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July 2012 — CDC Public Health Law News

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Gavel 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

The Fifty Nifty is back by popular demand! We at the CDC Public Health Law News consider July the perfect month to consider how public health law affects all 50 states of our 236 year-old union. Just as the United States Constitution established the legal framework for our great nation, so too do laws in the 50 states establish the framework for modern public health practice. In this issue, we highlight this mighty framework with stories from all of our sister states. Enjoy!

Matthew S. Penn, Director
Public Health Law Program

In this Edition

Announcements

New Swimming Code Language Available for Public Comment. CDC and industry experts have developed the Model Aquatic Health Code. This is a guidance document that can help make swimming and other water activities safer. The Model Aquatic Health Code offers guidelines for the design, construction, operation, and maintenance of public swimming pools, hot tubs, spas, waterparks, and other aquatic facilities. "The Lifeguarding and Bather Supervision" module of the code is open for public comment through July 30, 2012. The module contains requirements for unguarded and guarded aquatic facilities, general requirements for lifeguard training, and more. Review the Lifeguarding and Bather Supervision Module.


NALBOH 20th Annual Conference: The National Association of Local Boards of Health (NALBOH) is hosting “NALBOH 20th Annual Conference: Celebrating Achievements and Shaping the Future,” which will take place August 8-10 in Atlanta, Georgia.  The conference will provide board of health members and other public health professionals with information about past public health achievements, current public health priorities, and the role of governance in shaping the future of public health. The conference features several workshops on public health law, including a workshop provided by CDC’s Public Health Law Program on “Public Health Law Opportunities and Applications in Winnable Battles.”  Find more information about the about NALBOH, the conference, register and view the program for NALBOH’s 20th Annual Conference.


2012 Public Health Law Conference. The Network for Public Health Law is hosting "2012 Public Health Law Conference: Practical Approaches to Critical Challenges," October 10–12, 2012 at the Loews Hotel in Atlanta, Georgia. Early registration at a discounted rate is open through September 12, 2012. The conference will include several concurrent sessions focusing on different public health law topics, such as prevention and promotion at the community level, changes and challenges to public health legal infrastructure, challenges to public health authority, and others. Find more information about the conference and register early.


Annual meeting and policy summit: Association of State and Territorial Health Officials (ASTHO). Save the date for ASTHO's annual meeting and policy summit which will be held September 11–14, 2012, at the Hyatt Regency in Austin, Texas. The conference will feature a variety of public health sessions with a special emphasis on the intersection of public health and healthcare. Registration numbers are limited, please register early. Find more information about the conference and early registration.


Call for proposals. Robert Wood Johnson Foundation (RWJF) is calling for proposals regarding cross-jurisdictional sharing among multiple public health agencies. In the interest of better understanding these cross-jurisdictional sharing models, RWJF will provide two-year grants of up to $125,000 to up to 18 teams across the country that are exploring, implementing, or improving cross-jurisdictional sharing arrangements to participate in the Shared Services Learning Community. Proposals are due by August 29, 2012. Find more information about the Shared Services Learning Community and how to apply.


Save the date and call for presentation proposals. The 13th National Indian Nations Conference: Justice for Victims of Crime will be held December 6–8, 2012 at the Agua Caliente Reservation, California. The conference will provide opportunities for tribal, federal, and state participants to share knowledge, experiences, and ideas to develop and improve strategies and programs that serve the unique needs of crime victims in Indian Country. The Tribal Law and Policy Institute is extending a special invitation to present at the workshop. Workshop presentations should demonstrate methods and strategies to promote safety and justice among crime victims by cooperating with tribal, federal, state, and private entities in American Indian and Alaska Native Communities. Proposals for presentations are due July 23, 2012. Find more information about the conference and participating in the workshop as a presenter.

Legal Tools

Prescription drug law guide. CDC's National Center for Injury Prevention and Control and CDC's Public Health Law Program have collaborated and released a legal guide dealing with state prescription drug overdose laws. CDC selected seven types of laws addressing the issue of prescription drug overdose and surveyed the laws of all 50 states and the District of Columbia to see if they had enacted them as of August 31, 2010. The data has been organized with regard to type of law as well as by state. Learn more about prescription drug overdose laws and read the guide.


