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98–923 PDF 2005

S. HRG. 109–70

DRUG IMPORTATION: THE REALITIES OF SAFETY

AND SECURITY

HEARING

BEFORE THE

COMMITTEE ON HEALTH, EDUCATION,

LABOR, AND PENSIONS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

EXAMINING THE REALITIES OF SAFETY AND SECURITY REGARDING

DRUG IMPORTATION

FEBRUARY 16, 2005

Printed for the use of the Committee on Health, Education, Labor, and Pensions

(

(II)

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

JUDD GREGG, New Hampshire, Chairman

BILL FRIST, Tennessee

MICHAEL B. ENZI, Wyoming

LAMAR ALEXANDER, Tennessee

CHRISTOPHER S. BOND, Missouri

MIKE DeWINE, Ohio

PAT ROBERTS, Kansas

JEFF SESSIONS, Alabama

JOHN ENSIGN, Nevada

LINDSEY GRAHAM, South Carolina

JOHN WARNER, Virginia

EDWARD M. KENNEDY, Massachusetts

CHRISTOPHER J. DODD, Connecticut

TOM HARKIN, Iowa

BARBARA A. MIKULSKI, Maryland

JAMES M. JEFFORDS (I), Vermont

JEFF BINGAMAN, New Mexico

PATTY MURRAY, Washington

JACK REED, Rhode Island

JOHN EDWARDS, North Carolina

HILLARY RODHAM CLINTON, New York

SHARON R. SODERSTROM, Staff Director

J. MICHAEL MYERS, Minority Staff Director and Chief Counsel

(III)

CONTENTS

STATEMENTS

WEDNESDAY, FEBRUARY 16, 2005

Page

Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming .................... 1

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 2

Carmona, Hon. Richard, M.D., M.P.H., F.A.C.S., Surgeon General, U.S. Public

Health Service, Department of Health and Human Services, Washington,

DC .......................................................................................................................... 4

Prepared statement .......................................................................................... 14

Pawlenty, Hon. Tim, Governor of the State of Minnesota, St. Paul, MN ........... 18

Prepared statement .......................................................................................... 19

Gray, John M., President and CEO, Healthcare Distribution Management

Association (HDMA), Reston, VA ........................................................................ 22

Prepared statement .......................................................................................... 24

Catizone, Carmen A., MS, RPh, DPh, Executive Director/Secretary, National

Association of Boards of Pharmacy ..................................................................... 27

Prepared statement .......................................................................................... 29

Rost, Peter, M.D., Vice President of Marketing for Endocrine Care, Pfizer ....... 34

Prepared statement .......................................................................................... 35

ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:

Pfizer, Inc. ......................................................................................................... 45

Vitter, David, a U.S. Senator from the State of Louisiana, prepared

statement ....................................................................................................... 48

American Pharmacists Association (APhA) .................................................... 49

Allergan, Inc. .................................................................................................... 52

Response to Questions of Senator Kennedy by Richard Carmona ............... 54

Response to Questions of Senator Hatch by Richard Carmona .................... 55

Response to Questions of Senator Enzi by Carmen Catizone ....................... 56

Response to Questions of Senator Enzi by John Gray .................................. 56

Response to Questions of Senator Enzi by Governor Tim Pawlenty ............ 57

Response to Questions of Senator Hatch by Governor Tim Pawlenty ......... 59

Response to Questions of the Committee by Peter Rost, M.D. ..................... 60

(1)

DRUG IMPORTATION: THE REALITIES OF

SAFETY AND SECURITY

WEDNESDAY, FEBRUARY 16, 2005

U.S. SENATE,

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS,

Washington, D.C.

The committee met, pursuant to notice, at 10:01 a.m. in room

SD–430, Dirksen Senate Office Building, Hon. Mike Enzi (chairman of the committee) presiding.

Present: Senators Enzi, Alexander, Burr, Kennedy, and Murray.

OPENING STATEMENT OF SENATOR ENZI

The CHAIRMAN. I will go ahead and call to order this hearing on

Drug Importation: The Realities of Safety and Security.

Our real purpose in having this series of hearings that we are

going to be having is to find out as much as we can about drug reimportation before we do legislation. I know in the ether of Washington, where there are ideas just zipping around in the air all the

time, it is kind of hard to hold up and get the information before

we grab the answers out of the air, but that is what we are going

to try to do with this series, and of course, today, we will focus on

the recently released report by a Health and Human Services task

force on drug importation that was mandated by the Medicare

Modernization Act, and tomorrow, we will be looking at the Department of Commerce’s report on price controls overseas and their implications for American consumers.

We want to get into all of the aspects of the drug industry that

we possibly can. They have done a marvelous job on coming up

with treatments for virtually every disease or on the way to getting

one for every disease, both treatment and prevention. I have noticed that there is a relationship between the number of people affected and the price that can be charged and whether there is a

solution out there yet for that particular illness.

It all has to be balanced with how we are affected by our need

for pharmacists in the United States, and of course, I am a big believer in Main Street and the relationship between the pharmacist

and the individual, and I am real pleased with the program that

they have where they help review the prescriptions that people

have and, in some cases, suggest generics, and at any rate, are saving millions of dollars for people across the United States through

that mechanism.

People probably would not even be considering ordering drugs

from overseas, except that we have gotten used to using the InterVerDate 11-MAY-2000 14:24 Jul 28, 2005 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\DOCS\98923.TXT SLABOR3 PsN: SLABOR3
2

net and have found advantages that the Internet provides, so I do

believe that we can develop an import plan to import prescription

drugs from other countries and still maintain the level of safety

and effectiveness that Americans have come to expect and demand.

In fact, drug reimportation probably cannot happen unless we can

guarantee those things.

So today, we are taking the first step in this process and focusing

our attention on the results of this study. The task force did identify challenges that we have to address if we are to create a feasible drug importation system, and this will give us the opportunity

to examine the results of the report in detail.

I appreciate all those who will be testifying today. If we are going

to open our borders to prescription medications, we had better be

sure how we are going to do it and how it will operate, both in the

short-term and in the long run. We have to do it right, and getting

our questions answered today will be the first step in that process.

Senator Kennedy.

OPENING STATEMENT OF SENATOR KENNEDY

Senator KENNEDY. Thank you. Thank you very much, Mr. Chairman.

