October 2010 - CDC Public Health Law News
Thursday, October 21, 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
*** Menu of Suggested Provisions for State Tuberculosis Prevention and Control. The CDC Division of Tuberculosis Elimination and the CDC Public Health Law Program have published the "Menu of Suggested Provisions for State Tuberculosis Prevention and Control Laws." The Menu is a practical resource—presenting multiple, alternative statutory provisions in each of four programmatic areas--that state, tribal, local, and territorial public health officials and their legal counsel may use in assessing existing TB laws and exploring approaches to improving both those laws and their implementation. To access the Menu, please visit http://www2.cdc.gov/phlp/tbcontrol.asp.***New "Winnable Battles" Legal Resource. The CDC Public Health Law Program has posted on its website an initial compilation of law-centered, public-domain information directly relevant to the public health priorities CDC highlights as Winnable Battles. This new service—"Selected Legal and Policy Resources on Public Health Winnable Battles"—gives public health practitioners, policymakers, and legal counsel ready access to an array of resources on laws, legal issues, and pertinent scientific information they can use to apply law to achieve high-priority public health goals. This new resource is available at http://www2a.cdc.gov/phlp/winnable/index.asp. For more information on the Winnable Battles, please visit http://www.cdc.gov/about/winnablebattles.htm
***Job Opening: Assistant Director of the Mid-States Regional Center for the Public Health Law Network. The University of Michigan School of Public Health has an immediate opening for a high-level experienced attorney to serve as the Assistant Director of the Mid-States Regional Center for the Public Health Law Network. The Assistant Director will assist the Director in the operation of the Mid-States Regional Center, which provides services to nine states, and in providing technical assistance on specific public health law issues, conducting training, developing tools and educational materials, and facilitating opportunities for networking and peer-assistance. Applications must be submitted through the University of Michigan jobs website at http://umjobs.org/job_detail/52821/project_senior_manager (Job classification is Project Senior Director; Job opening I.D. is 52821) Application deadline is October 29, 2010.
***Job Opening: Senior Legal Counsel for Policy, Tobacco Control, New York City Health Department. New York City leads the nation in tobacco control. Utilizing a comprehensive five-point plan that includes taxation, legal action, education, cessation and evaluation, Tobacco Control has overseen one of the fastest declines in smoking ever recorded. Tobacco Control continues to implement cutting-edge, evidence-based interventions which make it harder to smoke and easier to quit in New York City. The Senior Legal Counsel will oversee the Policy Unit and develop/implement legislative/regulatory strategies to decrease smoking and curb illegal sales of cigarettes. Apply online with a cover letter at http://sh.webhire.com/servlet/av/jd?ai=741&ji=2478686&sn=I.
***Barriers to HIV Screening. The Institute of Medicine Committee on HIV Screening and Access to Care has released a report exploring the legal barriers and facilitators to more widespread HIV testing. The report is available at http://books.nap.edu/catalog.php?record_id=12932
***Public Health Law Research Rapid-Response Grants. The Robert Wood Johnson Foundation (RWJF) has released a call for proposals for rapid-response grants. RWJF seeks to build the evidence for and strengthen the use of regulatory legal and policy solutions to improve public health, and is interested in identifying and ameliorating laws and legal practices that unintentionally harm health. For more information, please visit http://www.rwjf.org/applications/solicited/cfp.jsp?ID=21181&cid=XEM_206615.
***NACCHO Model Practice Program. NACCHO's Model Practice Program honors and recognizes outstanding local health practices from across the nation and shares and promotes these practices among local health departments. Model Practice applications, including law-related practices, are being accepted through Friday, Nov. 12, 2010. All applications must be completed online. More application details may be found at http://www.naccho.org/topics/modelpractices/mp-application.cfm.
