CONTACT: Edward L. Sweda, Jr. or  Mark Gottlieb

617-373-8462 or 617-373-2026

 2010 Verdict Reflected Juror Outrage at Handouts of Free Cigarettes to Children.

Marie Evans at the age Lorillard began handing her free samples of Newports

The SJC today unanimously rejected Lorillard Tobacco Co.’s attempt to evade liability in a case brought by Willie Evans, whose mother Marie died in 2002 at the age of 54.  Testimony at trial reported that while Marie was a child growing up in the Orchard Park housing project in the Roxbury neighborhood of Boston, she received free samples of Newport cigarettes.   Marie, who first received the free samples of Newport cigarettes when she was 9 or 10 years of age, became addicted by the time she was 13, according to lawyers for her son, Willie Evans.

Newport, which is Lorillard’s best-selling brand of cigarettes and contains menthol, has been heavily marketed toward the African-American community, a fact that was highlighted at the 2010 trial.

In today’s ruling the Massachusetts high court upheld the compensatory damages of $35 million but reversed a punitive damages award of $81 and sent the case back for a new trial on the issue of punitive damages. The Court found that the jury was not adequately instructed about the negligence claims pertaining to design and marketing.

However, the key finding was that the Court upheld the jury’s finding that Newport cigarettes were not fit to be sold in  Massachusetts (breaching the implied warranty of merchantability).

Lorillard could have and should have sold a safer alternative product that did not addict Ms. Evans and cause her lung cancer. The Court wrote:

We decline to place addictive chemicals outside the reach of product liability and give them special protection akin to immunity based solely on the strength of their addictive qualities.  . . . Rather, we conclude that, in determining as a matter of law whether the evidence presented at trial was sufficient for a reasonable jury to conclude that the plaintiff’s proposed design was a reasonable alternative to the defendant’s product, we must determine whether the design alternative unduly interfered with the performance of the product from the perspective of a rational, informed consumer, whose freedom of choice is not substantially impaired by addiction. Applying that standard to the evidence in this case, we conclude that a reasonable jury could find from the evidence presented that a low tar, low nicotine cigarette constituted a safer reasonable alternative to Lorillard’s Newport cigarettes. (emphasis added)

By “low tar, low nicotine cigarette,” the Court is not referring to brands that were deceptively marketed as “lights.”  It means cigarettes that do not addict and expose consumers to an array of carcinogens. As a matter of law in Massachusetts, any cigarette sold that addicts or maintains the nicotine addiction of consumers is defective.  That would include just about every cigarette sold in Massachusetts.

Mark Gottlieb, Director of the Tobacco Products Liability Project (TPLP), a project of the Public Health Advocacy Institute (PHAI) which is based at Northeastern University School of Law in Boston, was delighted with today’s ruling: “Florida has been a hotbed of tobacco litigation in recent years because cigarettes there are considered defective as a matter of law for a former class of addicted smokers.  About 8,000 cases are awaiting trial in Florida.  After today’s ruling, this is  now the law in Massachusetts with the important difference that it applies to every plaintiff victim of cigarette industry products.  I expect many more cases here to help to address the suffering of victims like Marie Evans who were needlessly addicted in their youth to a deadly product.”

Edward L. Sweda, Jr., Senior Attorney for TPLP, added that, “It is high time that Lorillard is forced to pay the Evans family for the suffering caused by its outrageous practice of giving away deadly and addictive Newport cigarettes to children near housing projects.  This company’s profiteering for decades on the backs of African Americans must come to an end and today’s ruling is an important step in that process.”

In sharp contrast to the manner in which management at Reynolds American, Inc. conducted its annual meeting of shareholders a week earlier,  Altria Group, Inc.’s Chairman and Chief Executive Officer Martin J. Barrington treated everyone at the May 16^th meeting in Richmond, Virginia with courtesy and politeness.

Barrington began his presentation by commending the Altria Board of Directors’ “strong leadership and oversight.”  He touted “strong results in 2012” and declared that the company’s “main brands did well.”  Citing the company’s 9000 employees, Barrington praised the company for being a founding member of the Farm Labor Practices Group, supporting the arts and investing in communities. He admitted that “more needs to be done to discourage youth tobacco use” and, without giving any data showing how the program discourages youth tobacco use, praised Altria’s “We Card” program.

