Newspaper reports, including online versions, are particularly revealing because they provide more detail and often serve as the source for the shorter television and electronic news summaries by those Americans who regularly follow the news. Since most Americans get their news from the electronic sources, the potential for forming distorting perceptions is magnified.
3.
HamburgD., “Forward,” in R. E. Neustadt and H. Fineberg, The Epidemic That Never Was: Policy-Making and the Swine Flu Scare (New York: Vintage Books, 1983): At ix.
4.
NeustadtR. E.FinebergH., The Epidemic That Never Was: Policy-making and the Swine Flu Scare (New York: Vintage Books, 1983) at 127.
5.
Id., at 130.
6.
BarryJ., The Great Influenza: The Epic Story of the Deadliest Pandemic in History (New York: Penguin Books, 2004): At 461.
McKayB.SimpsonC., “Fighting Flu Without Big Gun: White House Pushes Hygiene Advice to Slow Spread of H1N1 in Absence of Vaccine,”Wall Street Journal, September 9, 2009, available at <http://online.wsj.com/article/SB125245538175894251.html>(last visited August 12, 2012).
For example, in May 2009, within a month of confirming evidence of the novel virus, the Centers for Disease Control and Prevention (CDC) held 21 open briefings or telebriefings on 19 separate dates.
McNeilD. G.Jr., “The Next Steps for Swine Flu: Predictions, Protection and Prevention,”New York Times, May 21, 2009, available at <http://www.nytimes.com/2009/05/22/health/22flu.html>(last visited August 3, 2012).
Interestingly, the New York Times blog on May 1 collected a variety of news reports under the heading “Blaming ‘Media Hype’ for Swine Flu Fears” noting that the media was fighting among itself over whether it was acting responsibly or sowing seeds of panic.
The National Vaccine Advisory Committee Teleconference Meeting: 2009 H1N1 Influenza Outbreak and Response, DHHS, Meeting Minutes, July 27, 2009, available at <http://www.hhs.gov/nvpo/nvac/minutes200907.html>(last visited August 14, 2012).
50.
Centers for Disease Control and Prevention (CDC), Press Conference on Recommendations for Use of Vaccine Against Novel Influenza A (H1N1), Press Briefing Transcripts, July 29, 2009, available at <http://www.cdc.gov/media/transcripts/2009/t090729b.htm>(last visited August 3, 2012) (emphasis added).
In a January 4, 2010 update on H1N1 developments, the New York Times identified Dr. Robinson as the “most overly optimistic” government official. It allowed him to explain that he had tried to be conservative by assuming a lower dose yield per egg than normal, but that he had not anticipated that “we had one of the poorest producing viruses in the last 50 years.” This after-the-fact story likely had little impact on the public's perception of government mismanagement.
President's Council of Advisors on Science and Technology, Report to the President on U.S. Preparations for 2009–H1N1 Influenza, August 7, 2009, available at <http://www.white*-house.gov/assets/documents/PCAST_H1N1_Report.pdf>(last visited August 16, 2012) at viii, 13–17. The report emphasized that its model scenario was “a possibility, not a prediction.”.
StenbergS., “Americans Are Getting Serious about Swine Flu,” USA Today,” available at <http://www.usatoday.com/news/health/2009-08-27-swineflu_N.htm>(last visited August 7, 2012). Similarly, the Harvard School of Public Health Poll found 49% of respondents were concerned, with 52% indicating that they would likely seek the vaccine.
Interestingly, while a September Fox News poll found that 64% were very or somewhat concerned, respondents were more afraid of someone in their family losing their job (55%) than of catching the swine flu (28%). Twelve percent were affraid of both. Fox News Poll-Opinion Dynamics, September 15–18, 2009, available at <http://www.foxnews.com/projects/pdf/092109_poll2.pdf>(last viewed August 15, 2012).
