By Carter Cordura

On June 1, 2022, in a letter to Assemblymember Low, the Medical Board of California (MBC) took a stance on AB 2098 (Low), stating it would “support if amended.”  After its amendment on April 20, 2022, the bill largely reflected MBC’s desired changes. Governor Gavin Newsom signed AB 2098 into law on September 30, 2022 (Chapter 938, Statutes of 2022).

AB 2098 expressly provides that the dissemination of misinformation or disinformation related to COVID-19 by physicians and surgeons constitutes unprofessional conduct.  The law targets three types of false or misleading information relating to the COVID-19 pandemic: nonfactual information regarding “the nature and risks of the virus”; false statements regarding its “prevention and treatment”; and misinformation or disinformation regarding “the development, safety, and effectiveness of COVID-19 vaccines.”

MBC is required to take action against any licensed physician and surgeon charged with unprofessional conduct.  Thus, the law extends MBC’s obligation to COVID-19 misinformation cases.

The following statutory term definitions apply:

• “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.
• “Disinformation” means misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.

AB 2098 will make it easier for MBC to punish doctors who deliberately spread false information about COVID-19 and its treatments.  The California Medical Association (CMA) and ProtectUS are co-sponsors of the bill.  CMA supports the bill to protect against physicians who spread disinformation. ProtectUS supports the bill because physicians who choose to spread misinformation disproportionately affect the lives of the most vulnerable (i.e., the “sick”).

Opposition expressed concerns about the general “scientific consensus” terminology and the potential physician speech curtailment that could occur under it. Voice for Choice Advocacy opposes the bill arguing MBC already has measures in place to discipline physicians who maliciously spread misinformation. Further, it believes AB 2098 is overly broad and will be impossible to implement. Californians for Good Governance opposes the bill because it is an unconstitutional restriction on free speech; it is not narrowly tailored to serve the compelling state interest of providing the public with accurate information about COVID-19.

On October 4, 2022, plaintiffs Mark McDonald and Jeff Barke, physicians licensed in California, filed a complaint against members of MBC and Attorney General Rob Bonta (McDonald, et al. v. Kristina D. Lawson, et al., Case No. 8:22-cv-01805 (C.D. Cal.)). The complaint seeks declaratory and injunctive relief for violations of first amendment rights.  Plaintiffs state that AB 2098, “chills the protected speech of medical professionals on the basis of viewpoint.” Further, plaintiffs state that AB 2098 imposes a government mandate to espouse only those ideas that the state deems acceptable.

In addition, plaintiffs allege that the bill, in violation of the Fourteenth Amendment, “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.”