AUSTIN, Texas (June 20, 2023) – On Sunday, Texas Gov. Greg Abbott signed a bill into law to expand the state’s “Right to Try” Act, further rejecting Food and Drug Administration (FDA) rules that deny access to experimental treatments.

Sen. Tan Parker sponsored Senate Bill 773 (SB773). The legislation is an expansion of the Texas Right to Try law that went into effect in June 2015. Under that law, terminally ill patients can access medications and treatments that do not have final FDA approval. The enactment of SB773 expands the 2015 law to enable patients suffering from chronic diseases, rather than only terminal illnesses, to access medications and treatments not yet given final approval for use by the FDA.

After different versions of the bill passed both houses of the legislature, it went to a conference committee to iron out the differences. On May 25, the House passed the final version by a 141-1 vote. The Senate unanimously approved the final version by a 31-0 vote. With Gov. Greg Abbott’s signature, the law went into immediate effect.

The bill defines “severe chronic disease” as “a condition, injury, or illness that may be treated, cannot be cured or eliminated, and entails significant mental functional impairment or severe pain.” Under the law, the executive commissioner of the Health and Human Services Commission will designate specific medical conditions as “severe chronic disease.”

The Federal Food, Drug, and Cosmetic Act generally prohibits 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. Right to Try allows terminally ill patients to bypass the expanded access provision and obtain experimental drugs from manufacturers without first obtaining FDA permission.

Since the Texas Right to Try law went into effect, at least 78 patients in Texas have received an experimental cancer treatment not allowed by the FDA. With the enactment of SB773, patients suffering from chronic illnesses will have the same opportunity.

SB773 includes provisions similar to those in the current Texas Right to Try law. Specifically, the legislation prohibits state officials from any actions that would prevent the lawful administering of experimental procedures to eligible patients. It reads, in part:

“An official, employee, or agent of this state may not block or attempt to block an eligible patient’s access to an investigational drug, biological product, or device under this chapter” unless it is adulterated or misbranded.

This is important since local law enforcement often works closely with federal agencies to take aggressive actions to stop state programs that aren’t in line with federal law. Including this provision ensures that the “boots on the ground” for law enforcement – the locals, won’t be taking any action to stop sick people from trying new treatments. The feds will have to handle it, and they don’t have the manpower or resources to get the job done.

Healthcare providers are also protected under the bill, with a prohibition against revoking a license or issuing sanctions based on recommendation or issuance of such investigational treatments. Manufacturers of medications and treatments are shielded from legal recourse as well.

Congress passed a federal Right to Try law in 2018 after 40 states enacted laws allowing terminally ill patients to effectively bypass the FDA and try experimental treatments without federal permission.

SB773 expands on the foundation established by Right to Try for terminally ill patients, but it doesn’t go as far as a recent Right to Try expansion in Montana that opened up access to experimental treatments to any patient without any eligibility requirements.

Right to Try expansion demonstrates an important strategic point. Passing bills that take a step forward sets the stage, even if they are limited in scope. Opening the door clears the way for additional steps. You can’t take the second step before you take the first.

Mike Maharrey

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