Barrington reported increased market share for Marlboro (in red, green, gold and black) cigarettes and progress for Black & Mild (tipped cigarillos) and the two major smokeless tobacco brands of Skoal and Copenhagen.  He informed the audience that the company would introduce NuMark, a brand of e-cigarettes, in the second half of 2013.

Altria’s CEO also assured shareholders that the company’s outlook for 2013 is good; he noted that Altria had increased dividends six separate times since 2008.  Also, Altria’s shareholder returns had increased by 84.2% during the span of 2008 to 2012.

On the topic of tobacco litigation, Barrington declared that the company had “success in managing litigation,” mentioned the ongoing Brown case in California dealing with light cigarettes and said that Altria has “strong defenses” as it continues to defend Engle Progeny cases in Florida.

A shareholder resolution,  submitted by the Province of St. Joseph of the Capuchin Order in Milwaukee, dealt with the issue of disclosure of the company’s lobbying policies and practices.  Specifically, it called on the Board of Directors to prepare a report, to be updated annually, for shareholders disclosing the following:

1. “Company policy and procedures governing lobbying, both direct and indirect, and  Grassroots lobbying communications;
2. “Payments by Altria used for (a) direct or indirect lobbying or (b) grassroots lobbying communications, in each case including the amount of the payment and the recipient;
3. “Altria’s membership in and payments to any tax-exempt organization that writes and endorses model legislation; and
4. “Description of the decision making process and oversight by management and the Board for making payments described in section 2 above.

Fr. Michael Crosby presented the resolution.  He stressed that, while Altria has disclosed its payments to political candidates, it has kept largely secret the details about its spending on lobbying and making contributions to third-party organizations such as ALEC, the American Legislative Exchange Council.  The resolution’s supporting statement pointed out that “Altria spent approximately $21.37 million in 2010 and 2011 on direct federal lobbying activities” but that these figures “do not include lobbying expenditures to influence legislation in states.”

This author then spoke in support of the “modest, pro-transparency resolution” and described the opposition to the resolution by Altria’s management as “short-sighted.”  The company had described the reports required by the proposal as imposing “additional and unnecessary burdens and costs on the Company and would not be in the best interests of the Company and its shareholders.”

The results of preliminary voting were reported that the resolution was defeated with supporters garnering 21.82% of the votes cast.

During the question and answer session, to which thirty minutes were allotted, this author noted that Altria had suffered a major setback in mid-March when the Florida Supreme Court ruled 6-1 that the way dozens of Engle Progeny trials have been conducted since February 2009 does not violate the tobacco companies’ due process rights.  I concluded my observations about this litigation with the question: Why shouldn’t shareholders believe tobacco company attorneys who have warned about “massive liability” with thousands of Engle Progeny cases still in the pipeline with “no end in sight,” rather than believing the optimistic assurances from management?

Barrington’s response was to acknowledge that litigation is a “challenge” and to refer shareholders to the company’s 10-Q report (PDF), which covers litigation in detail.

Fr. Crosby noted that heavy users of cigarettes are often those who are at the lowest rung of the economic ladder.  “What steps will Altria Group take to reduce consumption of its tobacco products by the poor?” Rev. Crosby asked.  Mr. Barrington simply cited the company’s programs to reduce youth consumption without addressing low-income adult smokers.  Even after a follow-up question by Fr. Crosby, Barrington refused to commit any company resources to trying to discourage tobacco consumption among low-income adults.

After the 67-minute meeting had been adjourned, Altria Group, Inc., with its Marlboro brand having increased its market share of cigarettes by two-tenths of a percentage point in the first quarter of 2013, continued to conduct its business as it so usually does.   During the course of the meeting, approximately 56 people died in the United States from smoking-caused diseases.

By Edward L. Sweda, J.D.

                As the hour of 9:00 A.M. approached on May 9, 2013, the date of Reynolds American, Inc.’s (RAI) Annual Shareholders Meeting in Winston-Salem, North Carolina, the atmosphere seemed more contentious than in previous years.  In addition to the tight security that included the wanding of shareholders for anything metallic in their possession, the removal of suit jackets and the emptying of all pockets, Reynolds American management had arranged for the presence of four uniformed Winston-Salem police officers inside the meeting room.  That contingent of police supplemented several officers stationed outside the Reynolds American building at 401 North Main Street.