1. Supreme Court to consider vaccine case
States and Localities
2. Massachusetts: Fluoridation is still a hard sell in Mass.
3. Missouri: Sales tracking system aims to halt meth production before it starts
4. New Jersey: State requiring schools to conduct security drills
5. Rise of in vitro offspring ignites question of rightful heirs
6. Canada: Ont. Superior Court strikes down three federal prostitution laws
7. ITGA: World Health Organization ploughs on with bureaucratic blunder and slams the door on 30 million farmers
Alabama miner suit • Motor vehicle accidents • California farmers markets • Whooping cough vaccination • HIV positive film performer • Colorado anesthesia administration • Florida homeless attacks • Tobacco suits • National off-label marketing • Food labels • Breast cancer warnings • Apartment smoking bans • Guatemala syphilis tests • Canada BPA toxic
Legal highs • HPV vaccination • State attorneys general • Informed consent • School food • School property liability • Chinese psychiatric admission • Drug criminalization • FDA • Pakistani acid violence • Tobacco treatments • Health reform legal challenges • Affordable Care Act
California HIV testing privacy • Illinois coal mine violations • Massachusetts zoning • Ohio seat belts • Washington water fluoridation • Federal vaccine injury tort • Class settlement over ADA • Cigarette sales tax law • Immigration and pharmacy practice • Plastic bottles and BPA • Vaccine injury tort • State regulation of cigarettes • Public nuisance and foreclosure
Quotation of the Month
Stephen Dean, Massachusetts chiropractor
"Supreme Court to consider vaccine case"
New York Times (10/11/2010) Barry Meier
On Tuesday, October 19, 2010, the United States Supreme Court will hear a vaccination case that could undermine or overturn the no-fault system for vaccines created by Congress in the 1980's. The legislation precluded alleged victims of vaccine-related illnesses and injuries from suing under a myriad of product liability laws.
The 1986 National Childhood Vaccine Injury Act created a special "vaccine court" to adjudicate vaccine claims. The court only recognizes specific injuries caused by vaccination as eligible for compensation. Plaintiffs who receive favorable decisions from the court may reject the award and sue the manufacturer, but the costs of pursuing such a course are often preclusive.
The case before the Supreme Court involves Hannah Bruesewitz, an 18-year-old woman who allegedly suffered seizures and consequent developmental delays after receiving a diphtheria-tetanus-pertussis (DTP) shot when she was six months old. According to court documents, Bruesewitz's parents claim that the vaccine's manufacturer was aware of a safer vaccine, but did not produce it.
Mr. Bruesewitz, Hannah Bruesewitz's father, sees the case from a completely different angle and is in favor of vaccination. "What we want and are concerned about is to make sure that the safety of vaccines in this country is constantly enhanced," he said.
After being rejected in vaccine court because her injuries had been removed from the court's approved list of those qualifying for compensation, the family brought a product liability law suit. A lawyer who defends drug companies and makers of medical devices, John M. Beck, said of the suit, "If these cases go forward, it will make it economically unfeasible for anyone to make vaccines in this country."
"Fluoridation is still a hard sell in Mass."
Boston Globe 09/29/2010) Stephen Smith
Although many studies indicate that fluoridation prevents dental cavities, almost 150 towns and cities in Massachusetts continue to vote against water fluoridation, ranking the state 36th in providing fluoridation to residents.
One advocate for fluoridation, Deborah Burns, has been campaigning for fluoridation for almost 30 years. Remembering past campaigns, she says, "Some people listened, but a lot of people were saying we were trying to poison them, poison their children, poison the water." Burns, who is a dental hygienist for the No Tooth Left Behind Clinic, sees damage done by anti-fluoride campaigns on a daily basis in the form of cavities and poor dental health.
Dr. Stephen Dean, a chiropractor who has been an anti-fluoride advocate for almost five decades, says, "I don't base my resistance to fluoride on science. I base it on common sense. Even if it has no ill effects – which it does – I would not force anybody to take a chemical through the water supply for the rest of their life."
State director of community health, Dr. Jewel Mullen, says, "having healthy teeth should not be viewed as a luxury or a privilege."
