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Thursday, February 18, 2010

From the Public Health Law Program,
Office for State, Tribal, Local and Territorial Support,
Centers for Disease Control and Prevention

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From the Public Health Law Program, Office of Strategy and Innovation, CDC



***Call for Proposals. The Robert Wood Johnson Foundation's Public Health Law Research program has announced a call for proposals for studies that will examine the public health impacts of laws and legal practices. The deadline for submitting a preliminary proposal is April 14, 2010. For more information, please visit:

***Public Health Legal Action in Communicable Disease Response. The City of Milwaukee Health Department, in coordination with municipal and county legal counsel, has developed template materials that address the legal processes a local health department could follow in order to enforce its public health powers granted under state and federal statutes. For more information, visit:

***Addressing Childhood Obesity through Agricultural Policy. A special edition of the Journal of Hunger and Environmental Nutrition identified research opportunities to develop successful interventions within agriculture, food, and health systems, as well as policies and actions for moving toward and achieving community environments that allow healthier diets and reduced obesity. To read the articles, visit:

***Implementation of the WHO Framework Convention on Tobacco Control. The February edition of the WHO Bulletin features an editorial by Haik Nikogosian about the importance of international cooperation and assistance for the success of the World Health Organization Framework Convention on Tobacco Control. To read the article, visit:

***Healthy Stories Website. The Miami-Dade County Health Department legal team has created a website for their Healthy Stories, a series of vignettes documenting the work of the Health Department. Please visit:

***Job Opening: Public Policy Attorney, Philadelphia Department of Public Health. The Philadelphia Department of Public Health seeks a creative and experienced public health lawyer with strong policy development skills to work with the Tobacco Policy and Control initiative. The attorney will be involved in the creation and/or reformation of a series of legislative and regulatory policies. For more information, visit:

***Job Opening: Attorney, National Highway Traffic Safety Administration. The Office of the Chief Counsel at the National Highway Traffic Safety Administration is hiring an attorney in the Litigation and Enforcement Division. The major duties of the position include a wide range of investigatory and litigation activities relating to motor vehicle safety, as well as defensive litigation and resolution of confidentiality requests. For more information, please refer to vacancy announcement NHTSA 10-19 at

*** Webinar on Healthy School Foods - Avenues for Innovation (3/12/10). The National Conference of State Legislatures, Health Program will host a free, limited space webcast on policy options for healthy school foods on March 12, 2010 from 12:00-1:30 p.m. ET.
For more information or to register, please visit:

Top Story

1. A federal effort to push junk food out of schools

States and Localities

2. Washington: How the aged and frail are exploited in Washington's adult family homes


3. All clear? Head injuries get attention from states
4. Where there's no smoke, Altria hopes there's fire

Briefly Noted

Alabama capitol mold · California Valentine bears · Idaho P.E. standards · Massachusetts oral health · Minnesota chemical regulations · Mississippi meth bill · New York cocktails · Pennsylvania menu labeling · Wyoming worker safety · National texting ban · Serving size · Asia toy regulations · Macedonia smoking strike

Journal Articles

Alcohol outlet density · Congestion road tax · Excessive alcohol consumption · Alcoholic beverage taxes · Menu labeling · Legal standard of care · Tobacco taxation · Restaurant food labeling · Ski safety helmets · Smoke-free law preemption · Tobacco control

Court Opinions

Landlord regulation · Retiree health insurance · Inflated pharmaceutical costs · Prison disability · Pharmaceutical lawsuit · EPSDT class action · Life-sustaining Medicaid services


"A federal effort to push junk food out of schools"
New York Times (02/08/2010) Gardiner Harris

