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Archive for the ‘Case Study’ Category

PHAI Publishes Case Study on NY State Reduced Ignition Propensity Cigarette Law

Friday, April 2nd, 2010

PHAI documented New York State’s enactment of the first reduced ignition propensity law for cigarettes.  For decades, state and federal legislators have sought to change the manufacture of cigarettes in order to reduce the risk of fire, and the tobacco industry has sought to delay or prevent state and federal regulators from regulating cigarette ignition propensity. In 2000, New York State became the first jurisdiction to enact legislation that regulates the fire safety of cigarettes.

 The persistence by legislators, advocates and government officials over many years on many fronts can overcome enormous obstacles.  A realistic assessment of the opposition at the very outset of the effort is essential. The threat of litigation required lawyers to carefully and realistically assess the strength of the legal issues that could be raised in litigation. Even though no one sued to block implementation of New York’s law, the threat of eventual litigation and its concomitant costs to the state made it critical for lawyers consulted by legislators and advocates to assess the true risks of litigation.



PHAI Publishes Case Study of the California Clean Cars Law

Friday, April 2nd, 2010

PHAI document the nation’s first piece of legislation, known as the “California Clean Cars Law,” which requires a reduction in greenhouse gas emissions from motor vehicle tail pipes. The state of California enjoys a special status under the federal Clean Air Act, allowing it to regulate vehicle emissions so long as it receives a waiver from the U.S. Environmental Protection Agency (“EPA”) of Clean Air Act preemption. California’s legislation was especially important for its potential national implications—under the Clean Air Act, other states can implement standards identical to California once an EPA waiver is granted.

Proponents understood and anticipated the legal challenges their initiative would face from the auto industry. Several express limits on the implementing state agency’s authority were added to the bill to satisfy the opposition and reduce the risk of legal challenges. The law’s findings section was specifically designed to meet the EPA waiver requirement of “compelling and extraordinary” circumstances, focusing on California’s particular vulnerability to climate change. Thus, the strategy of compromising on the legislation and delegating the details of implementation to a strong state agency (with only eleven voting members) was largely successful.

 The initiative benefited enormously from having a determined and media savvy legislative champion, a diverse coalition of outside supporters, the eventual support of the leadership of both the State Assembly and the State Senate, and support from two consecutive state governors. The role of the governors was also a pivotal factor, giving the allocation of resources needed to defend expensive, complex and lengthy legal challenges.

 The proponents benefited from their early courtroom victories. At least one of the decisions (the U.S. Supreme Court ruling recognizing EPA’s jurisdiction to regulate CO2) may well have been a welcome surprise. Despite their careful preparation, proponents did not appear to predict the historic denial by the EPA of waiver to allow the California law to be enforced. A waiver under the Clean Air Act had never been denied to the state of California before.  The current administration allowed the waiver. 

 Another important lesson is the proven value of concerted collaboration between environmental, public health, faith and business groups. Such collaboration was a key ingredient in the success of the California Clean Cars Law, particularly at the legislative level. Many public health initiatives have potential co-benefits and multiple constituencies. The collaboration inspired by the California Clean Cars Law demonstrated the potential for success when cross-cutting constituencies join forces to achieve mutually agreed upon goals. The resulting synergy multiplies the political and financial capital available to proponents, especially when faced with industry opponents that have tremendous resources at their disposal.

 Finally, the Clean Air Act’s approach to preemption—permitting a leading state to adopt more stringent standards than the federal government, which may also be followed by other states—could prove to be particularly important to emerging public health policy and laws, especially in the area of climate change. Among its advantages, this model recognizes and encourages states with a strong track record of innovation to develop and test potential solutions. This indicates that states are prepared to form coalitions and commit considerable resources to help raise public health and environmental standards nationwide.



PHAI Publishes Case Study on Denver, CO Regional Transportation Districts Dropping of a Ban on Violent Video Game Advertisements

Friday, April 2nd, 2010

PHAI documented the 2006 decision by the Denver, Colorado’s Regional Transportation Districts to drop a ban on violent video game advertisements. In the fall of 2006, Rockstar Games launched a national advertising campaign for its “Mature”-rated video game Grand Theft Auto: Vice City Stories in advance of the holiday shopping season.

  Advertisements ran on mass transit vehicles in cities across the country including Boston, MA, Denver, CO and Portland, OR.  In response to the advertising campaign in Boston, the Campaign for a Commercial-Free Childhood (“CCFC”), a Boston-based child advocacy group, successfully orchestrated a campaign to have the Mass Bay Transit Authority (“MBTA”) change its ad policy to prohibit future ads for videogames rated “Mature” or “Adult Only.”  Inspired by the policy change in Boston, in early 2007, the Parents Television Council (“PTC”) in conjunction with CCFC sought to have Denver, Colorado’s Regional Transportation District (“RTD”) amend its ad policy to prohibit future ads for “Mature” and “Adult Only” rated video games.

