Current Events in September 2005

There's good news and bad news about aspirin.

First the good. Aspirin blocks chemicals called prostaglandins so it relieves pain and reduces swelling and inflammation.

Aspirin can help your sprained ankle or prevent stokes and heart attacks if you have risk factors like high blood pressure. If you have had a heart attack or stroke, aspirin can help some folks prevent a second one.

Aspiring helps treat fevers and a pediatric disease called Kawasakis Disease.

The bad news: Aspirin can cause side effects like nausea, internal bleeding or liver or kidney trouble. Aspirin can cause ear ringing. It can combine with viruses and cause a deadly problem call Reyes Syndrome that can hurt your liver.

The ugly: Aspirin allergy can cause hives, asthma, and a systemic allergic reaction called anaphylaxis which can lead to breathing trouble or even anaphylactic shock and death.

Aspirin-sensitive people can develop the aspirin triad, which are nasal polyps, sinus problems, hives and asthma.

Conclusions: Before you take aspirin regularly talk to your doctor.

A California lawyer is petitioning federal regulators to recall about 17 million Ford vehicles, including F-Series pickup trucks, because of a problem that can cause spark plugs to blow out.

The complaint from attorney Donald Ricketts of Santa Clarita, Calif., would, if granted, lead to the biggest-ever U.S. recall ever. SUVs, pickups, Crown Victorias and Mustangs sold in the 1997-2004 model years had spark plugs that can come loose and fly through the hood, Ricketts alleges.

Nearly 200 consumers have complained to ConsumerAffairs.com about the problem over the last five years. In nearly every case, the Ford owners also complained to Ford, only to be told that the problem was not covered under their warranty and disclaiming any knowledge of a broader problem.

T.J. of Wichita Falls, Texas, complained two years ago that the spark plug blew out of his 1999 Ford F-150. "It is costing me $3,000 to fix this problem. I just returned from the war overseas in Iraq and this is what I get to come home to," T.J. said.

Ricketts' petition was filed less than three weeks after Ford recalled 3.8 million vehicles, a year's worth of sales, to fix a cruise-control switch that can overheat and cause fires. That recall, the fifth-largest ever in the United States, included the same vehicles and model years as Ricketts' petition.

Ford said it couldn't comment on the petition.

Nor has Ford had much to say to any of the thousands of consumers whose $30,000 trucks have been disabled when the spark plugs blew out, resulting in repair bills averaging around $3,000.

The vehicles in question all have an aluminum cylinder head. "Many mechanics feel the head contains an insufficient number of threads to hold the plugs when under stress, so they have a greater than normal tendency to fail," said Christopher of Palmdale, Calif., whose truck blew its plug in 2002.

"Ford is not acknowledging any problem, so there's no guidance from them on the best way to proceed with repair," Christopher said. "Some people have had heli-coils inserted, while some have had to have the entire engine replaced. Others have had a recurrence of the failure, due to lack of direction from Ford."

FDA has also directed Eli Lilly and Company, manufacturer of Strattera, to develop a Medication Guide for patients and caregivers.

FDA is advising health care providers and caregivers that children and adolescents being treated with Strattera should be closely monitored for clinical worsening, as well as agitation, irritability, suicidal thinking or behaviors, and unusual changes in behavior, especially during the initial few months of therapy or when the dose is changed (either increased or decreased).

Patients and caregivers who have concerns or questions about these symptoms should contact their healthcare provider.

The actions follow a review and analysis of 12 clinical trials conducted in children with ADHD and one trial in children with enuresis (bedwetting) that identified an increased risk of suicidal thinking for Strattera.

There was one suicide attempt by a patient who received Strattera among the approximately 2,200 patients in the trial.

As part of a larger evaluation of psychiatric drugs and suicidality, FDA had requested that the manufacturer conduct a review of its database and clinical trials, which included more than 2200 patients -- 1350 patients receiving Strattera (atomoxetine) and 851 receiving a placebo.

The analysis showed that 0.4% of children treated with Strattera reported suicidal thinking compared to no cases in children treated with the placebo.

Strattera, manufactured by Eli Lilly, has been on the market since 2002 and has been used in more than two million patients.

The U.S. Department of Agriculture has unveiled what it describes as a a "child-friendly" version of its widely ridiculed food pyramid, called "MyPyramid for Kids." Agriculture Secretary Mike Johanns visited an Alexandria, Va., elementary school to unveil the new graphic symbol, lesson plans for grades 1-6 and an interactive game.

