Gloved hand grabs beaker with rolled currency.

Leverage COVID-19 Frameworks to Prepare for the Next Pandemic

By Matthew Bauer

How should scientists, policy makers, and governments balance efforts to address the current pandemic with initiatives to prevent the next one?

We have seen this play out before during the 2003 SARS crisis. A burst of research funding and resources were thrown at tackling the health emergency that spread to 29 different countries. Ultimately, enormous efforts across the globe were able to halt the crisis, but as scientific research continued post-outbreak, it became difficult to sustain funding.

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FRAND Terms for Pandemic-essential Intellectual Property Rights

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Kaat Van Delm

Our international norms are arguably ill adapted to emergencies such as pandemics. In this contribution I discuss a potential remedy for one related challenge, namely, cooperation amongst competitors for the accelerated development of vaccines. A way to foster cooperation could be the use of fair, reasonable and non-discriminatory (“FRAND”) terms to the licensing of pandemic-essential intellectual property rights (IPR). Specifically, states could make participation in public procurement for vaccines by pharmaceutical companies conditional upon accepting FRAND terms for their IPR relevant for vaccine development. I do not suggest changes to the existing rules for allocation of IPR. Rather, I attempt to explore an acceptable limitation of such rights in case of a pandemic. 

Transposing the concept of FRAND terms from standardization to the licensing of pandemic-essential IPR has potential because of the concept’s flexibility. FRAND terms do not require commitment to specific royalties in advance, therefore leaving room for considering new information such as the monetary value of the IPR concerned or the severity of the health crisis.

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Scales of justice and gavel on table.

Limiting Human Rights During Pandemics: Recommendations for Closing Reporting Gaps and Increasing International Oversight

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Cassandra Emmons

Sovereign governments have the prerogative to declare states of emergency when sudden, unanticipated events threaten the lives of the nation and its people. In so doing, government decrees sometimes must contradict other international human rights commitments, balancing the individual versus the collective. Established derogation procedures are supposed to ensure such restrictions are proportionate, non-discriminatory, and last only as long as necessary (for an overview, see Emmons 2020). COVID-19 has proven that public health emergencies are not equally recognized in either international law or national constitutions; some international treaties permit “limiting” rights in the name of public health rather than requiring derogation, and nationally some governments authorize emergency measures in practice without ever doing so in name. These parallel processes and conceptual gaps create space for governments to restrict individuals’ rights with little to no international accountability during pandemics.

In this piece, I recommend a new international instrument on pandemic response be explicit about reporting requirements when governments suspend rights during such emergencies. These suggestions incorporate advice from the American Association for the International Commission of Jurists’ Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1985), the International Law Association’s Queensland Guidelines for Bodies Monitoring Respect for Human Rights during States of Emergency (1990), case law of the European Court of Human Rights (ECtHR), and learned experience from the COVID-19 pandemic.

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Chicago, IL, USA - October 18 2021: BinaxNOW Covid-19 Antigen Self Test. Results in 15 minutes at home.

The Devil is in the Details with Biden’s Free COVID Testing Plan

By David A. Simon

Yesterday, President Biden announced a new requirement that private insurers must reimburse purchases of at-home COVID-19 tests.

This represents a significant departure from current policy, which only requires insurance companies to pay for testing at the direction of a healthcare provider. The new policy has yet to take effect — the Department of Health and Human Services (HHS) will release formal guidance for private insurers by January 15th.

Removing the need for clinician approval to access free COVID-19 testing is a noteworthy step; however, the new policy raises a host of questions that remain to be addressed, which are discussed briefly below.

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Phone with social media icons - instagram, facebook, and twitter.

Regulating Out of the Social Media Health Crisis

By Bailey Kennedy

If something changes the pathways in our brains and damages our health — and if it does so to Americans on a vast scale — it should be regulated as a threat to public health.

It’s time for our regulators to acknowledge that social media fits this description.

Social media poses an active health threat to many of its users, in a way that is akin to other regulated substances: it has been tied to a variety of harmful health outcomes, including depression. It has also become increasingly clear that social media can be addictive.

Even if it is a behavioral rather than a substantive addiction, with only indirect links to physical health, the high number of Americans who exhibit some degree of social media addiction is concerning.