Community Emergency Response Team (CERT) Liability Guide. The CERT Program at the Federal Emergency Management Agency (FEMA) has published the new "CERT Liability Guide." CERT programs across the nation support post-disaster response and help ensure that CERT efforts are as safe and effective as possible. CERT program activities can create risk and adverse consequences; perceptions about liability may become a larger barrier to CERT formation, activities, and partnerships than is justified by reality. The purpose of the Guide is to offer information and suggested techniques to help local CERT programs overcome this perception barrier. Find more information about CERT and download the guide [PDF - 1.62MB].

The Fifty Nifty United States

Alabama: Open container laws may be waived for "entertainment districts"
A drink on the Madison County Courthouse steps? With new law, it may become a reality
Al.com   (07/07/2012)   Steve Doyle


Alaska: State health department settles patient privacy case for $1.7 million
Alaska health department settles compliance case
Bloomberg Businessweek   (06/28/2012)   Becky Bohrer


Arizona: EPA proposes smog and haze producing coal plants
EPA sets Canyon smog rule
Arizona Daily Sun   (07/04/2012)   Cyndy Cole


Arkansas: Unlawful burning increases wildfire risk, fire departments on alert
In Arkansas, debris burning no. 1 cause of wildfires, arson no. 2
Freshare   (07/06/2012)   Mary Hightower


California: Analysis shows school lunches failed to meet at least one federal nutrition standard
California school lunches missing the mark for nutrition standards
Sacramento Bee   (07/08/2012)   Eleanor Yang Su


Colorado: Massive evacuations from "firestorm of epic proportions"
Crews go on offensive against growing Colorado wildfire
CNN   (06/27/2012)   Phil Gast, Ed Payne, and Moni Basu


Connecticut: Changes to state liquor sale laws could include overhaul of price-fixing limits
Connecticut panel to consider additional changes to state liquor laws beyond Sunday sales
The Washington Post   (07/06/2012)   Associated Press


Delaware: Tobacco-free areas of state parks to include designated swim beaches and trails
Delaware's state parks expand non-smoking areas
Delmarvanow.com   (07/05/2012)   Staff Reporter


District of Columbia: Plan to install credit card readers in taxis could cut down on robbery
Changes could come to D.C. taxis
Examiner   (07/06/2012)   Reginald Johnson


Florida: Drug test reveals marijuana traces, not bath salts in Florida face-chewing case
Tests in cannibalism case: Zombie-like attacker used pot, not "bath salts"
CNN   (06/27/2012)   Michael Martinez


Georgia: Lawmakers and law enforcement push for stronger boating under the influence laws
DNR pushes "Rules of the Water"
The Eatonton Messenger   (07/05/2012)   Marla Pretty


Guam: Report calls for more measures to prevent sexual crimes
Report: Prevention needed: "Gaps" found in programs to help victims of sex abuse
Pacific Daily News   (07/09/2012)   Brett Kelman


Hawaii: Governor signs law which promotes children safely biking and walking to school
Safe Routes to School bill signed into law
Garden Island   (07/12/2012)  Léo Azambuja
[Editor's note: Find more information and read the bill.]


Idaho: Illegal marijuana enters Idaho from Oregon's legal medical marijuana dispensaries
On Idaho border, Oregon's marijuana finds its way out
NewsOK   (07/08/2012)   Nigel Duara


Illinois: Child abuse hotline takes a message for more than 60 percent of the calls
Report: Illinois child abuse hotline resorts to taking messages on many calls
Chicago Tribune   (07/08/2012)   Associated Press


Indiana: Children left in hot cars, parents charged with child abuse and neglect
Indiana child left in hot car dies; 2012 child deaths in hot vehicles hits 10
The Examiner   (07/08/2012)   Johnny Kelly


Iowa: HHS awards $10 million for public health and emergency preparedness
Iowa receives $10 million for public health and health care emergency preparedness
Wall Street Journal   (07/03/2012)  


Kansas: Daycare license suspended after inspection found one adult in charge of 25 children
Kansas day care closed after failed inspection
KAKE News (07/16/2012)


Kentucky: State cracks down on prescription drug abuse, works to track ‘prescription tourists'
States fight "tourists" trafficking painkillers
LEX18   (07/08/2012)   Associated Press


Louisiana: State will not receive as much as expected in Clean Water Act fines from 2010 spill
Louisiana won't get as much in Gulf oil spill fines as officials had hoped
NOLA.com   (07/08/2012)   Mark Schleifstein


Maine: Fireworks legal in Maine after 70-year ban
Now legal, fireworks selling fast in Maine as first injury recorded
Main Public Broadcasting Network   (07/02/2012)   A.J. Higgins


Maryland: "Connor's Law" requires automatic external defibrillator at all public pools
"Connor's Law" aims to protect children at pools
Crofton Patch   (07/08/2012)   Susan Jenkins


Massachusetts: Law takes effect July 1,  adds ‘gender identity' to protected classes 
Mass. legislation now protects transgender community
Edge   (07/02/2012)   Dan Meyer
[Editor's note: Find more information and read the law.]


