This decision (Hoeg v. Newsom, decided by Judge William Shubb) reaches a result different from that reached four weeks ago in McDonald v. Lawson. I'm on the run, but hope to blog more about this later.
UPDATE: Here's the heart of the opinion, which preliminarily enjoins the operation of the law, as to plaintiffs and their members, on the grounds that the law is unconstitutionally vague:
AB 2098, codified at Cal. Bus. & Prof. Code § 2270, took effect on January 1, 2023. The statute provides that "[i]t shall constitute unprofessional conduct for a physician and surgeon to disseminate 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 of COVID-19 vaccines."
The statute defines "misinformation" as "false information that is contradicted by contemporary scientific consensus contrary to the standard of care." The statute defines "disinformation" as "misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead."
The misinformation or disinformation must be conveyed "[by] the licensee to a patient under the licensee's care in the form of treatment or advice." Physicians and surgeons licensed by the Medical Board or the Osteopathic Board (the "Boards") are covered by the statute.
The Boards are tasked with enforcing AB 2098. The statute augments the definition of "unprofessional conduct," which is a pre-existing basis for disciplinary action by the Boards. Unprofessional conduct also includes, but is not limited to, "gross negligence," "repeated negligent acts," and "incompetence." …
"Contemporary Scientific Consensus"
[B]ased on the record before the court, it appears that the primary term at issue—"contemporary scientific consensus"—does not have an established technical meaning in the medical community. Physician plaintiffs provide declarations explaining that "scientific consensus" is a poorly defined concept. For example, Dr. Khatibi explains that there are different notions of scientific "consensus." These include "informal consensus," which refers to the general opinion of doctors, and "formal consensus," which refers to a process by which "a group of doctors with expertise in a particular topic come together to … discuss[] and debate the evidence around a topic," and "arrive at some conclusions for general patient care guidelines," which are then published. Expert declarant Dr. Verma also explains that the term "scientific consensus," as it has come to be used during the pandemic, often refers to the pronouncements of public health officials.