In an effort to reduce childhood obesity, legislation backed by President Obama's administration would ban candy and sugary beverages in schools, in addition to requiring nutritious meal options. Although the legislation aims to transform the eating habits of children, critics argue that the rules, especially the parts that require schools to offer more nutritious options, would be a further strain on already weakened budgets. Local officials have also expressed their skepticism about the proposed legislation: "Our feeling is that school boards are acutely aware of the importance of ensuring that children have access to healthy and nutritious food," said Lucy Gettman of the National School Boards Association. Other detractors have focused their attention on the effect the rules would have on fund-raising in which schools have traditionally been engaged. The Centers for Disease Control and Prevention (CDC) have noted the effectiveness of the long-standing ban on junk food from official school breakfast and lunch programs. After the ban went into effect, many schools voluntarily extended the ban by limiting limits on students' access to candy and sugary drinks, including those offered to finance sports or other extracurricular programs. Dr. William H. Dietz, an obesity researcher at the CDC, believes that the changes have already helped. Dietz notes, "There's been a plateau in childhood obesity, and I think one of the reasons is that things are different in schools."

(Editor's Note: On February 10, 2010, First Lady Michelle Obama proposed a national initiative called "Let's Move" to a large audience at the White House. Let's Move has four primary components: (1) an increase in nutritional information; (2) increased physical activity; (3) easier access to healthy foods; and (4) personal responsibility. Additional information on Let's Move is available at


"How the aged and frail are exploited in Washington's adult family homes"
Seattle Times (01/31/2010) Michael J. Berens

An investigation by the Seattle Times has found that thousands of vulnerable seniors, living in private residences called "adult family homes," have been exploited and harmed by "profiteers" and amateur caregivers. Adult family homes are often spare bedrooms in private residences, licensed by the state to allow homeowners to care for the elderly as an alternative to living in nursing homes. To encourage this new industry - which moves state-subsidized nursing home patients into less-expensive neighborhood residences - Washington imposed relatively few regulations, including no minimum staffing requirements, and, for many years, did not require liability insurance. Washington, in its effort to cut Medicaid expenses, began to relocate seniors in 1993 that did not require 24-hour care. State officials said that by 2008, the state saved $105 million in state Medicaid funds that would have otherwise gone to nursing homes. However, concerns have been mounting that the increase in prevalence of these community-based homes has not been accompanied by a proportional increase in state investigators to oversee and ensure that the homes are providing proper care. In its investigation, the Times found "576 violations involving caregivers performing unauthorized medical duties; 46 cases of residents unnecessarily restrained; and 1,201 instances in which medication records were missing or incorrect." However, officials at the state Department of Social and Health Services, which inspects the homes at least every 18 months, say the "majority are run by caring competent providers with good records," and that "the agency's standards are among the highest of those states that allow similar homes." Presently Washington is nationally regarded as a leader in providing community care options for seniors.


"All clear? Head injuries get attention from states"
Seattle Post Intelligencer (01/28/2010) Noah Trister

Several states are considering measures to toughen restrictions on young athletes returning to participate in sports after head injuries. State legislatures have been influenced in part by individual cases and recent attention the issue has received from the National Football League. According to the Brain Injury Association of America, estimates for the number of sports and recreation related injuries often reach 3.8 million per year. Because younger athletes' brains are still developing, recovery from a concussion may take longer than it would for an adult, thereby increasing the risk of severe injury if an athlete is returned to participate too early. Washington was the first state to pass a "return-to-play" statute last year, whereby athletes under 18 years of age showing symptoms of concussion cannot return to participate in the sport without a licensed health care provider's written approval. Other states considering this issue include California, Pennsylvania, Maine, and New Jersey. Mike Colbrese, executive director of the Washington Interscholastic Activities Association, stated, "There's no doubt that the majority of the people believed it was time and that it was extremely important to do something like this. The mantra for the movement has been, 'When in doubt, sit them out.'" But some medical professionals add that although the new laws are a positive step forward, some medical personnel need to learn how to appropriately evaluate head injuries. Mike Collins, assistant director of the University of Pittsburgh Medical Center's Sports Medicine Concussion Program said, "In a perfect world, we would have an athletic trainer in every school where there's contact sports."