Those against fluoridation cite studies that indicate a link between fluoride and a rare bone cancer as well as fluorosis, which causes tooth discoloration in children who are overexposed.
Many parents would welcome fluoridation. Both of Chester Thrower's children have had cavities filled and teeth sealed. He says, "Just a little bit of fluoridated water would go a long way to eliminating the cavities that lead to other ailments and discomfort. We need the fluoridation, and I don't know why we don't have it."
"Sales tracking system aims to halt meth production before it starts"
Kansas City Star (09/29/2010) Jason Noble
Missouri has announced a new tracking system for over the counter drug sales which will make it more difficult for meth producers to shop multiple drugstores in search of cold medicine containing pseudoephedrine, a key ingredient in meth production. The shoppers or "smurfers" often buy cold medicines at multiple drugstores, circumventing the daily or monthly limits proscribed by law.
Missouri Highway Patrol's Sgt. Jason Clark says, "Basically, what this new system does is make it easier to track those folks who are attempting to purchase illegal amounts, to go talk to them and to conduct an investigation."
While Missouri has kept paper logs at pharmacies, requiring photo identification for pseudoephedrine purchases, the new system is electronic and will allow law enforcement to check multiple pharmacies at once, rather than visiting and checking each log book manually, copying and comparing the various records.
According to Missouri Governor Jay Nixon, "Over the years, Missouri law enforcement has been very aggressive in busting meth labs. This data base gives those officers a high-tech weapon to stop production before it even starts."
Pharmacists are supportive of the new system; Ron Fitzwater, CEO of the Missouri Pharmacy Association says of the system, "It keeps a legal product available for patients and eliminates the people trying to game the system."
"State requiring schools to conduct security drills"
Verona-Cedar Grove Times (09/30/2010)
On November 1, 2010, New Jersey General Assembly Bill 3002, takes effect. The new law mandates public, private, and charter schools to conduct monthly fire and security drills when the school is open. The law defines school security drills as "an exercise, other than a fire drill, to practice procedures that respond to an emergency situation including, but not limited to, a non-fire evacuation, lockdown, or active shooter situation and that is similar in duration to a fire drill."
The law requires schools to hold a security drill within 15 days of the beginning of the school year as well as requiring a minimum of two active shooter, non-fire evacuation, bomb threat and lockdown drills, respectively. Schools may also hold shelter-in-place drills, reverse evacuation, evacuation to a relocation site, testing of school's notification system and procedures as well as other emergency preparedness exercises beyond the specific drills required by the law.
Verona, New Jersey, Police Chief Doug Huber, described how the school officials and law enforcement are working together to meet the law's requirements. "We've already met with our high school to discuss the program. We're meeting with the principals from all the schools in November to discuss types of drills and how we want to work them. We're going to make sure we're doing everything we're supposed to be doing," he said.
According to Cedar Grove schools Superintendent Gene Polles, "Through our building principals we will continue to train our staff members annually and have them continue to recognize and appropriately respond to safety and security concerns including emergencies and crises."
"Rise of in vitro offspring ignites question of rightful heirs"
Bloomberg (10/15/2010) Margaret Collins
In the past 10 years use of reproductive technologies has doubled, increasing the number of children potentially born to a predeceased parent. Many states' inheritance laws do not have provisions for children of predeceased parents.
Many forms of reproductive technologies allow clients to freeze, eggs, sperm and embryos indefinitely, leaving a wide window for conception after the biological donor has died. Since the legal definition of parentage is an issue for states, the laws that do exist vary.
Several states, such as Colorado, North Dakota, and Utah have adopted the Uniform Probate Code's (UPC) amendments addressing posthumous children, and two other states, Minnesota and New Mexico have UPC amendments pending. The UPC provisions mandate that a child must be in utero no more than 36 months or must be born within 45 months of the parent in question's death. According to Lawrence Waggoner, a University of Michigan Law School professor, the UPC's amendments allow time for spouses to grieve failed attempts to become pregnant and their deceased loved one, but do not leave the estate open indefinitely. Other states, such as New York, California and Florida, have created statutes independent of the UPC.
