April 2011 - CDC Public Health Law News
Thursday, April 21, 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
Announcements***Public Health Preparedness Capabilities. On March 21, 2011, CDC's Office of Public Health Preparedness and Response (OPHPR) released Public Health Preparedness Capabilities: National Standards for State and Local Planning. This document provides a guide state and local jurisdictions can use to better organize their work, plan their priorities, and decide which capabilities they have the resources to build or sustain. The document is available at http://www.cdc.gov/phpr/capabilities/.
***Legislative Database on Community Water Fluoridation. The Fluoride Legislative User Information Database ("FLUID"), which can be accessed at www.fluidlaw.org, is a comprehensive online compilation of court decisions, laws, and policies related to community water fluoridation and contains information from all 50 states and U.S. territories. It was designed to be an easy-to-use tool that states and municipalities can use to research and compare their current or proposed policies with others across the country and make informed decisions based on legal information. For further information on FLUID, please contact Colin Pekruhn, Children's Dental Health Project Senior Policy Analyst, at email@example.com.
***Sexual Health Services Fact Sheet. The Council of State Governments (CSG) recently posted a new fact sheet for state legislators entitled "Health Reform Coverage for Prevention: Sexual Health Services." CSG and Partnership, with funding from the Centers for Disease Control and Prevention, are collaborating to provide information to state legislators on preventing HIV/AIDS, other STDs and teen pregnancy. The fact sheet is available at http://knowledgecenter.csg.org/drupal/content/health-reform-coverage-prevention-sexual-health-services.
***Proposed Menu Labeling Rules. On April 1, 2011, the Food and Drug Administration (FDA) issued two proposed menu labeling regulations required under the Affordable Care Act. The first rule would require restaurants and retail food establishments that are part of a chain with 20 or more locations to post calorie content and information informing customers "a 2,000 calorie diet is used as the basis for general nutrition advice; however, individual calorie needs may vary." The second rule would require calorie posting for vending machines. To comment on the rules, visit http://www.regulations.gov/#!home.
***Tobacco Control Legal Update. The Tobacco Control Legal Consortium has released The Consortium Bulletin, a monthly electronic news feature. The April 2011 edition features resources on policy options for providing a smoke-free environment for foster children and an overview of U.S. v. Philip Morris. To read the Bulletin, visit http://campaign.r20.constantcontact.com/
***Public Health Law Research Workshop. The National Program Office (NPO) of the Robert Wood Johnson Foundation's Public Health Law Research Program (PHLR) will conduct "The Public Health Law Research Workshop: Using Empirical Methods to Measure Law, Special Workshop" on Thursday, June 9, 201,1 at Loyola University Chicago School of Law, prior to the start of the 34th Annual American Society of Law, Medicine, and Ethics (ASLME) Health Law Professors Conference. The workshop will introduce law professors to foundational principles and techniques for empirically evaluating the relationship between law and health. For more information, visit http://newsmanager.commpartners.com/aslme/issues/2011-04-14/6.html.
1. Tokyo issues tap water warning for infants
States and Localities
2. Illinois: Legislation would open state to sale of more homemade goods
3. Maryland: Location of biological agents is top secret in Maryland
4. FDA to allow cheaper preterm baby drug
5. A new push to let H.I.V. patients accept organs that are infected
6. Pull menthol cigarettes, FDA advisers urge
7. Sobriety checkpoints open to controversy
Alabama IV infections · Arizona Medicaid fines · California HIV investigation · Colorado concussion law · Mississippi lead paint · Ohio DMV database · HIV testing law · National dog breed liability · Menu labeling · Electroshock therapy · Prescription drug abuse · Patient safety report · Passenger protection rules · Small business tax · Pain contracts · Newborn blood spots · Bangladesh palm sap beverage · United Kingdom alcohol advertising
Smoke-free legislation • Compliance with quarantine • Cancer public reporting • HAI mandatory reporting • Scotland HAIs • International medical team registers • Alcopops tax • Nursing home litigation • Medicaid court access • Vaccine litigation
State drinking water plan • Medical assistance • Liquor store zoning • Animal husbandry laws • Safe housing standards • Wireless emissions • Intentional injury statute • Police withholding of medication • Pregnancy center disclosures • Wastewater spraying • Misrepresentation of sodium content • Correctional secondhand smoke • Private vaccination information • City water pollution • Patient impairment information •Tribal environmental suit
Quotation of the Month
Zina Murry, owner of Logan Square Kitchen, Illinois
"Tokyo issues tap water warning for infants"
New York Times (03/23/2011) David Jolly and Kevin Drew
After radioactive iodine was detected in Tokyo's water supply, the government issued a warning, saying infants in Tokyo and surrounding areas should not drink tap water because iodine-131 had been detected in water samples at levels of 210 becquerel per liter and the recommended limit for infants is about 100 becquerels per liter. The limit for adults is 300 becquerels per liter.
