July 2010 - CDC Public Health Law News
Thursday, July 15, 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
***CDC Public Health Law Program Update. Co-founder of the CDC Public Health Law Program, Richard A. Goodman, MD, JD, MPH, began clinical work in geriatrics at Emory University and the Atlanta VA Medical Center in mid-2009 with the goal of assisting CDC's efforts to address the public health challenges posed by the rapidly aging U.S. population. Rick simultaneously began working intensively with the Healthy Aging Program of CDC's National Center for Chronic Disease Prevention and Health Promotion, and more recently has transitioned to that program. Operating from that base, he began a special detail in April 2010 as Senior Medical Advisor in the Office of the Assistant Secretary for Health, U.S. Department of Health and Human Services, where he is assisting development of the agency's first strategic plan to address the needs of people who have multiple chronic health conditions. Rick is bringing his understanding of public health law to bear in his new setting and remains a close colleague of the Public Health Law Program staff. His e-mail address is unchanged at email@example.com.
*** H1N1 Policy Barriers. The Association of State and Territorial Health Officials (ASTHO) and the National Association of County and City Health Officers (NACCHO), funded by CDC's Office of Public Health Preparedness and Response (OPHPR), have completed assessments of the policy barriers, both legal and non-legal, encountered by state and local public health officials responding to pandemic influenza A (H1N1). The ASTHO report is available at http://www.astho.org/Programs/Infectious-Disease/H1N1/ and the NACCHO report is available at http://www.naccho.org/topics/H1N1/index.cfm.
*** Federal Menu Labeling. The U.S. Food and Drug Administration (FDA) is seeking public comment and information to help the agency implement a new federal law that requires the posting of calorie content and other nutrition information on menu items at certain chain restaurants and similar retail food operations and vending machines. The new law, Section 4205 of the Affordable Care Act signed into law March 23, 2010, sets uniform federal requirements for such labeling. Comments should be submitted to the FDA by September 7, 2010. For more information, please visit http://edocket.access.gpo.gov/2010/2010-16303.htm.
*** Dietary Sodium Reduction Funding Opportunity Announcement. CDC's National Center for Chronic Disease Prevention and Health Promotion has announced a funding opportunity to create healthier food environments to reduce sodium intake through public health application and implementation of population-based sodium reduction strategies related to policy, system, and environmental change. The announcement is entitled "Sodium Reduction in Communities" (CDC-RFA-DP10-1019); applications must be received by July 26, 2010. For more information, please visit http://www07.grants.gov/search/search.do;jsessionid=vjn1MqhHMXsCqhJ2yjJhHBpGCTgYDnVQ
***Smoking in Public Housing. Jonathan Winickoff, Mark Gottlieb, and Michelle Mello have published the article "Regulation of Smoking in Public Housing," in the June 17, 2010, issue of the New England Journal of Medicine. The article discusses the potential for the Department of Housing and Urban Development to use a new federal policy to ban smoking in apartments rented to low-income people. To read the article, please visit http://content.nejm.org/cgi/content/full/362/24/2319.
*** Public Health Law Research. Scott Burris and others have published an article defining public health law research, an evolving field aimed at studying the intended and unintended consequences of laws on public health as a way to support evidence-based policy making. "Making the Case for Laws that Improve Health: A Framework for Public Health Law Research" is published in the Milbank Quarterly. To read the article, please visit http://www.milbank.org/quarterly/8802featBurris.html.
