HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Saturday, October 1, 2022

A Tale of Two Pandemics: Fake News and COVID-19

Robert Brian Smith (University of New England), Nucharee Nuchkoom Smith (Kasetsart University), A Tale of Two Pandemics: Fake News and COVID-19, 43 Kasetsart J. Soc. Scis. 677 (2022):

Whilst fake news has been around since the time of Aesop and, COVID-19 has been around for over two millennia less, they joined ranks in 2020. This paper looks at the interface between fake news and governments’ responses to the COVID-19. It compares the approaches of Australia, Singapore and Thailand. Australia relies on a non-legislative approach where the major digital service providers sign an industry code of practice that must meet the Australian Communications and Media Authority guidelines. As of mid-2021, Twitter, Google, Facebook, Microsoft, Redbubble, TikTok, Adobe, and Apple have signed the industry code of practice. In addition, online advertising that does comply with the requirements of the Therapeutic Drugs Administration can result in sanctions and financial penalties. Australians need to check for the required information on the appropriate government website. Singapore is one of a small number of countries that has specific anti-fake news legislation. Its fact-checking site does not appear to be widely used. Thailand uses its more overarching cybercrime legislation, which does not define fake news. It has developed a comprehensive social media monitoring organization to identify fake news. In addition, it has a website that citizens can check whether news on social media is correct or not. This site has proven extremely popular with several million hits since it commenced operation in late 2019. The paper examines the efficacy of each of the approaches in controlling the twin pandemics.

October 1, 2022 | Permalink | Comments (0)

Precautionary Principle: COVID and Reopening

Akash Anand (University of Delhi), Precautionary Principle: COVID and Reopening, 4 Delhi J. Contemp. L. (2021):

India saw the pandemic in its worst form last year, i.e. 2021 during the Delta wave of the Covid19 pandemic. The reason why that happened was the unavailability of vaccine and more importantly the fact that after the first wave of the pandemic, people started to feel that there would not be any other wave and dropped almost all the precautions that were in place. The country saw large gathering in elections, markets, marriages, religious festivals. Delta emerged in India and resulted in havoc and deleted on an average a member of the infected family. Then again came a period of respite but not for long. Currently, in the month of January - February,2022 we saw the Omicron wave, not even after a gap of a year from Delta wave, which according to the data available was more transmissive but milder than delta. Till date people are dying because of the Omicron infection but the wave is surely in its lowest trajectory. However what is going to happen few months from now is totally uncertain. Uncertainty always calls for precautionary action and thus this paper provides to assist the policymakers and implementers to apply precautionary principle as directed by the existing laws and practices. It takes the help from European Laws to interpret Indian Laws and brings out similarities with the United States precautionary action with the Indian counterpart. It also provides for cost effective balancing between lives and livelihood, reopening and safe reopening and mentions innovations that are cost effective which are becoming popular abroad to counter the pandemic and its future waves if any.

October 1, 2022 | Permalink | Comments (0)

The COVID-19 Pandemic Emergency for the Doctrine of Asymmetric Warfare

Mhd Halkis (Universitas Pertahanan Indonesia), David Yacobus (Indonesia Defense University), Suhirwan (Indonesia Defense University), The COVID-19 Pandemic Emergency for the Doctrine of Asymmetric Warfare, 6 Int’l J. Health Sci. 7677 (2022):

Several countries that have involved the military in handling Corona Virus Disease 2019 (COVID-19) have been relatively successful. The authors researched the doctrine of asymmetric warfare during the COVID-19 pandemic emergency. The Indonesian government assigns the Indonesian National Army (TNI) during an emergency. Help to support the smooth circulation of fulfilling the population's basic needs, cross-regional population transportation, crime is not widespread, offices continue to run with restrictions on the number of people working, and the economy recovers quickly. This research framework uses moral philosophy. Deontological views and utilitarianism become the main assessment instruments to build the doctrine of asymmetric warfare. This research uses a case study approach. The study results show that the Indonesian people see the emergency condition of the COVID-19 pandemic as an asymmetrical warfare. The government is aware of the implications of the COVID-19 pandemic occurring at various government levels in terms of spread, duration, and number. All resources are used to deal with COVID-19, including the military, because civil society does not have many facilities and capabilities of TNI personnel.

