Opinion | The Straw-Man Argument Against California’s COVID Misinfo Law

An article in the South Carolina Post and Courier in early 2022 recounts how a patient levied grave accusations against his physician. The doctor was accused of persistently trivializing the dangers of COVID, recommending hydroxychloroquine as treatment, and purportedly alleging that the vaccines were concocted as a sinister plot to thin the global population. The patient, still riddled with uncertainty and deeply unnerved, sought the intervention of South Carolina’s medical board. He urged them to adopt a definitive stance on the matter. His rationale: if the physician’s statements hold water, the public has a right to be informed. Conversely, if the doctor’s assertions are baseless, he may be breaching the Hippocratic Oath’s fundamental principle, “do no harm,” by dissuading patients from availing themselves of a potentially life-saving vaccine. However, when approached for commentary regarding the patient’s case, the medical board refrained from making any statements, invoking confidentiality regulations.

Meanwhile, California took legislative action to protect patients from COVID misinformation and disinformation by physicians. On Feb. 14, 2022, state Assembly Member Evan Low (D) introduced Assembly Bill 2098 (AB2098), backed by (now former) state Sen. Richard Pan (D) and the California Medical Association. The bill proposed to categorize such false information acts as unprofessional conduct, rendering physicians accountable for disciplinary action.

Opponents of AB2098 argued that it would impede physicians’ First Amendment rights and limit academic freedom. They contended that groundbreaking scientific discoveries often emerged from challenging conventional wisdom. This viewpoint is plausible if one is persuaded — as critics of AB2098 assert — that the bill would be applicable to physicians’ discourse on topics that are genuine subjects of scientific contention. For example, Leana Wen, MD, expressed such concerns in her September 2022 Washington Post op-ed “California’s anti-misinformation bill is well intentioned. But it’s a bad idea.” She noted ongoing scientific debates, such as COVID booster schedules: “Is it really right for physicians to be threatened with suspension or revocation of their license for offering nuanced guidance on a complex issue that is hardly settled by existing science?”

This argument shows that many opponents of the bill neither fully comprehend the genuine perils posed by COVID misinformation, nor understand what the bill targets.

The bill was signed into law by California Gov. Gavin Newsom (D) on Sept. 30, 2022, and took effect on January 1 of this year. In his signing statement, Newsom specified that the bill is “Narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care.” He further added, “This bill does not apply to any speech outside of discussions directly related to COVID-19 treatment within a direct physician-patient relationship,” and that discussing emerging ideas or treatments, including risks and benefits, “does not constitute misinformation or disinformation under this bill’s criteria.”

The law adds Section 2270 to the California Medical Practice Act. Section 2270 (a) states, “It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID, 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 vaccines.” Section 2270 (b) defines misinformation, disinformation, and disseminate. Misinformation is “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” Disinformation is “misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.” Disseminate is “the conveyance of information from the licensee to a patient under the licensee’s care in the form of treatment or advice.”

This legislation is vital as it empowers the Medical Board of California to discipline physicians who mislead patients with pseudoscience or conspiracy theories. For instance, extensive research has shown that hydroxychloroquine and ivermectin are ineffective against COVID. Additionally, no credible evidence supports claims that COVID mRNA vaccines cause vaccine-induced AIDS, magnetization, infertility, microchips, mRNA spike protein shedding, DNA alteration, mRNA spike protein-induced diseases, cancer, or sudden cardiac death.

A December 2022 Commonwealth Fund study revealed that the U.S. administered 655 million vaccine doses, with 80% of the population receiving at least one dose, preventing 18 million hospitalizations, 3 million deaths, and saving over $1 trillion. Moreover, a Johns Hopkins Center for Health Security report indicated that misinformation or disinformation kept between 2 and 12 million people in the U.S. unvaccinated, costing the economy $50 to $300 million daily since May 2021.

On July 29, 2021, the Federation of State Medical Boards (FSMB) warned the approximate 1 million U.S. licensed physicians: “Physicians who generate and spread COVID vaccine misinformation or disinformation are risking disciplinary action by state medical boards, including the suspension or revocation of their medical license.” AB2098 complements existing law by explicitly mandating the Medical Board of California and California Department of Justice to protect patients from misinformation and disinformation.

Unfortunately, this landmark California law crucial for patient protection against COVID falsehoods, is facing legal hurdles. With a sixth of U.S. doctors licensed in California, the law responds to the FSMB’s plea for maintaining ethical standards. After its passage, the law was challenged in lawsuits. Two cases are now consolidated for a July 17 hearing at the 9th Circuit Court in Mark McDonald et al v. Kristina D. Lawson et al. Litigants threaten to escalate the case to the Supreme Court if defeated.

The Medical Board of California should not actively monitor patient-physician interactions. It’s incumbent upon Californians to report perceived misinformation or disinformation. Through public vigilance, we can reinforce the Medical Board of California’s commitment to its mission as codified in the California Medical Practice Act: “Protection of the public shall be the highest priority for the Medical Board of California in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.”

Nick Sawyer, MD, MBA, is an emergency physician in Sacramento, California.