California Governor Gavin Newsom has signed into law a controversial bill, AB 2098, giving the Medical Board of California and the Osteopathic Medical Board of California the authority to investigate, challenge and rescind the licenses of California physicians and surgeons who engage in “unprofessional conduct” with regard to disseminating “misinformation or disinformation” related to COVID-19.
The bill stems from a House resolution of the California State Assembly which declared “health misinformation” to be a “public health crisis” and noted that “[m]ajor news outlets have reported that some of the most dangerous propagators of inaccurate information regarding the COVID-19 vaccines are licensed health care professionals.”
AB 2098 amends California’s Business and Professions Code to include in the preexisting definition of unprofessional conduct the “disseminat[ion] of 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 or COVID-19 vaccines.” Notably, disinformation is defined as misinformation that is deliberately disseminated with “malicious intent” or an “intent to mislead,” while misinformation is defined as false information that is “contradicted by contemporary scientific consensus contrary to the standard of care.”
The latter definition has raised the most controversy, as organizations representing physicians and surgeons have pointed out that “contemporary scientific consensus” is often subject to debate and change. Dissenting groups have noted that scientific guidance with regard to COVID-19 treatment, prevention, and vaccination changed multiple times over the past two years and have queried whether doctors providing the current “consensus” would be liable for misinformation once the consensus changes yet again. The drafters of the law have stated that this is not the practical intention, but concern still lingers as the implementation of the definition of “misinformation” has yet to be vetted.
Other dissenters have claimed that any restriction on physician speech regarding COVID-19 is solely politically based and a violation of the medical professionals’ right to free speech. Proponents of the law, however, have noted that medical advice of any kind is professional speech that should be monitored and regulated by the appropriate medical boards for the health and safety of society.
Despite the scrutiny it faced, AB 2098 is now the first law of its kind in the United States and is likely to raise further controversy when it is initially invoked by the medical boards. It remains to be seen whether other states will pursue statutory measures to protect citizens from COVID-19 “misinformation and disinformation” as the virus continues to be ever-present and resistance to vaccinations and boosters becomes more common.