"This is a fun approach to addressing the very serious problem of childhood obesity," said Johanns. "As teachers take advantage of the lesson plans and children learn what it takes to win the game, messages about the importance of healthy eating and physical activity will take hold. We know that MyPyramid captured America's attention and our hope is that MyPyramid for Kids will inspire the same level of interest and help to improve the health of America's kids."

But critics said the kids' version of the food pyramid is "as ineffective as the adult version," as the the nonprofit Center for Science in the Public Interest (CSPI) put it. The adult version of the pyramid was derided for being "Sphinxlike," conveying very little usable information.

CSPI said that MyPyramid for Kids, like the adult MyPyramid, fails to convey the otherwise sensible advice found in the Dietary Guidelines for Americans, and is emblematic of an Administration that has no real commitment to improving Americans' diets.

"My Pyramid for Kids doesn't dare to discourage children from consuming so much soda, fast food, candy, and other junk foods," said CSPI executive director Michael F. Jacobson. "Even if MyPyramid for Kids were terrific, there's no strategy to put materials in every classroom in America -- they're actually only making them available upon request. It's as if they've asked Mike Brown to design a response to the obesity epidemic."

CSPI said that if the Administration wanted to reduce the toll of diet-related disease, it could start by aggressively promoting increased consumption of fruits, vegetables, and whole grains; removing soda and junk foods from schools; getting junk-food ads of children's television; and supporting legislation that would put calorie counts on fast-food menu boards.

And instead of relying solely on the Internet, the government should take to the airwaves, according to CSPI.

"When McDonald's wants to reach kids, it turns to television advertising first and foremost," said Jacobson. "If government is to improve kids' eating habits it should invest hundreds of millions of dollars on television advertising promoting healthy diets. If such a campaign made even a dent in obesity or diet-related disease, it would be a windfall for American taxpayers."

USDA insists MyPyramid for Kids provides age-appropriate information about the 2005 Dietary Guidelines for Americans and the MyPyramid Food Guidance System released earlier this year.

"The new MyPyramid for Kids symbol represents the recommended proportion of food from each food group and focuses on the importance of making smart food choices every day," USDA said.

The interactive computer game, called MyPyramid Blast Off, involves a rocket that needs fuel to blast off. The game reinforces the key concepts of MyPyramid for Kids by challenging students to select a healthy variety of foods and physical activities to fuel their rockets.

In its publicity material, USDA said the MyPyramid Food Guidance System website, MyPyramid.gov, has experienced more than 800 millon hits and MyPyramid Tracker, a personalized assessment tool that provides information on diet quality, now has nearly 480,000 registered users.

But CSPI said the Web site actually has had little impact.

"A search via the web service Alexa.com shows that traffic peaked immediately after the site's launch, and plummeted quickly thereafter. On a given day, traffic at web gaming sites designed to promote junk food, such as Postopia.com or Candystand.com, far outpaces traffic at MyPyramid.gov," Jacobson said.

It takes more than a pink ribbon logo to provide meaningful support to breast cancer research, a consumer group warns.

Breast Cancer Action, a San Francisco-based grassroots education and advocacy organization, says not all companies and groups promoting breast cancer awareness are created equal. The group is encouraging consumers to be more savvy about how they give to breast cancer.

BCA said it is concerned that many companies selling pink ribbon products mislead consumers due to their lack of transparency and accountability.

"When companies put pink ribbons on their products, they're no longer just selling a sweater or a watch -- they're selling the expectation that buying their product is going to make a difference in the fight against breast cancer," said Barbara Brenner, executive director of Breast Cancer Action.

"Pink ribbon marketing efforts make a significant difference in corporate bottom lines. But the 'portion of the proceeds' that goes to breast cancer is all too often miniscule in comparison."

The group cited 3M as an example of a company that uses breast cancer awareness in its marketing campaign, but gives a relatively small amount to the cause.

"Breast cancer is a serious disease. Every 1.9 minutes a woman hears the words, 'You have breast cancer,' and every 13 minutes a woman dies from the disease," Brenner said.

"People care deeply about this disease and want assurance that pink ribbon products are as beneficial to women with breast cancer as they are to the companies that sell them."

Think Before You Pink features a one-minute Flash movie on the BCA Web site, focused on pink ribbon cause-marketing. The Flash movie culminates with an opportunity to send an e-mail to companies selling pink ribbon products, asking how much money actually goes to the cause, how the funds are being raised, who gets the money, and what types of programs are being supported.

Also online, BCA's "Parade of Pink" lists more than 50 examples of the hundreds of pink ribbon products marketed by companies including Cartier, Ford, Kodak, Quilted Northern, Ralph Lauren, Tommy Hilfiger, Yoplait and more.

