In spite of laws in many states regulating the nutritional content of foods and the availability of “junk food” and soda, a 2001 Surgeon General’s Report indicated that 15% to 20% of the nation’s children are overweight or obese. In areas that are predominately Hispanic and African American, the numbers rise to between 40% and 50%. Although there are continuing efforts to educate the adult population, many school systems and public health jurisdictions have had little impact on the rising numbers of overweight and obese children. This session described the process of initiating a student-based, student driven approach to obesity, junk food, and diabetes and disease prevention.

A need existed for a grassroots approach at the student level to raise awareness of increasing obesity rates and diabetes and other related diseases in the adolescent population.

Since at least the mid-1970s, public health and law enforcement officials have conducted joint or parallel investigations of both health problems possibly associated with criminal intent and crimes having particular health dimensions. However, the anthrax and other terrorist attacks of fall 2001 have dramatically underscored the needs that public health and law enforcement officials have for a clear understanding of the goals and methods each discipline uses in investigating such problems, including and especially the potential use of biologic agents as weapons of mass destruction. Recognition of these needs has prompted some experts to call for the application of “forensic epidemiology” to such problems. Even before the attacks of fall 2001, other problems, such as the detection of the West Nile Virus in the United States and concerns that the emergence of this infectious agent was the consequence of a deliberate act, raised novel challenges to the combined interests of public health and criminal investigators.

In Singh v. Blue Cross/Blue Shield of Massachusetts, Inc., the U.S. Court of Appeals for the First Circuit held that defendant Blue Cross/Blue Shield's peer review practices satisfied the immunity standard for professional review actions according to the Health Care Quality Improvement Act (HCQIA), and the First Circuit affirmed the U.S. District Court for the District of Massachusetts's grant of summary judgment in favor of the defendant.

After Blue Cross/Blue Shield merged with Bay State Health Care, Blue Cross began to offer “Bay State Health Care” to former Bay State subscribers. Blue Cross denied the plaintiff, Dr. Kunwar Singh, participation in the Bay State Healthcare Network due to poor utilization review. Singh sought reconsideration, and Blue Cross agreed to audit his practices before making a final decision.

Public health professionals recognize the critical role the law plays in determining the success of public health measures. Even before September 11, 2001, public health experience with tobacco use, HIV, industrial pollution and other potent threats to the health of the public demonstrated that laws can assist or thwart public health efforts. The new focus on infectious threats and bioterrorism, starting with the anthrax attacks through the mail and continuing with SARS, has highlighted the important role of law.

For lawyers to serve as effective partners in public health, they should have a basic familiarity with public health: how public health professionals see the world and the key issues they tackle. A practical grasp of public health can be acquired, and often is acquired, “on the job.”

In an ongoing class action suit against large tobacco companies, including Philip Morris, Inc., and R.J. Reynolds Tobacco Co., Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York issued an opinion on October 15, 2002 making statistical proof available to address plaintiffs’ common questions and prove required elements of consumer fraud.

The dilemmas inherent in tobacco litigation as a mass tort action include overcoming the collective action problem (in particular, the relative legal sophistication, experience, resources, and superior bargaining position of tobacco manufacturers as opposed to scattered individual plaintiffs with limited resources), mobilizing appropriate and persuasive legal theories for recovery, and meeting the standards of proof, all in a timely and cost-effective manner. While some tobacco cases have proceeded on products liability theories of defective or negligent design, many recent cases are grounded in consumer fraud laws.

NGOs can play an important role in the development, implementation, and reform of public health laws. To be effective, NGOs must recognize the critical role law plays in protecting the health of the public and in the public health system’s emergency preparedness. They must be ready to work with federal, state, and local leaders to advance the goals that public health laws were enacted to achieve. NGOs also have technical expertise, which they can utilize to help translate highly complex scientific concepts into public health action steps that regulators, legislators, and members of the public can readily understand.

Those who are most often affected by pollution tend to be low income people, the working class, Native Americans, and people of color. Those most affected by pollution issues, however, usually have the least input in the creation of policy.

