Public Health Law News

October 2019

Announcements

APHA Annual Meeting and Expo Law Section Events and Sessions.external icon The American Public Health Association (APHA) is hosting its annual meeting and expo on November 2–6, 2019, in Philadelphia, Pennsylvania. If attending, join the APHA Law Section at some of their events and featured sessions, including Health Care, Law and Human Rights in the Immigration Debate; The Opioid Crisis Goes to Court: Litigating an Epidemic; and Legal Strategies to Address Increased Use of E-Cigarettes and Flavored Tobacco Products.


Civil Rights Law and the Determinants of Health: How Some States Have Utilized Civil Rights Laws to Increase Protections Against Discrimination.external icon In a journal article released in the Journal of Law, Medicine & Ethics,the authors explore examples of how some states are using civil rights laws to fight against discrimination, notably in the interest of new populations. The authors also present tools for targeting determinants and addressing the goal of reducing health disparities.


WHO Publishes Regional Ebola Preparedness Overview for DRC, 9 Neighboring Countries.external icon The World Health Organization (WHO) has released an overview of important activities needed to advance Ebola preparedness. This overview focuses on Priority 1 countries and elaborates on the urgent activities in each country’s national plan. The document features the estimated requirements, needs, and gaps for Priority 1 countries, as well as a summary for Priority 2 countries.

Legal Tools

Sugary Drink Warning Labels: A Legal Update.external icon Evidence has shown a link between sugary drink consumption and poor public health outcomes, and warning labels are one policy strategy that policymakers and public health advocates are proposing or considering to address the problem. ChangeLab Solutions created this legal update memo summarizing the key takeaways from three recent court cases relating to sugary drink warning labels as a potential policy strategy. The update includes practical suggestions for warning language and label design.


Toolkit: State Strategies to Support Older Adults Aging in Place in Rural Areas.external icon The National Academy for State Health Policy has released a toolkit that highlights state initiatives to help older adults in rural locations age in place. The aim is to increase services that help people to remain in their home: expanding and professionalizing the caregiver workforce, enhancing transportation access and services, and reforming the delivery system within Medicaid programs.


Rural Suicide Prevention Toolkit.external icon This toolkit, produced by the Rural Health Information Hub, compiles evidence-based models and resources to help support organizations that are implementing suicide prevention programs in rural communities throughout the United States. The toolkit’s modules include resources and information on developing, implementing, evaluating, and sustaining rural suicide prevention programs.

Top Stories

California: In California, a ‘surprise’ billing law is protecting patients and angering doctorsexternal icon
The New York Times   (09/26/2019)   Sarah Kliff and Margot Sanger-Katz

Story Highlights

When a person with health insurance inadvertently receives care from an out-of-network provider, he or she may get a “surprise” medical bill—or a much higher bill for services than what would be anticipated for in-network care. Costs have begun to rise so much that lawmakers are seeking action, and California passed a bill that outlawed surprise medical bills and limited the payments for out-of-network doctors to a formula based on what other doctors are being paid. As a result, lawmakers are looking to the California law as an example of how to potentially address the issue on a national scale. This summer, bipartisan bills similar to California’s were passed by committees in both the US House and Senate.

There has been strong debate, however, over whether the California law has been successful. Critics of the surprise medical bill law argue that the biggest impact will be reducing patients’ access to care by decreasing the number of in-network doctors they are able to see. Supporters of the law believe that patients’ access to care has not and will not be affected, and in some cases certain disciplines of medicine saw their work that is covered by insurance increase by an average of 17%. Since California’s law took effect in 2017, there has been little complaint by consumers to the state’s Department of Managed Health Care, citing that less than 20% of patients who were treated at an in-network hospital were still receiving out-of-network care.

Opponents of national legislation that targets surprise medical bills believe that a law similar to California’s will lead to the closing of some hospitals, reduced payments for doctors, and disruption in medical care to the point that patients will have difficulty finding a doctor. Doctors believe they will have less negotiating power with insurance companies.

Although the two sides cannot agree on the impact of the California law, national legislation has not yet advanced to the floor in either the House or the Senate.

[Editor’s note: Learn more about California’s lawexternal icon. Also, read the billexternal icon in the House and the billexternal icon in the Senate.]


