Should states be allowed to force a company to share its vaccine sales and profit information?

By David Jackson, Research Associate at Kaiser Family Foundation On Saturday, October 13th, the high court will hear oral arguments over a lower court ruling that says states can’t require vendors such as L.P….

By David Jackson, Research Associate at Kaiser Family Foundation

On Saturday, October 13th, the high court will hear oral arguments over a lower court ruling that says states can’t require vendors such as L.P. Rentals to disclose what vaccines they are carrying on their behalf. The case is called Rentals v. de Saeta, and its outcome has significant implications for consumers and government employers alike. Here’s what FedEx CEO Fred Smith said at the American Enterprise Institute earlier this year about the prospects of such a ruling and the impact on free speech:

And in [this] case, if the court rules that this is illegal, [it] has implications, I believe, for the whole economy because the people who supply vaccines in the United States, because the public employers, like state employees and local jurisdictions, are required to inform everybody that there is a vaccine that is for immunization, if they supply it. But they can’t tell anyone what vaccine is going in.

All of this stems from a 2013 complaint filed against L.P. Rentals by the National Organization for Women. The complaint alleges that the company engaged in the commercial sale of vaccines without complying with required disclosure provisions. Ultimately, a New York State Court of Appeals found in favor of N.O.W.

This decision turned the tables on the seller, not the buyer. In N.O.W. v. Rentals, the court held that the state has no interest in monitoring the movement of vaccine into homes to ensure it was being used as directed. (This issue first arose in the 1970s and was first settled by a landmark 7-4 decision in North Carolina v. North Green Tree.) In N.O.W. v. Rentals, the court argued that it was a “courtesy” for state employees to inform their community of vaccination schedules, but ultimately determined that this level of government-imposed communication was not necessary to ensure the “safety and integrity” of the system.

The N.O.W. decision that the state couldn’t ask for such monitoring has the potential to exacerbate other issues, which are currently being discussed in both Congress and the Supreme Court. The appeals court made a key mistake: it did not appreciate the importance of consent to vaccination for individual users and public institutions. These institutions need to be protected from information disclosures—like that of contracted vaccines—that could endanger public health. By requiring informed consent, these institutions can reduce the risks associated with vaccine-preventable disease. But the decision doesn’t require an informed consent form but just a real-time (or near real-time) statement of protected information such as vaccine-preventable diseases, which is not sufficient.

One need not agree with the current debate about whether vaccination is safe, and even the highest courts have repeatedly affirmed that it is. But informed consent is critical to public health. If a business claims that it is not subject to public disclosure provisions that require this information, the legitimacy of the system at large will be diminished. Government entities must be aware of this conflict, which is why states already require vaccinations and inform people that vaccines exist and are available. The court also did not address the market, which is where private parties and individuals are acting.

And civil society also faces challenges. Because everyone deals with the government’s provider of vaccination resources, those who receive vaccines are subject to the system. Civil society organizations already struggle with access to adequate care, and this adds to their problem. If N.O.W. v. Rentals is upheld, we will see a system of information asymmetry—small groups of government employees providing the information while for-profit companies are not held to the same standards. This creates a situation where some people know whether they are being vaccinated while others may not.

Bidding for voter registration isn’t cheap. This campaign costs over $10,000, and the government has a less than ideal alternative: postcards. Public interest concerns about affordable access to information informed medical decisions take precedence over drug companies’ desire to retain information that would directly benefit their business model.

This case is important for the health of our nation. The court should reverse this decision, and we should speak up to urge the courts to do so. As long as information is withheld, ignorance is a strength.

David Jackson is a Research Associate at the Kaiser Family Foundation.

Leave a Comment