Michigan: Law requires full stop at least 20 feet from school buses that are flashing red lights
New Michigan law clarifies, strengthens illegal school bus passing law
School Transportation News   (07/06/2012)   Ryan Gray
[Editor's note: Find more information and read the law.]


Minnesota: Advocates want to loosen legal requirements for opiate overdose antidote
Minn. lags in access to opiate OD antidote
Minnesota Public Radio   (07/09/2012)   Jon Collins


Mississippi: Law eliminating premarital syphilis test effective July 1
New Mississippi laws set to go into effect Sunday
Gulf Live   (06/30/2012)           Associated Press


Missouri: New law requires cellular providers to give location information to law enforcement
Father of Kelsey Smith speaks out about signing of law bearing her name
Missourinet   (07/09/2012)   Mike Lear
[Editor's note: Find more information and read the law.]


Montana: Obesity may qualify as impairment under the Montana Human Rights Act
Montana high court says obesity may be impairment
San Francisco Chronicle   (07/07/2012)   Associated Press
[Editor's note: Read the Supreme Court of Montana's opinion or read the Montana Human Rights Act.]


Nebraska: New law requires concussion education for coaches, parents, and players
Officials say new concussion law will protect Nebraska athletes of all ages
Journal Star   (07/1/2012)   Erin Andersen
[Editor's note: Find more information and read the law [PDF - 12KB].]


Nevada: Differences in interpretation of med. marijuana laws, goes to state supreme court
Nevada high court to clarify medical marijuana law
NewsMax   (07/09/2012)   Sandy Fitzgerald


New Hampshire: 27 infected with hepatitis C in hospital cardiac cauterization lab
N.H. hospital facing legal action over hepatitis C outbreak
ABC News   (07/05/2012)   Kim Carollo  
[Editor's note: Learn more about Hepatitis C.]


New Jersey: School bullying law, considered one of strongest in nation, has funding difficulties
Anti-bullying law runs out of cash
Matawan-Aberdeen Patch   (07/09/2012)   John Mooney


New Mexico: Special prosecutor appointed for marriage of 15-year-old to 29-year-old
New Mexico: Officer, 15-year-old girl's wedding raises eyebrows
RGJ.com   (06/25/2012)  


New York: Debate over proposed soda ban shakes up NYC
Soda makers begin their push against New York ban
New York Times   (07/01/2012)   Michael M Grynbaum
[Editor's note: Find more information about the proposed ban.]


North Carolina: Loop hole closed in workers' compensation requirements
North Carolina passes law targeting employers without workers' comp
Claims Journal   (06/27/2012)   Michael Adams
[Editor's note: Find more information and read the law [PDF -146KB].]


North Dakota: Funding suspended for 31 tribal children in foster care amid program doubts
Officials see child welfare dangers on a North Dakota Indian reservation
Pittsburgh Post-Gazette   (07/07/2012)   Timothy Williams


Ohio: Family can petition court to force addict into treatment, if family pays total bill
New law allows families to force addicts into treatment
Cleveland   (07/08/2012)   Rachel Dissell
[Editor's note: Find more information and read the law.]


Oklahoma: State's new pseudoephedrine laws may be among toughest in nation
New anti-meth law limits medications with pseudoephedrine
KJRH2   (07/02/2012)   Sara Goldenberg


Oregon: Rape shield law guarding victim's sexual history challenged in state supreme court
Oregon's rape shield law challenged before state Supreme Court
Oregon Live   (07/06/2012)   Maxine Bernstein


Pennsylvania: New law requires sudden cardiac arrest training for coaches
Pennsylvania law aims to raise awareness of sudden cardiac arrest
Penn Live   (07/08/2012)  
[Editor's note: Find more information and read the law.]


Puerto Rico: Drug smugglers arrested off coast of Puerto Rico, $8M in cocaine recovered
CG nabs smugglers, $8M in cocaine off Puerto Rico
Military.com   (06/11/2012)  


Rhode Island: State passes Homeless Bill of Rights
RI homeless bill of rights praised as US model
FoxNews   (06/27/2012)          Associated Press
[Editor's note: Find more information and read the law [PDF - 35KB].]


