The California legislature recently passed Assembly Bill (AB) 2098, which would “designate the dissemination of misinformation or disinformation related to the SARS-CoV-2 coronavirus, or ‘COVID-19’ as unprofessional conduct”. AB2098 has been signed by the governor and is scheduled to take effect on January 1, 2023. Here are some excerpts from the new law:
The spread of misinformation and disinformation about COVID-19 vaccines has weakened public confidence and placed lives at serious risk.
Major news outlets have reported that some of the most dangerous propagators of inaccurate information regarding the COVID-19 vaccines are licensed health care professionals.
The Federation of State Medical Boards has released a statement warning that physicians who engage in the dissemination of COVID-19 vaccine misinformation or disinformation risk losing their medical license, and that physicians have a duty to provide their patients with accurate, science-based information.
It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines..the following definitions shall apply:
— “Disinformation” means misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.
— “Disseminate” means the conveyance of information from the licensee to a patient under the licensee’s care in the form of treatment or advice.
— “Misinformation” means false information that is contradicted by contemporary scientific consensus contrary to the standard of care.
Legal challenges are likely to prevent AB2098 from being enforced any time soon, however. Opponents argue that:
“AB2098 is unconstitutionally vague and violates the First Amendment by penalizing doctors for candidly sharing their honest opinions with patients.” Reason (description of argument in Hoeg v. Newsom)
“AB2098 undoubtedly reaches speech protected by the First Amendment. It expressly limits the ability of physicians to speak about certain topics to their patients and thereby restricts their ability to communicate.” ACLU Brief, filed November 7, 2022
Ban on COVID-19 'Misinformation' from doctors Is gratuitous and unconstitutional (per ACLU) Reason November 15, 2022
AB2098 isn’t needed, because existing regulations address the danger that the state perceives. The Medical Board of California [MBC] is already authorized to take action against doctors for "gross negligence," "repeated negligent acts," "incompetence," and "any act involving dishonesty or corruption." Reason November 15, 2022
"When considering AB 2098, the Legislature acknowledged that the MBC was 'already fully capable of bringing an accusation against a physician for this type of misconduct.'" ACLU Brief, filed November 7, 2022
AB2098 imposes a government mandate to espouse only those ideas that the state deems acceptable, and “does not define its terms with any specificity and therefore does not give regulated physicians adequate notice of what will run afoul of the law.” Consumer Protection Policy Blog/UC San Diego October 22, 2022 (quoting from McDonald v. Lawson).
Ok, that’s some background. Now to zero in on how AB2098 uses the term “misinformation”. To review:
“Misinformation” means false information that is contradicted by contemporary scientific consensus contrary to the standard of care.
The Federation of State Medical Boards [FSMB] has released a statement warning that physicians who engage in the dissemination of COVID-19 vaccine misinformation or disinformation risk losing their medical license, and that physicians have a duty to provide their patients with accurate, science-based information.
The authors of AB2098 use the FSMB statement to justify this law, basically saying they are just following the guidance of the professional medical community. So let’s look at the FSMB statement - officially, Professional Expectations regarding Medical Misinformation and Disinformation - which was adopted by the FSMB in April 2022. Relevant excerpts (italics mine):
Medical misinformation: health-related information or claims that are false, inaccurate or misleading, according to the best available scientific evidence at the time.
Scientific evidence: information from peer-reviewed journals, methodologically-sound clinical trials, nationally or internationally recognized clinical practice guidelines, or other consensus-based documents that receive broad acceptance from the medical and/or scientific communities. Where evidence does not exist in these forms, there must still be a plausible basis in theory or prevailing and consensus-based, peer-acknowledged practice to justify any proposed treatment.
Where no such evidence exists, physicians must proceed very cautiously and only when there is a compelling rationale for the proposed treatment and justification of its use in relation to the patient’s symptoms or condition.
Novel, experimental or unproven interventions should only be considered and proposed when traditional, accepted and proven treatment modalities have been tried and failed. In such instances, there must still be a basis in theory or peer-acknowledged support for such practices. If justification based on scientific evidence is not present, disciplinary action by a state medical board may be warranted.
Efforts should be made to ensure that information about off-label prescribing is independently derived, peer reviewed, scientifically sound, truthful and not misleading.
Standards of care may evolve as novel scientific discoveries occur and as new evidence becomes available.
In crisis or emergency circumstances, standards of care may need to be altered to accommodate emergent or urgent circumstances. However, a scientific basis between a condition and proposed treatment is still necessary.
State medical boards have long dealt with complaints about physicians related to false information, false claims of efficacy and false advertising.
Note that the FSMB doesn’t require physicians to follow consensus-based standard of care under all circumstances. Nor does the FSMB forbid physicians to tell patients about treatments that lack broad support in the scientific and medical communities. In other words, the FSMB does not impose rigid controls on what physicians can and cannot say to their patients. And this approach is perfectly compatible with the FSMB’s definition of misinformation: false information. That’s because the opposite of false is true, and FSMB recognizes that consensus-based information is not the same thing as truth - or at least not the whole truth and nothing but. The California legislature and governor seem not to understand this essential fact.