*** Breaking News! In a decision released today, the United States District Court for the Southern District of New York upheld the constitutionality of New York City’s calorie-posting requirement for restaurants of a certain size and type. The Court ruled that the federal Nutrition Labeling and Education Act of 1990 does not pre-empt the city’s regulation, and it held that the posting requirement does not violate the free speech rights of New York State Restaurant Association members. To read the ruling, visit http://www2a.cdc.gov/phlp/docs/Calorie%20decision.pdf.

*** Pandemic Influenza Draft Comment Period. The Association of State and Territorial Health Officials (ASTHO) has released a draft version of “At-Risk Populations and Pandemic Influenza Planning: Guidance for State, Territorial, Tribal, and Local Health Departments.” The draft is open for public comment until May 14, 2008. To access the document, visit http://www.astho.org/templates/display_pub.php?pub_id=3062&admin=1.

*** Global Warming and Health Congressional Testimony. The U.S. Senate Select Committee on Energy Independence and Global Warming held a hearing last week to address how climate change affects human health. To view a Webcast of the testimony by witnesses including Howard Frumkin, Director of the CDC National Center for Environmental Health, visit http://globalwarming.house.gov/pubs/pubs?id=0036.

*** Public Health Service Symposium (6/9-6/12). The early bird deadline to register for the USPHS Scientific and Training Symposium is April 21, 2008. The conference will be held in Tucson, Arizona, on June 9-12, 2008. For more information, visit http://www.phscofevents.org/registration.cfm

Top Story

1. Japan: SDF to retrieve Japanese if new flu hits abroad

States and Localities

2. Florida: Collaborative emergency management

3. Virginia: Kaine signs reform bills to mental health system

National

4. In U.S., few alternatives to testing on animals

5. Nail gun safety under fire as injuries soar

6. Norma Rose v. Brown & Williamson Tobacco Corp.

7. Perspectives on medical outsourcing and telemedicine

8. Schools get a lesson in lunch line economics

Briefly Noted

Idaho exotic animal ruling · Iowa smoking ban · Maine child-in-car smoking ban · Massachusetts lead paint ruling · New York illegal cigarettes arrest · Ohio anti-smoking fund · Texas animal sacrifice appeal · Virginia shooting victims settlement · College mental health plans · National failure-to-warn ruling · Power plant appeal · Cigarette taxes · Nursing home arbitration agreements · School-based obesity interventions · Cellphone alerts · Canada injection site · European Union Swedish alcohol tax ruling · Air pollution rules · Kenya circumcision rule · International tobacco packaging

Quotation of the Week

Judge David Friedman, Supreme Court of New York

This Week’s Feature

Law Behind the News. This week, we bring you new rules from the Federal Communications Commission establishing a system for the transmission of emergency alerts to the public in the event of a disaster. See below for more.

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“SDF to retrieve Japanese if new flu hits abroad”

Asahi Shimbun     (04/11/08)

http://www.asahi.com/english/Herald-asahi/TKY200804110070.html

The Japanese government has compiled a package of measures to deal with the possibility of a virulent influenza strain outside the country. The measures are based on a potential World Health Organization (WHO) Pandemic Alert Phase 4 situation, in which an influenza virus has mutated into a new strain that moves rapidly among humans. Japanese health experts have warned that if such a strain hits Japan, an estimated 25 million people will need medical attention, and up to 640,000 will die. The government’s plan will control travel into Japan from countries already experiencing the more virulent strain. For example, airlines will be asked to suspend regular services if the virus is found in cities with direct flights to Japan. Airplanes leaving affected countries will only be allowed to land at four airports, and ships will only dock at three ports. Japanese citizens who are suspected of being infected and who attempt to return to their country will be denied repatriation; entry of people from affected countries will be sharply curtailed. However, military aircraft and ships will be sent to other countries to bring infected Japanese citizens home. If an infected Japanese citizen is denied repatriation, embassies and other government offices will refer them to medical facilities and provide them with medicine. According to government figures, about 300,000 Japanese nationals live in other Asian countries where health experts warn a mutated influenza virus could break out.