"It's unfortunate, but the radiation is clearly being carried on the air from the Fukushima plant. Because it's raining, it's possible that a lot of places will be affected. Even if people consume the water a few times, there should be no long-term ill effects," said Yukio Edano, the chief cabinet secretary.
Though the Health Ministry released a statement saying negative health effects were unlikely for infants who drank the water, it also said the water should be avoided and should not be used to make infant formula. The warning was issued for Toyko, and the towns of Mitaka, Tama, Mushashino, Machida and Inagi.
The government also suspended shipment of raw milk and raw vegetables from the Fukushima Prefecture, the area surrounding the compromised Fukushima Daiichi Nuclear Power Station.
On Tuesday, March 22, 2011, the U.S. Food and Drug Administration prohibited imports of dairy goods and produce from the affected region.
"Legislation would open state to sale of more homemade goods"
Chicago Tribune (03/23/2011) Alejandra Cancino
Since May 2010, the Illinois Department of Public Health has been cracking down on people selling homemade goods for human consumption unless their kitchens pass an inspection. The crackdown is an effort to prevent foodborne illnesses.
Many people can no longer sell their homemade goods at farmers markets and fairs because they cannot afford the upgrades required by the inspections, which include a three-compartment metal sink, floor drain, and smooth, non-absorbent floors, walls, and ceilings. Susan Wachter no longer sells homemade cookies, cakes, and sweetbreads in several farmers' markets because she would have had to build a separate kitchen costing about $100,000 to pass the inspection for foods meant for human consumption; she now sells homemade dog biscuits.
Illinois state senator David Koehler is working to limit the law's requirements and promote consumption of locally produced goods. "There are all kinds of things that people are making with Illinois-grown agriculture, and that's what we want to encourage," said Koehler.
The Illinois Department of Public Health, however, believes scaling back the current law will lead to more foodborne illnesses. "We are very concerned . . . the Chicago metropolitan area is very different from other states; we are much larger," said Cook County Department of Public Health Policy Director Sean McDermott.
Koehler is chief sponsor of Senate Bill 137 which would allow people to sell "non-potentially hazardous food" items such as cookies, jam and dried herbs, which are rarely associated with foodborne illnesses. Vendors would have to obtain a sanitation management certificate and label the food with the name and address of the maker, product name, ingredients and processing date as well as a warning label stating: "homemade and not subject to state inspection." At least 17 other states have laws similar to Senate Bill 137 in effect.
[Editor's note: To read the current law, please visit: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1578&ChapterID=35 .
To read the proposed legislation, please visit: http://www.ilga.gov/legislation/BillStatus.asp?DocNum=137&
"Location of biological agents is top secret in Maryland"
Gaithersburg Gazette (03/31/2011) Katherine Heerbrant
Frederick, Maryland's newly appointed Containment Laboratory Citizens Advisory Committee, which serves as liaison between residents and high-level biological agent containment laboratories and storage facilities, is struggling to inform the citizenry of potential threats because Maryland state law mandates that the number and location of such facilities remain confidential. The labs are responsible for studying potentially harmful or lethal biological pathogens, such as Anthrax and West Nile Virus.