The difference between need and demand did not go unnoticed by reporters even if they did not make the distinction in most stories. For example, at a CDC press briefing on October 1, as the first doses became publically available, ABC newsman Brian Hartman inquired “…anecdotally, it seems like every medical professional I talk to says everybody should be getting a flu shot and every regular person I talk to either in my neighborhood or my office or in my family has serious concerns and questions about that. Are you tracking that?” Similarly, an Associated Press reporter asked the CDC spokesperson, who announced that in the two days since the government opened its vaccine order system 25 states or major metropolitan areas had ordered vaccine: “Why just 25?” Centers for Disease Control and Prevention (CDC), Weekly 2009 H1N1 Flu Media Briefing, Press Briefing Transcripts, October 1, 2009, <http://www.cdc.gov/media/transcripts/2009/t091001.htm>(last visited June 26, 2012).
In the CBS News poll 46% answered they would seek to be vaccinated. CBS News, “Getting Vaccinated against H1N1,”CBS News Poll, October 5–8, 2009, available at <www.poll*-ster.com/blogs/Oct09a-H1n1-Early%20Show.pdf>(last visited August 6, 2012).
76.
In the Marist poll the number was also 46%. Marist College Institute for Public Opinion, October 7–12, 2009, available at <http://maristpoll.marist.edu/tag/swine*-flu>(last visited August 6, 2012). In the AP-Gfk poll 52%, down from up 57% the previous month, responded that they were likely to seek the separate H1N1 vaccine for themselves.
Gallup-USA Today Poll conducted November6–8, 2009, report, available at <http://www.gallup.com/poll/124220/Parents-Unable-H1N1-Vaccine-Child.aspx>(last visited August 16, 2012) In the same poll, a similar number (62%) blamed the drug companies that produced the vaccine. Ironically, a Fox News Poll asking who “is more to blame for the vaccine shortage” found that 13% answered the Obama Administration while 55% said the vaccine companies; 6% answered both.
For example, while the national narrative focused on vaccine shortages the New York Times included a story in its N.Y./Region section about New York City parents opting out of vaccinating their children. MedinaJ., “City Parents Opting Out of Swine Flu Vaccine,”New York Times, October 28, 2009. available at <http://www.nytimes.com/2009/10/29/nyregion/29vaccine.html>(last visited August 15, 2012).
84.
Admittedly, some people may have refrained from trying to get the vaccine given the reports of shortages. In general, most polls showed that about half of those asked intended to get vaccinated. See supra, note 51.
85.
One notable example of potentially misleading media messaging is the reporting on the findings of Harvard School of Public Health poll on vaccine availability. Many stories focused on the November 6 headline announcing that “Poll Finds Two-thirds of Parents and High-Priority Adults Who Tried to Get H1N1 Vaccine Were Unable to Get It.” The shortfall appeared far more dramatic than the buried explanation that only 17% of adults actually “tried to get the H1N1.” In addition to those who posted or “tweeted” only the headline, some news stories failed even to bury an explanatory context. See, for example, UPI.com, “Health News: Poll: Many Can't Get H1N1 Vaccine,” November 9, 2009, available at <http://www.upi.com/Health_News/2009/11/09/Poll-Many-cant-get-H1N1-vac*-cine/UPI-63371257743410/>(last visited August 11, 2012).
86.
Although the government would “look better” if it had tried to distinguish demand from need, to its credit, it appeared less interested in self-promotion if it meant highlighting the public's reluctance to take the vaccine. By challenging the demand narrative, the government would be acknowledging that public fear was tempering demand and thus, potentially undermining its message that the vaccine offered the best protection against getting sick and infecting others. Department of Health and Human Services, “Flu.gov Prevention and Vaccination,” available at <http://www.flu.gov/prevention-vaccination/index.html>(last visited August 13, 2012).
MnookinS., The Panic Virus: The True Story of Medicine, Science and Fear (New York: Simon & Schuster, 2011).
90.
