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March 2012 - CDC Public Health Law News

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Thursday, March 15, 2012

From the siteCatalyst.setLevel4("Publications and Resources"); Public Health Law Program,
Office for State, Tribal, Local and Territorial Support,
Centers for Disease Control and Prevention

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Director's Note

Hello Public Health Law People! Spring is around the corner and stands as a great time for renewal. In that spirit, we are working hard to enhance the Public Health Law News and our website to provide easy access to news and other public health law resources. To that end, we will soon be introducing a new section to the News that will feature legal resources and useful tools from across the country. As a preview of sorts, I would like to present a toolkit from our colleagues at the National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN). NPLAN is one of the preeminent groups in the public health community providing technical assistance on obesity and nutrition issues. Schools often keep school facilities like gyms, fields, basketball courts, and playgrounds locked after hours because they’re concerned about security, liability, maintenance, and other costs. But cities and towns around the country are resolving these issues through joint use agreements – written contracts spelling out terms that allow public agencies and nonprofits to share the costs and responsibilities. Download Playing Smart, a nuts-and-bolts guide to opening school property to the public through well-crafted joint use agreements.

These resources are the types of tools we will feature, and I hope you find them and future installments useful and engaging. Happy March!

Matthew S. Penn, Director
Public Health Law Program


  1. Report on Data Sharing with Tribal Epidemiology Centers. The Council of State and Territorial Epidemiologists (CSTE) has released a report on Data Sharing with Tribal Epidemiology Centers. Identifiable health data are the lifeblood of public health surveillance and other activities. Their use is essential to effective public health activities and public health research. Public health authorities at all levels of government seek increasingly greater types and volume of personally identifiable health information, including through data exchanges between public health entities. Find the full report “Legal Issues Concerning Identifiable Health Data Sharing Between State/Local Public Health Authorities and Tribal Epidemiology Centers in Selected U.S. Jurisdictions [PDF - 475KB].”
  2. Report on Dairy-Related Disease Outbreaks. On February 21, 2012, the CDC journal Emerging Infectious Diseases published the study “Nonpasteurized Dairy Products, Disease Outbreaks, and State Laws - United States, 1993-2006.” According to the study, the rate of outbreaks caused by unpasteurized milk and products made from it was 150 times greater than outbreaks linked to pasteurized milk. Also, the report found the rate of outbreak was more than double that in states where sales of unpasteurized milk are legal, compared to states where such sales are prohibited.
  3. MAHC Module Open for Public Comment: The Disinfection & Water Quality. CDC is working with public health and industry representatives across the United States to build the Model Aquatic Health Code (MAHC), intended to provide science-based, best available standards related to aquatic safety and health to state, tribal, local, and territorial public health practitioners and their partners. The Disinfection & Water Quality module covers several issues including standards to address chlorine-tolerant microbes and secondary disinfection for increased-risk venues such as those designed primarily for diaper-aged children. Outbreak investigations have often determined that disinfectant levels and other water quality parameters are not maintained appropriately. The module is open for comment through April 27, 2012.Find more information about the MAHC and the module status.
  4. Weight of the Nation Conference. May 7-9, 2012, the CDC Division of Nutrition, Physical Activity, and Obesity will host the Weight of the Nation™, at the Omni Shoreham Hotel in Washington, D.C. The conference is designed to provide a forum to highlight progress in obesity prevention and control through policy and environmental strategies, framed around five intervention settings: early care and education; states, tribes, and communities; medical care; schools; and workplaces. The conference will feature a number of public health law-related sessions, as well as a practitioner training on public health law and policy. Find more information about the Weight of the Nation™ conference and registration.
  5. Job Opening: Visiting Assistant Professor Program in Health Law. The Boston University Health Law program, an interdisciplinary research and teaching effort at Boston University which includes the School of Law and the Department of Health Law, and Bioethics & Human Rights at the School of Public Health, is accepting applications for a full-time, two-year appointment in the School of Law as a Visiting Assistant Professor. Applicants must hold a JD or other similar degree in law. Applications are due March 21, 2012 and will be accepted on a rolling basis. All application materials should be emailed to Leanne Chaves at Find more information about the Visiting Assistant Professor Program in Health Law.
  6. Job Openings: Visiting Attorney, Public Health Law Practice Positions. The Network for Public Health Law and the Robert Wood Johnson Foundation are inviting applications for five Visiting Attorney–Public Health Law Practice positions. This inspiring and challenging post-JD experience is designed to provide recipients with exceptional skills in practice-based public health law to advance their public health law careers. These are full-time, salaried, one-year appointments with benefits. The five recipients will be at one of five host sites across the country under the supervision of expert public health attorneys. Applications open March 8 and close May 1, 2012. Read more about this exciting Network for Public Health Law opportunity and application details.
  7. Free Webinar Series (bioterrorism): Creating a Network of Workplace Points of Dispensing. The Heartland Centers for Public Health & Community Capacity Development are inviting the public to view their free archived webinar series session "Creating a Network of Workplace Points of Dispensing,” held August 31, 2011. In early 2011, the St. Louis County Department of Health engaged to expand the number of residents covered by Workplace Points of Dispensing (also known as Closed PODs) to be activated in case of a bioterrorism attack. With funding from a Public Health Emergency Response grant, the organization created the Bio-Defense Network and put together a small team of public health, emergency planning, and business continuity professionals to focus on the effort. The campaign was an undisputed success. Find more information and access the archived webinar series session.

