June 2010 - CDC Public Health Law News
Thursday, June 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,
*** Evidence-Based Public Health Law. A recent paper in Evaluation Review (34:3, June 2010) provides researchers and practitioners with a practical, how-to guide for applying the scientific method to measure the law for quantitative research. The paper, "Measuring Law for Evaluation Research," commissioned by the Public Health Law Research Program of the Robert Wood Johnson Foundation and written by Charles Tremper, Sue Thomas and Alexander C. Wagenaar, provides detailed guidance for conducting multidisciplinary evaluations that use legal data. To read the paper, please visit http://erx.sagepub.com/cgi/content/abstract/34/3/242.
*** Local Public Health Ordinance and Regulation Resources. Kristine Gebbie (Hunter College-CUNY), James G. Hodge, Jr. (Arizona State University), and The Robert Wood Johnson Foundation, have produced three resources that may be helpful in developing new local public health laws, crafting a new research agenda for the role of local laws in protecting the public's health, and sharing perspectives on innovations in local public health law practice. Specific reports include: "Major Components and Themes of Local Public Health Laws in Select U.S. Jurisdictions," Public Health Reports 2009 (available at http://www.law.asu.edu/LinkClick.aspx?fileticket=50NsRdiD0fw%3d&tabid=908), "Complete Guide for Local Public Health Ordinances" (available at http://www.law.asu.edu/LinkClick.aspx?fileticket=a8Ef3sn7MJE%3d&tabid=908), and"Advancing Public Health Practice and Policy Solutions: Building the Base for a Research Agenda on Local Public Health Legal Authority" (available at http://www.law.asu.edu/LinkClick.aspx?fileticket=V_MI3xtQ72E%3d&tabid=908).
*** Preemption Factsheets. The National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN) has produced a set of factsheets to help advocates better understand preemption and how to handle it. These tools outline the different types of preemption and the potential consequences, showing advocates how to spot and negotiate preemption when it appears in a proposed law. For more information, visit http://www.nplanonline.org/childhood-obesity/products/preemption_fact_sheets.
*** ***Job Opening: Lead Staff Attorney, Public Health Law Center. The Public Health Law Center, a nonprofit legal center at William Mitchell College of Law in St. Paul, Minnesota, is hiring an experienced, high-level public health attorney. The attorney will work with the new Public Health Law Network, providing vital legal support to the nation's public health agencies and will provide leadership, coordination, communications, and outreach on behalf of the regional centers and Public Health Law Network partners. For more information, please visit http://www.wmitchell.edu/services/hr/employment-jobs.asp?articleId=12256.
*** Food Labeling Workshop. The Food and Drug Administration (FDA), Office of Regulatory Affairs, Southwest Regional Small Business Representative Program, and the University of Arkansas is presenting a public workshop entitled "Food Labeling Workshop" on August 4 and 5 in Fayetteville, Arkansas. The workshop is intended to provide information about FDA food labeling regulations and other related subjects to the regulated industry, particularly small businesses and startups. For more information, please visit http://www.uark.edu/ua/foodpro/workshops/food_labeling_workshop.html.
1. BP's plan to protect spill workers inadequate, experts say
States and Localities
2. California: Supes back posting of cell phone emission levels
3. New York: Cigarette makers and retailers sue to block rule requiring antismoking posters
4. Court tosses global warming ruling after late recusal
5. Judge approves $110 million settlement in baby death class action
6. India: India steadily increases its lead in road fatalities
California sports drink ban • Ecstasy deaths • Michigan food deserts • Missouri expedited partner therapy • Ohio childhood obesity • National tobacco arbitration • Teen driving •
Genetic tests • Drug manufacturers • Cereal claims • Glass recall • Mental retardation • Airline peanuts • Dating violence • Supplement claims • Great Britain autism doctor ban • Namibia HIV sterilization
Drinking age • Quarantine compliance • Salt regulation • Pakistan women's health
School insulin injections • Pesticide risk assessment • Drugstore tobacco sales • Prison tuberculosis care • Sexual education language • Ban on cosmetic medicine • Dietary supplement claims
"BP's plan to protect spill workers inadequate, experts say"
Miami Herald (06/09/2010) Marisa Taylor
Occupational health and safety experts have questioned the Offshore Air Monitoring Plan for Source Control, BP's plan to protect the health of the more than 24,400 workers cleaning up the oil spill in the Gulf of Mexico, because they say it exposes workers to higher levels of toxic chemicals than is generally acceptable. The clean-up effort exposes workers to volatile organic compounds (VOCs), which are subject to federal regulations that do not specify safety thresholds. Because of this, BP is not currently required to supply respirators, evacuate workers, or take other precautions. Critics say the plan allows workers to remain in an area where vapors are four times higher than accepted practice. "This protocol seems to be written in a way that allows them to continue to work when conditions are such that, in any other setting, you'd pull your workers or you'd put them in better protection," said Mark Catlin, a worker safety advocate and expert who worked on the 1989 Exxon Valdez tanker spill. BP spokesman Ray Viator, however, said that the plan is aggressively monitoring toxins and protecting workers. "It's being managed by professionals who have reviewed the plan and who are making sure it's been implemented correctly. It involves graduated responses and we're prepared to accelerate it if the situation arises," he said. The Coast Guard approved the plan on May 25, and although the Occupational Safety and Health Administration (OSHA) reviewed the plan, the agency's jurisdiction only extends three miles off-shore.
