May 2013—CDC Public Health Law News
Thursday, May 16, 2013
In this Edition
- Alabama: Teeth bleaching law
- Alaska: Raw milk
- California: Adult film permits
- Massachusetts: Disaster declaration
- Nevada: Allegations of ‘patient dumping’
- New Jersey: Pedestrian laws
- Tennessee: Victim Compensation Law
- National: Generic OxyContin
- National: Tanning beds
- National: State gun laws
- National: Soda ban study
- International: China’s large dog breed ban
Quotation of the Month
- Summer Program on Global Health Law and Governance. The O’Neil Institute for National and Global Health Law at Georgetown University is accepting applications for its Summer Program on Global Health Law and Governance: Non-Communicable Disease and the Law. The program will take place June 17–21, 2013 at Georgetown Law in Washington, D.C. and is open to lawyers and non-lawyers. Please register by May 18, 2013. Find more information and register.
- Health Law & Policy Summer Institute. The Sixth Annual Health Law & Policy Summer Institute will run June 17–28, 2013 at American University Washington College of Law in Washington, D.C.The flexible curriculum offers day and evening courses on public health, health care, and global health law. Courses are open to law students and professionals, and some courses are open to non-attorneys. Register by June 1. For more information, email Matt Pierce at email@example.com or call him at 202-895-4518.
- ASLME Health Law Professors Conference. The American Society of Law Medicine and Ethics (ASLME) announced that the 36th Annual Health Law Professors Conference will be held June 6–8, 2013, in Newark, New Jersey. ASLME and Seton Hall University will co-sponsor the conference. Find more information about the conference.
- Model Aquatic Health Code and National Environmental Health Aquatic Symposium. The first edition of the Model Aquatic Health Code will be released for final comment at the National Environmental Health Aquatic Symposium as a special preconference to the 2013 National Environmental Health Association Annual Educational Conference & Exhibition. The preconference will be held Monday, July 8th from 1 to 5 p.m. and is free with any one-day conference registration. The main conference will be held July 9–11 in the Washington, D.C. area. Contact Jill Schnipke at JSchnipke@neha.org to make a reservation for the preconference. Find more information and register for the main conference.
- NALBOH Annual Conference. The National Association of Local Boards of Health (NALBOH) is hosting NALBOH 21st Annual Conference, Responsible Governance for a Brighter Public Health Future,which will take place August 14–16, 2013 in Salt Lake City, Utah. The conference will provide board of health members and other public health professionals with information on public health governance functions, engaging citizens, and the role of effective leadership in healthy communities. Registration will open April 20, 2013. Find more information about NALBOH and the 21st Annual Conference.
- Alcohol-Related Disease Impact Report Application. The Centers for Disease Control and Prevention (CDC) funded the development of Alcohol-Related Disease Impact (ARDI) software to help professionals in state and local public health departments estimate the impact of alcohol-related deaths and years of potential life lost (YPLL)—a measure of premature death. The Alcohol Program in CDC’s National Center for Chronic Disease Prevention and Health Promotion, with support from a grant from the Robert Wood Johnson Foundation, released an updated version of the software in 2004. Additional enhancements have been made since 2004. ARDI software was originally released in 1989; it was specifically designed to allow states to calculate alcohol-attributable deaths, YPLL, direct health-care costs, indirect morbidity and mortality costs, and non-health-sector costs associated with alcohol misuse. Find more information about ARDI and access the application.
- Updated CDC Winnable Battles Targets. A critical part of the Winnable Battles effort is the ability to set clear, actionable targets to help achieve significant progress in a relatively short time period. Evaluating and regularly defining Winnable Battle Targets gives CDC clear benchmarks, helping to address specific priorities, for Winnable Battles. CDC has recently released the Winnable Battles 2015 Targets. Find more information about Winnable Battles and read about the 2015 Targets [PDF - 2.52MB].
NPR (04/17/2013) Nina Totenberg
On April 17, 2013, the U.S. Supreme Court ruled that a warrant is usually required before police may subject a drunken-driving suspect to a blood alcohol test.