Arguably, the Obama Administration opened itself to potential criticism for overreaching by when it claimed its intention was to vaccinate a record number of Americans, including at least 100 million “first timers.” In articulating such an ambitious goal, officials ignored Neustadt and Fineberg's caution to avoid pronouncements that can undermine public confidence. See NeustadtFineberg, supra note 4, at 90–92. The inflated vaccine campaign goal together with the overpromise of vaccine production likely contributed to the failure narrative when the government met neither target.
91.
Not surprisingly, those who argued that the inevitable glitches should not detract from an overall favorable assessment of the government's response received less press attention. For example, William SchaffnerDr., professor and chairman of the department of preventive medicine at Vanderbilt University in Nashville, Tennessee, called the H1N1 vaccine a “success story,” and concluded that the production and distribution of the vaccine was “really quite astounding.”
92.
ZolerM. L., “H1N1 Vaccine Snags Highlight Limits of Egg-Based Production,”The Lancet, October 30, 2009, available at <http://www.thelancet.com/H1N1-flu/egmn/0c03c6c6>(last visited August 1, 2012).
The criticism was not limited to the issues associated with the government's handling of the vaccine. When the Wall Street Journal reported on the Government's promotion of effective non pharmacological disease-containing strategies, the online version of the story elicited many politically motivated comments from readers. See “Fighting Flu Without Big Gun,” available at <http://online.wsj.com/article/SB125245538175894251.html#articleTabs%3Dcomments>(last visited August 1, 2012).
96.
The Economist, “The Pandemic Threat,” April 30, 2009.
97.
See, for example, text accompanying supra note 14. It is also possible to criticize the government for inadequately emphasizing non-pharmacological approaches. Although the President personally delivered messages about the importance of such preventive measures, including hand washing and covering one's cough, government officials did not want the public to perceive these as protective measures equivalent to vaccination. Although some disagree, it was neither unreasonable nor uninformed for the government to avoid creating the perception that the self-protective non pharmacological measures did not offer protection equivalent to widespread vaccination. Interestingly, the government's emphasis on vaccination exposed it to more consequential criticism.
GoldsmithJ., The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W. W. Norton & Co., 2007).
101.
Among the most vocal demagogues were media personalities Rush Limbaugh and Glenn Beck. Selections of their claims appear at <http://mediamatters.org/research/200910070043>(last visited August 1, 2012).
The Economist has referred to this phenomenon as “The Foxification” of news. The Economist “The Foxification of News,”The Economist, July 9, 2011, at 14.
LewisJ.SpeersT., “Misleading Media Reporting? The MMR Story,”Nature Reviews Immunology3 (November 2003): 913–918, at 913.
113.
quoting LewisJ., Constructing Public Opinion: How Political Elites Do What They Like and Why We Seem to Go Along with It [New York: Columbia University Press, 2001]).
To be sure, a potential benefit of the crisis was that it stimulated some reporting on important subjects that do not ordinarily command the attention of the general public, among them the promise of new vaccine development technologies and domestic production capacity. At the same time, the public can be easily misled when complex and subtle issues are summarized in a couple of paragraphs. For example, when the general media reported that the cell technology has been approved for use in Europe or that the U.S. regulatory process is unpredictable and expensive, it deliberately or inadvertently created the impression that the government did or was doing something wrong in not facilitating use of the new process. The stories did not usually cite the questions in the medical literature about the benefits of the cell technology.
See also, ZolerM.L., H1N1 Vaccine Snags Highlight Limits of Egg-Based Production,”The Lancet website, October 30, 2009, available at <http://www.thelancet.com/H1N1-flu/egmn/0c03c6c6>(last visited August 15, 2012).
121.
It is arguable that one reason the government “yielded” to public fear and did allow use of an adjuvant to produce more doses of vaccine was that it could not rely on most news outlets to engage in detailed scientific reporting to explain why American's fear of adjuvants, which had been used safely in European vaccines for years, was scientifically unfounded. Andrew Pollack's New York Times story is a notable exception for its detailed analysis of the issues. PollackA., “In Vaccine Additive, Benefit and Doubt,”New York Times, September 22, 2009, available at <http://query.nytimes.com/gst/fullpage.html?res=9806E6D6153DF931A1575AC0A96F9C8B63&pagewanted=all>(last visited August 14, 2012).
