March 2010 - CDC Public Health Law News
Thursday, March 18, 2010
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
***Pennsylvania Legal Preparedness Toolkit. The University of Pittsburgh Graduate School of Public Health Center for Public Health Preparedness has developed a "Legal Toolkit for Pennsylvania Local Health Departments." The toolkit contains model public health orders and related documents that local health departments and municipal solicitors may use as templates when drafting documents seeking judicial support for local health regulation enforcement. The toolkit is available at: http://www.prepare.pitt.edu/law/ltk/Default.aspx.
*** Final Tobacco Rule. The Food and Drug Administration (FDA) issued a final rule containing a broad set of federal requirements designed to significantly curb access to and the appeal of cigarettes and smokeless tobacco products to children and adolescents in the United States. Published March 19, 2010, the new rule becomes effective June 22, 2010, and has the force and effect of law. To read the rule, visit: www.fda.gov/protectingkidsfromtobacco.
***Public Health Consequences of Climate Change Funding Opportunity. CDC's Global Climate Change Program in the National Center for Environmental Health has announced a funding opportunity to build the capacity of state health departments, U.S. Territories, and Native American Tribal Health agencies to address the public health consequences of climate change and its implications on human health. The award is entitled "Developing Public Health Capacity and Adaptations to Reduce Human Health Effects of Climate Change" (CDC-RFA-EH10-1006); applications must be received by April 19, 2010. For more information, please visit: http://www07.grants.gov/search/search.do;jsessionid=8qQmLCFGhbJFQLqcy7TD9q1C1Q6phKXm
*** Soda Tax and Better Health. The March issue of the Archives of Internal Medicine features "Food Price and Diet and Health Outcomes: 20 Years of the CARDIA Study" by Kiyah J. Duffey and others. The authors' findings suggest that policies which increase the price of unhealthy foods and sugary drinks, like a soda tax, may influence Americans to eat a healthier diet. To download the article, please visit: http://archinte.ama-assn.org/cgi/content/full/170/5/420?home.
*** Health Affairs March Issue. The journal Health Affairs has devoted its March 2010 issue to the childhood obesity epidemic and the federal, state, and local policy approaches that could have greatest impact for helping to solve this public health crisis. To view the journal's table of contents, visit: http://content.healthaffairs.org/content/vol29/issue3/ .
***Oregon Isolation and Quarantine Bench Book. The Oregon Department of Justice and the Oregon Department of Human Services Public Health Division have developed the Oregon Isolation and Quarantine Bench Book. The book is intended to serve as a guide through the isolation and quarantine processes that can be utilized during a public health emergency, or in more routine public health cases, and provides important information about public health law, communicable disease, and infection control. To view the book, please visit: http://www2a.cdc.gov/phlp/docs/Public%20Health%20Bench%20Book%20Final_Oregon.pdf.
***Interactive Tobacco Policy Map. The Robert Wood Johnson Foundation has developed a new interactive map to give a nationwide picture of continuing state efforts on key tobacco control policies, including state-by-state breakdowns on smoke-free laws, cigarette tax rates and total tobacco control spending. To access the map, please visit: http://www.rwjf.org/publichealth/product.jsp?id=56548.
*** State Children's Health Legislation Report. The American Academy of Pediatrics has published The 2009 State Legislation Report, which outlines activity on 10 issues related to children's health and well-being. To access the report, visit: http://aap.org/advocacy/statelegrpt.pdf.
***Public Health Law Seminars. In partnership with the American Society of Law, Medicine and Ethics (ASMLE), the Public Health Law Association (PHLA) is offering a series of "Virtual Seminars" beginning March 16. These free, brief seminars, conducted via teleconference and lasting no more than 30 minutes, will provide public health lawyers, practitioners, students, and others an opportunity to learn about and discuss emerging public health law issues with select experts in the field. For more information, please visit: http://phla.info/events.html.