The case is that of a Missouri man, Tyler McNeely, who was stopped for erratic driving. After McNeely refused to submit to a Breathalyzer test, the officer drove him to a hospital for a blood alcohol test.
Missouri argued that a warrant is never required for a blood alcohol test because of the strict time constraints associated with evidence of drunkenness. Since alcohol is naturally metabolized by the body and dissipates from the blood stream, authorities have limited time to obtain evidence of a suspect’s alcohol levels and may not have time to seek a warrant authorizing such a test before the alcohol metabolizes out of the blood stream.
Justice Sonia Sotomayor, who authored the majority opinion, noted that with modern technology, such as cell phones and email, and the fact that a magistrate is usually available at all hours in most jurisdictions, there is typically adequate time for police to obtain a warrant. She further noted that the time associated with arrest and subsequent travel to a local hospital to obtain a blood alcohol test, makes some alcohol dissipation “inevitable.”
While the Court held that a warrant generally is required for a blood alcohol test, the Court declined to define what circumstances would constitute a general rule, saying the determination must be made on a “case-by-case” basis.
[Editor’s note: Find more information and read the Supreme Court Opinion [PDF - 254KB].]
Thompson Reuters (04/19/2013) Adam Kerlin
The Massachusetts Mutual Aid Law (“Mutual Aid law”), passed in 2010, is an opt-in interstate and intrastate mutual aid law that allows hospitals in disasters with the option to employ medical professionals who are credentialed at other hospitals for the time period immediately following the disaster. The Mutual Aid law was invaluable in the wake of the Boston Marathon bombings on April 15, 2013. It allowed healthcare professionals and first responders assist more than 170 people injured by the two blasts.
The law was passed after a 2004 hepatitis A outbreak and a 2008 ice storm, two public health emergencies that would have been mitigated by mutual aid agreements. Massachusetts is one of many states that have tried to improve administrative emergency preparedness by enacting mutual aid agreements and laws.
The dynamics of mutual aid laws are examined and explained by the Assistant Secretary for Preparedness and Response (ASPR), a position created in 2006 within the U.S. Department of Health and Human Services. ASPR’s Hospital Preparedness Program, which “provides funding through grants and cooperative agreements to States, territories, and eligible municipalities to improve surge capacity and enhance community and hospital preparedness for public health emergencies,” was used as a guide for the Mutual Aid Law.
Massachusetts is not the first state to benefit from such mutual aid agreements. When a devastating tornado ripped through Joplin, Missouri in March 2011, the state was able to use a previously drafted mutual aid agreement, which was signed by 92 percent of the states hospitals, to assist those injured by the tornado. The state was able to quickly declare a public health emergency and invoke specific sections of the 1935 Social Security Act, which allowed the state to apply for waivers easing access for first responders. “It allowed us to tell the families of the incoming wounded whether they were at the hospital or not. It also allowed some medical professionals from Oklahoma to easily come to Missouri and help,” said Dwight Douglas, general counsel for the Freeman Health System, which runs the Freeman Hospital West in Joplin, Missouri.
- Alabama: Law could take a bite out of teeth bleaching industry
Lawsuit challenges Alabama law prohibiting non-dentists from bleaching teeth
Inside Counsel (05/06/2013) Julie Beck
- Alaska: Raw milk, illegal unless consumed by animal’s owner, sickens 31 people
Raw milk Campylobacter outbreak leaves four with reactive arthritis
Food Poisoning Bulletin (05/06/2013) Carla Gillespie
- California: Adult film industry seeks fewer permits after county’s mandatory condom law
Porn shoots look outside L.A. County to avoid condom law
Los Angeles Times (04/18/2013) Kurt Streeter
- Massachusetts: President Obama signs Boston Marathon bombing disaster declaration
President signs disaster declaration for marathon bombings
ABC 40 (04/17/2013)
[Editor’s Note: Read Massachusetts Governor Deval Patrick’s and the White House’s respective press releases regarding the disaster declaration.]
