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Thursday, December 16, 2010

From the Public Health Law Program,
Office for State, Tribal, Local and Territorial Support,
Centers for Disease Control and Prevention

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From the Public Health Law Program, Office for State, Tribal, Local and Territorial Support, CDC


***Legal and Programmatic Resources on CDC "Winnable Battles" . The CDC Public Health Law Program has produced a one-stop resource that provides research on public health topics combining science, policy and law related information from public-domain resources. This resource—"Selected Legal and Policy Resources on Public Health Winnable Battles"—gives public health practitioners, policymakers, and legal counsel ready access to information produced by CDC, national organizations, universities, philanthropies and various jurisdictions on laws, legal issues, and scientific information they can use to identify how law and policy can improve public health goals. Current topics include:
· Breast Feeding (
· Menu Labeling (
· Nutrition Advertising Targeting Children (
· School Nutrition (
· School Physical Activity (
· Sodium Reduction (
· Trans Fat Elimination (
· Zoning to Encourage Physical Activity (
· Zoning to Encourage Healthy Eating (

This resource is available at New topics related to CDC Winnable Battles and other priority public health topics will be added to the website on a regular basis. For more information on the Winnable Battles, please visit

*** Vital Signs: HIV Testing in the United States. On December 6, 2010, CDC's Office for State, Tribal, Local and Territorial Support (OSTLTS) hosted a CDC Vital Signs webinar on HIV Testing in the United States. The webinar featured presentations from the federal, state, and local perspective: Dr. Thomas Frieden, CDC Director; Judy Monroe, CDC OSTLTS Director; Dr. Jonathan Mermin, CDC Division of HIV/AIDS Prevention Director; John Auerbach, ASTHO President; Carol Moehrle, NACCHO President; Julie Scofield, NASTAD Executive Director; Heather Hauck, Director of the Infectious Disease and Environmental Health Administration in the Maryland Department of Health and Mental Hygiene; and Dr. Ann Robbins, Manager of the HIV/STD Prevention and Care Branch in the Texas Department of State Health Services. To view slides from the webinar, visit

*** NACCO Chronic Disease Roadmap. NACCHO has released a new report to guide the future of local chronic disease prevention. The Roadmap for Chronic Disease Prevention outlines key functions of local health departments (LHDs) dealing with population-based chronic disease prevention and provides direction about constructing the capacity needed to execute population-based disease prevention strategies. To download a PDF of the Roadmap, please visit:

*** Child Safety Recall List. The National School Safety Coalition has released a comprehensive list of all manufacturer and government recalls for children's products and food. The National School Safety Coalition is comprised of several organizations representing school administrators, educators, health officials, and school-based volunteer organizations, including the National Parent Teacher Association and the National School Boards Association. Parents may check the site and may elect to have new information delivered weekly via newsletters sent to their homes. To learn more about the site and the coalition, please visit:

*** Job Opening: Robert Wood Johnson Foundation Summer Intern. The Robert Wood Johnson Foundation in Princeton, New Jersey, is seeking a public health law intern for Summer 2011. The intern will assist with research, field scans, and other work to assist in efforts to build the field of public health law. For more details on this opportunity and to apply, visit job opportunities on

*** Job Opening: O'Neill Institute Law Fellow The O'Neill Institute is seeking an exceptionally qualified candidate to serve as an O'Neill Institute Law Fellow. The candidate should have a J.D. degree (or equivalent) and research interests in health law related areas such as public health law, global health law, domestic health care law, empirical studies, regulatory impacts of health law, and/or health and human rights. This Fellowship term will be January to August 2011, and the application deadline is December 30, 2010. For more information, visit

Top Story

1. Judge voids key element of Obama health care law

States and Localities

2. New York: HIV test law offers challenge to E.R.s


3. Congress approves child nutrition bill
4. Court: FDA can regulate e-cigs as tobacco products
5. Senate acts on food safety
6. Wildlife trade brings tarantulas, pythons, cobras

Briefly Noted

California fast food toys · Tobacco sale permits · Florida pain clinic regulation · Georgia caffeinated alcoholic beverages · New York mental retardation case management · Oregon Brazilian blowouts · Pennsylvania youth tobacco sales · Meth houses · Texas routine HIV screening · Virginia concussion guidelines · National caffeinated beer · Menthol cigarettes · Yogurt health claims · Lap-Bands · Synthetic marijuana · Human subjects protections · Drop side cribs ban · China HIV infection claims