***Health Department Accreditation. Gene Matthews and Edward Baker published an article regarding health department accreditation in the July/August issue of the Journal of Public Health Management & Practice. "Looking Back from the Future: Connecting Accreditation, Health Reform, and Political Opportunities" calls for establishing practical strategies to ensure that all local, tribal, and state public health agencies receive resources necessary to be fully accredited by 2020. To read the article, please visit http://journals.lww.com/jphmp/Citation/2010/07000/Looking_Back_From_the_Future
***Bio-Incident Pre-Planning and Response Workshop. The Southern Caucasus Workshop on Public Health, Security, and Law Enforcement Partnership in Bio-Incident Pre-Planning and Response and the associated Southern Caucasus BioShield 2010 Tabletop Exercise (TTX) were held in Tbilisi, Georgia, May 11-12, 2010. These events were a joint effort of the U.S. Department of Defense (DOD), Defense Threat Reduction Agency (DTRA); U.S. Department of Health and Human Services, Office of the Assistant Secretary for Preparedness and Response (HHS/ASPR); and Georgia's Ministry of Labour, Health and Social Affairs (MoLHSA), National Center for Disease Control and Public Health (NCDC). The report on the "Public Health, Security, and Law Enforcement Partnership in Bio-Incident Pre-Planning and Response" workshop and associated tabletop exercise Southern Caucasus BioShield 2010, is available for download at http://icd10.freevar.com/ncdc/BioShield_2010TTX.pdf.
1. Supreme Court rejects appeals of tobacco ruling
States and Localities
2. California: Hundreds of nurses have been punished by other states while maintaining California licenses
3. Missouri: Synthetic marijuana spurs state bans
4. New Mexico: High court eases DWI arrest rules for police
5. FDA is sued for failing to regulate bisphenol A
6. Federal tan tax burns some badly but keeps everybody in the dark
7. What big eyes you have, dear, but are those contacts risky?
8. European Union: EU votes on standard food labels
California McDonald's suit · Connecticut concussion law · Florida Chinese drywall verdict · Kansas e-cigarettes · New York employer HIV test · Midwife practice · Mental illness ruling · Ohio bicycle helmets · Pertussis vaccination · National Katrina trailers · Preparedness videogame · Lead testing · Towed trailer safety · Egypt tobacco tax · France psychological violence
Drug classification · Alcohol prohibition · Alcopops tax · Mine safety · Indoor air ordinances · Global tobacco control · Korea tobacco control · Botswana HIV · Health insurance reform · Calorie labeling · Obesity treatment laws · Health care worker vaccinations
Baseball helmet defective design · Popcorn injury · Opioid abuse · Vaccine injury
"Supreme Court rejects appeals of tobacco ruling"
New York Times (06/28/2010) Duff Wilson
The milestone racketeering verdict against cigarette companies will not be reviewed by the United States Supreme Court, according to a decision to deny a writ of certiorari which was issued without comment June 28, 2010.
The decision appealed by both sides of the suit, tobacco companies and the U.S. Department of Justice, was ordered in 2006 by United States District Court for the District of Columbia Judge Gladys Kessler. In appealing to the Supreme Court, the last option available for the case, tobacco companies sought to overturn a civil racketeering judgment on free speech grounds. Conversely, the federal government appealed to force tobacco companies to return up to $280 billion in profits from advertising campaigns which were judged to be untruthful about the health risks associated with smoking.
The decision comes as a relief to tobacco investors, according to Thilo Wrede, an industry analyst for Credit Suisse; "If the decision would have been the other way, you would have seen a headline saying a $280 billion case is open again."
Antismoking advocates' reactions to the denial are mixed, says Edward L. Sweda, a senior lawyer with the Tobacco Products Liability Project. "Obviously we're disappointed, because we would have liked to force the companies to disgorge their ill-gotten gains… but we're delighted with the upholding of the judge's basic finding that the major tobacco companies are in fact adjudicated racketeers. Now that is established historical fact."
While portions of Judge Kessler's 2006 ruling have been subsequently imposed through federal legislation, the case will now return to her court in order to discern remedies other than disgorgement, such as possible corrective advertising.
[Editor's Note: The appealed decision is United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006) and is available at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?1999cv2496-5732.]