"Companies obviously have the right to keep their proprietary information to themselves. But communities and local governments have a need to know about activities that could impact health and safety," said Beth Willis, the advisory committee's chairwoman.
Since 2002 the Office of Laboratory Emergency Preparedness and Response in the Maryland Department of Health and Mental Hygiene has maintained a central registry of people or organizations containing "select agents," which are defined by the state as pathogens with the potential to "wreak havoc on human life."
Citizens believe there are two labs operating in their area. They became aware of one of the labs, the Southern Research Institute, in 2004, when the lab accidentally shipped a live Anthrax sample to a children's research hospital in California.
Frederick Police Department's chair of the Local Emergency Planning Committee, Lt. Dennis Dudley, said the confidentiality is for public safety; "people who are on the edge or fringe groups could take advantage of that information and endanger people more than the facility that is working with these agents." The Emergency Planning Committee is aware of the agents' locations.
"FDA to allow cheaper preterm baby drug"
Washington Post (03/30/2011) Rob Stein
In February, 2011, U.S. Food and Drug Administration (FDA) approved the drug Makena, a form of the hormone progesterone, to prevent preterm births. Specialty pharmacies had long been producing, or compounding, versions of the drug, a legal and long accepted practice. Makena's manufacturer, KV Pharmaceutical of St. Louis, began charging $1,500 per dose of a medicine that had long been available for $10 to $20 and started issuing warnings to small pharmacies of potential FDA actions for producing the drug independently.
The outcry from citizens and medical professionals was quick and fierce. To diffuse the situation, the FDA issued a rare statement that it would allow pharmacies to continue to produce less expensive versions of the drug.
The FDA corrected KV's warnings to the pharmacies saying that though the agency usually does not recommend compounded versions of FDA approved drugs, "in order to support access to this important drug, at this time and under this unique situation, FDA does not intend to take enforcement action against pharmacies that compound . . ." and that the agency would only exercise enforcement discretion if "the compounded products are unsafe, of substandard quality, or are not being compounded in accordance with appropriate standards for compounding sterile products. As always, FDA may at any time revisit a decision to exercise enforcement discretion."
"A new push to let H.I.V. patients accept organs that are infected"
New York Times (04/11/2011) Pam Belluck
For years H.I.V. patients were not eligible for organ transplants because of worries that their health was too fragile. Now they can receive transplants, but organ-donor waiting lists are long and it is illegal to transplant organs from donors who test positive for H.I.V., even to other people with H.I.V. Federal health officials and others are calling to repeal the 23-year-old amendment to the National Organ Transplant Act which bans such transplants.
"The clock is ticking more quickly for those who are H.I.V.-positive. We have a huge organ shortage. Every H.I.V. infected one we use is a new organ that takes one more person off the list," said Dr. Dorry Segev, transplant surgery director of clinical research at Johns Hopkins and co-author of a new study indicating that 500 to 600 H.I.V.-infected livers and kidneys would become available each year if the law were changed.
"People I know in the gay community are very split on it. There's the concept that having an H.I.V.-positive donor could actually be more damaging. You could have a donor who has a tougher strain of H.I.V.," said Michael Bauer, of Iowa City, Iowa, who became H.I.V.-positive two years ago and will probably eventually need a liver transplant.
Matthew Kuehnert , director of the C.D.C.'s Office of Blood, Organ and Other Tissue Safety in the National Center for Emerging and Zoonotic Infectious Diseases, , said, "We would like to see as many safe transplants occurring as possible, and there's no reason why H.I.V.-positive recipients shouldn't get transplants and that H.I.V.-positive donors can't be used."
"Pull menthol cigarettes, FDA advisers urge"
CNN (03/18/2011) Saundra Young
On Friday, March 18, 2011, the U.S. Food and Drug Administration's (FDA) Tobacco Products Scientific Advisory Committee (TPSAC) released recommendations urging law makers to remove menthol cigarettes from the market.