"Where there's no smoke, Altria hopes there's fire"
New York Times (01/31/2010) Duff Wilson & Julie Creswell

In response to new powers to regulate the production and marketing of tobacco products, Altria - home to Phillip Morris - submitted a series of letters to the Food and Drug Administration (FDA) arguing that the federal government should agree with Altria's stance that smokeless tobacco products are less harmful than cigarettes, and that they should be allowed to market them as such to consumers. Public health officials agree that smokeless tobacco products are less harmful to individuals than cigarettes, but still maintain concerns about the products' nicotine and carcinogenic content. Additionally, many public health officials believe that the promotion of smokeless tobacco products - many of which contain flavoring additives long used in candy - would attract younger customers, in addition to maintaining the addiction for smokers who would have otherwise quit. In October 2009, New York City enacted a ban, effective February 2010, to prohibit the sale of fruit-flavored snuff, excluding menthol, mint, and wintergreen flavors. However, subsidiaries of Altria have filed a federal lawsuit to block the ban, arguing that federal law and FDA regulation supercede it. Gregory N. Connolly, professor at the Harvard School of Public Health, notes, "They're taking the FDA debate and making it on smokeless rather than 'light' cigarettes, which is where the real harm is. It's brilliant, in a way." Market analysts such as Christopher Growe see a strong potential for the growth of smokeless tobacco in light of the new FDA laws: "There's an opportunity that, in the long run, the FDA could treat smokeless tobacco differently than cigarettes."

_____________________BRIEFLY NOTED______________________

Alabama: Mold sickens legislative staff, but no legal recourse
"Health concerns about mold increase in wake of May floods at State House"
Montgomery Advertiser (02/07/2010) Sebastian Kitchen

California: Valentine's Day bears contain illegal levels of lead
"California wants Target to pull Valentine bears"
Associated Press (02/09/2010),0,1844324.story

Idaho: New physical education standards emphasize lifetime fitness
"P.E. goes beyond team sports in Idaho schools"
Idaho Statesman (02/02/2010) Colleen Lamay

Massachusetts: First state to require toothbrush time at preschool and day care
"Preschools add brush-and-spit to day"
New York Times (01/29/2010) Katie Zezima

Minnesota: State's regulations on chemicals in children's products lead nation
"The chemical revolt"
St. Paul Pioneer Press (02/07/2010) Maja Beckstrom

Mississippi: Second state to require prescription for products containing pseudoephedrine
"Mississippi meth bill enlists prescriptions for battle"
Commercial Appeal (02/02/2010) Phil West

New York: Health regulations require bars disclose drinks contain raw egg
"Things get messy when bartenders crack an egg"
New York Times (02/03/2010) Glenn Collins

Pennsylvania: Philadelphia implements strictest-in-the-nation menu-labeling law
"What's on the menu? Food facts"
Philadelphia Inquirer (01/31/2010) Don Sapatkin

Wyoming: State to implement task force recommendations to improve workplace safety
"Worker safety gets help"
Casper Star-Tribune (02/03/2010) Dustin Bleizeffer

National: Department of Transportation bans texting while driving commercial vehicles
"New rule for truck, bus drivers: no texting"
CNN (01/26/2010)

National: F.D.A. re-evaluates serving size, may increase to reflect reality
"One bowl = 2 servings. F.D.A. may fix that."
New York Times (02/06/2010) William Neuman

Asia: U.S. federal, state, and E.U. regulations on chemicals in toys vary widely
"Asian toymakers may save 'millions' on rewrite of safety laws"
Bloomberg (02/03/2010) Wing-Gar Cheng and Kyunghee Park

Macedonia: Macedonia bans smoking in all public places, eateries fear losses
"Macedonia bars, eateries close to protest smoking ban"
AFP (01/22/2010) Jasmina Mironski

