December 2009 - CDC Public Health Law News
Thursday, December 17, 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
*** Tobacco Regulation Grand Rounds. On November 18, 2009, CDC's Office of Smoking and Health presented Public Health Grand Rounds entitled "The Public Health Impact of Tobacco Product and Advertising Regulation." The presentation focused on recent legislative successes in tobacco control efforts. For a video and transcript of the presentation, visit http://intranet.cdc.gov/od/odweb/about/grand-rounds/archive/2009/11-November.htm.
*** Public Health Law Research Initiative. The Public Health Law Research Program of the Robert Wood Johnson Foundation announced 15 new research grants that will help policymakers and researchers understand how laws can affect public health. For more information, visit http://www.publichealthlawresearch.org/.
*** State Laws Related to Healthy Homes. The National Center for Healthy Housing and the National Conference of State Legislatures have partnered to identify and analyze state laws that impact healthy homes. To access links to the provisions of state codes that are directly related to healthy homes, visit http://www.healthyhomestraining.org/codes/state.htm.
*** Tobacco Control Law. The latest issue of Legal Update released by the Tobacco Control Legal Consortium features Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings: 2009. This publication covers recent smoke-free housing laws and policies of interest to landlords, condominium associations and tenants. The newsletter also includes overviews of recent important tobacco cases. For more information, please visit http://www.tobaccolawcenter.org/documents/legal-update-fall-2009.pdf.
*** Smokefree Housing Model Ordinance. The Technical Assistance Legal Center has updated its model ordinance to help California cities and counties limit exposure to secondhand smoke in all types of multi-unit residences. To view the model ordinance and an accompanying checklist, visit http://www.phlpnet.org/.
*** Farmers' Market Land Use Tool. The National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN) has released a set of model land use policies to help communities create more opportunities for farmers' markets. To access this tool, please visit http://nplanonline.org/products/establishing-land-use-protections-farmers-markets.
*** Street Design Webinar. The National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN) will host a webinar training entitled "Complete the Streets! Using Street Design to Create Healthier Communities" on January 12, 2010, at 1 PM Eastern. For more information, please visit https://rwjf.webex.com/mw0306l/mywebex/default.do?nomenu=
1. National: 26,500 school cafeterias lack required inspections
2. Black lung on rise in mines
3. Millions in U.S. drink dirty water
4. Canada: MS patient loses battle with bureaucracy
5. Canada: Tobacco companies say Ottawa played equal role in developing cigarettes
California cell phone radiation labels · Illinois vaccine fraud charges · Smoking ban ignored · Iowa Social Security benefits · New Jersey autism bill · Hospital tie ban · National airline face masks · Hepatitis sentence · TB suit dismissed · China tainted milk power · H1N1 death cover-ups · Saudi Arabia Hajj devil stoning ritual
Alcohol outlet density · Menu-labeling legislation · Excessive alcohol consumption · Biological weapons incidents · Pandemic influenza standards of care · Pandemic preparedness · Local government legal preparedness · Urban public health crisis · EMTALA implications · Tobacco regulation limitations · Hajj public health security · Peramivir EUA · Mandatory vaccination · Sin food tax
Nebraska West Nile employment claim · Ohio breastfeeding breaks · Texas laser hair removal · Federal hospital H1N1 vaccination policy · Tuberculosis lawsuit dismissed · Hepatitis B vaccine case remanded · Staph infection compensation
Quotation of the Month
Robert Cox, parent of two New Rochelle, New York, schoolchildren
"26,500 school cafeterias lack required inspections"
USA Today (12/16/2009) Peter Eisler and Blake Morrison
A USA Today investigation found that more than 26,500 schools failed to have their cafeterias inspected at least twice last year, as required by federal law. Of those schools, more than 8,500 were not inspected at all. The Child Nutrition Act requires that all schools participating in the National School Lunch Program undergo twice yearly cafeteria inspections in order to ensure that facilities and workers comply with safety and sanitary requirements. These precautions are critical in keeping children, who are especially vulnerable to foodborne illness, safe from norovirus, Salmonella, E. coli, and botulism. But the U.S. Department of Agriculture (USDA), which oversees the program, says that the rule is difficult to enforce. The law does not stipulate a penalty for not meeting the requirement and only requires states to identify the number, not the names, of schools which were not inspected. Illinois Senator Dick Durbin said that because so many children rely on the meals, expelling schools from the program for not meeting inspection requirements is not practical. "Fines or law suits or penalties . . . may be the only way to move some of these districts," he said. USDA spokesman Caleb Weaver said Secretary Tom Vilsack plans to "aggressively push state and local health agencies to conduct the two required annual inspections, so that schools are in compliance."