South Carolina: Judge throws the book, woman convicted of DUI sentenced to read Bible
Judge orders woman convicted of drunk driving to read the Bible and write a summary
Business Insider   (07/09/2012)   Abby Rogers


South Dakota: Starting July 1, bar owners and employees subject to stricter felony penalties
South Dakota bar law goes into effect July 1
KSFY   (07/06/2012)  


Tennessee: Kissing and holding hands may be banned under "gateway to sexual activity" law
Tennessee passes law against "gateway sexual activity," critics suspect holding hands qualifies as sex
International Business Times   (06/25/2012)   Laura Matthews
[Editor's note: Find more information and read the law [PDF - 45KB].]


Texas: Judge rules atmosphere and air are protected under "public trust" doctrine
Texas judge rules atmosphere, air to be protected like water, may aid climate change lawsuits
The Washington Post   (07/11/2012)   Associated Press


Utah: Police officers accused of pocketing speeding fines from non-residents
Utah speed traps spur police probe
Fox News (07/07/2012)  


Vermont: Sticky situation in "all natural" syrup with synthetic ingredients suit
Vermont law firms sue Log Cabin, Birds Eye over "fraudulent" all-natural labels
Seven Days   (06/20/2012)   Ken Picard


Virginia: Protective orders available for "any act of violence, force, or threat" under new law
Virginia expands the scope of protective orders
U.S. Politics Today   (07/05/2012)  


Virgin Islands: Tourism Department works to make website and island ADA compliant
Tourism tweaks website to assist hearing and vision impaired viewers
Virgin Islands Daily News   (06/18/2012)   Daily News Staff


Washington: Superior court judge grants injunction on tax of roll-your-own cigarettes
Franklin County judge overrules Olympia on Cigarette Tax
Tri-City Herald   (06/26/2012)   John Trumbo


West Virginia: Parents seek waives and lobby legislature on school immunization requirements
Parents seek exemptions for W. VA vaccinations
Times-News (07/08/2012)   Lawrence Messina  


Wisconsin: State's highest court limits town's liquor license renewal's definition of premises
Supreme Court clarifies Wisconsin's liquor license law, sides with resort
State Bar of Wisconsin   (07/09/2012)   Joe Forward


Wyoming: Statewide ban on fires after all 23 counties enact restrictions
All 23 Wyoming counties enact fire restrictions
KULR8   (07/09/2012)   Associated Press


Feature Profile in Public Health Law

Interview with William “Bill” Marler, Attorney and Managing Partner at Marler Clark, Attorneys at Law LLP, PS, “The Food Safety Law Firm.”


CDC Public Health Law News: Do you see yourself as working in the area of public health law?

Marler: I do. The civil justice system is the last, if not the only, bastion of Justice available to a person who becomes ill with a foodborne illness after eating contaminated food. I see my practice as a significant deterrent to any company that fails to make food safety the number one priority. Not only does my work help victims recover fair and reasonable compensation, but my success in this field lets food companies know that real, financial, consequences will follow lapses in food safety efforts. Public health benefits when food safety moves to the forefront, no matter the driving force.

CDC Public Health Law News: What was your route to public health law, specifically foodborne illness litigation? 

Marler: I was practicing law in Seattle when the 1993 Jack in the Box hamburger outbreak introduced us all to E. coli. Back then there were no food safety attorneys and, like everyone else, I knew nothing about E. coli. That changed when I found myself representing a couple of children who became ill during the outbreak.  I set to work learning everything I could about E. coli and after a period knew more about the pathogen than some of the doctors treating my clients. As the outbreak grew, so did my client list and I soon was known as the primary attorney representing victims against Jack in the Box.

In the midst of this the family of Brianne Kiner contacted me. Brianne's illness was catastrophic and nearly everyone expected her to die. At age 9, she suffered severe organ damage: her kidneys failed, she suffered injuries to her liver and brain, and she was in a coma for 40 days. She had seizures, developed diabetes, and sections of her intestine were removed. I met the Kiners in Brianne's hospital room. The sight of a child in that state changed me forever. There is something very cruel about a child suffering so undeniably just because she ate a burger. It is because of faultless victims like Brianne and so many others since that I have not been able to see myself doing any other sort of litigation. 

CDC Public Health Law News: Many hail the Jack in the Box litigation as a pivotal point in food safety law and procedure. In your opinion, what are the greatest contributions this case has made to public health law?