The California Medical Board will investigate two surgeons at St. Vincent Medical Center in Los Angeles for performing a liver transplant on a Saudi citizen, passing over the nine patients in their own hospital who were in line for the procedure.

Hospital officials concede the transplant was inappropriate, and that hospital staff falsified documents to cover it up.

The transplant took place in September 2003. The hospital has terminated the programs relationship with the doctors and has placed a temporary halt on liver transplants. It says it has received no explanation from the surgeons for letting the Saudi national cut in line.

Organs are supposed to go to the sickest patients, those most likely to die without a transplant. Allowing wealthy or well-connected patients to cut into line is considered a violation of medical ethics and also of the rules established by the regional networks that manage organ availability.

The hospital does say that the Saudi Arabian Embassy paid the hospital nearly $340,000 for the procedure and recovery care, plus undisclosed fees to the surgeons. That sum is markedly higher than what insurance plans normally pay.

A patient at the UCLA Medical Center was reportedly next in line to receive a liver transplant at the time. The two surgeons, Dr. Richard R. Lopez Jr., the St. Vincent program's former director, and Dr. Hector C. Ramos, the former assistant director, now face a probe by the state medical board.

GlaxoSmithKline and the FDA are warning that a study has identified a risk of major congenital malformations in infants born to women taking Paxil and Paxil CR during the first trimester of pregnancy.

A long-term epidemiological study suggested an increase in the risk of overall major congenital malformations for Paxil (paroxetine) and Paxil CR compared to other antidepressants.

"Healthcare professionals are advised to carefully weigh the potential risks and benefits of using paroxetine therapy in women during pregnancy and to discuss these findings as well as treatment alternatives with their patients," the FDA said.

Labels for Paxil and other antidepressant drugs already include the possibility that the drugs can cause birth defects.

Last month, Norwegian researchers said Paxil is associated with a higher risk of suicide in adults. The drug, which is currently not approved for use by children, has been the subject of 16 scientific reviews, which were analyzed for the Norwegian study.

Boston Scientific Corp. said it is recalling Enteryx, an endoscopic product used to treat acid-reflux disease, because of what it called doctor errors that have harmed several patients and killed at least one.

The company said is the recall is "not related to the safety and effectiveness of the Enteryx product when properly implanted." Enteryx is an injectable polymer used to fill the walls of the esophagus; it is supposed to block acid from flowing upward from the stomach.

In 11 cases, doctors accidentally punctured the wall of the esophagus while doing the procedure, causing serious complications including one death.

The recall was initially reported the The Wall Street Journal. It is posted on an obscure section of the company's Web site aimed at doctors.

"This action is being initiated based on the procedural injection technique and is not related to the safety and effectiveness of the Enteryx product when properly implanted. The Company has not found any evidence of complications resulting from long-term implantation of Enteryx," the company statement said.

Boston Scientific said it has informed the FDA of its actions and is notifying doctors and hospitals directly.

"The company has been collecting and analyzing a growing body of data that indicates procedural injection technique is critical to achieving clinically acceptable results. There have been a limited number of injections through the wall of the esophagus that were undetected at the time of the procedure and resulted in adverse events," the company said.

The battle over protecting Hurricane Katrina victims from the new bankruptcy reform law, which takes effect Oct. 17th, continues with new legislation introduced in the Senate.

Louisiana Senators Mary Landrieu (D) and David Vitter (R) introduced a reconstruction bill earlier this week that includes rules designed to exclude victims of the disaster from many of the bankruptcy bill's harshest provisions.

The exemptions include being able include expenses incurred from Katrina damage as necessary monthly expenditures, for purposes of including them in the new "means test" for bankruptcy filers.

The bill also allows victims of Katrina to qualify for the "special circumstances" provision, which would enable them to file under Chapter 7 more easily.

The Landrieu-Vitter bill is similar to legislation introduced on Sept. 8th by Sen. Russ Feingold (D-WI), and to the "Hurricane Katrina Bankruptcy Relief and Community Protection Act of 2005," crafted by a team of House Democrats and submitted on Sept. 8th.

In the House, Rep. Louise Slaughter (D-NY) also introduced House Resolution (H.R.) 3662, "The Financial Safeguards for Hurricane Survivors Act," which would delay the implementation of the new bankruptcy law for two years, enabling Katrina victims to file for bankruptcy under the current rules.

Feingold's legislation would grant bankruptcy petitioners the right to file under the terms of the old bankruptcy laws for a period of one year.

"In the wake of what has happened, now is not the time to implement a bankruptcy overhaul that was so controversial that it could not pass Congress for seven years," Slaughter said in a press statement.

