Wednesday, January 9, 2008
From the Public Health Law Program, Office of the Chief of Public
Health Practice, CDC
http://www2a.cdc.gov/phlp/
_______________________________________________________________
*** Correction. In last week's Year
In Review issue, the News erroneously reported on the passage
of a human papillomavirus vaccine mandate in New Jersey. The New
Jersey statute, 2007 N.J. Sess. Law Ch. 134, requires that educational
fact sheets be provided to parents and guardians of students in
grades seven through 12, and that a public awareness campaign be
established. The statute does not require vaccinations for school-aged
girls. Text of the statute can be found at
http://www.njleg.state.nj.us/2006/Bills/PL07/134_.HTM". Our
thanks to astute reader Christina W. Strong.
*** Mutual Aid Website. The CDC Public
Health Law Program has revamped its Mutual Aid Website to better
serve the needs of the public health, emergency preparedness, and
legal communities. Check out all the new features, including an
inventory of mutual aid agreements and a menu of suggested provisions
for public health mutual aid agreements, at
http://www2.cdc.gov/phlp/mutualaid/.
*** Call for Papers. The University
of Ottawa Law and Technology Journal invites original scholarly
articles for a special issue about Science and the Courts. The deadline
for submission is March 1, 2008. For more details, see
http://www.uoltj.ca/cfp.php.
*** Pandemic Flu Panel (1/14). The
National Press Club will host a panel discussion entitled "Handcuffing
the Flu: Can a Law Enforcement/National Security Approach to Pandemic
Preparedness Protect the American People?" on January 14, 2008,
at 10:30 a.m., in Washington D.C. For more event information, see
http://www.aclu.org/privacy/25551res20060512.html.
Top Story
1. Rhode Island: R.I. judge
refuses to strike down $2.4 B lead paint cleanup plan
States and Localities
2. California: California
sues EPA over denial of waiver
3. Maine: 'Fire-safe' cigarettes
now law; smokers lament taste, self-extinguishing paper
4. Nevada: Reno air clean
enough to come off EPA list
5. New York: Teenagers
in the City smoke less, report finds
6. Rhode Island: Federal
judge lets fight over auto emission standards go forward
National
7. BMI and seatbelt use
8. Lead standards evolving
Briefly Noted
California car smoking
ban × Louisiana rental aid
ruling × New York toxics
suit × North Carolina helmet
law × Pennsylvania tobacco
ban × Texas HPV vaccine
× Texas refinery pollution suit
× Vermont hospital mistake policy
× Washington texting
× Wisconsin cigarette tax
× Washington D.C. needle
exchange program × Flood
maps × National CPSC tester
× Canada trans fat ban
× China anti-drug law
× France smoking ban × South
Africa anti-intimacy rule ×
Turkey smoking ban
Quotation of the Week
Nancy Nord, acting Consumer
Products Safety Commission (CPSC) chairwoman
This Week's Feature
Law Behind the News.
Last week, a Pennsylvania appeals court held that the Borough of
Ellwood City can prohibit police officers from using tobacco on
the borough's property without committing an unfair labor practice.
See below for details on the ruling.
_____________________________1_____________________________
"R.I. judge refuses to strike down $2.4 B
lead paint cleanup plan"
Associated Press (01/04/08) Eric
Tucker
http://www.boston.com/news/local/rhode_island/articles/2008/01/04/ri_judge_refuses_to_strike
_down_24b_lead_paint_cleanup_plan/
Last week, a Rhode Island judge refused to
strike a state-proposed plan requiring three former lead-paint manufactures
to pay $2.4 billion to clean some 250,000 homes. Judge Michael Silverstein
said the companies' request to strike the cleanup plan was "premature"
and that he would decide on the ultimate plan after considering
the recommendations of two public health experts appointed to evaluate
the state's proposal. The state proposed its plan after winning
a public nuisance verdict against Sherwin-Williams Co., NL Industries,
Inc., and Millennium Holdings, LLC in February 2006. Under the plan,
the companies would be responsible for inspecting, cleaning, and
remodeling buildings that contain toxic lead paint. The state's
plan does not advocate complete removal of lead paint from buildings,
but rather for removal and replacement of components such as tainted
doors, windows, and cabinets. Also, homeowners would only be forced
to participate in the cleanup as a last resort and in cases where
there is a specific threat to a young child, according to Fidelma
Fitzpatrick, the state's lawyer. Otherwise, property owners not
wishing to participate immediately could be placed on a list, with
cleanup work to commence when the property is sold or becomes vacant,
Fitzpatrick said. However, the lawyer for Sherwin-Williams argued
that the plan would violate owners' property rights by forcing people
to allow government agents into their homes. The companies are also
appealing the February 2006 verdict to the Rhode Island Supreme
Court, which has scheduled oral arguments for May 15, 2008.
