Background

This is the second Mask Mandate Order and also the second time this is being challenged.

The Health Freedom Defense Fund (HFDF) together with several individual plaintiffs (residents of Blaine County, Idaho) submitted a demand for jury trial in the matter of the mask mandate in schools, which is claimed to be contra to constitutional law and invalid in the light of emergency FDA authorization. [1]

HFDF is a not-for-profit public benefit Wyoming corporation, which opposes laws and regulations that force individuals to submit to the administration of medical products, procedures, and devices against their will. [1]

September 13, 2021, the Hailey city council voted unanimously to reinstitute another unlawful mask mandate upon its citizens. [2]

Significance

This case challenges the legality and medical efficacy of mask mandates. The Mask Mandate is preempted under the Supremacy Clause by the federal law under which the Food and Drug Administration (“FDA”) issued the Emergency Use Authorization (“EUA”) for mask use, which requires that use of masks must be optional. [1]

Similar complaints for similar reasons have been filed. e.g. IN THE UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF IDAHO, 15th October 2021, Case No. 1:21-cv-406 [1]

Plaintiff’s Argument

In the US, most masks have been issued under Emergency Use Authorization (EUA) and the terms of the EUA granted by FDA clearly state that the product must not be:

“labeled in such a manner that would misrepresent the product’s intended use; for example, the labeling must not state or imply that the product is intended for antimicrobial or antiviral protection or related uses or is for use such as infection prevention or reduction”. [2]

Thus, the FDA recognizes masks do nothing to stop the spread of viruses or infectious agents. [2]

1. Not only does FDA acknowledge masks do not prevent the spread of the virus, the terms of the EUA also require that those using the products be given the right to accept or refuse use of the product. See Link. [2]
2. The FDA has determined that the efficacy of face coverings for reducing or preventing infection from SARS-CoV-2 has not been established, and that it would be misleading to state that they are effective in preventing or reducing such infection.
3. Similarly, the FDA has stated in three instances that face masks are not intended to reduce or prevent infection:
4. The product is not intended for any use that would create an undue risk in light of the public health emergency, for example the labeling does not include uses for antimicrobial or antiviral protection or related uses or uses for infection prevention or reduction or related uses and does not include particulate filtration claims. Id. at 7, repeated twice on page 8.

In summary:

• Masks for prevention of transmission of the virus are only granted emergency approval by the FDA. This requires the use of masks to remain optional, while the normal testing, evaluation, and approval process for use of such masks is ongoing. This process has been illegally bypassed by the FDA due to an emergency. [1]
• The mask mandate implements a human experiment, while the medical and psychological effects of the masks has not been tested, evaluated, and approved by the FDA under normal procedures. It thus violates Idaho law. [1]
• The Mask Mandate violates Plaintiffs’ fundamental human rights re 14th Amendment USA [1]
• The Mask Mandate has been placed in force contrary to the Constitution and laws of the United States. [1]

In Jacobsen vs. Massachusetts, a landmark case on government-mandated medicine, the US Supreme Court unequivocally ruled that there must be clear public health benefit to justify the imposition of a medical mandate. There is little, if any, public health justification in this case as evidence from “gold-standard” mask studies show that facial coverings offer negligible benefit to the wearer or those in their vicinity when it comes to reducing viral transmission among the general population. That evidence even suggests that incorrect or long-term use of masks may increase the risk of transmission, especially with cloth or “community” masks. [3]

When comparing the potential benefit and potential harm of mask mandate policies, it is clear the balance is much more heavily weighted to the harmful side of the equation. [3]

…More information is needed…

Relevant Prior Judgements/ Cases

As mentioned above the Landmark 1905 Jacobson v Massachusetts, has been cited numerous times in recent courts to justify medical mandates. However this case does not support this. In fact the Supreme Court in 1905, was careful not to violate the right of bodily autonomy and Mr Jacobson was only fined and never vaccinated for Small Pox which was the feared epidemic at the time.

The court also determined that the Small Pox vaccine had nearly 100 years of data to support its efficacy as well as showing that no alternative treatments were available.

Decision

…More information is needed…

Aftermath

On November 9, 2021, Idaho news outlet KMVT reported: [4]

Council members decided not to rescind the mask mandate at the Monday meeting because they wanted to stay consistent with what neighboring cities are doing, and the COVID-19 risk level in the county is high. Hailey also sees a lot of tourists during the holiday season.

Mayor Burke said that was a clerical error on her part, but citizens do not need to worry because the health order can be rescinded at any point. The council will revisit and discuss the heath order again in 30 days.

One person who attended the meeting asked the council to rescind the mask mandate because he felt the issue is becoming more about emotion than logic. He said, “If you are worried about getting the virus then you can mask up and be protected, or if you have gotten the vaccination you should be able to be protected…the mandate to me doesn’t do anything right now since half the people I come in contact with are not wearing masks.”

In December, Idaho news outlet KMVT reported: [5]

The mask mandate in Hailey will stay in place through the holidays partially because of ski season and increased travel during the holidays.

A press release from the city says a 30-day review for the mandate will not be on the city council agenda for December. It will remain into Jan. 2022. The order in place now mandates masks for indoor public spaces and when social distancing is not possible outdoors.

The mask mandate is not required to be enforced by businesses, but the city says having it in place has been helpful for businesses.

Further Research

Court Documents:

• Read the Complaint Case No. 1:21-cv-389

In the news:

• Hailey Passes Mask Mandate; Other Blaine County Leaders To Vote Tuesday

other:

• Mask FAQ: Legality
• HFDF Employer Mask Notice of Liability
• Study: Physical interventions to interrupt or reduce the spread of respiratory viruses
• WHO: Advice on the use of masks (2009)
• Understanding Jacobson v. Massachusetts
• Landmark Case: Jacobson v Massachusetts 1905

Media

Keyword

Blaine County, Consent, Constitution, Emergency Use Authorization, EUA, FDA, Hailey, Health Freedom Defense Fund, HFDF, Idaho, Jacobson, Mandate, masks, Massachusetts, Public Health Emergency Order, Supremacy Clause