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“Collaborative emergency management”

Disasters     (06/08)     Naim Kapucu

http://www.blackwell-synergy.com/doi/abs/10.1111/j.1467-7717.2008.01037.x

This study analyzed six weeks of the 2004 Florida hurricane season to determine how “effectiveness in coordinating community disaster response efforts” affects future public preparedness. Between August 13 and September 25, 2004, four hurricanes made landfall in Florida: Charley, Frances, Ivan, and Jeanne. The four hurricanes caused $26 billion in damage, more than half of the $42 billion in damage caused during the 2004 season in the United States as a whole. The author surveyed emergency managers in all 67 Florida counties, analyzed  reports written by the State Emergency Response Teams for each of the hurricanes, interviewed 12 people whose counties were affected by three or more of the hurricanes, and reviewed the response efforts as detailed in major media outlets in the state. The study showed that the public perceived disasters following the first storm, Hurricane Charley, more seriously, supporting the position that irregular hurricane activity prior to the 2004 season “preconditioned emergency managers, public officials, and the public” to take stable conditions for granted. However, the surveys identified several “effective coordination strategies” to combat public complacency, including: pre-season planning exercises, community awareness seminars, development of strategies to counteract rumors quickly, a plan to alert all agencies of a threat, and use of technology to improve communication among agencies. The author concluded that use of community coordination strategies by emergency managers enhances the public response to disasters, and that such strategies are applicable to other types of disasters, both natural and man-made.

[Editor’s note: To access the State of Florida Comprehensive Emergency Management Plan, see http://www.floridadisaster.org/documents/CEMP/floridaCEMP.htm.]

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“Kaine signs reform bills to mental health system”

Roanoke Times     (04/10/08)     Michael Sluss

http://www.roanoke.com/politics/wb/157642

One week before the first anniversary of the Virginia Tech shootings, Virginia Governor Timothy Kaine signed legislation to reform the state’s mental health system, improve campus emergency response, and tighten firearms control. The legislation broadens the standard used by the state to determine if a person should be involuntarily committed, and extends the time period allowed for emergency custody and temporary detention orders. The new laws also enhance monitoring requirements for people under outpatient treatment orders, as was Seung-Hui Cho, the Virginia Tech student who killed 32 people and himself. Cho had been ordered to receive outpatient treatment 16 months before the shootings, but no one ensured that he complied with the outpatient orders. “It’s a terrible shame that it took something as terrible as Virginia Tech and the incident there to bring light to so many inadequacies in the mental health system,” said Andrew Goddard, whose son was seriously wounded by Cho. Under the new law, courts are required to provide information to the state’s central criminal records exchange about all involuntary commitments, regardless of whether the person is ultimately sent to a facility or ordered to receive outpatient care. Also, colleges must now develop crisis and emergency management plans, create campus threat assessment teams, and implement systems to notify campus communities of emergencies. The Virginia General Assembly passed more than 30 bills addressing issues raised by the Virginia Tech shootings, including a provision in the state budget that includes $41.7 million over two years to implement the new legislation.

[Editor’s note: To read the text of HB 499, regarding involuntary commitment and outpatient treatment, visit http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+HB499ER. For access to all the bills signed by Governor Kaine last week relating to the Virginia Tech shooting, visit http://www.governor.virginia.gov/MediaRelations/NewsReleases/viewRelease.cfm?id=637.]

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“In U.S., few alternatives to testing on animals”

Washington Post     (04/12/08)     Gilbert M. Gaul

http://www.washingtonpost.com/wp-dyn/content/article/2008/04/11/AR2008041103733.html?
nav=hcmodule