Nevada: Nevada levies $17 million in fines on drug companies for noncompliance with diabetes drug transparency lawexternal icon
The Nevada Independent   (10/02/2019)   Megan Messerly

Story Highlights

The cost of the diabetes medication insulin has been a growing concern to advocates and lawmakers. More than 1 in 10 adults in the state of Nevada suffers from diabetes, and diabetes costs Nevada approximately $2.7 billion each year in direct and indirect medical expenses. Two years ago, Nevada passed a drug-pricing transparency law aimed at tackling the price of diabetes medications. Under the 2017 law, drug manufacturers must report information related to their costs, coupons, and profits and explain significant drug price increases. The state may fine drug manufacturers $5,000 a day for failure to report this information.

Recently, Nevada has fined 21 diabetes drug manufacturers $17.4 million for failure to comply or excessively delayed compliance with the 2017 drug-pricing transparency law. The fines ranged from $735,000 to $910,000 from company to company. Companies have 30 days to either pay the fine in full or request an informal dispute resolution meeting with the state. If companies fail to follow either of these actions, their cases will be referred to the attorney general’s office for a court order to collect the penalty.

Since being notified of the fines, nine companies have provided the mandatory information and documentation explaining why they were late paying the fine. However, the informal dispute resolution meeting will still be necessary “to further clarify” each company’s position. According to Nevada’s Department of Health and Human Services, companies that participate in the informal dispute resolution meeting will have the opportunity to present information in front of an impartial hearing officer, who will decide whether the company has to pay the fine in full or a lesser amount, or whether the penalty can be waived altogether. The department’s director stated that “the goal of the process is compliance and, by extension, obtaining more information to better grasp the costs of treating diabetes in the state, not to collect money.”

One company has stated that its failure to comply with the reporting deadline was a result of company personnel changes, but many other companies attribute their noncompliance to simply not knowing the new law existed. As this is the first year of reporting, companies are hoping for understanding and leniency. If collected, fines will be used to cover staff time spent on the informal dispute resolution meetings and toward ensuring compliance in the future. Earlier this year, legislation was passed that will expand the reporting requirements for diabetes drugs to asthma drugs, with the first reporting deadlines set for next year.

[Editor’s note: Read more about the 2017 drug transparency lawexternal icon. Also, read the more recent legislationexternal icon that applies to asthma medications.]

Briefly Noted

California: L.A. County supervisors vote to ban flavored tobacco and call for statewide vaping banexternal icon
LA Times   (10/01/2019)   Kate Elizabeth Queram
[Editor’s note: Read more about the ordinancepdf icon[PDF – 1MB]external icon that will take effect in 30 days.]


Maryland: Maryland law raising smoking age goes into effect Tuesdayexternal icon
ABC News   (09/30/2019)   The Associated Press
[Editor’s note: Read more about the new lawpdf icon[PDF – 414KB]external icon, which took effect October 1, 2019.]


Massachusetts: Baker declares public health emergency, orders 4-month ban on all vaping productsexternal icon
Boston Globe   (09/24/2019)   Matt Stout
[Editor’s note: Read more about the ban and get access to resources and informationexternal icon.]


Ohio: Johnson & Johnson agrees to settle Ohio opioid lawsuits for $20.4 millionexternal icon
The Wall Street Journal   (10/01/2019)   Sara Randazzo
[Editor’s note: Read Johnson & Johnson’s statementexternal icon about the settlement.]


Pennsylvania: US judge: Injection sites don’t violate federal drug lawsexternal icon
AP News   (10/02/2019)   Maryclaire Dale


West Virginia: Federal lawsuit targets West Virginia foster care systemexternal icon
AP News   (10/01/2019)   John Raby
[Editor’s note: Read the class action complaintpdf icon[PDF – 580KB]external icon that was filed.]


National: 23 states sue Trump Administration in escalating battle over emissions standardsexternal icon
NPR   (09/20/2019)   Colin Dwyer
[Editor’s note: Read about the ruleexternal icon.]


National: As rural groceries fade away, lawmakers wonder whether to actexternal icon
PEW Stateline   (10/02/2019)   April Simpson
[Editor’s note: Read A Look Inside Food Deserts.]


National: New rule requires antibiotic stewardship programs in US hospitalsexternal icon
CIDRAP News   (09/26/2019)   Chris Dall
[Editor’s note: Read about the rulepdf icon[PDF – 1.55MB]external icon.]

