August 2010 - CDC Public Health Law News
Thursday, August 19, 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
*** Tobacco Control Legal Update. The latest issue of the Legal Update released by the Tobacco Control Legal Consortium features nine new resources, including a publication on secondhand smoke and multi-unit affordable housing, and a publication on tobacco retailer licensing as an effective enforcement tool. The newsletter also includes legal and policy tools that explain state and local options for regulating tobacco marketing in light of new federal tobacco regulations, fact sheets on the fundamentals of preemption, and an article on CDC's Communities Putting Prevention to Work Program. To read the newsletter, please visit http://publichealthlawcenter.org/sites/default/files/resources/tclc-news-07-10.pdf.
*** Federal Menu Labeling Requirements. The U.S. Food and Drug Administration (FDA) issued a Federal Register notice on July 21, 2010, that explains how restaurants not covered by the new federal menu labeling requirements in Section 4205 of the Patient Protection and Affordable Care Act may voluntarily register to become subject to the new requirements. In general, the law covers restaurants and similar retail food establishments with 20 or more locations doing business under the same name and offering substantially the same menu items, and vending machine operators with 20 or more machines. To view the registration notice, please visit http://www.fda.gov/menulabeling.
*** Public Health Law Conference (9/13-9/15). The American Society of Law, Medicine, and Ethics (ASLME) will sponsor "Using Law, Policy, and Research to Improve the Public's Health: A National Conference," September 13-15, 2010, in Atlanta. The sessions are designed to address the major themes in communicable and chronic disease prevention and control; global, national, tribal, state, and local health law and policy; research in public health law and policy; and critical, emerging issues in public health law, policy, and ethics. For more information and to register for the conference, visit http://www.aslme.org/Calendar.
1. Move to restrict painkillers puts onus on doctors
States and Localities
2. New York: Restaurants grading begins in New York
3. Washington: State takes new look at how much fish is safe to eat
4. Fertility's new legal front
5. How rights of disabled have changed in 20 years
6. Law snuffs out mailing smokes to deployed troops
7. British girls undergo horror of genital mutilation despite tough laws
California bounce house suit · Indiana abandoned medical records · Maryland Legionnaire's suit · Massachusetts new school nutrition · Michigan "complete streets" legislation · Minnesota E. coli dairy suit · Nevada hospital infection reporting · New York sex offender suit · Ohio NFL staph suit · National children's food ads · FDA medical devices · EPA pesticide suit · Formaldehyde trailer ruling · New infection reporting law · Cruise ship safety bill · Child nutrition act · Germany singer's HIV suit · Uganda baby formula
Alcohol interlocks · Afterschool physical activity · BRCA patent · Norway electronic records · Genetic test regulations · Workers' compensation · Health care reform · Electronic health record regulation · HPV vaccine mandates
California lead paint · Florida emergency suspension order · New York cigarette license · Texas dog bite
Quotation of the Month
Sarvjit Singh, New York restaurant owner
"Move to restrict painkillers puts onus on doctors"
New York Times (07/28/2010) Barry Meier
In a recent attempt to curb prescription narcotic abuse and related injury, the Washington State Legislature has assembled a panel of healthcare providers and regulators to compile a list of medical practices which prescribers would be legally obligated to follow when treating patients for long-term pain.
In the past decade the number of patients taking long-acting painkillers on an annual basis, such as long term users of OxyContin, fentanyl and methadone, has increased by about 30 percent. According to the Centers for Disease Control and Prevention, prescription drug overdose is the second-leading cause of accidental death nationally, and, in some states, is the leading cause.
Dr. Alex Cahana, a pain specialist and member of the Washington legislature's panel, says, "This is not just about addicts but little old ladies with arthritis starting to die because of this kind of medical practice."
While the Food and Drug Administration rejected a proposal to require doctors prescribing painkillers to have special training, there is a growing concern that current practices are confounding the problem; many healthcare providers and lawmakers are calling for stricter regulations, but patient advocacy groups and drug makers argue that more stringent restrictions would unfairly deprive patients who are suffering and rely on the drugs.