1. Supreme Court accepts appeal over vaccine safety \
States and Localities
2. California: Food politics in L.A.
3. Minnesota: Reinventing care for poor means relying less on ER
4. Oregon: New script for Sudafed?
5. Sometimes, good legal help is the best medicine
6. South Korea: In South Korea, asbestos compensation comes too late
7. Uganda: EU supports law threatening access to medicines
Illinois psychiatric patients · Indiana AIDS conviction · Kentucky nurse practitioners · New York honeybees · Nightclub smoking · Vermont cigarette ads · National Title IX · Lead rules · Label nutritional claims · Food safety legislation · New poverty formula · China food regulations · European Union cigarette prices
Tattooing pathogen risk · Pueblo Smokefree Air Act · School commuting · Public health confidentiality · Sex offender laws · Food labels · Chinese disease legislation · Massachusetts health reform effects · Health reform nullification
Health center funds · Wind energy construction · Streptococcus B test withheld · Clean Air Act · Contraceptive product liability · Lethal injection drugs · Untaxed cigarette sales · Autism decision
Quotation of the Month
Thomas Merrill, general counsel for the New York City Department of Health and Mental Hygiene
"Supreme Court accepts appeal over vaccine safety"
CNN (03/08/2010) Bill Mears
On March 8, the Supreme Court of the United States announced that it will decide whether pharmaceutical manufacturers can be sued outside a special vaccine court set up to address claims about vaccine safety. At issue is the National Vaccine Injury Act of 1986, which created a special vaccine court to provide quick, no-fault solutions to claims against drug manufacturers. By shielding companies from lawsuits, the court was designed to ensure a steady, affordable vaccine supply. The parents of Hannah Bruesewitz sued Wyeth Laboratories, now owned by Pfizer, Inc., claiming that their daughter suffers a "residual seizure disorder" as a result of receiving the diphtheria, pertussis, and tetanus (DPT) vaccine, and alleging that the company failed to adequately warn them of risks associated with the vaccine. The justices agreed to hear the case after conflicting rulings by lower courts. The Georgia Supreme Court recently held that federal law allows some design defect claims against vaccine manufacturers, while in this case, Bruesewitz v. Wyeth, the U.S. Court of Appeals for the Third Circuit held that federal law expressly bars all such claims. The issues before the Court are whether such liability claims can proceed and whether vaccine-related injuries could have been avoided. The Court will hear oral arguments for the case in the fall.
[Editor's note: For more information, visit http://www.supremecourt.gov/qp/09-00152qp.pdf.]
"Food politics in L.A.: Hungry for change"
Los Angeles Times (02/18/2010) Mary MacVean
Los Angeles City and County are undertaking several new initiatives aimed at improving access to healthy food choices, reducing hunger, and addressing obesity. Experts suggest there is a link between hunger and obesity as a result of eating high calorie food that is low in nutritional value, and local officials are taking notice. "There has been a reawakening about food in Los Angeles," says L.A. City Council President Eric Garcetti. The new initiatives include efforts to donate excess food from City facilities including the Los Angeles Convention Center, a moratorium on new fast-food restaurants in some areas of the city, formation of a food policy task force, and possibly lowering costs for local farmers markets. Additionally, there is renewed effort to enroll all eligible residents for food stamps. According to Matthew Sharp of the California Food Policy Advocates, nearly one million Los Angeles County residents do not get the food stamps they are eligible to receive. The City Council is also awaiting a report assessing what can be done through land use powers to encourage supermarket construction in neighborhoods where none are present. Garcetti said that people are beginning to realize how unhealthy a lot of our food is and they are doing something about it. He went on to say that there has been a "recognition by the government that it's not going to happen on its own."
[Editor's Note: For more information on CDC's work to reduce obesity, visit http://www.cdc.gov/obesity/index.html.]
"Reinventing care for poor means relying less on ER"
Minneapolis Star Tribune (03/13/2010) Warren Wolfe
Minnesota, in an effort to continue to offer state-funded health care for its lowest income residents despite budget problems, is working to create a new system based on the already-tested concept of accountable care organizations (ACOs). Under an ACO system, providers take responsibility for a patient, and receive a set fee from insurers to cover all preventative care, doctor visits, tests, and procedures. Governor Tim Pawlenty and legislators are adopting a similar system for all of its General Assistance Medical Care (GAMC) patients, where the state will pay hospitals a set sum to treat their patients. The new system will attempt to reduce the use of expensive hospital emergency rooms and promote care in low-cost medical clinics, as part of its "coordinated care service delivery." However, because about one-fourth of GAMC patients are homeless, hospitals may face obstacles coordinating care. Monica Nilsson, who heads street outreach for St. Stephen's Human Services, said, "My guys are the hardest to reach. They go to the ER because they know the ER. Sometimes they go just to get warm or they're lonely, or need their meds. It's going to take a lot of word-of-mouth education on the street to change that." Although some hospitals are critical of the program and the budget cuts associated with it, Representative Tom Huntley of Duluth, the leading Minnesota House expert on health and human services issues, provides another way to look at it. "This is a stepping stone, a woefully underfunded one, but a step toward a far better system of accountable care organizations."
