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Law360 (March 18, 2020, 5:10 PM EDT ) The U.S. Senate on Wednesday passed legislation aimed at providing economic relief from the coronavirus pandemic that also includes extending liability protections for makers of face masks.
A provision of the Families First Coronavirus Response Act, or H.R. 6201, expands liability protections for N95 face masks — which filter out 95% of airborne particles — under the PREP Act of 2005 for emergency use during the outbreak. Those protections will expire Oct. 21, 2024.
The bill passed with a 90-8 vote and is headed for President Donald Trump's desk.
Rep. Frank Pallone, D-N.J., said in a statement last week that N95 face mask makers had initially requested an "indefinite, blanket liability" attached to the $8.3 billion funding bill passed on March 4.
"Since then we have been working to put together a targeted liability waiver that ensures N95 manufacturers are protected from risks associated only with the novel coronavirus," Pallone said. "This agreement strikes the right balance and ensures that American health care workers will continue to be protected during this outbreak."
Face masks approved by the U.S. Food and Drug Administration have additional splash protection and were already immune from liability claims under the PREP Act. However, the ones that are approved by just the National Institute for Occupational Safety and Health are not. The latter type comprises the bulk of the face masks on the market and is also used in medical settings.
Mask manufacturers have been seeking liability protections for the latter type for at least the past decade, according to Dan Glucksman, who is the director of public affairs for industry group International Safety Equipment Association, and concerns have grown with this outbreak.
"There's no drug, no antiviral medication for it, no vaccine," Glucksman told Law360 last week. "They're doing the right thing, ramping up production to meet government demand ... and given the unknowns, they feel like they should receive the same protection that drugmakers, vaccine makers and other medical protective manufacturers have under this law."
There's been a reported shortage of face masks during the pandemic, and the U.S. Surgeon General recently took to Twitter to tell the general public to stop buying them.
Seriously people- STOP BUYING MASKS!
— U.S. Surgeon General (@Surgeon_General) February 29, 2020
They are NOT effective in preventing general public from catching #Coronavirus, but if healthcare providers can't get them to care for sick patients, it puts them and our communities at risk!
https://t.co/UxZRwxxKL9
The bipartisan coronavirus bill, which passed the House early Saturday morning after days of negotiations between U.S. Treasury Secretary Steven Mnuchin and House Speaker Nancy Pelosi, D-Calif., will also provide workers with paid emergency sick leave, paid family and medical leave and establish a new employer tax credit to offset wages for displaced workers impacted by the outbreak.
Lawmakers and the Trump administration hope the legislation will help turn back a possible economic recession in the U.S., which has already seen schools and universities close, businesses shutter and tourism and air transportation slow due to the coronavirus.
--Additional reporting by Stephen Cooper. Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