I want to thank our Chairman Enzi for having this series of

hearings. As he has pointed out, drug importation has been an

issue that we have considered on the floor. Legislation has been introduced. Unlike many other times when we are considering public

policy, we have the examples of what is happening out in the real

world in a number of communities, in a number of States around

our country.

The United States spend the most in investing in prescription

drugs. We then develop these drugs, and I am a great believer that

we are living in the period of the life sciences. What we have seen

achieved in recent years I think will pale to what the potential

breakthroughs will be in these next several years, and the impact

on life and on our families, I think, is just going to be extraordinary. If we get a breakthrough with Alzheimer’s, we will empty

two-thirds of the hospital beds in my State of Massachusetts. The

opportunities that are out there are just breathtaking.

But as we spend the most, we also charge the most, and we know

that there are similar or the same drugs that are being sold in

other countries that are vastly more reasonable and at a lesser

price. The real question that our seniors have gotten way ahead of

the political leadership on, and understand, is why should we not

be able to take advantage of these?

We hear a lot of reasons for it, safety being the most compelling,

as well as the impact of taking this course of action on profits and

what that will mean in terms of breakthrough on future drugs. We

can examine that issue, which we have been unable to really understand completely over the 40 years I have been in the United

States Senate, and I doubt if we will ever be able completely to understand that whole issue of profits and the companies.

But we have seen some extraordinary efforts by communities. In

Massachusetts, the city of Springfield has been using Canadian

pharmacies to provide prescription drugs for its city employees and

retirees. Springfield’s example led the way for other cities such as

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Boston to do the same, and whole States are involved as well, as

Governor Pawlenty will tell us. The Internet revolution, as the

Chairman mentioned, vastly expanded the opportunity, enabling

patients across America to go to Canada on the Internet and save

thousands of dollars a year on prescriptions. Meanwhile, the European Union has had parallel trade in drugs, one member nation to

another, for decades, and as we will hear from Dr. Rost, parallel

trade in Europe is safe, and it saves money.

American experiences such as Springfield’s and Minnesota’s and

the European experience with parallel trade show us that we can

import drugs safely and that importation will make drugs more affordable. Access to affordable drugs is critical to patients, in

Springfield and in Boston and every city and town in Massachusetts; in fact, it is critical to patients in every American State.

Senators Dorgan, Snowe, Grassley, McCain, Jeffords, Clinton,

Bingaman and I introduced last week S. 334 to allow the importation of safe, FDA-approved drugs manufactured in plants inspected

by the FDA, and we hope it will be enacted quickly this year. It

will allow American patients to buy safe drugs at the fair price

that Canadians and Europeans pay, not the exorbitant prices that

patients are forced to pay here in the United States.

Finally, President Bush has threatened to veto any attempt to

change the new Medicare prescription drug law, and I agree that

nothing should be done to weaken an already weak drug benefit.

We are talking today about the safe importation of prescription

drugs from Canada and Europe, but I believe that the White House

should consider an additional common sense step as well to curb

the costs of the new Medicare law and ensure a better drug benefit

for seniors and the disabled.

By allowing the Medicare program to negotiate fair prices with

drug manufacturers, we could save up to $190 billion over the next

decades. The Veterans Administration has such negotiating authority and it has used it wisely to cut costs and help our veterans with

their prescription drug needs, and I believe that this is a practical

step the White House should consider as well.

I want to join in welcoming our Surgeon General Carmona and

Governor Pawlenty and our other witnesses today, and I again express appreciation to our Chair for having this hearing. Thank you.

The CHAIRMAN. Well, I thank you, and thank you for the bill that

you have submitted and the other bills that have been submitted

by other individuals dealing with drug reimportation. I think that

from the range of interest that we have on it, we will be able to

come up with some good conclusions.

I particularly want to thank Dr. Carmona, the Surgeon General,

for his work on the special task force that came up with the drug

importation report. I thank him for summarizing it in his testimony and then I hesitate but will ask that he summarize the summarization, assuming that everyone who has been here today will

have already read both the full report and your summary so that

we can get—I know there are a lot of questions that people have

that they are really interested in directing at you, so we appreciate

that opportunity.

Dr. Carmona.

4

STATEMENT OF HON. RICHARD CARMONA, M.D., M.P.H.,

F.A.C.S., SURGEON GENERAL, U.S. PUBLIC HEALTH SERVICE,

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

WASHINGTON, DC

Dr. CARMONA. Thank you, Mr. Chairman and Senator Kennedy,

other distinguished members of the committee.

Thank you for asking me to join you today. My name is Richard

Carmona. I am the United States Surgeon General. I was also the

chairman of the HHS Task Force on Drug Importation, which was

comprised of 13 senior executives with diverse experience from

across the Federal Government. In February 2004, then-Secretary

Tommy Thompson created the task force to advise him on questions posed by Congress in the Medicare Modernization Act about

the safety issues surrounding the importation of prescription drugs.

As you know, the role of the Surgeon General is to protect and

promote the health and well-being of the American people. Everything I do as Surgeon General is based in science, and that was

my guiding principle in leading this task force. We went where the

facts and the science led us. In doing so, we also ensured an open

and transparent process. The task force held six listening sessions,

heard from more than 100 presenters, and received information

from over 100 individuals and organizations via our online docket.

In addition, I led a site visit to the John F. Kennedy International Airport in New York City to see how imported drugs are

processed by U.S. Customs and Border Protection and by officials

of the Food and Drug Administration. The visit demonstrated to us

the huge challenge of ensuring the safety of imported drugs.

After that site visit and after listening to all of the presenters,

reading the statements and studying the science, the task force

produced a comprehensive 127-page report. The report has eight

key findings. They are: our current system of drug regulation has

been very effective in protecting the public safety, but it is facing

new threats. Any change to our current regulatory system must be

done with great care to ensure the continued safety and efficacy of

our Nation’s drug supply.

Two, there are significant risks associated with the current illegal importation of drugs for personal use. To name just a few, there

are 355 points of entry for access into the United States. This includes 14 international mail branches, 29 express consignment facilities and 312 ports. FDA inspectors are already stretched thin reviewing the millions of prescription drug packages that currently

pass through those points of entry each year.