"New script for Sudafed?"
Stateline.org (03/15/2010) John Gramlich
A law passed by Oregon in 2005 requiring a doctor's prescription for tablets of Sudafed, Claritin D, and other cold and allergy medications—all of which contain the decongestant pseudoephedrine used to produce crystal meth—has produced some promising statistics in the state. The number of meth labs found in Oregon has decreased from 192 in 2005, to only 10 in 2009. Meth use in the United States has been linked to widespread crime and addiction, and its production involves a dangerous chemical process that can result in explosions, toxic waste, injuries, and death. Gary Boggs, of the U.S. Drug Enforcement Agency notes, "It is fairly hard to argue with the success of the Oregon model." Other states, which have recently seen a surge in meth labs, are taking note of the Oregon law's success and legislators are pushing for the enactment of similar laws. However, pharmaceutical companies, fearing that requiring customers to obtain a prescription for all drugs containing pseudoephedrine may affect their profits, are aggressively lobbying for alternative laws. Through their lobbying arm the Consumer Healthcare Products Association (CHPA), the pharmaceutical companies are offering to pay for electronic tracking systems which would allow pharmacies to instantly find out whether a particular customer has recently purchased pseudoephedrine elsewhere. This system would provide the advantages of alerting law enforcement as to who is attempting to buy more of the drug than allowed and acknowledging that requiring a prescription is often a tough sell politically, as consumers and lawmakers may see it as overly burdensome. Washington Representative Tom Campbell is testing the legislative climate in Washington this year with both proposals and said, "It surely does work, but it's a very difficult route."
[Editor's Note: To read the Oregon law, visit http://www.leg.state.or.us/05reg/measures/hb2400.dir/hb2485.en.html.]
"Sometimes, good legal help is the best medicine"
Los Angeles Times (03/12/2010) Anna Gorman
The Los Angeles Timesr eports on a growing nationwide trend to bring together doctors and lawyers in low-income neighborhoods across the nation. The first such partnership was created in 1993 after Barry Zuckerman, a Massachusetts doctor, complained to an attorney about pediatric patients who kept returning with the same problems. Zuckerman, in referring to the partnership he created with the attorney, said, "We can do all we want medically but because of these problems, if changes aren't made, nobody is going to get better . . . The unfortunate reality is that we need lawyers." The programs, such as the one in the St. John's Well Child and Family Center in Pacoima, California—where a local legal services attorney spends two days per week—have become integral parts of clinics whose patients often worry about much more than their physical health. Jim Mangia, the chief executive of St. John's–referring to doctors seeing children with cockroaches in their ears, lead in their blood, and bed bug rashes on their legs—said, "The socioeconomic conditions in which our families live are slapping our doctors in the face. Someone has to hold slum lords accountable for the slum housing conditions, which are poisoning our children." Lawyers who work in such clinics rarely end up in court, but rather prevent utility companies from stopping service, stop evictions, and provide assistance for patients to get into food stamp programs. Additionally, aside from helping individual clients, doctors and lawyers are together pushing for policy changes to eliminate barriers to health and "change the way providers relate to their patients."
"In South Korea, asbestos compensation comes too late"
Time (02/23/2010) Geoffrey Cain
Later this month South Korean lawmakers are expected to pass regulations that will require the government and developers to reimburse victims of asbestos exposure. Despite known links between asbestos and diseases such as mesothelioma, lung cancer and asbestosis, the South Korean government only fully banned asbestos last year; for decades unfettered demolition and construction of buildings with asbestos proceeded while the known associated risks were ignored by the government and developers alike. Kim Sang-hee, a South Korean National Assembly member said, "The government can't avoid these criticisms. It didn't take proper measures earlier on, even though there were strong appeals from many environmental organizations (for the ban and reimbursement) in the early 2000's." Additionally other Asian countries such as China, India and Indonesia, continue to mine and manufacture the hazardous material. Paek Domyung, a Professor of Occupational Medicine at Seoul University says, "There will be large problems with these countries if they don't regulate asbestos more thoroughly." Paek goes on to say that Canada shares some responsibility because they continue to export large quantities of asbestos to poor Asian countries even though the government has spent millions of dollars remediating its own schools and hospitals. Public health experts expect asbestos related illnesses to increase substantially until around 2030, and reimbursement to victims is the start of a long campaign.