October 1, 2022 | Permalink | Comments (0)

Friday, September 30, 2022

Revisiting Health Care Fraud in the Biden Administration

Joan H. Krause (University of North Carolina at Chapel Hill), Revisiting Health Care Fraud in the Biden Administration, 15 St. Louis J. Health Law & Pol'y 361 (2022):

Although not one of the Biden administration’s initial priorities, health care fraud inevitably will be a major concern. First, the federal government’s response to the COVID-19 pandemic—including the disbursement of more than $175 billion in provider relief funds and the loosening of traditionally strict rules on Medicare reimbursement for telehealth services—has created new opportunities to divert health care funds for fraudulent purposes. Second, President Joseph Biden took office in the midst of the incomplete transition from volume-based to value-based payment in the federal health care programs, which will allow fraud to flourish in the gaps between multiple reimbursement systems. Third, regardless of these developments, prior forms of fraud are likely to continue. Thus, the Biden administration will have no choice but to devote significant resources to fraud enforcement.

September 30, 2022 | Permalink | Comments (0)

Preemption & Gender & Racial (In)equity: Why State Tort Law Is Needed in the Cosmetic Context

Marie Boyd (University of South Carolina),  Preemption & Gender & Racial (In)equity: Why State Tort Law Is Needed in the Cosmetic Context, 102 B.U. L. Rev. 1 (2022): 

Much of the legal scholarship on the preemption of state tort law in the food and drug context and beyond has focused on issues of federalism. While the literature has considered the relationship between state tort law and the regulatory system, it has not generally explored the impact the federal preemption of state tort law may have on women and people of color. Similarly, while the literature has grappled with gender and racial justice issues in the tort system, including in the context of tort reform, it has largely not examined the gender and racial equity issues raised by federal preemption. This Article fills this gap by examining how the federal preemption of state tort law may perpetuate and even compound existing racial and gender inequities in the context of cosmetics. It considers how tort law, coupled with appropriate federal regulatory reform, may help lead to safer cosmetics for all.

September 30, 2022 | Permalink | Comments (0)

Milk from Mars. The Challenges of Regulating Lab-Produced (Human) Milk

Mathlide Cohen (University of Connecticut), Dr. Tanya Cassidy (Maynooth University), Milk from Mars. The Challenges of Regulating Lab-Produced (Human) Milk, 77 Food & Drug L. J. (2022):

For over a century, pediatricians, scientists, and industry players have sought to create an infant formula that would be as close as possible to human milk. Until recently, their efforts focused on “humanizing” cow’s milk by making its composition more similar to human milk. But in the past few years, new technologies have led some companies to culture mammary cells or yeast in the lab. The resulting lab-produced components have been claimed to be identical to those found in human milk. One goal behind this new technology is to manufacture an infant formula that is more nutritionally adapted for newborns than conventional breastmilk substitutes. What impact might this new lab-produced milk have on infant feeding and regulation? Will it benefit parents and their children or represent a threat for lactation and donor human milk support? Could it precipitate a new regulatory regime for human milk itself? Given the many unknowns in this area, this Article hypothesizes various outcomes, examining their potential costs and benefits. What is certain, however, is that the legal regime eventually accorded to lab-produced milk will shape not only the products on the market, but also who will get access to them and at what cost.

