11/2001 (subscription required)
"Altered standards of care during an influenza pandemic: Identifying ethical, legal, and practical principles to guide decision making"
Disaster Medicine& Public Health Preparedness (10/09, ahead of print) Donna Levin and others
http://www.dmphp.org/cgi/content/abstract/DMP.0b013e3181ac3dd2v1 (subcription required)
"Emergency legal preparedness among select US local governments"
Disaster Medicine& Public Health Preparedness (10/09, ahead of print) Evan D. Anderson and James G. Hodge
"Health status of visitors and temporary residents, United States"
Emerging Infectious Diseases (11/09) Emad A. Yanni and others
"Calorie labeling and food choices: A first look at the effects on low-income people in New York City"
Health Affairs (11/09) Brian Elbel and others
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.28.6.w1110 (subscription required)
"New York City's fight over calorie labeling"
Health Affairs (11/09) Thomas A. Farley and others
http://content.healthaffairs.org/cgi/content/abstract/28/6/w1098 (subscription required)
"Zoning for health? The year-old ban on new fast-food restaurants in south LA"
Health Affairs (11/09) Roland Sturm and Deborah A. Cohen
http://content.healthaffairs.org/cgi/content/abstract/28/6/w1088 (subscription required)
"Breast cancer bills"
Journal of the American Medical Association (11/11/09) Mike Mitka
http://jama.ama-assn.org/cgi/content/short/302/18/1960-c?rss=1 (subscription required)
"The impact of nutrition standards on competitive food offerings and purchasing behaviors of high school students"
Journal of School Health (11/09) Anastasia M. Snelling and Teha Kennard
http://www3.interscience.wiley.com/journal/122648805/abstract (subscription required)
"The impact of school socioeconomic status on student lunch consumption after implementation of the Texas Public School Nutrition Policy"
Journal of School Health (11/09) Karen Weber Cullen, Kathleen B. Watson, and Ashley R. Fithian
http://www3.interscience.wiley.com/journal/122648808/abstract (subscription required)
"What role can school health providers play in health care reform?"
Journal of School Health (11/09) Robin Fleming
journal/122648804/abstract?CRETRY=1&SRETRY=0 (subscription required)
"Hippocrates and informed consent"
The Lancet (10/17/09) Steven H. Miles
"USA looks set to repeal HIV travel ban"
The Lancet (10/17/09) Nellie Bristol
"UK hopes bill will tackle smoking in children"
The Lancet (11/7/09) Nayanah Siva
"New minister to tackle health reform in Germany"
The Lancet (11/14/09) Samuel Loewenberg
"The public health and economic benefits of taxing sugar-sweetened beverages"
The New England Journal of Medicine (10/15/09) K. D. Brownell and others
"Preparing for 2009 H1N1 influenza"
The New England Journal of Medicine (11/12/09) R. P. Wenzel and M. B. Edmond
Kentucky: Claims against Red Lobster restaurant for exposure to Hepatitis A upheld
Emberton v. GMRI, Inc.
Supreme Court of Kentucky
2007-SC-000443-DG & 2008-SC-000109-DG
Rendered October 29, 2009
Opinion by Judge Scott
New York: Conviction of long-term care facility for employee's willful violation of health laws affirmed
People v. Highgate LTC Management, LLC
Supreme Court of New York, Appellate Division, Third Department
October 22, 2009
Opinion by Judge Mercure
Tennessee: Claims against county mosquito control policy denied
Sumner v. Metropolitan Nashville Board of Health
Court of Appeals of Tennessee, at Nashville
Filed October 27, 2009
Opinion by Judge Stafford
Federal: Claims alleging breach of standard of care for V.A. surgeons upheld
Johnson v. United States
U.S. District Court for the Central District of California
CV 07-7973 GAF
Filed October 23, 2009
Opinion by Judge Feess
https://ecf.cacd.uscourts.gov/cgi-bin/login.pl (subscription required)
Federal: Injunction of the Family Smoking Prevention and Tobacco Control Act denied
Commonwealth Brands, Inc., et al. v. United States
U.S. District Court for the Western District of Kentucky, Bowling Green Division
Filed November 5, 2009
Opinion by Judge McKinley
https://ecf.kywd.uscourts.gov/cgi-bin/ShowIndex.pl (subscription required)
Federal: Challenge of mandatory school immunization program denied
Workman, et al. v. Mingo County Schools, et al.
U.S. District Court for the Southern District of West Virginia, Charleston Division
CIVIL ACTION NO. 2:09-cv-00325
Filed November 3, 2009
Opinion by Chief Judge Goodwin
Federal: New Board of Pharmacy rules held not to violate Free Exercise clause
Stormans, Inc., et al. v. Selecky, et al.
U.S. Court of Appeals for the Ninth Circuit
No. 07-36039, No. 07-36040
Filed October 28, 2009
Opinion by Judge Wardlaw
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., Acting Editor. Special thanks to Tara Ramanathan and Stacie Kershner for their help on this issue.