We all know that illegally purchasing prescription drugs over the

Internet without a prescription is relatively easy to do. The reality

is that this lack of relationship between a doctor and a patient is

extremely dangerous and potentially fatal. Although some licensed

Internet pharmacies provide a legitimate way to buy medicines,

many Internet pharmacies are not licensed. They are rogue operations that pretend to be legitimate and are actually providing dangerous products, and by dangerous, I mean that these drugs are

often grossly mislabeled, expired, subpotent, superpotent or placebos and have usually been transported improperly with a complete

disregard for safety precautions.

5

Three, the task force found that it would be extraordinarily difficult and costly for personal importation to be implemented in a

way that would ensure the safety and effectiveness of all prescription drugs.

Four, looking at commercial prescription drug importation, the

overall national savings would likely be small. Building the infrastructure to support commercial importation would cost a tremendous amount of money and require significant changes in the law.

Consequently, the savings to consumers would be less than 1 percent of total spending, while intermediaries would probably capture

any other savings.

The public expectation that imported drugs are less expensive

than American drugs is generally not true; example: the prices of

generic drugs in other countries are on average 50 percent more

than prices that Americans pay for the same generic drugs.

Six, legalized importation would most likely reduce the future development of new drugs for American consumers. It is no secret

that pharmaceutical research and development spending may drop.

This would result in fewer new drugs at a higher cost to Americans’ health and well-being.

Seven, the effects of importation on intellectual property rights

are also likely to be significant, and finally, the task force concluded that importation raises new liability concerns for consumers, manufacturers, distributors, pharmacies and other entities.

In closing, I want to state that like you, I truly appreciate the

critical role of prescription drugs in our public health system.

Science has brought us medications that can reduce the risk of

heart attack and stroke, lower blood pressure, cure infection and

save and enhance life. We must find more ways to provide these

life-saving medicines to those who need them. This is being addressed, in part, through the Medicare Modernization Act and the

new Medicare drug discount card.

Today, millions more seniors have access to the drugs they need,

and when the Medicare Modernization Act is fully implemented

less than a year from now, more seniors will have even more access

to the benefits provided by the new law. There are other ways for

consumers to save money on prescription drugs. Over the past few

years, the FDA has worked hard to speed generic drug approvals

and availability, and consumers are being encouraged to comparison shop and to ask their doctor or pharmacist for money-saving

generic alternatives.

Mr. Chairman, this concludes my oral statement. I would ask

that you accept my full written statement for the record. Thank

you, and of course, I would be happy to answer any questions.

The CHAIRMAN. Your full written statement will be a part of the

record. We will be encouraging everybody to look at the report as

well as your full statement, and I appreciate the excellent summary that you have given, and I particularly was impressed with

the number of hearings and people that you talked to, so our hearing is just kind of a summing down of all of the work that you did

before, and of course, something gets lost in the translation every

time there is one of those reductions in information, but I do appreciate all of the effort that you have gone to and the way that you

presented it to us.

6

You suggest that personal importation is not feasible because of

the volume of packages that would need to be inspected, and I assume that this is something that you presented, too, showing the

numerous pictures here of the volume that are being inspected, and

it assumes that we would expect the FDA to inspect every package.

What if we gave the FDA the authority to approve domestic and

foreign Internet pharmacies and gave consumers the information

they needed to know that these pharmacies has been approved by

the FDA and that the buyer should beware of the rest of the Internet and possible hacking into the Internet? Would that be a viable

way to address the safety concerns without expecting the FDA to

inspect every package that comes through the mail?

Dr. CARMONA. Well, sir, I think that the premise you raise is an

interesting one, but whatever Congress choses to consider as a program of importation, we would need to still make sure that the

Internet pharmacies were regulated; that there was a pedigree established for each and every medication from the time of its production to the time it reaches that pharmacy and to the time it is

distributed so that the patient at the other end can be certainly assured that the medication that they have is truly safe and effective

and not one of the adulterated medications that we have seen so

much of like in the pictures that you have seen here at the JFK

center.

So certainly, Internet is one of the many options that could be

considered if Congress decides to go on that path. I would just suggest that there still needs to be a process in place to ensure everything from the manufacturing to the distribution, a so-called pedigree that is established, so that every citizen is sure that they have

a safe medication when they get it.

The CHAIRMAN. Thank you. Leaving the safety of the Internet

and moving to the promise of anticounterfeiting technology to help

ensure the safety and authenticity of prescription drugs, while this

technology sounds promising, until it is universally adopted, I do

not think it can be relied upon to secure safety, efficacy and integrity of the global market to safely import prescription drugs.

I am concerned that the potential cost of keeping such technology

current would raise the cost of imported medicines to the point

where they really would not be cost-saving to the consumers. Could

you tell me anything about the cost of those technologies and how

often they might have to be changed in order to stay ahead of the

counterfeiter?

Dr. CARMONA. Yes, sir, in our committee, we actually asked experts to come forward and give us information on what the stateof-the-art was for so-called track and trace technology, like RFID,

the radio frequency ID just being one example. In the United

States now, there is considerable research going on in this area,

and in some areas, there are tests going on to determine just how

effective these types of technology are.

But as you implied in your question to me, this is a global issue,

and we are far ahead of many other countries in this area. So for

us to be able to use that effectively and partner with other countries for importation or reimportation, they would have to also engage in this technology, and we would have to have once again a

method for tracking and tracing every single medication.

7

The costs are very difficult to estimate. We did ask the experts

during the hearing. Obviously, technology development and application is expensive. Experts have told us that once in place, this

technology would have to be changed fairly frequently or modified,

because the fact is that there will be others out there who will figure out the system and be able to circumvent the processes we put

in place.

So as with many technologies that are used to protect the consumer, we have to stay one step ahead, I mean, just like our engravers do at the Mint with the dollar bill; you know, every so

often, they have to change colors and holograms and so on, because

there are those that figure out the process and use it against us.

The CHAIRMAN. Thank you. As your report noted, allowing the

importation of patented pharmaceuticals would impact the intellectual property rights of the developers of pharmaceutical products.

I am concerned that this would result in a reduction in research

and development spent on pharmaceuticals. Has HHS determined

whether the incentives to invest in R&D would be diminished by

legalizing drug importation? Can you discuss the impact of a reduction in R&D on pharmaceutical innovation and how that, in turn,

could impact America’s access to pharmaceuticals?