                Running the meeting was the Chairman of RAI’s Board of Directors, Tom Wajnert, who pleasantly wished the audience a good morning and commented on the beautiful, sunny weather outside.  Mr. Wajnert’s pleasant demeanor lasted less than a minute when, after addressing “points of information” by two shareholders who asked about the tardiness of the company’s response to written questions submitted at the 2012 Annual Shareholders Meeting, he declared that a third shareholder who began to raise a point of information was engaging in “silliness’ and was “out of order.”

After Mr. Wajnert proclaimed from the podium that he would “not tolerate disruptive behavior,” he turned the forum over to RAI President and Chief Executive Officer Daan Delen,  who provided a report on the company’s activities in 2012.  Delen trumpeted his company’s increasing endeavors in the field of tobacco harm reduction and boasted about RAI’s “innovation,” noting that Camel snus has 80% of the snus market.  Delen also touted Zonnic, a nicotine gum, and Vuse, a brand of e-cigarettes whose distribution will be expanded in 2013.

–Farm Labor Organizing Committee protesters–

In the presence of many shareholders who are concerned about the deplorable conditions under which migrant farm workers toil in tobacco growing fields, Delen praised the audit of North Carolina farms his company conducted since the 2012 Annual Shareholders Meeting and R.J. Reynolds’ “Good Manufacturing Practices” program, as well as its health and safety training DVDs.  [Members of the Farm Labor Organizing Committee (FLOC) demonstrated outside the building throughout the morning.

Finally, Delen, mentioned the increased transparency of the company’s disclosure of its political contributions on its website.  This decision had followed the submission by the Province of St. Joseph of the Capuchin Order in Milwaukee and Rev. Michael Crosby, of a proposed shareholder resolution calling on the company to do so.  That proposal was withdrawn by the sponsor following RAI’s disclosure.

What Mr. Delen did not give shareholders – for the first time in this author’s lengthy history of attending tobacco company annual shareholders meetings – was any comment about any aspect of tobacco litigation.  Delen’s silence on this issue came less than two months after the Florida Supreme Court resoundingly rejected the tobacco industry’s legal argument that the way Engle Progeny trials have been conducted since 2009 violates the industry’s due process rights.

During Senior Vice President Dara Folan’s report on an advisory vote for compensation to board members, a shareholder from the audience attempted to make a point of order.  Mr. Wajnert immediately declared that shareholders should “stop playing a stand-up game,” and, without knowing the issue the shareholder was trying to raise, determined that person to be “out of order” and declared that he “won’t tolerate interruptions.”

After a supporter and a seconder of an AFL-CIO-backed shareholder resolution calling for the annual election of board members to replace the current three-year staggered terms made their presentations (the resolution was defeated), the next order of business was the question-and-answer session.

In its agenda distributed to attendees, RAI informed the audience that it had allotted all of 25 minutes to consider questions from shareholders.  As soon as the meeting’s Q&A session was declared open, Dr. Sharon Brown, a grandmother and a shareholder from Pennsylvania, who was seated second from the aisle where the company’s sole microphone for audience members was situated, stood up and attempted to get to the microphone.  Sitting to her right was a male employee of RAI who neither rose to allow Dr. Brown to get by, nor moved his legs sufficiently to allow her by.  This author, who had been seated immediately to Dr. Brown’s left and was intending to follow her to the microphone, instead saw Dr. Brown fall to the floor after she attempted to get by the RAI employee.  By the time Dr. Brown was able – without any assistance whatsoever from the RAI employee who was at the microphone or from the RAI employee who had been sitting to her right – to get back onto her feet, approximately fifteen people had formed a line leading to the lone microphone.  The RAI employee at the microphone ordered Dr. Brown to go to the end of the line.

After the allotted 25 minutes had expired and with eleven people still standing in line to ask a question, Mr. Wajnert announced that he would take two final questions.  After those two final questions had been asked and answered, Dr. Brown went to the microphone and, noting that the day before she had attended  the Philip Morris International Annual Shareholders Meeting in New York City, a meeting where more than an hour was allotted for questions, asked that more time be allowed for shareholders’ questions.

