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Case Studies

UNDERSTANDING LITIGATION AS A FORM OF OPPOSITION TO PUBLIC HEALTH LAWS

Funded by the Robert Wood Johnson Foundation’s Public Health Practice & Policy Solutions, PHAI conducted a series of descriptive case studies of proposed public health measures where opponents threatened litigation.  The case studies used interviews with key stakeholders, and extensive background and legal research to describe the nature of the threats and provide insight into how the public health officials prepared and responded to the threats.

These case studies are ideal for use as teaching tools with public health practitioners and attorneys  in training and with people working in the field. The case studies explore a broad range of  public health initiatives including: obesity, tobacco control, climate change, industrial agriculture, HIV/AIDS, and teen pregnancy prevention.

TOBACCO CONTROL

San Francisco County Tobacco Pharmacy Ban: This case study documents San Francisco County’s passage of a ban on tobacco sales in most pharmacies in 2008.  Tobacco use is the leading preventable cause of death in the United States. Even when a lawsuit was expected, San Francisco lawmakers moved forward and banned the sale of tobacco products in all standalone pharmacies.  Lawsuits brought in state and federal court were unsuccessful, and the law was upheld.  FULL CASE STUDY

Case Study Interviewees / Key People:
• Dr. Mitchell H. Katz, Director, Dep’t of Public Health, City and County of San Francisco
• Catherine Dodd, Deputy Chief of Staff, Office of the Mayor of San Francisco
• Alyonik Hrushow, Director, Tobacco Free Project, Dep’t of Public Health, San Francisco

Massachusetts State Regulation of Tobacco Production Promotion and Sales: In 1999, the Massachusetts Attorney General’s Office passed statewide regulations to limit some sales and promotional practices for cigarettes and other tobacco products.  The goal was to reduce tobacco marketing from targeting children.  Prior to passage, representatives of the tobacco industry threatened litigation both in statements to the media and directly to regulators.  Upon passage, a lawsuit was filed and the case eventually reached the United States Supreme Court where the regulation was largely invalidated. However, the law was changed in June, 2009 to eliminate any federal legislative obstacle to such regulations in the future. FULL CASE STUDY

Case Study Interviewees / Key People:
• George K. Weber, Former Chief of the Division of Consumer Protection, Massachusetts Attorney General’s Office
• Dr. Greg Connolly, Former Director of the Massachusetts Tobacco Control Program, Department of Public Health

New York State Cigarette Reduced Ignition Propensity Law: In 2000, New York State became the first jurisdiction to enact legislation that regulates the fire safety of cigarettes.  Cigarettes are the leading cause of fire deaths in the United States.  Some members of the tobacco industry opposed the law, including through claims that the law would be illegal.  The law was passed, after some delay, and no lawsuit was filed.  Numerous states have adopted similar regulatory oversight all using the same product standards as New York.  FULL CASE STUDY

Case Study Interviewees / Key People:
• Russ Haven, Legislative Counsel, New York Public Interest Research Group (NY PIRG)
• John Mueller, Deputy State Fire Administrator, New York’s Office of Fire Prevention and Control
• Nathan Hamm, Associate Attorney, Office of the General Counsel

OBESITY

New York City Calorie Disclosure Law: This case study documents the successful passage of the nation’s first restaurant calorie disclosure law in 2006.  In an effort to address increases in obesity rates and obesity-related health problems, the New York City Department of Health and Mental Hygiene required most chain restaurants to post the number of calories in menu items. The disclosure appears prominently next to each item on the menu or menu board.  The rationale for the disclosure is that restaurant patrons who are aware of calorie information when looking at menus, that is, when actually deciding what to eat, are more likely to purchase meals with fewer calories.  Excessive calorie consumption is a leading cause of obesity.  Public officials faced significant opposition and two lawsuits.  The law was upheld, and has served as the prototype for the provision in the health care reform bill of 2010 that establishes the same requirement on a nationwide basis FULL CASE STUDY

Case Study Interviewees / Key People:
• Dr. Lynn Silver, Assistant Commissioner, Bureau of Chronic Disease Prevention and Control, New York City Department of Health and Mental Hygiene
• Thomas Merrill, General Counsel, New York City Department of Health and Mental Hygiene