[Editor's note: For information on CDC's response to the Gulf Oil Spill, visit http://emergency.cdc.gov/gulfoilspill2010/.]
"Supes back posting of cell phone emission levels"
San Francisco Chronicle (06/16/2010) Rachel Gordon
On June 15, the San Francisco Board of Supervisors approved a first-in-the-nation proposal that will require cell phone retailers to provide the level of radiation emitted by the phones they sell. If the ordinance is signed by Mayor Gavin Newsom, it will force stores to post the "specific absorption rate" next to each phone. The rate is a measurement of radio frequency energy a person absorbs into his body while using a cell phone, and is registered with the Federal Communications Commission (FCC), which has established safety standards for radio frequency emissions. The ordinance would go into effect in February and violators would face fines of up to $300. Despite broad support from the Board of Supervisors, the long-term health effects of radiation exposure from cell phone use are not clear, and members of the cell phone industry believe the ordinance could confuse consumers. "Rather than inform, the ordinance will potentially mislead consumers with point-of-sale requirements suggesting that some phones are 'safer' than others," said John Walls, vice president of public affairs for the Cellular Telecommunications and Internet Association. The chief sponsor of the legislation, Supervisor Sophie Maxwell, disagreed. "This is about helping people make informed choices," she said.
[Editor's note: To read the ordinance, visit http://www.sfbos.org/ftp/uploadedfiles/
"Cigarette makers and retailers sue to block rule requiring antismoking posters"
New York Times (06/04/2010) Anemona Hartocollis
Philip Morris, Lorillard, and R.J. Reynolds, the biggest U.S. tobacco companies, joined retailers and trade associations to file a federal law suit challenging a New York City Board of Health resolution requiring tobacco warnings signs to be posted where tobacco products are sold face-to-face to customers. The resolution, which was adopted in September 2009, requires signs with photographs of diseased brains, lungs, and teeth to be posted within three inches of cash registers; violators may be fined up to $2,000. The plaintiffs allege the resolution is in conflict with the federal government's authority to regulate cigarette advertising, and violates the First Amendment rights of store owners who disagree with the signs. "This is not the city taking out a billboard . . . what it doesn't have the right to do is to force other people to adopt its expression," said Floyd Abrams, a lawyer representing the convenience stores. The suit also alleges that by requiring posters near the cash registers, the city prevents tobacco companies from advertising in one of the last places available to them, and restricts tobacco-related speech "past the constitutional tipping point." The city health department, however, said research shows that images are more effective than text in articulating the risks of tobacco products, and warnings at point-of-purchase are one of the most effective ways to deter smoking. The suit was filed in the United States District Court for the Southern District of New York on June 3, 2010.
[Editor's note: To read the resolution, please visit http://www.nyc.gov/html/doh/downloads/pdf/notice/Article-181-amend.pdf.]
"Court tosses global warming ruling after late recusal"
New York Times (06/01/2010) Gabriel Nelson
On May 28, the U.S. Court of Appeals for the Fifth Circuit reversed a ruling that one of the nation's largest producers of greenhouse gases could be sued for damage caused by the effects of global warming. The case, Comer v. Murphy, began as a lawsuit by Gulf Coast residents adversely affected by Hurricane Katrina. The residents claimed that the nation's largest polluters contributed to the severity of the storm and named them as defendants. The Comer case is one of several climate change cases based on claims of public nuisance, a "centuries-old mainstay of common law that allows people to sue their neighbors for nuisances such as foul smells, loud noises or overgrown trees." A three judge panel from the Fifth Circuit Court of Appeals ruled last year that the plaintiffs could proceed with their lawsuit, however, because out of the 16 active judges on the court, eight have recused themselves - with the eighth recusal occurring in April-the judges no longer have a quorum and ruled that they could not review or reinstate the panel's decision. Instead, they supported the district court's position that the plaintiffs lacked standing because the ties between emissions, global warming and the severity of Hurricane Katrina were too tenuous. The plaintiffs in Comer now have 90 days to file a petition for Supreme Court review, usually granted in less than 1 percent of cases. Judge James Dennis argued in his dissent against the decision to keep the keep the district court's ruling. He described the court's actions as "shockingly unwarranted" and said that the majority's decision "effectively robbed the plaintiffs of their right to appeal in federal court." Environmentalists hope that one of the nuisance cases (another similar case, Connecticut v.AEP, is in the Second Circuit) could boost U.S. action on climate change, adding to the Supreme Court's 2007 ruling in Massachussets v. EPA that the agency is required to regulate greenhouse gases as pollutants.
