Raphael Stevens

CNBC Travel

Vaccine mandates trickled into the U.S. travel sphere last winter, picked up steam in the spring and hit fever pitch over the summer.
Vaccine shots are now necessary to eat in cafes in France, to see a Broadway show in New York City and soon, to fly commercially in Canada.

Though mandates were expected for cruises and international travel, the pace and scope of activities that they now cover —  from booking group tours to staying in hotels —  has surprised industry experts.
“It has been interesting to watch the striking acceleration of vaccine mandates,” said Harry Nelson, founder of health-care law firm Nelson Hardiman.
He said that while the U.S. Food and Drug Administration’s full approval of the Pfizer-BioNTech vaccine last month has prompted some mandates, they’re also being “driven by increasingly supportive public opinion of the vaccinated majority.”

Are vaccine mandates legal?

Yes, said Lawrence O. Gostin, professor at Georgetown Law and the faculty director of the O’Neill Institute for National and Global Health Law.
“Businesses have full power to require reasonable safety standards for customers,” he told CNBC. “Just as many businesses have required masking, they could also ask for proof of vaccination.”

That’s true whether mandates come from private businesses or government-owned attractions, such as the Grand Canyon or tours at the White House, he said.

We felt strongly that it was the right thing to do, and sometimes doing the right thing is hard.

Kelly Sanders
senior vice president of operations, Highgate Hawaii

“For some high-risk businesses, such as cruise lines and hotels, it is very much in their economic interests to make their customers feel safe and secure — they have every right to do so,” said Gostin. “Similarly, President Biden, who oversees federal properties, could require proof of vaccination for entry to… national parks and federal buildings.”   
Nelson agrees, adding that there is a long history of courts upholding vaccine mandates, though those have mostly been in the context of school requirements.
“I expect that, for the most part, the vaccine mandates will stand up,” he said.

Vaccine exemptions

The next great debate could be the diluting effect that vaccine exemptions may have on vaccine mandates.
Gostin said public and private companies “probably have to allow both medical and religious exemptions” but they can be “narrow and hard to get.”
United Airlines seems to be taking that approach. Staff granted religious exemptions to the airline’s recently-announced workforce vaccine mandate will be placed on temporary unpaid leave starting next month.  

Unvaccinated tourists who travel to New York City can walk down the streets near Broadway, but they can’t attend shows without an exemption.
Spencer Platt | Getty Images News | Getty Images

The government has an “easy case” to refuse religious exemptions for vaccines against infectious disease, wrote Douglas Laycock, a professor at the University of Virginia School of Law, in an article published last week on Australia-based news site The Conversation.  
“Even when religious objections are sincere, the government has a compelling interest in overriding them and insisting that everyone be vaccinated,” he wrote. “And that overrides any claim under state or federal constitutions or religious liberty legislation.” 
As for how far challenges to vaccine mandates can go, Laycock wrote: “Unless governments mandating vaccines do not defend their rules, or the Supreme Court changes the law, the answer is likely, ‘Not far.'”
Nelson said he believes a majority of the U.S. Supreme Court would welcome the opportunity to articulate broader personal religious freedoms if given the chance.

What’s next?

Expect more companies to announce vaccine mandates, said Nelson, especially after vaccines are approved by the FDA for kids aged 5-12, and eventually those even younger.
Hotels have been slow to enter the vaccine mandate fray, but that’s starting to change. Elite Island Resorts, which operates nine resorts in the Caribbean, and Highgate Hawaii, which operates seven hotels in Hawaii, both announced mandatory vaccine policies, as have others.
“We felt strongly that it was the right thing to do, and sometimes doing the right thing is hard,” said Kelly Sanders, senior vice president of operations for Highgate Hawaii. “I expect that more (hotels) will eventually follow.”

Starting Oct. 15, guests aged 12 and older must be vaccinated to stay at Highgate Hawaii’s ‘Alohilani Resort Waikiki Beach.
Courtesy of ‘Alohilani Resort Waikiki Beach

Flights may be next, if airlines follow the lead of Qantas’ CEO Alan Joyce, who indicated earlier this month that passengers will be required to be vaccinated on its international flights.  
U.S. officials are debating whether to require vaccinations to fly both domestically and internationally, as reported last week by The Washington Post. Dr. Anthony Fauci, the White House’s chief medical advisor, said this month he would likely support a vaccine mandate for air travel.
Georgetown’s Gostin said he could foresee President Biden issuing a vaccine mandate for interstate or international travel, similar to the one his administration announced earlier this week for foreigners traveling into the U.S.
“But airlines themselves could also set this requirement,” said.  
To date, no major U.S. airline has announced such a policy.

Vaccine passports

So-called “vaccine passports” may be on the horizon too, said Nelson, as interest increases for reliable proof of vaccination status.
“I think we are going to see them throughout the hospitality and entertainment industry,” he said.