[Editor's note: For more information on the National School Lunch Program, please visit http://www.fns.usda.gov/cnd/Lunch/AboutLunch/ProgramHistory_6.htm.]
"Black lung on rise in mines, reversing trends"
Wall Street Journal (12/15/2009) Kris Maher
Rates of coal workers' pneumoconiosis, commonly called black lung disease, have doubled in the last decade, prompting the Mine Safety and Health Administration (MHSA) to consider proposing new regulations lowering exposure to coal dust. Black lung disease, which is caused by inhaling coal dust over an extended period of time, often leads to fibrosis, destruction of lung tissue, and increased risk for emphysema, chronic bronchitis, and tuberculosis. The federal Coal Mine Health and Safety Act was enacted in 1969 in an effort to reduce cases of black lung disease by setting coal-dust standards for mines; current federal regulations require coal dust levels be measured periodically for eight hour increments. MHSA believes the increase in disease may be due to longer work shifts by miners and irregular dust mitigation practices by mining companies, and is exploring regulations cutting permissible levels of coal dust in half. MHSA also plans to introduce a new dust monitor worn by miners that would provide continuous feedback on dust levels. "It is time to end black lung," said Joe Main, Assistant Secretary of Labor for Mine Safety and Health.
[Editor's note: For more information on coal workers' pneumoconiosis, please visit http://www.cdc.gov/niosh/topics/pneumoconioses/.]
"Millions in U.S. drink dirty water, records show"
The New York Times (12/08/2009) Charles Duhigg
A New York Times investigation of data from the U.S. Environmental Protection Agency (EPA) found that more than 20 percent of U.S. water treatment system have violated the Safe Drinking Water Act during the last five years, providing water containing illegal concentrations of arsenic, uranium, and dangerous bacteria. The Act requires the EPA to set standards for drinking water quality and oversee the states, municipalities, and water suppliers who implement the standards. Contamination of drinking water can lead to gastrointestinal illness, reproductive problems, neurological disorders, and death, and may cause some types of cancer. Despite the importance of safe drinking water, the Times investigation found that fewer than six percent of water systems that broke the law were fined or punished. Federal government officials say the Safe Drinking Water Act has not been strictly enforced because it has not been a federal priority. "There is a significant reluctance with the EPA and Justice Department to bring actions against municipalities, because there's a view that they are often cash-strapped, and fines would ultimately be paid by local taxpayers," said David Uhlmann, former head of the environmental crimes division at the Department of Justice. The EPA said, however, that the Act has been enforced and that state regulators often use non-punitive methods, such as technical assistance, to help systems that have violated the law. Moreover, the Agency recently announced a plan to overhaul enforcement mechanisms of the Clean Water Act. "The administration has made it clear that clean water is a top priority," said Adora Andy, an EPA spokeswoman.
[Editor's note: For more information on safe drinking water, please visit http://www.cdc.gov/healthywater/drinking/index.html, and for more information on the Safe Drinking Water Act, please visit http://www.epa.gov/safewater/sdwa/index.html. On December 8, 2009, the U.S. Senate Committee on Environment & Public Works held a hearing entitled "Oversight Hearing on Federal Drinking Water Programs." For more information about the hearing, please visit http://epw.senate.gov/public/index.cfm?
"MS patient loses battle with bureaucracy"
The Gazette (12/11/2009) Charlie Fidelman
Montreal, Canada, schoolteacher Anna Maria Mea, who suffers from multiple sclerosis, was denied paid leave when her doctor advised her to stop working to lower her risk of exposure to H1N1. Multiple sclerosis is an autoimmune condition affecting the nervous system and causing lower immune resistance to diseases such as influenza. Mea filed her request for paid leave under a preventative leave law for work-related health issues which primarily covers pregnant women whose positions might involve work conditions that pose risk to the mother or to the unborn child. Alexandra Rény, of the Commission de la santé et de la sécurité du travail (CSST) indicated that the clause covering anyone with workplace related health issues is so obscure that it has never been used. CSST relies on doctors to determine whether work conditions pose a risk and decisions are usually rendered within 48 hours; however, Mea's claim was not rejected until after she had been on leave without pay for six weeks. Other requests from immuno-suppressed workers also have been rejected. Yves Parenteau, a spokesperson for the teachers union stated, "It sounds to us like they don't want to set a precedent."