It is important to re-engage public health professionals, after an absence of almost a half a century, in the issues of land development and community design. Resources should be devoted to processes that directly engaged diverse communities in defining their idea of good public health. In Michigan, within demographic communities, the idea or definition is slightly different, but an agreement was reached that activities should be developed around four basic environmental areas: food, air, water, and land use. Resource teams were developed around each of these areas, and an attempt was made to describe the current status of environmental conditions and identify major health problems. The community was engaged in a dialogue and a strategy for improvements was developed. The Michigan Land Use Resource Team identified land trends, described water and air quality, and even mapped automobile injuries, including pedestrian injuries and deaths.

In D.A.B.E., Inc., v. Toledo-Lucas County Board of Health, the Supreme Court of Ohio held that the Ohio Revised Code does not grant a local board of health the power to proscribe smoking in all public places as defined by the Lucas County Regional Health District Clean Indoor Air Regulation.

On May 24, 2001, the Board of Health of the Lucas County Regional Health District adopted the regulation in question, prohibiting smoking in all public areas in Lucas County, which were defined as “every enclosed, indoor area to which members of the general public are invited or in which members of the general public are normally permitted.” In addition, the regulation prohibited smoking within twenty feet of any entrance or open window of these public areas and in all vehicles of public transportation.

The Commission on the Accreditation of Law Enforcement (CALEA) employs rigorous evaluation techniques. Objective accreditation, such as made possible by CALEA, is important from the public’s perspective and in the national community of law enforcement.

To counteract a general distrust of law enforcement agencies, the Law Enforcement Assistance Administration (LEAA) developed a grant to develop standards by which the quality and performance of law enforcement could be measured. LEAA developed 107 standards and, though well received by the law enforcement community, no single group or agency took the initiative to begin a program to evaluate and implement the standards. In 1979, the Department of Justice established an additional grant that effectively organized the four major law enforcement groups: the International Association of Chiefs of Police, the National Sheriff’s Association, the National Organization of Black Law Enforcement Executives, and the Police Executive Research Forum.

In Ogborn v. United Food & Commercial Workers Union, Local No. 881, the U.S. Court of Appeals for the Seventh Circuit held that while major depression can constitute a disability under the Americans with Disabilities Act (ADA), isolated bouts of depression do not. Furthermore, the court held that an employee's firing after taking medical leave for depression does not violate the Family and Medical Leave Act (FMLA), where evidence shows that the employee would have been fired for poor performance even if he had not taken the leave.

Alleging that he was fired in violation of the ADA and the FMLA, Jerry Ogborn sued his former employer, Local 881 of the United Food and Commercial Workers Union, as well as the union's vice president. Beginning in 1980, Ogborn worked as a business agent for the union, which represents members employed primarily in the retail grocery industry. Ogborn's duties consisted of visiting retail grocery stores employing workers represented by the union, meeting with members about working conditions, and filing and processing members’ grievances.

In Patel v. Midland Memorial Hospital & Medical Center, the U.S. Court of Appeals for the Fifth Circuit held that the defendant hospital did not violate the plaintiff's due process rights by suspending his clinical privileges without a pre-suspension hearing, where there were reasonable grounds for assuming that patient safety was at risk. Dr. P.V. Patel, a board-certified cardiologist, brought an action against Midland Memorial Hospital and several of its doctors, alleging that the suspension of his clinical privileges violated his right to a pre-suspension hearing; was the result of racial discrimination; and resulted in anticompetitive behavior in violation of antitrust laws. The U.S. District Court for the Western District of Texas granted Midland's motion for summary judgment. The parties filed cross appeals, Dr. Patel on the ground that there were genuine issues of fact for all of his claims, and Midland on the ground that, with the exception of the civil rights claim, it was immune from all of Dr. Patel's claims under the Health Care Quality Improvement Act of 1986 (HCQIA).

Preemption is a powerful strategy used by special interest groups to undermine strong, local public health standards. Currently, 20 states in the U.S. have preemption ordinances in place related to clean indoor air initiatives. These preemption laws are the direct result of an ongoing and aggressive campaign of tobacco companies to thwart clean indoor air initiatives, which ultimately, according to tobacco industry internal documents, cause significant reductions in their annual revenues. Clean indoor air policies have arisen from a greater understanding of the documented health risks associated with exposure to secondhand smoke and action by local government (city councils, county commissions, and boards of health) to protect the public from these hazards. The efforts of the tobacco industry undermine local authority and seek to shift policy action to the state and federal levels, where the industry has greater political influence.