Global News

Democratic Republic of Congo: DR Congo: Vaccine campaign for world’s largest measles outbreakexternal icon
BBC   (09/26/2019)


Russia: Strict alcohol laws, which cut intake more than 40 percent in Russia, linked to historically high life expectancyexternal icon
UN News   (10/01/2019)
[Editor’s note: Read the reportexternal icon by the World Health Organization about alcohol policy impact case study in the Russian Federation.]


United Kingdom: UK will step up efforts to end preventable deaths of mothers, newborn babies and children in the developing world by 2030external icon
Government of UK Press Release   (10/02/2019)


Global: New Google, UN partnership aims to ‘turn on the tap’ to SDG data external icon 
Devex   (09/26/2019)   Amy Lieberman


Global: The E-cigarette backlashexternal icon
Council on Foreign Relations   (10/02/2019)   Claire Felter


Global: UN welcomes ‘most comprehensive agreement ever’ on global healthexternal icon
UN News   (09/23/2019)
[Editor’s note: Read the declarationpdf icon[PDF – 182KB]external icon. Read the World Health Organization’s Universal Health Coverage Monitoring Reportexternal icon.]

Profile in Public Health Law: Terese Voge, MPA
Photo: Terese Voge, MPA

Title: Health Program Manager, Impact Sonoma Tobacco-Nicotine Prevention, County of Sonoma, California, Department of Health Services, Public Health Division

Education:

  • MPA, California State University, Sonoma
  • BS, Social Work, California State University, Long Beach

Public Health Law News (PHLN): Please describe your career path.

Voge: I started my career as a social worker in rehabilitation hospitals/skilled nursing facilities. From there, after graduate school, I was hired to work on children’s advocacy in a small non-profit where we were afforded the opportunity to think boldly and advance some very forward-thinking policies to address deeply entrenched problems—like uninsured children and a lack of services for children’s mental health and dental health. I worked with and learned from some amazing women in that job. Next, I worked for an organization called the Center for Applied Research Solutions, which held several statewide contracts to facilitate technical assistance and trainings to the substance use disorder prevention field. I was responsible for the development of curricula and publications. For the past six years, I’ve held my current position. Initially, I managed a team and programs related to preventing alcohol, tobacco, other drug, and violence in Sonoma County. With the passage of Proposition 56 tobacco tax in California, we were able to expand our tobacco team, and that is now my sole focus.

PHLN: What drew you to public policy and education and, more specifically, substance abuse and tobacco use prevention?

Voge: Early on, social work fed my need to make sense of my childhood, as well as societal problems, while providing a path to take action. Further along, I found that my interests lied in the study of public policy and government systems, as this cultivated my desire to address injustice and inequity. I think prevention is a natural leaning for those of us who have worked with people in crisis; it’s about self-preservation and guards against burnout. The substance use prevention field is attractive because it’s a source of passion and it’s a robust field. Tobacco prevention allows me to work in the arena of policy, systems, and environmental change every day, and I’m grateful for the opportunity.

PHLN: What are tobacco retail license (TRL) programs and what are they supposed to achieve?

Voge: TRLs are policies passed by state and local governments that can greatly affect how and where tobacco is sold, as well as the types of tobacco products. Many governments have used TRLs to expand their ability to check up on retailers, to stipulate additional conditions with the intention of decreasing access to tobacco products by underage youth/young adults, and to mitigate health inequities.

Unlike regulating tobacco sales through land use policy, for example, TRLs have the advantage of charging a fee to retailers. This provides the revenue to support the associated program. At the heart of a TRL program is compliance, which is achieved by conducting regular visits and establishing a rapport with the retailers. These compliance visits are critical because they’re used to educate the retailer and help them adhere to all tobacco laws, while also monitoring for violations. Our goal in Sonoma County is to always avoid penalties and fees that come with persistent or egregious violations by ensuring the retailer really understands the rules.

As I mentioned, TRLs also provide a pathway to address local issues by adding conditions and restrictions to the policy. These components can mean the difference between a strong and very effective policy versus a weak one. Strong TRL policies have been proven to decrease sales to minors. Ultimately, the goal is to lower youth tobacco use rates. If a TRL can, for example, ban flavored tobacco products, which are popular among youth, then fewer youth will have access to them.

PHLN: In broad strokes, can you please describe some TRL strategy options?