Mr. Wajnert emphatically denied that request.  When Dr. Brown then noted that she had been tripped while attempting to approach the microphone and that she had been similarly tripped at the company’s 2011 Annual Shareholders Meeting, Mr. Wajnert’s response was to call on security, including the Winston-Salem police officers, to remove her from the meeting room on the grounds that she was “out of order.”

The meeting was adjourned several minutes after the ejection of Dr. Sharon Brown.

An article released today in the American Journal of Preventative Medicine by Holman et al. focuses on strategies to reduce indoor tanning.  Indoor tanning with sun lamps (as opposed to spray tanning)  increases the risk of malignant melanoma, the deadliest form of skin cancer.  This is particularly alarming because about one-third of white women(who are a high risk for skin cancer than others) in the U.S. have used sun lamps to tan within the past year averaging about 27 sessions over that time.  Many indoor tanning salon users are at even greater risk for skin cancer because  74% of tanning salons fail to adhere to FDA guidelines for tanning frequency.   The International Agency for Research on Cancer recently elevated tanning beds to its highest risk category as carcinogenic to humans.   Only 2 states prohibit tanning by minors (CA and VT).

There are some similarities between the way the indoor tanning and tobacco industries operate.   In fact, it appears that the tanning industry may be following the tobacco industry’s lead, particularly in its use of front groups and creating doubt around the science around the harm their products cause.

In 2010, the Federal Trade Commission settled a complaint against the Indoor Tanning Association for making deceptive claims about the risks and the benefits of indoor tanning.

In addition to legislative approaches to the problem and addressing research needs, one important intervention would be for the Food and Drug Administration to change the medical device classification for sunlamp products from class I to class II.  Class I is the medical device class used for tongue depressors. Today, the FDA pre-published proposed rules to reclassify sunlamps as class II devices (they will be published on May 9, 2013 and available here). Class II medical devices include products such as infusion pumps and surgical drapes.

Under the rules proposed today, manufacturers would have to: a) demonstrate to the FDA that indoor tanning lamps are safe for individuals; b) adjust UV wavelength to “appropriate” levels; c) install alarms and timers to prevent sunburn; and d) require users to read labels warning them of the dangers of UV exposure, including discouraging individuals under the age of 18 or those with a family history of cancer. Not only will these new requirements improve safety and reduce exposure to UV radiation indoors, they will also provide a strong reason for states to consider passing new or strengthening existing laws regulating tanning salons.

See: “Strategies to Reduce Indoor Tanning: Current Research Gaps and Future Opportunities for Prevention,” by Dawn M. Holman, MPH; Kathleen A Fox, MPP; Jeffrey D. Glenn, MPA; Gery P. Guy, Jr., PhD; Meg Watson, MPH; Katie Baker, MPH, DrPH(c); Vilma Cokkinides, PhD; Mark Gottlieb, JD; DeAnn Lazovich, PhD; Frank M Perna, EdD, PhD; Blake P Sampson, BS; Andrew B. Seidenberg, MPH; Craig Sinclair; Alan C. Geller, MPH, RN (DOI: 10.1016/j.amepre.2013.02.014)

By a vote of 6 to 1, Florida’s highest court ruled in favor of the plaintiff in Philip Morris USA, Inc., et al. v. Douglas, 2013 Fla. LEXIS 440, upholding a $2.5 million award in the death of Charlotte Douglas and explicitly rejecting industry arguments that the Florida Supreme Court’s ruling seven years ago violated the Due Process rights of the companies.

The Engle case originated as a class action and went to trial before a jury; that jury in Phase I of the trial found the defendant companies strictly liable, in that the cigarettes that the defendants manufactured and placed on the market “were defective in many ways including the fact that the cigarettes contained many carcinogens, nitrosamines, and other deleterious compounds such as carbon monoxide.”   While the case ultimately was not allowed to proceed as a class action, the Supreme Court of Florida ruled in 2006 that the members of the class could file their own individual cases (so-called “Engle Progeny” cases) and proceed with those cases relying upon the jury’s Phase I findings of liability, including that smoking caused a variety of specific diseases, that nicotine in cigarettes is addictive, that the tobacco defendants placed cigarettes on the market that were defective and unreasonably dangerous and that all of the Engle defendants were negligent.

