March 2011 - CDC Public Health Law News
Thursday, March 17, 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
*** Tobacco Control Legal Update. The Tobacco Control Legal Consortium has released The Consortium Bulletin, a monthly electronic news feature. The March 2011 edition features a report on cigarette tax evasion in New York and short guides to regulating smoking in multi-unit housing and tobacco price control strategies. To read the Bulletin, visit
*** Job Opening: National Health Law Program. The National Health Law Program (NHeLP) has a position available for a dynamic full-time staff attorney for our Los Angeles office. The position will involve a range of advocacy on Medicaid, other low-income health care programs, health reform implementation, civil and disability rights (including health disparities and language access). For more information, visit http://www.healthlaw.org/index.php?option=com_content&view=article&id=108&Itemid=207.
***Call for Proposals. The Robert Wood Johnson Foundation's Public Health Law Research program has announced a call for proposals for studies aimed at building the evidence base for strengthening the use of regulatory, legal, and policy solutions to improve public health. The deadline for submitting a preliminary proposal is April 20, 2011. For more information, visit http://publichealthlawresearch.org/funding-opportunities-source/public-health-law-research/funding-opportunity/
*** Obesity Prevention for City Attorneys. The National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN) has developed a factsheet that explains how advocates can work with city attorneys and other government lawyers to promote new policies addressing nutrition and physical activity. For more information, visit http://www.nplanonline.org/childhood-obesity/products/city-attorney.
***Preparedness and Response to a Rural Mass Casualty Incident. The Institute of Medicine has released a summary from a workshop held by the IOM's Forum on Medical and Public Health Preparedness for Catastrophic Events to examine the current capabilities of emergency response systems and the future opportunities to improve mass casualty response in rural communities. For more information, visit http://books.nap.edu/catalog.php?record_id=13070.
*** Healthier Foods for Blighted Communities Workshop. On March 24, 2011, Public Health Law and Policy will present a webinar on attracting grocery stores and other healthy food outlets to distressed neighborhoods. The webinar will focus on using public finance tools to improve food retail offerings in underserved areas and the steps to getting involved with redevelopment. For more information, visit https://rwjf.webex.com/mw0306lb/mywebex/default.do?nomenu=true&siteurl=rwjf&service=6&main_url=https%3A%2F%2Frwjf.webex.com%2Fec0605lb%2Feventcenter%2Fevent%2
1. Justices reject suit faulting a vaccine
States and Localities
2. Florida: Fla. ruling big tobacco won comes back to bite it
3. Maryland: End of mercury thermometers is near
4. New York: Lawsuit seeks to erase bike lane in New York City
5. House votes to help small businesses comply with health bill, but relief is held up
6. Tattoos as Makeup? Read the fine print
Alabama bath salts · Arizona welfare drug testing · Spice marijuana · California shark fin ban · Colorado naturopaths · Florida illegally dispensed drugs · Prescription drug raids · Iowa formula lawsuit · New York homegrown tobacco · North Carolina midwives · National health law suit · Bone marrow sales · DEA spice marijuana ban · Weight loss hormone · Untested cold medicine · Health care ruling stay · Tobacco advertising · Mexico childhood obesity
Sweden alcohol interlock · Ignition interlocks · Outdoor tobacco advertising · Food labeling · Ignition interlock recommendations · State attorneys general obesity policy · Navy shipboard cigarette sales · Health equity · Arizona smoking ban · Direct-to-consumer advertising · Guardianship · Food labeling claims · Tribal informed consent · Nurse practitioner scope of practice · Affordable Care Act · Constitutional challenges to Affordable Care Act · Human milk internet sales · Tobacco regulation · Tax-exempt hospitals
Dog biting ordinance · Herpes injuries · Lead based paint · Child support and insurance · Toxic tort consultants · Food safety regulations · Medical marijuana · National Childhood Vaccine Injury Act · Hypertension class action · Chromium exposure
Quotation of the Month
Kinson S. Wong, owner of the R&G Lounge, San Francisco, California
"Justices reject suit faulting a vaccine"
New York Times (02/22/2011) Adam Liptak
A Supreme Court decision released February 22, 2011, holds that plaintiffs alleging injury by vaccines that were improperly designed must rely solely on the federal compensation system implemented by Congress in 1986.
The suit, brought on behalf of Hannah Brusewitz, alleged the diphtheria-tetanus-pertussis (DTP) vaccine Hannah received caused avoidable injuries and the manufacturer, Wyeth, now a part of Pfizer, could have manufactured the drug differently to avoid injury.
The Brusewitz family lost their petition under the compensation program because they did not prove the vaccine caused Hannah's injuries. The case then was moved to federal court, which ruled such claims were pre-empted by the 1986 law.