Florida's statute mandates that the child in question cannot be an heir unless provided for in a will. California requires evidence of the deceased parent's wishes as well as notification to the estate when a party intends to use genetic material.
Another way for parties to provide for posthumous children is to write wills with posthumous children in mind. "Don't count on a statute or judge correctly interpreting what your intentions are," says Bruce Fowler of Fairfield and Woods, PC, in Denver, Colorado. "If you do have genetic material preserved you need to do the thoughtful planning and be proactive."
"Ont. Superior Court strikes down three federal prostitution laws"
Golbal Toronto (09/28/2010) Linda Nguyen and Douglas Quan
On September 28, 2010, a Canadian Superior Court Judge, Susan Himel, held that certain Canadian prostitution laws are unconstitutional. The suit, brought by sex workers against the government, challenges three provisions that prohibit keeping a brothel, bawdy house or communicating for the purposes of prostitution.
Sex workers' advocates argue that forcing prostitutes to keep their trade on streets and outside of buildings subjects the workers to a greater likelihood of violence as well as other dangers. Himel's ruling will take effect within a month and will only apply to Ontario until the Canada Supreme Court rules on the issue.
Justices Minister Rob Nicholson is concerned over the ruling, "The government of Canada is committed to the health and safety of all Canadians and the well-being of our communities, we will fight to ensure that the criminal law continues to address the significant harms that flow from prostitution to both communities and the prostitutes themselves, along with other vulnerable persons."
In her decision Himel writes, "These laws, individually and together, force prostitutes to choose between their liberty interest and their right to security of person as protected under the Canadian Charter of Rights and Freedoms . . . I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by other members of the public."
Valerie Scott, one of the sex workers who brought the suit, feels the current system is hypocritical; "in theory, I can't be arrested simply for being a known prostitute, but practicing the profession is illegal . . . I file income tax as a sex worker . . . I have that responsibility, but I don't have the rights that come with the responsibility."
Some critics of the ruling feel it will not lessen the dangers faced by sex trade workers and is contrary to Canadian values. "Prostitution, usually of young women and men, is not a Canadian value. To remove the provisions which protect young people from being exploited is not in the best interest of Canadian families," says Diane Watts, REAL Women of Canada spokeswoman.
"ITGA: World Health Organization ploughs on with bureaucratic blunder and slams the door on 30 million farmers"
Times Colonist (09/21/2010)
The World Health Organization (WHO) is slated to release final guidelines for the Framework Convention on Tobacco Control (FCTC) in November 2010. The guidelines, which may be adopted by the FCTC's 171 member countries, would, in part, ban the use of non-tobacco ingredients in cigarette production.
The International Tobacco Growers Association (ITGA), which represents more than 30 million tobacco farmers worldwide, argues that the new bans would do irreparable harm to marginalize tobacco farmers.
The ingredients in question would be banned by FCTC Articles 9 and 10, and are primarily used in blended tobacco production of Burley and Oriental tobacco, which account for more than 50 percent of cigarettes smoked internationally, excluding China. While WHO proposals 17 and 18 seek to create crop alternatives, many are worried that the cut in tobacco production will devastate many farmers and developing countries' economies.
ITGA plans to mount a campaign against the Articles and has launched an international petition to reject the proposals. Antonio Abrunhosa, ITGA's CEO, says "Progress has been made in crop diversification but things can't change overnight."
WHO has rejected the ITGA's petition to attend the November meeting on grounds that the organization would obstruct the articles' development. One of the FCTC's guiding principles is that "tobacco growers and workers should be involved at every stage of policy development and implementation."