Voge: There are a number of TRL components that are options for policymakers. Some of the most effective, according to research, are increasing the price (essentially, setting a price floor—meaning, no product can be sold for less than the determined minimum price). There’s also setting pack size limits. This was done in 2009 by the FDA with cigarettes, but other products, such as cigars and little cigars, don’t have such limits. We know that youth are particularly sensitive to price. Other measures include restrictions on density, meaning how many retailer outlets are allowed in a jurisdiction, or certain area, for example, within a school perimeter. Also, the type of retailer can be prohibited, for example, retailers that sell primarily tobacco products, or pharmacies. With the epidemic use of e-cigarettes by youth, and the role that flavors play in their popularity, flavor bans have become increasingly more common.

PHLN: How are TRL programs related to public health equity? How can implementing innovative tobacco retail licensing programs work to help achieve health equity?

Voge: TRLs are an important policy vehicle to help mitigate health impacts wrought by the tobacco industry’s targeting of certain populations. Data tells us that people of low socioeconomic status (SES) and certain populations (e.g., LGBTQ) are more likely to use tobacco. These rates are the result of industry tactics; it’s well established that tobacco prices are lower in low-income areas and that tobacco retailers are more concentrated in low SES neighborhoods. We can help undo this targeting by setting density limits and price floors. Another example has to do with menthol. In 2009, the FDA banned all flavored cigarettes, but they made an exception for menthol. Menthol is more than a flavor, it provides a medicinal-type effect, soothing the harshness of burned tobacco, which makes it easier for those initiating use to keep on using. It’s also a product heavily marked to African Americans and LGBTQ populations. Many jurisdictions have recognized the exemption as a wrong, and that allowing menthol to stay on the market will perpetuate health inequities. As a result, we are now seeing flavor bans that include menthol.

PHLN: How did your office determine that TRL might be a viable a tobacco control intervention for Sonoma County?

Voge: Locally, the interest in the policy was raised by the Board of Supervisors, with two members, Shirlee Zane and Susan Gorin being the main proponents. They requested staff to research options for a TRL and return to the Board.

The fact that tobacco policies, such as TRLs, have gained such traction in California is in large part due to the vast structure in place to assist local public health departments, and community-based and statewide-organizations in their efforts to protect the public against tobacco. California voters have made this possible by passing tobacco taxes that now generate funding for prevention work throughout the state. The state program that makes this all possible is the California Tobacco Control Program (CTCP). CTCP works closely with each county’s designated tobacco control Local Lead Agency (LLA) and other grantees to guide, monitor, and coordinate their work. They provide technical assistance and engage in the critical thinking necessary to move the research into practice. As a result, LLAs are kept up to date on the most effective policies to prevent and address tobacco use and exposure to secondhand smoke, are trained on the intricacies of those policies, and are funded to assist jurisdictions in adopting these policies. I really think that without this coordinated and well-funded program, we’d be no match for the tobacco companies. Fortunately, because CTCP equips LLAs with the resources and support to establish expertise, when local policymakers are interested in curbing youth tobacco use, they can find the guidance they need. This complex system of support has led to the passage of over 156 strong tobacco retailer licensespdf icon[PDF – 670KB]external icon in California.

PHLN: What kind of TRL legal provisions have been implemented in Sonoma County jurisdictions?

Voge: There are currently four jurisdictions within Sonoma County with TRLs: 3 cities and the county unincorporated. Each TRL consists of different provisions. Two cities have variations of flavor bans, while the county unincorporated and one city have instituted one of the more unique provisions: minimum price. Two cities have pack size restrictions, and pharmacies were banned from selling tobacco products in the jurisdictions that had pharmacies actively selling tobacco products.

County of Sonoma unincorporated also established a ban on new retailers, setting a density limit to a ratio of 1 retailer per 2,500 county residents. They are restricting new retailers that sell primarily tobacco products. They also added a provision that requires ID to be checked at the door of these retailers so no one under 21 may enter.

PHLN: What are the challenges to implementing innovative TRL programs? What are some ways to overcome these obstacles?

What we think of as “innovative” may not initially be embraced by the general public, and that can influence elected officials’ opinions and actions. For any particular policy, the reality is there may be one or two elected officials who are proponents, a few on the fence, and some opposed. It’s important to understand their reasons and address their concerns and questions, and a good way to communicate with public officials and the community is through a study session with an elected body. The public policy vetting process is intended to consider the concerns of all involved. However, it’s necessary to get ahead of the process before you’ve done a first read of a policy in order to understand all the positions and community concerns. Often, it’s community members or organizations who bring the issue and potential policy solutions to the elected body in the first place.