In a statement, Feingold said, "The bankruptcy system is an important safety net for people who suffer this kind of devastation. In this country, we do not sentence people who have been through a disaster of this type to a lifetime of financial servitude."

Efforts by House Democrats to get their bills onto the docket were blocked when House Judiciary Committee Chairman F. James Sensenbrenner announced he would not hold hearings on relief from bankruptcy for Katrina victims.

Sensenbrenner's rationale was that the most heavily affected victims of Katrina would be able to apply for bankruptcy and not face the difficulties of the "means test," which requires petitioners to demonstrate their inability to pay their debts.

"For someone who is genuinely poor and down and out and doesn't have the ability to repay their debts, there is no change at all," Sensenbrenner told the Milwaukee Journal-Sentinel. "I don't know why some of my colleagues are actually encouraging people through what they're saying to file for bankruptcy, because it's a stigma that wrecks your credit record for at least eight years."

Sensenbrenner received over $9,000 in campaign contributions from credit card companies and banks during the last election cycle, including $3,500 from MBNA and $3,000 from its new parent, Bank of America.

Sensenbrenner has received over $90,000 in campaign contributions from the banking and credit card industries since 1989, according to Public Citizen.

Slaughter introduced his bill on Sept.7th, before Sensenbrenner's statement on Sept. 15th. The bill is currently in the House Subcommittee for Finance and Consumer Credit, while the "Hurricane Katrina Bankruptcy Relief and Community Protection Act of 2005" is currently awaiting action by the Judiciary Committee.

The new bankruptcy legislation was signed into law by President Bush in May 2005. Ostensibly created in order to prevent abuse and frivolous filings, the legislation has come under harsh criticism from consumer advocates, bankruptcy lawyers, and financial experts as being too punitive to consumers.

Victims of Hurricanes Katrina and Rita will have especially difficult times applying for bankruptcy under the new laws, as the new procedures requires extensive financial documentation of one's holdings, and most individuals have lost much if not all of their documents during the storms and flooding that wrecked much of the Gulf Coast.

September 27, 2005
Maytag is recalling about 5,000 front-loading washing machines. If the front-load washer is operated at maximum load capacity, the spinner could malfunction and break apart, posing a safety risk to consumers.

The recall involves white Maytag front-load washers with model number MAH9700 and a serial number from 10188468GA through 11683946GJ. The model and serial numbers are located inside the door opening and below the rubber boot.

The units were sold at major department and appliance stores nationwide from April 2005 through May 2005 for about $1,300.

Consumers should use care not to exceed the listed capacity of their machines, and should contact Maytag for a free in-home service call to replace the washer's control board.

Consumer Contact: Consumers can contact Maytag at (800) 462-9267 anytime, or visit the companys Web site at www.maytag.com.

The recall is being conducted in cooperation with the U.S. Consumer Product Safety Commission (CPSC).

Its official: East has met West. Bankrupt US Airways Group has formally merged with America West Airways and is operating as a single airline.

Even so, there remain some distinctions. The new combined company says consumers should continue to book directly with US Airways or America West as they did before the merger. The airlines Web sites, www.americawest.com and www.usairways.com, will also operate separately in the short term, as will the two airlines' reservations systems.

But one place where the two airlines are definitely joined is on Wall Street. The new US Airways began trading Tuesday on the New York Stock Exchange under the LCC symbol. Company officials and representatives from the airlines labor groups joined US Airways Chairman, President and CEO Doug Parker at the opening bell ceremony at the New York Stock Exchange.

"Today we start a new chapter in aviation history," said Parker.

"The new US Airways combines our airlines proud heritage with our employees passionate commitment to provide our customers with friendly service and low fares. This is a great day for the employees of America West and US Airways as well as for the people in the hundreds of communities we serve."

Company officials say the benefits of the merger include:

• Single-branded product offering everyday, simple low fares and a network of choices for travel to more than 225 destinations worldwide, including Europe, the Caribbean, Mexico, Canada, and, in the near future, Hawaii

• Extensive Dividend Miles frequent flyer program with the ability to earn and redeem miles for travel in destinations throughout the globe.

• First class cabins on both domestic and international flights, with advance seating assignments and in-flight amenities that include audio and video entertainment selections.

• Hourly US Airways Shuttle service between Boston, New York and Washington.

While the merged airline will operate under the US Airways name, America West and US Airways will maintain separate operating certificates for approximately two to three years. Once FAA approvals have been granted, the two airlines operating certificates will be combined onto one.

America West Airlines initiated service in 1983 with three aircraft and 280 employees. America West grew rapidly, and by 1990, was the first airline formed since industry deregulation to achieve major-airline status. America West served 94 destinations across the U.S., Mexico, Canada and Costa Rica with more than 900 daily departures.