[Editor's Note: For more information about asbestos exposure, visit http://www.cdc.gov/health/asbestos.htm.]
"EU supports law threatening access to medicines"
Inter Press Service (03/15/2010) Wambi Michael
Activists are criticizing Uganda's Counterfeit Goods Bill because of concerns that if passed the legislation will threaten access to generic medicines in the low income East African country. The European Union (EU) funded the drafting of this legislation through financial support under its Economic Partnership Agreement (EPA) with the East African countries, including Uganda. Activists claim the bill is drafted broadly and will criminalize the production and importation of generic medicines which in Uganda's health care system are crucial to the treatment of illness, particularly AIDS/HIV and malaria. EU political and trade delegate Harvey Rouse has acknowledged that the bill is funded in part by a five million euro financing agreement, and has stated that in so doing the EU "…is supporting the ministry of trade…to reform its policy and legal-regulatory regimes, (including on) counterfeits. The support is under the EPA-related trade and private sector development programme." Opponents of the legislation have criticized the law as being concerned with trade interests and not safety standards because the law is funneled through trade ministries and not health ministries, and because it involves customs and police and not health authorities. Intellectual property rights expert, Sinsule Musungu, has said that intellectual property has become a very important part of the EU's foreign policy….the West won't get very far if they use standard IP point of entry…and so, using the language of counterfeits strategically is a strategy to get via another way what you would normally get through IP laws." Legal experts have argued that Ugandan law currently provides a basis for addressing counterfeiting though its Copyright Act, Trademark Act, Patents Act and Penal Code.
Illinois: Historic settlement could move psychiatric patients to community-based programs
"New hope for Illinois' mentally ill nursing-home residents"
Chicago Tribune (03/15/2010) David Jackson and Gary Marx
Indiana: Man convicted for failing to warn sexual partners that he has AIDS
"Police say AIDS patient put 26 women at risk"
Greenwood Star (02/25/2010) John Tuohy
Kentucky: Kentucky Legislature debates expanding role of nurse practitioners
"Battle brewing over nurse practitioners"
Louisville Courier-Journal (03/03/2010) Deborah Yetter
New York: New York City may amend health code to allow honeybees
"Bees in the city?"
New York Times (03/14/2010) Mireya Navarro
New York: City plans to revoke licenses of clubs that promote smoking
"City tries to shut club it says flouts smoking ban"
New York Times (03/14/2010) Diane Cardwell
Vermont: Court rules ads promoting cigarettes as less risky are deceptive and misleading
"Vermont court: 'reduced risk' cigarette ads are false"
Associated Press (03/12/2010) Dave Gram
National: Benefits from Title IX can have life-long effects for women
"As girls become women, sports pay dividends"
New York Times (02/16/2010) Tara Parker-Pope
National: New federal lead removal regulations take effect
"Cloud of controversy over new lead rules"
Boston Globe (03/06/2010) Jenifer B. McKim
National: FDA says companies inflated nutritional claims of products
"F.D.A. cracks down on Nestle and others over health claims on labels"
New York Times (03/03/2010) William Neuman
National: Advocates hope Senate will act on food safety legislation
"Foodborne illness costs US $152 billion annually"
Reuters (03/03/2010) Christopher Doering
National: Federal government begins overhaul of poverty formula
"U.S. plans new measure for poverty"
New York Times (03/02/2010) Sam Roberts
China: Chinese regulations aim to strengthen supervision of livestock feed
"Safety of food chain ensured at source"
China Daily (02/23/2010) Wang Yan and Shan Juan
European Union: Court says mandating minimum cigarette price warps competition
"EU court rules minimum price for cigarettes illegal"
Reuters (03/04/2009) John O'Donnell
"Bloodborne pathogen risk reduction activities in the body piercing and tattooing industry"
American Journal of Infection Control (03/2010) Everett J. Lehman and others
http://www.ajicjournal.org/article/S0196-6553(09)00832-3/fulltext (subscription required)
"Economic impacts of the Pueblo Smokefree Air Act"
American Journal of Preventive Medicine (03/2010) Walter F. Young and others
http://www.ajpm-online.net/article/S0749-3797(09)00807-1/fulltext (subscription required)
"Neighborhood, route, and school environments and children's active commuting"
American Journal of Preventive Medicine (03/2010) Jenna R. Panter and others
http://www.ajpm-online.net/article/S0749-3797(09)00848-4/fulltext (subscription required)
"Privacy versus public health: the impact of the current confidentiality rules"
American Journal of Public Health (03/2010) D. Wartenberg and W.D. Thompson
"Sexual offender laws and prevention of sexual violence or recidivism"
American Journal of Public Health (03/2010) K.K. Bonnar-Kidd
"Front-of-package food labels: public health or propaganda?"