The RTD initially was receptive to the policy change and referred the policy recommendation to a committee, which voted to recommend the policy. When it came time for the policy to be formally voted on, the Entertainment Software Association (“ESA”), the video game industry association, sent a representative to the RTD Board meeting. At the meeting, the ESA outlined its legal arguments against the policy change. After consulting with legal counsel, the RTD Board voted down the ad policy change

There were several key differences that may have caused success in Boston and failure in Denver. The Boston campaign came first, and the ESA did not get involved. The ESA received some criticism for its failure to prevent the Boston ban and stepped in to prevent the ban from spreading to other cities. While PTC had dealt with the ESA in the past, PTC did not expect ESA involvement in Denver’s particular case. The timing in Boston also may have been a critical factor.

The Boston campaign occurred while the Grand Theft Auto: Vice City Stories ads were still running, which may have led to greater public and media interest. By the time the Denver campaign began, the ads had already finished running and there was less public attention. PTC felt that more public outcry would have been needed to overcome the threat of legal action. Also in Boston, several local politicians and police unions signed the letter requesting the ad policy changes. CCFC and PTC did not elicit the same support from locally known groups in Denver.



PHAI Publishes Case Study of MA Attorney General Tobacco Advertising Regulations and Legal Challenge to Them

Friday, April 2nd, 2010

PHAI documented the Massachusetts Attorney General’s Office’s 1999 passage of regulations to limit particular advertising and sales practices for cigarettes, cigars, little cigars and smokeless tobacco products. The goal of the regulations was to protect youth from the predatory marketing practices of the tobacco industry.

Shortly after the regulations were adopted and before they went into effect, tobacco manufacturers and retailers filed suit in federal court challenging most of the regulations based on preemption and First Amendment grounds. The U.S. Supreme Court struck down the outdoor and point-of-sale tobacco advertising restrictions were struck down.

 We gleaned several conclusions form this case study. First, proponents were willing to persevere and take risks, including the risk of setting an adverse legal precedent, in order to limit the tobacco industry’s ability to market its products to children. Their determination was motivated by a belief that challenging the industry advertising practices, especially those directed at children, was “the right thing to do” and supported by “good faith” legal arguments.

Second, the case study demonstrates the tobacco industry’s determination of the tobacco industry to challenge regulation. 

Third, the case demonstrates the establishment of legal precedent that can constrain future public health decision-making.  Some of the regulations at issue in this case may once again be the subject of a legal challenge to the recently adopted federal law granting the Food and Drug Authority extensive authority to regulate tobacco products, including advertising. 

An initial court decision on the validity of FDA authority over tobacco cited the 2001 U.S. Supreme Court case as justification for limiting FDA authority. It appears that more recent empirical evidence linking youth smoking to advertising targeting adults may be pivotal to any future First Amendment legal challenges to tobacco advertising regulations.



PHAI Publishes Case Study on Portland, ME School Committee’s Initiative to Provide Prescription Contraception Products to Middle School Students

Friday, April 2nd, 2010

PHAI documented the Portland School Committee’s 2007 vote to ratify a proposal from the King Student Health Center (“Health Center”) located at the King Middle School in Portland, ME to expand its services to provide prescription contraception to Health Center users. The proposal to offer the full range of contraceptive services at the Health Center came about after seventeen middle school-aged girls became pregnant in the City’s three middle schools over a four-year period.

The policy change drew intense and immediate scrutiny from local and national media. The American Center for Law & Justice, a public interest law firm, sent a letter to School Committee members threatening to sue the School Committee if the policy was not changed and the local prosecutor alleged that Health Center staff had not been properly complying with Maine’s mandatory reporting laws.

 The School Nurse Coordinator for Portland Public Schools, the King Middle School Principal and Health Center staff, along with supportive members of the School Committee and the community did not waiver in light of the national media attention and the legal threats made. The policy went into effect without delay or amendment and no litigation has been filed to challenge the policy.



PHAI Publishes Case Study of Hog Farmers’ Challenge of Worth County, IA Envronmental Ordinance

Friday, April 2nd, 2010

PHAI documented the Worth County, Iowa Board of Supervisors’ 2001 passage of an ordinance establishing local regulation of air and water emissions as well as worker health protections for concentrated animal feeding operations (“CAFOs).

The ordinance was the culmination of almost two years of community organizing and public hearings around the issue. A group of local hog producers and the Iowa Farm Bureau sued the county seeking to invalidate the ordinance. The Iowa Supreme Court struck down the ordinance, ruling that county governments are preempted by Iowa state law from regulating CAFOs.

 While ultimately unsuccessful in court, Worth County’s attempt to regulate CAFOs was part of a lively public discourse throughout Iowa about the state of local control over CAFOs. The ordinance made clear to Worth County pork producers the community’s health standards. The controversy also created opportunities to educate the public about the health effects of mismanaged CAFOs. Worth County residents are now well-informed and well-organized around the environmental health issues associated with mismanaged CAFOs.



