HONOLULU, Hawaii (Feb. 5, 2016) – A Hawaii bill that 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 passed an important House committee last week.
A coalition of four Democrats introduced House Bill 1013 (HB1013). The legislation would enable terminally ill patients to access to medications and treatments not yet given final approval for use by the FDA.
Last week, HB1013 unanimously cleared the House Committee on Health by a 6-0 vote. The bill now moves on to the Consumer Protection and Commerce Committee for further consideration on Feb. 10.
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.
HB1013 would bypass the FDA expanded access program and allow 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.
Physicians who prescribe these drugs and procedures to patients are shielded from liability under HB1013. The bill states that “No licensing board shall revoke, fail to renew, suspend, or take any action against a health care provider, based solely upon the health care provider’s recommendations to an eligible patient regarding access to, or treatment with, an investigational drug, biological product, or device.”
The manufacturers of such experimental treatments would enjoy similar protection under the proposed law.
HB1013 states that “no official, employee, or agent of the state shall block or attempt to block an eligible patient’s access to an investigational drug, biological product, or device.”
“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.”
So far, 24 other states have passed similar legislation into law. Although Right to Try bills 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.
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.
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