Journal Articles

Tobacco dependence · Prescription drugs · Alcohol sales licensing · HAI reporting · Alcohol sales · International health regulations · Menu labeling · Emergency preparedness · PTSD rule change · Global tobacco control · School food standards · Counterfeit drugs

Court Opinions

Alaska seatbelt law · Louisiana Sunday liquor store closures · Ohio library footwear policy · Tennessee discriminatory zoning exemptions · Federal correctional facility food safety · Health reform challenge · Suicide prevention hotlines

Quotation of the Month

Tyler Cowan, exotic pet owner


"Judge voids key element of Obama health care law"
New York Times (12/13/2010) Kevin Sack

On December 13, 2010, Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia, ruled provisions of the Patient Protection and Affordable Care Act which require most U.S. citizens to obtain health insurance overreach Congress' regulatory authority granted by the Commerce Clause. Hudson, the first judge to find any portion of the law unconstitutional, struck a blow to one of the law's major provisions.

In his opinion the judge wrote, "[n]either the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market." Because the judge did not suspend the act's implementation pending appeal, there should be no immediate changes in the law's implementation.

Unlike states' auto insurance requirements - which have been interpreted as being among the broad police powers provided by the Constitution - compulsory health insurance has not been considered by the U.S. Supreme Court. Furthermore, mandatory auto insurance laws are only triggered when one meets the conditional, optional provision of owning a car.

Two other Federal courts have found the law constitutional; the case will likely be appealed and may be eventually decided by the U.S. Supreme Court, a process that could take several years.

While many opponents are calling for the law's repeal, the Justice Department continues to support the law; Department spokeswoman Tracy Schmaler said, "[w]e are disappointed in today's ruling, but continue to believe- as other federal courts in Virginia and Michigan have found- that the Affordable Care Act is constitutional."

[Editor's Note: To read the opinion, visit].]


"HIV test law offers challenge to E.R.s"
Albany Times Union (12/2/2010) Cathleen F. Crowley

A new state law went into effect in New York on September 1, 2010, mandating that doctors ask every patient between the ages of 13 and 64 if they want to be tested for HIV. The law also requires that patients who test positive for HIV be given a follow-up appointment with an HIV specialist.

The law seeks to slow the spread of HIV by encouraging those who test positive for the disease to receive treatment and to take precautions to avoid transmitting it to others. According to Erika Martin, professor of health policy at the University of Albany, 21 percent of people infected with HIV do not know they have the disease.

Still, some emergency rooms are struggling to implement the new law, especially the follow-up requirement. "What do you do with a positive test at 3 a.m.? Who's going to follow up?," asks Dr. Todd Duather, Nathan Littauer Hospital's chief of emergency medicine.

Dr. Duather explains, "Our goal in the emergency department is throughput. Everything we do is geared at rapidly moving people through the system as fast as possible." With the new testing, however, what would usually be a very short emergency visit can be drawn out for hours, further clogging an already congested system.

The New York Department of Health remains hopeful, however, stating "as with the implementation of any new law, there is a period of transition as adjustments are made . . . we stand ready to assist hospitals and ERs during this implementation period."

[Editor's Note: To read the law, visit]


"Congress approves child nutrition bill"
New York Times (12/2/2010) Robert Pear

The Healthy, Hunger-Free Kids Act of 2010 was passed by the U.S. House of Representatives on December 2, 2010. If signed into law by President Obama, the bill will improve meals provided to children by schools by raising fruit and vegetable quantity standards and expanding school lunch programs.

The new law would give the Secretary of Agriculture the authority to establish nutrition standards for food sold during the school day and require schools to serve more whole grains, low-fat dairy products, fruits, and vegetables. The law also would regulate the price of school lunch for children living at family incomes 185 percent of the poverty level.

Margo G. Wootman, director of nutrition policy for the Center for Science in the Public Interest, says, "The price of paid lunches needs to go up. Schools are not charging enough to cover the cost. As a result, money intended to provide healthy food to low-income kids is being diverted to subsidize food for higher-income children."

Some advocates for the poor, however, have reservations because the funding for the bill would draw money away from the Supplemental Nutrition Assistance Program, also known as food stamps. California Representative Barbara Lee says, however, "the President will do everything he can to restore these unconscionable cuts."

"The bill sets national nutrition standards that will finally get all of the junk food infiltration in our classrooms and our cafeterias out the door," says Representative Rosa DeLauro of Connecticut. Over 31 million children are fed by the school lunch program daily, so the Act could make inroads in reducing childhood obesity.

[Editor's Note: To read the Act, visit−m2=m&|/home/LegislativeData.php|.]