Alabama: Dow settles with miners exposed to isocyanate, or rock glue, a hazardous chemical
"Dow Chemical settles with Alabama miners"
Reuters (09/28/2010) Verna Gates
Alabama: Electronic tracking promises to help lower Alabama's motor vehicle accident rates
"Statewide system to track causes of car wrecks in Alabama"
Birmingham News (10/12/2010) Jeremy Gray
California: L.A. task force seeks to accept food stamps at farmers markets
"Panel seeks to use L.A.'s abundance of fresh food in fight against childhood obesity"
Los Angeles Times (10/04/2010) Mary MacVean
California: HIV infected porn performer raises questions about industry's mandatory condoms
"Porn film performer tests positive for HIV"
Los Angeles Times (10/13/2010) Molly Hennessy-Fiske and Rong-Gong Lin II
California: In face of epidemic, California mandates further vaccination for school children
"Whooping cough vaccine to be required of California seventh-through-12-graders"
Los Angeles Times (10/07/2010) Rong-Gong Lin II
Colorado: Advance-practice nurses may administer anesthesia without doctor's supervision
"State to allow nurses to give anesthesia"
Durango Herald (09/28/2010)
Florida: State leads nation in attacks on homeless, now classifies such crimes as hate crimes
"Attacks on homeless will be hate crimes in Florida"
Palm Beach Post (09/28/2010) Bill Kaczor
Florida: Juries increasingly against tobacco after Florida Supreme Court ruling
"Tobacco suits puff up in Florida"
Wall Street Journal (10/07/2010) Nathan Koppel
National: Department of Justice cracks down on drug maker's off-label marketing
"Forrest, maker of celexa, to pay more than $313 million to settle marketing case"
New York Times (09/15/2010) Natasha Singer
National: New packaging requirements should advertise potential harms as well as goods
"Group seeks food label that highlights harmful nutrients"
New York Times (10/13/2010) William Neuman
National: CDC directed to create breast cancer awareness campaigns for young women
"Health law calls for breast cancer warnings to young women"
Kaiser Health News (09/28/2010) Michelle Andrews
National: Tempers smoke as some apartments ban smoking in units
"Some apartments bar residents from smoking at home"
Marietta Daily Journal (10/05/2010) Carole Feldman
National: Apology issued for U.S.'s illegal syphilis research practices in Guatemala
"U.S. apologizes for syphilis tests in Guatemala"
New York Times (10/01/2010) Donald G. McNeil, Jr.
Canada: Chemical industry loses battle in Canada, BPA formally declared to be toxic
"Canada declares BPA, a chemical in plastics, to be toxic"
New York Times (10/13/2010) Ian Austen
"Legal highs and the challenges for policy makers"
Addiction (10/2010) Adam R. Winstock And John D. Ramsey
"HPV vaccination's second act: promotion, competition, and compulsion"
American Journal of Public Health (10/2010) Jason L. Schwartz
"Role of state attorneys general in health policy"
Journal of the American Medical Association (09/22/2010) Lainie Rutkow and Stephen P. Teret
"Making research consent transparent"
Journal of the American Medical Association (10/20/2010) Jerry Menikoff
"Evaluating the impact of a Connecticut program to reduce availability of unhealthy competitive food in schools"
Journal of School Health (10/2010) Michael W. Long, Kathryn E. Henderson, and Marlene B. Schwartz
"Liability Risks for After-Hours Use of Public School Property to Reduce Obesity: A 50-State Survey"
Journal of School Health (10/2010) Tom Baker and Hania Masud
"Compulsory admission to psychiatric hospitals in China"
The Lancet (10/02/2010) Yu-Tao Xiang, Xin Yu , Helen FK Chiu
"Drug crime and criminalisation threaten progress on MDGs"
The Lancet (10/02/2010) Kelly Morris
"FDA: regulators or abdicators?"