As public health professionals, we have the advantage of being on the forefront of research, and we contemplate solutions, often for years, before they become mainstream; we’re essentially early thought-adopters. One of the things we do best is to educate the public, and we do this by appealing to the head and the heart—by sharing data and telling stories and using real-life scenarios. Think about how social norms have shifted about smoking in public places, but this did not happen overnight, and there’s still a long way to go. We don’t let people smoke on planes anymore, but there are still restaurants in the US that allow smoking.

Innovative policies also call for more legal scrutiny to ensure the jurisdiction will not open itself up to a lawsuit. Often small jurisdictions just don’t have the resources to enter into a costly legal battle. For this reason, larger jurisdictions, who are better resourced, go first, then smaller cities and counties can follow.

The City of Healdsburg adopted a TRL policy that placed them first among California cities to raise the legal age of tobacco purchase to 21. While they were ultimately sued by the industry, which delayed implementation of the policy, the threat did not stop them from adopting the policy. Healdsburg’s mayor at the time, Dr. Jim Wood, went on to become a State Assembly member. No surprise, Dr. Wood was instrumental in the passage of the Tobacco 21 policy in California, which passed just a few years after Healdsburg’s. Also, a noteworthy caveat in Healdsburg was the strong community support for the policy. In particular, two medical doctors, Dr. Dave Anderson and Dr. Drexler, both members of Sonoma County’s Tobacco-Free Community Coalition, played essential roles in the passage of the policy.

PHLN: What are some productive ways to engage retailers in the process, whether they are in support of or opposed to strict TRL programs?

Voge: In Sonoma County, the Board of Supervisors directed health department staff to hold a series of public meetings to hear and develop options to mitigate retailer concerns and hear from the community. This was a productive way to ensure concerns were fully understood, and to then share the information with our Board in order for them to contemplate changes to the ordinance. One of the retailer’s biggest concerns was regarding the license transfer. As a result, the policy was amended to remove the provision that prohibited transfer for most retailers, and where transfer prohibition remained, within 1,000 ft of schools, and an exception was made to allow a transfer of license to a relative.

PHLN: Why was parity such a big issue for Sonoma County’s TRL implementation and how was it addressed?

Voge: In Sonoma County, retailers were also concerned about the minimum price provision—proposed at $7 a pack.

They were concerned about fairness, that the pricing mandate would cause them to lose business to retailers in neighboring city jurisdictions, who could charge less. Interestingly, a number of retailers said they were fine with the provision itself, that they would even support a higher minimum price, as long as the retailer down the street had the same price floor.

The Board of Supervisors heard this concern and decided to delay the implementation of the minimum price provision by a year and a half. To help, the Board also directed health services staff to work with cities to present the option of adopting a TRL with the same minimum price provisions in order to create a more even playing field among retailers. Between the time that the TRL was adopted and the time that the minimum price went into effect, California passed an additional $2/pack tax on tobacco products, which greatly neutralized the minimum price impact. The provision went into effect with little opposition from retailers.

PHLN: What other community partners, if any, assisted in the development of Sonoma County’s TRL program? Why is it important to include these stakeholders?

Voge: I think in examples like this, those directly impacted by new restrictions and fees—in this case the retailers—tend to get most of the attention, compared to those who suffer at the hands of the tobacco industry. The reason these policies are being suggested in the first place, which is to address existing problems and inequities, should be afforded equal attention and voice. In Sonoma County, one of the main reasons the TRL was even considered was due to the high levels of sales to minors, 18% at the time, in our local retail environment. In our case, we educated partners and supported the local tobacco coalition to ensure a broad swath of the community was heard from, including health- and wellness-related organizations, parents, youth, schools, medical professionals, etc. Their personal and professional accounts informed the policy debate immensely. For example, many of the retailers blamed the problem of youth use on poor parenting, and the community response was really effective at showing how complex the problem was, and that parents can’t be the scapegoat.

PHLN: What results have you seen since the implementation of the tobacco retailer licensing program?

Voge: Within two years of passage, we saw a significant reduction in our undercover youth purchase rates within the County of Sonoma Unincorporated, from 18% to 2%. Our approach was to emphasize the education and support aspects of compliance, and this has resulted in having good rapport with the retailers. We have not had to issue any citations for violations. The number of retailers has decreased from about 140 prior to passage of the TRL, to about 86. This is in part due to attrition as retailers who sold few tobacco products to begin with decided not to sell any longer. The license fee has remained at $350 a year, with the Board of Supervisors choosing to subsidize the cost of the fee the first two years of implementation in order for staff to provide two visits per year to each retailer. Currently, retailers receive one visit per year, more if there are issues identified and re-inspection is warranted.