___________________JOURNAL ARTICLES____________________

"Community alcohol outlet density and underage drinking"
Addiction (02/2010) Meng-Jinn Chen, Joel W. Grube, and Paul J. Gruenewald

"Congestion road tax and physical activity"
American Journal of Preventive Medicine (02/2010) Patrick Bergman and others (Registration required)

"The effectiveness of tax policy interventions for reducing excessive alcohol consumption and related harms"
American Journal of Preventive Medicine (02/2010) Randy W. Elder and others (Registration required)

"Increasing alcoholic beverage taxes is recommended to reduce excessive alcohol consumption and related harms"
American Journal of Preventive Medicine (02/2010) Task Force on Community Preventive Services (Registration required)

"Evaluating the impact of menu labeling on food choices and intake"
American Journal of Public Health (02/2010) Christina A. Roberto and others (Subscription required)

"Assessing the legal standard of care in public health emergencies"
JAMA (01/27/2010) James G. Hodge, Jr. and Brooke Courtney

"Promoting health through tobacco taxation"
JAMA (01/27/2010) Mohammed K. Ali and Jeffrey P. Koplan

"Enhancing the effectiveness of food labeling in restaurants"
JAMA (02/10/2010) Karen Blumenthal and Kevin G. Volpp

"Skiers, snowboarders, and safety helmets"
JAMA (02/17/2010) Michael D. Cusimano and Judith Kwok

"State preemption of local smoke-free laws in government work sites, private work sites, and restaurants - United States, 2005-2009"
MMWR (02/05/2010) S. Babb, M. Tynan, and A. MacNeil

"Tobacco control and free speech - an American dilemma"
New England Journal of Medicine (01/28/2010) Ron Bayer and Matt Kelly

___________________COURT OPINIONS____________________

New Jersey: Ordinance imposing regulatory requirements on landlords not preempted by state health law
Lake Valley Associates, LLC v. Township of Pemberton
Superior Court of New Jersey, Appellate Division
No case number issued
February 1, 2010
Per Curiam Opinion

Oregon: Local government obligated to make health insurance available to retirees only to the extent possible
Doyle v. City of Medford
Supreme Court of Oregon
SC S057330
Filed February 4, 2010
Opinion by Judge Balmer

Federal: Inmate's ADA and Rehabilitation Act claims upheld for injury untreated in prison
Gutierrez v. Valdez
U.S. District Court for the District of Idaho
Case No. CV09-464-S-REB
Decided February 9, 2010
Opinion by Magistrate Judge Bush (registration required)

Federal: Pharmaceutical manufacturer lawsuit over inflated costs reported to Medicaid sustained
In re: Pharmaceutical Industry Average Wholesale Price Litigation (City of New York, et. al. v. Abbott Laboratories, et. al.)
U.S. District Court for the District of Massachusetts
MDL No. 1456, Civil Action No. 01-12257-PBS, Subcategory Case No. 03-10643-PBS
Decided January 27, 2010
Opinion by District Judge Saris

Federal: Class action on behalf of minors alleging lack of EPSDT services sustained
John B. v. Goetz
U.S. District Court for the Middle District of Tennessee, Nashville Division
No. 3:98-0168
Filed January 28, 2010
Opinion by District Judge Haynes (registration required)

Federal: Agency enjoined from terminating life-sustaining services through Medicaid waiver program
Knowles v. Horn
U.S. District Court for the Northern District of Texas, Dallas Division
Civil Action No. 3:08-CV-1492-K
Decided February 10, 2010
Opinion by District Judge Kinkeade

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 For help with subscriptions or to make comments or suggestions, send an email to Lindsay Culp at

The News is published by the Public Health Law Program, Office of State, Tribal, Local, and Territorial Support, Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services (DHHS). Lindsay Culp, M.P.H., Editor; Vinay Chopra, Writer. Special thanks to Tara Ramanthan for her help on this issue.

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