122.
Months after the virus had peaked, a New York Times online summary implied approval of the government's “cautious approach.” It noted that although purchasing the chemical “booster” (adjuvants) “could have stretched the first 25 million vaccine doses into 100 million,” the government chose not to use them “for fear of triggering a backlash among Americans made nervous by the messages of the antivaccine movement.” The New York Times, “Swine Flu (H1N1 Virus),” January 4, 2010, available at <http://topics.nytimes.com/top/reference/timestopics/subjects/i/influenza/swine_influenza/index.html?>(last visited August 1, 2012). This critique is not suggesting that the government should refrain from investing in improving vaccine development processes. At the same time, government officials, together with a broad coalition of interests, will need to develop effective public education efforts to reduce the fears of the new vaccines. The H1N1 experience suggests that the science may prove easier than achieving either the political consensus for such an investment or the public's acceptance.
In its special supplement on the future of news, the Economist suggested that in the new environment of “Foxified” news, transparency of source material can replace objectivity as a means for securing public trust of the facts reported The Economist supra note 79, at 14–15. In the case of scientific controversies, however, the average consumer is likely to have difficulty distinguishing source material based on truthiness from that based upon accurate factual information.
126.
BaumM., “Red State, Blue State, Flu State: Media Self-Selection and Partisan Gaps in Swine Flu Vaccinations,”Journal of Health Politics, Policy and Law36, no. 6 (December 2011): 1021–1059, at 1021–1028.
127.
Congressional scholars Thomas Mann and Norman Ornstein argue that today's political polarization is fundamentally different than the traditional partisanship that America has witnessed throughout its history. They demonstrate that today's “asymmetrical polarization,” in which the Republicans oppose nearly any policy supported by President Obama, politicizes issues regardless of their substantive merits. Partisanship has thus degenerated into tribal loyalty. Their analysis helps explain why protecting the public's health during a contagion is no longer a shared enterprise of democratically elected leaders but an opportunity to find ways to find fault with the administration's positions or actions during the crisis. MannT. E.OrnsteinN. J., It's Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism (Pennsylvania: Basic Books, 2012).
Citizens United v. Federal Election Commission, 558U.S.___, 130 S.Ct. 876 (2010).
130.
In addition to spending money on high-priced lobbyists, there are several ways in which corporations use political expenditures to influence policy decisions. One prominent method is to contribute to the election coffers of lawmakers who sit on regulatory oversight and budget committees of government agencies in a position to decide policies that affect the business's bottom line. See generally, LessigL., Republic Lost: How Money Corrupts Congress – and a Plan to Stop It, (New York: Hachette Book Group, 2011).
131.
The Rapporteur did not conclude that there had been a conspiracy between pharmaceutical interests and the WHO, but he did find that the WHO's crisis handling had lacked transparency. He also noted that “WHO and other public health institutions involved in public decisions on the pandemic have ‘gambled away’ some of the confidence that the European public has in these highly reputed organisations.” FlynnP., The Handling of the H1N1 Pandemic: More Transparency Needed, Memorandum to the Social, Health and Family Affairs Committee Parliamentary Assembly, March 23, 2010, available at <http://assembly.coe.int/CommitteeDocs/2010/20100329_MemorandumPandemie_E.pdf>(last visited August 1, 2012).
132.
A joint investigation by the British Medical Journal and the Bureau of Investigative Journalism in the U.K. published within months of the Rapporteur's Memorandum was more critical. It found that “the World Health Organisation's key decisions during the H1N1 influenza pandemic may not have been free from commercial influence.” CohenD.CarterP., “Conflicts of Interest: WHO and the Pandemic Flu ‘Conspiracies,’”BMJ340, no. c2912 (June 3, 2010) available at <http://www.bmj.com/content/340/bmj.c2912.full>(last visited August 1, 2012).