September 30, 2022 | Permalink | Comments (0)

Online Public Health Misinformation, and How to Tame It

Ira Rubinstein (New York University), Tomer Kenneth (New York University), Online Public Health Misinformation, and How to Tame It, Harv. J. Legis. (Forthcoming):

The COVID-19 pandemic was shaped by a corollary infodemic: an abundance of public health misinformation (PHM), primarily online. Studies attest to the pervasive effects of online PHM, creating health hazards for individuals and hindering society’s attempts to confront this and other diseases. Troublingly, online PHM is a multidimensional problem. It involves regulation of speech online, content moderation, public health law, First Amendment issues, and intricate questions in epistemology and misinformation studies, amongst others. This Article features a comprehensive discussion of the problems associated with online PHM, points to shortcoming in existing responses, and advances better solutions.

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September 30, 2022 | Permalink | Comments (0)

Thursday, September 15, 2022

Patient Access to Health Device Data: Toward a Legal Framework

Charles Duan (Cornell University), Christopher Morten (Columbia University), Patient Access to Health Device Data: Toward a Legal Framework, SSRN (2022):

The connected at-home healthcare device industry is booming. Wearable health trackers alone constituted a $21 billion market in 2020, anticipated to grow to $195 billion by 2027. At-home devices now purportedly make it possible to diagnose and monitor health conditions such as sleep apnea, diabetes, and fertility automatically, immediately, and discreetly. By design, these devices produce a wealth of data that can inform patients of their health status and potentially even recommend life-saving actions.

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September 15, 2022 | Permalink | Comments (0)

Warrantying Health Equity

Heather Payne (Seton Hall University), Jennifer D. Oliva (University of California), Warrantying Health Equity, 70 UCLA L. Rev. (Forthcoming):

The United States is experiencing a significant rise in the prevalence of asthma and other debilitating respiratory and cardiovascular ailments that disproportionately burden low income and marginalized Americans. This is due in large measure to climate change, which is responsible for increasingly devastating air quality events—including wildfires and drought—that trigger these serious health conditions. As a result, it is imperative that we begin to explore potential legal and policy reforms that reign in sources of health-impairing air pollution.

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September 15, 2022 | Permalink | Comments (0)

Sunday, August 28, 2022

The Legal and Scientific Infirmities of Legislating Nicotine Reduction

Barbara Pfeffer Billauer (Institute of World Politics), The Legal and Scientific Infirmities of Legislating Nicotine Reduction, Genetic Literacy Project (2022):

Biden’s proposal to reduce nicotine in cigarettes to “minimally or non-addictive” levels is devoid of both a scientific and legal basis. This article explores the infirmities in the supposed science raised to support the proposal, critiques the deficiencies in the mathematical modeling techniques used, and demonstrates that the threshold for nicotine addiction is currently unknown and that nicotine dose responses are variable in the population. Additionally, and has a strong genetic component that should be evaluated before the policy is formulated. Without understanding the science involved, any legal threshold would be speculative and hence infirm.

August 28, 2022 | Permalink | Comments (0)

On the Compatibility of Pandemic Data-Driven Measures with Data Protection: A Review of Ireland's ‘Under the Radar’ COVID-19 Measures

Maria Grazia Porcedda (Trinity College Dublin), On the Compatibility of Pandemic Data-Driven Measures with Data Protection: A Review of Ireland's ‘Under the Radar’ COVID-19 Measures, 73 N. Ireland Legal Q. (2022):

This article reviews the compatibility of ‘under-the-radar’ data-driven measures adopted in Ireland to contain the COVID-19 pandemic with data protection law. Since data protection law implements and gives substance to the right to the protection of personal data enshrined in article 8 of the Charter of Fundamental Rights of the European Union, the article reviews the compatibility of data-driven measures with the applicable law in light of the Charter. The measures reviewed – thermal scanner guns, health self-check forms, Statutory Instruments for contact logging and the Vaccine Information System – appear well-meaning but partly incompatible with the right to data protection. The analysis points to the difficulty of reconciling public health and data protection without a systematic data-processing strategy and concludes with recommendations for right-proofing data-driven measures in the guise of a blueprint strategy for processing personal data for present and future pandemic purposes.