The issue before the Supreme Court was whether the 1986 law displaced normal injury suits under brought under state law. The case depended on whether a provision in the 1986 law bars ordinary law suits, "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings."
While Justice Antonin Scalia recognized, "Congress could have more tersely and more clearly pre-empted design-defect claims," he went on to write and explain his holding based on the meaning of the word "unavoidable." "If a manufacturer could be held liable for failure to use a different design, the word 'unavoidable' would do no work," he wrote. Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer and Samuel A. Alito, Jr., joined the majority opinion written by Justice Scalia.
Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote the dissent, saying she interpreted the word "unavoidable" differently and that Congress must "have intended a vaccine manufacturer to demonstrate in each civil action that the particular side effects of a vaccine's design were 'unavoidable.'"
Because of her work on the case as United States Solicitor General, Justice Elena Kagan recused herself from the case.
[Editor's note: To read the Supreme Court's opinion, please visit http://www.supremecourt.gov/opinions/10pdf/09-152.pdf.]
"Fla. ruling big tobacco won comes back to bite it"
Yahoo! News (02/18/2011) Curt Anderson
In 2006 the Florida Supreme Court threw out a $145 billion award against cigarette makers, but allowed about 8,000 individual members of the class action suit to pursue their own lawsuits and to use the jury findings from the original suit in their individual suits.
Allowing the plaintiffs to use the previous verdict means they no longer have to prove cigarette makers sold a defective and dangerous product, were negligent, hid the risks of smoking, and cigarettes cause illnesses such as lung cancer and heart disease. This leaves plaintiffs to prove they were addicted to smoking and could not quit or a smoker's death was caused by cigarettes.
So far the decision has resulted in more than $360 million in damage awards in about two dozen cases, with jurors siding with the plaintiffs in about 66 percent of the cases. Florida, the national leader in smoking-related lawsuits, has thousands more cases pending.
Tobacco companies insist the process is patently unfair. "We believe the trial courts have used trial plans that are so fundamentally unfair they violate due process and Florida law. Each case must be judged on its own facts," says Murray Garnick of Altria Client Services, which represents Altria Group Inc. subsidiary of Philip Morris USA.
Plaintiffs' attorney Steven J. Hammer, whose Ft. Lauderdale firm is representing hundreds of plaintiffs, says the playing field is fair because tobacco companies can no longer argue their products are not dangerous or addictive. "As a result," he says, "the whole story is being told: how they lied to the public, all for the almighty dollar."
[Editor's note: To read the Florida Supreme Court's 2006 opinion, visit: http://www.floridasupremecourt.org/decisions/2006/sc03-1856.pdf.]
"End of mercury thermometers is near"
Baltimore Sun (02/23/2011) Frank D. Roylance
Due to mercury's dangerous properties as a neurotoxin, Maryland banned the retail sale of mercury thermometers in 2002. Although 17 other states have since joined Maryland in banning mercury thermometers, many residents are oblivious to the bans, continuing to own and use the thermometers.
Maryland banned elemental mercury and mercury-added devices from state primary and secondary schools, except vocational schools, in 2001. On February 11, 2011, however, a mercury-filled scientific thermometer broke in a Baltimore elementary school. While no one was sickened or required decontamination, about 20 students and three teachers were checked by a hazardous materials team and 20 pairs of shoes were sent to a hazardous waste landfill, creating a costly cleanup for the school system.
"Due to elemental mercury's high toxicity, EPA (the Environmental Protection Agency) seeks to reduce potential mercury exposures to humans and the environment by reducing the overall use of mercury-containing products, including mercury-containing thermometers," says Dale Kemery, an EPA spokesman.
In conjunction with the EPA's efforts, the National Institute of Standards and Technology (NIST), located in Gaithersburg, Maryland, will halt all calibration services for mercury-in-glass thermometers manufacturers and users.
Greg Strouse, leader of NIST's Temperature and Humidity Group, anticipates few problems with phasing out mercury-in-glass thermometers; "They have become obsolete in various industries as we work to remove them from the measurement stream, and find alternative thermometers... mercury is usually the least accurate of all current thermometers in the marketplace. Digital manufacturers have worked extremely hard to create products that work to meet the needs of users, and usually better."
Over the past century, fewer manufacturers have been making mercury thermometers. Currently, only one U.S. manufacturer still makes them, Miller and Weber in Queens New York, and they are working "extremely hard" to help phase out mercury and sell more advanced technology.
[Editor's note: To read the Maryland law banning mercury thermometers, visit: http://mlis.state.md.us/2001rs/billfile/HB0075.htm.]
