Florida may create new way to sue vaccine makers for harm_GS

Someone who’s hurt by a vaccine could sue its manufacturer if the company has advertised the shot in Florida.

That’s the substance of a bill now under consideration by the Legislature, a proposal that critics say could restrict commercial speech under the First Amendment.

Commercial speech is a distinct category under the First Amendment, which protects speech used to sell products or services. It often involves advertising and marketing. But courts have determined that it can be restricted.

Lawmakers largely agreed that this year’s measure (HB 339) needed more work in defining harm and injury that leads to suing a manufacturer who advertises vaccines. In recent years, rare adverse events such as heart inflammation have been identified following COVID-19 mRNA vaccination, particularly among younger men.

Vaccine manufacturers generally have very limited exposure to civil lawsuits for injuries allegedly caused by their product because of federal liability protections and compensation programs. If passed, this bill would create a new civil legal route to file a lawsuit by tying it to advertising.

Its sponsor, state Rep. Monique Miller, R-Palm Bay, said she filed the measure in part to promote informed consent and ensure vaccine manufacturers are liable for harm. The bill does provide a three-year statute of limitations.

But some public testimony before the House Civil Justice & Claims Subcommittee on Feb. 11 highlighted concern over whether the bill played into the DeSantis administration’s efforts to roll back vaccine requirements amid a rising conservative movement against many childhood vaccinations.

“If they are (safe) and that harm is so rare, then what is the harm in standing by those products and saying we trust it enough that we’re willing to take on anything that comes out of it that’s harmful or debilitating to a patient?” Miller told the panel.

William Large, president of the Florida Justice Reform Institute, countered that people already can hold manufacturers liable for harm caused by vaccine under federal law.

“It is preempted by three federal acts, violates the First Amendment and is bad policy,” Large said. “This violates the First Amendment because it’s directly aimed at protected speech, which is commercial speech, in terms of advertising.”

Courts have determined, however, that commercial speech can be restricted if the government can demonstrate the speech is misleading, prove a “substantial interest” in regulating the speech and not be more strict than necessary, according to the Freedom Forum.

Miller said her bill was inspired by a similar measure approved in Texas last year, which also raised alarms. The Texas Civil Justice League wrote at the time that it creates “significant legal consequences for exercising First Amendment rights” in terms of commercial speech.

The measure passed the panel on a 12-4 vote; it has two more committees before reaching the House floor. A companion Senate bill (SB 408) also is pending two committees.

This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Stephany Matat is based in Tallahassee, Fla. She can be reached at SMatat@usatodayco.com. On X: @stephanymatat.