Earlier this month, U.S. Senator David Vitter (R-LA) ostentatiously accepted a petition with over 1.6 million signatures demanding the repeal of Obamacare. Good for him. But Senator Vitter is inconsistent in his response to big government in health care. When it comes to prescription drugs, he has frequently proposed legislation that expands the power of the federal government in questionable and irresponsible ways.
On October 18, Senator Vitter proposed an amendment (to an agricultural bill) that would have given federal approval to the international piracy of prescription drugs — what Senator Vitter and others describe as “importation.” Specifically, Senator Vitter’s amendment states that an individual (who is not in the business of importing medicines) may “import” an unlimited amount of medicines from Canada. Why Canada? Senator Vitter knows that many prescription drugs floating around the world, and available via the Internet, are not from reputable pharmacies at all. But Canada is a friendly, civilized nation where brand-name prescription drug prices are generally lower than they are in this country. Senator Vitter hopes to dampen people’s fears of taking cheap, fake medicines while abandoning any legal recourse in case of harm.
Government has a legitimate role with respect to policing the labeling of products — the federal government especially, with respect to international trade. So one would expect a U.S. legislator proposing such an amendment to be able to point to a treaty with Canada that requires the FDA and its Canadian counterpart to collaborate on this critical function. But no such treaty exists. The Canadian government has no interest in Canada’s limited supply of brand-name prescription drugs being diverted to the U.S. in violation of distribution contracts negotiated in good faith between brand-name drugmakers and wholesalers. It knows that international drugmakers would reduce the supply of medicines to Canada.
Another problem with Vitter’s amendment is that intellectual-property laws are national. There is at least one U.S. patent for every medicine that Senator Vitter wants to expose to international piracy. Indeed, many of these patents are issued to Canadian, British, Japanese, or European drugmakers, all of whom compete against each other on a level playing field in the U.S.
Canada has a different patent law — and some of the countries from which so-called “Canadian” medicines would be shipped have no effective intellectual-property law at all. If Senator Vitter really believes that inventors of new medicines should be uniquely disqualified from patent protection, he is free to make this case – but he should do it in a more above-board way.
Countless branded products in international commerce — from Coca-Cola to iPhones to group licenses for Microsoft Office — sell for widely different prices in different countries. Generally speaking, these prices are determined by differences in national incomes per capita, but also by countless laws and regulations. Manufacturers and distributors of these products could not participate in international trade if national laws prevented them from entering into legally enforceable contracts with distributors that allow them to tailor their offerings for different countries. Senator Vitter cannot explain why drugmakers should be uniquely excluded from laws that protect every other enterprise.
Senator Vitter has a worthy goal: reducing the prices of prescription drugs in the U.S. He can achieve this by reducing the power of the federal government. For example: loosening up the FDA’s monopoly power to approve drugs; removing the federal government’s power to determine whether a medicine can be dispensed over-the-counter or by prescription only; and allowing drugmakers to communicate to patients in plain English instead of incomprehensible bureaucratese. All of these are better avenues for his efforts than allowing the international piracy of medicines.