"Lawsuit seeks to erase bike lane in New York City"
New York Times (03/07/2011) Michael M. Grynbaum
New York City Mayor Michael Bloomberg's administration is drawing fire for its campaign to remake the city's streets after installing a controversial bike path along Prospect Park West in Brooklyn. Citizens have filed suit in Brooklyn Superior Court seeking removal of that particular bike lane, but the suit also criticizes other aspects of the transportation initiatives, including the pedestrian plazas in Times and Herald Squares and dozens of miles of bike lanes, formerly traffic lanes. The suit also accuses the Transportation Department of cherry picking statistics on safety improvements associated with the lane, collaborating with bicycle activists to quash community opposition, and misleading residents about the lane's benefits.
"Most residents feel that Prospect Park West is now a calmer, safer street. People feel calmer on it as pedestrians and, of course, as cyclists," says Brad Lander, a City Council member whose district overlaps part of the lane. Last year Lander conducted a survey finding that more than 70 percent of residents in Park Slope, Brooklyn supported the lane, though only about 50 percent of residents on Prospect Park West supported the lane.
Seth Solomonow, a spokesman for the Transportation Department, responded to an email about the suit's allegations saying, "This project has clearly delivered the benefits the community asked for. Speeding is down dramatically, crashes are down, injuries are down and bike ridership has doubled on weekends and tripled on weekdays."
"House votes to help small businesses comply with health bill, but relief is held up"
New York Times (03/03/2011) Robert Pear
The Patient Protection and Affordable Care Act calls for small businesses to file reports with the Internal Revenue Service (IRS), identifying which providers of goods or services the small business owners pay at least $600 in a year. Although the reporting requirements were supposed to help pay for expanding health insurance coverage under the new health care law, on March 3, 2011, the House voted to repeal the burdensome tax-reporting requirements.
Proponents say the reports would improve compliance by encouraging vendors of goods and services to pay more of the tax they owe, similar to individuals who are more likely to pay tax on dividends and interest if they know such income has been reported to the IRS by banks.
Small business owners argue they will face huge administrative burdens, requiring them to hire accountants and buy computer software to report routine purchases of office equipment, food, gasoline, lumber, and thousands of other items if the law is not repealed.
The Senate has not yet voted on the bill, and currently there is no agreement between the House and the Senate about how to pay for the loss of revenue, more than $20 billion over a decade.
[Editor's note: to read the House Bill, visit: http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.00004:]
"Tattoos as Makeup? Read the fine print"
New York Times (02/23/2011) Abby Ellin
Initially, micropigmentation or cosmetic tattooing was developed for people with alopecia, a condition that causes hair loss. As the field has grown, however, a variety of people are choosing cosmetic tattooing in lieu of daily makeup application, having their eyelids, lips, and eyebrows tattooed on as "permanent makeup." Although the Food and Drug Administration regulates the ink used for cosmetic tattooing, regulation of practitioners varies by state.
Though many people are pleased with their cosmetic tattoos, the results are not permanent and fade over time; many patients develop scars, blisters, keloids, and granulomas. Some patients report a burning sensation when undergoing an MRI. Other more serious reactions include infections like HIV, staph, strep, and hepatitis from dirty needles, and allergic reactions to the permanent dyes, says Dr. Jessica J. Krant, a dermatologist in Manhattan and assistant clinical professor of dermatology at the SUNY Downstate Medical Center in New York.
According to John Hashey, owner of John Hashey's Advanced School of Permanent Cosmetics in Oldsmar, Florida, "we see thousands of faces being destroyed by people who don't get trained properly. . . your average cosmetologist who cuts hair has to do 1,200 to 1,500 hours just to do that. How is that any more important than taking a needle to someone's eye?"
Even those calling for training and regulation cannot agree on how much cosmetic tattoo providers need. Mr. Hashey recommends 600 to 1,500 hours of training, while Elizabeth Finch-Howell, owner and founder of Derma International, a permanent cosmetic manufacturer in Kempton, Pa., believes 100 hours would be enough.
