HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, March 6, 2010

Does the World Still Need United States Tort Law? Or Did it Ever?

The Pepperdine Law Review is hosting a symposium on April 16th, 2010 entitled Does the World Still Need United States Tort Law? Or Did it Ever? The symposium will examine the present and future influence of United States tort law on other nations in light of globalization’s rise and United States tort law’s concurrent retrenchment on many fronts.


Some of the symposium speakers include Roger Alford (Pepperdine), Michael Bidart (Shernoff,  Bidart  & Echeverria), Ellen Bublick (University of Arizona), Richard L. Cupp (Pepperdine), John C.P. Goldberg (Harvard), Michael D. Green (Wake Forest), Ellen S. Pryor (SMU), Robert L. Rabin (Stanford), Michael L. Rustad (Suffolk), Victor E. Schwartz (Shook, Hardy & Bacon), Marshall S. Shapo (Northwestern), and Stephen D. Sugarman (Boalt Hall). International scholars speaking at the symposium include Peter Cane (Australian National University), Bruce Feldthusen (University of Ottawa), Lewis N. Klar (University of Alberta), the Honorable Allen M. Linden (Pepperdine; former judge of the Federal Court of Appeal of Canada), and Jane Stapleton (University of Texas). The Honorable Allen M. Linden will be honored at the symposium for his enormous contributions as a tort law scholar and teacher both in Canada and in the United States.


More information is here.  A limited number of stipends are available for law professors who wish to attend the symposium. Please contact Professor Richard Cupp at

March 6, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 4, 2010

Can a Gene Test Predict which Diet will Optimize Weight Loss?

A small study suggets that a new genetic test by Interleukin Genetics Inc. may help dieters pick the best diet: a low-fat diet, one that cuts carbohydrates or a more balanced approach. Reuters reports that

[t]he small study of about 140 overweight or obese women showed that those on diets "appropriate" for their genetic makeup lost more weight than those on less appropriate diets, researchers told an American Heart Association meeting. 'The potential of using genetic information to achieve this magnitude of weight loss without pharmaceutical intervention would be important in helping to solve the pervasive problem of excessive weight in our society,' Christopher Gardner at Stanford University in California, who worked on the study, said in a statement.

Massachusetts-based Interleukin's test looks for mutations in three genes, known as FABP2, PPARG and ADRB2. The company says that 39 percent of white Americans have the low-fat genotype, 45 percent have the type that responds best to a diet low in processed carbohydrates and 16 percent have the gene mutation that helps them lose weight best on a balanced diet.

'Individuals on genotype-appropriate diets lost 5.3 percent of body weight compared to individuals on diets not matched to their genotype, who experienced only 2.3 percent weight loss,' the researchers wrote in a presentation prepared ahead of the conference. 'The weight loss differences were even stronger when considering the individuals who were trying to follow the lowest carbohydrate (Atkins) and the lowest fat (Ornish) diets: 6.8 percent weight loss for those whose genotype matched the diet they were following versus 1.4 percent for those not matched to their genotype.'

March 4, 2010 | Permalink | Comments (0) | TrackBack (0)

Taking Sides on Genetic Modification

Dave Fox (JD Candidate, Yale Law School) has posted Taking Sides on Genetic Modification (American Journal of Bioethics - Neuroscience) on SSRN. Here is the abstract:

Should government fund safe human enhancements for the hereditary contribution to good looks or athletic prowess or IQ? Is there reason to restrict genetic interventions that would create chickens without the nesting instincts that agitate normal chickens confined to life in a battery cage? Or cows with stunted emotions that would feel less fear as they were led off to slaughter? Or pigs with no legs, better suited to a sedentary existence as bacon-to-be? Some philosophers argue that political decisions about such practices, to be legitimate, must be made without reference to reasons that arise from within controversial worldviews. They believe that society is arranged best when governed by principles that leave citizens free to pursue their own views about what gives life value. So the reasons that public officials give to justify state action must not privilege some moral or religious beliefs over others.

This is a mistake, for two reasons. First, it is conceptually incoherent for the state to stay neutral toward genetic engineering because any strategy that legislators might choose depends for its plausibility on an answer to the underlying normative questions these practices presuppose. Second, the bracketing of formative moral commitments would unduly diminish the character of public deliberation about these questions. What we should do about offspring enhancement depends on why the natural lottery matters to us. And whether we should re-fashion animals to suit our uses for them depends on whether “animal nature” is worth preserving. But these are precisely the sort of controversial moral questions that a neutral state excludes as legitimate grounds for political debate and policy decisions. It might be replied that it is unrealistic to expect citizens in a diverse society to reach agreement on normative issues as contentious as the value of animal nature or the qualities of character worth promoting in a modern democracy.