The tobacco companies have argued that, despite the fact that they vigorously presented a defense to these claims during the original Engle trial, applying the Phase I findings to the Engle Progeny trials violates their due process rights.  Even though the R.J. Reynolds Tobacco Co. relied on this argument unsuccessfully in the Martin case a year ago, (see http://www.phaionline.org/2012/03/26/supreme-court-rejects-key-tobacco-industry-appeal-leaving-massive-liability-with-no-end-in-sight/ ),  the companies tried again in Douglas.  Commenting on the original Engle trial, the six-member majority in Douglas said: “As illustrated by hundreds of witnesses, thousands of documents and exhibits and tens of thousands of pages of testimony, the Engle defendants had notice and the opportunity to defend against all theories of liability for each of the class’s claims in the yearlong Phase I trial.”

That six-member majority also noted that the tobacco defendants “argue that the Phase I findings establish, at most, that some of their cigarette were defective for some unspecified reason and that they engaged in some, unspecified tortious conduct.  This, they claim, requires reversal of the verdict for the plaintiff based on strict liability because the Douglas jury was not instructed (and did not find) a causal connection between a specific defect in the defendants’ cigarettes and the injuries alleged.  We disagree and decline the defendants’ invitation to revisit our decision in Engle.”

The majority clearly recognized and emphatically rejected the industry’s fundamental argument.  “At its core, the defendants’ due process argument is an attack on our decision in Engle to give the Phase I findings res judicata – as opposed to issue preclusion – effect in class members’ individual damages actions.   However, res judicata is the proper term, and we decline the defendants’ invitation to rewrite Engle.”

The decision was bad news for the tobacco industry and its friends on Wall Street.  Pro-industry analyst David J. Adelman of Morgan Stanley admitted that the ruling “was even more pro-plaintiff than we expected and will make it more difficult for the industry to successfully defend these claims.”

After the decision was released, Philip Morris USA announced that “it plans to seek further review” of the Douglas decision.  That means yet another attempt to persuade the Supreme Court of the United States to consider the industry’s appeal that Engle Progeny trials that result in plaintiff verdicts somehow violate the companies’ due process rights.  If the Supreme Court of the United States makes the same decision it made a year ago about an almost identical appeal (Martin), the answer to the tobacco companies will be a final “No.”

-Edward L. Sweda, Senior Attorney for the Tobacco Products Liability Project

Food companies used viral digital marketing tactics, such as “tell-a-friend” web campaigns, to induce children to share e-mail addresses of their friends and spread brand advertising of unhealthy foods among their peers.  Even very young children are targeted by these campaigns, which may be considered unfair and deceptive and in violation of state consumer protection laws.

PHAI has prepared a legal issue brief on this topic for state attorneys general as well as stakeholders in children’s health and privacy.  The brief explains the tactics that are used and suggests ways that they can be addressed, particularly under state law.

This work was supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#69293).

The first strategy, available to the FDA under its authority granted in 2009 by Congress through the Family Smoking Prevention and Tobacco Control Act, is to reduce the nicotine content of cigarettes (and cigarette-like products) to non-addictive levels. Reducing nicotine yields of tobacco products (to anything above zero) is specifically mentioned in the law and, given strong evidence that it would benefit public health, there is nothing stopping the FDA from taking this bold step. While many smokers will quit if cigarettes do not deliver sufficient nicotine to maintain their addiction, others may chose to use tobacco products with higher levels of nicotine. But because cigarettes are, far and away, the most toxic product available for delivering nicotine, making them non-addictive is the only responsible thing to do. It will help existing smokers to quit or move to less dangerous sources of nicotine, stop smoking experimentation by youth from becoming a deadly addiction, and dramatically reduce non-smokers’ exposure to tobacco smoke. Public polling, while limited, consistently shows significant support, even by smokers, for reducing nicotine in cigarettes.