US Airways began operations in 1939 as All American Aviation. Its history includes mergers with North Carolinas Piedmont Airlines, Californias PSA Airlines, and now Arizonas America West Airlines. Prior to the merger, US Airways operated approximately 3,300 daily flights to 183 communities in the U.S., Europe, Canada, Mexico and the Caribbean.

It declared bankruptcy twice in recent years as stiff competition from low fare carriers created turbulence within the airline industry.

Visa and MasterCard, along with major banks such as Capital One and Bank of America, face an accelerating legal challenge by merchants ranging from chain stores to photo shops to grocers.

The lawsuits allege that major banks and the Visa and MasterCard associations charge excessive "interchange fees" to retailers when customers pay for goods using a Visa or MasterCard.

Retailers have to pay the interchange fees in order to receive payments from transactions made using those cards, and the plaintiffs claim the fees are disproportionately high compared to the money they receive from the transaction.

The costs of the interchange fees are passed on to consumers, who have to pay more for goods without realizing it. Mitch Goldstone, CEO of Irvine, CA-based 30 Minute Photos, one of the original lawsuit plaintiffs, has called it a "hidden tax" on consumers.

Goldstone filed the first major lawsuit in June of 2005. Major grocery chains such as Kroger's and Safeway filed their own litigation in July 2005. Retail store associations, including the National Association of Chain Stores (NACS) and the National Association of Chain Drug Stores (NACDS), then filed a class-action antitrust suit this month.

The various lawsuits now go to a Multi-District Litigation (MDL) hearing on Sept. 29th in Asheville, North Carolina. The MDL hearing will determine what form the lawsuits will take and how they will proceed.

Goldstone told ConsumerAffairs.com the lawsuits are "the biggest litigation since AT&T; in the late '80's."

His crusade started when he received a notice from MasterCard that his interchange fee for frequent-flyer card usage was going up. "I sent letters, cards, and e-mails asking for them to rescind this fee. No responseI didn't anticipate being the lead plaintiff in a case this big."

Goldstone views the lawsuit as standing up for retailers and consumers who are forced to shore up banks' profits.

"Retailers are beholden to credit card companies. We've moved so far to an e-commerce model that if I don't accept credit cards, I'm out of business."

Visa and MasterCard, he said, enjoy the benefits of a "noncompetitive" situation, where "a mother going out for a gallon of milk is subsidizing a wealthy customer's free flight," because they're paying the same rates for goods, even if the mother pays cash or writes a check.

Jeff Lenard, spokesperson for NACS, concurred.

"This is an imbalance between fees and economics," he stated. "If you look at other countries' [interchange fee] rates, they're far lower than ours. Why are they so much higher in the United States?"

The, in both Lenard's and Goldstone's views, is to move to a "cost-based interchange" system with "no other component or profit" attached. "Ultimately," Lenard stated, "this hits our bottom line."

Credit card companies and banks are already reaping tremendous windfalls from the interchange fees levied when drivers use credit cards to pay for gas. The Washington Post reported on Sept. 25th that banks' fees for credit card purchases of gas have risen by 64 percent since last year, generating huge profit while forcing gas station owners to eat up more of the costs of processing fees, and leaving consumers paying higher and higher prices.

"Credit card companies are making 8 or 9 cents a gallon" off the fees, says Lenard.

Despite gorging on interchange fees, many large financial services companies face a cloudy future. Homeowners are using home equity loans to pay down debt and buy items usually reserved for credit cards, while cardholders are paying off their debts faster and in greater amounts. MBNA has already felt the backlash of lost revenue, leading to its buyout by Bank of America.

As one insider analyst put it in an interview with Reuters, "You've got consumers and merchants revolting. They're the two customers of this industry ... That's not good."

Goldstone theorizes that the rush to set up credit card companies for initial public offerings (IPOs) is a way for them to "throw off liability onto the consumer." As profits drop and consumer anger grows, "you'll see a lot of them running to the exit as quickly as possible."

Goldstone runs an online blog, WayTooHigh.com, which tracks the daily updates of the lawsuit. "Since this case started," he says, "I haven't received a single negative complaint."

The antitrust, class-action lawsuit charges that Visa, MasterCard, Bank of America, Citibank, Bank One, Chase Manhattan Bank, J.P. Morgan, Chase, Fleet Bank, Capital One, and other banks are engaging in collusive practices by setting credit card interchange fees at "supracompetitive" levels.