A decade after Congress developed the Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM), critics say the federal panel is not living up to its mandate to spur the development of non-animal safety tests. ICCVAM’s mission is to expedite and facilitate the development, validation, and use of non-animal based toxicology tests for risk assessment of chemicals, drugs, and cosmetics. But according to critics, including scientists and animal advocates, ICCVAM has approved only four non-animal tests out of 185 reviews it has conducted to date. Some researchers complain of not being able to move forward with non-animal studies because alternatives have not been validated by the panel, and consider some panel members resistant to change and biased in favor of traditional methods. “The reason we use animal tests is because we have a comfort level with the process … not because it is the correct process, not because it gives us any real new information we need to make decisions. Animal tests are no longer the gold standard,” said Melvin E. Andersen, of the Hamner Institutes for Health Sciences in North Carolina. Some have delayed or abandoned proposals for new alternatives, finding panel reviews protracted and expensive and “an obstacle to getting tests validated,” according to Neil Wilcox, director of regulatory and scientific affairs for Kimberly-Clark Corp. ICCVAM’s executive director, William S. Stokes, said the panel “has successfully reviewed over 185 test methods,” and that the tests that have been approved “have significantly reduced the number of animals required for safety assessments, and provided for improved welfare of animals used in safety evaluations.”

[Editor’s note: To learn more about the Interagency Coordinating Committee on the Validation of Alternative Methods, within the DHHS National Toxicology Program Interagency Center for the Evaluation of Alternative Toxicological Methods (NICEATM), visit http://iccvam.niehs.nih.gov/about/about_ICCVAM.htm. ICCVAM’s authorizing statute, 42 U.S.C. § 285l-3, is available at http://iccvam.niehs.nih.gov/docs/about_docs/PL106545.pdf. To learn about the European Center for the Evaluation of Alternative Methods (ECVAM), which has validated 34 alternatives for use in Europe, visit http://ecvam.jrc.it/.]

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“Nail gun safety under fire as injuries soar”

Sacramento Bee     (04/14/08)     Andrew McIntosh

http://www.sacbee.com/links/story/850428.html

As annual sales of nail guns and other air-powered tools have grown from $850 million in 2001 to $1.3 billion in 2006, some safety advocates say the tools’ hazards remain largely unaddressed by regulatory agencies. Nationally, nail gun injuries seen by hospital emergency departments increased from 12,000 in 1995 to about 42,000 in 2005, according to a 2007 report by occupational epidemiologist Dr. Hester Lipscomb. The Consumer Product Safety Commission (CPSC) met with the International Staple, Nail, and Tool Association (ISANTA) in 1998 over the increase in “contact trip” gun injuries, but has taken little action since. Contact trip guns allow nails to be fired automatically every time the gun’s muzzle makes contact with a surface. Lipscomb, who advocated a ban on contact trip guns in the Occupational Safety and Health Act, said her data show the need for safer firing systems, better training, and improved consumer safety information. At the state level, the California Division of Occupational Safety and Health (Cal-OSHA) negotiated with representatives from the tool and contractor industries, ultimately approving a plan requiring companies to develop a Code of Safe Practices for nail guns and to require safety training for new employees. Contact trip gun injuries have also been the catalyst for multiple product liability lawsuits, with claims including negligent design and design defect. But nail gun manufacturers argue that their products are not defective and that they are not required to offer safer gun models, said Ted Morris, counsel for Stanley Bostitch, a nail gun manufacturer.

[Editor’s note: To read “Nail-Gun Injuries Treated in Emergency Departments --- United States, 2001--2005,” MMWR 56(14); 329-332 (April 13, 2007), see http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5614a2.htm.]

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Norma Rose v. Brown & Williamson Tobacco Corp.

Supreme Court of New York

2008 NY Slip Op 3147

Decided April 10, 2008

Opinion by Judge David Friedman

Dissent by Judge James M. Catterson

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_03147.htm

Last week, Judge David Friedman of the Supreme Court of New York, Appellate Division, overturned a lower court decision that held cigarette makers liable for the negligent design of their products. The plaintiff, Norma Rose, brought suit against the companies after developing lung cancer admittedly attributed to decades of smoking. According to Rose’s claim, cigarettes manufactured by defendants Brown and Williamson Tobacco Corp., RJ Reynolds Tobacco Co., and Philip Morris USA, were negligently designed. She contended that during the 1960s through 1993, the years she smoked, “the relevant tobacco companies should have sold only ‘light’ cigarettes … and should not have sold regular cigarettes.” In the majority opinion, written by Judge Friedman, the Court found that a manufacturer cannot be found liable for failing to adopt an alternative design where the alternative design does not retain the “inherent usefulness” of the original product. The alternative design -- here, ‘light’ cigarettes -- must be found as acceptable to consumers as regular cigarettes. Finding that Rose had not produced evidence that smokers of regular cigarettes would find ‘light’ cigarettes a suitable substitute, and therefore that ‘lights’ do not have the same utility as regular cigarettes, the Court reversed the lower court decision and dismissed the complaint. Much of Friedman’s majority opinion rebutted arguments posed by the dissent, written by Judge James M. Catterson. The sharply-written dissent hinged on Catterson’s belief that the consumer acceptability test was an additional, unnecessary burden. “In my view, this is nothing more than a cynical effort by the defendants to maintain the commercial advantages of continuing to sell unreasonably dangerous addictive products to addicts,” he wrote.