The regulations proposed in Washington, however, would not affect treatment of cancer or end-of-life patients as experts agree that such patients should receive whatever doses are necessary to manage pain. The panel may require pain specialist referral reviews when a patient's daily medication increases, without improvement, to specified levels. The panel may also require alternative treatments for pain, such as physical therapy.
"Restaurants grading begins in New York"
New York Times (07/27/2010) Glenn Collins
In July, New York City's Department of Health and Mental Hygiene implemented a new system for rating restaurants' cleanliness. The new system, affecting more than 24,000 restaurants, requires restaurants to display letter-grade health rating placards where they can be easily seen by passersby.
The program, budgeted at $3.2 million, includes a new Web site, which offers up-to-date information, heath inspection scores, maps, and street views of the locations. The plan has also increased the number of health inspectors from 157 to 180 and has improved the inspectors' wireless hand-held computers, which are used to calculate scores. The increase in inspectors is expected to increase annual inspections by more than one-third.
According to the health department commissioner, Dr. Thomas Farley, "this is the biggest change we've implemented in years."
Responses within the restaurant community are varied; Robert Bookman, legislative counsel for the New York State Restaurant Association's New York City Chapter, says "We don't know that the government can compel you to post a sign that expresses an opinion about your business that you do not share."
Sarvjit Singh, owner of Bellerose's Sohna Punjab restaurant, isn't bothered by the new changes; "I tell my chef he should be cooking as if he were eating that food."
Many of the dissenters' worries may be unfounded as, according to Nicholas J. Monello, director of placard printing operations, 9,375 A's have been printed, more than the combined totals of B's and C's.
[Editor's Note: The program website is available at www.nyc.gov/health/restaurants. To read the regulations, please visit www.nyc.gov/html/doh/
"State takes new look at how much fish is safe to eat"
Seattle Times (07/29/2010) Cassandra Brooks
Washington state law mandates streams, estuaries, lakes, and nearshore costal waters must be clean enough for residents to safely eat one serving of fish per month. Many Washington residents, however, consume much more, considering fish consumption to be a core part of their culture. Addressing this discrepancy, the Department of Ecology is beginning to re-evaluate Washington's water-quality standards, using neighboring Oregon as an example.
For many tribes in Washington, such as the Swinomish of La Conner, the indigenous seafood and game are an integral part of tribal life. In 2002 the Swinomish received a grant from the Environmental Protection Agency to test local shellfish and found hazardous levels of suspected carcinogens, including dioxins and PCB's, results similar to tests conducted by other tribes.
The federal Clean Water Act requires state waters to be clean enough for safe consumption of certain amounts of fish. Because toxic contaminants amass in fish tissue, the more fish consumed, the higher the standard for water purity.
In Oregon, the Department of Water Quality is working towards a standard which would allow residents to safely consume one serving of fish per day, a standard that may be more reflective of what many tribes are already consuming. "Even if the fish is poisonous to our bodies, we're still going to eat it," says Larry Campbell, a Swinomish tribal historian. "Our spirit demands it."
The new policies may affect the possible chemicals used and runoff standards for paper mills, oil refineries, farmlands, and municipalities.
Policy manager for Washington's Ecology Department, Melissa Gildersleeve, says, "We've wanted to change the standard for some time . . . it's a huge and costly project that may take a decade, but even so, it's the right thing to do."
[Editor's Note: For information on CDC's work in food safety, visit http://www.cdc.gov/foodsafety/.]
"Fertility's New Legal Front"
The Wall Street Journal (08/03/2010) Ashby Jones
Discrepancies between states' posthumous birth laws create mayhem within the Social Security system's survivor benefits. Each year more and more babies are born from embryos or sperm which have been stored for years or months; some of these children are the biological progeny of a deceased parent.