"Court: FDA can regulate e-cigs as tobacco products"
Associated Press (12/07/2010) Michael Felberbaum

On December 7, 2010, the U.S. Court of Appeals for the District of Columbia Circuit upheld a lower court ruling and decided that electronic cigarettes should be regulated as tobacco products rather than as drug delivery devices. Electronic cigarettes, or e-cigarettes, are devices that heat liquid nicotine and create a vapor that the user inhales.

Manufacturers claim e-cigarettes help users quit smoking by providing nicotine and giving the user the "feel" of smoking. Matt Salmon, CEO of Sottera, Inc., an e-cigarette marketer, said, "This is plain and simple an alternative to smoking for committed, longtime smokers."

The Food and Drug Administration (FDA) argued e-cigarettes should be regulated as drug delivery devices, like nicotine patches or nicotine replacement gum; manufacturers of these drug delivery devices must conduct clinical trials to prove that they are safe and effective as a stop-smoking aid. "There is no scientific evidence that e-cigarettes are effective smoking cessation devices and, until they undergo rigorous evaluation by the Food and Drug Administration, they should be pulled from the marketplace," said Nancy Brown, CEO of the American Heart Association.

The FDA also argued e-cigarettes contain dangerous chemicals and may be marketed to children.

[Editor's Note: To read the opinion, visit]


"Senate acts on food safety"
Wall Street Journal (12/1/2010) Alicia Mundy and Bill Tomson

On November 30, 2010, the U.S. Senate passed the Food Safety Modenrization Act, which, if passed by the U.S. House of Representatives and signed by President Obama, would empower the Food and Drug Administration (FDA) to order food recalls, have more authority over tracking produce shipments, and mandate that food manufacturers create food safety plans.

Many food safety advocates hope the new legislation will increase food safety by bringing faster contamination response and prevent foodborne disease outbreaks. "The new law requires a fundamental shift in the [FDA's] food-safety program, emphasizing prevention instead of waiting until people become sick or die," says Chris Waldrop, director of the Consumer Federation of America.

Small farmers, however, are worried the new legislation would force them out of the market and reduce consumers' options for local produce. Freedom Work, an anti-tax group, speculates, "it will ultimately be up to federal bureaucrats whether or not your home garden will be regulated if you sell any fruits or vegetables at your local farmers' market."

An amendment added late in the process, however, ensures that small farms and food processors earning less than $500,000 per year in sales will be exempt from the FDA regulations if they sell their goods directly to consumers and are within 275 miles of their consumers. The FDA would be able to waive the exemption in emergencies.

The bill, which has bi-partisan support in the wake of several foodborne disease outbreaks, must be passed by the House of Representatives before the end of the current session.

[Editor's Note: To read the bill, visit]


"Wildlife trade brings tarantulas, pythons, cobras"
South Florida Sun-Sentinel (11/28/2010) David Fleshler and Dana Williams

The federal government allows exotic animal imports to the United States with very little shipment inspection and disease screening. A November 2010 Government Accountability Office report found "gaps that could allow the introduction of diseases into the United States," but Congress' recent effort to restrict imports to only those classified as harmless, the Nonnative Wildlife Invasion Prevention Act, has been thwarted by wildlife owners and the pet industry.

Since 1940, nearly 60 percent of infectious diseases newly appearing in humans originated from animals and made the jump to people through live-animal markets; these diseases include HIV, Bartonella henselae, Monkeypox, and severe acute respiratory syndrome (SARS). After rodents imported from Ghana led to a monkeypox outbreak in humans in 2003, the Centers for Disease Control and Prevention (CDC) banned the importation of rodents from Africa. Dr. Nina Marano, chief of the CDC's Geographic Medicine and Health Promotion Branch, noted however, "the pet industry is very fluid. When one door closes, they find another one to open."
The U.S. Fish and Wildlife Service argues it would be difficult to screen all animals entering the country for disease. "Our inspectors don't have the veterinary skills to determine if an animal is ill or may be a disease vector," said Edward Grace, deputy chief of law enforcement for the agency.

Peter Daszak, president of EcoHealth Alliance, a group that researches wildlife diseases, added, "[I]f you bring in a shipment of rodents from Indonesia, we don't test them for anything. They don't want anything to stop the pet trade, and I understand that. There's a lot of money and a lot of jobs."
While congressional restrictions have stalled, the wildlife service and several states are considering restrictive measures of their own, such as bans on amphibious trades and several reptile species.

[Editor's Note: To read the Non Wildlife Invasion Prevention Act, visit|/home/LegislativeData.php?n=BSS;c=111|.]