Top Stories

  1. Kentucky: More Kentucky counties may get federal aid after tornadoes devastated region
    Courier-Journal (03/08/2012) James R. Carroll

    Tornadoes ravaged Kentucky and several other states on March 3, 2012, leaving trails of destruction and grief. On March 6, 2012, President Barack Obama issued a federal disaster declaration for seven Kentucky counties: Johnson, Kenton, Laurel, Lawrence, Menifee, Morgan and Pendleton. The disaster declaration was issued in response to a disaster declaration request from Kentucky Governor Steve Beshear, which was sent pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5207 (Stafford Act).

    In Kentucky, the tornadoes claimed 23 lives and left more than 300 injured. The disaster declaration will make grants for temporary housing and home repairs, loans to cover uninsured losses, and other federal disaster relief assistance available to individuals who were harmed by the storms.

    As Kentucky’s losses continue to be tallied, the disaster declaration may be extended to other counties. Kentucky Representative Hal Rogers, who heads the House Appropriates Committee, indicated that the disaster declaration should be extended to other counties which “remain in dire need of both individual assistance and public assistance because the devastation has torn up the roads, schools, court houses beyond recognition . . . While my people are resilient- and they are- they are clearly in need and are overwhelmed.”

    Craig Fugate, head of the Federal Emergency Management Agency (FEMA), was hopeful as he discussed the addition of other counties. “As soon as we can say there’s damage warranting it, the federal coordinating officer, working with the state coordinating officer, will be able to start adding those counties on. And we expect that to be a rapid process of not weeks, but literally within a day or so as we get the information to support it.”

    [Editor’s Note: Public health law often plays a key role in emergency relief and response after natural disasters as recognized in the Stafford Act. Read Governor Beshear’s disaster declaration request [PDF - 218KB] and find more information about the disaster declaration request or federal disaster declaration.]

  2. Georgia: Drug Court: Saving money, saving lives
    Atlanta Journal Constitution (03/04/2012) Bill Rankin and Carrie Teegardin

    Georgia has 101 accountability courts and Gov. Nathan Deal is proposing to raise the state budget for accountability courts to $10 million, five times the previous budget amount. Accountability courts usually offer specialized programming as an alternative to jail sentencing. Most offenders elect to enter the drug court program to avoid prison. Charges are dismissed against offenders who graduate from the drug court’s programs.

    Nationally, there are more than 2,500 drug courts. The first was established in Florida in 1989. Lower recidivism rates and lower costs are associated with drug courts. In 2010, the state performed an audit finding that, while 29 percent of state prison inmates with substance-abuse problems committed another crime within two years of release from prison, only 7 percent of drug court graduates committed another crime. Also, while the state spends an estimated $51 per day, per prison bed, drug courts only cost about $20 per day to operate, a difference the state audit estimated to save the state $14 million in 2009 alone.

    Chief Judge Jeffrey Bagley of Georgia’s Forsyth County Superior Court has seen over 175 defendants graduate from his drug court. Chief Judge Bagley said of the program’s participants, “[m]ost of them say it is the most difficult thing they have ever had to do in their lives.” Drug court programs teach offenders to be responsible for their actions, independent and good citizens of the community. “All of these things are conservative principles. We do not want them to be a drain on the government,” Chief Judge Bagley said.

    Judge Jason Deal, a Superior Court Judge, presides over accountability courts in two Georgia counties, Hall and Dawson. “This is not hug-a-thug. This is about encouraging positive behavior and discouraging negative behavior. Those who get it, those who buy into what we’re doing, they’re changed people when they complete drug court,” said Judge Deal.

    Some still have concerns about the drug courts, though. “I’ve always been worried of the aspect of a judge sitting in a courtroom patting people on the head and giving them trinkets and gifts because they went a week without using methamphetamine or cocaine. Drug court is more suited for a counselor than a judge. I have a problem with that,” said Floyd County, Georgia Chief Superior Court Judge Walter Matthews.

    Chief Judge Bagley responded to such concerns, saying “That’s their belief. That’s their opinion. I do give [defendants] incentives, but I keep the boundary there between judge and defendant. I’m dealing with them in a different way, but I don’t believe that boundary is breached.”