The second strategy relies on states and even communities regulating the sales of cigarettes under the principles of a proposal that has gained some traction outside of the U.S., called the Smokefree Millennial Generation. I feel it should be named in honor of the late Dr. C. Everett Koop who once challenged America of become a smokefree nation by 2000. The idea is that if a person’s birth year begins with the number “2,” that person shall not purchase cigarettes (or little cigars or other cigarette-like products). The legal authority for states and communities to enact such sales restrictions was clearly stated in the legislation that granted the FDA regulatory authority over tobacco (although communities could be preempted in some states). This proposal would gradually phase out smoking, beginning with the Millennials in 2018, wherever it was enacted. As more states adopted this policy, there would be fewer places willing to sell cigarettes to 18-year-olds who are unlikely to have the mobility to get a sufficient cross-border supply to initiate or maintain addiction.

While each of these strategies would face likely legal challenges that would delay but probably not overturn the regulatory policies in question, as well as public relations and implementation challenges, the time has finally come to put an end to smoking and smoking-caused disease by focusing narrowly on the highest impact policies that would dramatically reduce smoking rates in a decade. It is PHAI’s hope that today’s op-ed will generate a discussion and support among public health and tobacco control leaders so we can work together to truly achieve our shared goal of sharply reducing preventable death and disease. Eliminating smoking may seem way outside the box, but it is the best place to start.

Soda consumption is a major contributor to adolescent obesity.¹ Fortunately, soda consumption has been declining recently,² presumably as a result of adverse media attention and policy initiatives like the ban on most sugar-sweetened beverages in schools.

PepsiCo has decided to do something about that, and has designed its “Live for Now” campaign in an effort to reverse the decline in teenage soda  consumption. The campaign takes advantage of known adolescent vulnerabilities which result from the facts that the inhibitory structures of their brains are not fully developed, hormonal changes further reduce inhibitions while lowering self-esteem, and their psychosocial development focuses on identity formation and social acceptance.³  As a result they tend to be impulsive, thrill-seeking, and “now”-oriented. While they may rationally balance perceived risks and benefits, doing so does not necessarily inure to their best long-term interests.

Pepsi’s Live for Now campaign, like the infamous Joe Camel campaign used by R.J. Reynolds, is designed to prey upon these adolescent vulnerabilities in an effort to reverse declining consumption trends as well as to market a particular product.

Unlike cigarette advertisers, Pepsi is free to take its campaign to the airwaves.  It will do so in a big way when it will sponsor the Superbowl Halftime Show featuring Beyoncé, who recently entered into a $50 million endorsement deal with PepsiCo.

The Federal Trade Commission could bring an enforcement action under its unfairness jurisdiction, and state attorneys general and private attorneys could seek injunctive relief under state consumer protection laws.

But little is likely to happen unless public outrage is focused on this campaign, and unless regulators and judges learn more about the biological and developmental underpinnings of faulty adolescent decision-making.

References:

^1.                Ludwig DS, Peterson KE, Gortmaker SL. Relation between consumption of sugar-sweetened drinks and childhood obesity: a prospective, observational analysis. Lancet 2001; 357: 505–508.

^2.                Strom, S. (2012). “Soda Makers Scramble to Fill Void as Sales Drop.”  The New York Times, May 15, 2012.

^3.                Pechman, Cornelia, Linda Levine, Sandra Loughlin, and Frances Leslie (2005), “Impulsive and Self-Conscious:  Adolescents’ Vulnerability to Advertising and Promotion,” Journal of Public Policy & Marketing, 24 (Fall), 202-221.             

Research assistance by Brendan Burke and Cara Wilking
Support for this research was provided, in part, by the National Cancer Institute (2R01CA087571).

White Paper: Numbers and Costs of Occupational Injury and Illness in Low-Wage Occupations
Policy Brief: Mom’s off Work ‘Cause She Got Hurt: The Economic Impact of Workplace Injuries and Illnesses in the U.S.’s Growing Low-Wage Workforce

NEW POLICY BRIEF EXAMINES IMPACT OF OCCUPATIONAL INJURIES AND ILLNESSES AMONG LOW-WAGE WORKERS, WHICH COST $39 BILLION IN 2010

WASHINGTON, D.C.—Low-wage workers, who make up a large and growing share of the U.S. workforce,  are especially vulnerable to financial hits that can result from on-the-job injuries and illnesses, according to a policy brief released today by researchers at the George Washington University School of Public Health and Health Services (SPHHS). The policy brief, “Mom’s off Work ’Cause She Got Hurt: The Economic Impact of Workplace Injuries and Illnesses in the U.S.’s Growing Low-Wage Workforce,” was released along with a white paper showing that such workplace injuries and illnesses cost the nation more than $39 billion in 2010.