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“Perspectives on medical outsourcing and telemedicine -- rough edges in a flat world?”

New England Journal of Medicine     (04/10/08)     Sanjiv N. Singh and Robert M. Wachter

http://content.nejm.org/cgi/content/short/358/15/1622

This article explores regulatory, legal, and policy issues surrounding health care outsourcing and telemedicine. The authors define medical outsourcing as “the process by which a health care provider…engages outside third parties to provide medical services.” Telemedicine is defined as focusing on “the electronic delivery of these services, which are usually clinical (e.g., specialist consultations) or diagnostic (e.g., teleradiology) but sometimes include information distribution.” The authors discuss information privacy under the Health Insurance Portability and Accountability Act (HIPAA), Medicare and Medicaid regulations, malpractice and liability, patient consent, and setting standards to measure and ensure the quality of care. According to the authors, the major concern about medical outsourcing is information privacy, regulated partially by HIPAA. Medical outsourcing also implicates recent changes in Centers for Medicare and Medicaid Services regulations, under which providers are prohibited from seeking reimbursement for services physically performed outside the United States. According to the authors, managing the risks of telemedicine will necessitate determining standards for telemedicine malpractice, including where and against whom claims can be brought, and deciphering insurer policies. In light of such concerns, the authors discuss the development of international competency standards for individual providers and institutions, concluding that the predominant question in the medical outsourcing debate “should be whether a regulatory framework can be created to promote outsourcing that truly enhances the value of care -- decreasing costs while preserving quality -- and to thwart practices that fall below appropriate standards.”

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“Schools get a lesson in lunch line economics”

Washington Post    (04/14/08)     Maria Glod

Across the country, some school officials say it has become more difficult to serve healthy foods at lunch time. “We do not want to serve our students highly refined sugar and flour products, which are more affordable, but we are continually being pushed down this path,” said Penny Parham, administrative director of the Miami-Dade County Public Schools Department of Food and Nutrition. Parham’s comments were part of her testimony to the U.S. House Education and Labor Committee, where she asked lawmakers to give schools more federal subsidies that ensure the neediest children receive healthy lunches. This year, the U.S. Department of Agriculture is giving schools $2.47 per lunch to serve free meals to the poorest children, up 3 percent from last year. (Over the same period, milk prices rose about 17 percent; bread prices, 12 percent.) The federal government provides $2.07 per meal for students eligible for reduced-price lunches, and 23 cents per meal for students paying full price. According to the School Nutrition Association, the average cost of preparing and serving a school lunch runs from $2.70 to $3.10. In some places, the rising cost of food and the push for healthier, albeit more expensive meals have required officials to supplement food service budgets from general funds that pay for busing, teacher salaries, and computers. Other schools are raising the price of lunch and putting cheaper,  less healthy options back on the menu.

[Editor’s note: To access legislation, regulations, and policy regarding the National School Meals Program, see http://www.fns.usda.gov/fns/regulations.htm.]