CLIMATE CHANGE

California Automobile Emissions Law: In 2001, freshman California State Assemblywoman Fran Pavley filed the nation’s first piece of legislation, known as the “California Clean Cars Law,” which required a reduction in greenhouse gas emissions from motor vehicle tail pipes.  Controversy over the measure arose quickly and auto industry opponents organized a vigorous and well-funded public relations campaign against the legislation, which included some threats of litigation.  Opponents lost their bid to defeat the law in the California state legislature by a narrow margin and after detailed regulatory proceedings lasting over two years, filed a series of lawsuits in federal district courts challenging the law primarily on preemption grounds. The auto industry’s legal challenges were unsuccessful, but for the first time since the Clean Air Act was enacted, the EPA Administrator denied California’s waiver request, thereby preventing implementation of the regulations in California and thirteen states and the District of Columbia that had passed similar emission standards.  This decision was reversed after a change in presidential administration.  FULL CASE STUDY

Case Study Interviewees / Key People:
• Fran Pavley, Former Assemblywoman, California State Senate
• Wendy James, President, The Better World Group, Burbank, CA

INDUSTRIAL AGRICULTURE / CAFO’S

Worth County, Iowa Regulation of Concentrated Animal Feeding Operations: In 2001, the Worth County, Iowa Board of Supervisors passed a regulation of air and water emissions as well as worker health protections for concentrated animal feeding operations.  The ordinance was the culmination of almost two years of community organizing and public hearings around the issue, but also met with strong opposition.  The Board of Supervisors unsuccessfully sought to enjoin construction of a concentrated animal feeding operation before passage of the regulation and then, after passing the regulation, faced a lawsuit that resulted in invalidation of the regulation.  Nonetheless, no animal feeding operations have located in
Worth County since 2001. FULL CASE STUDY

Case Study Interviewees / Key People:
• Dr. Stephanie Seemuth, Member, Worth County Board of Health
• Charles Cutler, Attorney, Cutler Law Firm, West Des Moines, IA
• Richard Holstad, former Member, Worth County Board of Supervisors and Board of Health, IA

HIV/AIDS

Atlantic City, NJ Needle Exchange Program: Atlantic City Department of Health and Human Services passed an ordinance establishing a municipal needle exchange program in 2004, as the City faced an HIV/AIDS public health crisis with one in forty residents infected and sixty percent of infections related to injection drug use.  Despite the statements to the press by the county prosecutor that the proposed needle exchange ordinance violated state law, the Mayor and City Council supported passage.  Upon passage, the county prosecutor immediately filed suit to enjoin implementation of the ordinance, and the law was invalidated. Nonetheless, the New Jersey legislature responded to the publicity about the program and the case by passing a law that permitted Atlantic City and another city that had attempted such a program to proceed with it. FULL CASE STUDY

Case Study Interviewees / Key People:
• Ron Cash, Director, City of Atlantic City Health & Human Services
• Gene Brunner, HIV Coordinator, City of Atlantic City Health & Human Services
• Roseanne Scotti, Director, Drug Policy Alliance New Jersey

TEEN PREGNANCY PREVENTION

Portland, ME School System Contraceptive Services: In 2007, the Portland School Committee ratified the King Middle School Health Center’s proposal to expand its services to provide prescription contraception to students. The proposal to offer comprehensive contraceptive services at the Health Center came about after a dramatic increase in pregnancies in Portland’s middle schools.  The change drew intense and immediate scrutiny from local and national media, including threats to sue if the policy was not changed and an allegation by a local prosecutor that Health Center staff neglected mandatory reporting laws.  A lawsuit was never filed, and the new policy remains in force.  FULL CASE STUDY

Case Study Interviewees / Key People:
• Amanda Rowe, School Nurse Coordinator, Portland Maine Public Schools
• John Coyne, Chairman, Portland Maine School Committee

VIOLENT VIDEO-GAMES

Denver, Colorado Transit Authority’s Advertisement Policy: In 2006, advocacy groups, including the Campaign for a Commercial Free Childhood, urged the Denver Colorado’s Regional Transportation District to prohibit future ads for videogames rated “Mature” or “Adult Only” after the current advertising contracts expired.  The Transit Authority initially was receptive to the policy change and referred the policy to a committee that voted to recommend the policy.  Before formally adopting the policy, the videogame industry association, the Entertainment Software Association, approached the Transit Authority and outlined its legal arguments in opposition.  The policy change was dropped.  FULL CASE STUDY

Case Study Interviewees / Key People:
• John Tayer, Board Member, Regional Transportation District, Denver, CO
• Josh Golin, Program Manager, Campaign for a Commercial Free Childhood, Boston, MA
• Gavin McKiernan, National Grassroots Director, Parents Television Council, Los Angeles, CA


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