Fifth Circuit Weighs Whether Pfizer Can Keep Texas’s Vaccine-Marketing Suit Buried

Texas Attorney General Ken Paxton is asking the Fifth Circuit to revive a lawsuit that accuses Pfizer of marketing its COVID-19 vaccine with a 95 percent efficacy figure Texas calls misleading. Paxton filed in Lubbock state court in November 2023 under the Texas Deceptive Trade Practices Act. Pfizer removed the case to federal court as a government contractor, then won dismissal in December 2024 from Senior U.S. District Judge Sam Cummings under the Public Readiness and Emergency Preparedness Act. A three-judge panel heard argument this week. The live question is not yet whether the marketing claims are true. It is whether the federal court had authority to kill the case at all.

Pfizer invoked federal-officer removal based on its contract to produce the vaccine. Once in federal court, it argued PREP Act immunity blocked the state’s claims. Circuit Judge Leslie Southwick noted that neither party can “concede jurisdiction” by agreeing to the transfer. If the panel finds removal was improper, Cummings’s dismissal is void and the suit returns to state court.

That sequence matters. PREP Act protection was written as a shield against liability for covered countermeasures during a declared emergency. Texas says it is not seeking compensation for injuries. It wants civil penalties and an injunction against alleged deceptive marketing. Assistant Attorney General Johnathan Stone told the panel an enforcement action seeking penalties is not a suit “for loss” under the statute.

Pfizer attorney Kannon Shanmugam argued the opposite: allegations that the company withheld information exposing consumers to health risk qualify as claims for loss “by any measure.” He cited this year’s Supreme Court decision in Chevron USA Inc. v. Plaquemines Parish as support for federal-officer removal of contractors.

Paxton’s office contends Pfizer could not accurately project protection beyond two months when it made public efficacy claims, and that it ignored FDA warnings about “relative risk reduction” language. The 95 percent figure became the public number. Texas says the underlying statistics did not support the way that number was used in marketing.

Pfizer has not conceded the merits. It has relied on the immunity statute. Certain PREP Act protections were extended through 2029 even after the public-health emergency ended in May 2023. Former HHS Secretary Xavier Becerra cited a continuing “credible risk” of a future emergency as justification for keeping the shield in place.

The panel — Judges Edith Jones, Leslie Southwick, and Don Willett — is weighing both the removal question and whether Cummings correctly applied PREP Act immunity to a state consumer-protection action.

If the case stays in federal court and immunity holds, state attorneys general cannot use deceptive-trade statutes to test pandemic marketing claims against the companies that sold the products. If removal fails, Texas gets a state-court forum where PREP Act preemption is no longer the first and last word. The underlying dispute — how efficacy was described to the public — would then have to be litigated rather than extinguished at the courthouse door.

A liability shield designed for emergency production is now being asked to cover advertising. The Fifth Circuit has not ruled. The jurisdictional skepticism already on the record is enough to put the dismissal at risk. Pfizer’s defense still begins with immunity. Texas’s theory begins with the claim that civil penalties for alleged deception were never what the PREP Act was written to stop.