_____________________BRIEFLY NOTED______________________

Idaho: Agency ordered to adopt rules on dangerous and exotic animals

“Idaho judge orders state to reconsider permit for big cat breeder”

Idaho Statesman     (04/08/08)    

http://www.theolympian.com/northwest/v-print/story/413048.html

Iowa: Governor signs state-wide smoking ban, to take effect July 1

“Culver: ‘This bill will save lives’”

DesMoines Register     (04/16/08)     Jennifer Jacobs

http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=/20080416/NEWS10/804160
371/1001/NEWS

Maine: Law bans smoking in cars with children under 16 years

“Law prohibiting smoking in cars gets Baldacci OK”

Bangor Daily News     (04/11/08)     Meg Haskell

http://bangornews.com/news/t/news.aspx?articleid=162862&zoneid=500

Massachusetts: Parents resisted work on home out of fear for children’s safety

“Lead problem puts couple in bind”

Boston Globe     (04/14/08)     Keith O’Brien

http://www.boston.com/news/local/massachusetts/articles/2008/04/14/lead_problem_puts_
couple_in_bind/

New York: Illegal operation said to deprive states of more than $20 million per year

“Arrest of cigarette seller is a coup, Brooklyn officials say”

New York Times     (04/10/08)     Andy Newman

http://www.nytimes.com/2008/04/10/nyregion/10stamps.html?ex=1208491200&en=f3354e554b658
186&ei=5099&partner=TOPIXNEWS

Ohio: Reallocation of tobacco funds contested in Franklin County Court

“Anti-smoking fund in ashes”

Cincinnati Enquirer     (04/14/08)     Jon Craig

http://news.enquirer.com/apps/pbcs.dll/article?AID=/20080414/NEWS01/804140319/1077/COL02

Texas: Santeria priest challenges public health rationale for denial of goat sacrifice

“Animal sacrifice case is appealed”

Fort Worth Star-Telegram     (04/09/08)     Jessica Deleón

http://www.star-telegram.com/northeast/story/568844.html

Virginia: Majority of families agree not to sue in exchange for share of $11 million settlement

“Most Tech families agree to settle”

Times-Dispatch     (04/11/08)     Rex Bowman

http://www.inrich.com/cva/ric/news/vatechshootings.apx.-content-articles-RTD-2008-04-11-0151.html

Virginia: Since shootings, schools work to identify troubled students, address privacy, stigma

“VA Tech killings continue to reverberate”

Associated Press     (04/13/08)     Justin Pope

http://hosted.ap.org/dynamic/stories/V/VA_TECH_MENTAL_HEALTH?SITE=FLPET&SECTION=HOME

National: Court holds state tort action preempted by FDA regulations on failure-to-warn claims

Colacicco v. Apotex

U.S. 3rd Circuit Court of Appeals

Opinion by Circuit Judge Sloviter

No. 06-3107, No. 06-5148

http://www.ca3.uscourts.gov/opinarch/063107p.pdf

National: Utility industry challenges EPA regs for retrofitting power plant cooling tower intakes

“Court accepts power plant appeal challenging new EPA regulations”

Wall Street Journal     (04/14/08)     Mark H. Anderson

http://online.wsj.com/article/SB120817788794512575.html?mod=googlenews_wsj (subscription required)

National: ATF refining strategy to fight cigarette trafficking in light of higher taxes

“Higher cigarette taxes could promote smuggling”

Associated Press     (04/10/08)     David B. Caruso

http://www.usatoday.com/news/nation/2008-04-10-cigarette-taxes-smuggling_N.htm

National: Homes found to write binding arbitration into standard contracts

“Nursing homes, in bid to cut costs, prod patients to forgo lawsuits”

Wall Street Journal     (04/11/08)     Nathan Koppel

http://online.wsj.com/article/SB120786025242805879.html?mod=hps_us_pageone&mod=WSJBlog (subscription required)

National: Article provides overview of interventions guiding efforts for management of obesity

“School-based obesity interventions: a literature review”

Journal of School Health     (04/08)     Fadia T. Shaya and others

http://www.blackwell-synergy.com/doi/abs/10.1111/j.1746-1561.2008.00285.x (subscription required)

National: Federal regulators adopt rules for nationwide emergency alert system

“Text alerts to cellphones in emergency are approved”

Associated Press     (04/10/08)

http://www.nytimes.com/2008/04/10/washington/10alert.html?_r=2&ref=technology&oref=login&
oref=slogin

Canada: Supporters seek federal blessing, will argue that injection site is a healthcare facility

“Safe injection facility in Vancouver in limelight when court challenges begin”