- Nevada: San Francisco City attorney questions Nevada’s alleged patient dumping
Allegations of ‘patient dumping’ puts NV at odds with other states
ABC 13 Action News (04/22/2013) Katie Crowther
- New Jersey: Beatles? Police? Abbey Road cover reenactment highlights pedestrian laws
Wyckoff Police pose as Beatles to announce pedestrian law crackdown
NJ.com (05/06/2013) Myles Ma
- Tennessee: Victim Compensation Law leaves some DUI victims without assistance
Clarksville tragedy sparks mother’s fight for new victim compensation law
The Tennessean (05/05/2013) Tavia D. Green
- National: Generic OxyContin banned in effort to curb prescription drug abuse
FDA bars generic OxyContin
New York Times (04/16/2013) Barry Meier
[Editor’s note: Find more information about the FDA’s recent decision.]
- National: New regulations would require federal review for tanning bed manufacturing
FDA proposes cancer warnings on tanning beds and additional testing by manufacturers
Washington Post (05/06/2013)
[Editor’s Note: Find more information and read the FDA proposal.]
- National: States seek to circumvent federal gun laws
How states are making it a felony to enforce federal gun laws
Atlantic Wire (05/02/2013) Lois Beckett
- National: Sugary soda ban may have unintended back splash with consumers
NYC soda ban would lead customers to consume more sugary drinks, study suggests
CBS News (04/11/2013) Ryan Jaslow
[Editor’s note: Find more information and read the University of California, San Diego study.]
- China: Mastiffs’ popularity increases even after ban on large breeds & rabies outbreak
How puppy smugglers feed Hong Kong’s lover affair with big dogs
CNN (04/28/2013) Peter Shadbolt
This Month's Feature Profiles in Public Health Law: Interview with Robert D. Brewer, M.D., M.S.P.H., CAPT, U.S. Public Health Service
Robert D. Brewer, M.D., M.S.P.H.
- Title: Alcohol Program Leader, Excessive Alcohol Use Prevention Team, National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP)/CDC
- Education: University of Illinois College of Medicine, M.D., 1982; University of Illinois School of Public Health, M.S.P.H., 1978; George Williams College, B.A., 1976.
CDC Public Health Law News (PHLN): What sparked your interest in public health?
Brewer: I’ve had a long-standing interest in social justice, health, and sociology, and public health seemed to fire on all these cylinders and more. My interest in public health was further strengthened when I was in medical school and constantly saw patients who were suffering from the downstream effects of unhealthy lifestyles. In fact, based on this experience, I came up with an alternative definition for the “SOAP” acronym that’s commonly been used to organize medical records. Instead of “Subjective, Objective, Assessment, and Plan,” I thought the “SOAP” of Preventive Medicine should be “Smoking, Obesity, Alcohol (misuse), and Physical Inactivity.” Much of what I’ve seen and what’s been published since then has strengthened my belief in the importance of promoting healthy lifestyles, and has underscored the key role that public health can play in creating environments that do exactly that.
PHLN: Please describe your career path to the CDC’s Excessive Alcohol Use and Prevention Program.
Brewer: I started my career at CDC as an EIS Officer in North Carolina, where I had a chance to work on a project assessing the relationship between prior arrests for alcohol-impaired driving and death in an alcohol-related motor vehicle crash. After finishing the EIS Program, I worked in the Division of Injury Control, which became the current National Center for Injury Prevention and Control, and ultimately led the Center’s work on the prevention of alcohol-impaired driving. I subsequently left Atlanta to work as the State Chronic Disease Epidemiologist in Nebraska through the CDC’s Chronic Disease Field Epidemiology Program. In Nebraska, I spent a great deal of time working with the tobacco program, just when the state began receiving significant funding through the Master Settlement Agreement.