The suit's plaintiffs -- the National Association of Convenience Stores (NACS), the National Association of Chain Drug Stores (NACDS), the National Community Pharmacists Association (NCPA) and the National Cooperative Grocers Association (NCGA) -- represent hundreds of thousands of drug stores, convenience stores and food stores across the United States that accept Visa and MasterCard as a form of payment.

So-called "interchange fees" are the largest component of credit card fees and have a significant impact on American consumers, who are affected by U.S. interchange rates that are among the highest in the world.

Interchange rates cost the average American household approximately $232 a year in 2004, the lawsuit charges.

When consumers purchase goods or services with a credit card, the payment is processed through the merchant's bank and the bank that issued the consumer the credit card. The issuing bank charges the merchant's bank a fee to process the transaction. The merchant's bank then adds its own fee for processing the transaction, and passes on both of these fees -- collectively known as interchange -- to the merchant.

"The credit card interchange system serves as a hidden tax, both on merchants and consumers, and raises the costs of all products regardless of the form of tender," said Hank Armour, CEO of the National Association of Convenience Stores.

"These credit card interchange fees have rapidly increased over the past several years, despite efforts by individual convenience stores to control these costs or make the competitive market work," Armour said.

Interchange fees are meant to cover the cost of processing a credit card transaction and the risk taken by the issuing bank that the credit will not be repaid. However, the plaintiffs say that both fraud costs and the cost of processing are steadily decreasing, while U.S. interchange rates continue to increase.

Interchange fees are substantially higher in the United States than almost any other industrialized country. Other countries have taken action to address the market problem created by these monopolies. Recent changes in Australia and countries in Europe, for example, have decreased rates from about 0.95 percent to about 0.55 percent.

"Credit card interchange fees are the third-largest expense for many chain drug stores after rent and the cost of labor," said Craig Fuller, CEO of the National Association of Chain Drug Stores. "These costs have skyrocketed over the past years even though the costs of credit card transactions for the banks have fallen."

The suit's plaintiffs added they would seek damages and injunctive relief to stop the alleged anticompetitive practices of banks and credit card companies.

"We are not seeking some form of temporary relief; we are looking for long-term reform of the credit card interchange fee system," said John Rector, General Counsel of the National Community Pharmacists Association.

"The current system discriminates against small, independent businesspersons, and there is no basis for that discrimination. We ultimately seek a competitive and fair interchange fee system.

The suit was filed in the U.S. District Court for the Eastern District of New York on Friday by Robins, Kaplan, Miller & Ciresi LLP.

September 27, 2005
Victims of personal data security breaches are showing their displeasure by terminating relationships with the companies that maintained their data, a survey finds.

The independent survey of nearly 10,000 adults, conducted by the Ponemon Institute, found that nearly 20 percent of respondents say they have terminated a relationship with a company after being notified of a security breach.

"Companies lose customers when a breach occurs. Of the people we surveyed who received notifications, 19 percent said that they have ended their relationship with the company after they learned that their personal information had been compromised due to security breach," said Larry Ponemon, founder and head of the Ponemon Institute.

"A whopping 40 percent say that they are thinking about terminating their relationship."

The survey also found that five percent of Americans have hired lawyers upon learning that their personal information may have been compromised.

"Five percent may not seem like much, until you realize that anywhere between 23 million and 50 million Americans have received notification of a data security breach. That means that over one million people out there are likely seeking legal counsel," said David Bender, co-head of the privacy practice at White & Case, the law firm that sponsored the study.

"This should be particularly troubling to companies, especially in light of several putative class-action lawsuits recently filed in California against companies that experienced security breaches," Bender said.

Bender added that while it's unclear just how any court might calculate damages for customers whose personal information has been breached, but have not suffered any clear harm, the fact that the plaintiff's bar is taking on such suits means they anticipate that courts may commiserate with customers' frustration over breaches.

One of the top frustrations that consumers experience is that the company hasn't clearly and effectively communicated just exactly what effect the security breach will have on their personal information.

"The survey reveals that companies need to be straightforward about what they know, as those companies who fail to communicate information in a clear, consistent and timely fashion are four times more likely to experience customer churn," said Ponemon.

"And those businesses that deploy canned emails or form letters to communicate a data breach to victims are more than three times as likely to lose customers than those that contact victims by telephone or personalized letters or a combination of both," he said.

Overall, 39 percent of respondents said that they felt the message conveyed by the organization about the data security breach was not honest and believable, and 52 percent said that the notice was difficult to understand.

Among the other top findings of the survey:

• The organizations most likely to report a breach are banks (20%), credit card companies (18%), governmental organizations (including state universities) (13%), and health care providers (9%).