The Lancet (10/09/2010)
"Pakistan moves to tackle acid violence"
The Lancet (10/09/2010) Kristin Solberg
"State Medicaid coverage for tobacco-dependence treatments - United States, 2009"
MMWR (10/22/2010) SB McMenamin and others
"Health insurance politics in federal court"
New England Journal of Medicine (09/30/2010) Wendy K. Mariner and George J. Annas
"Promoting prevention through the Affordable Care Act"
New England Journal of Medicine (09/30/2010) Howard K. Koh and Kathleen G. Sebelius
California: Discovery of patient HIV testing information barred under California statute
Children's Hospital & Research Center Oakland v. Workers' Compensation Appeals Board
Court of Appeal, First District, Division 4, California
Case No. A127580, Workers' Compensation Appeals Board Case No. SFO 0469788
Filed October 8, 2010
Opinion by Judge Ruvolo
Illinois: Decision barring suit on coal mine violations of state land and water use laws overturned
Citizens Opposing Pollution v. ExxonMobil Coal U.S.A.
Appellate Court of Illinois, Fifth District
Preliminarily Issued September 24, 2010
Case No. 5-09-0207
Opinion by Judge Goldenhersch
Massachusetts: Zoning ordinance for smart growth development upheld
DiRico v. Town of Kingston
Supreme Judicial Court of Massachusetts, Suffolk
Decided September 21, 2010
Case No. SJC-10628
Opinion by Justice Ireland
Ohio: Ohio statute requiring the use of safety belts and defendant's conviction thereunder upheld
State v. Brown
Court of Appeals of Ohio, Third District, Marion County
Decided September 27, 2010
Case No. 9-10-12
Opinion by Judge Shaw
Washington: Injunction of use of local initiative to stop fluoridation of city water supply granted
City of Port Angeles v. Our Water-Our Choice!
Supreme Court of Washington
Decided September 23, 2010
Case No. 82225-5
Opinion by Justice Chambers, En Banc
Federal: Guillain-Barre Syndrome suit may proceed against vaccine manufacturers
Kravitz v. Evans Medical Ltd.
U.S. District Court for the Southern District of Florida, Miami Division
Case No. 09-21414-CIV-JORDAN
Filed September 27, 2010
Opinion by Judge Jordan
Federal: Class settlement over ADA duty of mentally ill integrated living settings upheld
Williams v. Quinn
U.S. District Court for the Northern District of Illinois, Eastern Division
Filed September 29, 2010
Case No. 05 C 4673
Opinion by Judge Hart
Federal: Injunction of enforcement of new tax law granted in suit over cigarette sales
Oneida Nation of New York v. Paterson
U.S. District Court for the Northern District of New York
Case No. 6:10-CV-1071
Filed October 14, 2010
Opinion by Judge Hurd
Federal: New York law violates equal protection for nonimmigrant aliens practicing pharmacy
Adusumelli v. Steiner, Farrell v. New York State Department of Education
U.S. District Court for the Southern District of New York
Case Nos. 08 Civ. 6932 (RJH), 09 Civ. 4902 (RJH)
Filed September 29, 2010
Opinion by Judge Holwell
Federal: Injunction against reusable bottle seller for negative publicity
International Bottled Water Association v. Eco Canteen, Inc.
U.S. District Court for the Western District of North Carolina, Charlotte Division
Case No. 3:09-cv-299-RJC-DCS
Filed September 17, 2010
Opinion by Chief Judge Contrad
Federal: Challenge by cigarette importers under Sherman Act & Commerce Clause overruled
Freedom Holdings, Inc. v. Cuomo
U.S. Court of Appeals, Second Circuit
Docket No. 09-0547-cv
Decided October 18, 2010
Opinion by Circuit Judge Raggi
Federal: Non-profit granted standing against title holder of post-foreclosure vacant properties
Cleveland Housing Renewal Project v. Deutsche Bank Trust Company
U.S. Court of Appeals, Sixth Circuit
Case Nos. 09-3571, 09-3648
Filed September 20, 2010
Opinion by Judge McKeague
__________PHL NEWS QUOTATION OF THE MONTH___________
"I don't base my resistance to fluoride on science. I base it on common sense."
-- Stephen Dean, Massachusetts chiropractor
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. Special thanks to Tara Ramanathan, J.D., M.P.H., for her help on this issue.