Based on this experience, it really seemed like there was an opportunity to apply some of the lessons learned from tobacco to reducing excessive alcohol use and the many harms related to it. I spoke with others at CDC about this, including Mary Serdula and ultimately Jim Marks, who was then the Director of NCCDPHP, and arrangements were subsequently made through the USPHS to transfer me back to Atlanta to explore the possibility of establishing an Alcohol Program in NCCDPHP. Almost 12 years later, I’m still here, and working with our team to improve our understanding of the public health impact of excessive drinking and of evidence-based strategies to prevent it.
PHLN: Please describe your program and its goals.
Brewer: The mission of our program is to strengthen the scientific foundation for the prevention of excessive alcohol use, which is admittedly a pretty lofty goal. On a practical level, this involves our applying some well-established public health tools, like public health surveillance, to the huge problem of excessive drinking (e.g., 80,000 deaths and 2.3 million years of potential life lost each year), and then using the lessons learned from applied public health research to determine effective ways to prevent it. Our ongoing collaboration with The Community Guide has been particularly critical in this regard, and has helped us to develop a portfolio of evidence-based strategies that states and communities can use to prevent excessive drinking. Many of these strategies are conceptually quite similar to those that have been effective in reducing smoking.
As a result of this work, we now have a pretty good idea what the nature of the problem is that we’re trying to prevent (e.g., binge drinking) and what works to prevent it (e.g., increasing the price and reducing the availability of alcoholic beverages). The challenge now is figuring out how we can help support the translation of these evidence-based strategies into public health practice. This is leading us to place even greater emphasis on collaboration with the Public Health Law Program and with partners such as Alcohol Policy Consultations to better characterize the legal environment in states and communities and its effect on alcohol consumption. We are also working with OSTLTS [Office for State Tribal, Local and Territorial Support] on state Prevention Status Reports, which will be extremely helpful for informing states about Community Guide-recommended strategies for preventing excessive drinking. Our program is also committed to building state public health capacity in Alcohol Epidemiology. Most importantly, though, we have extremely talented staff on our team who work very hard and who aren’t afraid to take risks, which makes all the difference in the world.
PHLN: What is excessive alcohol use, and what is binge drinking?
Brewer: Excessive alcohol use is an umbrella term that includes high per-occasion alcohol consumption or binge drinking, defined as four or more drinks per occasion for a woman or five or more drinks per occasion for a man; high average daily alcohol consumption or heavy drinking, defined as more than seven drinks per week for women or more than fourteen drinks per week for men; and any drinking by certain high-risk groups, particularly underage youth and pregnant women. Binge drinking is by far the most common and most dangerous pattern of excessive alcohol use in the U.S. among both adults and youth, and is essentially drinking to the point of acute intoxication.
PHLN: How prevalent is binge drinking?
Brewer: About one in six U.S. adults—or roughly 38 million—report binge drinking during the past 30 days. Those who do tend to do so frequently, an average of about four times per month, and drink an average of about eight drinks per binge, which is obviously well above the cut-points we use to define this behavior. While binge drinking is more common among youth and young adults ages 18 to 34 years, most of the over 1.5 billion episodes of binge drinking that we estimate occur in the U.S. each year involve drinkers age 26 years an older. Furthermore, contrary to conventional wisdom, most binge drinkers are not alcohol dependent, which has important implications for planning and implementing prevention programs to address it.
PHLN: Does your program offer guidelines related to the prevention of excessive alcohol use?
Brewer: Our program has worked closely with the Division of Nutrition and Physical Activity in NCCDPHP, and through them with the U.S. Department of Agriculture, on the Alcohol Chapter for the 2010 U.S. Dietary Guidelines. These Guidelines indicate that people who drink should do so in moderation—defined as up to one drink a day for women or two drinks a day for men. Pregnant women and underage youth shouldn’t drink at all, and neither should those with medical conditions that could be made worse by drinking. The Guidelines also emphasize that no one should begin drinking or drink more based on potential health benefits. These guidelines are based on solid science, and reflect the fact that the risk of harms from alcohol, including the risk of death from cancer, actually begins at far lower levels of alcohol consumption than a lot of people think.
