January 2011 - CDC Public Health Law News
Thursday, January 20, 2011
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
***USDA National School Lunch and Breakfast Nutrition Standards. On January 13, 2011, the U.S. Department of Agriculture (USDA) released a plan to revise the meal patterns and nutrition requirements for the National School Lunch Program and the School Breakfast Program. The proposed rule would increase the availability of fruits, vegetables, whole grains, and fat-free and low-fat milk in school meals. The rule would also reduce the levels of sodium and saturated fat in meals and help meet the nutritional needs of children within their calorie requirements. For more information, including information on the public comment period, please visit http://www.regulations.gov/#!home.
*** Tobacco Control Legal Update. The Tobacco Control Legal Consortium has released The Consortium Bulletin, a new monthly electronic news feature. The January 2011 edition features a series of short reference guides on regulating tobacco use, a white paper on regulating smoking in cars carrying children, and information on recent tobacco litigation. To read the Bulletin, visit http://campaign.r20.constantcontact.com/render?llr=kgavj6dab&v=001_7pdtf0NbxO25e035S1jMiOuxu_53nePlYBOm6H1GK6wzKmBFS6JHHGG-p3GJKC8RU51HQDKPogKcAg7G6cpWLccB8DNSPr2.
***Traffic Safety State Legislative Action. The National Conference of State Legislatures has published a report summarizing bills regarding traffic safety issues that were considered by state legislatures during the 2010 legislative sessions. To access the report, visit http://www.ncsl.org/default.aspx?TabId=21947.
*** APHA Call for Abstracts. Please submit your abstract for the 139th American Public Health Association Annual Meeting, October 29- November 2, 2011. The Health Law Special Interest Group (SPIG) will be accepting abstracts on a variety of public health related topics until February 8, 2011. Please see the full call at http://apha.confex.com/apha/139am/hlf.htm. You may contact Heather A. McCabe at email@example.com or Kerri Lowrey at firstname.lastname@example.org with questions.
***ASLME Call for Papers. The American Society of Law, Medicine & Ethics' Journal of Law, Medicine & Ethics is seeking scholarly commentary on the public health impact of federal health reform for an issue entitled "Public Health Reform: Patient Protection and Affordable Care Act Implications for the Public's Health." For more information, visit http://newsmanager.commpartners.com/aslme/issues/2011-01-11/7.html.
*** Public Health Emergency Legal Preparedness Workshop (02/22/2011). The National Association of County and City Health Officials (NACCHO), the Association of State and Territorial Health Officials (ASTHO), and the CDC Public Health Law Program are co-sponsoring the workshop "High-Priority Tools for Public Health Emergency Legal Preparedness," on February 22, 2011, as part of the 2011 Public Health Preparedness Summit in Atlanta. This interactive workshop will feature tools that local, state, and Tribal public health practitioners can use to improve preparedness using their public health laws. Several new tools will be highlighted, including "Legal Tools for Tuberculosis Control." To register, visit http://www.phprep.org/2011/.
*** Free 2-hour CLE at the ABA Midyear Meeting (02/12/2011). The American Bar Association's (ABA's) Special Committee on Disaster Response and Preparedness and the CDC Public Health Law Program are co-sponsoring a special program, "The Role of Law and Courts in Public Health Emergency Response," at the ABA Midyear Meeting on February 12, 2011, from 2-4 PM at the Marriott Marquis in Atlanta. Legal experts representing emergency preparedness in both public health and the judiciary will discuss a number of topics including balancing federal, state, and local power and responsibilities. The program is free and open to all ABA attendees and any interested attorneys and court administrators. Two hours of CLE credit is offered to attorney participants. Please contact Jin Kim, ABA, at email@example.com or Stacie Kershner, CDC, at firstname.lastname@example.org for more information.