"Hundreds of nurses have been punished by other states while maintaining California licenses"
Los Angeles Times (06/28/2010) Tracey Weber and Charles Ornstein
The California Board of Registered Nursing has recently discovered that some 3,500 of California's nurses have been punished for misconduct or had their licenses revoked by other states while maintaining spotless licenses within California. Up to 2,000 of these nurses will face discipline in California. The disciplinary actions represent a "very significant challenge," according to Paul Riches, a deputy director for the state Department of Consumer Affairs, as this number represents more nurses than have been sanctioned for the past four years combined.
Many of the other states' grievances with the nurses were for serious infractions including sexual abuse, rampant drug use, and neglect. One California nurse, Karen Vivian, says California should know about every case involving one of its nurses. Vivian, whose license was suspended by Nebraska in 2008 for medication errors, wants to know "Why don't they check the national data bank?"
In the past California has been lax in its board recertification and disciplinary history checks, but beginning in 2008, the state began requiring nurses up for license renewal to enumerate disciplinary actions from out of state.
According to the Board President, Ann Botnton, the board plans to pay the National Council of State Boards of Nursing to run checks of California nurses on a quarterly basis and is also working to reduce the time it takes to discipline errant caregivers after a complaint is made.
"Synthetic marijuana spurs state bans"
New York Times (07/10/2010) Malcolm Gay
Missouri Governor Jay Nixon signed a bill on Tuesday July 6, 2010, banning possession of synthetic marijuana. Missouri became the eighth state to ban the substance this year. Commonly known as K2, the substance is an herbal blend treated with synthetic cannabinoids which mimics the effects of tetrahydrocannabinol or THC, the active ingredient in marijuana.
Investigators at the American Association of Poison Control Centers report no one is sure what is in K2 incense, but the substance has been linked to 567 calls to the poison control centers and one reported a death. Users complain of elevated heart rates, paranoia, vomiting, and hallucinations as well as other symptoms not commonly associated with marijuana or a synthetic of the drug.
Thus far, domestic suppliers have evaded federal regulation by marketing the drug as incense which is not for human consumption. According to Federal Drug Enforcement Administration spokeswoman, Barbara Carreno, "everybody knows it's not incense. . . that's done with a wink and a nod."
K2 users remain undaunted by the negative effects of the drug, feeling that the promise of a clean drug test is more attractive than knowing the full list of ingredients. One vendor, Micah Riggs, reaffirms his intent to sell such synthetics saying, "Once it goes illegal, I already have something to replace it with."
While K2 is currently being regulated by the states, the Drug Enforcement Administration is completing its review of cannabinoids, and may place them under the Controlled Substances Act.
[Editor's Note: For more information on Missouri House Bill 1472, visit http://www.house.mo.gov/content.aspx?info=/bills101/bills/hb1472.htm. ]
"High court eases DWI arrest rules for police"
Santa Fe New Mexican (06/25/2010) Steve Terrell
The Supreme Court of New Mexico has ruled that police may make a driving while impaired (DWI) arrest if they have "probable cause" to believe someone was driving while intoxicated, an approach identical to that taken in arrests for felony.
New Mexico state law indicates DWI is a misdemeanor offense which, prior to this ruling, was not subject to arrest for "probable cause."
New Mexico Supreme Court Justice Patricio M. Serna wrote the opinion saying, "The crime of DWI as defined by our Legislature is not a 'minor crime' as contemplated by the misdemeanor arrest rule . . . given the time-sensitive nature of the evidence inherent in DWI investigations, the requirement that an officer observe the offense in order to make a warrantless arrest would seriously hinder such investigations and would make it very difficult for subsequent prosecutions."
The ruling marks the latest fight in an ongoing battle between the city of Santa Fe, New Mexico, and the defendant in the case, Marcos E. Martinez. Martinez was arrested for DWI in December 2007on probable cause suspicion of DWI. Martinez, who admittedly was driving drunk on the date of his arrest, was reported to authorities by another citizen. An officer, who only observed Martinez behaving drunkenly when he answered the door, subsequently entered Martinez's home and arrested him.