O'ConnorJ.JarrisP.VogtR.HortonH., “Public Health Preparedness Laws and Policies: Where Do We Go after Pandemic 2009 H1N1 Influenza?”Journal of Law, Medicine & Ethics39, no. 1 (2011): 51–55, at 53;
Budget cuts required by the financial crisis hit state and local governments, in general, and public health agencies, which lack a dedicated constituency, in particular, especially hard. The recession, which began in late 2008, thus magnified the challenges to governments' of responding efficiently to the 2009 pandemic. See SackK., “Local Health Agencies, Hurt by Cuts, Brace for Flu,”New York Times, April 29, 2009, available at <http://www.nytimes.com/2009/04/30/health/30states.html>(last visited August 15, 2012).
Many challengers insisted that their legal case was grounded in their right to make their own informed choice of whether to take the vaccine. The subtle distinction between objecting to the mandatory nature of the order and not wanting to take an unsafe vaccine was not emphasized in news reports. Another plaintiff insisted that such a decision should be made by the elected legislature (presumably rather than the governor or his appointed health officers.) See HartocollisA., “Mandatory Flu Vaccination for N.Y. Health Workers Is Criticized,”New York Times, October 14, 2009, available at <http://www.nytimes.com/2009/10/14/health/policy/14vaccine.html>(last visited August 1, 2012). Notably, without a requirement less than 40% of health care workers reportedly took the H1N1 vaccine.
See ParmetW. E., “Pandemic Vaccines – The Legal Landscape,”New England Journal of Medicine362 (2010): 1949–1952, available at <http://www.nejm.org/doi?full10.156/NEJMp1000938>(last viewed August 15, 2012).
146.
KirklandA. R., “The Legitimacy of Vaccine Critics: What Is Left after the Autism Hypothesis?”Journal of Health Politics, Policy and Law37, no. 1 (February 2012): 69–97, at 87. Kirkland notes that the vaccine court has engendered criticism for becoming more adversarial and less willing to award compensation. Thus, some view the unique compensation system as increasing the risk of taking a vaccine since it both fosters the suspicion of manufacturers compromising safety as well as raises the fear that injured consumers will not receive adequate compensation.
147.
Kirkland notes that critics claim “that the current system is beset with Conflicts of interest, since the same government agencies promote vaccine as well as regulate adverse events.” Id.
148.
Although the critics' claim is not entirely accurate, since the FDA approves and monitors vaccine safety while the CDC heads up immunization campaigns, it illustrates the public's perception that the huge government bureaucracy (both agencies are a part of the Department of Health and Human Services) is viewed as a collaborative whole. Kirkland also found the perception that the vaccine manufacturers work “too closely with government policy makers” to be a “frequent criticism.” Id.
149.
See also supra accompanying notes 93–95.
150.
Upon issuance of the first emergency declaration by the Acting Secretary of the Department of Health and Human Services, Homeland Security Secretary Janet Napolitano sought to reassure the public by claiming that the declaration was “standard operating procedure.” The news of her press conference reported that she explained, “It's like declaring one for a hurricane… It means we can release funds and take other measures. The hurricane may not actually hit.” McNeilD. G.Jr., “U.S. Declares Public Health Emergency Over Swine Flu,”New York Times, April 26, 2009, available at <http://www.nytimes.com/2009/04/27/world/27flu.html>(last visited August 18, 2012).
151.