August 28, 2022 | Permalink | Comments (0)

Who is eligible for voluntary assisted dying? Nine medical conditions assessed against five legal frameworks

Ben White (Queensland University of Technology), Lindy Willmott (Queensland University of Technology), Katrine Del Villar (Queensland University of Technology), Jayne Hewitt (Griffith University), Eliana Close (Queensland University of Technology), Laura Ley Greaves (Queensland University of Technology), James Cameron (Victorian Government - Department of Health and Human Services), Rebecca Meehan (Independent), Jocelyn Downie (Schulich School of Law & Faculty of Medicine), Who is eligible for voluntary assisted dying? Nine medical conditions assessed against five legal frameworks, 45 U. New South Wales L. J. 1 (2022):

Eligibility criteria in voluntary assisted dying legislation determine access to assistance to die. This article undertakes the practical exercise of analysing whether each of the following nine medical conditions can provide an individual with access to voluntary assisted dying: cancer, motor neurone disease, chronic obstructive pulmonary disease, chronic kidney disease, Alzheimer’s disease, anorexia, frailty, spinal cord injury and Huntington’s disease. This analysis occurs across five legal frameworks: Victoria, Western Australia, a model Bill in Australia, Oregon and Canada. The article argues that it is critical to evaluate voluntary assisted dying legislation in relation to key medical conditions to determine the law’s boundaries and operation. A key finding is that some frameworks tended to grant the same access to voluntary assisted dying, despite having different eligibility criteria. The article concludes with broader regulatory insights for designing voluntary assisted dying frameworks both for jurisdictions considering reform and those reviewing existing legislation.

August 28, 2022 | Permalink | Comments (0)

Saturday, August 27, 2022

Unequal World in Healthcare, Digitalization and Corruption

Julia M. Puaschunder (Columbia University), Unequal World in Healthcare, Digitalization and Corruption, Proceedings of the 3rd Unequal World Conference of the United Nations, United Nations New York (2021):

The currently ongoing COVID-19 crisis challenges healthcare around the world. The call for global solutions in international healthcare pandemic outbreak monitoring and crisis risk management has reached unprecedented momentum. Digitalization, Artificial Intelligence (AI) and big data-derived inferences are supporting human decision making as never before in the history of medicine. In today’s healthcare sector and medical profession, AI, algorithms, robotics and big data are used as essential healthcare enhancements. These new technologies allow monitoring of large-scale medical trends and measuring individual risks based on big data-driven estimations. Examining medical responses to COVID-19 on a global scale makes international differences in the approaches to combat global pandemics with technological solutions apparent. Empirical research finds the world being unequal in regards to AI-driven global healthcare solutions. The parts of the world that feature internet connectivity and high GDP are likely to lead on AI-driven big data insights for pandemic prevention. When comparing countries worldwide, AI advancement is found to be positively correlated with anti-corruption. AI thus springs from non-corrupt territories of the world. Countries in the world that have vital AI growth in a non-corrupt environment are predestined to lead the world in breakthrough innovations in the healthcare sector. These non-corrupt AI centers hold comparative advantages to lead on global artificial healthcare solutions against COVID-19 and serve as pandemic crisis and risk management innovators of the future. Anti-corruption is also positively related with better general healthcare on a global scale. Countries that combine internet connectivity, anti-corruption as well as healthcare access and quality are considered to be ultimate innovative global pandemic alleviation leaders, in which access to innovation funding can drive leadership on future pandemic prevention. The advantages of access to affordable quality medical care around the world but also potential shortfalls and ethical boundaries in the novel use of monitoring Apps, big data inferences and telemedicine to prevent pandemics should become scrutinized in future global healthcare governance.