[Editor's note: To read the order, please visit http://www.ca5.uscourts.gov/opinions/pub/07/07-60756-CV2.wpd.pdf.]
"Judge approves $110 million settlement in baby death class action"
National Law Journal (06/14/2010) Leigh Jones
On June 14, Chief Judge Sidney Fitzwater of the U.S. District Court for the Northern District of Texas gave final approval to a $110 million settlement against a drug manufacturer in a class action involving the death of premature babies during the 1980s. The suit, filed in 2003, alleged that more than 40 babies died after receiving E-Ferol, a vitamin E supplement that was supposed to prevent blindness and visual impairments, but instead caused liver failure, kidney failure, and brain hemorrhage. The U.S. Food and Drug Administration (FDA) had not approved E-Ferol, but the plaintiffs claim that manufacturer Carter-Glogau Laboratories, Inc., and distributor O'Neal, Jones & Feldman, Inc., led hospitals to believe that it had received approval. More than 90 hospitals administered the drug intravenously to premature infants. A Centers for Disease Control and Prevention (CDC) investigation in the early 1980s triggered the recall of E-Ferrol.
[Editor's note: To read the opinion and order, please visit https://ecf.txnd.uscourts.gov/cgi-bin/show_public_doc?2003cv0102-448 and https://ecf.txnd.uscourts.gov/cgi-bin/show_public_doc?2003cv0102-426.]
"India steadily increases its lead in road fatalities"
New York Times (06/08/2010) Heather Timmons and Hari Kumar
A New York Times report shows that in 2006 India overtook China to top the world in road fatalities. The latest figure available shows that 118,000 people died in 2008 from road deaths-up 40 percent from five years earlier. Experts say that there are many causes for the increased prevalence of road fatalities in India: "Often, the police are too stretched to enforce existing traffic laws or take bribes to ignore them; heavy vehicles, pedestrians, bullock carts and bicycles share roadways; punishment for violators is lenient, delayed, or nonexistent; and driver's licenses are easy to get with a bribe." India's minister of road transport and highways, Kamal Nath, says that "[r]oad safety is one of the major issues" and a "priority" for the national government. He added that the ministry is reviewing the Motor Vehicles Act and, three years after a government-backed committee recommended that a national road safety board be established, it introduced legislation to create one. However, government planners warn that because more highways are being built, fatalities are unlikely to decline. Private companies building and running new highways in India likewise say that their "hands are sometimes tied." Manoj Aggarwal, chief executive of the road-building company Delhi-Gurgaon Super Connectivity, says during an interview with the Times: "Look at this man in the middle of the road. I can't fine him. I can't punish him." Mr. Aggarwal continues to explain that only the police can ticket or fine speeders and people who are on the road who should not be. However, over-burdened and understaffed, the police are rarely available.