    Even in the face of criticism, drug court success stories abound and many drug court graduates credit the drug court for their success. “It taught me ownership. It taught me, you know, I did this and I have to own it. It taught me honesty- how to be honest with myself and not sugarcoat things. This is who I am,” said Chuck Geter, a former Marine, Desert Storm veteran, and graduate of Forsyth County, Georgia’s drug court.

    [Editor’s Note: Drug courts offer services to a broad range of criminal defendants with substance abuse issues. Not all defendants in all drug courts are charged with drug-related crimes. For instance, a defendant could be arrested on burglary charges, but if the burglary was perpetrated in order to feed the defendant’s substance addiction, then that defendant may be offered services through the drug court, rather than a jail or prison sentence. Drug courts application varies from jurisdiction-to-jurisdiction.]

  3. National: BP settlement still leaves most complex claims unresolved
    Boise Weekly (03/05/2012) Abrahm Lustgarten

    On Friday, March 2, 2012 BP announced a tentative deal to pay $7.8 billion in compensation to Gulf Coast residents harmed by the 2010 Deepwater Horizon oil spill. The proposed settlement does not address other claims against the company pursuant to state law and the federal Clean Water Act and Oil Pollution Act, which could ultimately require BP to pay an additional $21 billion.

    Friday’s announcement represents the company’s estimates for meeting current outstanding claims. Since the estimate does not include a cap on payment, the final amount could be much greater. The settlement will be drawn from a $20 billion fund which, at President Obama’s request, was earmarked by BP to cover disaster victims’ claims.

    During the 2011 disaster, eleven men died in the initial explosion and more than 200 million gallons of oil spilled in to the Gulf. As tar balls continue to wash upon Gulf beaches and the long term effects of the oil spill remain unknown, many feel the settlement is unfair to victims because a portion of the settlement will pay attorneys’ fees. Anthony Buzbee is a Houston attorney for 12,000 plaintiffs against BP, but was not included in the settlement negotiations. “How does that advance the ball at all? The lawyers on that committee wanted to settle because it means huge fees,” said Buzbee.

    Bob Dudley, CEO of BP, issued a statement on March 2, 2012 defending BP and the settlement, “From the beginning, BP stepped up to meet our obligations to the communities in the Gulf Coast region, and we’ve worked hard to deliver on that commitment for nearly two years. The proposed settlement represents significant progress toward resolving issues from the Deepwater Horizon accident and contributing further to economic and environmental restoration efforts along the Gulf Coast.”

  4. National: Judge blocks graphic images on cigarette packages
    Yahoo (02/29/2012) Michael Felberbaum

    On Wednesday, February 29, 2012, U.S. District Judge for the District of Columbia, Richard Leon, ruled the federal mandate requiring graphic images on cigarette packages violates the First Amendment’s free speech protections.

    The suit maintained that the warnings were not mere factual information, but anti-smoking advocacy more prominent than the manufacture’s branding. The suit was brought by some of the nation’s largest tobacco companies, including R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co.

    The Food and Drug Administration defended the requirements saying that the interest in public health and conveying the dangers of smoking outweighed the companies’ free speech rights.

    The required graphic images included a sewn-up corpse of a smoker and photos of diseased lungs.

    Leon’s ruling was critical of the images, saying the graphic images “were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.”

    The opinion is already being appealed. While the U.S. Department of Justice and Food and Drug Administration declined to comment on the ruling, on February 29 the Department of Health and Human Services released a statement strongly supporting the graphic labels.

    [Editor’s note: See the graphic warnings and read the memorandum opinion.]

  5. National: Vets feel abandoned after secret drug experiments
    CNN (03/01/2012) David S. Martin

    Military researchers at Edgewood Arsenal, in Maryland, used human subjects to test a range of chemicals, including lethal nerve gasses, such as VX and sarin, and incapacitating agents like BZ. The tests were conducted, sometimes on U.S. soldiers, from 1955 to 1975.

    Many of the soldiers who participated in the experiments have severe illnesses, which they believe are directly related to chemicals they were exposed to at Edgewood. Many of the veterans do not even know to what chemicals they were exposed, though, because the chemicals were referred to as “agent one or agent two,” said one Edgewood veteran, Tim Josephs.

    While many of the veterans who have applied for benefits from the Department of Veterans Affairs (the VA) have received benefits associated with their deployments to Asia and associated exposure to Agent Orange, they are not receiving benefits for their exposure at Edgewood.

    Gordon Erspamer is the lead attorney in a lawsuit filed on behalf of Edgewood veterans against the VA. The suit seeks to require the VA to locate all Edgewood veterans and provide them with medical benefits and details regarding their chemical exposure.

    Erspamer says the government has reached very few of the 7,000 Edgewood veterans and has largely denied their benefits claims. “The whole thing stinks, and if the American people knew about it, they would not tolerate it. This kind of behavior toward our veterans would not be allowed to happen,” said Erspamer.