Dr. CARMONA. Yes, sir, these are some of the questions that we

posed to the experts who came before us. The task force, being very

diverse and certainly having knowledge in some of these areas,

none of us really had the broader expertise that would be required.

So we actively sought out experts to come and talk to us about

these issues, property rights, intellectual property rights, patent

rights and so on.

There is a concern that certainly, any importation program could

have the potential effect of eroding research and development in

this country by disincentivizing, if you will, those who invest in

this very robust market. We heard time and time again how the

United States is the economic pharmaceutical engine for the world,

the research engine for the world. You know, we were very careful

to ask questions as to what would be the short and long term consequences of any importation.

We heard time and time again from economists as well as scientists, you must be careful if you go down that path, because

there is a chance that in the long run, you may undermine this

very robust industry because people will not be willing to invest as

they have now.

The CHAIRMAN. Thank you. My time has expired.

Senator Kennedy.

Senator KENNEDY. Thank you very much.

Of course, those companies are still making a substantial profit,

even when they sell it at a cheaper price abroad. You make an extraordinarily compelling case, which I think all of us agree with,

and that is that an unregulated black market system has all kinds

of dangers for the American consumer. We all agree with that.

That is not what we are talking about in the legislation that we

have introduced. The former head of the FDA has testified, Mark

McClellan, that you can get safe prescription drugs in a Canadian

pharmacy.

Dr. CARMONA. Yes, sir.

8

Senator KENNEDY. We reviewed, when we passed the FDA legislation in 1997, what different countries in Western Europe and

other countries around the world do to regulate drugs. The Canadians have a first rate system that is respected, as Mark McClellan,

the former head of FDA, said. Now, if they have a sound system,

why can we not find a regulated system like those tried in Massachusetts or Minnesota or Illinois and make importation from Canada safe?

Dr. CARMONA. Senator, thank you for your question.

We do agree, and I agree with my colleague Mark McClellan that

the Canadian system, that part which is regulated, in fact, meets

standards much like our own, that Canadian citizens can rest assured that the medications they get from their regulated pharmacies are good. What we found, though, Senator, is that when we

looked at the data from Customs and Border Protection and others,

we went and visited the JFK facility, that there are many out there

that are purporting to be Canadian pharmacies. In fact, we found

hundreds of Web sites purporting to be Canadian pharmacies when

really, they were offshore gimmicks that were perpetrated on the

public.

In fact, we saw some with FDA seals of approval on them which

we had no knowledge of. When we went to the JFK facility, and

you have some of the pictures there, we saw hundreds and hundreds of packages that come in on a daily basis, some of them

Internet, some of them mail, but all of them that we saw were dangerous, because they were improperly stored, they were improperly

transported, they were knockoffs; in fact, fakes, in some cases,

using what looked to be a normal American label but in fact the

medication inside was not that.

Senator KENNEDY. Well, are we talking then about a technology

to identify for consumers the legitimate licensed Canadian Internet

pharmacies?

Dr. CARMONA. Yes, sir, that is actually one of the things that we

would recommend, that if Congress chooses to go down that path

that we should certainly define the system. It should stay a closed

system, one that is very well defined by you all, and then have the

appropriate technology in place to ensure the pedigree of any medication.

Senator KENNEDY. Well, I think that is certainly what our legislation does, but what is your reaction to—I know the task force reaction—what happens in Europe with the kinds of reimportation

programs that they have there and that apparently have demonstrated safety and have also had impact in terms of savings for

consumers.

Dr. CARMONA. In some of the areas that we looked at, you are

right, Senator, that when there is trade that is clearly regulated

and standardized in pharmaceuticals, it can be done safely. As you

say, some of the EU countries have demonstrated that. However,

the standard that we have established in the United States for

safety and pedigree establishment often exceeds what has been

done in the EU, so yes, it can be done, and we fully support that.

My input to Congress would be any program that you would be

willing to entertain that first should be closed. It should be welldefined. We should know every single point of entry and transport

9

of those medications, manufacture, and it should be regulated to

the highest standards, which really, our FDA has established for

the world.

Senator KENNEDY. Well, I agree with you, and that is why I

hope, Mr. Chairman, we are going to be able to make some

progress on this, because that is certainly what we have attempted

to do with our legislation, the bipartisan bill S. 334. There is the

question whether the European situation is quite the same as ours,

but, of course, they have different languages, so they need different

labels. They still have an outstanding record of safety. We are

going to hear more about it.

I think we are going to hear later about these programs, both in

Minnesota and in my own State, Springfield, that have had very

considerable success. My own sense is that if you have ideas, we

want to work with you as a result of that task force to assure that

we get the best in terms of safety. You have done a good deal of

research in this area. I think you have outlined the kind of gold

standard of what is necessary in terms of safety, and we will certainly want to work with you in the development of our legislation

if there can be improvement.

I think in another hearing one of my colleagues, Senator Clinton,

asked whether you had had a chance to review our legislation, but

I think I will hold on asking you about that. I will submit some

other questions just on generics, and I appreciate your presence

here.

My time is up, Mr. Chairman.

The CHAIRMAN. We can easily do another round here——

Senator KENNEDY. Okay.

The CHAIRMAN. Because—

[Laughter.]

Senator KENNEDY. I like your style.

The CHAIRMAN. We do not have a lot of people waiting to ask

questions.

[Laughter.]

Which really surprises me, because there has been so much attention to this. I am not sure whether they feel that they have the

answers due to the completeness of the report that you did or

whether there is some other reason that we do not have more people at the hearing.

On Monday, I was on CNBC briefly for—I think that was my

fourth national appearance in my 8 years of being here.

[Laughter.]

I am a little reluctant to do that sort of thing, but the program

started off with a Canadian minister talking about what is about

to happen to their market, and he said that they only have 40 million people up there and not all of those are using prescriptions,

and those are coming largely from the United States. He knew that

the United States had 240 million people, and he hoped that our

request for pharmaceuticals out of his country did not swamp them

so bad that they could not have any.