[Editor's note: For more information on the
February 2006 verdict, please see
http://www.boston.com/business/articles/2006/02/23/rhode_island_wins_lead_paint_suit/?
rss_id=Boston+Globe+--+Business+News.]
_____________________________2_____________________________
"California sues EPA over denial of waiver"
The New York Times (01/03/08) Felicity
Barringer
http://www.nytimes.com/2008/01/03/us/03suit.html?_r=1&ex=1357275600&en=40bc403b688d4312
&ei=5088&partner=rssnyt&emc=r
Last week, California sued the U.S. Environmental
Protection Agency (EPA) over a December 19 decision to block the
state's standards on greenhouse gas emissions for new cars and trucks.
The federal Clean Air Act allows California to set its own air standards,
but the state must first receive a waiver from EPA. In the suit,
California officials argue that EPA has no legal or technical justification
for blocking the state's standards. EPA found that California is
not uniquely affected by global warming and thus lacks the "compelling
and extraordinary" conditions that would allow the regulations to
go forward -- a contention also challenged by the state's lawsuit.
If promulgated, California's standard would reduce carbon dioxide
output by 17.2 million metric tons, more than double the amount
that would be eliminated by the federal government's new fuel-economy
standard, said Mary D. Nichols, Chairwoman of the California Air
Resources Board. In response to the lawsuit, EPA issued a statement:
"As the administration indicated we now have a more beneficial national
approach to a national problem which establishes an aggressive standard
for all 50 states, as opposed to a lower standard in California
and a patchwork of other states." However, the Clean Air Act permits
California to have independent rules, and allows all other states
to choose between the federal standards and California's more stringent
standards, according to Nichols. New York, New Jersey, Connecticut,
Pennsylvania, and 11 other states, as well as environmental organizations
have joined California's lawsuit challenging the EPA decision.
[Editor's note: Read the text of the Clean
Air Act § 177, New Motor Vehicle Emission Standards in Nonattainment
Areas (codified at 42 U.S.C. § 7507), available at
http://www.epa.gov/air/oaq_caa.html/caa.txt.
The December 19, 2007 EPA press release is available at
http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/41b4663d8d38
07c5852573b6008141e5!OpenDocument. For background information
on greenhouse gases, see
http://www.epa.gov/climatechange/emissions/index.html.]
_____________________________3_____________________________
"'Fire-safe' cigarettes now law; smokers
lament taste, self-extinguishing paper"
Bangor Daily News (01/03/08)
http://bangornews.com/news/t/news.aspx?articleid=158466&zoneid=500
On January 1, 2008, a new law took effect
in Maine making it illegal to sell cigarettes that have not been
certified as "fire-safe." "It'll be nice when we hit the day that
we don't have to worry whether cigarettes are fire-safe or not fire-safe,
because they'll be history," said Dr. Dora Anne Mills, director
of the Maine Center for Disease Control and Prevention. "But for
now, this is an improvement." The "reduced ignition propensity"
cigarettes are made with narrow bands of thicker paper that slow
the burn and cause cigarettes to self-extinguish if left unattended
for a time. Self-extinguishment reduces the likelihood that a neglected
cigarette will ignite a fire in a sofa, bed or other flammable object.
At least 77 Mainers died in fires started by smoking materials between
1992 and 2005 -- some 28 percent of the state's overall fire deaths,
according to Maine Fire Marshal John C. Dean. Making cigarettes
fire retardant also improves the safety of firefighters, said Maine
Representative Peter Rines, the legislation's primary sponsor and
a career firefighter. New York enacted the first state legislation
prohibiting the sale of non-fire-safe cigarettes in 2000, but it
did not take effect until 2004 after lawmakers, scientists, and
the industry established a uniform state standard for certification.