[Editor's note: For more information on Influenza A (H1N1), please visit http://www.flu.gov/.]
"Tobacco companies say Ottawa played equal role in developing cigarettes"
The Canadian Press (12/13/09) Tamsyn Burgman
The British Columbia Court of Appeal ruled last week that the Ottawa government could be brought into the suit against tobacco companies as a third party, setting a precedent for other lawsuits pending in other parts of Canada. Tobacco companies argue that from the late 1960s to the early 1980s, the Canadian government instigated the research and manufacture of low tar varieties of cigarettes, and thus should share responsibility. These cigarettes, which were tested and deemed acceptable by government officials, contained much higher levels of nicotine and comprised 95% of available tobacco for Canadian manufacturers. Health Canada officials declined to comment on the government's historical role. Health advocates argue the government acted in good faith, believing that these actions would cause less harm to the public's health. On the other hand, tobacco manufactures allegedly destroyed decades of scientific research, marketed the low tar cigarettes as safe, and targeted children with their advertising. Cynthia Collard, executive director of Physicians for a Smoke-free Canada said, "The government, reflecting the scientific view at the time, may have been wrong and maybe even a little inept, but it didn't take the deliberate actions that the companies did, to take steps they knew were against the interests of the people who were using the products." It is now known that low tar cigarettes do not lessen negative health effects of smoking.
[Editor's note: For more information about the case, please visit http://www.courts.gov.bc.ca/Court_of_Appeal/.]
California: San Francisco mayor backs radiation level labels for cell phones
"Radiation level labels proposed"
San Francisco Chronicle (12/15/2009) Heather Knight
Illinois: Pediatrician allegedly obtained free vaccines from CDC under false pretenses
"Decatur pediatrician faces federal vaccine fraud charges"
Decatur Herald & Review (11/20/2009) Ron Ingram and Annie Getsinger
Illinois: Bars allow smoking despite ban if smokers help pay fines
"Illinois smoking ban: some bars give smokers a sanctuary"
Chicago Tribune (11/25/2009) Angie Leventis Lourgos and Jackie Bange
Iowa: ART baby born two years after dad's death can receive his Social Security benefits
"Girl entitled to dead dad's benefits, judge rules"
Des Moines Register (12/2/2009) Jason Clayworth
New Jersey: Legislation gives adults with autism anti-discrimination rights
"Senate committee passes autism bills"
Star-Ledger (12/08/2009) Elise Young
New Jersey: Hospital bans neckties for doctors to help prevent spread of flu
"They cut ties over flu fears"
New York Daily News (11/24/2009) Samuel Goldsmith
National: Airlines are not following CDC guidelines for sick passengers
"Despite U.S. guidelines, flight attendants aren't handing ill passengers face masks"
Los Angeles Times (12/16/2009) Rong-Gong Lin II
National: Army nurse sentenced to 41 months in prison for infecting 16 patients with hepatitis
"Former Army nurse gets 41 months for hepatitis outbreak"
Pittsburgh Tribune-Review (12/02/2009) Walter F. Roche, Jr.
National: Suit against CDC by TB patient for invasion of privacy dismissed
"Judge dismisses Andrew Speaker suit against CDC"
Atlanta Journal Constitution (11/24/2009) Shelia M. Poole
China: Chinese police accuse three of selling milk powder contaminated with melamine
"China arrests 3 for selling tainted milk powder"
The New York Times (12/12/2009) David Barboza
China: China promises severe punishment for H1N1 death cover-up
"China orders accurate tally of its cases"
Wall Street Journal (11/21/2009) Sky Canaves
Saudi Arabia: Hajj devil stoning ritual closely watched by health officials for flu outbreak
"Hajj devil stoning ritual biggest swine flu risk"
Associated Press (11/28/2009) Hadeel Al-Shalchi
"The effectiveness of limiting alcohol outlet density as a means of reducing excessive alcohol consumption and alcohol-related harms"
American Journal of Preventive Medicine (12/09) Carla Alexia Campbell and others
"Rationale and evidence for menu-labeling legislation"
American Journal of Preventive Medicine (12/09) Christina A. Roberto, Marlene B. Schwartz, and Kelly D. Brownwell
"Recommendations for reducing excessive alcohol consumption and alcohol-related harms by limiting alcohol outlet density"
American Journal of Preventive Medicine (12/09) Task Force on Community Preventive Services
"Assessing the impact of Melendez-Diaz on the investigation and prosecution of biological weapons incidents"
Biosecurity and Bioterrorism (12/09) Elizabeth L. Bahr and Rebecca Katz
http://www.liebertonline.com/toc/bsp/7/3 (subscription required)
"Altered standards of care during an influenza pandemic: identifying ethical, legal, and practical principles to guide decision making"
Disaster Medicine and Public Health Preparedness (12/09) Donna Levin and others
"Effective pandemic preparedness"
Disaster Medicine and Public Health Preparedness (12/09) Kevin Yeskey
"Emergency legal preparedness among select U.S. local governments"
Disaster Medicine and Public Health Preparedness (12/09) Evan Anderson and James Hodge, Jr.