Canadian Press     (04/13/08)     Greg Joyce

http://canadianpress.google.com/article/ALeqM5gL1gTAOmAd45rHFDHDdDFMOHNjxg

European Union: Court finds difference in wine, beer prices does not influence consumers

“E.U. court: Swedish taxes on wine and beer do not violate E.U. law”

Associated Press     (04/08/08)     Constant Brand

http://www.iht.com/articles/ap/2008/04/08/europe/EU-FIN-EU-Court-Sweden-Alcohol.php

European Union: Rules commit 27 nations to 20% pollution reduction by 2020

“E.U. nations approve new rules to cut air pollution in cities”

Associated Press     (04/14/08)

http://thestar.com.my/news/story.asp?file=/2008/4/14/apworld/20080414201722&sec=apworld

Kenya: Government publishes Policy on Male Circumcision in Kenya 2008

“Government adopts male cut as strategy in fight against HIV”

The Nation     (04/10/08)     Arthur Okwemba

http://www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=39&newsid=120839

International: Article reviews impact of plain packaging on tobacco industry marketing

“The case for the plain packaging of tobacco products”

Addiction     (04/08)     Becky Freeman and others

http://www.blackwell-synergy.com/doi/abs/10.1111/j.1360-0443.2008.02145.x

__________PHL NEWS QUOTATION OF THE WEEK___________

“Contrary to the trial court’s stated view, a cigarette’s function is not simply ‘to be lit, burned and inhaled.’ A person presumably could smoke lettuce if cigarettes existed only to provide the smoker with the opportunity to light up and inhale.”

-- Judge David Friedman, Supreme Court of New York, Appellate Division, First Department, on the utility of cigarettes. [See item 6, above.]

__________________LAW BEHIND THE NEWS___________________

The Federal Communications Commission (FCC) has released the Commercial Mobile Alert System (CMAS) First Report and Order, establishing a system under which mobile service providers “may elect to transmit emergency alerts to the public.” The new regulations are authorized by the Warning, Alert and Response Network (WARN) Act, 47 U.S.C. §§ 1201 et seq., and are intended to “ensure that all Americans have the capability to receive timely and accurate alerts, warnings and critical information regarding disasters and other emergencies irrespective of what communications technologies they use.”

The new FCC rules address the scope of CMAS alerts, geo-targeting, and alert accessibility for people with disabilities and the elderly. Warnings will be limited to presidential alerts, imminent threat alerts (narrowly tailored to emergencies where “life or property is at risk, the event is likely to occur, and some responsive action should be taken”), and child abduction emergency / AMBER alerts. The rules also require providers to include both a “common vibration cadence” and a “common audio attention signal” on devices, specifically for the benefit of the elderly and disabled.

To read the Commercial Mobile Alert System First Report and Order, visit http://www2a.cdc.gov/phlp/docs/FCC-08-99A1.pdf.

___________________________________________________________

The CDC Public Health Law News is published each Wednesday except holidays, plus special issues when warranted. It is distributed only in electronic form and is free of charge.  News content is selected solely on the basis of newsworthiness and potential interest to readers. CDC and DHHS assume no responsibility for the factual accuracy of the items presented. The selection, omission, or content of items does not imply any endorsement or other position taken by CDC or DHHS. Opinions expressed by the original authors of items included in the News, or persons quoted therein, are strictly their own and are in no way meant to represent the opinion or views of CDC or DHHS. References to products, trade names, publications, news sources, and non-CDC Websites are provided solely for informational purposes and do not imply endorsement by CDC or DHHS. Legal cases are presented for educational purposes only, and are not meant to represent the current state of the law. The findings and conclusions in this document are those of the author(s) and do not necessarily represent the views of CDC. 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.

For past issues or to subscribe to the weekly CDC Public Health Law News, visit http://www2a.cdc.gov/phlp/cphln.asp. For help with subscriptions or to make comments or suggestions, send an email to Rachel Weiss at rweiss@cdc.gov.

The News is published by the Public Health Law Program, Office of the Chief of Public Health Practice, Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services (DHHS). Rachel Weiss, J.D., Editor; Christopher Seely, J.D., Associate Editor; Karen L. McKie, J.D., M.L.S., Editorial Advisor.