1. California: State's first report on hospital infections seen as incomplete
States and Localities
2. New York: Judge rejects city law on antismoking posters
3. Firms told to divulge all changes to tobacco
4. New law calls for government, public attention to Alzheimer's crisis
5. The implants loophole
6. United Kingdom: "Great swapathon" voucher bid to boost healthy living
Arizona school recess · Arkansas school bus signage · California menu labeling · Fast food ban · Florida chocolate milk ban · Montana DUI on a horse · National Ground Zero volunteers · Cocaine smuggling · Bone marrow donation · Recalled diet supplement · PTSD · Hospital acquired infections · Toning shoes · Workplace breastfeeding · Food safety bill · End of life planning · Child Supper Program · Meal nutrition labels · Japan drug shortage · United Kingdom organ donation
Drug jail sanctions · Ireland anti-smoking laws · Motorcycle helmet use · Antitrust laws · Pre-exposure HIV prophylaxis · China and Big Tobacco · ACOs
Illinois underinsured motorist coverage · Michigan privacy of patient documents · Minnesota "light" cigarettes · New York municipal water contamination · Ohio mosquito abatement district enlargement · Pennsylvania mold in prison · Federal point of purchase warnings · Landfill toxicity
Quotation of the Month
Claude Arnold, Special Agent in Charge, U.S. Immigration and Customs Enforcement, Homeland Security Investigations, Los Angeles, California
"State's first report on hospital infections seen as incomplete"
Ventura County Star (01/04/2011) Tom Kisken
In 2008 California passed Nile's Law, requiring hospital-acquired infection data to be publicly released by January 1, 2011. The California Department of Public Health hopes the release of individual hospital data on several infections, including antibiotic-resistant Methicillin-resistant Staphylococcus Aureus (MRSA), will help protect patients and increase hospital safety.
"The goal is not necessarily to scare people but to make them more aware and to make hospitals more aware that they might be having more infections than another hospital. The goal should be zero infections. The further away (hospitals) are from zero infections, the more concerns you should have," said director of the Consumers Union's Safe Patient Project, Lisa McGiffert.
According to California officials, one in 20 patients is affected by hospital-acquired infections each year - about 20,000 infections annually with roughly 12,000 of these resulting in the patient's death. Bloodstream infections account for about 3,680 deaths a year and are the primary focus of the state's new report.
Some officials, however, contend the data is flawed because there was no uniform method for data collection, possibly not indicating which hospitals pose greater risks of infections. Some gaps in data, such as hospitals reporting no MRSA infections, are implausible to those in the field such as Cindy DeMotte, vice president of quality at Community Memorial Hospital in Ventura. "This wide variation has to be due either to reporting or surveillance issues: how vigilant you are out there looking at patient records and lab results. I don't think we're on the same page," she said.
According to the report, less than 70 percent of hospitals provided all required information, but many hospitals maintain their data were not recorded by the state. Kevin Reilly, chief deputy director of policy and programs for the state Public Health Department, said in the future all California hospitals will report their infection data to a web-based system which will be operated by the CDC, standardizing and minimizing current inconsistencies.
[Editor's Note: To read the California law, visit http://www.cdph.ca.gov/services/boards/Documents/SB1058chaptered09_25_08.pdf.]
"Judge rejects city law on antismoking posters"
New York Times (12/29/2010) Anahad O'Connor
Federal Judge Jed S. Rackoff of the United States District Court, Southern District of New York, struck down a New York City law requiring all convenience stores and bodegas to display images of diseased lungs, teeth, and brains in a bid to discourage customers from purchasing cigarettes. The ruling halts the city's plan to have the graphic placards displayed beside cash registers in more than 11,000 businesses citywide.
In his 13-page ruling, Judge Rackoff said the city had violated federal law because only the federal government has the authority to regulate cigarette advertisements and warnings. "Even merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs," he wrote.
The judge noted that health officials were justified in viewing smoking as a "public health threat" because smoking is the leading cause of preventable death in New York City and the U.S. at large. "Within New York City, roughly 7,500 people die from smoking annually- more than from AIDS, homicide and suicide combined," he wrote.
Advocates for the convenience stores are "very pleased" with the ruling, said Floyd Abrams, counsel for the convenience store association. He said the decision "will allow retail stores in New York to be freed of the obligation to put signs up urging customers not to buy their lawful products."
The New York City Department of Health, however, is disappointed in the decision. In a public statement the Department defended the signs saying, "The city's warning signs portray completely factual messages about the dangers of smoking. They do so at the exact moment when smokers are making decisions about purchasing tobacco. We believe it is the city's responsibility to help smokers quit and to protect children from the harmful effects of tobacco smoke."
[Editor's Note: To read the decision, visit http://www.courthousenews.com/2010/12/30/tobacco.pdf].