PHLN: What advice would you give others who are considering implementing or changing their TRL laws?

Voge: My advice would be to think about TRLs as part of an overall strategy necessary for a community to tackle an immense and complex problem. Having a strong local tobacco coalition that can lead advocacy efforts and bring many people and interests to the table to address a common goal is essential. This is important because when it comes to policy making, voices of opposition are sure to show up. Also, I can’t emphasize enough the importance of the youth/young adult voice as they provide authenticity to the problem. If you can involve youth in tobacco prevention work, they become experts in their own right, and are usually wanting to have a voice.

PHLN: Where can jurisdictions interested in implementing innovative local tobacco retailer license programs learn more?

Voge: Having access to technical assistance support from think-tank and expert organizations makes all the difference for localities. We are fortunate in California that these types of agencies are funded by the State to support tobacco prevention work. I’m naming a few stand-outs who we work with: ChangeLab Solutions, the Center for Tobacco Policy & Organizing (American Lung Association), the Public Health Law Center (Mitchell Hamline School of Law), and the Center for Tobacco Control Research and Education at the University of California San Francisco.

PHLN: Have you read any good books lately?

Voge: One of my recent reads was The Sympathizerby Viet Thank Nguyen, which was made even more interesting by the post-discussion I had with my book group. The book is a great reminder about how history is made and understood, and that there’s always another perfectly valid perspective, which can be suppressed or overlooked if we’re not open to hearing it.

PHLN: Do you have any hobbies?

Voge: For the past year or so, I’ve been learning flamenco dance and culture, and it’s been a wonderful way to challenge the brain and body to be in sync. It’s a niche interest, so meeting new friends with such passion for flamenco has also been fun. I’m an avid reader and podcaster. I just returned from my fourth backpacking trip with a group of girlfriends, a great way for me to connect, unplug, and enjoy the beauty of the mountains and lakes.

PHLN: Is there anything else you would like to add?

Voge: I would like to acknowledge that this work is successful only with the talents and hard work of the tobacco prevention team here at the county: Jay Macedo (recently left the county), Ariel Thomas-Urlik, Greg Damron, Ana Quintana, Carley Moore, and my supervisor Kelly Elder.

Public Health Law News Quiz

The first reader to correctly answer the quiz question will be featured in a mini public health law profile in the November 2019 edition of the News. Email your entry to PHLawProgram@cdc.gov with “PHL Quiz” as the subject heading (entries without the heading will not be considered). Good luck!

Public Health Law NewsQuiz Question — October 2019

According to a May 2019 report by the US Department of Agriculture, what was the median distance to the nearest food store for rural populations in 2015?

September 2019 Quiz Winner

Sharon F. Roberts

September Question:
What major city in the United States was the first to ban the sale and distribution of all e-cigarettes?

Winning Answer: San Francisco

Employment organization and job title:
I am currently the senior assistant city attorney and ADA coordinator for the City of Tyler, Texas. I am also lead counsel for the Northeast Texas Public Health District, also known as NET Health, also located in Tyler, but which serves 20 counties in northeast Texas.

A brief explanation of your job:
In the public health realm, I am the long-time legal counsel to both the NET Health staff and the governing Board of Health. My primary duties are to provide needed legal work and a wide range of legal services, including drafting and reviewing contracts, District Orders, leases, and other legal documents; developing legally sound opinions and recommendations for NET Health departments; and advising the Board on governance activities. One of my favorite projects was to negotiate with a local university to enter an evergreen agreement so that NET Health is able to set up a medical special needs shelter in the university’s large indoor athletic arena, as needed. Because of Tyler’s proximity to the Gulf of Mexico, our city serves as an evacuation destination for coastal Texas residents fleeing hurricanes and related events, so being able to negotiate a long-term deal for setting up a medical special needs shelter benefits citizens and visitors, both now and in the future.