I was listening to some of the detriments that he pointed out

that we would encounter trying to go through their market to get

things for our market. One of the things I am going to be doing

and have started already doing as Chairman is to sit down with

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various groups, the doctors, other providers, the lawyers, the insurance companies, the pharmaceutical companies and even in so far

as possible, the customers, which are the patients.

What I have been asking each of them is what can you do to increase access, provide more quality and keep the cost down? Of

course, the first reaction by everybody is to say what the lawyers

can do or what the insurance company can do and what the doctors

can do. No, no, that is not what we are trying to do here. I want

to know what you can do to hold down the costs, to increase quality

and access.

Once they start thinking about it, I am really pleased with the

ideas that people have come up with for ways that they can participate, and I think that may provide us with some solutions on all

of this. On pharmaceuticals, it seems a little convoluted to me to

have to go through Canada or any other country to get lower-cost

pharmaceuticals, and I did note the concern of the Canadian minister.

Getting back to the questions here, in order to truly implement

safe importation, pending proposals rely on this pedigree that you

have mentioned several times or paperwork that can accompany

the drugs from the foreign suppliers to the exporters in this country. Now, counterfeiters are able to copy packaging, the holograms,

security mechanisms, the shape of the pill, the kind of the bottle.

We have had the FDA testify before on kinds of problems that they

see.

Now, in terms of working with other countries in the context of

this commercial importation, how would we ensure the authenticity

of these paper pedigrees and verify that it is indeed an authentic

document and not something made on somebody’s computer or at

the local Kinko’s? Would other countries have to agree to assure

the accuracy of those pedigrees, or would those kinds of arrangements have to be in place prior to implementation and then change

fairly frequently?

So what have you learned about the willingness of other countries to do this?

Dr. CARMONA. We reached out, Senator, to any and all countries

who would weigh in on this, and really, Switzerland and Canada

were our big takers. There were not a lot of people interested, because they recognized, we heard, the cost of developing such a system: you are right in that looking at the global marketplace, whoever we decided to partner with would have to embrace the same

technology, because what we would be doing is interconnectiveness

in a newly-established system, whichever country we were working

with.

It really goes far beyond paper. What we are really talking is

more advanced technology, which is electronic. There really does

not have to be movement of paper. Tracking and tracing technology

can be done all electronically. But you still have to stay a step

ahead of your adversaries, who are always going to be looking to

figure out a way to make that hologram the same way you do or

the watermark in the medication or somehow get themselves into

our system so that they can, you know, potentially put counterfeit

medications in there.

11

So we are concerned about that. But the underlying premise is

true: we would have to form partnerships, and other countries who

would want to engage in this type of trade with us would have to

fully embrace this technology and the philosophy of the system that

we are creating, yes, sir.

The CHAIRMAN. Thank you, now, my understanding is that the

European Union does not allow importation from outside its borders; is that correct?

Dr. CARMONA. Generally speaking, sir, the European Union acts

much like our States do. There is State regulation, and they have

relationships between countries that are still blossoming in the

new EU, but in general, that is correct.

The CHAIRMAN. Okay, thank you, and one more very quick question: you mentioned that the FDA seal of approval is being used

on some Web sites that definitely are not approved by the FDA. Is

there any kind of international enforcement against that, and

where would that take place?

Dr. CARMONA. Well, it is very limited, sir, and that is why some

of the folks that we found that were doing these things are very

clever. They will put a Web site up in Canada and have a name

that implies they are a Canadian-sanctioned organization, which

lets people believe, oh, Canada has similar standards to the United

States; then, it must be safe.

The fact is that the Canadian Government has told us repeatedly

they do not regulate those sites. They regulate the pharmaceuticals

in Canada for use by their citizens. So anybody can come, spend

$50, put a Web site up, and what we have found, our investigators

have found, that often, the billing is offshore someplace. The drug

is being made in some country far, far away from here, not in Canada. Canada is used as a passthrough so that they can call it a Canadian drug, and the bottom line is the public gets something that

we have no idea if it is safe or effective or could even be harmful

to the public.

We have seen that quite often, both at the JFK Center as well

as the Internet sites that our staff, FDA and DEA and Customs

and Border Protection have investigated.

The CHAIRMAN. Thank you. My time has expired again.

Senator Kennedy.

Senator KENNEDY. Just quickly, did you examine any of the existing city or State import programs in terms of safety? Did you

look at any of those States?

Dr. CARMONA. Senator, we did not look at them specifically. We

did have some of the governors and State officials come and speak

to us about their programs, but we stuck with the questions that

were posed to us by Congress, and we did not go off on many of

those tangents to, you know, look at if those systems were safe and

effective and so on.

Senator KENNEDY. Because I have been impressed by the success, first of all, in safety. In Springfield, MA, a determination was

made about a certain Canadian pharmacy that was highly regarded, and Springfield worked out the contractual arrangements

with tens of thousands of dollars in savings. When FDA looked at

this pharmacy, they had one bad case with insulin. Our legislation

12

does not permit importation of insulin, in part, because of the refrigeration issues.

But other States, as I understand we will hear from Governor

Pawlenty, have a Web site which identifies legitimate Canadian

pharmacies. Although I suppose people can try to hack into the site

to disrupt it like they can any other site—and it has worked. Illinois has used their State Board of Health, and they went up and

examined the companies themselves that they were going to import

from and have very much involved local pharmacies to give patients guidance, and they have had a very impressive program.

Other States in that region now are joining it.

So these programs and our legislation has a way a way of proceeding that I think does about as much as you can do in terms

of safety, and listening to your comments, I think, certainly, we

would meet your criteria. We will, as I mentioned earlier, work

with you, because I think there are a variety of different ways of

doing it. I think these States, these governors, these mayors, have

put safety as a first priority. Nothing is going to be 100 percent

perfect in this world, but the difference that it makes in terms of

prescription drugs, which are so necessary to the health of many

of our seniors and others, has just been extremely dramatic, and

when we are not having negotiated prices for the Medicare prescription drug benefit, as we do in the VA system, our seniors are

under incredible pressure, and I think this fairly cries out for action. But again, I want to thank you and indicate that we will certainly work with you and your task force to give the highest priority to the issues of safety.