From Sept. 13, guests staying at New York City’s Equinox Hotel must be vaccinated.
Jeenah Moon | Bloomberg | Getty Images

The White House last April ruled out plans to create a federal vaccine passport, but Nelson said he feels they are more likely to show up in “blue” states given “the trend of ‘red’ state hostility to the concept.”  
“My sense is that the government is counting on the fact that as more ambivalent and reluctant people are vaccinated, the stronger the public pressure will be,” he said. “New measures, coupled with fear over hospitalization and mortality rates among the unvaccinated, are likely to lead to even more support for more restrictions.” More

The FDA still hasn’t said whether it will authorize Pfizer-BioNTech Covid booster shots for some Americans even as a key CDC vaccine advisory group concludes its first day of a two-day meeting on the topic.
Usually, the FDA announces its decision on certain vaccines or drugs before the CDC and its Advisory Committee on Immunization Practices meet and issue their own recommendations.
The CDC panel is supposed to vote on the booster shots Thursday, but officials said they will postpone that noon meeting if the FDA’s decision hasn’t been announced by then.

The Food and Drug Administration still hasn’t announced whether it will authorize Pfizer-BioNTech Covid booster shots for some Americans even as a key Centers for Disease Control and Prevention vaccine advisory group concludes its first day of a two-day meeting on the topic.
Usually, the FDA announces its decision on certain vaccines or drugs before the CDC and its Advisory Committee on Immunization Practices take their turn to meet and issue their own recommendations. The CDC panel is supposed to vote on the booster shots Thursday, but officials said they will postpone that meeting if the FDA’s decision isn’t announced by the time the committee reconvenes at noon.

The FDA’s Vaccines and Related Biological Products Advisory Committee on Friday overwhelmingly rejected a plan to distribute the extra shots to Americans 16 and older, before unanimously embracing an alternate plan to give boosters to older Americans and those at a high risk of suffering from severe illness.

CNBC Health & Science

It was considered a controversial recommendation because the Biden administration has said it wants to begin offering booster shots to the general public as early as this week, pending authorization from U.S. health regulators.
It’s now up to FDA regulators to decide whether they will accept the FDA advisory committee’s recommendation — which it often does — or perhaps depart from the advice given and increase the number of people eligible to get the extra shots.
An FDA spokesperson declined to provide information on the timing of the agency’s decision.
The FDA still has some time. The CDC advisory group isn’t expected to vote on who should get Pfizer booster shots until Thursday afternoon, and federal health officials indicated earlier Wednesday that the vote may be pushed to another time if the FDA hasn’t made its decision by then.
During the meeting Wednesday, CDC advisors listened to several presentations on data to support the wide distribution of booster shots, including one presentation from a Pfizer executive, who displayed data that showed a third shot appears to be safe and boost antibody levels in recipients.

WATCH LIVEWATCH IN THE APP More

The FDA authorized Covid vaccine booster shots for people 65 and older.
Individuals 18 through 64 years old who are at high risk of developing severe Covid are also eligible.
Individuals 18 through 64 years of age who are frequently exposed to Covid either through their work or “institutional” exposure to the virus are also eligible.

The Food and Drug Administration authorized Pfizer and BioNTech’s Covid-19 booster shots for people 65 and older and other vulnerable Americans six months after they complete their first two doses, making many Americans eligible to receive the shots now.
The FDA’s decision largely follows recommendations given Friday by its key vaccine advisory committee at a more than 8-hour agency meeting. The Vaccines and Related Biological Products Advisory Committee voted 16-2 against distributing the vaccines to Americans 16 and older, before unanimously embracing an alternate plan to give boosters to older Americans and those at a high risk of suffering from severe illness if they get the virus.

Though Americans 65 and older make up roughly 17% of the U.S. population, they are the most at risk of dying from Covid, accounting for more than 77% of all Covid deaths, according to the Centers for Disease Control and Prevention.
The FDA granted emergency use authorization to administer Pfizer’s shots to older Americans and people from 18- to 64-years-old with medical conditions that place them at risk of getting severely sick. The agency also included a broad definition of people from 18 to 64 “whose frequent institutional or occupational exposure” to the virus place them at a high risk of developing serious complications from Covid. That leaves enough wiggle room for the CDC to potentially clear third doses for people in nursing homes, prisons, front-line health employees and other essential workers who were among the first Americans who got the initial shots in December.
“The FDA considered the committee’s input and conducted its own thorough review of the submitted data to reach today’s decision,” Dr. Peter Marks, the agency’s top vaccine regulator, said in a statement. “We will continue to analyze data submitted to the FDA pertaining to the use of booster doses of COVID-19 vaccines and we will make further decisions as appropriate based on the data.” 
The nonbinding decision by the vaccine advisory committee was expected to be a controversial one as the Biden administration has said it wants to begin offering booster shots to the general public as early as this week, pending authorization from U.S. health regulators.
While the agency hasn’t always followed the advice of its committee, it often does. Still, Marks reminded the panel on Friday that federal regulators did not have to accept its recommendation as written.