While the federal government usually must pay monthly Social Security benefits to minor children when a parent dies, the law is struggling to keep up with science, which now makes it possible for a child to be born years after the parent's death.
While many states define the parent-child relationship traditionally, requiring the parent to be alive at the time of conception for a relationship to exist, 11 states clearly recognize relationships involving posthumous conception.
Federal law indicates that the Social Security Administration is to follow state law in determining whether a parent-child relationship exists. Sonny Miller, a lawyer in Minnesota and member of the legislative committee of the Minnesota bar association's probate and trust law section says the benefits are typically intended to assist families in instances of unexpected loss. "It's not meant as something you expect to get when you make the decision to have a child."
When a state's legal definition of the parental relationship changes, survivor benefits may be discontinued and, in some cases, the surviving parent may be obligated to repay money received. Many parents are devastated by repayment demands. One Utah mother, Gayle Burns, whose son was born two years after her husband's death, filed personal bankruptcy after the agency demanded she repay almost $35,000 in survivor benefits.
"These are sensitive issues, complicated issues, dealing with the start of life and end of life, and legislatures are too often all too happy to stay away from them completely," says Steven Snyder, chairman of an American Bar Association committee on reproductive technology.
"How rights of disabled have changed in 20 years"
San Francisco Chronicle (07/28/2010) Erin Allday
This year is the 20th anniversary of the Americans with Disabilities Act, which was enacted to provide persons with disabilities with access to employment, housing, and education. Throughout the past two decades the Act has required numerous changes in public settings, including public wheelchair access, reserved wheelchair seating at events, easier access to special education, and employment related support for blind and deaf employees.
For many Americans with disabilities, however, progress has stalled as the law struggles to keep up with technology. For example, Jesse Leaman, who is paralyzed from the shoulders down, has been struggling to obtain an apartment with a shower stall that will accommodate his motorized wheelchair, a type of technology that wasn't available when the Act was written.
After being forced to shower in the complex's pool locker-room, Leaman says "a place like this, being allowed to advertise themselves as wheelchair accessible, that's not right."
Holding a doctorate degree from the University of California Berkeley in astrophysics and having done his postdoctoral work with NASA, in many ways Leaman is an example of just how far rights for persons with disabilities have come. "I don't know what would have happened to me if the laws weren't in place… maybe I'd be at one of those convalescent homes."
[Editor's Note: To read the ADA visit http://www.ada.gov/pubs/ada.htm.]
"Law snuffs out mailing smokes to deployed troops"
Atlanta Journal Constitution (08/10/2010) Kristin M. Hall
Due to the Prevent All Cigarette Trafficking Act of 2009 (PACT Act), effective June 29, 2010, families and friends are now precluded from sending tobacco products to American troops overseas.
The law, which attempts to reduce the smuggling of tobacco products as well as the number of minors receiving mail-ordered tobacco products, requires package tracking and confirmation of the recipient's age. Express Mail through the U.S. Postal Service is the only postal product currently meeting the new law's requirements. As neither UPS nor FedEx allow consumer-to-consumer tobacco shipping, the law only affects U.S. Postal Service shipping.
According to Beth Barnett, spokeswoman for the Tennessee postal service, "the issue is that Express Mail is not available to some overseas military destinations, primarily Iraq or Afghanistan."
While the military has been working to reduce smoking among veterans and soldiers for years, the sudden restrictions on mailings have bewildered family and charity groups who no longer have means for getting cigarettes to troops.
Many military families and friends who include cigarettes in deployed loved ones' care packages are very upset about the new restrictions. One soldier's wife, April Woods, hopes the law will be changed. "It's just ridiculous that they take so much away from our soldiers . . . the only way he has to get cigarettes is through family members."
Lynn Becker, spokeswoman for Sen. Herb Kohl of Wisconsin, the bill's sponsor, says the Senator is "working on a legislative fix to ensure that service members overseas can receive care packages that include tobacco products."