I wanted to just mention, Mr. Chairman, on the question we

have for why some of our colleagues are not here. We have Secretary Rice, who just returned, appearing before the Foreign Relations Committee. Senator Dodd is over there. In EPW, on clear

skies, we have Senator Jeffords and Senator Clinton. In the Banking Committee, we have Secretary Levitt in the Finance Committee

and Mr. Greenspan in the Banking Committee, so there are a lot

of pressures on our colleagues. I know, as you do on your side, the

great interest in this issue, because this is really a bipartisan issue

of great concern to our seniors and others.

The CHAIRMAN. Right, you and I will be working with the other

members of the committee to come up with some solutions.

Senator Murray.

Senator MURRAY. Thank you, Mr. Chairman. I really appreciate

your holding this hearing. I think it is really an important one. We

do hear a lot about reimportation at home, and Dr. Carmona,

thank you so much for coming and testifying on the work of your

committee.

I always worry when we start talking about reimportation that

we are not looking at a lot of the real issues that are facing us in

terms of prescription drugs, the coverage gap with Medicare and 44

million people who are uninsured today who do not have access to

any health care whatsoever. When we talk about reimportation, it

is not going to deal with a number of the issues that really are impacting our health care, but it is an issue out there and one that

we need to really understand what we are doing. I have always

been concerned about the safety and efficacy of our drugs and want

13

to make sure that if we move down this road, we do it correctly,

so I appreciate the work that you and the task force have done.

One of the interesting findings that I saw was the degree to

which consumers are already importing drugs into the United

States for personal use, and I know we have had previous hearings

where we have seen drugs that have come in from China and

Belize with Web sites someplace else, and we have had testimony

from families that have been impacted by drugs that have come in

that have had devastating effects.

So we have to be careful what we do. I wanted the chance to ask

you this morning, how do we protect consumers from the risks of

reimportation or from purchasing on the Internet?

Dr. CARMONA. Senator, I think that our most important endeavor

in this task force is the safety to our citizens, as I know it is for

you. The way to do that is to make sure that whatever system Congress decides on that it is what we would define as a closed system,

and closed meaning we have hundreds and hundreds of portals of

entry around the country, and if you then look at each individual

being able to import whenever they want, you have thousands of

combinations and permutations, and we cannot guarantee safety.

A closed system would say these are the sites we can deal with,

whether Internet or fixed. These are the sites that the FDA will

have authority to work with and make sure that the processes are

up to standard, that packaging, marketing, et cetera, transport of

the medication, a pedigree is established. So I think the underlying

premise is that whichever path Congress decides to take that we

make sure the system is prospectively well-defined, and we can ensure the pedigree of each and every medication that comes to us

from any source.

Senator MURRAY. I noticed that the task force asked for comments from foreign governments about their willingness or ability

to implement new or additional protections to ensure safety. Did

you get any comments from any foreign governments?

Dr. CARMONA. Senator, very few. We heard through the grapevine, if you will, that most did not want to comment. They recognized the extreme cost and some of the economic burden it may

place on them to look at this kind of trade. We did hear from Canada, of course, because that was the driving force. We heard also

from Switzerland, but very limited remarks in this area.

But we feel, though, strongly that any partnerships that were

created, that the partner would really have to embrace the technology and the concept of pedigree to ensure safety on both sides.

Senator MURRAY. Can we assume that Canada has the same

drug approval and safety standards that we do or not?

Dr. CARMONA. According to our FDA experts, I have been told

that the regulatory process in Canada is very similar and that Canadians can feel as assured as Americans in purchasing drugs from

Canadian-regulated pharmacies with licensed pharmacists, pretty

much an analogous situation to the United States.

Senator MURRAY. Now, I know that the task force was instructed

to evaluate the safety and security of the U.S. drug supply. But we

have seen evidence that some large purchasers in the United

States like the VA or Medicaid programs get big discounts today

when they do negotiation. Is there any concern that importation

14

would eliminate any of those discounts that we currently have for

Medicaid or for VA?

Dr. CARMONA. Senator, I would only be able to give you a guess

at that. That is not something we studied within the task force.

Senator MURRAY. So you did not look at that at all. Okay, all

right.

Well, I think that we have a real challenge in front of us. I think

people are crying out for lower drug costs. We have to find a way

to get there. But I think one of the things we really have to work

very hard at as policy makers is to make sure we do it safely and

effectively and in a way that American consumers know that their

families are safe when they purchase drugs. So I appreciate the

work of the task force.

Thank you.

Dr. CARMONA. Thank you, ma’am.

The CHAIRMAN. Thank you for your great addition to the record.

Dr. Carmona, I thank you for being here. I thank you for all of

the effort you put into the task force. I am not sure we have had

a Surgeon General that has had quite as diverse a background as

you do, which really contributes to information and decisions that

you make and pass on to us. I am not sure we have had a Surgeon

General before who was in the Army before they went to college

or that served as a paramedic and a nurse as well as a doctor. So

we thank you for that diverse background and the way that that

leads to good decisions.

Thank you for your testimony. We will leave the record open so

that perhaps some other questions can be asked yet to build the

record a little bit more fully. Thank you.

Dr. CARMONA. Thank you, Mr. Chairman; thank you, Senators.

[The prepared statement of Dr. Carmona follows:]

PREPARED STATEMENT OF RICHARD H. CARMONA

INTRODUCTION

Good morning Mr. Chairman and distinguished members of the committee. My

name is Dr. Richard Carmona, and I am the Surgeon General of the United States

Public Health Service. I appreciate having this opportunity to discuss the work of

the HHS Task Force on Drug Importation and issues relating to the importation of

prescription drugs into the United States.

BRIEF OVERVIEW OF DRUG IMPORTATION

The Federal Food, Drug, and Cosmetic (FD&C) Act limits the types of drugs that

may be imported into the United States. Currently, the only types of legally imported drugs are: (1) those that are manufactured in foreign FDA-inspected facilities

and the subject of an FDA-approved drug application, or (2) those that are U.S.-approved and manufactured in the United States, sent abroad, then re-imported to the

United States by the manufacturer under proper controls and in compliance with

FD&C Act requirements.

All imported drugs are required to meet the same standards as domestic drugs,

and thus cannot be unapproved, misbranded, or adulterated. The FD&C Act prohibits individuals from importing unapproved, misbranded, or adulterated drugs

into the United States. This prohibition extends to drugs that are foreign versions

of U.S.-approved medications, and drugs dispensed without a prescription.