The truth in this reply is that there is no assurance that agreement will follow from public discourse about the moral status of genetic engineering of humans and animals. Nor might such discourse even lead people to have any greater understanding or respect for those views with which they disagree. But people who hold conflicting values can engage in rational moral dialogue about matters of public policy. And it is possible for people who disagree about controversial technological advances to persuade one another, at least for a time, that some moral views about, for example, genetic engineering, are more reasonable than other views. The price of excluding substantive moral arguments from political debate should not be overlooked. The risk of seeking neutral justification for policy decisions about genetic engineering is that future generations and our own will be subject to a course of action that we cannot plausibly endorse or coherently defend.

March 4, 2010 | Permalink | Comments (0) | TrackBack (0)

Foodborne Illness Costs US $152 Billion Annually

A new study estimates the total economic impact of foodborne illness across the nation to be a combined $152 billion annually. To obtain a copy of the report, visit The interactive online map that graphically represents this cost information for every state in the nation is available at According to ScienceDaily

[t]he Produce Safety Project, an initiative of The Pew Charitable Trusts at Georgetown University, published the report, Health-Related Costs from Foodborne Illness in the United States.... The report ranks states according to their total costs related to foodborne illness and cost per case for an individual, which is $1,850 on average nationwide. The ten states with the highest costs per case are: Hawaii, Florida, Connecticut, Pennsylvania, South Carolina, the District of Columbia, Mississippi, New York, Massachusetts and New Jersey.

The Centers for Disease Control and Prevention (CDC) estimates that approximately 76 million new cases of food-related illness -- resulting in 5,000 deaths and 325,000 hospitalizations -- occur in the United States each year. Continuing outbreaks every year show that this is not a problem that is going away.

The release of the report comes as the U.S. Senate may soon vote on comprehensive food-safety legislation. The U.S. House of Representatives passed its food-safety bill (H.R. 2749) last July, and just before Thanksgiving, the U.S. Senate Committee on Health, Education, Labor & Pensions unanimously approved the FDA Food Safety Modernization Act (S. 510).

March 4, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 3, 2010

Just Two of Many Hospital-Acquired Infections Kill 48,000 Patients, Cost $8.1 Billion To Treat

ScienceDaily reports on a study published in the Archives of Internal Medicine that investigates two common conditions caused by hospital-acquired infections (HAIs). The study reveals that these two HAI alone killed 48,000 people and ramped up health care costs by $8.1 billion in 2006.

This is the largest nationally representative study to date of the toll taken by sepsis and pneumonia, two conditions often caused by deadly microbes, including the antibiotic-resistant bacteria MRSA. Such infections can lead to longer hospital stays, serious complications and even death.

'In many cases, these conditions could have been avoided with better infection control in hospitals,' said Ramanan Laxminarayan, Ph.D., principal investigator for Extending the Cure, a project examining antibiotic resistance based at the Washington, D.C. think-tank Resources for the Future.

'Infections that are acquired during the course of a hospital stay cost the United States a staggering amount in terms of lives lost and health care costs,' he said. 'Hospitals and other health care providers must act now to protect patients from this growing menace.'

In 2002, the Centers for Disease Control and Prevention estimated that all hospital-acquired infections were associated with 99,000 deaths per year. While the Extending the Cure study looked at only two of the most common and serious conditions caused by these infections, it also calculated deaths actually caused by, rather than just associated with, infections patients get in the hospital.

March 3, 2010 | Permalink | Comments (0) | TrackBack (0)

End-of-Life Medical Decision-Making: The Use of Surrogate Selection to Resolve Intractable Medical Futility Disputes

Thaddeus Mason Pope (Widener University Law School - Health Law Institute) has posted Surrogate Selection: An Increasingly Viable, But Limited, Solution to Intractable Futility Disputes on SSRN. Here is the introductory part of the absract:
This article reviews the strengths and weaknesses of “surrogate selection” as a solution to intractable medical futility disputes. It concludes that while surrogate selection is an increasingly viable solution, it remains only a partial solution because it is often difficult or impossible to demonstrate that a surrogate demanding non-recommended end-of-life medical treatment is acting outside the scope of her authority.

March 3, 2010 | Permalink | Comments (0) | TrackBack (0)

FDA Cracks Down on Food Labeling

In an open letter to the food industry dated March 3, FDA Commissioner Margaret Hamburg stated that

[t]oday, ready access to reliable information about the calorie and nutrient content of food is even more important, given the prevalence of obesity and diet-related diseases in the United States .... I have made improving the scientific accuracy and usefulness of food labeling one of my priorities ....

The BLT: The Blog of LegalTimes reports that Commissioner Hamburg has put words into action (FDA press release here). 

