Vermont Bill Would Reject Some FDA Restrictions on Terminal Patients

MONTPELIER, Vt. (Jan. 26, 2016) – A bill introduced in the Vermont Senate would set the foundation to nullify in practice some Food and Drug Administration (FDA) rules that deny access to experimental treatments by terminally ill patients.

Introduced by Sen. Sen. Dick McCormack (D-Windsor) and four bipartisan co-sponsors, Senate Bill 37 (SB37) would give terminally ill patients access to medicines not yet given final approval for use by the FDA.

The Federal Food, Drug, and Cosmetic Act prohibits general access to experimental drugs. However, under the expanded access provision of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 360bbb, patients with serious or immediately life-threatening diseases may access experimental drugs after receiving express FDA approval.

SB37 creates a process to bypass the FDA expanded access program and allows patients to obtain experimental drugs from manufacturers without first obtaining FDA approval. This procedure directly conflicts with the federal expanded access program and sets the stage to nullify it in practice.

The law also provides protection to health care providers, with a prohibition against revoking a license or issuing sanctions based on recommendation or issuance of such investigational treatments. SB37 reads, in part:

Notwithstanding any provision of law to the contrary, no State agency or regulatory board shall revoke, fail to renew, or take any other action against the license of a physician issued pursuant to [the legislation].

In addition, lawsuits against physicians who comply under the terms specified in SB37 are prohibited:

This [legislation] does not create a private cause of action against a manufacturer of an investigational drug, biological product, or device or against any other person or entity involved in the care of an eligible patient using the investigational drug, biological product, or device, for any harm done to the eligible patient resulting from the investigational drug, biological product, or device, as long as the manufacturer or other person or entity complies in good faith with the provisions of this chapter and has exercised reasonable care.

Today, 33 states have Right to Try law on the books. Although these laws only address one small aspect of FDA regulation, they provide a clear model that demonstrates how to nullify federal statutes that violate the Constitution. The strategy narrows the influence of nullification to limited aspects of the law itself, which has proven to be very effective.

“Americans shouldn’t have to ask the government for permission to try to save their own lives,” said Darcy Olsen, president of the Goldwater Institute. “They should be able to work with their doctors directly to decide what potentially life-saving treatments they are willing to try. This is exactly what Right To Try does.”

The Right to Try Act is a no-brainer. When someone is on their deathbed, the fact that FDA regulations would let them die rather than try, has got to be one of the most inhumane policies of the federal government. Every state should take action to nullify the FDA like this.

NEXT UP

SB37 was referred to the Senate Health and Welfare Committee. The committee must approve the bill before it can receive a full Senate vote.

About Tenth Amendment Center
The Tenth Amendment Center is a national think tank that works to preserve and protect the principles of strictly limited government through information, education, and activism. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution. For more information visit the Tenth Amendment Center Blog.

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