High and Dry? The Public Readiness and Emergency Preparedness Act and Liability Protection for Pharmaceutical Manufacturers

Abstract

Signed into law on December 30, 2005, the Public Readiness and Emergency Preparedness Act has already proved quite controversial among legislators and members of the media. The Act provides liability protection for pharmaceutical manufacturers in order to spur vaccine production. It also establishes a compensation program for victims of the vaccines' side effects, but fails to fund that program.

This article argues that, though the Act provides needed liability protection, Congress' failure to fund the compensation program could prove disastrous. Failing to assure the American public of a compensation program risks inspiring potential vaccinees to refuse life saving drugs. Additionally, arguments as to the constitutionality of the Act exist should Congress fail to adequately fund the program, and the existence of those arguments undermines the purpose of the Act - namely to assure pharmaceutical manufacturers that they will not be sued into oblivion should they attempt to aid national flu protection. In addition to detailing both the Act and the statutory precedent for Congressional attempts to spur biodefense, this article addresses important issues of health care, tort and constitutional law that will continue to manifest themselves in this new era of bioterrorism.