Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006

EMERGENCY SUPPLEMENTAL APPROPRIATIONS ACT FOR DEFENSE, THE GLOBAL WAR ON TERROR, AND HURRICANE RECOVERY, 2006 -- (House of Representatives - March 16, 2006)

This amendment is very simple. It repeals the comprehensive liability protection for vaccine manufacturers by the end of the fiscal year, September 30. I believe some sort of liability protection or indemnification is necessary and appropriate to encourage the development and the manufacture of some measures that are going to deal with a pandemic flu. I would support reasonable language.

Whatever our respective views are about the wisdom of liability protection, the manner in which this particular provision was included in the defense appropriation bill last year is indefensible.

Last December, legislation granting liability protection to the vaccine manufacturers was unilaterally inserted into the defense appropriations bill after the conference had closed, after an understanding verbally and in writing that no legislative liability language would be inserted into the bill. It was done in the dead of night, absent any careful consideration, no public hearings or debate among the Members of this body, nothing. It was the work of one person and one body. It should never have been allowed.

Further, there are now no means for victims who are seriously injured to seek compensation, unlike other Federal vaccine programs: swine flu, smallpox, children's vaccines. Usually when government grants liability exemptions to companies, it provides some form of relief for the consumers who are injured.

As we further discovered about this bill, the liability protection was granted not only to vaccines being developed to prepare us for an avian flu outbreak but also for a far broader range of potential vaccines and medical equipment, just about anything else the HHS Secretary deems appropriate.

This sweeping, unchecked power granted to a Cabinet Secretary is unprecedented, to my knowledge, also sweeping power granted to the pharmaceutical industry. The Congress ought to consider carefully before ceding its authority to this or any administration.

Under this law, manufacturers and their suppliers, distributors and their employees would be shielded from a lawsuit, even if they turned out to be negligent or reckless. None of us would agree that a negligent distributor, someone who ruined a vaccine by mishandling it, for example, should be held harmless. Do we want to say a drug maker who knows a product is defective but chooses to sell it anyway is above the law?

We face a frightening prospect that millions of Americans could contract this deadly flu. Our first priority ought to be inoculating the American public from a deadly strain of flu and not inoculating pharmaceutical companies from the threat of legal liability.

This provision has serious implications. All my amendment seeks to achieve is to grant the full Congress and the committees of jurisdiction the opportunity to fully consider the policy implications of this issue. It accomplishes that by sunsetting comprehensive liability protection to the drug manufacturers beyond this fiscal year. It gives us plenty of time to have the appropriate parties debate this issue thoroughly.

Lastly, let me say a word about the rationale for making this amendment in order, because I understand that my colleagues on the other side of the aisle are preparing to challenge it on the basis of it being in violation of rule XXI and rule XVI, and that is certainly their right.

But before they do, let me ask, where was the concern for the rules when a Member of the other body unilaterally rewrote liability law in this country? Given the complete abdication of procedural norms which made this provision's enactment possible, which we have seen time and time again in this institution, I would ask the majority, spare us the lectures about the need to respect House rules in this instance.

Mr. Chairman, the House should have a full debate on this measure and an up-or-down vote. Let us give this institution the opportunity to reclaim the dignity, and constitutional authority, that the majority renounced in allowing one Member to usurp the power of this body, to bolster himself on this critical issue. That is what this amendment is about.

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Ms. DeLAURO. I would just conclude by saying that this is about inoculating the American public against a deadly flu. We are not in the business and we are not charged with inoculating the pharmaceutical companies from the threat of legal liability. That is not why we were sent to the United States Congress. We are here to protect the public interest and the public trust.

Let us do our job. Let the appropriate committees of jurisdiction deal with this issue; have the companies, have the consumers bring people together. That is simply what this legislation and my amendment is all about.

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