"Firms told to divulge all changes to tobacco"
New York Times (01/06/2011) Duff Wilson
For the first time the tobacco industry will be required to disclose any changes to their products, according to new rules promulgated by the Food and Drug Administration (FDA). The rules, part of extensive changes under the tobacco control law signed by President Obama in June 2009, also enumerate how tobacco firms must seek permission to market new products.
Dr. Lawrence R. Deyton, director of the Center for Tobacco Products of the FDA, said, "up to now, tobacco products have been the only mass-consumed products for which users do not know what they are consuming."
Under the new rules, any tobacco product modified after February 15, 2007, when the legislation was introduced to Congress, must be reviewed by the FDA. While companies may apply for fast track review of new products that are "substantially equivalent" to earlier products, the disclosures by companies are expected by March 22, 2011. Furthermore, products changed after March 22, 2011, cannot be sold without FDA permission and the agency may remove some products from the market which were introduced between February 15, 2007 and March 22, 2011.
"As a result of the bright spotlight of FDA scrutiny, tobacco companies will no longer be able to secretly manipulate their products in ways that make them more addictive and appealing," said Mathew L. Myers, president of a Washington advocacy group, Campaign for Tobacco-Free Kids.
The maker of Marlboro cigarettes, Altria, had expected the changes and is reviewing them. David Howard, a spokesman for R.J. Reynolds, the second largest tobacco firm, said the company's products are all identical or substantially similar to other products and the company is applying for fast track designations.
[Editor's Note: To read the rules, visit http://www.fda.gov/TobaccoProducts/GuidanceComplianceRegulatoryInformation/ucm191982.htm.]
"New law calls for government, public attention to Alzheimer's crisis"
Internal Medicine News (01/06/2011) Michele G. Sullivan
On January 4, 2011, President Obama signed the National Alzheimer's Project Act into law.
The law, passed by unanimous vote in the House and Senate, creates the Office of the National Alzheimer's Project, a new department within the Department of Health and Human Services (HHS). The presidentially-appointed director will work with an advisory council "to promote research efforts into mechanisms to slow and stop the development of Alzheimer's for those at risk of developing the disease."
The new advisory council, comprised of eight federal appointees, including the Surgeon General, will assess how to address Alzheimer's in several different areas, such as patient care, research, advocacy, and caregiver support. Unlike similar laws, however, the Alzheimer's council will be required to provide an annually updated Alzheimer's response plan.
"Some [laws such as this] have mattered very little and some have made very large impacts," said Robert Egge, vice president of public policy and advocacy for the Alzheimer's Association. "We think all the elements are here to make this a meaningful piece of legislation. One very important element is the requirement of annual reporting to Congress. This will create an ongoing dialogue we have never had about Alzheimer's disease, what we are doing about it, and how we are progressing."
"I applaud Congress for passing the National Alzheimer's Project Act with bipartisan support. We . . . recognize the devastating impact Alzheimer's has on America's seniors, families and our health care system. The passage of this act will help to ensure we confront this challenge with an aggressive and coordinated national strategy," said HHS Secretary Kathleen Sebelius.
[Editor's Note: To read the law, visit http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.4689:.]
"The implants loophole"
New York Times (12/16/2010) Barry Meier
While new drugs must undergo rigorous clinical trials before receiving Food and Drug Administration (FDA) marketing approval, new implants that are substantially similar to devices already approved may be sold without such testing. The process allows manufacturers to make small improvements rapidly. Many experts say it also creates a loophole by allowing producers to include aspects of unapproved devices into existing designs.
"You are basically testing these devices in an uncontrolled way on a large number of people," said Dr. Sidney M. Wolfe, director of Public Citizen's Health Research Group.
For patients receiving untested augmented devices, the consequences of device failure can be grave. Betty Jane Haak, 74, received a hip with a redesigned hip cup that had been approved because of the similar design, the A.S.R. cup designed by DePuy Orthopaedics, a division of Johnson and Johnson, but the hip is faulty and many recipients need replacements. Though her hip cup is painful and has highly elevated her blood colbalt levels, Ms. Haak is medically unable to receive a replacement due to a heart attack she suffered after the initial implant. Ms. Haak summarized her situation, "Do I risk a heart attack, or do I risk poisoning myself?"