"Implications of the Emergency Medical Treatment and Labor Act (EMTALA) during public health emergencies and on alternate sites of care"
Disaster Medicine and Public Health Preparedness (12/09) Andrew Roszak and others
"Pandemic influenza as a 21st century urban public health crisis"
Emerging Infectious Diseases (12/09) David M. Bell and others
"FDA exercises new authority to regulate tobacco products, but some limits remain"
Journal of the American Medical Association (11/18/09) Mike Mitka
http://jama.ama-assn.org/cgi/content/full/302/19/2078 (subscription required)
"Establishment of public health security in Saudi Arabia for the 2009 Hajj in response to pandemic influenza A H1N1"
The Lancet (11/21/09) Z.A. Memish and others
"The Emergency Use Authorization of Peramivir for treatment of 2009 H1N1 Influenza"
The New England Journal of Medicine (12/3/09) D. Birnkrant and E. Cox
"Mandatory vaccination of health care workers"
The New England Journal of Medicine (11/19/09) A.M. Stewart
"Taxing 'sin foods' - obesity prevention and public health policy
The New England Journal of Medicine (12/10/09) C. Chaufan, G. H. Hong, and P. Fox
Nebraska: Motion for summary judgment against employee with West Nile Virus reversed
Deviney v. Union Pacific Railroad Company
Nebraska Court of Appeals
Filed November 17, 2009
Opinion by Judge Sievers
Ohio: Judgment against female employee terminated for unauthorized lactation breaks affirmed
Allen v. Totes/Isotoner Corporation
Supreme Court of Ohio
Decided August 27, 2009
Opinion Per Curiam
Texas: Temporary injunction allowing use of laser hair removal device affirmed
Texas Department of State Health Services, et. al. v. Holmes
Court of Appeals of Texas, Third District, Austin
Filed July 31, 2009
Opinion by Judge Henson
Federal: Injunctive relief from hospitals' enforcement of worker H1N1 vaccination policy denied
Service Employees International Union, Local 121rn, et. al. v. Los Robles Regional Medical Center, et. al.
United States District Court for the Northern District of California, San Jose Division
C 09-5065 JF (RS)
Filed November 17, 2009
Opinion by Judge Fogel
Federal: Tuberculosis patient's lawsuit against CDC for invasion of privacy dismissed
Speaker v. U.S. Department of Health and Human Services Centers For Disease
Control and Prevention
United States District Court for the Northern District of Georgia, Atlanta Division
Filed November 23, 2009
Opinion by Judge Duffey
Federal: Hepatitis B vaccine injury cases remanded for determination of causation
Rotoli, et. al v. Secretary of Health and Human Services
United States Court of Federal Claims
No. 99-644V, No. 99-631V, No. 99-660V, No. 99-639V, and No. 01-307V
Filed September 2, 2009
Opinion by Judge Firestone
Federal: VA Board decision denying compensation for staph infection vacated and remanded
Hood v. Shinseki
United States Court of Appeals for Veterans Claims
Decided November 25, 2009
Opinion by Judge Lance
__________PHL NEWS QUOTATION OF THE MONTH___________
"It's not like we're demanding four-star meals. Let's just not have botulism."
-- Robert Cox, parent of two New Rochelle, New York, school children, on safety problems discovered in school cafeterias.
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.
For past issues or to subscribe to the CDC Public Health Law News, visit http://www.cdc.gov/phlp/news/archives.html. For help with subscriptions or to make comments or suggestions, send an email to Lindsay Culp at firstname.lastname@example.org.
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 Stacie Kershner for her help on this issue.