PHLN: How is your program working to characterize the problem of excessive drinking?
Brewer: We use data from public health surveillance systems such as the Behavioral Risk Factor Surveillance System (BRFSS) and Youth Risk Behavior Surveillance System (YRBSS) to assess how many people binge drink, how often, and how much they drink when they do. We have also worked with partners, such as the Robert Wood Johnson Foundation (RWJF), to develop the Alcohol-Related Disease Impact application, which we use to estimate deaths and years of potential life lost due to excessive drinking in the U.S. and in states. More recently, we worked with the RWJF and the Lewin Group to assess the economic cost of excessive alcohol use in the U.S., which we conservatively estimate as $223.5 billion, or about $1.90 a drink. It turns out that most of these costs are due to lost workplace productivity, and that a large chunk of these costs—about $0.80/drink—are paid by state and local governments.
We are also working collaboratively with other CDC programs, including Injury and Birth Defects, to improve the usefulness of public health surveillance systems by developing, for example, new modules of questions for the BRFSS on screening and counseling for excessive alcohol use and new questions for the YRBSS on the largest number of drinks consumed by high school students.
Last but not least, we are also working with the Center on Alcohol Marketing and Youth (CAMY) at the Johns Hopkins Bloomberg School of Public Health to assess risk factors for excessive alcohol use, particularly underage drinking. We know that alcohol advertising is one of the key risk factors for underage drinking, and we know that youth exposure to alcohol advertising has been increasing, particularly on cable TV. Our work with CAMY is giving us new insights into the extent of this problem, and helping us to develop new strategies to address it.
PHLN: How is your program working to inform the public and improve public health with regard to excessive drinking?
Brewer: This is a critical question for us. We really strive to not only advance the science related to excessive alcohol use, but to also make it accessible to the public and to public health professionals in a user-friendly way. For example, for the last three years, we have developed a CDC Vital Signs on binge drinking. A Vital Signs release includes an MMWR article, a four-page fact sheet, a press teleconference, and many other communication products. This has allowed us to reach a wider audience than scientific activities normally would.
As I mentioned earlier, we are also working to build state and local public health capacity in alcohol epidemiology. We currently fund positions in two states, but we aspire to fund these positions in many more, as the resources become available for us to do so. We’ve found that these alcohol epidemiologists can play a key role in defining the problem of excessive drinking at the state and local levels, and build partnerships with public health programs and with community coalitions to support the implementation of Community Guide recommendations on the prevention of excessive alcohol use.
PHLN: Speaking of The Community Guide,your program has worked extensively with The Guide to Community Preventive Services to synthesize and disseminate scientific information on the prevention of excessive alcohol use. Will you please describe your partnership with The Community Guide and the recommendations the Community Preventive Services Task Force has made on the prevention of excessive drinking?
Brewer: This has been and continues to be one of our most important partnerships, and we are extremely grateful to the Community Guide staff and the Community Preventive Services Task Force for all the work they’ve done on the alcohol reviews we’ve completed thus far. A key strength of the Community Guide review process is its scientific rigor and objectivity. As a result, The Community Guide is widely regarded as being the “gold standard” for defining evidence-based strategies for reducing excessive alcohol use.
Based on this work, the Task Force has recommended several evidence-based strategies for reducing excessive alcohol use and related harms in states and communities, including
- Increasing alcohol taxes
- Regulating alcohol outlet density (i.e., the number and concentration of alcohol retailers in an area)
- Dram shop liability (or commercial host liability), which refers to laws that hold alcohol retailers responsible for harms caused by patrons who were underage or intoxicated
- Not privatizing the retail sale of alcohol
- Maintaining limits on days and hours of alcohol sales
- Enhanced enforcement of laws prohibiting sales to minors
- Electronic screening and brief intervention for excessive alcohol use
PHLN: How have the Community Guide recommendations been received or implemented and why?