Although importing unapproved prescription drugs is illegal, FDA may exercise

its enforcement discretion and not take action against illegal personal importation

in certain situations. FDA has developed a policy to guide its exercise of enforcement discretion with respect to importation of the products it regulates. This policy

is called the personal importation policy, and it was last updated in 1988 in response to concerns that certain AIDS treatments were not available in the United

15

States. Under the policy, FDA exercises its enforcement discretion under certain circumstances and does not stop individuals with serious conditions from bringing into

the United States treatments that are legally available in foreign countries but are

not approved in the United States.

THE MEDICARE PRESCRIPTION DRUG, IMPROVEMENT AND MODERNIZATION ACT

OF 2003 (MMA)

In 2003, Congress passed the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (Medicare Modernization Act or MMA), which provides an important new prescription drug benefit for seniors. MMA also includes provisions

aimed at providing lower cost drugs to consumers.

MMA provides authority for pharmacists and wholesalers to import certain drugs

from Canada, subject to certain conditions. The drug importation provisions in MMA

only become effective if the Secretary of HHS first certifies that implementing the

program will pose no additional risk to public health and safety and will result in

a significant reduction in the cost of such drugs to the American consumer. In addition, MMA directs the Secretary of HHS to grant waivers to permit importation of

a 90-day supply of any FDA-approved prescription drug imported from Canada from

a licensed pharmacy for personal use.

MMA also required the Secretary of HHS to complete a comprehensive study that

identifies problems with implementation of existing law and examines a range of

issues associated with the importation of drugs.

HHS TASK FORCE ON DRUG IMPORTATION

On February 26, 2004, then-HHS Secretary Tommy G. Thompson announced the

creation of a task force to advise him on how to address the drug importation questions posed by Congress in the Medicare Modernization Act. I served as the chairman of the task force, which was comprised of 13 senior executives with diverse experience from across the Federal Government.

The Task Force was charged with gathering input, ideas, and expertise from the

public on issues related to drug importation. One of the main goals of the Task

Force was to ensure an open and transparent process that provided an opportunity

for all views to be heard. To that end, the Task Force held six listening sessions,

including an open public meeting, heard from more than 100 presenters and received information from over 100 individuals and organizations via the Task Force’s

online docket.

Among the presenters were consumer representatives, pharmaceutical industry

representatives, international regulatory and industry representatives, academicians, health care purchasers, professional medical groups, government and elected

officials, and members of the public.

In addition, a group of Task Force members conducted a site visit to John F. Kennedy International Airport in New York City to see how imported drugs are processed daily by U.S. Customs and Border Protection (CBP) and Food and Drug Administration (FDA) officials. This site visit demonstrated to us the huge challenge

of ensuring the safety of imported drugs.

REPORT ON PRESCRIPTION DRUG IMPORTATION

The Task Force produced a report that contains our findings based on all of the

information presented to us and expert views solicited from appropriate government

agencies. The report is available online at http://www.hhs.gov/importtaskforce/.

The key findings of the Task Force are:

1. The current system of drug regulation in the United States has been very effective in protecting public safety, but is facing new threats. It should be modified only

with great care to ensure continued high standards of safety and effectiveness for

the U.S. drug supply.

• Safety and protection of the public health are paramount; safety should not be

sacrificed for affordability.

• There are particular products of concern, including controlled substances, intravenous products, biologics, drugs that must be refrigerated or frozen, drugs that

have specific post-marketing risk management programs, drugs that are highly susceptible to counterfeiting on the global market, and those that have less expensive

alternatives (i.e., generics) in the United States, that pose special concerns in the

importation context.

• To maintain current levels of safety, standards of practice at the level that currently exist in the United States would need to apply to all foreign drug suppliers

under a commercial importation program. In addition, Memoranda of UnderstandVerDate 11-MAY-2000 14:24 Jul 28, 2005 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\DOCS\98923.TXT SLABOR3 PsN: SLABOR3
16

ing (MOU) may be needed with the affected countries to ensure effective enforcement.

• There are promising new and emerging anti-counterfeiting technologies; however, until they are universally adopted, they cannot be adequately relied upon to

secure the safety, efficacy, and integrity of the global market to safely import prescription drugs into the United States.

2. There are significant risks associated with the way individuals are currently

importing drugs that violate the FD&C Act.

• According to CBP, there are 355 ‘‘points of entry’’ for access into the United

States. This includes 14 international mail branches, 29 express consignment facilities, and 312 ports. Given the broad responsibilities assigned to FDA, only a limited

number of FDA inspectors are available to staff the 14 international mail facilities

in the United States that receive millions of small packages a year, where they historically have had to inspect only a small number of large commercial pharmaceutical imports.

• FDA currently does not have sufficient resources to ensure adequate inspection

of current levels of personal shipments of prescription drugs entering the United

States. Moreover, to maintain an adequate inspection of current levels of commercially imported pharmaceutical products would require significant investment in information technology and personnel, among other things.

• Imported drugs are arriving from all corners of the world, including developed

and emerging countries. Nearly 5 million shipments, comprising about 12 million

prescription drug products with a value of approximately $700 million, entered the

United States from Canada alone in 2003. The report estimates that an equivalent

amount of prescription drugs may come in from the rest of the world.

• Many state-licensed Internet pharmacies provide a legitimate means for consumers to access safe and effective medicines, but others raise significant safety concerns. Some sellers of imported drugs are ‘‘rogue’’ Internet pharmacies that pretend

to be legitimate and operate behind facades. Many of the drugs sold over the Internet claim to be interchangeable with the approved U.S. drug, but are not.

• Purchasing prescription drugs over the Internet without a prescription has been

found to be relatively easy to accomplish. In those cases, the lack of an adequate

health professional/patient relationship is of particular concern.

3. It would be extraordinarily difficult and costly for ‘‘personal’’ importation to be

implemented in a way that ensures the safety and effectiveness of the imported

drugs.

• There is no realistic level of resources that could ensure that personally imported drugs are adequately inspected to assure their safety since visual inspection,

testing, and oversight of all personally imported prescription drugs are not feasible

or practical at this time.

