There’s a battle raging in California over physician freedom of speech, and the outcome has national implications. At issue is Assembly Bill No. 2098 (AB 2098)—a new California law aimed at stopping the spread of COVID-19 “misinformation” and “disinformation.” AB 2098 passed the California legislature last summer and was signed by Governor Gavin Newsom in September. It deputizes the state’s medical and osteopathic boards to take disciplinary action—including revocation of licenses—against MDs and DOs who spread what the bill defines as COVID-related mis- or disinformation.

The bill designates dissemination of misinformation or disinformation related to COVID-19 as “unprofessional conduct,” and points to prior statutes giving the state’s boards the power to “take action against any licensed physician and surgeon who is charged with unprofessional conduct.”

This is clearly intended to target doctors who question or criticize federal and state vaccine policies. AB 2098 states: “The safety and efficacy of COVID-19 vaccines have been confirmed through evaluation by the federal Food and Drug Administration (FDA),” and that “The spread of misinformation and disinformation about COVID-19 vaccines has weakened public confidence and placed lives at serious risk.”

But it is based on a very broad definition of misinformation that could be interpreted to include any modality that contradicts “scientific consensus” or falls outside current “standards of care.”  Consequently, AB 2098 has ramifications far beyond California, and far beyond COVID.

Other states including Colorado, Washington, and New Mexico, are considering bills similar in intention and design. So far, none have progressed as far as California’s, which passed the state’s senate by 32-8, and the state assembly by 56-20.

A Significant Victory

Advocates for medical freedom of speech won a significant, if limited, victory in late January when Senior U.S. District Judge William Shubb issued a preliminary injunction that hinders the implementation of California’s law.

Shubb’s decision came in response to two lawsuits that were among several cases challenging the constitutionality of AB 2098. The injunction stops the state—at least temporarily—from taking further disciplinary action against the doctors named in the suit, as well as physician members of two organizations also named as plaintiffs: Physicians for Informed Consent (PIC) and Robert F. Kennedy Jr.’s Children’s Health Defense (CHD).

But in a separate case in a different district, Judge Fred Slaughter denied a preliminary injunction on the same statute.

Beyond COVID-19, Beyond California

At this point, you may be thinking, “I’m a busy natural products executive. Why should I be worried about some local law that really only affects anti-vax doctors in wacko California?”

There are several reasons to be concerned.

For one, if allowed to stand, AB 2098 sets a troubling precedent for anything outside the relatively narrow scope of conventional medical consensus. Many, if not most therapies and products used routinely by holistic and functional medicine physicians—including herbs and nutraceuticals—fall outside the bounds of conventional practice standards.

If AB 2098 or similar statutes in other states are to be enforced, then physicians who discuss non-pharma options with patients could potentially run afoul of their state boards and be subject to disciplinary action.

Even something relatively simple and benign as a vitamin D recommendation for immune support could potentially be construed as “misinformation” under the standards set by AB 2098. The California law may not be specifically intended to punish practitioners who recommend supplements, but that could be an unintended consequence.

Secondly, there is a significant overlap between practitioners who question COVID-19 vaccines, and those who recommend a lot of supplements and nutrition-based therapies. Regulators could use advocacy of supplements as a red flag signaling that a practitioner warrants closer scrutiny. The law may be intended to curb COVID-specific misinformation, but it sets precedents that could potentially be applied more broadly.

Thirdly, AB 2098 and other laws like it are likely to have a squelching effect on practitioner-patient communications. If doctors fear they could lose their licenses simply for informing patients about non-conventional alternatives, they are much less likely to have such discussions.

Obviously, that could have a negative impact on companies that depend on practitioner referrals to drive sales.

But it also has broader civil liberties implications. As patients, we rely on medical practitioners for guidance and insight based on their clinical experience and their understanding of the science. At least that’s how it’s supposed to be. If doctors do not feel free to discuss all options and share their perspectives, we all suffer.

Even if one agrees that misinformation is a serious threat to public wellbeing and that it needs to be curtailed, the use of “scientific consensus” as the sole measure of whether something is or is not “misinformation” should strike you as highly problematic.