Inasmuch as social media presents us with a public health crisis, the American government should consider potential regulatory steps to address it.

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David Tolley headshot

Meet David Tolley, Petrie-Flom Center Advisory Board Member

The Petrie-Flom Center is excited to welcome David Tolley to our Advisory Board!

Tolley is a Partner at Latham & Watkins LLP and is the chair of the Litigation & Trial Department for the firm’s Boston office. He represents health care organizations in high stakes matters, including government investigations and litigation. Tolley has also worked on pro bono litigation with the Center for Health Law Policy Innovation at Harvard Law School to help secure access to life-saving therapies for people with hepatitis C.

To learn more about the depth of experience that Tolley will bring to the Advisory Board, we asked him a few questions about his background and current areas of practice. The interview, which has been edited and condensed, follows.

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Close up of a Doctor making a vaccination in the shoulder of patient.

The CMS Vaccine Mandate: The Nationwide Injunction and What It Means

By Kaitlynn Milvert

On November 30, 2021, a federal district court issued a nationwide preliminary injunction to block the Centers for Medicare and Medicaid Services (CMS) vaccine requirements for health care workers.

This ruling comes mere days before the December 6 deadline for employees of CMS-funded facilities to receive their first dose of a COVID-19 vaccine, and it casts uncertainty over upcoming deadlines for vaccination compliance.

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Call from unknown number on iPhone.

The Surprising Shape of COVID Fraud

By James Toomey

When the world went into lockdown in March 2020, many commentators noticed that social isolation could offer scammers an unprecedented opportunity to take advantage of people’s fear and loneliness. But they didn’t anticipate that fraud would generally affect a range of age groups. Indeed, much like the virus itself, the risks of frauds and scams related to the COVID pandemic were thought primarily to affect older adults.

This assumption seems to have been wrong. Recently, I conducted a study on the prevalence of scam-victimization during the pandemic across age groups. Specifically, I recruited two populations — one of adults between 25 and 35 and one of adults over than 65—and asked whether they had been contacted by people making specific fraudulent promises during the pandemic, and whether they’d engaged with the scammer by giving personal information, sending money, or clicking a link. In the study populations, the younger group engaged with scammers three times more frequently than the older group — a disparity that was statistically significant and persisted regardless of how I sliced the data.

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Vaccines.

Promote Trust, Avoid Fraud: Lessons in Public Health Messaging from the Booster Roll Out

By Carmel Shachar

Even in September 2021, it was fairly clear that boosters for all adults, regardless of risk factors or which vaccines they initially received, would be coming soon.

Indeed, within two months, the U.S. Centers for Disease Control and Prevention (CDC) revised its recommendations to say that all vaccinated adults should receive a COVID-19 booster.

Unfortunately, the discrepancy between past messaging, which restricted access to boosters to select groups, and the current, broad recommendation has spawned two, related public health communications problems.

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Vial and syringe.

Causes of COVID Vaccine Hesitancy

By Jasper L. Tran

Vaccinated individuals — like Tolstoy’s happy families — are all alike; each unvaccinated individual is hesitant for her own reason.

Prior research conducted in developed countries reveals five main individual-level determinants of pre-COVID vaccine hesitancy (commonly referred to as the 5 C model drivers of vaccine hesitancy): (1) Confidence (trust in vaccine’s effectiveness and safety, vaccine administrators and their motives); (2) Complacency (perceiving infection risks as low and vaccination as unnecessary); (3) Convenience / Constraints (structural or psychological barriers to converting vaccination intentions into vaccine uptake); (4) Risk Calculation (perceiving higher risks related to vaccination than the infection itself); and (5) Collective Responsibility (willingness to vaccinate to protect others through herd immunity).

COVID-19 vaccines see these five hesitancy determinants again, only further exacerbated by waves of misinformation promulgated on social media, including through “bot” accounts, that prey on the concerns and insecurities of an already vulnerable public.

On the one hand, irrational and unreasonable conspiracy theories about COVID-19 and its vaccine abound among the anti-vaxxers — a subgroup of science deniers. These conspiracy theories include:

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