While Martinez plans to continue the battle in District Court, Rachel O' Connor, Governor Bill Richardson's DWI advisor, supports the ruling; "It will give law enforcement a little more room."
[Editor's Note: City of Santa Fe v. Martinez, No. 31,785, slip op. (N.M. S. Ct. June 24, 2010) is available at http://www.nmcompcomm.us/nmcases/nmsc/slips/SC31,785.pdf.]
"FDA is sued for failing to regulate bisphenol A"
San Francisco Chronicle (06/30/2010) Kelly Zito
The Natural Resources Defense Council (NRDC) filed a lawsuit in the U.S. Court of Appeals for the D.C. Circuit against the Food and Drug Administration (FDA). The suit, which was filed Tuesday, June 29, 2010, alleges that millions of Americans have been needlessly exposed to bisphenol A. The lawsuit stems from the FDA's failure to respond to the NRDC's petition to outlaw bisphenol A within 180 days of receiving the petitioner's request.
Bisphenol A is a substance found in many plastic and synthetic goods, including baby bottles and soda bottles. First developed as a synthetic form of estrogen, bisphenol A was later used in storage containers for food.
For decades the FDA maintained that bisphenol A was safe. Then, in January 2010, the agency issued an advisory stating that exposure was "of some concern" for infants and children and that it would further study bisphenol A over the next two years.
Sarah Janssen, senior scientist at the NRDC's Environment and Public Health Program, calls for action. "More research is always welcome and interesting, but at some point you have to say, 'We know enough,' and take action. We've reached that point."
The American Chemistry Council, the trade group representing makers of bisphenol A, said "the scientific process and the public interest are both best served by allowing the U.S. Food and Drug Administration to complete its ongoing review of the science surrounding the safety profile of bisphenol A."
With allegations that bisphenol A causes reproductive harms, cancer, neurological delays and other illnesses, many countries have already begun to phase out the substance.
[Editor's Note: The FDA's advisory is available at http://www.fda.gov/NewsEvents/PublicHealthFocus/ucm064437.htm.]
"Federal tan tax burns some badly but keeps everybody in the dark"
The Wall Street Journal (07/01/2010) Janet Adamy
A 10% federal tax will be applied to ultraviolet tanning services beginning July 1, 2010. The tax, instated to offset costs of the new Patient Protection and Affordable Care Act, leaves some tanning bed operators feeling uncertain.
In June the Internal Revenue Service (IRS) released regulations detailing implementation of the new tax. The tax only applies to ultraviolet tanning, not spray tans. The tax also does not apply to "qualified physical fitness facilities" that include tanning bed access as part of their membership fee. Qualified physical fitness facilities are essentially facilities whose primary business is fitness, as opposed to tanning or video rental.
In the case of tanning salon owners who may add fitness equipment in a bid to be covered by the exemption, the IRS has preempted their strategy: tanning facilities cannot be exempted "by allowing users access to exercise classes or pieces of exercise equipment."
The exemption may lure some tanning customers from tanning salons with the promise of no-tax tanning at health clubs. "You shouldn't be discouraging people from being healthier," said John Craig, Planet Fitness spokesman.
Some businesses offer tanning as a sideline to other services, such as video rental. According to Clint Herbst of Starstruck Video, the tax creates problems for his tanning/video promotions, "I don't want to muddy the water and bundle with tanning, because to have an audit would be a nightmare with all the receipts."
An IRS spokesperson said it isn't clear whether free tans will be taxed and advises business owners to "make the best determination they can based on their own facts and circumstances."
[Editor's Note: The IRS regulations are available at http://www.irs.gov/pub/newsroom/td_9486_indoor_tanning_services.pdf.]
"What big eyes you have, dear, but are those contacts risky?"
The New York Times (07/03/2010) Catherine Saint Louis
The sale of contact lenses without a prescription is illegal in the United States, but one trend uses the internet to subvert the law.
