The following is from Children’s Health Defense.

California lawmakers have passed a new law that allows the state to make its own vaccine recommendations — independent of the Centers for Disease Control and Prevention (CDC) — while shielding vaccine providers from liability if someone is injured.

In September, Gov. Gavin Newsom signed Assembly Bill 144 (AB 144), granting the California Dept. of Public Health authority to issue vaccine recommendations even when they differ from those of the CDC. Under the law, healthcare workers and other vaccine providers “shall not be liable” for injuries caused by vaccines recommended by the state, except in cases of willful misconduct or gross negligence.

Legal experts say the law raises serious constitutional and legal concerns, particularly for people injured by vaccines recommended by California but not universally recommended by the CDC.

Attorney Rita Barnett-Rose said individuals injured by CDC-recommended vaccines may seek compensation through the National Vaccine Injury Compensation Program (VICP). However, she said that pathway may not exist for people injured by vaccines recommended only by California.

“The result is a system in which those who administer state-preferred vaccines are protected from liability, while children injured by those recommendations may be left without access to either federal compensation or traditional state tort remedies.”
— Rita Barnett-Rose, attorney

Barnett-Rose noted that California’s law does not create an alternative compensation system for families whose children are injured. As a result, those individuals could be left without any meaningful legal recourse.

Federal law already provides liability protections for vaccine manufacturers and administrators in certain circumstances. The National Childhood Vaccine Injury Act of 1986 shields manufacturers from most lawsuits related to vaccines on the CDC’s childhood schedule, while the PREP Act protects manufacturers and providers of vaccines authorized during public health emergencies, including Covid vaccines.

Vaccine injury claims under the PREP Act fall under the Countermeasures Injury Compensation Program (CICP), which critics say is far more difficult to navigate than VICP.

Some attorneys disagree that AB 144 conflicts with federal law. Ray Flores, senior outside counsel for Children’s Health Defense, said the law protects only vaccine providers — not manufacturers — and does not contradict existing federal programs.

“AB 144 doesn’t cover manufacturers. AB 144 only protects vaccine providers.”
— Ray Flores, attorney, Children’s Health Defense

Wayne Rohde, an expert on vaccine injury compensation, said states have always had the ability to diverge from CDC recommendations and that AB 144 may be largely symbolic.

“The CDC only recommends. The CDC never mandates.”
— Wayne Rohde, author, The Vaccine Court

Still, Barnett-Rose warned that AB 144 could create widening legal gaps as federal vaccine recommendations evolve. She pointed to the hepatitis B vaccine as an example, noting that if California continues recommending vaccines no longer included in federal schedules, injured individuals may lose access to both federal compensation and state-level legal remedies.

“Due process principles prohibit the state from abolishing long-recognized rights of recovery without preserving some meaningful avenue through which injured individuals may seek compensation.”
— Rita Barnett-Rose

Legal experts say the law could face future challenges in state or federal court, particularly under the Constitution’s Supremacy Clause and due process protections. Some predict courts may ultimately be forced to resolve conflicts created by states issuing independent vaccine recommendations without corresponding injury protections.

For more information, read the full article here.