The majority opinion released on Friday by the 6th Circuit Court of Appeals, which restored the Biden administration’s Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) requiring employers with more than 100 employees to mandate that all employees take a COVID-19 vaccine, falsely asserts that Pfizer’s Food and Drug Administration (FDA) fully approved vaccine is currently available and in use among the general public.
“At the same time, the options available to combat COVID-19 changed significantly: the FDA granted approval to one vaccine on August 23, 2021, and testing became more readily available,” the majority opinion asserts on page 24 of the ruling.
The majority opinion was written by Obama-appointed Judge Jane Branstretter Stranch of the United States Court of Appeals for the Sixth Circuit (pictured above).
As The Star News Network reported this week in The Ohio Star, The Tennessee Star, and The Georgia Star News, the Pfizer COVID-19 vaccine with the brand name Comirnaty that was fully approved by the FDA on August 23, is not being shipped or administered in those three states.
“The Pfizer-BioNTech COVID-19 Vaccine (EUA labeled product) is currently being shipped; however, please be advised that the COMIRNATY and the Pfizer-BioNTech COVID-19 Vaccine have the same formulation and can be used interchangeably. They are made using the same processes, and there are no differences between them in safety or effectiveness,” the Pfizer told The Star Monday.
Prominent experts such as Dr. Robert Malone have also stated that Comirnaty is not shipped or available anywhere in the United States.
“The majority opinion describes the emergency rule at issue here as permitting employers, ‘to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces,” Judge Joan Larsen wrote in her dissent. “With respect, that was the state of federal law before the rule, not after.”
“OSHA’s mandate applies, in undifferentiated fashion, to a vast swath of Americans: 84 million workers, 26 million unvaccinated, with varying levels of exposure and risk,” she wrote. “The burden is on ‘the agency to articulate rationally why the rule should apply to a large and diverse class’ … The agency does not do so.”
Since Pfizer confirmed to The Star that it is still shipping the EUA version of the vaccine, The Star has been stonewalled by entities that have imposed vaccine mandates based on the false implication from the FDA and others that the company’s FDA approved product is widely available.
One of those entities is the U.S. Army, which purchased 500 million doses of the Pfizer vaccine before Comirnaty was even fully approved, but still mandated vaccines for service members on August 24, the day after Corminaty’s approval.
“Your premise is false,” Army spokesman Bruce Anderson told The Star.
“Per FDA guidance, these two vaccines are ‘interchangeable’ and DoD health care providers should ‘use doses distributed under the EUA to administer the vaccination series as if the doses were the licensed vaccine,'” he said. “Consistent with FDA guidance, DoD health care providers will use both the Pfizer-BioNTech COVID-19 vaccine and the Comirnaty COVID-19 vaccine interchangeably for the purpose of vaccinating service members in accordance with Secretary of Defense Memorandum, ‘Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members,’ August 24, 2021.'”
Strictly speaking, the vaccines are not “interchangeable.” The FDA also notes that the two products are “legally distinct.” They require different Biologics License Applications (BLAs), branding and disclosures.
Anderson did not respond to a request asking whether the Army has received any Comirnaty.
One lawsuit against the University of Cincinnati, which is barred by Ohio law from mandating non-FDA approved vaccines but is mandating them anyway, will challenge that mandate on the grounds of legal distinction between Comirnaty and the Pfizer-BioNTech EUA authorized version of the vaccine.
The Sixth Circuit Court of Appeals sits in Cincinnati, Ohio.
The case is Massachusetts Building Trades Council v. United States Department of Labor, Occupational Safety and Health Administration et al., Nos. 21-7000 et. al, in the 6th Circuit Court of Appeals of the United States.
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Pete D’Abrosca is a reporter at The Star News Network. Follow Pete on Twitter. Email tips to [email protected].
Photo “Judge Jane Branstretter Stranch” by the 6th Circuit Court of Appeals and photo “Potter Stewart U.S. Post Office and Courthouse” is by Carol M. Highsmith.