Brewer: On one hand, the prevention community has welcomed solutions supported by such strong scientific evidence. On the other, these have been some of the least implemented Task Force recommendations. I think some real work needs to be done to change the way we think about drinking too much in the national consciousness to support the implementation of these strategies into public health practice, and that is one of the areas where public health has an important role to play. Many people simply don’t yet understand that excessive drinking is an important public health problem that is amendable to the sort of systems and environmental strategies that are recommended by the Task Force. We also need to build state and local public health capacity, not just in alcohol epidemiology, but also in public health law and in other disciplines that can help support evidence-based strategies more broadly. Our program is working with partners to develop tools to inform the translation of Task Force recommendations into practice, and recently released an Action Guide on regulating alcohol outlet density. But clearly the general trend in the U.S. is toward the deregulation of alcohol marketing—which runs counter to many of the Community Guide recommendations for reducing excessive drinking.
PHLN: Why is excessive alcohol use an important public health law issue?
Brewer: It’s an important public health law issue because, similar to smoking, the most impactful interventions for reducing excessive alcohol use deal with the price and availability of alcoholic beverages, which are governed, either directly or indirectly, by federal, state, and local laws. A good example of this are state preemption laws; it turns out states vary widely in the extent to which they grant local governments the authority to control the issuance of new alcohol licenses and local land use, both of which are important for the regulation of alcohol outlet density. That’s why we work extensively with partners such as Alcohol Policy Consultations and the Public Health Law Program to assess the alcohol policy environment in states, and to make this information available to public health professionals through publications, presentations, and state profiles, such as those included in the new Prevention Status Reports that will be released this fall.
PHLN: What are your current projects?
Brewer: We’re assessing the economic cost of excessive alcohol use in states, leveraging off the national cost estimates we recently published. We hope these states’ estimates will help inform discussions of strategies to prevent excessive alcohol use at the state and local levels.
We’ve also worked with the Fetal Alcohol Syndrome Prevention Team to develop a new module of questions on excessive alcohol use screening and brief intervention for BRFSS, and are planning to fund states to implement this module in their 2014 state BRFSS surveys.
We also have a number of other alcohol epidemiology projects that we’re working on with states and other partners to assess, for example, death rates from alcohol-attributable conditions in states; the impact of Community Guide-recommended prevention strategies on alcohol-attributable harms in communities; and the development of guidelines that states and communities can use to measure alcohol outlet density.
PHLN: Please describe any personal information, hobbies, or interests you care to share.
Brewer: I very much enjoy bicycling, particularly with my daughter; hiking; dancing; photography; and spending time with family and friends. I also enjoy good coffee and pastries, though I try not to overindulge my sweet-tooth too much!
PHLN: Have you read any good books lately?
Brewer: I recently finished re-reading “The Art of Happiness” by His Holiness the Dalai Lama and Howard Cutler, M.D. I’ve heard the Dalai Lama speak a couple of times, and am always impressed by his wisdom and by his delightful sense of humor.
PHLN: Is there anything else you'd like to add?
No. Thank you for your time and interest in our Program.
- California: Tobacco litigation attorney fees of $2.9 million within court’s discretion
In re Tobacco Cases I [PDF - 93KB]
Court of Appeals of California, Fourth District, Division One
Case No. D061077, D061676
Opinion by Judge Ronald S. Prager
- New York: HIPAA does not preempt state education law with regard to privilege log
Marabello v. State
New York Court of Claims
Case No. 115999
Opinion by Judge W. Brooks DeBow
- Ohio: Collecting urine in jars inadequate sewage disposal, board immune to suit
Brown City Board of Health v. Raichyk [PDF - 37KB]
Court of Appeals of Ohio, Twelfth District, Brown County
Case No. CA2012-06-011
Opinion by Judge Robert P. Ringland
- Federal: Federal Mine Safety and Health Review Commission can request health records
Big Ridge, Inc. v. Federal Mine Safety and Health Review Commission
United States Court of Appeals, Seventh Circuit
Case Nos. 12-2316 and 12-2460
Opinion by Judge David F. Hamilton
Quotation of the Month: Dr. Tracey Green, Nevada State Health Officer
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