While retailers report that some cigarette smokers have complained
about the taste of fire-safe cigarettes, industry officials say
they do not oppose the state measure but would prefer a uniform
national standard. With Maine's new law in effect, there are now
22 states with fire-safe cigarette requirements.
[Editor's note: In addition to Maine, statewide
"fire-safe" cigarette requirements also took effect in Massachusetts
and Illinois on January 1, 2008. To read the Massachusetts legislation
see
http://www.mass.gov/legis/laws/seslaw06/sl060140.htm;
for the Illinois law, see
http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=094-0775;
and for the Maine law, see
http://www.mainelegislature.org/legis/bills/chappdfs/PUBLIC253.pdf.]
_____________________________4_____________________________
"Reno air clean enough to come off EPA list"
Associated Press (01/04/08) Scott
Sonner
http://www.kolotv.com/home/headlines/13061762.html
The air quality in Washoe County, Nevada,
has been improved so dramatically that the U.S. Environmental Protection
Agency (EPA) has proposed to drop the region from a list of places
failing to meet federal standards for carbon monoxide. According
to EPA, high levels of carbon monoxide in the air can lead to vision
problems and reduced brain function. Washoe County was placed on
the non-attainment list for carbon monoxide in 1977, "[b]ut in order
to change the official designation, it isn't enough just to have
clean air. You have to have a maintenance plan to keep it that way,"
said Jeff Wehling, a legal adviser to the EPA. "Washoe County has
now adopted a plan and we are approving the strategy the county
and state have for maintaining the standard for the next 10 years."
Among other measures, the county has restricted wood burning and
adopted an oxygenated gasoline program; state regulators implemented
a vehicle inspection and maintenance program that includes a smog
check. The Washoe County Health Department's Air Quality Management
Division first submitted its maintenance plan in mid-2005, and has
been working with EPA to perfect it since then, said Director Andy
Goodrich. Washoe County remains on the EPA's non-attainment list
for particulate matter, but county officials have submitted a plan
to bring the region into compliance.
_____________________________5_____________________________
"Teenagers in the City smoke less, report
finds"
New York Times (01/03/08) Anthony
Ramirez
http://www.nytimes.com/2008/01/03/nyregion/03smoke.html
In 2007, New York City's teenagers stopped
smoking at a faster rate than the city's adults, and they smoke
much less than teenagers nationwide, according to the Youth Risk
Behavior Survey. Health officials attribute the low smoking rate
mainly to high cigarette taxes and restrictions on smoking in public.
"Kids are most susceptible to price because they don't have a whole
lot of disposable income," said Dr. Thomas R. Frieden, commissioner
of the New York City (NYC) Department of Health and Mental Hygiene,
which conducted the survey. Also, young people are deterred by public
restrictions because they see that "as an adult you're smoking in
the freezing cold," Frieden said. According to the survey of public
schools, the smoking rate among NYC students in the ninth to twelfth
grades dropped from 17.6 percent in 2001 to 8.5 percent in 2007;
the national average was 23 percent at last count. Also, while adult
smoking in NYC has dropped 20 percent from 2001 to 2007, the survey
notes that teenage smoking has dropped 52 percent. If smoking had
not declined since 2001 amongst NYC teenagers, there would be at
least 24,000 additional smokers, Frieden said -- meaning that an
estimated 8,000 more people would die prematurely from smoking-related
illness. The NYC Department of Consumer Affairs also reported that
it is now making some 16,000 annual undercover visits to ensure
retailers sell only to adults; last year, the department reported
a 93 percent compliance rate -- "the highest ever."
[Editor's note: To see a graph comparing
smoking rate of New York City teens since 2001 to the rate of teens
nationwide, see
http://www.nyc.gov/html/doh/downloads/pdf/public/press08/pr001-08_smoking.pdf.
For the rate of smoking among New York City public high school students
by gender, see
http://www.nyc.gov/html/doh/downloads/pdf/public/press08/pr001-08_smoking_by_sex.pdf.]
