Protecting Big Pharma from lawsuits isn't the way to build a healthy economy in Georgia|
Georgia Online News Service
So, legislative water-carriers for Big Pharma want to create a safe haven in Georgia for drug companies whose products surprise consumers by causing warts, flatulence, heart palpitations, bleeding, loss of appetite, erections that last more than four hours, depression, suicide, death-by-other-means and many other side effects the corporate giants should have warned us about but didn't.
It's all in the name of creating a good atmosphere for business, says Sen. Bill Cowsert (R-Athens), one of the bills sponsors. "I want to make sure we attract this clean industry to Georgia," he told me. "I see a corridor from Grady [Memorial Hospital] to Athens, a high tech corridor, a bio tech corridor."
That sounds mighty good. But what's "good for bidness" in Georgia often spells dismay for the state's citizens. Senate Bill 101 -- which is pushed by two of Gov. Sonny Perdue's closest allies, Cowsert and Sen. Bill Heath (R-Bremen) – could be aptly titled the Pharmaceutical Corporate Welfare and Elimination of Citizens' Rights Act of 2009. It is, indeed, one of the many corporate welfare giveaways with which Georgia officials are so fond.
And I have one word for the Big Pharma bill: Nuts.
Yes, nuts. As in peanuts. Former Gov. Roy Barnes has told me that this state is among the worst when it comes to protecting consumers. Barnes tried to rectify some of that, but when the Republicans hordes sacked the Capitol, they rolled back sensible consumer legislation such as Barnes' anti-predatory lending law. That the Republicans contributed greatly to the current financial misery of many Georgians by scrapping that law is something that should be long remembered at election time.
Beyond that is a tradition in Georgia and the South that we'll do anything to woo businesses. For decades, the Rebel Yell for "economic development" has been "cheap land and cheap labor." To that has been added the lure of huge taxpayer-funded welfare given to companies so that they'll locate here – and many do, at least until they find a better deal elsewhere. Georgia's landscape is littered with factories whose owners collected "incentives," and them moved on, often to Third World countries, when the gifts ran out.
Now we have a new twist to the corporate welfare: It's called "tort reform," and it's basically a scam to protect irresponsible companies at your expense. That's what behind Cowsert's and Heath's legislation.
The anti-people, pro-business mentality is responsible, at least in part, for the horror show going on in Blakely, where the Peanut Corporation of America (PCA) is accused of knowingly sending salmonella tainted products to consumers. The result has been a wave of nine deaths and 600 sickened people across the nation.
The premise of the Big Pharma bill is that if a company gets approval for a drug from the federal Food and Drug Administration (FDA), consumers who later suffer side effects or die couldn't sue. By that standard, I'm sure the Blakely peanut magnates would like to argue that they were inspected and that it's not their fault federal and state regulators didn't spot the salmonella bugs and blow the whistle.
The peanut case has become far too large for PCA to escape, and that's good news. But if a few years ago, the peanut magnates had sent their lobbyists-bearing-gifts to the Gold Dome with the message that "making us responsible for killing people is really bad for business," the legislators likely would have swooned with love for the companies and crafted a "tort reform" bill such as the Big Pharma legislation. Perhaps it would have stated that unless every single peanut is individually inspected, we couldn't hold a company responsible if a few bad nuts killed some folks.
That's more or less what the Big Pharma relief bill does. Cowsert makes the argument that his law wouldn't protect companies for errors in manufacturing. It only protects them from problems that arise from the design of drugs – problems that weren't detected in testing by the FDA. Nor, Cowsert says, would companies be protected if they committed fraud, such as concealing or manipulating test results. Interesting fact: the FDA allows companies to conceal many studies.
Cowsert's spin sounds good. But it really provides little protection for you. For a start, it creates such a hurdle in proving companies knowingly put a bad drug on the market, it will be almost impossible for a victim to sue. And believe me, the hurdles people already face in suing the drug conglomerates are daunting.
Moreover, a lot goes on with the FDA that is truly scary. For example, drug giant Eli Lilly & Co. markets a FDA-approved drug for depression called Cymbalta, trade name for duloxetine, which the company also tested for a urinary incontinence drug called Yentreve. Eli Lilly withdrew Yentreve from the approval process, and FDA rules didn't make it disclose why. Those reasons are "trade secrets." There were deaths and suicides attributed to the drug, but if you research the subject, you'll find a mess of conflicting reports. The one thing that's clear is that the company capitalizes on the confusion to avoid linking some deaths to the drug. And no one knows all that the company knows, and it would cost a fortune in lawyers' fees to pry lose the information.
Under the Cowsert-Heath legislation, a manufacturer would be off the hook even if the company was gaming the FDA system – a system that invites gaming – to conceal responsibility.
Another example: For years I was involved in covering litigation involving a Monsanto Co. product, rBGH (recombinant bovine growth hormone). It's FDA approved, although banned in many countries. Farmers inject the hormone into cattle to speed growth. Critics, and there are many of them, claim the hormone causes harm in cattle and humans. For people, the alleged problems include premature growth stimulation in infants, breast enlargement in young children and breast cancer in adult females. Plus a lot else.
What's clear is that the science on rBGH is mixed. Despite conflicting evidence, not only has the FDA approved its use, it has tried to stop companies that don't use rBGH milk from labeling their products as hormone free.
Again, under the Cowsert-Heath protect-the-corporations-at-all-costs legislation, the FDA approval – whether or not that approval was based on the best science available and whether or not giant corporations successfully leaned on the agency – would be all that's needed to get a case thrown out of court.
Over the years, I've talked to many companies just like the ones Cowsert says he wants to attract to Georgia. Three years ago, I reported on Novartis, a giant bio-tech firm that located a plant in North Carolina, even though Georgia's incentive package was $17 million more than our neighbor to the north. Why? Did North Carolina have a law banning lawsuits, such as the Cowsert-Heath legislation? Not at all. North Carolina, in general, is much more balanced in protecting consumers and businesses.
However, Mike Cassidy, president of the Georgia Research Alliance at Georgia Tech, told me: "North Carolina has a technically experienced work force. We don't have that here, and that's a sad fact."
Many, many other companies of all varieties have opted for other Southern states because their executives and employees don't relish the idea of sitting for hours each day in our massive expressway congestion. Thus, if the senators were really serious about attracting high tech companies to Georgia, they'd be clamoring for bills to inject money into schools and to come up with the tens of billions of dollars needed to fix our transportation system.
Finally, it's not clear how or why the drug company protection bill came into being. The idea certainly didn't spring fully formed into some senators' brains. The companies that are hiding behind the curtain and pulling the senators' strings are probably outfits that have something to fear. They know they're vulnerable to lawsuits, perhaps because they know they have something to hide.
So, Big Pharma's easy solution: Find some rube legislators in a hick Southern state to give the industry a security blanket.
And the public be damned.
John F. Sugg is executive editor of the Georgia Online News Service. [full bio]