Tenth Amendment Center: To the Governor: Alaska Passes Right to Try Act to Reject Some FDA Restrictions on Terminal Patients

From Tenth Amendment Center

...from Tenth Amendment Center

JUNEAU, Alaska (April 26, 2018) – Yesterday, the Alaska Senate unanimously gave final approval to a 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.

Rep. Jason Grenn (I-Anchorage) introduced House Bill 43 (HB43) last year. The bill 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.

HB43 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.

On Wednesday, the Senate passed HB43 by a 20-vote. The House approved the measure by a 40-0 vote last spring. The bill now moves to Gov. Bill Walker’s desk for his consideration.

The proposed law includes protections for healthcare providers, shielding them from legal liability “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 for the purpose of sustaining the patient’s life if the person, acting in good faith and with reasonable care.” The legislation provides similar protections for manufacturers of an experimental treatment.

Forty states now have Right to Try laws 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 results show that the impact of Right to Try isn’t merely theoretical.

Since the Texas Right to Try law went into effect in June 2015, at least 78 patients in the Lone Star State have received an experimental cancer treatment not allowed by the FDA. While the FDA would have allowed these patients to die, Houston-based oncologist Dr. Ebrahim Delpassand continued their treatment through the Texas law. (Watch a video about Dr. Delpassand here.)

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.

WHAT’S NEXT

Gov. Walker governor will have 15 days (excluding Sundays) from the date of transmittal to his office to sign or veto HB43 or it will become law without his signature.

Mike Maharrey
April 26, 2018 at 11:20AM