Education:
Juris Doctor, St. Mary’s University School of Law in San Antonio, Texas; Bachelor of Arts in Systems and Organismal Biology, University of Tennessee at Knoxville

Favorite section of the Public Health Law News
Global News is one of my favorite sections. When I am preparing presentations for the Texas Environmental Health Association and other public health-related groups or advising clients, I like to show how global trends might affect our community or region locally. Connecting local challenges with global viewpoints can often help local leaders craft local regulations based on best practices elsewhere. This section helps me stay ahead of the curve, especially when advising on current controversial issues.

Why are you interested in public health law?
As the government’s primary duty is to provide a safe place for folks to pursue their constitutional rights to life, liberty, and happiness, what better example do we have of government at its best than what public health professionals do every day? My work with public health law started before NET Health existed; instead, Tyler had a “health department.” Transforming the local health department into a public health district was my project in the early ‘90s, and as NET Health has flourished over the years, I believe that the work of the “invisible guardians” of public health serve pivotal roles in ensuring safety for citizens and visitors. Helping professionals perform their functions with best practices, while simultaneously protecting the constitutional rights of those who may face enforcement action, is a real privilege. Practicing public health law has been professionally rewarding because of the direct connection to securing the overall health and well-being of all, and because of the joy in working with such an awesome group of professionals leading the way in northeast Texas.

What is your favorite hobby?
If learning can be considered a hobby, it is my favorite one. My mother, a fine teacher, instilled in me a yearn to learn that has never gone away.

Court Filings and Opinions

Maryland: The Maryland appellate court upheld a ruling that an oyster harvester violated the law by removing oysters in the Chesapeake Bay from an area that had been closed due to pollution. While the appellate opinion focused on the statutory language, the opinion noted that Department of the Environment is “authorized to close areas of the Chesapeake Bay and its tributaries to oyster harvesting when [it] determines that those areas are polluted and that the shellfish from the polluted areas are hazardous to public health.” The harvester testified that he knew the area had been closed due to pollution, but that he planned to let the oysters “filter out for several weeks” before selling the oysters. The appellate upheld the district court’s ruling and the harvester lost his oyster harvesting license.

Hayden v. Maryland Department of Natural Resourcesexternal icon
Court of Special Appeals of Maryland
Case No. 2434
Decided September 3, 2019
Opinion by Judge Christopher B. Kehoe


Federal: Vapor product retailers filed a complaint for damages and injunctive relief against the governor of Massachusetts and the Massachusetts Health Department for harms resulting from the state’s recent ban on the sale of all vapor products. The complaint alleges that the ban “imposes significant burdens on interstate commerce” and as such is unconstitutional since interstate commerce may only be regulated by Congress. Additionally, the plaintiffs allege a First Amendment violation, since the state’s actions limit advertising of vapor products, claiming that the Emergency Order “imposes an unconstitutional restriction on speech by prohibiting the display of lawful products which are legal in other states.”

Vapor Tech. Ass’n v. Bakerexternal icon
United States District Court, District of Massachusetts
Case No. 19-12048


Federal: A Virginia federal judge sentenced a physician, Dr. Joel Smithers,external icon to 40 years in connection with Dr. Smithers’ opioid prescribing practices. In May, a jury found Dr. Smithers guiltyexternal icon on more than 800 counts of unlawful distribution of a controlled substance, and found that two of such counts resulted in the death of a patient.

The judge recommended that Dr. Smithers receive mental health treatment and participate in a residential drug treatment program while imprisoned. Additionally, the judge ordered that the court would evaluate Dr. Smithers upon supervised release for potential additional drug treatment.

United States v. Joel Adams Smithersexternal icon
United States District Court, Western Division of Virginia, Abingdon Division
Case No. 1:17CR00027
Decided May 09, 2019, Sentenced October 02, 2019
James P. Jones, United States District Judge

Quote of the Month

“It’s been part of our effort at chipping away at the stigma. Not only are we seeing decreasing numbers of New Yorkers newly diagnosed with HIV, but they are living long and thriving lives.” said Dr. Oxiris Barbot, the commissioner of New York City’s Department of Health and Mental Hygiene.

[Editor’s note: This quote is from the article “New York Says End of AIDS Epidemic Is Near,” The New York Times,10/02/2019.]

The Public Health Law Newsis 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 Newsis published by the Public Health Law Program in the Center for State, Tribal, Local, and Territorial Support.

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Public Health Law News (the 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, persons quoted therein, or persons interviewed for the News 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 websites 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 Public Health Law News should be cited as sources. Readers should contact the cited news sources for the full text of the articles.

Page last reviewed: October 17, 2019