JAMA (02/24/2010) Marion Nestle and David S. Ludwig
"Rare diseases and legislation in China"
The Lancet (02/27/2010) Jing-Bo Wang and others
http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(10)60240-1/fulltext (subscription required)
"Short-term effects of health-care coverage legislation --- Massachusetts, 2008"
MMWR (03/12/2010) L. Tinsley and others
"Can the states nullify health care reform?"
New England Journal of Medicine (03/11/2010) Tim Jost
California: Governor's line-item veto cutting funding for community health centers upheld
St. John's Well Child and Family Center, et al. v. Schwarzenegger
California Court of Appeal, First District, Division 2
Case No. A125750
Decided March 2, 2010
Opinion by Judge Kline
Maine: Construction of wind energy generation facility upheld over environmental concerns
Friends of Lincoln Lakes, et al. v. Board of Environmental Protection, et al.
Supreme Court of Maine
Docket No. BEP-09-467
Decided March 11, 2010
Opinion by Judge Alexander
Federal: Tort claims upheld in withholding of Group B Streptococcus test for pregnant inmate
Van Horn v. Hornbeak, et al.
U.S. District Court for the Eastern District of California
Case No. CV F 08-1622 LJO DLB
Decided February 18, 2010
Opinion by Judge O'Neill
https://ecf.caed.uscourts.gov/cgi-bin/login.pl (registration required)
Federal: Motion to dismiss case where coal-fired power plants violate Clean Air Act denied
U.S. v. Midwest Generation, LLC
U.S. District Court for the Northern District of Illinois, Eastern Division
Case No. 09-cv-5227
Decided March 9, 2010
Opinion by Judge Darrah
https://ecf.ilnd.uscourts.gov/cgi-bin/login.pl (registration required)
Federal: Product liability case on oral contraceptive dismissed without pharmacist duty to warn
In re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation
U.S. District Court for the Southern District of Illinois
Case Nos. 3:09-md-02100-DRH-PMF; MDL No. 2100; 3:09-cv-10217-DRH-PMF
Decided February 26, 2010
Opinion by Chief Judge Herndon
https://ecf.ilsd.uscourts.gov/cgi-bin/DktRpt.pl?42058 (registration required)
Federal: Motion to dismiss case questioning composition of lethal injection drugs denied
Ringo, et al. v. Lombardi
U.S. District Court for the Western District of Missouri, Central Division
Case No. 09-4095-CV-C-NKL
Entered March 2, 2010
Opinion by Judge Laughrey
Federal: City action against untaxed cigarette sales on Native American land upheld
City of New York v. Golden Feather Smoke Shop, Inc.
U.S. Court of Appeals for the Second Circuit
Case Nos. 09-3942-cv (L), 09-3997-cv (CON)
Decided March 4, 2010
Opinion by Circuit Judge Hall
Federal: Vaccine-related causation of autism scientifically unsupported and test case dismissed
Mead ex rel. Mead v. Secretary of Health and Human Services
U.S. Court of Federal Claims, Office of the Special Masters
Case No. 03-215V
Decided March 12, 2010
Opinion by Special Master Campbell-Smith
__________PHL NEWS QUOTATION OF THE MONTH___________
"Some of the clubs where smoking is going on tend to be very, very cool clubs, and a bunch of guys showing up in jackets tend to be very, very uncool."
-- Thomas Merrill, general counsel for the New York City Department of Health and Mental Hygiene on city efforts to shut nighclubs it says are promoting smoking.
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 email@example.com.
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; Rebecca Propst, J.D., Vinay Chopra, Writers. Special thanks to Tara Ramanathan, M.P.H., for her help on this issue.