_____________________BRIEFLY NOTED______________________Alabama: Synthetic drug, hallucinogenic "bath salts," added to controlled substance list
"Alabama adds 'bath salts' to controlled substance list"
Associated Press (02/22/2011)
Arizona: Senate appropriations committee approves drug testing welfare beneficiaries
"Bill to test welfare beneficiaries for illegal drugs gets panel's ok"
Arizona Daily Star (02/23/2011)
Arizona: Spice, marijuana alternative, now felony offense with at least 4 years in prison
"Selling, making possessing marijuana alternative spice now a felony in Arizona"
East Valley Tribune (02/22/2011) Rebekah Zemansky
California: legislature proposes shark fin ban, angers Asian community
"Soup without fins? Some Californians simmer"
New York Times (03/05/2011) Patricia Leigh Brown
Colorado: No licensing for naturopathic doctors in Colorado, they practice anyway
"Colorado faces a fight over naturopathy"
New York Times (02/21/2011) Dan Frosch
Florida: Clinics accused of illegally dispensing prescription drugs raided
"Agents raid Florida clinics in drug crackdown"
New York Times (02/32/2011) Don Van Natta, Jr.
Florida: Governor asked to implement program tracking prescription drugs better
"4 senators ask Florida to end 'Flamingo express'"
Palm Beach Post (02/20/2011) Michael Gormley
Iowa: Suit claims infant contracted meningitis from Similac formula
"Lawsuit: formula caused brain damage in child"
Sioux City Journal (02/26/2011) Molly Montag
New York: Woman circumvents tobacco bans and taxes by growing her own
"Now in Brooklyn, homegrown tobacco: local, rebellious and tax free
New York Times (02/24/2011) Manny Fernandez
North Carolina: Illegal home delivery leads to midwife's arrest
"Midwives rally in Raleigh to protest arrest"
Charlotte Observer (03/01/2011) Karen Garloch
National: third validation of health care law says Congress may regulate
"A third judge validates health care overhaul law"
New York Times (02/22/2011) Kevin Sack
National: Suit seeks to broaden donor pool by allowing bone marrow sales
"Ban on bone marrow sales challenged"
Los Angeles Times (02/20/2011) Carol J. Williams
National: DEA uses emergency power to ban "spice" and "K2" marijuana mimickers
"DEA bans chemicals used to mimic marijuana"
USA Today (03/01/2011) Donna Leinwand
National: FDA issues warning for weight loss hormone lozenges and sprays
"Diet plan with hormone has fans and skeptics"
New York Times (03/07/2011) Anemona Hartocollis
National: FDA removes about 500 ineffective prescription drugs from market
"FDA cracks down on untested cold medicines"
Yahoo! News (03/02/2011) Matthew Perrone
National: Federal Judge in Florida says health care law can proceed for now
"Judge stays own ruling against health care law"
New York Times (03/03/2011) Kevin Stack
National: Government proposal outlines desired for tobacco advertising campaign
"U.S. presses tobacco firms to admit to falsehood about light cigarettes and nicotine addiction"
New York Times (02/23/2011) Duff Wilson
Mexico: One of the fattest countries in the world works to curb childhood obesity
"Mexico puts its children on a diet"
New York Times (03/13/2011) Elisabeth Malkin
___________________JOURNAL ARTICLES____________________"Alcohol interlock systems in Sweden: 10 years of systematic work"
American Journal of Preventive Medicine 03/2011 Patrick Magnusson, Lisa Jakobsson, and Sven Hultman
http://www.ajpm-online.net/article/S0749-3797(10)00713-0/fulltext (subscription required)
"Effectiveness of ignition interlocks for preventing alcohol-impaired driving and alcohol-related crashes: a Community Guide systematic review"
American Journal of Preventive Medicine 03/2011 Randy W. Elder, et al.
http://www.ajpm-online.net/article/S0749-3797(10)00710-5/fulltext (subscription required)
"Family Smoking Prevention and Tobacco Control Act: banning outdoor tobacco advertising near schools and playgrounds"
American Journal of Preventive Medicine 03/2011 Douglas A. Luke, et al.
"Front-of-package food and beverage labeling: new directions for research and regulation"
American Journal of Preventive Medicine 03/2011 Jennifer L. Pomeranz
http://www.ajpm-online.net/article/S0749-3797(10)00706-3/fulltext (subscription required)
"Recommendations on the effectiveness of ignition interlocks for preventing alcohol-impaired driving and alcohol-related crashes"
American Journal of Preventive Medicine 03/2011 Task Force on Community Preventive Services
http://www.ajpm-online.net/article/S0749-3797(10)00711-7/fulltext (subscription required)
"Advancing public health obesity policy through state attorneys general"
American Journal of Public Health 03/2011 Jennifer L. Pomeranz and Kelly D. Brownell
"Forcing the Navy to sell cigarettes on ships: how the tobacco industry and politicians torpedoed Navy tobacco control"
American Journal of Public Health 03/2011 Naphtali Offen, et al.
