Of all the politicians sounding off against so-called “vaccine passports,” none has made more headline-grabbing hay than Florida Governor Ron DeSantis, champion of a law prohibiting businesses in his state from verifying the vaccination status of individuals. “In Florida, your personal choice regarding vaccinations will be protected and no business or government entity will be able to deny you services based on your decision,” DeSantis said at the bill signing event on May 3.
The law is set to go into effect on July 1. That is extraordinarily bad timing for the restart of Florida’s $9-billion cruise industry, which has been on pause since March 2020. DeSantis signed the new law five days after the Centers for Disease Control and Prevention (CDC) had given the green light for cruise ships to begin sailing from U.S. ports this summer, as long as 98% of crew members and 95% of passengers are fully vaccinated.
Now DeSantis and the CDC are locked in a legal standoff that most experts do not expect to end well for the governor. The state of Florida’s lawsuit against the CDC asked the court to declare the agency’s “conditional sail order” — the framework for restarting cruising — to be unlawful on the grounds it is unfair to the cruise industry. “The CDC arbitrarily singled out the cruise industry, and their requirements are unlawful,” said Christina Pushaw, the governor’s press secretary, via email.
That analysis is “political buffoonery,” says Jim Walker, a maritime attorney whose Cruise Law News blog has accrued nearly 250,000 Facebook followers. Traditionally, it’s the federal government — not the state government — that has any interaction with cruise ships. “The CDC ultimately has the power to shut down a cruise ship,” he said. “To suggest that it doesn’t have jurisdiction to regulate cruise lines is just utterly preposterous to me.”
No cruise companies joined DeSantis on the lawsuit. A federal judge in Tampa sent lawyers for both sides into mediation with a deadline of June 1.
Most cruise industry watchers expect the stakeholders to ultimately find a way to work it out. “Based on a call last week, representatives from the Cruise Lines International Association (CLIA) don’t seem too concerned about the current Florida legislation standing in the way of cruises sailing from the state with vaccine requirements,” said Chris Gray Faust, Managing Editor of Cruise Critic.
And on a recent earnings call, Frank Del Rio, CEO of Norwegian Cruise Line Holdings said, “It is a classic state versus federal government issue. Legally, lawyers believe that federal law applies and not state law, but I’m not a lawyer.”
With that belief, cruise lines are moving full steam ahead on their summer plans. On June 26, the Celebrity Edge will become the first ship to sail out of Fort Lauderdale for what will be a season of seven-night cruises from Florida through the end of October. Everyone on the Edge will be vaccinated, confirmed Celebrity Cruises via email: “Our commitment to sail with fully vaccinated crew members and guests still stands as it is a meaningful layer to ensure we make every effort to help keep our guests, crew and the communities we visit safe.”
Now DeSantis finds himself in a pickle of his own making. “Because of the way the vaccine passport conversation was introduced, it quickly became politicized,” says Brian Castrucci, the president and CEO of the de Beaumont Foundation, a private philanthropy that builds community partnerships for public health policy. “The problem for DeSantis is that he’s in a political game of chicken. And the cruise lines are just victims of the politicization of a public health crisis.”
Publicly, DeSantis has shown no sign of backing down, insisting that ships in violation of the law could be fined $5,000 per passenger. “We’ve been very clear, the law is clear in Florida,” Taryn Fenske, a spokesperson for the governor, told reporters on Thursday. “You can’t mandate vaccine passports. We are interested to see how [the CDC] works with them so that they don’t get these exorbitant fines.”
“I mean, we have Florida law,” the governor told reporters on Friday. “We have laws that protect the people and the privacy of our citizens, and we are going to enforce it. In fact, I have no choice but to enforce it.”
But away from reporters’ microphones and cameras, the DeSantis team has been working with the cruise lines to find a solution that would allow the governor to have his political cake and eat it, too.
On a call with travel agents last Thursday, Dondra Ritzenthaler, senior VP of sales, trade support and service at Celebrity Cruises, discussed “the elephant in the room,” according a scoop in the unofficial Royal Caribbean Blog, which is not affiliated with the cruise line. The blog’s founder, Matt Hochberg, was not on the call but obtained an audio recording, which he shared with Forbes.
In the clip, the Celebrity Cruises executive is heard outlining how DeSantis is working with the largest cruise lines — Carnival, Royal Caribbean and Norwegian Cruise Line — to find a workaround. When the governor came out with his prohibition against vaccine verifications, “he was talking about restaurants, bars, hotels, Disney, places that weren’t cruise ships — because at the time, cruise ships weren’t open yet,” explained Ritzenthaler. “And we’re ironing out a statement that will articulate how cruising will be different than [being] in the state.”
Apparently, the revised messaging would assert that the cruise terminal will be in Florida, while “as soon as you pass through and step on the ship, you’re no longer considered to be local. You’re now in international waters,” said Ritzenthaler, who noted that DeSantis will still be able to say “that people in Florida will not have to show vaccination proof to go to bars and restaurants and Walmart and Target, but how cruising is a little bit different.”
Such a narrative would rely on a very creative definition of international waters, according to Walker. “The cruise guest remains squarely within the state territorial waters of the state — in other words, local waters — when he or she boards a ship at the dock,” he says. “There is no legal basis to claim that the passenger is in international waters by boarding the cruise ship.”
There have been clues that the DeSantis administration wants to provide wiggle room for cruise lines to move ahead. When asked about Celebrity Edge’s plan to sail next month, Pushaw was careful not to criticize the cruise line’s decision. “We can’t comment specifically on any case because of the ongoing mediation involving the state and the CDC,” she said. “The ban on vaccine passports is not changing, but in general, the law doesn’t stop private companies from taking other measures to protect against Covid-19.”
A much bigger eye-opener was the May 20 letter sent from Florida’s health department telling Royal Caribbean and Celebrity they could go directly to the CDC for permission to sail. “The Department has limited statutory authority with respect to cruise lines, and the Department’s permission is not required for your company to resume operations,” wrote Dr. Scott A. Rivkees, the Florida Surgeon General. “To be clear, nothing in state law stands in the way of cruise ship operations.”
Hold on, what? Nothing in state law stands in the way?
Regardless of the outcome to the legal mediation, DeSantis can be expected to continue hammering the CDC whenever he has the chance. Citing the governor’s strong position against “medical tyranny,” Pushaw said the agency was providing “coercive ‘guidance,’ in the absence of any federal law or congressional authorization, requiring ships to violate state law.”
That argument would be a lot more compelling if only cruise operators themselves didn’t see vaccine requirements as the fastest track back to sailing. After all, way back in early April, Norwegian Cruise Line had announced its intention to require everyone on board its ships to be “100% vaccinated,” and numerous other cruise lines have followed suit.
It’s hard to imagine that cruise lines are hearing much complaining about vaccine mandates from customers. In a February survey of nearly 3,000 Cruise Critic readers, more than eight in 10 (81%) respondents said they would cruise if a vaccine were mandated prior to setting sail, and only 5% said that a vaccine requirement would deter them from cruising.
“If the cruise lines, as private businesses, want to require a vaccine verification, I think that is something they should be allowed to do,” said Castrucci. “There is no inalienable constitutional right to cruise, so it should be within the cruise lines’ purview to make this decision.”
“You know, it’s an unusual political stand for a Republican governor to limit what businesses can do,” Castrucci said. “Clearly, the governor has painted himself into a corner on this one.”