• 86% of security breaches involved the loss or theft of customer or consumer information. About 14% involved employee, student, medical and taxpayer data.

• 58% said the breach decreased their sense of trust and confidence in the organization reporting the incident. Only 8% of respondents did not blame the organization that reported the breach. Surprisingly, 12% said the incident enhanced their sense of confidence in the organization.

• Over 82% believed that an organization should always report a breach, even if the lost or stolen data was encrypted or there was no criminal intent.

• 59% of respondents don't have confidence in US state or federal regulation to protect them from data security breaches.

New Jersey Acting Gov. Richard Codey has signed a sweeping set of anti-identity theft laws that permit consumers to freeze their credit and require companies to shred documents with Social Security numbers. The package also allows consumers to file identity theft reports at their local police station.

At a news conference with supporters of the legislation, Codey said identity theft is "becoming a serious threat to one's good name." According to the Federal Trade Commission, 218,000 New Jerseyans fell victim in 2004 to identity theft, which can range from fraudulently obtaining credit card numbers to falsely assuming another person's identity to obtain a mortgage or other credit.

Previously, it was unclear which New Jersey law enforcement agency held jurisdiction in suspected cases of identity theft because the crime crossed municipal and state lines.

Because of jurisdictional issues and the difficulty of recouping any identity theft losses -- victims typically spend 600 hours and thousands of dollars doing so, Codey said -- many consumers simply accepted the loss rather than fight it.

In addition to the legal reporting, the Identity Theft Prevention Act also:

• Allows residents to place and lift the credit freeze using a personal identification number;

• Increases reporting requirements by companies in the event of stolen, lost or compromised personall data;

• Limits the use of Social Security numbers for identification purposes and curtail public display of the identifiers;

• Requires businesses to shred personal documents as soon as they are no longer needed.

"This will be a hallmark for other states," said Marilyn Askin, president of the New Jersey chapter of the American Association of Retired Persons. "Companies will be held accountable for protecting the privacy of their customers."

As Hurricane Rita approached, Texas Attorney General Greg Abbott issued a stern warning to all Texas businesses engaged in the sale of bottled water, gasoline, food, lodging, building materials, rental vehicles and other essential goods and services.

"I have instructed my investigators and attorneys to take quick legal action if we find businesses deliberately gouging consumers in advance of this storm and in its aftermath," said Attorney General Abbott. "We will aggressively urge the courts to impose harsh penalties against anyone who would profit off the backs of those already suffering."

The Attorney Generals Office has received complaints, including allegations of rental car companies charging up to $137 per day for mid-size cars and grocers charging $35 for a 12-pack of bottled water. These complaints are under investigation.

Hurricane Rita accelerated to Category 5 status Wednesday afternoon in the Gulf, with sustained winds of 165 mph. The massive storm is expected to make landfall along the Gulf Coast late Friday or early Saturday.

With the mandatory evacuation of all coastal counties ordered by authorities Wednesday and others along the Gulf Coast fleeing in advance of this storm, Attorney General Abbotts teams of field investigators will be closely monitoring unseemly business practices and consumer complaints about price-gouging.

Businesses that gouge could face civil penalties of up to $20,000 per violation of the Texas Deceptive Trade Practices Act, which encompasses price-gouging during a declared disaster such as this one.

Consumers who experience what they believe to be price-gouging for essential goods or services should call the Attorney Generals complaint hotline at (800) 252-8011 or file complaints online at the Attorney Generals Web site: www.oag.state.tx.us.

Getting into a quality substitute for home is just the beginning. Once Mom or Dad checks in, you'll assume a new role: elder advocate. Many older people aren't terribly assertive about getting their due, whether it's dietary changes, extra therapy or a seat on that field trip bus. And when it's a matter of both health and happiness, someone needs to be pushing for the full package.

Of course, residential facilities are often understaffed and residents can be needy. As a consumer, you've got federal (and sometimes state) law on your side to insist that Mom or Dad get the quality of care they deserve. The Code of Federal Regulations (CFR) and your state law contain many protections.

Here are a few eye-openers from the Code of Federal Regulations:

• Care Plan Each nursing home resident is entitled to a personalized "care plan," based on their needs. Such a plan must offer services that allow a person to maintain her highest practicable physical, mental and psychosocial wellbeing. This means that, for example, if Dad wants to sleep until 10:00 am instead of rising at the official 6:00 am call, he is allowed to do so. On a practical note, some families hire a part-time aide or appear themselves to ensure that a request is honored.

• Visiting Hours "Family members can only visit during visiting hours." Not so! 42 CFR 483.10(j) allows immediate family the right to visit at any time. And it may be to your advantage to visit during off-hours, to see what things are like when visitors aren't expected.