During the year after the H1N1 virus first appeared, the emergency declarations were plentiful. The Acting Secretary of the Department of Health and Human Services issued the first declaration of a “public health emergency” on April 26, 2009 pursuant to Section 319 of the Public Health Service Act (24 U.S.C. Sec. 247d). These declarations automatically expire after 90 days unless renewed. Once confirmed, Secretary Kathleen Sebelius issued subsequent declarations on July 24, October 1, and December 28, 2009 and March 22, 2010. This last declaration was allowed to expire. Only in the final announcement did the Secretary amend the statement of declaration to add the explanation, “the Department should use all available tools to ensure that we are prepared.” Department of Health and Human Services, “Renewal of a Determination that a Public Health Emergency Exists,” March 22, 2010, available at <http://www.hhs.gov/secretary/phe_swh1n1.html>(with links to all declarations) (last visited August 18, 2012). In addition, on October 24, 2009, President Obama declared the 2009 H1N1 Influenza a “national emergency” under The National Emergencies Act and Section 1135 of the Social Security Act (50 U.S.C. 1601 et seq and 42 U.S.C. 1320b-5), available at <http://www.whitehouse.gov/the-press-office/declaration-a-national-emergency-with-respect-2009–h1n1-influenza-pandemic-0>(last visited August 18, 2012). Declarations by both the DHH Secretary and the President were required to allow the Secretary to “waive or modify Federal requirements as listed in section 1135. After the Secretary invokes section 1135, health care facilities may petition for 1135 waivers in response to particular needs, and only within the geographic and temporal limits of the emergency declarations.” Flu.gov, “October 24, 2009-President Obama Signs Emergency Declaration for Flu,” available at <http://www.flu.gov/planning-preparedness/federal/h1n1e-mergency10242009.html>(last visited August 18, 2012). Still other emergency declarations were issued by the Commissioner of the Food and Drug Administration in the form of an Emergency Use Authorization allowing the use of unapproved medications, diagnostic tests, and medical devices during the duration of the declaration. An archived list is available at <http://www.fda.gov/EmergencyPreparedness/Counterterrorism/ucm264224.htm>(last visited August 18, 2012).
152.
GerwinL., “Planning for Pandemic: A New Model for Governing Public Health Emergencies,”American Journal of Law & Medicine37, no. 1 (2011): 128–171.
153.
The World Health Organization officially declared an end to the worldwide pandemic on August 10, 2010. The United States allowed its Public Health Emergency determination to expire on June 23, 2010. Department of Health and Human Services News Release, “WHO Declares End of 2009 H1N1 Influenza Pandemic,” August 10, 2010, available at <http://www.hhs.gov/news/press/2010pres/08/20100810b.html>(last visited August 17, 2012).
154.
Centers for Disease Control and Prevention, “Updated CDC Estimates of 2009 H1N1 Influenza Cases, Hospitalizations in the United States,” April 2009-April 2010, available at <http://www.cdc.gov/h1n1flu/estimates_2009_h1n1.htm>(last visited August 7, 2012).
155.
Estimating influenza deaths is not an exact science. The CDC has calculated a range estimate over 30 years beginning in the 1976–77 season of 3,000–49,000 people. This replaces an earlier and oft-cited estimate of 36,000 annual deaths. See Centers for Disease Control and Prevention, “Estimating Seasonal Influenza-Associated Deaths in the United States: CDC Study Confirms Variability of Flu,”2012, available at <http://www.cdc.gov/flu/about/disease/us_flu-related_deaths.htm#how-many-die>(last visited August 1, 2012).
DawoodF. S.IulianoA. D.ReedC., “Estimated Global Mortality Associated with the First 12 Months of 2009 Pandemic Influenza A H1N1 Virus Circulation: A Modelling Study,”The Lancet Infectious Diseases12, no. 9 (2012): 687–695.
158.
Id.
159.
See Rambhia, supra note 96.
160.
Id. Citing U.S. Department of Health and Human Services fact sheet no longer available on line.
Normally, literary license should not make it onto the list of concerns nor serve as source material for a scholarly endeavor. A scene in the 2011 movie “Contagion,” however, illustrates the potential impact of the distortion of the H1N1 narrative. Advised by an all-star list of public health experts, the film seeks realistically to portray what a deadly worldwide pandemic might look like. Early in the movie, there is a scene in which CDC officials are holding a press conference to explain the looming threat. A reporter asks how the official knows the epidemic threat is not “another false alarm” like the H1N1. Interestingly, this question was changed in the DVD version of the film to an inquiry about whether the government was concerned about losing its credibility if subsequent events reveal it is overhyping the threat.