Just when consumers thought they had seen it all, the latest trends among teenagers and young women nationwide are literally eye-popping. Popular singer Lady Gaga highlighted the trend in her music video "Bad Romance" by sporting highly stylized digitally-enlarged eyes. Young women emulating the look wear special contact lenses, commonly called circle lenses, which cover both the iris and a portion of the whites of one's eyes, making the wearer's eyes appear larger.
Circle lenses, widely available online, usually cost between $20 and $30 per pair, and are available both in prescription strengths and purely decorative varieties from retailers who do not require prescription verification.
Both the United States Food and Drug Administration (FDA) and the American Optometric Association (AOA) are concerned about the health risks related to the lenses. Dr. S. Barry Eiden, chairman of the contact lenses and cornea section of the AOA, says circle lenses retailers are "encouraging the avoidance of professional care" and cautions that ill-fitting lenses could cause serious vision problems.
Karen Riley, a spokeswoman for the FDA, warns; "consumers risk a significant injuries –even blindness" by using contacts without a valid prescription or help from an eye professional.
In spite of these warnings, with a plethora of online suppliers, blogs and YouTube videos devoted to the style, the trend is spreading. One Vietnamese-American blogger, Michelle Phan, says "In Asia, it's all about the eyes in makeup . . . They like the whole innocent doll-like look, almost like anime."
While the FDA remains leery, the trend may be blinking out, according to one 16-year-old from North Carolina, "it kind of makes me not want to wear them anymore, because everyone is wearing them."
"EU votes on standard food labels"
BBC News (06/16/2010)
Members of the European Parliament voted in favor of more uniform food packaging labels within the European Union, which could be seen on shelves in as little as five years.
Major changes will include key nutritional information such as sodium, fat and sugar contents being enumerated on the front of the package, as well as very specific country-of-origin labeling becoming mandatory for meat, poultry, fish, dairy products, fruit, and vegetables.
Glenis Willmott, the leader of the United Kingdom Labour group in the European Parliament, says the new rules "make it clear that we won't stand for people being misled by food packaging."
Food industry lobbyists argue that such changes represent an unwarranted administrative burden.
The new legislation also includes a minimum font size to ensure legibility, clearly defined portions, and mandatory allergen labeling to be extended to food that is not pre-packaged.
Once the legislation is complete, food producers will have three years to comply, with additional time given to small firms.
California: Threatened suit alleges McDonald's toys contribute to childhood obesity
"McDonald's faces happy meals' lawsuit"
Los Angeles Times (06/23/2010) Sharon Bernstein
Connecticut: New state laws keep concussions out of high school games
"New state laws now in effect"
Connecticut Post (07/01/2010) Associated Press
Florida: Jury rules against company for foul-smelling, ruinous Chinese drywall
"Jury gives $2.4 million in drywall case"
MSNBC (06/18/2010) Curt Anderson
Kansas: Electronic cigarettes become more popular as tobacco is taxed
"Smoking ban brings out 'electronic cigarettes'"
Wichita Eagle (07/07/2010) Dion Lefler
New York: Potential employer's mandatory HIV testing violates human rights law
"HIV test required of worker, suit says"
New York Times (06/15/2010) Russ Buettner
New York: New legislation means midwives may practice independent of physician
"Midwives a step closer to independence"
Times Union (07/02/2010) Cathleen F. Crowley
New York: U.S. Court of Appeals rules New York's mentally ill to live in own homes
"U.S. Appeals Court lifts stay on relocating mentally ill"
New York Times (06/24/2010) A. G. Sulzberger
Ohio: Bicycle helmet law unenforced, not a priority a year after implementation
"Helmet law yields no citations 1 year later"
Columbus Dispatch (06/28/2010) Ben Wolford
Ohio: Mandatory pertussis vaccination for Ohio's seventh-graders
"Seventh-graders now required to get whooping cough vaccination"
Newark Advocate (01/06/2010) Seth Roy
National: Trailers previously banned for formaldehyde contamination in use
"Banned trailers return for latest gulf disaster"
New York Times (06/30/2010) Ian Urbina
National: FEMA to launch disaster preparedness videogame to educate children
"Get prepared for FEMA-funded disaster hero game"
CNN (06/27/2010) Andrew Webster
National: Consumer Product Safety Act of 2008 creates significant lead-testing burden
"Lead testing can be costly for mom and pop toy shops"
USA Today (06/17/2010) Jayne O'Donnell
National: States' laws address deaths from trailers towed by passenger vehicles
"State laws target safety of towed trailers"
USA Today (07/06/2010) Larry Copeland
Egypt: Taxes on cigarettes discourage smoking and raise money for public health
"Egypt fights smoking with new tobacco tax"
Atlanta Journal Constitution (07/01/2010) Sarah Raslan
France: New law helps victims of abuse by making 'psychological violence' a crime
"France makes 'psychological violence' a crime"
New York Times (06/29/2010) Steven Erlanger
"Drug classification: science, politics, both or neither?"
