This article about Tucker Carlson recently trying to claim that the ACIP vaccine schedules are vaccine mandates was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about vaccination’s social and legal policies. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.
Contrary to claims circulating online in anti-vaccine circles and broadcast by Tucker Carlson, the Advisory Committee on Immunization Practices (ACIP)’s discussion of immunization schedules is not about mandating COVID-19 vaccines for school (that is not something ACIP can do). It is also not about removing liability for COVID-19 vaccines —manufacturers and providers of COVID-19 vaccines are already immune from liability under the Public Readiness and Emergency Preparedness Act (PREP).
The COVID-19 discussion is part of the CDC’s annual revision of its vaccine schedules to reflect what it already recommended during the year. It may be a step towards adding the vaccines to the more generous Vaccine Injury Compensation Program (and reducing the liability protections for manufacturers and providers), though even there, I’m not sure whether adding to the schedules changes the situation – the vaccines are already recommended. The discussion has nothing to do with school mandates.
What did Tucker Carlson say about vaccine mandates?
The Advisory Committee for Immunization Practices is a federal advisory committee that meets, in normal years, three times a year, in February, June, and October. During the COVID-19 pandemic, ACIP met substantially more often – at times, once a month, or even more. But the meeting around which the claims arose was a routine meeting – the October 19-20, 2022 meeting.
During the few days leading up to ACIP’s meeting, anti-vaccine activists, such as Tucker Carlson, have floated the claim that ACIP is going to discuss adding COVID-19 vaccines to the childhood schedule and that this would mean:
- That the vaccines would be required for school.
- That this would keep liability protections from vaccines, that would, they claim (falsely) would expire soon.
Neither claim is correct.
Unfortunately, as Orac documented on October 19, 2022, extreme claims that used to be limited to fringe anti-vaccine circles have, during the pandemic, been picked up by mainstream media. Specifically, Fox News commenter Tucker Carlson, who flirted with anti-vaccine misinformation even before the pandemic, has become a channel for laundering anti-vaccine misinformation into popular media, by repeating anti-vaccine tropes on his show. He did this again, claiming, in a tweet reflecting what he said on his show:
The CDC is about to add the Covid vaccine to the childhood immunization schedule, which would make the vax mandatory for kids to attend school.
How is the claim misleading?
ACIP and immunization schedules
The discussions misrepresent what ACIP is doing about immunization schedules. Every October, ACIP discusses the tables of immunization schedules. These discussions are not, generally, about adding or removing vaccine recommendations. Before recommending a vaccine, ACIP usually meets several times to discuss the evidence for a vaccine’s safety and efficacy, and the value of recommending it. These are detailed, hours-long, data-filled discussions that examine the vaccine from many angles. ACIP has already done those meetings for COVID-19 vaccines and boosters for both adults and children. It recommended them. Based on ACIP’s recommendations, the CDC already has interim tables summarizing the COVID-19 vaccine schedule that is recommended.
Here are screenshots of those.
CDC only displays the most current tables, from October 17, 2022, but they had previous versions.
So the discussion scheduled for October 20, 2022 is not asking whether to recommend COVID-19 vaccines to children and adults. That’s done. Dr. Kevin Ault, a former committee member, explained when I asked him to verify this, that “the schedules by definition don’t change already recommended vaccines, it is just a summary.”
This is also explained in the publications of the schedule. In the article summarizing the 2021 schedule discussions, the authors explain that “[t]he 2021 adult immunization schedule summarizes ACIP recommendations, including several changes from the 2020 immunization schedule..”
In fact, that article also says “In addition, ACIP approved an amendment to include COVID-19 vaccine recommendations in the child and adolescent and adult immunization schedules.” So voting to include COVID-19 vaccines in the table isn’t even new to this year, though it covered only the recommendations for 16 and up – the others came later. I understand it was never actually added, but the vote happened and nothing changed. Which makes the use of this as an anti-vaccine talking point even less reality-based .
The vaccine schedules discussions held every year in October are usually about communications and messaging. The schedule tables from CDC are long and complicated. Here is my summary of the October 2019 vaccine schedules discussion. There I explained that “[t]he discussion was not about setting or changing the schedule: it focused on making the very complex existing schedules readable.” I expect it to be the same this year.
The schedule is very complicated, and integrating COVID-19 vaccines should make it more complicated still. The audiences for these tables are two-fold. First, clinicians need to know which vaccines to recommend to whom and when in a complex vaccine schedule. And second, laypeople who want to figure out which vaccines they’re due. Making this accessible to the audiences is a lot of work, and I am grateful to the people who do it.
I consider myself an ACIP geek — I usually enjoy listening to the data-heavy discussions of vaccines, and I appreciate how carefully the committee looks and how closely they scrutinize the evidence. But these discussions? They tend to lose me because they are often about a specific word, the best way to put something for clarity, and while I know that this kind of editorializing is important, I’m happy to leave this to the people entrusted with getting this right. I do enough editing when I work with editors on my articles or read student papers.