    A Department of Defense Statement said the Department “has made it a priority to identify all service members exposed to chemical and biological substances...and the VA has contacted and offered free medical evaluations to thousands of veterans.”

    While the Edgewood research program initially sought ways to defend against a Soviet Union chemical or biological attack, the research eventually included offensive chemical weapons as well. President Nixon ended offensive chemical weapons research in 1969.

Briefly Noted

  1. Arizona: Law proposes that K-9 dogs biting on command not subject to quarantine
    Bill would remove quarantine law for police dogs
    East Valley Tribune (02/12/2012) Mike Sakal
  2. California: Mandated prevention efforts lead to slower rise in student obesity
    Obesity prevention efforts in schools yields some success
    California Watch (03/05/2012) Joanna Lin
  3. Connecticut: Mixed martial arts supporters seek laws, sanctions, medical access
    Connecticut legislature taking up bill to regulate mixed martial arts
    New Haven Register (03/05/2012) Jordan Fenster
  4. Illinois: Nursing home advocates disagree about increased direct-care requirements
    Illinois nursing homes at odds over RN requirements
    State Journal Register (03/03/2012) Dean Olsen
  5. Iowa: Settlement in case of permanently brain damaged foster child
    Iowa settles suit over boy’s foster care injuries
    Quad-City Times (03/03/2012)
  6. New Jersey: Critics refuse to swallow state’s proposed fluoride legislation
    In New Jersey, a battle over fluoridation bill, and the facts
    New York Times (03/02/2012) Kate Zernike
  7. Texas: Nurse accused of killing 5 patients charged with capital murder
    Texas nurse’s bleach injection deaths trial begins
    Statesman (03/05/2012) Michael Graczyk
  8. Wyoming: Bill would increase max. jail sentence for repeat DUI
    Wyoming Senate approves bill toughening DUI penalties for repeat offenders
    Republic (02/02/2012)
  9. National: Health plans required to have six-page summary form in clear language
    New rules for health plans require clear summaries of benefits
    Los Angeles Times (02/10/2012) Noam N. Levey
  10. National: Critics say proposed safety standards don’t hold water
    Proposed water safety standards criticized
    WGAL (02/10/2012) David Martin
  11. National: After Senate vote, amended contraception plan stands
    Senate rejects step targeting coverage of contraception
    New York Times (03/01/2012) Robert Pear
  12. National: Lead found in hundreds of lipstick shades, debate becomes more heated
    400 shades of lipstick found to contain lead, FDA say
    Washington Post (02/14/2012) Dina ElBoghdady

Court Opinions

  1. Connecticut: Landlords of illegal massage parlor subject to legal action
    Sgritta v. Commissioner of Public Health
    Appellate Court of Connecticut
    Case No. AC 32963
    Decided February 21, 2012
    Opinion by Judge Douglas S. Lavine
  2. Nebraska: Liquor Control Commission overreach in flavored malt tax case
    Project Extra Mile v. Nebraska Liquor Control Comm.
    Supreme Court of Nebraska
    Case No. S-11-157
    Filed March 2, 2012
    Opinion by Justice William Connolly
  3. New York: Petition to vacate Fuel Oil Rules denied and dismissed
    Matter of County Oil Co. Inc. v. New York City Dept. of Envtl. Protection
    Supreme Court, Queens County, New York
    Case No. 21750/2011
    Decided February 6, 2012
    Slip Opinion by Judge Marguerite A. Grays
  4. Tennessee: TPPA Police ticket fixing case summary judgment overturned
    Williams v. City of Burns, Tennessee
    Court of Appeals of Tennessee, at Nashville
    Case No. M210-02428-COA-R3-CV
    Decided February 15, 2012
    Opinion by Judge Andy D. Bennett
  5. Federal: “Occupy” protestors denied restraining order against city
    Davidovich v. City of San Diego
    United States District Court, Southern District of California
    Case No. 11cv2675 WQH-NLS
    Decided February 10, 2012
    Opinion by Judge William Q. Hayes
  6. Federal: In green tea case, FDA’s disclaimer does not advance gov’t interest
    Fleminger, Inc. v. U.S. Department of Health and Human Services
    United States District Court for the District of Connecticut
    Civil Action No. 3:10cv855 (VLB)
    Decided February 23, 2012
    Opinion by Judge Vanessa L. Bryant
  7. Federal: Defendant granted MSJ in inmate’s hair cutting case
    Delgado v. Ballard
    United States District Court, Southern District of West Virginia, Charleston
    Civil Action No. 2:09-1252
    Decided February 10, 2012
    Opinion by John T. Copenhaver, Jr.

About Public Health Law News

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.

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, J.D., M.P.A., Writer.


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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