• Who Decides "The care-taking staff determines the level of care Mom or Dad will receive." Not so! In reality, the mandatory care plan drives the level of care and type of services a resident should get. Federal law requires that a facility do a full assessment of a resident's condition within 14 days of admission, and at least every 12 months after that. A care plan should include measurable objectives and timetables.

• Making Progress You may hear that if Mom or Dad isn't making progress, the home need not offer therapy. Assuming that the resident needs "skilled nursing services" or "skilled rehabilitation services," a facility is charged with trying to maintain his condition. Any facility needs to make sure that a person's ability to carry out activities of daily living doesn't deteriorate. The only exception: if the person's clinical condition makes deterioration unavoidable.

• Feeding Tubes They can be used only if absolutely necessary, not if a resident eats slowly or needs extra help cutting or eating food. The facility must provide whatever help a resident needs to eat normally.

• Wandering Relatives In the bad old days, staff sometimes tied residents into chairs or administered calming drugs to prevent wandering, especially among Alzheimer's patients. Now, nursing homes cannot use convenience or discipline as an excuse for restraining residents. The only legitimate purpose for restraint is to treat a person's medical symptoms.

• One Doctor Fits All "Mom must use the physician assigned to the facility." Not so! In reality, the "free choice" legal requirements include the right to choose one's own personal attending physician.

Financial Matters

• Guarantor "You must sign admission forms as a guarantor or responsible party." Not so! There is no such requirement. 42 CFR 483.12(d) prohibits a facility from forcing a third party to be a guarantor for the tab. You are only obliged to apply Mom or Dad's funds to the bill, not your own.

• Custodial Care "Since your relative needs custodial care only, Medicare won't reimburse the home." Not so! In reality, Medicare can pay for up to 100 days, provided a resident either is a) hospitalized for at least 3 nights, or b) needs skilled nursing or skilled rehabilitation. (As of this year, days 21-100 have a daily co-payment of $114.) Even if the facility nixes the need for skilled nursing care, a resident can appeal.

• Non-Medicare Beds "Once Dad is no longer eligible for Medicare reimbursement, we can transfer him to a non-Medicare-certified bed." No! A "Medicare certified" bed can be used for patients paying privately or through Medicaid, and a resident asked to move against his will can refuse.

• Fixed Fees "Extra charges are set by the facility, and are not negotiable. You have to pay extra for services like bath soap, denture cleaner or hospital gowns." Wrong! A facility's admission agreement should include covered and exempt or "private pay" charges, which are laid out in federal law. See 42 CFR 483.10 ("Resident rights") for details.

• Bed Holds Say your parent/relative leaves the nursing home for a hospital stay and the facility claims that his "bed hold" has expired when you try to have him readmitted. Although Medicaid and Medicare won't pay for "bed holds" in many states, private payment is allowed. And even if a "bed hold" expires, a facility must readmit a resident eligible for Medicaid reimbursement from the hospital if that facility has an available bed.

These are just a few of the misconceptions about nursing home and assisted living facility obligations.

Savvy consumers are aware that about 80% of nursing home residents enter from a hospital and hospitals are legally required to provide a discharge plan to any patient needing or requesting one. Your physician can also request one. Often, a well-thought-out discharge plan will set the stage for more focused, organized nursing home care.

More Info

For more information, see:

• www.medicare.gov/NHCompare, which compares nursing homes within a given geographical area;

• AARP's checklist on what to look for in a nursing home, available at www.aarp.org/bulletin/longterm.

• The Legal Information Institute at Cornell University Law School, an excellent resource for federal and local law. See www.law.cornell.edu.

The author is an attorney in Fairfax County, Virginia

British researchers attending the World Dental Congress in Montreal warn that there isn' t enough fluoride in bottled water to protect against tooth decay. After analyzing 25 brands of bottled water, they found fluoride levels to be, in some cases, only half of what' s found in tap water.

Until municipal water companies began adding fluoride to water supplies in the 1960s, children usually had a mouthful of cavities by the time they reached adolescence. But that trend soon began to change, and dentists celebrated fluoride as one of the century' s greatest health achievements.

But now that trend seems to be running in reverse. One Canadian dentist told the Congress that in the last decade, cavities in children are up, approaching pre-1960s levels.

It's not the first time that dentists have raised concerns about bottled water. Five years ago a study in Cleveland found 95 percent of the bottled water tested had fluoride levels that fell short of state guidelines. While some bottled water contains fluoride, bottlers are not required to specify the amount, making it impossible for parents to tell if their children are receiving an adequate supply.