Addiction (07/2010) Harold Kalant
"What are the policy lessons of National Alcohol Prohibition in the United States, 1920–1933?" Addiction (07/2010) Wayne Hall
"Changes in alcohol consumption and beverage preference among adolescents after the introduction of the alcopops tax in Germany"
Addiction (07/2010) Stefanie Müller and others
"An impact evaluation of a Federal Mine Safety training regulation on injury rates among US stone, sand, and gravel mine workers"
American Journal of Public Health (07/2010) Celeste Monforton and Richard Windsor
"Clean indoor air ordinance coverage in the Appalachian Region of the United States"
American Journal of Public Health (07/2010) Amy K. Ferketich and others
"Global tobacco control diffusion: the case of the Framework Convention on Tobacco Control"
American Journal of Public Health (07/2010) Heather L. Wipfli, Kayo Fujimoto, and Thomas W. Valente
"SimSmoke Model Evaluation of the effect of tobacco control policies in Korea"
American Journal of Public Health (07/2010) David T. Levy and others
"Examination of trends and evidence-based elements in state physical education legislation"
Journal of School Health (07/2010) Amy A. Eyler and others
"HIV/AIDS: a judge and a doctor write prescriptions for Botswana"
The Lancet (07/03/2010) Helen Epstein
"Health insurance reform and the tensions of federalism"
New England Journal of Medicine (06/17/2010) C. C. Jennings and K. J. Hayes
"Health care reform in action — calorie labeling goes national"
New England Journal of Medicine (06/24/2010) M. Nestle
"Coverage of obesity treatment: a state-by-state analysis of Medicaid and state insurance laws" Public Health Reports (07/2010) Jennifer S. Lee and others
"Vaccinating the health-care workforce: state law vs. institutional requirements"
Public Health Reports (07/2010) Alexandra Stewart and Sara Rosenbaum
California: Baseball helmet defective design suit unsuccessful
Fuss-McCullough v. Nike, Inc.
California Court of Appeal, Second District, Division Three
Case No. B210930
Filed June 28, 2010
Opinion by Judge Kitching
Federal: Man's suit for popcorn consumption ruled moot
Newkirk v. Conagra Foods, Inc.
U.S. District Court for the Eastern District of Washington
Case No. CV-08-273-RMP
Decided July 2, 2010
Opinion by Judge Rosanna Malouf Peterson
Federal: Claims construed in patent to combat opioid abuse
King Pharmaceuticals, Inc. v. Purdue Pharma L.P.
United States District Court for the Western District of Virginia, Abingdon Division
Case No. 1:08CV00050
Filed June 22, 2010
Opinion by Chief Judge James P. Jones
Federal: Coalition for Mercury-Free Drugs suit lacked standing
The Coalition for Mercury-Free Drugs, et al., v. Secretary of Health and Human Services, et al.
U.S. District Court for the District of Columbia
Civil Action No. 09-0015 (RBW)
Decided July 1, 2010
Opinion by Judge Reggie B. Walton
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