JUNEAU, Alaska (Jan. 26, 2017) – A bill introduced in the Alaska 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. Bill Wielechowski (D-Anchorage), Senate Bill 19 (SB19) 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.
SB19 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 lawsuits or issuing sanctions based on recommendation or issuance of such investigational treatments. SB19 reads, in part:
A person is not liable in an action for damages for the injury or death of a patient with a terminal illness resulting from the patient’s use of an investigational drug, biological product, or device if the person, acting in good faith and with reasonable care, is a… manufacturer, importer, or distributor… and, before providing the drug, product, or device to the patient’s physician, presented to the physician all treatment options currently approved by the United States Food and Drug Administration for treatment of the patient’s terminal illness and provided written notice of the immunity provided under this section to the patient.
Thirty-three states now 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.
SB19 was referred to the Health and Social Services Committee. The committee must approve the bill before it can receive a full Senate vote.