_____________________________6_____________________________
"Federal judge lets fight over auto emission
standards go forward"
Providence Journal (01/01/08) Paul
Grimaldi
http://www.projo.com/business/content/BZ_AUTOAIR_LAWSUIT_01-01-08_KC8EMPS_v25.1
afbd8e.html
A U.S. District Court judge in Rhode Island
has ruled against the state by allowing a lawsuit brought by automobile
dealers, General Motors Corp., and an auto industry trade group
to go forward. The plaintiffs are seeking to prevent Rhode Island
from setting strict carbon dioxide standards for cars and trucks,
arguing that federal standards preempt state action. An April 2007
decision by the U.S. Supreme Court held the U.S. Environmental Protection
Agency (EPA) has authority to regulate carbon dioxide and other
greenhouse gas emissions from motor vehicles. In that case, Massachusetts
v. EPA, the agency sought a ruling that would exempt it from
having to regulate after Massachusetts and at least 15 other states,
cities, and territories tried to force the agency to set federal
pollution limits. "Congress has ordered EPA to protect Massachusetts
(among others) by prescribing standards," wrote Justice John Paul
Stevens. Meanwhile, California and 16 other states had been waiting
for EPA to act since they petitioned the agency in 2005. California's
emission standards were adopted in 2004 but were not approved by
EPA; the strict standards would have required automakers to reduce
emissions from cars by 30 percent by 2016. In December 2007, EPA
Administrator Stephen L. Johnson denied California's Clean Air Act
waiver request, blocking the state's greenhouse gas emissions standards.
California and the 16 other states, including Rhode Island, brought
suit against EPA last week, challenging the decision (see item 2,
above). It is not clear how the Rhode Island District Court case
will progress in light of the California lawsuit.
[Editor's note: Read the opinion Massachusetts
v. EPA, 549 U.S. 1438 (2007), at
http://supremecourtus.gov/opinions/06pdf/05-1120.pdf.]
_____________________________7_____________________________
"BMI and seatbelt use"
Obesity (November 2007) David
G. Schlundt and others
http://www.obesityresearch.org/cgi/reprint/15/11/2541
This study sought to clarify the need for
preventive measures to promote seatbelt use among the obese and
to identify subpopulations of obese persons at greatest risk for
non-use of seatbelts. The authors investigated the association between
obesity and seatbelt use with data from the 2002 Behavioral Risk
Factor Surveillance System (BRFSS) survey, a collection of information
on risk behaviors and health practices associated with leading causes
of death. The 2002 BRFSS survey asked how often respondents used
seatbelts, and the authors of this study organized the respondents
according to four categories of body mass index (BMI): non-overweight/non-obese
reference group (BMI ≤ 24.9); overweight (25.0 ≤ BMI ≤ 29.9); obese
(30.0 ≤ BMI ≤ 39.9); extremely obese (BMI ≥ 40.0). Additionally,
the authors examined how seatbelt use among obese persons was further
confounded by other factors, such as age, sex, race/ethnicity, education
level, and type of state law (i.e., whether police can stop and
cite motorists solely for seatbelt violations or whether motorists
can only be cited for seatbelt violations after being stopped for
another offense). The authors found that "overweight, obesity, and
extreme obesity are associated with significantly decreased use
of seatbelts," and that "the strength of associations increased
linearly with increasing BMI category." The authors suggest that
unintentional injury secondary to motor vehicle crashes is "another
potential health consequence of obesity." They also recommend efforts
to raise awareness of availability of seatbelt extenders and a re-engineering
of seatbelts to make them more comfortable for obese persons.
_____________________________8_____________________________
"Lead standards evolving"
Glens Falls Post-Star (01/05/08)
Melissa Guay
http://www.poststar.com/articles/2008/01/05/news/local/13186192.txt
A study recently released by CDC reported
on differences in intellectual development of children with low
levels of lead compared to those with no detectable lead in their
bloodstream. The study found that intellectual development can be
affected at lower levels than the current federal lead standard,
a blood lead level of 10 micrograms. "We don't know what the (lead)
level is in children that doesn't cause adverse effects," said Dr.