The recommendation comes after TPSAC evaluations found links between menthol cigarettes and increased experimentation, elevated risk of progression to a regular smoker, increased smoking among children, and increased probability of addiction, and increased degree of addiction in children. "The TPSAC also found that the public health impact of menthol cigarette availability is substantial. The availability of menthol cigarettes leads to an increase in the number of cigarette smokers and the burden of premature mortality," said the advisory panel's chair, Dr. Jonathan Samet.
Murray S. Kessler, chairman, president and chief executive officer of Lorillart, the country's third largest cigarette manufacturer and maker of Newport, the top selling menthol cigarette in the country, maintains the FDA will conclude menthol cigarettes are no more dangerous than non-menthol cigarettes and are not in need of heightened regulation.
"While we fundamentally disagree, we are not surprised by what we believe is TPSAC's unsubstantiated conclusion relative to the impact of menthol cigarettes on public health. Most importantly, TPSAC's report is just the first step in what we believe will be a very long process that ultimately does not result in the removal of menthol cigarettes from the marketplace, especially when contraband and other unintended consequences are seriously considered," said Kessler.
"The TPSAC's recommendation of removal of menthol cigarettes from the marketplace would benefit public health in the United States is simply that- a committee recommendation based on its review of current, prevailing science on the topic of menthol as an ingredient in cigarettes, said Dr. Lawrence Deyton, director of the FDA's Center for Tobacco Products. The report will be reviewed by FDA experts within the Center for Tobacco Products along with all other available science-related public health implications for menthol cigarette use.
"Sobriety checkpoints open to controversy"
USA Today (03/25/2011) Larry Copeland
Though the Centers for Disease Control and Prevention has concluded that sobriety checkpoints reduce alcohol-related crashes, and the United States Supreme Court has ruled they are constitutional, 12 states do not allow them, in many cases because the state's constitution prohibits them. Several U.S. senators are trying ban phone applications that alert drivers of check point locations, thus allowing them to avoid DUI detection.
Four senators - Harry Reid of Nevada, Tom Udall of New Mexico, Charles Schumer of New York, and Frank Lautenberg of New Jersey - have already asked smart phone makers, Google, Research in Motion, and Apple to stop selling checkpoint apps or to disable their functions, a request Research in Motion, the maker of Blackberry, agreed to comply with.
Some say DUI checkpoints are less cost-effective than officers driving around looking for people driving drunk, also known as rolling patrols. Dennis Kenney, professor of criminal justice at New York's John Jay College of Criminal of Justice criticized checkpoints saying, "They freeze up a certain amount of resources standing out there on the side of the road. They tend to tie up traffic. That said, they do catch some drunk drivers, especially if they set them up in places where they're difficult to avoid."
Many experts proclaim the educational and preventative value of checkpoints, even though they result in few arrests for driving under the influence (DUI). "DUI checkpoints are proven to be effective at deterring drunk drivers. The goal is not to write tickets or make arrests but rather to remind the public that they should drive sober or face serious consequences," said Barbara Harsha, executive director of the Governors Highway Safety Association.
Alabama: Company linked to IV- related infections seeks to present more evidence
"Company in IV infections asks judge to ease ban"
Washington Examiner (04/06/2011) Jay Reeves
Arizona: Arizona petitions Medicaid to fine recipients engaging in unhealthy behaviors
"Arizona asks to set fines for health risks"
New York Times (04/01/2011) Marc Lacey
California: Porn industry legal counsel may have impeded H.I.V. investigation
"Report faults porn firms for not providing information to public health agencies"
Los Angeles Times (04/20/2011) Rong-Gong Lin, II
Colorado: Concussion law requires annual training for coaches and benching for injured
"New. Colo. concussions law is nation's most sweeping"
Atlanta Journal Constitution (03/30/2011) Ivan Moreno
Mississippi: $7 mill. verdict in Sherwin-Williams lead paint case appealed
"Sherwin-Williams appeals Miss. Lead paint verdict"
Bloomberg Businessweek (04/19/2011) Jack Elliot, Jr.