" From politics to parity: using a health disparities index to guide legislative efforts for health equity"
American Journal of Public Health 03/2011 Bryant Cameron Webb, Sean L. Simpson, and Kristen G. Hairston
"Hospital admissions for acute myocardial infarction, angina, stroke, and asthma after implementation of Arizona's comprehensive statewide smoking ban"
American Journal of Public Health 03/2011 Patricia M. Herman and Michele E. Walsh
"Direct-to-consumer advertising with interactive internet media: global regulation and public health issues"
Journal of the American Medical Association 02/23/2011 Bryan A. Liang and Timothy Mackey
"Preserving rights for individuals facing guardianship"
Journal of the American Medical Association 03/02/2011 Jennifer Moye and Aanand D. Naik
"Food labeling claims"
Journal of the American Medical Association 03/09/2011 Mike Mitka
"The Havasu 'Baaja tribe and informed consent"
The Lancet 02/19/2011 Arthur L Caplan and Jonathan D Moreno
http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(10)60818-5/fulltext (registration required)
"U.S. nurse practitioners push for more responsibilities"
The Lancet 02/19/2011 Sharmila Devi
"Can Congress regulate "inactivity" (and make Americans buy health insurance)?"
New England Journal of Medicine 03/03/2011 Timothy Stoltzfus Jost
"Clearing out the underbrush in constitutional challenges to health insurance reform"
New England Journal of Medicine 03/03/2011 Mark A. Hall
"Legal commentary on the internet sale of human milk"
Public Health Reports 03/2011 Stephanie Dawson David
"FDA tobacco product regulations: a powerful tool for tobacco control"
Public Health Reports 03/2011 Lawrence R. Deyton
"Tax-exempt hospitals and the Patient Protection and Affordable Care Act: implications for public health policy and practice"
Public Health Reports 03/2011 Sara Rosenbaum and Ross Margulies
___________________COURT OPINIONS____________________Indiana: Penalties in dog biting and immunization ordinances upheld as not punitive
Boss v. State
Court of Appeals of Indiana
Case No. 49A02-1002-CR-225
Decided February 18, 2011
Opinion by Judge Friedlander
New York: Liability for transfer of herpes infection sounded in battery and fraud
Doe v. Patterson
Supreme Court of New York County
Case No. 100155/09, Mot. Seq. No. 003
Decided November 30, 2010
Opinion by Judge Rakower
New York: Motions for summary judgment on liability for torts from lead based paint denied
Rodriguez v. KPV Realty LLC, et al.
Supreme Court of New York County
Case No. 112127/08, Seq. No. 001, 002, 003
Decided January 14, 2011
Opinion by Justice Gische
New York: Challenge to child support order including health insurance provision denied
In the Matter of Kimberly R. v. Andre N.
Family Court of Queens County
Case No. F-12845/10
Decided February 17, 2011
Opinion by Judge Hunt
Pennsylvania: Independent consultant may not be required to report toxic torts to public
Reeser v. NGK North American, Inc., et al.
Superior Court of Pennsylvania
Case No. 3275 EDA 2008
Decided January 24, 2011
Opinion by Judge Freedberg
Wisconsin: Federal food safety regulations do not limit civil recovery in tort
Foremost Farms USA, Cooperative v. Performance Process, Inc., et al.
Court of Appeals of Wisconsin
Case No. 2009AP2236
Decided February 17, 2011
Opinion by Judge Lundsten
Wyoming: Defense to criminal possession of marijuana of out-of-state prescription invalidated
Burns v. State
Supreme Court of Wyoming
Case No. S-10-0053
Decided January 19, 2011
Opinion by Justice Golden
Federal: All design-defect claims for vaccine injuries or death preempted
Bruesewitz, et al. v. Wyeth LLC
U.S. Supreme Court
Case No. 09-152
Decided February 22, 2011
Opinion by Justice Scalia
Federal: Class action over hypertension medication not barred by federal preemption
LeFaivre v. KV Pharmaceutical Company
U.S. Court of Appeals for the Eighth Circuit
Case No. 10-1326
Decided March 3, 2011
Opinion by Judge Smith
Federal: Summary judgment on class action for toxic exposure to chromium denied
Smith, et al. v. Honeywell International Inc., et al.
U.S. District Court for the District of New Jersey
Civil Action No. 2:10-cv-03345 (SDW)
Decided February 28, 2011
Decision by Judge Wigenton
__________PHL NEWS QUOTATION OF THE MONTH___________"People come to America to enjoy the freedom, including what's on the plate."
-- Kinson S. Wong, owner of the R&G Lounge in San Francisco, on California's proposed ban on shark fin sales
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 the Department of Health and Human Services (DHHS) assume no responsibility for the factual accuracy of the items presented from other sources. 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 or DHHS. 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.
- Page last reviewed: August 18, 2011
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