Mary Jean Brown, Chief of CDC's Lead Poisoning Prevention Branch.
According to Brown, the current federal standard for lead in paint
on children's toys -- 600 parts per million -- is not a health-based
standard, but is based on what was feasible for companies during
the 1970s. Further, it is unclear how lead standards for paint or
water translate into blood lead levels in children with continued
exposure, she said. "The EPA hasn't done a direct correlation between
the action level of lead in water and what it means in terms of
blood lead levels," said Bruce Kiselica, the U.S. Environmental
Protection Agency's chief of drinking water. "With blood lead levels,
you can't determine or calculate where the exposure came from."
The U.S. House recently passed a bill reducing the amount of lead
allowed in children's products from 600 parts per million to 100
parts per million, the smallest amount detectable using modern equipment.
[Editor's note: To read the text of recently-passed
H.R. 4040, the Consumer Product Safety Modernization Act, visit
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h4040eh.txt.pdf.
The CDC study, "Interpreting and Managing Blood Lead Levels of Less
than 10 ug/dL in Children and Reducing Childhood Exposure to Lead,"
authored by Helen J. Binns and others, is available at
http://pediatrics.aappublications.org/cgi/content/abstract/120/5/e1285.]
_____________________BRIEFLY
NOTED______________________
California: Car smoking ban protects minors
under 18, thought to be nation's strictest
"New smoking restriction ignites debate"
Sacramento Bee (01/07/08) Jim Sanders
http://www.sacbee.com/111/story/614162.html
Louisiana: Court rules rental applicants
not entitled to 'continuing stream of payments'
"Appeals court sides with FEMA in dispute
over Katrina rental aid"
Associated Press (01/07/08) Michael
Kunzelman
http://www.dailycomet.com/article/20080107/APN/801070776
New York: Endicott residents allege discharges
caused birth defects, cancers
"Suit accuses IBM of toxic discharges that
caused illnesses"
Wall Street Journal (01/04/08) Robert
Tomsho
http://online.wsj.com/article/SB119938326890165259.html
North Carolina: Law requires riders to guess
whether helmets meet standard, opponents say
"Riders uneasy with helmet law"
News and Observer (01/02/08) Martha
Quillin
http://www.newsobserver.com/news/story/855294.html
Pennsylvania: Ellwood City says officers
can't smoke on borough property
"Police tobacco ban isn't unfair, court rules"
Associated Press (01/05/08) Joe Mandak
http://www.mcall.com/news/nationworld/state/all-a5_ban.6214637jan05,0,5092327.story
Texas: 2007 controversy prompted families
to get daughters vaccinated, doctors say
"Controversy stirs Texans' interest in HPV
vaccine"
Associated Press (01/07/08) Harry
Cabluck
http://www.chron.com/disp/story.mpl/metropolitan/5432013.html
Texas: Federal suit alleges refinery had
unauthorized emissions releases
"Environmental groups sue Shell for excess
pollution from refinery"
Associated Press (01/07/08) Juan
A. Lozano
http://www.chron.com/disp/story.mpl/ap/business/5434919.html
Vermont: No-charge policy extends to insurance
companies, covers preventable mistakes
"Hospitals won't charge for mistakes"
Burlington Free Press (01/05/08)
Nancy Remsen
http://www.burlingtonfreepress.com/apps/pbcs.dll/article?AID=/20080105/NEWS02/801050302/
1007/NEWS02
Washington: State becomes first in nation
to outlaw driving while texting
"Illegal texting may mean a ticket"
Federal Way Mirror (01/08/08) Jacinda
Howard
http://www.fedwaymirror.com/portals-code/list.cgi?paper=91&cat=23&id=1134306&more=0
Wisconsin: Cigarette tax goes up $1 per pack
"Smokers stock up before price hike"
Milwaukee Journal Sentinel (01/01/08)
Meg Jones
http://www.jsonline.com/story/index.aspx?id=702490
Washington D.C.: Congress removes ban on
needle exchange
"City to spend $650,000 on needle exchange
programs"
Washington Post (01/03/08) David
Nakamura
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/02/AR2008010201905.html?