Ohio: DMV clerks required to ask about next-of-kin, database to become more helpful
"Next-of-kin database gets boost from new law"
Dayton Daily News (04/05/2011) Matt Sanctis
Ohio: New law encourages more H.I.V. testing, doctors ignorant of law not testing
"Ohio removes legal hurdles to HIV testing"
Columbus Dispatch (04/04/2011) Misti Crane
National: Many dog breeds risk for home insurers, owners not insured for animal liability
"Dogs take bite out of homeowners insurance"
Fox Business (03/24/2011) Jay McDonald
National: FDA releases proposed calorie guidelines, seeks public commentary
"FDA proposes calorie labels for fast food chains, restaurants nationwide"
Los Angeles Times (04/02/2011) Andrew Zajac
National: FDA evaluates electroshock therapy risks
"FDA revisits risks of electric shock treatment"
Los Angeles Times (03/19/2011) Andrew Zajac
National: FDA orders pain killer providers to provide educational guidelines
"FDA unveils new action on prescription drug abuse"
National: Government report shines light on things that go wrong in hospitals
"New list offers hospital-specific data on patient safety"
Los Angeles Times (04/11/2011) Judith Graham
National: Feds to limit hours international passengers may wait on tarmac
"Passenger-protection rules for airlines to be issued"
Los Angeles Times (04/20/2011)
National: Small businesses no longer required to file tax under federal health law
"Senate Passes Change to Health Law"
New York Times (04/05/2011)
National: In face of widespread opiate abuse, many doctors implement "pain contracts"
"Some doctors ask patients to sign 'pain contracts to get prescriptions"
Los Angeles Times (04/06/2011) Michelle Andrews
National: Parents sue over stored newborn blood samples, program threatened
"Stored newborn blood samples raise concerns"
New York Times (04/16/2011) Meredith Cohn
Bangladesh: Palm sap beverage contaminated with bat feces leads to Nipah virus outbreak
"Bangladesh bans sale of palm sap after an unusually lethal outbreak"
New York Times (03/21/2011) Donald G. McNeil, Jr.
United Kingdom: Bill limits alcohol advertising based on French legislation
"Calls to limit child exposure to alcohol ads"
BBC News (03/24/2011) Nick Triggle
"The population impact of smoke-free workplace and hospitality industry legislation on smoking behavior"
Addiction 04/2011 Gera E. Nagelhout, Marc C. Willemsen, and Hein de Vries
"Mother Nature versus human nature: public compliance with evacuation and quarantine"
Disasters 04/2011 Mary-Elise Manuell and Jeffrey Cukor
"Improving cancer care through public reporting of meaningful quality measures"
Health Affairs 04/2011 Tracy E. Spinks, et al.
"Mandatory public reporting of hospital-acquired infection rates: a report from California"
Health Affairs 04/2011 Helen A. Halpin, et al.
"Scotland's successful national approach to improving patient safety in acute care"
Health Affairs 04/2011 Carol Haraden and Jason Leitch
"Disasters and a register for foreign medical teams"
The Lancet 03/26/2011 Anthony D Redmond, Timothy J O'Dempsey, and Bertrand Taithe
http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(11)60319-X/fulltext (registration required)
"The Australian alcopops tax revisited"
The Lancet 04/02/2011 Wayne Hall and Tanya Chikritzhs
http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(10)61420-1/fulltext (registration required)
"Relationship between quality of care and negligence litigation in nursing homes"
New England Journal of Medicine 03/31/2011 D.M. Studdert, et al.