PHAI Publishes Case Study Examining Litigation Surrounding Atlantic City’s Needle Exchange Ordinace

Monday, March 29th, 2010

PHAI documented Atlantic City’s 2004 passage an ordinance establishing a municipal needle exchange program. Atlantic City faced an HIV/AIDS public health crisis with one in forty residents infected and sixty percent of infections related to injection drug use.

The Atlantic City Department of Health and Human Services (“DHHS”), working in conjunction with Drug Policy Alliance of New Jersey (“DPA-NJ”), proposed a municipal needle exchange ordinance after the state legislature repeatedly failed to enact needle exchange legislation. The DHHS informed the Atlantic County Prosecutor and law enforcement of the proposed ordinance. The County Prosecutor told DHHS and the press that he believed the ordinance violated New Jersey’s criminal drug paraphernalia laws.

After consulting DPA-NJ, and with full support of the Mayor of Atlantic City and the head of the City Council, the ordinance was formally proposed and passed into law. The Atlantic County Prosecutor immediately filed suit to enjoin implementation of the ordinance, and the law was overturned in court. Despite the invalidation of the ordinance, Atlantic City’s bold action to address its public health crisis focused media attention on the HIV/AIDS issue and generated the political will necessary to successfully enact state-level needle exchange legislation in 2006.



PHAI Publishes Case Study on Challenges to Pharmacy Tobacco Sales Ban in San Francisco County

Monday, March 29th, 2010

PHAI documented the ban on tobacco product sales in pharmacies located in the County of San Francisco in August 2008.  Even when faced with the likelihood of litigation, San Francisco lawmakers moved forward with the ban.  In September 2008, a large pharmacy chain filed a lawsuit claiming that ban violated its equal rights.  The ban excluded grocery stores and big box stores that housed pharmacies.  Later in September 2008, a tobacco manufacturer filed a second lawsuit claiming that the ban violated commercial free speech rights.

The decision to pass the ban despite the threat of litigation was undergirded by some key points.  First, the harm caused by tobacco justified the ban.  Second, proponents believed establishing new, effective tobacco control laws inevitably meant having to face the tobacco industry in court, given the industry’s aggressive use of litigation.  Third, proponents felt that litigation would confirm the legality of pharmacy bans, and thus, establish legal precedent for other jurisdictions to follow.  Third, an effort to thwart passage of the ban would generate public interest and awareness of the health effects of tobacco use.  Fourth, several years of capacity building established a range of stakeholders who understood and supported the ban.  Fifth, the ban represented a first step in a larger effort to reduce tobacco sales in San Francisco through a reduction of retail outlets.  The pharmacy ban would be good, and somewhat safe first step towards that goal.

Funded by the Robert Wood Johnson Foundation’s Public Health Practice & Policy Solutions, PHAI used case study research methodology to investigate threats of litigation made during the proposal and passage of public health laws. The case studies examine this experience across a range of public health issues. Public health officials, attorneys and advocates provide insight into their decision-making and planning process in anticipation of and in response to legal challenges.



PHAI publishes Case Study on NYC Menu Labeling Litigation

Monday, March 29th, 2010

PHAI documented the successful passage of the nation’s first restaurant calorie disclosure law.  In an effort to address increases in obesity rates and obesity-related health problems, the New York City Department of Health and Mental Hygiene (“DOHMH”) amended the City’s Health Code on December 5, 2006 and then again on January 22, 2008 to require that chain restaurants post the number of calories contained in standardized menu items. The disclosure appears close to each item on the menu or menu board. Restaurant patrons are more likely to see and act upon these disclosures, compared to information posted in less obvious locations in restaurants or on websites.

Although several public health practitioners and organizations supported the concept of the disclosure law, its legality was untested in the courts when DOHMH acted. DOHMH knew it would face an organized and well-funded opposition. DOHMH nevertheless passed the disclosure law and faced two lawsuits. The final outcome was that DOHMH established a version of the disclosure law that was more comprehensive than originally intended. (The first version applied only to restaurants that voluntarily agreed to post calorie information.  The final version applies to most chain restaurants, regardless of whether they want to post calorie information.)  Numerous states and municipalities have subsequently passed disclosure law in their jurisdictions.

The decision by DOHMH to proceed was under-girded by some key factors.  First, the scope of the increase in obesity prevalence was (and remains) alarming.  The problem had been documented in health surveillance data.   Second, several public health organizations have recommended the concept of mandating clear disclosure of calorie information for restaurant meals at the point of purchase. Third, organizational changes at DOHMH allowed public health practitioners to identify and focus on environmental risk factors for obesity.  Fourth, questions of legality were addressed early on through a comprehensive internal legal review and dialogue that included a well-informed consideration of the potential public health benefits.

Funded by the Robert Wood Johnson Foundation’s Public Health Practice & Policy Solutions, PHAI used case study research methodology to investigate threats of litigation made during the proposal and passage of public health laws. The case studies examine this experience across a range of public health issues. Public health officials, attorneys and advocates provide insight into their decision-making and planning process in anticipation of and in response to legal challenges.




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