The Food and Drug Administration has fired off warning letters to 17 companies including Nestle, Beech-nut, and Dreyers Grand Ice Cream, directing them to correct food product labels that run afoul of the Federal Food, Drug, and Cosmetic Act. The violations included unauthorized health claims, unauthorized nutrient content claims, and the unauthorized use of terms such as “health,” that have strict, regulatory definitions. Companies that received warning letters have 15 business days to inform the FDA of the steps they will take to correct their labeling.

March 3, 2010 | Permalink | Comments (0) | TrackBack (0)

Law Schools Looking For Visiting Professors

The Faculty Lounge has posted a list of law schools looking for visiting professors here.

March 3, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

The Baby Doe Rules and Texas's 'Futility Law'

Thomas William Mayo (Southern Methodist School of Law) has posted The Baby Doe Rules and Texas’s “Futility Law” in the NICU on SSRN. Here is the abstract:
The applicability in the NICU of the futility provision of Texas's Advance Directives Act and its relationship to the Baby Doe rules are reasonably straightforward. Nonetheless, many comments have been written about Texas's so-called “futility law,” some of them complimentary and others, not so much. The most serious critiques of the Texas futility provision, however, are based upon assumptions that result from a fundamental misreading of the law. After a brief discussion of the futility provision and its principal features, this Essay examines the misunderstandings that plague many critiques of the law and then offer a list of proposed amendments to the law that address some of the actual deficiencies in the futility provision.

March 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Contingent Valuation Studies and Health Policy

Mathew Adler (University of Pennsylvania- Law School) has posted Contingent Valuation Studies and Health Policy on SSRN. Here is the abstract:

This short comment argues that both cost-benefit analysis (CBA) and cost-effectiveness analysis (CEA) should be seen as imperfect tools for evaluating health policy. This is true, not only for extra-welfarists, but even for welfarists, since both CBA and CEA can deviate from the use of social welfare functions (SWF). A simple model is provided to illustrate the divergence between CBA, CEA, and the SWF approach. With this insight in mind, the comment considers the appropriate role of contingent-valuation studies.

March 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Evaluating the Global Fund to Fight Aids, TB and Malaria

Anna F. Triponel (Jones Day) has posted on SSRN Global Fund to Fight Aids, Tuberculosis and Malaria: A New Legal and Conceptual Framework for Providing International Development Aid. Here is the first part of the Abstract: 

Over the past decade, the development community has witnessed the unprecedented proliferation of innovative mechanisms designed to fund specific global issues. Usually initiated as partnerships between governments, intergovernmental organizations, the private sector, and civil society, these funding instruments address global public goods such as health, environment, and microfinance. These include the Consultative Group on International Agricultural Research, the Global Environment Facility, the Consultative Group to Assist the Poor, the GAVI Alliance, the Education for All – Fast Track Initiative, and the Global Fund to Fight AIDS, Tuberculosis and Malaria (the Global Fund).

The appearance of these multilateral funding mechanisms on the international scene has changed the understanding of development. This creation of new vehicles for development funding has also resulted in increased scrutiny of the ways these programs operate to draw lessons for the creation and management of subsequent programs. This article presents the key innovative features of the Global Fund and how these have adapted to changing circumstances since its creation in 2002.

March 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, March 1, 2010

FDA and NIH Collaborate to Promote Regulatory Science

The LA Times reports that the Food and Drug Administration and the National Institutes of Health have announced a partnership to collaborate on regulating new products and procedures that arise out of advanced research. Together, the NIH and FDA will make at total of $6.75 million in grants for regulatory science research over a three-year period.

The new partnership will promote the development of testing and other tools that FDA regulators need in order to assess drugs and other products coming from fields such as genomics, nanotechnology and stem cell therapy. Officials from both agencies said laboratory science leading to treatments had vastly outdistanced regulatory science, which develops the methods to evaluate the safety and quality of those treatments.

FDA Commissioner Margaret Hamburg compared the imbalance to the arms of a rower. "We have allowed the arm of regulatory science to become weak and underdeveloped," Hamburg said at a news briefing. If not corrected, "instead of pulling us into an exalted future, we will row in circles."

The NIH-FDA collaboration includes the formation of a six-member council of top scientists from both agencies to make sure that the latest science is incorporated into the regulatory review process.

March 1, 2010 | Permalink | Comments (0) | TrackBack (0)

Misplaced Fears in the Legislative Battle Over Affordable Biotech Drugs

David Adelman (University of Texas School of Law) and Christopher M. Holman (University of Missouri- Kansas City School of Law) have posted Misplaced Fears in the Legislative Battle Over Affordable Biotech Drugs on SSRN: 
Much like tort reform, the debate over pending legislation on biotech drugs - and particularly regulatory supplements to patent protection - has taken on a significance that dwarfs its impact on overall health care expenditures. Under the pending Health Care Reform legislation, Congress would enact two major reforms: First, creation of an abbreviated Food and Drug Administration (FDA) approval process for follow-on biologics, which are the analogues of generics for conventional drugs. Second, establishment of a twelve-year “data exclusivity” period during which clinical testing data collected by brand-name producers could not be used by competitors to satisfy FDA testing requirements. While the abbreviated FDA approval process enjoys broad support, the data-exclusivity provision has been hotly contested, including strong opposition from the Federal Trade Commission.