"Medicaid and access to the courts"
New England Journal of Medicine 04/21/2011 Sara Rosenbaum
"Safety, supply, and suits — litigation and the vaccine industry"
New England Journal of Medicine 04/21/2011 Aaron Kesselheim
California: Order compelling state agency to approve safe drinking water plan upheld
Newton-Enloe v. Horton
Court of Appeals of California, Fifth District
Case No. F060147
Filed April 4, 2011
Opinion by Judge Wiseman
Connecticut: State law allowing recent immigrants to receive medical assistance upheld
Hong Pham v. Starkowski
Supreme Court of Connecticut
Case No. SC 18582
Released April 5, 2011
Opinion by Justice Zarella
Louisiana: Zoning denial of drive-through liquor store upheld
Toups v. City of Shreveport
Supreme Court of Louisiana
Case No. 2010-C-1559
Decided March 15, 2011
Per curiam opinion
New York: Prosecution for animal husbandry for keeping chickens as pets dismissed
People v. Mahoney
Justice Court of Town of Hyde Park, Dutchess County
Case No. 10-11-0062
Decided March 10, 2011
Opinion by Judge Steinberg
New York: Violations of maximum occupancy housing standards for converted property upheld
Matter of Mapama Corp. v. The New York City Loft Board
Supreme Court, New York County
Case No. 112602/10
Decided March 14, 2011
Opinion by Judge Singh
New York: Wireless emissions are not considered ultra-hazardous conditions for tort claims
Stanley v. Amalithone Realty, Inc.
Supreme Court, New York County
Case No. 103436/2010
Decided March 17, 2011
Opinion by Judge Sherwood
New York: Statute protecting aging adults from intentional injury upheld
People v. Riley
Supreme Court, Queens County
Case No. 1302-09
Decided March 31, 2011
Opinion by Judge Buchter
New York: Withholding of diabetes medication while in police custody allowed in negligence
Wells v. Sheriff of Suffolk County
Supreme Court, Suffolk County
Case No. 08-38808
Decided March 1, 2011
Opinion by Judge Mayer
Federal: Board of Health resolution requiring disclosures from pregnancy centers struck down
Centro Tepeyac v. Montgomery County
U.S. District Court for the District of Maryland
Civil Action No. DKC 10-1259
Decided March 15, 2011
Opinion by Judge Chasanow
Federal: Spraying of wastewater on land gives rise to environmental tort
Abnet, et al. v. The Coca-Cola Company
U.S. District Court for the Western District of Michigan, Southern Division
Case No. 1:10-cv-481
Decided March 31, 2011
Opinion by Judge Bell
Federal: Claims regarding misrepresentation of sodium content in soup not preempted
Smajlaj v. Campbell Soup Company
U.S. District Court for the District of New Jersey
Civil Case No. 10-1332 (JBS/AMD)
Decided March 23, 2011
Opinion by Judge Simandle
Federal: Constitutional claims of exposure to secondhand smoke during incarceration dismissed
Musto v. McFarland
U.S. District Court for the District of New Jersey
Civil Case No. 05-4781 (NLJ)(JS)
Decided April 6, 2011
Opinion by Judge Hillman
Federal: FOIA requests to release patient-related vaccination information denied
Long v. United States Department of Justice
U.S. District Court for the Northern District of New York
Case No. 5:06-CV-1086 (NAM/GHL)
Decided March 25, 2011
Opinion by Chief Judge Mordue
Federal: Decree on city's violation of federal law for pollution of Cuyahoga River struck down
United States v. City of Akron
U.S. District Court for the Northern District of Ohio, Eastern Division
Case No. 5:09CV272
Decided March 17, 2011
Opinion by Judge Adams
Federal: Requirement for providers to report patients with conditions affecting driving upheld
U.S. District Court for the Middle District of Pennsylvania
Civil Action No. 1:09-CV-2453
Decided March 31, 2011
Opinion by Judge Conner
Federal: Navajo Nation suit on environmental damage from uranium mill dismissed
El Paso Natural Gas Company v. United States
U.S. District Court for the District of Columbia
Civil Case No. 07-905 (RJL)
Decided March 28, 2011
Opinion by Judge Leon
__________PHL NEWS QUOTATION OF THE MONTH___________
"It's cookies, for crying out loud."
-- Zina Murry, owner of Logan Square Kitchen, on Illinois' crackdown on sales of homemade food.
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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.