Current rules do not require FDA notification when producers bundle together components from approved and unapproved devices, said Mark Melkerson, an agency official. An internal agency review recently released, however, found problems with the process and the FDA is proposing changes.
" 'Great swapathon' voucher bid to boost healthy living"
BBC News (01/01/2011)
The United Kingdom is implementing a new program to encourage healthy living by offering £250 million ($396.85 million) in vouchers for food, nutritional advice and discounted activities. The vouchers are part of the government's health-promoting initiative Changes 4 Life's "Great Swapathon," and are being paid for by the food and fitness industries as part of the government's plan to involve business in healthy living promotion.
Participants can receive £50 ($79.37) vouchers by filling out a questionnaire on the Great Swapathon website, a government website encouraging visitors to swap unhealthy habits for healthier choices.
While some food policy experts have voiced concerns about involving large corporations in public health campaigns, four million £50 voucher booklets will be offered through the News of the World and Asada stores and an additional one million will be available from local businesses participating in Change 4 Life.
"I'm nervous if big companies are put in charge of public health- that's not to say they can't be good for public health- but if they are centrally involved in delivering it. I think that history suggests we need to set frameworks, level playing fields in which they then operate. I don't like them controlling it," said Tim Lang, professor of food policy at City University.
U.K. Health Secretary Andrew Lansley remains hopeful for program success saying, "It's a great example of how government, the media, industry and retailers can work together to help families to be helpful. The healthy option isn't always the cheapest option so it's a really important step to be able to offer £50 off healthier foods, drinks and activities."
Arizona: Law required evaluation of recess policies, most schools maintain status quo
"Arizona schools' recess policies examined"
Arizona Central (01/02/2011) Hayley Ringle
Arkansas: New signs required on school busses too wordy, drivers unable to read
"School bus safety law needs tweaking, education officials say"
Arkansas News (01/01/2011) John Lyon
California: State law requires calorie counts displayed at restaurants, federal law may supersede
"Calorie counts appearing on fast-food menus in California"
Los Angeles Times (12/30/2010) Sharon Bernstein
California: Radical food policy bans new fast-food restaurants in South Los Angeles
"In South Los Angeles, new fast-food spots get a 'No, Thanks'"
New York Times (01/15/2011) Jennifer Medina
Florida: Board of Ed.'s chocolate milk ban may sour under new Agriculture Commissioner
"Incoming state agriculture chief seeks to table chocolate-milk ban in schools"
Miami Herald (12/30/2010) Denise-Marie Balona
Montana: Not illegal to ride a horse while intoxicated in Montana
"Montana ad raises issue: can you be charged with DUI on a horse?"
USA Today (01/17/2011) Douglas Stanglin
National: Ground Zero volunteers covered under new health bill
"Congress passes Ground Zero health bill"
The Journal News (12/32/2010) Jorge Fitx-Gibbon and Candice Ferrette
National: Christmas holiday not all it was cracked up to be for Easter egg cocaine smuggler
"Feds: Smuggler caught hiding cocaine in Easter eggs before Christmas"
CNN (12/27/2010) Michael Martinez
National: Company uses models to induce public into giving DNA samples, no informed consent
"Flirty models were hired in bid to find bone marrow"
New York Times (12/16/2010) Abby Goodnough
National: Recalled diet supplement linked to several heart attacks and one death
"Fruta Planta diet product recalled after FDA warning"
Orlando Sentinel (01/03/2011) Linda Shrieves
National: Veterans Affairs implements new program to help aging veterans suffering from PTSD
"Helping the brave fight their final battle"
Chicago Tribune (12/28/2010) Judith Graham
National: Hospitals must track and report bloodstream infections under Affordable Care Act
"Hospitals will have to report infections"
United Press International (12/27/2010)
National: Suit claims these shoes ain't made for walkin', despite ads' claims
"New Balance sued over toning-shoe ads"
Boston Globe (01/05/2011) Jenn Abelson
National: 'Appropriate workplace accommodations' for federal employees who are nursing
