RFK, Jr. hearing prompts reconsideration of civil, regulatory responsibility for vaccine misinformation

"Are you supportive of these onesies?" Sen. Sanders asks.
© C-SPAN (YouTube; license).

The showdown between Bernie Sanders and RFK, Jr., featuring anti-vacc onesies, got me thinking about articles published by a former student, later academic and bar colleague, positing tort and regulatory approaches to harmful vaccine misinformation.

I wrote in 2017 about physician-attorney Donald C. Arthur's Commercial Deception by Anti-Vaccine Homeopathic Websites: A Consumer Protection Approach, 10:1 Biotechnology & Pharmaceutical L. Rev. 1, 27 (2017). At the time, the article was behind a pay wall; it is now freely available.  Here is the abstract.

Some internet marketers offer for sale "vaccination substitutes" that can purportedly replace actual scientifically-tested and federally-approved vaccinations. Deceptive internet advertising for vaccine substitutes has dissuaded parents from vaccinating their children, resulting in a resurgence of vaccine-preventable childhood diseases. The Food and Drug Administration and Federal Trade Commission have the authority to address dangerously deceptive product claims, including those for homeopathic preparations that have thus far avoided safety and efficacy testing. This article presents the issues involved in deceptive advertising and proposes regulatory solutions.

When Dr. Arthur and I first discussed the project in the 2010s, he was thinking about a tort theory for liability for publishers of vaccine misinformation. The tort theory is fraught, but feasible. There are problems of proof, such as the attenuated causation linking the publication of misinformation with later disease, and the inevitable First Amendment defense, which at plaintiff's most fortunate still might require culpability in excess of ignorance.

Dr. Arthur split his research into two works. He published in 2016, I didn't mention in 2017, Negative Portrayal of Vaccines by Commercial Websites: Tortious Misrepresentation, 11:2 UMass L. Rev. 122 (2016), also freely available. Here is the abstract.

Commercial website publishers use false and misleading information to create distrust of vaccines by claiming vaccines are ineffective and contain contaminants that cause autism and other disorders. The misinformation has resulted in decreased childhood vaccination rates and imperiled the public by allowing resurgence of vaccine-preventable illnesses. This Article argues that tort liability attaches to publishers of commercial websites for foreseeable harm that results when websites dissuade parents from vaccinating their children in favor of purchasing alternative products offered for sale on the websites.

When Dr. Arthur wrote both these articles in 2016, it was before the first election of Donald Trump with attendant attempts to disarm and dismantle federal consumer protection systems. The tort theory looks better now. See Dorit Reiss & John Diamond, Tort Law: Liability for Anti-Vaccine Misinformation, 4 Judges Book 107 (2020) (not citing Arthur).

Dr. Arthur is an emergency medicine and preventive medicine physician.  He served 33 years in the U.S. Navy, culminating his career as Navy surgeon general and retiring at the rank of vice admiral. He served as chief executive officer of three hospitals, including the National Naval Medical Center in Bethesda, Maryland. Dr. Arthur teaches adjunct at UMass Law and for seven years practiced of counsel with the Law Offices of Beauregard, Burke and Franco.

HT @ Melissa Colten, UMass Law public interest fellow, whose curiosity reminded me of these articles.

Space law program reaps lessons from House Atreides

Luca Galuzzi via The Wildcat Tribune, Dougherty Valley High School, San Ramon, Cal. CC BY-SA 2.5

My friend and colleague Tracy Reynolds, Staff Judge Advocate to U.S. Naval Medical Forces Atlantic, will lead a fascinating Dune II-contemporaneous panel next week.

Zoom registration is open and free for Friday, March 29, at 12 noon US EDT.

International Humanitarian Law in Space:
Lessons Learned from the Fall of House Atreides

What can we learn about resource scarcity, insider threats, and over-reliance on technology from Frank Herbert's novel Dune and its recent film adaptation? How may these lessons be applied in outer space, on the Moon, or on Mars? Join the American Red Cross IHL Program as our panel of distinguished legal experts examine a wide range of issues, from great power competition on Arrakis to the conduct of hostilities between the Atreides, Harkonnen, and Fremen.

The panel comprises:

• CDR Tracy Reynolds, United States Navy JAG Corps
• David Kohnen, the Captain Tracy Barrett Kittredge Scholar of War Studies and Maritime History at the US Naval War College
• Michelle L.D. Hanlon, Co-Director of the Air and Space Law Program at the University of Mississippi School of Law and its Center for Air and Space Law
• Thomas Harper, Senior Counsel, International Humanitarian Law, American Red Cross National Headquarters
• Namrata Goswami, author of Scramble for the Skies The Great Power Competition to Control the Resources of Outer Space

The program is sponsored by the American Red Cross and supported by the Space Law Interest Group of the American Society of International Law.

Librarian Peltz-Steele joins Roger Williams Law

M. Peltz-Steele

I am overjoyed to announce that my wife, Misty Peltz-Steele, has joined the law library at Roger Williams University Law School, where she heads research services as associate law librarian for research and administration.

Before she joined RWU Law, Peltz-Steele (RWU, LinkedIn, SSRN) was assistant dean and assistant director of the UMass Law Library (where students distinguished her from her poorer half as "Dean Peltz-Steele"). Peltz-Steele holds a master's in library and information studies from the University of Rhode Island and a law degree from the University of Arkansas Little Rock. Before training for librarianship, she practiced as a legal services attorney and clerked for the public defender. A graduate of the U.S. Naval Academy, she served as an officer of the U.S. Navy and is a veteran of the Iraq War.

At Roger Williams, Peltz-Steele works alongside an alumna of my torts classes of whom I am especially proud, Brittany Raposa. Raposa serves RWU Law as associate director and professor of bar support.

Peltz-Steele is the proud parent of a film director and the magnanimous spouse of a blogger. She also makes a mean savory torte, pictured, in fact, at the top of this page.