_____________________BRIEFLY NOTED______________________

California: Fast food meals with toys must meet nutritional standards
"San Francisco overrides mayoral veto, bans Happy Meals with toys"
CNN (11/23/2010) Michael Martinez

California: City may require businesses selling tobacco to pay $450 per year
"San Jose council to vote on proposed annual fee for those selling tobacco"
San Jose Mercury News (12/03/2010) Mary Gottschalk

Florida: County limits hours at pain clinics, prohibits "cash only" transaction requirements
"Florida's Orange County moves to control sham pain clinics"
Reuters (12/07/2010) Barbara Liston

Georgia: County requires warning sign near drinks with alcohol and caffeine
"National stir over 'wide awake drunk'"
Atlanta Journal-Constitution (11/23/2010) Craig Schneider and Katie Leslie

New York: Local mental retardation authorities now have case-management responsibility
"Shift to state system on care management draws fire"
New York Times (11/27/2010) Emily Ramshaw

Oregon: Oregon finds hair treatment contains potentially harmful levels of formaldehyde
"FDA investigates Brazilian Blowout at Oregon Rep. Earl Blumenauer's request"
Oregonian (12/01/2010) Katy Muldoon

Pennsylvania: City council raises penalty to $250 for selling tobacco to minors
"Council hikes fine for youth cig sales"
Philadelphia News Daily (12/03/2010) Catherine Lucey

Pennsylvania: Burden on buyer to discover whether home was used as drug lab
"Couple's first home is a meth house"
CNN (11/29/2010) Sarah Hoye

Texas: Bill would require HIV test for routine blood draws
"Proposed legislation calls for routine HIV screening"
Houston Chronicle (12/02/2010) Todd Ackerman

Virginia: Public schools required to establish policies for identifying and monitoring concussions
"New Va. Law requires guidelines on concussions
Richmond Times-Dispatch (11/26/2010) Jim Nolan

National: Manufacturers must remove caffeine from beer
"Beer with kick is caught in FDA's net"
New York Times (11/28/2010) Katie Zezima

National: Groups argue menthol cigarette ban may lead to crime-ridden black market
"Blacks divided over possible menthol ban"
Los Angeles Times (11/24/2010) Dahleen Glanton,0,3588479.story

National: Dannon prohibited from making some yogurt health claims in settlement with FTC
"Dannon to pay $21 million, drop some yogurt health claims"
Associated Press (12/15/2010),0,2624990.story

National: Advisory panel recommends weight-loss device be more widely available
"FDA committee votes to recommend that the Lap-Band be available to those with BMIs between 30 and 35"
Washington Post (12/03/2010) Rob Stein

National: DEA classifies five chemicals used to make synthetic marijuana as illegal drugs
"U.S. cracks down on fake pot as public health hazard"
Associated Press (11/24/2010)

National: President orders review of standards to protect human subjects
"U.S. orders vast review of bioethics"
Associated Press (11/24/2010)

National: Consumer Product Safety Commission bans production and sale of drop side cribs
"U.S. to ban drop side cribs"
CNN (11/24/2010) Parija Kavilanz

China: Courts reject claims filed by patients infected with HIV at government-run hospitals
"Justice tough to find for Chinese who got HIV/AIDS through tainted blood"
Lost Angeles Times (11/27/2010) Barbara Demick,0,2024788.story

___________________JOURNAL ARTICLES____________________

"A comparison of four international surveys of tobacco dependence treatment provision: implications for monitoring the Framework Convention on Tobacco Control"
Addiction (12/2010) Asaf Bitton, et al.

"Non-medical use and diversion of psychotropic prescription drugs in North America: a review of sourcing routes and control measures"
Addiction (12/2010) Benedikt Fischer, Meagan Bibby, and Martin Bouchard

"Potential consequences of replacing a retail alcohol monopoly with a private licence system: results from Sweden"
Addiction (12/2010) Thor Norström, et al.

"Validation of the surveillance and reporting of central line-associated bloodstream infection data to a state health department"
American Journal of Infection Control (12/2010) Lauren A. Backman, Richard Melchreit, and Richard Rodriguez (registration required)

"Effectiveness of policies maintaining or restricting days of alcohol sales on excessive alcohol consumption and related harms"
American Journal of Preventive Medicine (12/2010) Jennifer Cook Middleton, et al. (subscription required)

"Comparative analysis of national legislation in support of the revised international health regulations: potential models for implementation in the United States"
American Journal of Public Health (12/2010) Rebecca Katz and Sarah Kornblet

"Consumer awareness of fast-food calorie information in New York City after implementation of a menu labeling regulation"
American Journal of Public Health (12/2010) Tamara Dumanovsky, et al.