"Obama orders breastfeeding policy for federal workplace"
Washington Post (12/22/2010) Ed O'Keefe
National: FDA has more regulatory power under new food safety bill
"Obama signs food safety bill"
National: Elderly Black patients much less likely to have end of life planning
"Study: Blacks less likely to have living wills, DNR orders
USA Today (01/07/2011) Janice Lloyd
National: Federal law to provide more than 140,000 children with dinner
"USDA announces expanded child supper program"
Reuters (01/14/2011) Wendell Marsh and Jerry Norton
National: Major cuts of meat required to advertise nutrition information on packaging
"USDA requires nutrition labels for 40 cuts of meat"
Los Angeles Times (12/30/2010) P.J. Huffstutter
Japan: Government raises tax on cigarettes, Pfizer misses chance to supply quitters' drug
"In Japan, Pfizer is short of drugs to help smokers"
New York Times (01/03/2011) Hiroko Tabuchi
United Kingdom: Drivers will be asked about organ donation, hope to raise donor numbers
"Organ donation bid to target new drivers"
BBC News (12/31/2010)
"Impact of jail sanctions during drug court participation upon substance abuse treatment completion"
Addiction 01/2011 Randall T. Brown, Paul A. Allison, and F. Javier Nieto
"The road to smoke-free legislation in Ireland"
Addiction 01/2011 Laura M. Currie and Luke Clancy
"Findings on youth injuries bolster case for helmet use by all motorcycle riders"
Journal of the American Medical Association 12/22/2010 Mike Mitka
Journal of the American Medical Association 1/12/2011 Mike Mitka
"Ethical allocation of pre-exposure HIV prophylaxis"
Journal of the American Medical Association 1/12/2011 Lawrence O. Gostin and Susan C. Kim
"China's unhealthy relations with big tobacco"
The Lancet 01/15/2011
"ACOs and the enforcement of fraud, abuse, and antitrust laws"
New England Journal of Medicine 01/13/2011 Robert F. Leibenluft
Illinois: Municipality exempt from providing underinsured motorist insurance coverage
Pritza v. Village of Lansing
Appellate Court of Illinois, First District, Fifth Division
Case No. 1-10-0100
Decided November 24, 2010
Opinion by Justice Toomin
Michigan: Motion to compel discovery of peer review and patient documents denied
Johnson v. Detroit Medical Center, et al.
Court of Appeals of Michigan
Case No. 293304
Filed December 21, 2010
Opinion per curiam
Minnesota: Action over false advertising, fraud, and deception over "light" cigarettes remanded
Curtis v. Altria Group, et al.
Court of Appeals of Minnesota
Case No. A10-215
Filed December 28, 2010
Opinion by Judge Stoneburner
New York: Summary judgment denied in county tort action over PCE contamination in water
Suffolk County Water Authority v. Dow Chemical Company, et al.
Supreme Court, Suffolk County
Case No. 24852-2010
Decided December 17, 2010
Opinion by Judge Pines
Ohio: Enlargement of existing sanitary district denied without showing benefit to public health
In re: the Barberton-Norton Mosquito Abatement District
Court of Appeals of Ohio, Ninth District, Summit County
C.A. No. 25126
Dated December 30, 2010
Opinion by Presiding Judge Carr
Pennsylvania: Appeal by corrections officers alleging "toxic mold" within prison dismissed
Ferraro, et al. v. County of Northampton, et al.
Commonwealth Court of Pennsylvania
Case No. 1496 C.D. 2010
Filed January 5, 2011
Memorandum opinion by Judge Pellegrini
Federal: Regulation requiring point of purchase smoking cessation signage invalid
23-34 94th St. Grocery Corp, et al. v. New York City Board of Health, et al.
U.S. District Court for the Southern District of New York
Case No. 10 Civ. 4392 (JSR)
Decided December 29, 2010
Opinion by Judge Rakoff
Federal: Summary judgment in case over TCE/PCE contamination from landfill denied
National Resources Defense Council, Inc. v. County of Dickson, Tennessee
U.S. District Court for the Middle District of Tennessee, Nashville Division
Case No. 3:08-0229
Decided January 3, 2011
Opinion by Judge Campbell
__________PHL NEWS QUOTATION OF THE MONTH___________
"Obviously two days before Christmas, this defendant didn't expect his trip would end with federal officers conducting an Easter egg hunt."
-- Claude Arnold, Special Agent in Charge, U.S. Immigration and Customs Enforcement, Homeland Security Investigations, Los Angeles, California, on a drug smuggler who camouflaged cocaine as Easter candy.
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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.