CNBC Health & Science

“We are not bound at FDA by your vote, just so you understand that. We can tweak this as need be,” he said.
In clearing the shots, which only apply to people who received Pfizer’s original vaccine, the FDA cited a small study provided by the company of about 300 people who received the boosters, data provided by the U.K. as well as more comprehensive, but less rigorous data, from Israeli health authorities.
Some scientists, including at least two at the FDA, had said they weren’t entirely convinced every American who has received the Pfizer vaccine needed extra doses at this time. However, the nation’s top health regulators, including CDC Director Dr. Rochelle Walensky, acting FDA Commissioner Dr. Janet Woodcock and White House chief medical advisor Dr. Anthony Fauci, already endorsed Biden’s booster plan in August.
Friday’s vote put the FDA panel in an “awkward position” as the administration has already announced they would begin distributing boosters to the general public this month, Northwell Health chief of infectious disease Dr. Bruce Farber said prior to the panel’s recommendation.
Some committee members said they were concerned that there wasn’t enough data to make a recommendation, while others argued third shots should be limited to certain groups, such as people over age 60 who are known to be at higher risk of severe disease. Some members raised concerns about the risk of myocarditis in younger people, saying more research is needed.
Phil Krause, an FDA vaccine regulator who is leaving the agency over pressure from the Biden administration to approve the shots, was critical of the findings presented at the meeting, saying much of the data had not been reviewed by the federal agency or peer-reviewed. He said the models used were complex and scientists have to ensure it “is giving you the correct results.”
“That’s part of the difficulty at looking at this kind of data without having the chance for FDA to review it,” he said.
In outlining plans last month to start distributing boosters as early as this week, administration officials cited three CDC studies that showed the vaccines’ protection against Covid diminished over several months. Senior health officials said at the time they worried protection against severe disease, hospitalization and death “could” diminish in the months ahead, especially among those who are at higher risk or were vaccinated during the earlier phases of the vaccination rollout.
Pfizer said In documents made public last week that an observational study in Israel showed a third dose of the Covid vaccine six months after a second shot restores protection from infection to 95%. The data was collected from July 1 through Aug. 30 when the fast-spreading delta variant was surging throughout the country.
In a presentation Friday, Dr. Sharon Elroy-Preiss of Israel’s Health Ministry argued that if officials there had not begun distributing boosters at the end of July, the nation likely would have exceeded its hospital capacity. Health officials began to see a trend, she said, of individuals in their 40s and 50s who were fully vaccinated become critically ill with Covid.
“We didn’t want to wait to see those results and we knew that we needed to vaccinate a larger portion of the population in order to get the numbers down quickly,” she told the committee. Israeli health authorities expected severe cases to average 2,000 by late August, she said. “We were able to dampen that effect and our severe cases are roughly 700 or less and have stayed stable, even though we still have days at 10,000 confirmed cases.”
The FDA OK is not the final go-ahead. The CDC’s vaccine advisory committee held the first day of a two-day meeting Wednesday to debate the third shots with a vote on the FDA’s proposal scheduled Thursday afternoon. If they issue a recommendation and it is approved by the CDC, booster shots could begin immediately.

WATCH LIVEWATCH IN THE APP More

Britney Spears stated in court documents Wednesday, for the first time, that her father, Jamie Spears, should be removed from the conservatorship.
She had previously asked a judge for it in a court hearing, but Wednesday’s filing is a new step that makes it official.
Ex-prosecutor David Henderson told host Shepard Smith that before eliminating the conservatorship, “the judge is probably going to want to hear testimony from an investigator.”

Former prosecutor David Henderson predicted that September 29 would mark the day that Jamie Spears would be removed from daughter Britney Spears’ conservatorship. 
“I think this is one of those situations where you turn on the light, and the bugs scatter,” the Civil Rights lawyer told CNBC’s “The News with Shepard Smith.” “I think that on the 29th, we can expect to see him removed.”

Britney Spears stated in court documents Wednesday, for the first time, that her father, Jamie Spears, should be removed from the conservatorship. She had previously asked a judge for it in a court hearing, but Wednesday’s filing is a new step that makes it official.
Henderson explained, however, that the conservatorship will likely continue past Sept. 29. 
“I think this is a situation that’s closer to when you have a CEO who steps down, the company can still survive, so the conservatorship exists because the court has determined that Britney is not capable of taking care of herself physically or financially,” said Henderson, a CNBC contributor.
The conservatorship has enabled Britney’s father to control her life decisions and finances for 13 years. Jamie filed a petition earlier this month, and asked to terminate the conservatorship. He has repeatedly denied any misconduct in his role as conservator. 
Henderson told host Shepard Smith that before eliminating the conservatorship, “the judge is probably going to want to hear testimony from an investigator.”

WATCH LIVEWATCH IN THE APP More