California Law Set to Regulate Dissemination of Misinformation Related to COVID-19

Recently, the California Assembly and Senate recently passed AB 2098, sending it to Governor Gavin Newsom’s desk. Under current California law, physicians and surgeons are licensed and regulated by the Medical Board of California and the Osteopathic Medical Board of California. Existing law requires the applicable board to take action against licensed physicians and surgeons who are charged with unprofessional conduct.

Under AB 2098, physicians and surgeons who disseminate misinformation or disinformation related to the SARS-CoV-2 coronavirus – COVID-19 – would be charged with unprofessional conduct.

Background

The Federation of State Medical Boards previously released a statement warning that physicians have a duty to provide patients with accurate, science-based information and those who engage in the dissemination of COVID-19 vaccine misinformation or disinformation risk losing their medical license. Following the release of that statement, some state medical boards “appeared poised to take action against licensees found to be spreading misinformation or disinformation.”

Since that time, legislation has been introduced in a handful of states to prevent any medical boards from penalizing physicians who spread “misinformation or disinformation.

California AB 2098

According to the legislation, the “spread of misinformation and disinformation about COVID-19 vaccines has weakened public confidence and placed lives at serious risk” and that “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.”

House Resolution 74 of the 2021-22 Regular Session of the California Assembly declared health misinformation to be a public health crisis, and urged the state of California to commit to combating the misinformation and curbing the spread of falsities that threaten the health and safety of Californians.

Under the legislation, disinformation would be considered misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead while misinformation would be considered false information that is contradicted by contemporary scientific consensus contrary to the standard of care. Dissemination would be defined as the conveyance of information from the licensee to a patient under the licensee’s care in the form of treatment or advice.

Some members of the California Assembly feel that this bill is an added layer of protection and that “it is more than likely that the MBC and OMBC are both already fully capable of bringing an accusation against a physician for this type of misconduct” by classifying it as either “gross negligence” and/or “repeated negligent acts” within the meaning of unprofessional conduct.

Assemblymember Evan Low, the author of the bill, states, “AB 2098 is crucial to addressing the amplification of misinformation and disinformation related to the COVID-19 pandemic. Licensed physicians, doctors, and surgeons possess a high degree of public trust and therefore must be held accountable for the information they spread. Providing patients with accurate, science-based information on the pandemic and COVID-19 vaccinations is imperative to protecting public health. By passing this legislation, California will show its unwavering support for a scientifically informed populous to protect ourselves from COVID-19.”

The legislation passed the Senate by a vote of 32-8 and the Assembly by a vote of 56-20 and has been sent to Governor Newsom’s desk.