“Workers earning the lowest wages are the least likely to have paid sick leave, so missing work to recuperate from a work-related injury or illness often means smaller paychecks,” says the lead policy brief author Celeste Monforton, a professorial lecturer in environmental and occupational health at SPHHS. “For the millions of Americans living paycheck to paycheck, a few missed shifts can leave families struggling to pay rent and buy groceries.”

The policy brief analyzes and contextualizes for policymakers research by health economist J. Paul Leigh of University of California, Davis. At the request of Monforton and her colleague Liz Borkowski, an SPHHS researcher, Leigh returned to data he analyzed for a 2011 study published in the Milbank Quarterly. (See a summary of that study at http://on.natgeo.com/XcfnBi.)

Leigh zeroed in on approximately 31 million people—22% of the U.S. workforce—in 65 occupations for which the median wage is below $11.19 per hour. Janitors, housecleaners, restaurant workers, and others earning that wage full-time will bring home just $22,350 per year—an amount that means a family of four must subsist at the poverty line.

Leigh calculated that in 2010, 596 low-wage workers suffered fatal on-the-job injuries and 12,415 died from occupational ailments such as black lung disease or certain kinds of cancer. Another 1.6 million suffered from non-fatal injuries, and 87,857 developed non-fatal occupational health problems such as asthma. The costs of the 1.73 million injuries and illness amounted to $15 billion for medical care and another $24 billion for lost productivity—the cost when injured or sick workers cannot perform their jobs or daily household duties.

The policy brief explains that workers’ compensation insurance either does not apply or fails to cover many of these costs, which can bankrupt families living on the margin. In some cases, employers do not have to offer this kind of insurance to employees. And even workers that do have the coverage often get an unexpected surprise after an on-the-job injury or illness: Insurers generally do not have to provide wage replacement until the worker has lost between three and seven consecutive shifts. And workers at the low end of the wage scale are often discouraged from reporting on-the-job injuries as work-related—which leaves them with no insurance benefits at all, the brief said.

Leigh calculates that insurers cover less than one-fourth of the costs of occupational injuries and illnesses. The rest falls on workers’ families, non-workers-compensation health insurers, and taxpayer-funded programs like Medicaid.

“When low-wage workers miss even a few days of pay while recovering from an occupational injury or illness, the effects spread quickly,” Borkowski says, noting that fewer than one in five low-wage workers has access to paid sick leave. “They will usually have to cut back on their spending right away, which affects the local economy.” And families with children might skip meals or cut back on the heat, money-saving tactics that can put vulnerable family members such as children at risk of developmental delays and poor performance in school.

The brief suggests that policymakers should address this public health problem more forcefully by improving workplace safety and strengthening the safety net to reduce the negative impacts caused by the injuries and illnesses that still occur. “On average, more than 4,000 workers are injured on the job each day,” Monforton notes. “If we make workplaces safer, we not only stop losing billions of dollars each year, but we also could reduce the pain and suffering and financial impact on thousands of low-wage, hard-working Americans and their families.”

Both the policy brief and white paper were funded by the Public Welfare Foundation.

When COPPA was created, data mining and other sophisticated data collection techniques did not exist.  Nor did the variety of platforms we see today, including mobile “geo-aware” computing platforms that can track one’s location through global positioning satellite as well as Wi-Fi technology.  Currently the Federal Trade Commission is proposing to update the rules of children’s online privacy protection to better accomplish what COPPA was designed to do:  ensure that children’s privacy is not compromised absent parental consent.

PHAI’s senior staff attorney, Cara Wilking, appeared on KPCC radio’s Airtalk on October 1 to discuss the updating of COPPA by the FTC.  Listen to the podcast here.

PHAI signed on to comments on the FTC’s proposed new rules for administering COPPA on September 25th.  They can be reviewed here.

The New York Times covered this issue on September 27 in an article entitled, “U.S. is Tightening Web Privacy Rule to Shield Young.”