August 27, 2022 | Permalink | Comments (0)

Australia's Framework for Access to Essential Medicines: Patent Law, Public Health, and Pandemics

Matthew Rimmer (Queensland University of Technology), Australia's Framework for Access to Essential Medicines: Patent Law, Public Health, and Pandemics in Australian Public Health Law: Contemporary Issues and Challenges (Belinda Bennett & Ian Freckelton, eds., Forthcoming):

Investigating Australia's framework for access to essential medicines, this chapter explores the intersection between patent law, public health, and pandemics.

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August 27, 2022 | Permalink | Comments (0)

Pandemic Restrictions and Their Legal Assessment

Tural Kuli-Zade (National Research Institute), Alexander Rozanov (Law Institute of the Russian University of Transport), Pandemic Restrictions and Their Legal Assessment, SSRN (2022):

Making a general conclusion, when answering the question whether the restrictions on the constitutional rights and freedoms of man and citizen during the pandemic are a violation; our opinion is divided. On the one hand, we argue that restrictions on the constitutional rights and freedoms of man and citizen during the pandemic are a violation, since in many moments they infringe on citizens and deprive them of their legitimate opportunities; on the other hand, we say that restrictions on constitutional human and civil rights and freedoms during a pandemic are not a violation, as they are a necessary measure to protect the health of citizens and the security of the state. Therefore, we can say that it is impossible to answer this question unequivocally, since it does not contain a clear answer that would be correct.

August 27, 2022 | Permalink | Comments (0)

A New Method for Calculating Sugars Content and Determining Appropriate Sugars Levels in Foods

Abed Forouzesh (University of Tehran), Fatemeh Forouzesh (Islamic Azad University), Sadegh Samadi Foroushani (University of Tehran), Abolfazl Forouzesh (Islamic Azad University), A New Method for Calculating Sugars Content and Determining Appropriate Sugars Levels in Foods, SSRN (2022):

Calculating the sugars content per 100 g or 100 mL or the reference amount customarily consumed (RACC) shows the sugars content of some foods inappropriately. So, making some food choices based on them to limit sugars intake may increase the risks of some chronic diseases. Calculating the sugars content and determining appropriate sugars levels (to limit sugars intake) based on the proposed method were performed in 6,810 food items. Making food choices based on the proposed method to limit sugars intake did not exceed sugars needs. Also, foods that did not exceed sugars needs were appropriate food choices based on the proposed method to limit sugars intake.

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August 27, 2022 | Permalink | Comments (0)

Friday, August 26, 2022

A New Method for Calculating Sodium Content and Determining Appropriate Sodium Levels in Foods

Abed Forouzesh (University of Tehran), Fatemeh Forouzesh (Islamic Azad University), Sadegh Samadi Foroushani (University of Tehran), Abolfazl Forouzesh (Islamic Azad University), A New Method for Calculating Sodium Content and Determining Appropriate Sodium Levels in Foods, SSRN (2022):

Calculating the sodium content per 100 g or 100 mL, 50 g, or the reference amount customarily consumed (RACC) shows the sodium content of some foods inappropriately. So, making some food choices based on them to limit sodium intake may increase the risks of some chronic diseases. Calculating the sodium content and determining appropriate sodium levels (to limit sodium intake) based on U.S. Food and Drug Administration (FDA), Codex Alimentarius Commission (CAC), and the proposed method were performed in 8,515 food items. Making some food choices based on the FDA per serving (the serving is derived from the RACC, 100 g, or 50 g) or CAC per 100 g to limit sodium intake exceeded sodium needs, which could lead to hypertension. Some foods that did not exceed sodium needs were not appropriate food choices based on the CAC per 100 g or FDA per serving to limit sodium intake. Some foods were free of, but not very low or low in, sodium, based on the FDA per serving. Making food choices based on the proposed method to limit sodium intake did not exceed sodium needs. Also, foods that did not exceed sodium needs were appropriate food choices based on the proposed method to limit sodium intake.