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“Would the medical boards responsible for enforcing consensus and punishing misinformation under a law like AB 2098 be able to keep up with the quick changes in scientific opinion? Should physicians who are early adopters of a viewpoint that later becomes ‘consensus’ be punished for their forward thinking?”

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‘Consensus’ Can Change

“The most obvious problem with AB 2098 is the bill’s assumption that a term like ‘scientific consensus’ is a specific enough guideline for tracking and punishing misinformation by medical professionals. This is a particular problem for topics relating to COVID-19; there may be consensus in a rough sense, but the finer details often remain contentious,” wrote Zach Caverley, PA, a physician assistant specializing in cardiology.

In a well-reasoned article in City Journal, a leading publication on urban planning and policy, Caverley noted that, “Scientific ‘consensus’ is an ever-shifting designation,” one that can change suddenly.

“A scientific consensus can be overturned abruptly by new evidence of better quality. A daily aspirin was a mainstay of heart-attack prevention for decades, until an update by the US Preventive Service Task Force advised that the overall benefit of this practice was negligible. The USPSTF also updated the age guidelines for breast-cancer screening—a move that professional societies hotly contested even after the printing of the final recommendations in 2016.”

Would the medical boards responsible for enforcing consensus and punishing misinformation under a law like AB 2098 be able to keep up with the quick changes in scientific opinion? Should physicians who are early adopters of a viewpoint that later becomes “consensus” be punished for their forward thinking?

Critics of AB 2098 contend that the answer to both questions is clearly “No.” Judge Shubb, presiding over the Eastern District of California, strongly agreed.

“The provision is unconstitutionally vague,” Judge Shubb stated when issuing a preliminary injunction to AB 2098 in January. Shubb’s move will prevent the state from moving forward with disciplinary action against several California physicians who had been designated under the law as spreaders of misinformation.

“Because COVID-19 is such a new and evolving area of scientific study, it may be hard to determine which scientific conclusions are ‘false’ at a given point in time.”

Constitutional Challenges

There are at least four lawsuits challenging the constitutionality of AB 2098.

In one case (Høeg, et al. v. Newsom, et al.), five licensed California physicians, with the support of The New Civil Liberties Alliance—a non-profit group that views “the administrative state” as a threat to constitutional freedoms—sued California’s governor and representatives of California’s medical boards, contending that AB 2098 violates their First Amendment rights to free speech, and their Fourteenth Amendment rights to due process under the law.

In a separate suit (Hoang v. Bonta), osteopath Letrinh Hoang, DO—along with Physicians for Informed Consent and Children’s Health Defense—sued the state attorney general, Rob Bonta, and Osteopathic Medical Board head Erika Calderon, on First and Fifth Amendment grounds.

“The Board has no right to declare information false just because it is against the scientific consensus and the ‘standard of care,’” the Hoang complaint stated.

The suit also argued that patients have a constitutional right to hear information from physicians even if it is outside consensus viewpoints, and that physicians also have a constitutional right to recommend or prescribe off-label uses of various medications, so long as they duly inform patients about the FDA status of the treatments and the fact that the recommendations are outside consensus opinions.

In issuing his preliminary injunction, Shubb affirmed that the plaintiffs in the Hoang and Høeg cases have the standing to bring a legal challenge against AB 2098.

A Protracted Battle Ahead

Rick Jaffe, Esq, the attorney who represented Dr. Hoang, and who has argued other high-profile medical freedom cases, considers Shubb’s injunction to be a significant victory. But he said the legal battle over AB 2098 is likely to continue.

“I expect the AG’s office to appeal because Judge Slaughter in the Central District … denied a preliminary injunction on the same statute,” Jaffe noted. He expects that the state’s medical boards will seek out “some workarounds … to undercut the impact of Judge Shubb’s opinion.”

In a special webinar on the AB 2098 situation, sponsored by Holistic Primary Care and the United Natural Products Alliance (UNPA), Jaffe said he believes he was able to prevail in obtaining an injunction owing to an expert declaration by cardiologist Sanjay Verma, MD.