Contemporary developments in reproductive technology hold great promise for those who have difficulty conceiving naturally. However, they have generated extensive debate among lawyers, ethicists, legislators, the media, and the public. Concern has intensified recently in light of claimed attempts to clone human beings. One implication of the new reproductive technologies upon which few commentators have focused is their effect on inheritance rights and on the notorious Rule Against Perpetuities. For example, what impact should the possible existence of frozen sperm or frozen embryos have upon the execution of wills and implementation of the Rule? If one leaves property to one’s children but has frozen sperm or embryos that might produce children the Rule? If one leaves property to one’s children but has frozen sperm or embryos that might produce children decades after one’s death, what should be done about the distribution of the estate? These difficult questions can no longer be ignored.

In recent years, public health law has seen some important court decisions. Those are presented below.

In Pelman v. McDonaldS Corporation, the court dismissed a complaint filed by three children who claimed that McDonald’s practices in making and selling its products were deceptive. This deception, the children alleged, caused them to consume McDonald’s products with great frequency and become obese, thereby injuring their health. The plaintiffs pled five causes of action against McDonald’s, alleging that McDonald’s: 1) failed to adequately disclose the ingredients and health effects of its products and described their food as nutritious without disclosing detrimental health effects; 2) engaged in marketing techniques geared toward inducing children to consume their products; 3) acted negligently in selling foods high in fat, cholesterol, salt, and sugar when studies show that foods containing these ingredients cause obesity and detrimental health effects; 4) failed to warn consumers of the quantity and qualities of levels of fat, cholesterol, salt, and sugar in its products or of the detrimental health effects of such foods; and 5) acted negligently in marketing foods that were physically and psychologically addictive.

This nation’s obesity epidemic is hardly a laughing matter. Approximately 300,000 Americans die from obesity-related causes each year, and without corrective measures, obesity may soon be responsible for as many deaths as cigarette smoking. Sixty-one percent of adults are overweight or obese, and the cost of obesity for the year 2000 was estimated to be 117 billion dollars.

In Pelman v. McDmalds, a case decided in September 2003, a federal judge dismissed an amended complaint that attempted to hold McDonalds liable for its customers’ obesity-related illnesses. While many argue that such litigation is frivolous and that the plaintiffs did not deserve direct compensation for their injuries, the debate has largely overlooked the important question raised by these cases - who should pay for the enormous financial strain that obesity places on America’s health care system? Although the courtroom may not be the appropriate forum to deal with this issue, the litigation has undoubtedly brought a great deal of much-needed attention to a vexatious social problem.

In Del Carmen Guadalupe v. Agosto, the U.S. Court of Appeals for the First Circuit held that a hospital fulfills its statutory duty to screen patiens in is emergency room if it provides for a “screening examination reasonably calculated to identify critical medical conditions” that may be afflicting symptomatic patients and if it “provides that level of screening uniformly to all those who present substantially similar complaints.” The First Circuit affirmed the lower court's decision to grant summary judgment to the hospital in a claim raised under the Emergency Medical Treatment and Active Labor Act (EMTALA).

Maria del Carmen Guadalupe brought her husband, Narciso Figueroa, to the Hospital Interamericano De Medicina Avanzada, Inc., (HIMA) on October 3, 1998, with symptoms of urinary retention, edema in the legs, high blood pressure, pain, increased respiratory difficulty, a dry cough, fever, and drowsiness.

In Kentucky Association of Health Plans, Inc. v. Miller,, the Supreme Court unanimously held that states’ “any willing provider” laws are not preempted by the Employee Retirement Income Security Act of 1974 (ERISA). The Court ruled that states can regulate their health maintenance organizations (HMOs), and thus upheld a Kentucky law that requires insurers to reimburse services of any health care provider who is willing and able to meet established criteria. The Supreme Court has heard several cases related to ERISA in the last few years, and other such cases are working their way through the court system. Coupled with this most recent decision in Miller, the Supreme Court may significantly alter the shape of the insurance industry.

The Turning Point Initiative is an initiative for which the Robert Wood Johnson (RWJ) and W.K. Kellogg foundations partnered in order to fund a group of states and a number of communities within each of those states to work through a planning process to look at ways to strengthen their public health systems at the state and local levels. Out of that process, the states and communities would come together at the national level to talk about what they had been learning and what the issues were. There were a number of issues that resonated with all of the states.