California: Sports drinks join soft drinks in ban aimed at preventing childhood obesity "California Senate bans sports drinks during school hours"
Sacramento Bee (05/27/2010) Susan Ferris
California: Raves at state-owned venues end in two deaths from ecstasy overdoses
"Report details ecstasy overdoses at L.A. New Year's Eve rave that left one dead, 18 hospitalized"
Los Angeles Times (06/10/10) Rong-Gong Lin II
Michigan: Detroit officials and Congress develop plans to attract grocers to food deserts
"Filling the fresh food void"
Detroit News (05/17/10) Nathan Hurst
Missouri: Legislature passes bill legalizing expedited partner therapy
"Bill includes partners in STD care"
St. Louis Post-Dispatch (05/26/2010) Blythe Bernhard
Ohio: Senate approves bill requiring schools to offer healthy food, track students' weight
"Bill requires schools to fight obesity"
Cincinnati Enquirer (05/18/2010) Cliff Peale
National: States and tobacco firms arbitrate dispute over tobacco settlement payments
"Arbitration to begin in tobacco-agreement dispute"
Richmond Times-Dispatch (06/13/2010) David Ress
National: Congress considers Safe Teen and Novice Driver Uniform Protection Act
"Congress targets teen driving, mulls federal driver's license standards"
ABC News (06/02/2010) Huma Khan
National: FDA requires home genetic test kit makers to receive federal approval
"FDA takes issue with genetic tests from 5 firms"
Associated Press (06/11/2010) Matthew Perrone
National: FDA warns drug manufacturers about shoddy manufacturing practices
"FDA warns 43 drug manufacturers"
USA Today (05/27/2010) Alison Young
National: Federal Trade Commission acts against Kellogg over nutrition claims
"Kellogg to restrict ads to settle U.S. inquiry into health claims for cereal"
New York Times (06/03/2010) Sewell Chan
National: McDonald's recalls beverage glasses that contain cadmium
"McDonald's recall clouded by lack of standards"
Chicago Tribune (06/04/2010) Wailin Wong and Ellen Gabler
National: Measure to remove "mentally retarded" from labor, health, and education laws
"Panel approves removing 'retardation' from laws"
Associated Press (05/26/2010) Brian Witte
National: U.S. DOT proposes ban on peanuts on airlines to accommodate allergies
"Peanut industry fights to stay on airline flights"
Atlanta Journal-Constitution (06/11/2010) Kelly Yamanouchi and Bob Keefe
National: Colleges see rise in dating violence, state protection laws vary
"Schools trying to prevent and respond to sexual violence"
Washington Post (05/24/2010) Susan Kinzie
National: Congressional investigation finds some supplement sellers made illegal claims
"Study finds supplements contain contaminants"
New York Times (05/25/2010) Gardiner Harris
Great Britain: Andrew Wakefield banned from practicing medicine in Britain
"British Medical Council bars doctor who linked vaccine with autism"
New York Times (05/24/2010) John F. Burns
Namibia: HIV positive women allege forced sterilization by the state
"Namibia HIV women sue over forced sterilization"
"Will increasing alcohol availability by lowering the minimum legal drinking age decrease drinking and related consequences among youths?"
American Journal of Public Health (06/2010) Henry Wechsler and Toben F. Nelson
"If you ask them, will they come? Predictors of quarantine compliance during a hypothetical avian influenza pandemic: results from a statewide survey"
Disaster Medicine & Public Health Preparedness (06/2010) Bauerle Bass and others
http://www.dmphp.org/cgi/content/full/4/2/135 (subscription required)
"IOM recommends federal regulation over the salt content of certain foods"
JAMA (06/09/2010) Mike Mitka
"New laws could improve women's health in Pakistan"
The Lancet (06/05/2010) Kristin Elisabeth Solberg
California: Authorization of non-nurse school employees to administer insulin struck down
American Nurses Association v. O'Connell
Court of Appeal, Third District, California
Filed June 8, 2010
Opinion by Judge Cantil-Sakauye
California: Policy of prioritizing pesticides for risk assessment deemed regulation
Californians for Pesticide Reform v. California Department of Pesticide Regulation
Court of Appeal, Third District, California
Filed May 17, 2010
Opinion by Judge Raye
California: Drugstore owner's equal protection challenge to tobacco sale ban upheld
Walgreen Co. v. City and County of San Francisco
Court of Appeal, First District, Division 3, California
Filed June 8, 2010
Opinion by Judge McGuiness
Federal: Prisoner cannot satisfy 8th Amendment claims against tuberculosis tests and treatment
Crymes v. New Jersey State Department of Corrections
U.S. District Court, District of New Jersey
Civil No. 09-3277 (NLH)
Filed June 7, 2010
Opinion by Judge Hillman
Federal: Sanction of teacher for colloquial language during sexual education unconstitutional
Kramer v. New York City Board of Education
U.S. District Court, Eastern District of New York
Filed May 20, 2010
Opinion by Senior Judge Weinstein
Federal: Challenge to limits on practice of cosmetic medicine remanded
González-Droz v. González-Colón
U.S. District Court, District of Puerto Rico
Civil No. 06-2263 (SEC)
Filed June 15, 2010
Opinion by Senior Judge Casellas
Federal: Denial of authorization of health claims for supplements with selenium remanded
Alliance for Natural Health US v. Sebelius
U.S. District Court, District of Columbia
Civil Action No. 09-01470 (ESH)
Filed May 27, 2010
Opinion by Judge Huvelle
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 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. Special thanks to Tara Ramanathan, JD, M.P.H., and Vinay Chopra for their help on this issue.