Verma, a spokesman for Physicians for Informed Consent, one of the plaintiffs in the Hoang case, provided a 40-page document chronicling the numerous and often sudden changes in scientific consensus across many areas of medicine over the decades. This helped convince Shubb that “contemporary scientific consensus” shouldn’t be the primary measure for defining “misinformation,” especially in a rapidly changing situation like the COVID-19 pandemic.

The Hoang and Høeg suits had the support of the American Civil Liberties Union, among other free speech groups. Two additional lawsuits challenging AB 2098 are pending before the Ninth Circuit Court of Appeals. 

It remains to be seen whether Newsom or the California attorney general will push for implementation of this controversial and politically-charged law.

Newsom has said little publicly about AB 2098, though in his official signing statement last fall, he acknowledged that he is “concerned about the chilling effect” a law like this could have on physicians.

Despite those concerns, he said he signed AB 2098 because he views it as “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.”

Clearly, many people disagree with Newsom’s assessment that this law is “narrowly tailored.”

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“Everyone in the natural products industry ought to pay close attention to what’s happening in California. It may not seem imminently threatening to your own life or business. But seen in the context of broader efforts to squelch dialog about non-prescription alternatives, and to limit the public’s access to supplements, the fight over AB 2098 is definitely cause for concern.”

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A National Agenda

The language of AB 2098 draws heavily from a July 2021 public statement from the Federation of State Medical Boards (FSMB) which posited that:

“Due to their specialized knowledge and training, licensed physicians possess a high degree of public trust and therefore have a powerful platform in society, whether they recognize it or not. They also have an ethical and professional responsibility to practice medicine in the best interests of their patients and must share information that is factual, scientifically grounded and consensus-driven for the betterment of public health. Spreading inaccurate COVID-19 vaccine information contradicts that responsibility, threatens to further erode public trust in the medical profession and puts all patients at risk.”

FSMB is a national oversight organization representing 71 state-level medical and osteopathic boards. It is a co-sponsor of the U.S. Medical Licensing Examination.

California Assemblymember Evan Low, the author of AB 2098, who represents the Silicon Valley, echoed FSMB’s words nearly verbatim in a public statement in support of the bill.

Further, in the way it equates mis- and disinformation with professional misconduct, AB 2098 has much in common with The Disinformation Dozen, a 2021 report issued by the UK-based Center for Countering Digital Hate. This document contended that 12 prominent online influencers—including several vaccine-critical physicians—are responsible for the majority of all anti-vax content on social media. 

The Disinformation Dozen report conflated COVID-19 misinformation with online hate-mongering, misogyny, racism, anti-LBGTQ attitudes, and promotion of anti-science views. The document served as the basis for a federal government attempt to coerce Facebook to block the accounts of those named in the report.

A Measure of Protection

According to Jaffe, Judge Shubb’s injunction provides protection—at least temporarily—for the physicians named in the Hoang and Høeg cases, as well as for physician members of PIC and CHD, the organizations named in the Hoang case.

In general, though, he stressed that physicians in California need to be very careful about what they say, and especially about what they post online pertaining to COVID, vaccines, off-label uses for prescription drugs, use of supplements, and other hot-button regulatory issues.

As written, AB 2098 only applies to MDs and DOs licensed in California. Jaffe said that for the moment, nurses, naturopaths, chiropractors, practitioners of oriental medicine, and other practitioner groups have a relative degree of safety—because they are not under the jurisdiction of California’s medical or osteopathic boards.

On one level, the fight over AB 2098 is a local issue. But it has significant national ramifications, especially given the agenda-setting role of the FSMB, and the fact that other states are considering similar laws.

Everyone in the natural products industry ought to pay close attention to what’s happening in California. It may not seem imminently threatening to your own life or business. But seen in the context of broader efforts to squelch dialog about non-prescription alternatives, and to limit the public’s access to supplements, the fight over AB 2098 is definitely cause for concern.

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About the Author: Erik Goldman is co-founder and editor of Holistic Primary Care: News for Health & Healing, a quarterly medical publication reaching about 60,000 physicians and other healthcare professionals nationwide.