[Editor's Note: To read the PACT Act, visit http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_public_laws&docid=f:publ154.111.]
"British girls undergo horror of genital mutilation despite tough laws"
Guardian News (07/25/2010) Tracy McVeigh and Tara Sutton
The United Kingdom Prohibition of Female Circumcision Act of 1985 makes it an offense to perform female genital mutilation (FGM) as well as aiding, abetting or procuring the service. Similarly, the Female Genital Mutilation Act of 2003 makes it illegal for FGM to be performed on UK permanent residents worldwide, carrying the maximum sentence of 14 years imprisonment. To date, however, the legislation has never been invoked in a criminal prosecution.
The World Health Organization has identified four types of female circumcision, ranging from partial to total removal of external female genitalia. Over the summer holiday, between 500 to 2,000 British school girls will be genitally mutilated. While many will be taken abroad, some will be circumcised or "cut" and sewn closed in the UK by women already in the country. Sometimes, to reduce costs, women are flown to the UK especially for "cutting parties," involving multiple girls.
According to Comfort Momoh, who works at one of the country's 16 FGM victim assistance clinics, Guy's and St. Thomas' Hospital in London, "There's no hard evidence in figures about what is happening in the UK because it's a hush-hush thing."
For Naana Otoo-Oyortey, head if the leading FGM charity, Forward UK, laws without prosecution are not enough. "We have anecdotal evidence that it is being done here. So someone is not doing their job . . . the commitment is hollow."
"Empowering the youth, giving them the information is the way forward," says Detective Constable Jason Morgan in the Met's FGM unit, Project Azure, which made 38 interventions in 2008, 59 in 2009, and 25 in 2010. "While a prosecution would send out a very clear message to practising communities, really it is very difficult and you would be relying on medical evidence… whether the child consents to an examination."
California: Attorney General claims children's bounce houses contain dangerous levels of lead
"Suit sees lead risk in bounce houses"
New York Times (08/11/2010) Jesse McKinley
Indiana: Attorney General may obtain abandoned health records to protect patient information
"New Indiana consumer protection laws take effect July 1"
Associated Press (06/27/2010)
Maryland: Facility may not have eradicated Legionnaire's disease bacteria; suit filed
"Legionnaire's disease victim sues retirement home"
Baltimore Sun (08/11/2010) Tricia Bishop
Massachusetts: State to curb childhood obesity by creating stricter school nutrition requirements
"Governor signs bill to improve nutrition for school children"
Boston Globe (07/31/2010) Sydney Lupkin
Michigan: New bicycle friendly legislation requires policy from Department of Transportation
"Michigan lawmakers approve 'Complete Streets' to encourage more paths for bicyclists, pedestrians"
Grand Rapids Press (07/29/2010) David Veselenak
Minnesota: Battle over E. coli-linked raw dairy products sours in Sibley County court
"Farmer's fight over raw milk lands in courtroom"
Minneapolis Star Tribune (07/21/2010) Mike Hughlett
Nevada: State Board of Health requires infection reports, but refuses to make statistics public
"Board of Health speakers: publicly report hospital infections"
Reno Gazette-Journal (08/14/2010) Frank X. Millen, Jr.