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August 26, 2022 | Permalink | Comments (0)

The Right to Health: A Case for Its Full Realization and Enforcement under the Nigerian Legal Framework

Queen Ukpo (Independent), The Right to Health: A Case for Its Full Realization and Enforcement under the Nigerian Legal Framework, SSRN (2022):

Arguments have been proffered to the effect that the right to health is not legally protected under the current legal regime in Nigeria. Contesting these arguments might seem herculean and it does not help that the right to health is not particularly mentioned as a fundamental right in Chapter 4 of the Nigerian Constitution. Notably, health is only mentioned in Chapter 2 of the Constitution , a chapter of the Constitution whose provisions are regrettably unenforceable.

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August 26, 2022 | Permalink | Comments (0)

The Tobacco Endgame Avengers: Strategies for a Smokefree Future in Australia

Matthew Rimmer (Queensland University of Technology ), The Tobacco Endgame Avengers: Strategies for a Smokefree Future in Australia in Australian Pub. Health L.: Contemporary Issues and Challenges (Belinda Bennett & Ian Freckelton, eds., Forthcoming).

This chapter explores contemporary issues and challenges in respect of tobacco control in Australia. It considers the role of Australia as a pathfinder in respect of developing and defending pioneering public health laws and regulations, which have then been adopted and adapted elsewhere around the world. This chapter examines the successful introduction and defence of plain packaging of tobacco products in the High Court of Australia. It highlights the ramifications of this decision for other fields of public health. This chapter considers the need to update tobacco control regulation to deal with social media and digital communication. It explores the challenges to tobacco advertising regulations posed by tobacco companies and e-cigarette companies in respect of the use of social media and Internet influencers. This chapter examines and evaluates the prospect of tobacco-endgame strategies. In particular, it looks at the T21 proposal in Tasmania, and spatial limitations and restrictions on smoking in Queensland. This chapter explores civil litigation against tobacco companies in Australia, and highlights the vulnerability of e-cigarette companies to legal action. It also investigates the potential of criminal liability for tobacco companies in Australia. This chapter considers the campaign for tobacco divestment, and the persistent problem of tobacco interference in policy-making in Australia. It concludes with the recommendation that Australia should pursue a tobacco endgame policy – much like its neighbour, New Zealand.

August 26, 2022 | Permalink | Comments (0)

A New Method for Calculating Riboflavin Content and Determining Appropriate Riboflavin Levels in Foods

Abed Forouzesh (University of Tehran), Fatemeh Forouzesh (Islamic Azad University), Sadegh Samadi Foroushani (University of Tehran), Abolfazl Forouzesh (Islamic Azad University), A New Method for Calculating Riboflavin Content and Determining Appropriate Riboflavin Levels in Foods, SSRN (2022):

Calculating the riboflavin content per 100 kcal, 100 g or 100 mL, or the reference amount customarily consumed (RACC) shows the riboflavin content of some foods inappropriately. So, making some food choices based on them to achieve adequate riboflavin intake may increase the risks of some chronic diseases. Calculating the riboflavin content and determining appropriate riboflavin levels (to achieve adequate riboflavin intake) based on U.S. Food and Drug Administration (FDA), Codex Alimentarius Commission (CAC), and the proposed method were performed in 8,008 food items. Making some food choices based on the FDA and CAC per serving (the serving is derived from the RACC) or CAC per 100 g or 100 mL to achieve adequate riboflavin intake exceeded energy needs, which could lead to overweight or obesity. Making some food choices based on the CAC per 100 kcal or CAC per 100 g or 100 mL to achieve adequate riboflavin intake did not meet riboflavin requirements, which could lead to riboflavin deficiency. Some foods that met riboflavin requirements were not appropriate food choices based on the CAC per 100 g or 100 mL or CAC per serving to achieve adequate riboflavin intake. On the basis of the proposed method, calculating the riboflavin content and determining appropriate riboflavin levels in foods are performed by considering RACCs and the energy content of foods. Thus, making food choices based on the proposed method met riboflavin requirements and did not exceed energy needs.

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August 26, 2022 | Permalink | Comments (0)