We argue that regulatory data exclusivity is a sideshow. Current estimates find that the effect of data exclusivity on health care expenditures would be trivial. For this and other reasons, any potential benefit to patients that might result from a shorter period of data exclusivity would be outweighed by the financial risks to the biotech industry, and particularly the negative impacts on investments in research and development. More importantly, we believe that the current focus on data exclusivity is misplaced. Weak competition in markets for biotech drugs poses a much greater and longer-term problem for patient access - without effective competition, pricing of many biotech drugs will remain high indefinitely. The most important issue for Congress to address ought to be minimizing the barriers to market entry for manufacturers of follow-on biologics after the relevant patent terms and data exclusivity end. We close the article by suggesting a variety of ways in which this objective could be met.

March 1, 2010 | Permalink | Comments (0) | TrackBack (0)

Biotech, Nanotech and Synthetic Biology Roles in Future Food Supply Explored

The annual meeting of the The American Association for the Advancement of Science, held on February 17, explored the implications for agriculture of the projected growth of the world's population to 9 billion people by 2030. A significant challenge will be to provide enough food to meet demand.

According to a ScienceDaily report on the event 

[Rod] Hill [a University of Idaho animal scientist] and Larry Branen, a University of Idaho food scientist, organized a symposium during the American Association for the Advancement of Science anual meeting to explore ways biotechnology could provide healthy and plentiful animal-based foods to meet future demands.

Synthetic biology, nanotechnology, genetic engineering and other applications of biotechnology -- and the public's role in determining their acceptable uses -- were all addressed by panelists during the session.

March 1, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 28, 2010

New Study Shows Children Snack on Junk Food Almost Three Times a Day

A new study published by Health Affairs is one of the first studies to look at long-term eating habits in children: 

Children in the United States snack almost three times a day on salty chips, candy, and other junk food .... The increase in snacking--which now accounts for more than 27 percent of daily caloric intake in children--added 168 calories per day to kids caloric intake between 1977 and 2006.

"Our study shows that some children, including very young children, snack almost continuously throughout the day," said Barry M. Popkin, a professor in the Department of Nutrition at the University of North Carolina at Chapel Hill, and lead author of the paper.

For audio and slides used in a March 2 briefing in Washington D.C can be found here.

February 28, 2010 | Permalink | Comments (0) | TrackBack (0)

FDA Regulation of Nanotechnology Used in Consumer Products

Katharine Van Tassel (Western New England College School of Law) and Rose Goldman (Harvard School of Public Health and Harvard Medical School) have posted Manufacturing the Wings of Icarus: FDA Regulation of Nanotechnology Used in Products for Human Consumption Including Food, Dietary Supplements, Cosmetics and Sunscreens on SSRN. This is the abstract:  

Consumers in the United States are being exposed to steadily increasing levels of novel and untested substances as a result of their contact with consumer products containing nanoparticles. Hundreds of consumer products are being marketed for human consumption, including food, dietary supplements, cosmetics and sunscreens. This expanding market ignores the growing scientific understanding that nanoparticles can create unintended human health and environmental risks. This Article discusses the public health, regulatory, legal and ethical issues raised by the developing appreciation of the health risks associated with nanotech products.

The Article proposes alternative methods of regulating nanotech products that better protect public health while encouraging technical innovation. These proposals are based on lessons learned from past introductions of new chemicals and innovative technologies such as asbestos, PCBs, DES, Thalidomide, medical X-rays and Benzene that all had serious, long-term public health consequences.

February 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Kaiser Posts Videos and Commentary on the Health Care Summit

The Full Text of Obama's Health Care Proposal


February 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Updated Kaiser Health Reform Comparison Resources

The updated Kaiser Foundation interactive side-by-side health reform comparison tool now reflects provisions included in President Obama's health reform proposal released this week.

The online tool now allows users to quickly compare the new proposals with the House and Senate bills approved separately in each chamber last year and 12 other comprehensive reform proposals put forward by various members of Congress, committees and other leaders during the ongoing debate.

In addition, the Foundation has updated its interactive calculator to reflect the subsidies proposed in the President's reform proposal and added it to its summary of proposed Medicare changes. These resources are all available through the Foundation's health reform gateway.

February 28, 2010 | Permalink | Comments (0) | TrackBack (0)