Marler: Jack in the Box has been called the meat industry's 9/11. Perhaps the most notable change that came out of the outbreak was that the USDA's change in perspective on E. coli O157:H7. Prior to the outbreak, E. coli O157:H7 was not reportable in most states; afterward the USDA declared E. coli O157:H7 an adulterant in ground beef. PulseNet also has been a force in driving down the incidence of E. coli O157:H7 illnesses through early detection of outbreaks.

CDC Public Health Law News: After almost 20 years litigating foodborne illness cases, what changes have you seen in the industry? What changes, if any, have you observed in public perception of and response to foodborne illnesses?

Marler: First, of course, was the declaration of E. coli O157:H7 an adulterant in ground beef. Over time, testing at slaughterhouses and beef packers became more prevalent, and as recently as 2011, major retailers like Costco and Wal-Mart began testing ground beef for additional Shiga toxin-producing strains of E. coli (STEC) before they were declared adulterants by USDA. The whole food industry has become more proactive, instead of reactive. Recalls seem to be issued earlier, and product that tests positive for pathogens is diverted—either into cooked food products or as animal feed—so it never reaches the human food supply. 

Beyond that, E. coli is now a household word. Although I think there are still misconceptions about the virulence of foodborne pathogens and the severity of the illnesses they can cause, people generally understand that E. coli food poisoning is "bad." That became even more evident after the September 2006 spinach E. coli outbreak. Spinach farmers said as late as last year that sales had still not rebounded from where they were in 2005–2006. Marketing agreements and other food industry-led consortiums are increasingly popular as a way to prevent outbreaks—and therefore protect profits—while reducing the likelihood of what producers see as unnecessary regulations. No matter what the motive, public health benefits since the focus is on food safety.

Consumers are getting smarter about the risks associated with certain foods. They're turning to foods produced by local farmers for a number of reasons, the perception of safety being one of them. I think a major public health campaign could emphasize the fact that local food isn't always safer. Farmers—no matter how big or how small—need to understand the potential risks associated with food production and how to minimize them.

CDC Public Health Law News: What recent legal developments are you most enthusiastic about?

Marler: I'm thrilled that the USDA officially declared the "Big 6" E. coli strains adulterants in meat and is requiring companies to test for those STEC. I also think the FDA Food Safety Modernization Act, when funded, will provide a better framework for preventing foodborne illness outbreaks. I am also hopeful that the Council to Improve Foodborne Outbreak Response (CIFOR) will make strides in tracing outbreaks to their source far sooner than it's happening today.

CDC Public Health Law News: You strongly supported the 2010–2011 FDA Food Safety Modernization Act, which became law in January 2011. From your perspective, what direction will food safety laws take in the future?

Marler: From where I sit, I think something that's missing from current food safety laws is punishment for bad actors. I hope that future laws will provide for swift action by the government to bring charges against food companies and executives who knowingly jeopardize people's lives by shipping bad product—like Stewart Parnell of Peanut Corporation of America, who has yet to face charges four years after people started becoming ill with Salmonella infections after eating products containing contaminated peanuts manufactured by his company. I'd also like to see a requirement for food producers manufacturing risky products to carry a minimum amount of insurance to cover damages related to foodborne illness outbreaks. So often, we see restaurants and other food manufacturers responsible for outbreaks declaring bankruptcy and leaving victims with little—or no—recourse.

CDC Public Health Law News: If you were not working in public health law, what would you likely be doing?

Marler: It's a toss-up between wanting to be President of Washington State University and a fly-fishing guide.

CDC Public Health Law News: Describe any personal information, hobbies, or interests you care to share. 

Marler: I love my wife and kids and love doing what I do as a food safety lawyer and advocate. I have been fortunate to be able to travel to China, Australia, New Zealand, England, France and the Middle East with my family while I give food safety speeches. My kids have been able to meet Presidents and many world leaders (food safety leaders) and that gives a dad a smile.

 

CDC Public Health Law News: What are your favorite books and what have you read lately?

Marler: Favorite—Hemmingway's short story—"Big Two-Hearted River" and "Poisoned."

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

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Disclaimers

News content is selected solely on the basis of newsworthiness and potential interest to readers. CDC and HHS 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 HHS. 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 HHS. References to products, trade names, publications, news sources, and non-CDC Web sites are provided solely for informational purposes and do not imply endorsement by CDC or HHS. 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 HHS. 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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