New York: Court says most dangerous sex offenders may be held beyond sentence
"State can try to detain man who infected women"
Associated Press (07/19/2010)
Ohio: NFL player contracts career-ending staph infection, sues team's rehab facility
"Former Brown's center Bentley sues team over staph"
Dayton Daily News (07/22/2010) Meghan Barr
National: Federal agencies work for healthier children's food products and to curb deceptive ads
"Ad rules stall, keeping cereal a cartoon staple"
New York Times (07/23/2010) William Neuman
National: FDA recommends requiring more safety information before approving medical devices
"FDA to improve device oversight"
Los Angeles Times (08/03/2010) Matthew Perrone
National: EPA sued in federal court to ban agricultural pesticide linked to asthma and ADD
"Federal suit seeks ban of common pesticide"
San Francisco Chronicle (07/23/2010) Marisa Lagos
National: Federal judge rules that state law shields FEMA from formaldehyde trailer negligence claims
"FEMA trailer formaldehyde claims by Mississippi residents dismissed by federal judge"
Times-Picayune (07/29/2010) Michael Kunzelman
National: Hospitals must report intensive care patients' bloodstream infections to CDC
"New regulations may cut down hospital infections"
National: Cruise ships failing to comply with new safety laws may be denied entry to U.S. ports
"Obama signs cruise ship safety bill"
Los Angeles Times (07/28/2010) Hugo Martin
National: Child Nutrition Act will feed more children and require better nutrition
"Senate Passes Child Nutrition Act"
New York Times (08/05/2010) Andrew Martin
Germany: Singer faces criminal trial for allegedly knowingly infecting one man with HIV
"German singer Nadja Benaissa apologises at HIV trial"
British Broadcasting Corporation (08/16/2010)
Uganda: Baby formula marketers circumvent international code to detriment of infants and children
"Uganda: How Baby Milk Makers Break Rules"
New Vision (08/04/2010) Dan-Marlone Nabutsabi
"Requiring suspended drunk drivers to install alcohol interlocks to reinstate their licenses: effective?"
Addiction (08/2010) Robert B. Voas and others
"Defining standards and policies for promoting physical activity in afterschool programs"
Journal of School Health (08/2010) Michael W. Beets, Megan Wallner and Aaron Beighle
"The double-helix derailed: the story of the BRCA patent"
The Lancet (07/31/2010) Ellen T. Matloff and Karina L. Brierley
http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(10)61150-6/fulltext (subscription required)
"Norway rethinks law on use of electronic patients' records"
The Lancet (07/31/2010) Oda Berit Riska
"New guidelines for genetic tests are welcome but insufficient"
The Lancet (08/14/2010)
"Proportion of workers who were work-injured and workers' compensation systems"
MMWR (08/30/2010) DK Bonauto and others
"Buying health care, the individual mandate, and the Constitution"
New England Journal of Medicine (07/29/2010) S. Rosenbaum and J. Gruber
"The "meaningful use" regulation for electronic health records"
New England Journal of Medicine (08/05/2010) D. Blumenthal and M. Tavenner
"HPV vaccination mandates - lawmaking amid political and scientific controversy"
New England Journal of Medicine (08/19/2010) J. Colgrove, S. Abiola, and M.M. Mello
California: Public entities may compensate private counsel in lead paint case
County of Santa Clara v. Superior Court of Santa Clara County; Atlantic Richfield Company, et al.
Supreme Court of California
Case No. S163681
Decided July 26, 2010
Opinion by Chief Justice Ronald M. George
Florida: Emergency Suspension Order against doctor revoked
Kaplan, M.D. v. State of Florida, Department of Health
Florida First District Court of Appeal
Case No. 1D10-2493
Decided July 23, 2010
Opinion by Judge Charles J. Kahn, Jr.
New York: Shop sells tobacco to minor, loses tobacco license
Lena Bagels, Inc. v. City of New York and the New York City Department of Consumer Affairs
Supreme Court of the State of New York, County of Richmond
Case No. 800082-10
Decided July 27, 2010
Opinion by Judge Philip G. Minardo
Texas: Unprovoked dog bite case fails to allege culpable mental state
State of Texas v. Taylor
Court of Texas, Sixth Appellate District of Texas at Texarkana
Case No. 06-10-00015-CR
Decided July, 23 2010
Opinion by Justice Jack Carter
__________PHL NEWS QUOTATION OF THE MONTH___________
"I tell my chef he should be cooking as if he were eating that food."
-- Sarvjit Singh, restaurant owner, on the New York City restaurant grading system.
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 for State, Tribal, Local, and Territorial Support, Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services (DHHS). Lindsay Culp, J.D., M.P.H., Editor; Abigail Ferrell, Writer.