An Examination Of The Legal Framework Of Vaccination Law In Light Of The Recent Measles Outbreak


In the past month, there have reportedly been at least 92 measles cases, which is odd considering the disease was “eliminated” in the United States in 2000.  Because most of us do not have direct experience with measles, a refresher is in order.

According to the CDC:

Measles is a highly contagious virus that lives in the nose and throat mucus of an infected person. It can spread to others through coughing and sneezing. Also, measles virus can live for up to two hours on a surface or in an airspace where the infected person coughed or sneezed. If other people breathe the contaminated air or touch the infected surface, then touch their eyes, noses, or mouths, they can become infected. Measles is so contagious that if one person has it, 90% of the people close to that person who are not immune will also become infected.

To prevent this nasty disease, the CDC recommends a measles vaccine, which according to the CDC, is 97 percent effective at preventing the disease.  In fact, every state requires a measles vaccination unless an individual meets certain state-specific exemptions.  For example, in California, an individual may opt out of the vaccination requirement based on personal beliefs or medical reasons.  However, in Mississippi and West Virginia, an individual may only opt out for medical reasons, such as a weakened immune system.  Due in part to vaccination laws, about 94.7 percent of kindergartners were vaccinated against measles last year, again according to the CDC.

Like any drug, there are occasionally adverse side effects of vaccines.  To compensate individuals injured by vaccines, Congress set up a no-fault compensation system, the National Vaccine Injury Compensation Program (NVICP), via the National Childhood Vaccine Injury Act of 1986 (NCVIA).  The NVICP is funded by a 75 cent per vaccination tax.  NVICP claims are filed with the U.S. Court of Claims, and reportedly, the Court of Claims had awarded nearly $2.5 billion to vaccine victims for vaccine injuries.  However, two out of three NVICP applicants are denied compensation.  Until 2011, it was unclear what, if any, remedy individuals had apart from the NVICP.

In 2011, the Supreme Court clarified the issue and effectively ended vaccine litigation. Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011).  After the Bruesewitz family’s NVICP application was denied, they pursued relief against a vaccine manufacturer in the U.S. District Court for the Eastern District of Pennsylvania.  The trial court granted summary judgment based on federal preemption, and the Third Circuit affirmed.  In a 6-2 decision (Justice Sotomayor recused herself due to her pro-vaccine work with the Obama administration), the Supreme Court affirmed, holding that private causes of action against vaccine manufacturers for vaccine injuries were preempted by the NVCIA.  That is, the exclusive remedy for someone injured by a vaccine is the NVICP.  So, the debate over whether a private right of action against a vaccine manufacturer for vaccine injury was settled in 2011.

The recent debate sparked by the measles outbreak concerns parents’ decisions to not vaccinate their children based on an applicable exemption.  On one side of the debate, you have parents who, for various reasons (fear of side effects, religion, et cetera), choose not to have their children vaccinated.  On the other side of the debate, you have the argument that the non-vaccination decision of these parents endangers those with weakened immune systems, those who for whatever reason the vaccine did not take (approximately 3 percent of people can still get measles even after receiving the vaccination).  This author declines the opportunity to side with either group in this post.  However, it will be interesting to see what litigation evolves out of the debate.

The Art of War, Pomegranate Style, in The U.S. Supreme Court

Sun Tzu wrote: “All warfare is based on deception.”  In addition to the art of war, this sentiment reaches far into the world of consumer advertising, as well.  With recent mega-decisions coming from the United States Supreme Court, most notably the Hobby Lobby decision, we here at Abnormal Use overlooked a recent deceptive advertising decision of the Supremes.  As reported by Sam Hananel of the Associated Press and The Huffington Post, the Big Nine (err, Big Eight in this instance as Justice Breyer warmed the bench this go-round) ruled in June that juice maker Pom Wonderful can proceed with its lawsuit against the Coca-Cola Co. and its version of pomegranate juice.  See POM Wonderful LLC v. The Coca Cola Company, — U.S. — (June 14, 2014). The lawsuit alleged that the label on Coke’s “Pomegranate Blueberry Flavored Blend of 5 Juices” beverage of its Minute Maid line was somehow misleading to consumers.  Why? Well, Pom alleges that 99 percent of the pomegranate blueberry concoction is actually apple and grape juice.

Justice Kennedy, author of the 8-0 decision, focused on the Coke juice’s actual pomegranate and blueberry content, .3 percent and .2 percent, respectively, despite the drink’s potentially misleading label, which showed the words “Pomegranate Blueberry” in much larger typeface than the rest of the drink’s official name and included a large pomegranate graphic set among other small fruits.  Previously, the lower courts had sided with Coke, finding that the drink’s label conformed to the FDA’s rules and the law.  In a refusal to elevate form over substance, Justice Kennedy conceded that the juice may comply with FDA rules but rejected the notion that technical compliance with the FDA absolves a company from potential liability where a label may mislead consumers for different reasons.

In this instance, Justice Kennedy noted that Pom was not precluded from suing Coke under the Lanham Act for unfair competition based on false or misleading claims.

Representatives of Coke vowed to continue to fight the lawsuit against Pom now that the Supreme Court has permitted it to go forward.

But what are the larger ramifications of the ruling?  It appears the decision presents the distinct possibility that a company may have increased exposure to private litigation for deceptive labeling, despite its compliance with FDA rules and regulations.

No Matter What You Think of Scalia’s Opinions, This Guy Thinks They’re Musical

As a Justice of the Supreme Court, Antonin Scalia (or, more pointedly, his opinions) are a polarizing force.  Although gruff and cantankerous from the bench, he’s apparently not such a bad guy outside the courtroom.  After all, we’ve heard reports of hunting trips with Justice Kagan, and it’s been reported that he has eaten New Year’s Eve dinner with Justice Ginsburg since 1982.  Apparently, he’s the funniest Justice, too, eliciting more laughter with his comments than any other, according to Boston University law Prof. Jay Wexler.

Justices Scalia and Ginsburg also share a love of opera, as reported by U.S. News & World Report in a 2007 piece:

An opera aficionado, Scalia, along with fellow Justice Ruth Bader Ginsburg, appeared as an extra in a 1994 production of Richard Strauss’s Ariadne auf Naxos. Scalia appeared onstage for about an hour and a half during the second act in a costume first worn by Plácido Domingo during the world première of Goya in 1986.

Well, apparently, the opera connection doesn’t end there.  According to NPR’s Nina Totenberg, and reported on NPR, a new opera about these two legal heavyweights has been completed.  The composer, Derrick Wang, is a new graduate of the University of Maryland’s Carey School of Law, who heard music in the opinions and dissents:

I realized this is the most dramatic thing I’ve ever read in law school … and I started to hear music — a rage aria about the Constitution,” Wang said. “And then, in the midst of this roiling rhetoric, counterpoint, as Justice Ginsburg’s words appeared to me — a beacon of lyricism with a steely strength and a fervent conviction all their own. And I said to myself, ‘This is an opera.’

Well, the opera is finished, and Justices Scalia and Ginsburg got a preview last month at the Supreme Court, the day after the Court’s term ended.  No news yet on whether it will be performed elsewhere, but in our opinion, the highest court isn’t exactly community theater.