"Developing national standards for public health emergency preparedness with a limited evidence base"
Disaster Medicine and Public Health Preparedness (12/2010) Christopher Nelson, et al. (subscription required)

"A recent VA rules change and the traumatic event requirement in PTSD"
Journal of the American Medical Association (12/01/2010) Roger K. Pitman

"The United States' engagement in global tobacco control: proposals for comprehensive funding and strategies"
Journal of the American Medical Association (12/15/2010) Thomas J. Bollyky and Lawrence O. Gostin

"Implementation of California state school competitive food and beverage standards"
Journal of School Health (12/2010) Sarah E. Samuels, et al.

"Tackling the booming trade in counterfeit drugs"
The Lancet (11/20/2010) Nayanah Siva

___________________COURT OPINIONS____________________

Alaska: Challenge to constitutionality of state seatbelt law struck down
Chase v. State of Alaska
Court of Appeals of Alaska
Case No. 2283, Court of Appeals No. A-10433
Decided December 3, 2010
Opinion by Judge Mannheimer

Louisiana: 1975 ordinance requiring the Sunday closure of liquor retailers upheld
Silver Dollar Liquor, Inc. v. Red River Parish Police Jury
Court of Appeals of Louisiana, Second Circuit
Case No. 45,637-CA.
Decided November 17, 2010
Opinion by Judge Caraway

Ohio: Public library's authority to institute a footwear policy to protect health and safety upheld
Neinast v. Board of Trustees of The Fairfield County District Library
Court of Appeals of Ohio, Fifth District, Fairfield County
Case No. 2010 CA 011.
Filed November 15, 2010
Opinion by Judge Farmer

Tennessee: Beer board's grant of exemptions from zoning ordinances found to be discriminatory
Boyd's Creek Enterprises, LLC v. Sevier County, Tennessee
Court of Appeals of Tennessee, at Knoxville
Case No. E2009-00702-COA-R3-CV.
Filed November 18, 2010
Opinion by Judge Farmer

Federal: Remedial order for correctional facilities to ensure sanitation and food safety issued
Feliciano v. Burset
U.S. District Court for the District of Puerto Rico
Case Civil No. 79-4(PG).
Decided December 2, 2010.
Opinion by Judge Perez-Gimenez

Federal: Motion to dismiss challenge to federal health reform law granted
Liberty University, Inc. v. Geithner
U.S. District Court for the Western District of Virginia, Lynchburg Division
Case No. 6:10-cv-00015-nkm
Decided November 30, 2010
Opinion by Judge Moon

Federal: FCC's permanent reassignment of suicide prevention hotlines to SAMHSA struck down
Kristin Brooks Hope Center v. Federal Communications Commission
U.S. Court of Appeals, District of Columbia Circuit
Case No. 09-1310
Decided December 3, 2010
Opinion by Senior Circuit Judge Williams

__________PHL NEWS QUOTATION OF THE MONTH___________

"I don't do normal animals. I don't like anything furry. I have two leopard geckos, a bearded dragon, a black and white Argentine tegu - such a sweetie. Think of it as a scaly puppy dog."

-- Tyler Cowan, exotic pet owner.


The CDC Public Health Law News is published the third Thursday of each month except holidays, plus special issues when warranted. It is distributed only in electronic form and is free of charge. News content is selected solely on the basis of newsworthiness and potential interest to readers. CDC and DHHS assume no responsibility for the factual accuracy of the items presented. The selection, omission, or content of items does not imply any endorsement or other position taken by CDC or DHHS. Opinions expressed by the original authors of items included in the News, or persons quoted therein, are strictly their own and are in no way meant to represent the opinion or views of CDC or DHHS. References to products, trade names, publications, news sources, and non-CDC Websites are provided solely for informational purposes and do not imply endorsement by CDC or DHHS. Legal cases are presented for educational purposes only, and are not meant to represent the current state of the law. The findings and conclusions reported in this document are those of the author(s) and do not necessarily represent the views of CDC. The News is in the public domain and may be freely forwarded and reproduced without permission. The original news sources and the CDC Public Health Law News should be cited as sources. Readers should contact the cited news sources for the full text of the articles.
For past issues or to subscribe to the CDC Public Health Law News, visit For help with subscriptions or to make comments or suggestions, send an email to Lindsay Culp at
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.

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