Given the very technical, communications-focused nature of these discussions, suddenly having these regular October discussions become the focus of an internet controversy is very, very strange.
ACIP schedules do not create school mandates
Here, I will add a few caveats below. But I want to start with Orac’s well-put statement:
ACIP only advises—it’s right there in the name of the committee, “advisory”!—and cannot mandate anything. It is the individual states that determine which vaccines will be mandated for school attendance, not the CDC.
I will add that even the CDC director, who approves ACIP’s recommendations, cannot mandate.
The caveat is that states do – and they should – look to ACIP for guidance in deciding which vaccines to mandate. In fact, in a minority of states, the health department has the authority to add vaccines recommended by ACIP to what states choose to require for school.
But that does not mean that ACIP determines what states will mandate – it simply does not. States have the authority to go beyond the ACIP recommendations if they want (but most currently do not). No state currently mandates the full ACIP schedule. For example, no state requires annual influenza vaccines for grade school, even though ACIP recommends it annually, and only a minority of states require it for daycare or pre-K. Very few states require HPV vaccines.
Tucker Carlson, in a follow-up video, alleged that states follow the CDC vaccine schedule. But that’s not accurate. To look at his examples, Virginia, for example, does not fully follow the CDC schedule – for example, it does not require influenza. When it says “Vaccines must be administered in accordance with the harmonized schedule of the…,” the CDC does not require all recommended vaccines – and not all vaccines for all ages (e.g. rotavirus is only until 8 months).
Massachusetts, which he also mentions, if one downloads the “Immunization Requirements for School Entry” form from the link, does not require Hepatitis A, HPV, influenza, or HIB.
Tennessee does not require HPV, influenza, etc.
Note that these states – and the others he mentioned, New Jersey, Vermont, and Ohio – all also have easy-to-get exemptions from vaccines. But while they do take guidance from ACIP – and should – ACIP recommendations are not always adopted as school requirements. Certainly not automatically.
Further, the determinative question for states considering ACIP’s guidance here is whether the vaccine is recommended, not whether it’s on the table of the schedule, and whether the COVID-19 vaccines are already recommended.
So ACIP adding COVID-19 vaccines to the immunization tables, as it did in 2021, did not and would not mean a state mandated it. What could make a difference is if FDA licensed COVID-19 vaccines for children rather than left them, as they are now, under an emergency use authorization (EUA). And even then – the mandate question is a political one, and the question would be whether there is the political will – and the political drive – to add the COVID-19 vaccine to the schedule in that state. Personally, I doubt many states will. It feels like the will is not there. But that will be a different battle, and ACIP will not be involved.
Adding the vaccines to the schedule is irrelevant to liability
COVID-19 vaccines manufacturers, distributors, and providers – just like manufacturers, distributors, and providers of other pandemic-related products, this is not vaccine-specific – are currently not liable because they are under a Public Readiness and Emergency Preparedness (PREP) act declaration that limits liability. I explained this before.
But one thing people may have missed is that the PREP act declaration for COVID-19 products protects those it covers from liability until 2024 and that PREP act declarations are “different from, and not dependent on, other emergency declarations.” In other words, the PREP act declaration stays in place whether or not the more general COVID-19 emergency declaration is in place.
Liability under the PREP act is very, very limited. The only exception is willful misconduct, narrowly defined. It comes with a very narrow, hard-to-use compensation program.
CDC recommending the vaccines for children (as it has) can be a step toward moving COVID-19 vaccines from the PREP regime to the more generous regime of the Vaccine Injury Compensation Program, which has fewer liability protections for manufacturers and more generous compensation provisions. In other words, it could lead to more liability than now, and more compensation. But ACIP’s discussion of schedules will not, in my view, affect this either way.
First, the ACIP recommendation is not the only step towards moving the vaccines to VICP – there also needs to be an excise tax in federal law, and Congress needs to add that. But if Congress had the political will to move COVID-19 vaccines from the PREP regime to VICP, it would not need to wait for ACIP. It could just do it. It does not seem to have that will, and I do not see an ACIP vote affecting that.
Second, and here I’m on shakier grounds, I think the determinative step for ACIP is recommending the vaccines – not discussing whether and how to put them on the immunization schedules to communicate the recommendation. ACIP already recommended the vaccines. Discussing how to write and format the schedule would not change that.
If there is something more meaningful about discussing the vaccine schedule tables than I raised here, I am curious to know what it is. Because I do not see it.
On October 20, 2022 – probably the day this post will go up – ACIP is planning to discuss its immunization schedule tables, as part of an annual process to update according to what was already recommended during the year, and make them accessible to clinicians and lay people to use to know what vaccines to, respectively, recommend or get.
This is generally a discussion about communicating the schedule – the recommendations have already been made, and usually do not change during the discussion. It certainly has nothing to do with school mandates, nor should it affect liability protection.
Anti-vaccine activists are misrepresenting the discussion, and the fact that some media outlets fell for their claims is troubling (and should embarrass those outlets).