hpid=sec-health
Washington D.C.: Maps could results in mandatory
flood insurance, stricter building codes
"Flood zone change in D.C. could be costly"
Washington Post (01/07/08) Michael
E. Ruane
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/06/AR2008010602020.html
National: Consumer Product Safety Commission
toy tester retires
"Goodbye to Bob"
Washington Post (01/05/08) Annys
Shin
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/06/AR2008010602020.html
Canada: Calgary becomes first in Canada to
ban trans fat
"The hidden hazards of trans-fat bans"
Globe and Mail (01/03/08) Carly Weeks
http://www.theglobeandmail.com/servlet/story/RTGAM.20080103.l-transfat/BNStory/lifeMain/home?
cid=al_gam_mostemail
China: Law makes bar, club owners responsible
for reporting drug users
"China adopts first anti-drug law"
Xinhua (12/29/07)
http://www.chinadaily.com.cn/china/2007-12/29/content_6359006.htm
France: Hookah bar owner sues government
for damages
"New anti-smoking law leaves French fuming"
Washington Times (01/07/08) Andrew
Borowiec
http://www.washingtontimes.com/article/20080107/FOREIGN/17079805/1003/home.html
South Africa: Anti-intimacy measure sparks
online outrage, protests
"S. Africa's teens give new law the kiss-off"
Washington Post (01/06/08) Craig
Timberg
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/05/AR2008010501678.html?hpid=
topnews
Turkey: Ban postponed until mid-2009
"Smoking ban postponed after tobacco industry
lobbies"
Turkish Daily News (01/05/08)
http://www.turkishdailynews.com.tr/article.php?enewsid=92891
__________PHL
NEWS QUOTATION OF THE WEEK___________
"Unfortunately, Bob has become an urban myth."
-- Nancy Nord, acting Consumer Products Safety
Commission (CPSC) chairwoman, on the man erroneously believed to
be the nation's sole full-time toy safety tester. Robert Hundemer,
unwittingly singled out during a Senate hearing, retired last week
after more than 25 years in the federal government. Bob, as he's
known, primarily tested toys for small parts that might be a choking
hazard for children, but was also instrumental in developing safety
standards and regulations for chain saws, baby walkers, cribs, and
trampolines. [See Briefly Noted item, above.]
__________________LAW
BEHIND THE NEWS___________________
Last week, the Commonwealth Court of Pennsylvania,
a state appellate court, ruled in a 5-2 decision that the Borough
of Ellwood City can prohibit tobacco use by police officers without
first bargaining with the Ellwood City Police Wage and Policy Unit
(Union). The Ellwood City ordinance, passed in 2006, prohibits "use
of tobacco products on or in Borough owned buildings, vehicles and
equipment" to mitigate the "danger of tobacco products to users
and persons affected second hand." The Court's ruling reversed a
decision by the Pennsylvania Labor Relations Board holding that
the use of tobacco by members of a union is a mandatory subject
of bargaining, and that the Borough had committed an unfair labor
practice by not bargaining with the Union before imposing the smoking
prohibition.
On appeal from the Board's decision, the
Borough successfully argued that enforcement of the ordinance does
not require bargaining with the Union because it constitutes an
exception to the mandatory bargaining rules. The Court reasoned
that this case is distinct from other cases in that the ordinance
is an exercise of the Borough's general police power authorizing
it to make regulations for the health, safety, morals and general
welfare of its citizens. The Court stated that the ordinance "applies
to all, citizens and employees alike, in service of the Council's
chosen policy goal to promote the health and welfare of all making
use of the Borough's property, not solely employees and certainly
not solely the police." (The Board's decision had cited three cases
in which the rule being challenged applied only to employees.) Allowing
police officers to smoke on public property would, as the Court
put it, "allow a police officer to enforce [smoking ordinances]
while smoking a cigarette." Further, the Court stated that the ordinance
would not prohibit police from using tobacco while on duty -- "rather,
it renders specific locations smoke free."
To read the Court's full opinion, Borough
of Ellwood City v. Pennsylvania Labor Relations Board, No. 473
C.D. 2007, see
http://www2a.cdc.gov/phlp/docs/473CD07_1-4-08.pdf.
___________________________________________________________
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