• The report estimates that 10 million packages containing prescription drugs entered the United States in 2003. It is estimated that it would cost $3 billion to examine all of these packages.

4. Overall national savings from legalized commercial importation will likely be

a small percentage of total drug spending and developing and implementing such

a program would incur significant costs and require significant additional authorities.

• A commercial importation program could be feasible but would require new

legal authorities, substantial additional resources, and significant restrictions on the

type of drugs that could be imported, which could increase the costs of imported

drugs.

• Total savings to drug buyers from legalized commercial importation would be

1 to 2 percent of total drug spending and much less than international price comparisons might suggest. The savings going directly to individuals would be less than

1 percent of total spending. Most of the savings would likely go to third party payers, such as insurance companies and HMOs.

• Under legalized importation, intermediaries may capture a large part of the potential savings.

5. The public expectation that most imported drugs are less expensive than American drugs is not generally true.

• The prices foreigners pay for generic drugs are on average 50 percent greater

than prices Americans pay for generic drugs.

• There is evidence that greater use of U.S.-approved generic drugs by Americans

could reduce drug spending by billions of dollars annually.

• Foreign drug supplies in many countries that might export to the United States

are sufficiently small relative to U.S. drug consumption as to raise questions about

the sustainability of high-volume exports from those countries.

17

• To the extent that prescription drugs are eligible for importation from the same

company at a lower price than in the United States, potential quantity constraints

imposed by manufacturers or foreign governments would limit the eligible supply

and the benefits to U.S. consumers.

6. Legalized importation will likely adversely affect the future development of new

drugs for American consumers.

• Americans have a greater choice of newly launched pharmaceutical products

than foreigners. In recent years, more than 40 percent of new drugs were launched

first in the United States.

• Under a legalized commercial importation program, R&D spending would drop,

which could result in between 4 to 18 fewer new drugs introduced per decade, at

a substantial cost to society.

• Estimates of reduced benefits, due to reduced R&D spending, to future drug

consumers may range from $5 billion to $20 billion per decade without including

gains from having a greater variety of generics in the future. Reduced benefits may

significantly offset savings from legalized importation.

7. The effects of legalized importation on intellectual property rights are uncertain

but likely to be significant.

• Importation could impact the intellectual property rights of developers of pharmaceutical products and could be subject to challenge under domestic law, including

possibly the U.S. Constitution, and international intellectual property rules.

• It is likely that intellectual property rights holders will exercise their rights to

the fullest extent available under the law and the effects may impact the availability of imported drugs.

• International agreements recognizing intellectual property rights may be affected by the legalization of importation.

8. Legalized importation raises liability concerns for consumers, manufacturers,

distributors, pharmacies, and other entities.

• Allowing prescription drug importation would have uncertain effects on the litigation exposure of manufacturers, distributors, doctors, and pharmacists.

• To deal with these risks, entities in the pharmaceutical distribution chain

would likely take additional costly defensive actions.

• Some potentially liable parties could be unavailable to U.S. courts and, therefore, to consumers, industry, or health care providers.

CONCLUSION

As a trauma surgeon, the former CEO of a health system, and now doctor to the

American people, I understand the critical role that prescription drugs have in our

public health system. It is truly wonderful that science has brought us medications

that can reduce the risk of heart attack and stroke, lower blood pressure, cure infection, and save and enhance life. As a society we must find more ways to provide

these life-saving medicines to those who need them.

President Bush and Secretary Thompson, as well as my task force colleague Dr.

McClellan, have already made great strides with the initial implementation of the

Medicare Modernization Act and the new Medicare drug discount card. Today, millions more seniors are getting access to the drugs that they need, and as the Medicare Modernization Act becomes fully implemented in the coming years, even more

seniors will have even more access to the preventative and drug benefits provided

through the new law.

In addition to the new Medicare drug discount card, there are other ways for U.S.

consumers to save money on domestic prescription drugs. Consumers are encouraged to shop around for price comparisons, ask their doctor or pharmacist for generic alternatives, and take advantage of prescription drug discount cards.

Thank you. I will be happy to answer any questions you may have.

The CHAIRMAN. Can we have the next panel move up to the

table, please? See if we can have the Governor on this side, followed by—it would be the Honorable Tim Pawlenty, the Governor

of Minnesota, from St. Paul, MN; then, Mr. John Gray, president

and CEO of the Healthcare Distribution Management Association

in Reston, VA; then, Mr. Carmen Catizone, the executive director

of the National Association of Boards of Pharmacy, from Mount

Prospect, IL; and Dr. Peter Rost, the vice-president of Marketing

for Endocrine Care of Pfizer.

18

I want to thank all of you for serving on this panel. We know

that it will greatly enhance our knowledge of drug reimportation,

both the realities of the safety and the security. We appreciate the

experience that each of you have had in that area. Again, I will ask

each of you to summarize your testimony. Your full testimony will

be part of the record but if you can do a summary, that would

allow us more opportunity for questions.

Begin with Governor Pawlenty.

STATEMENT OF HON. TIM PAWLENTY, GOVERNOR OF THE

STATE OF MINNESOTA, ST. PAUL, MN

Governor PAWLENTY. Good morning, Mr. Chairman, Senator

Kennedy, members of the committee, thank you for the chance to

be here and share a few thoughts about the Minnesota experience.

Senator Kennedy, Springfield, MA, of course was the pioneer in

this area, and Minnesota was the first State to do it, and we have

got some pioneers there including Senator Dayton and Congressman Gutknecht and others who have helped with our effort and

helped blaze the trail.

In short, I think the American health care delivery system is broken. I think there are many observers who believe it is going to collapse in the next 15 to 20 years for a whole variety of reasons. The

lack of affordability of prescription medicines is one reason, one of

the forces or factors that is contributing to that challenge and I

think a burgeoning crisis. One troubling aspect, of course, is we

have too many Americans who, for a variety of reasons cannot afford or cannot access affordable prescription medicines.

Downstairs in this building, when you enter the Dirksen Senate

Office Building at one of the entrances is a tribute to Senator Dirksen. It honors him for, quote, ‘‘his unerring sense of the possible.’’

We have before us today a chance to make progress on one piece

of a critically important issue for a lot of Americans and certainly

a lot of Minnesotans, and that is access to affordable prescription

medicines.

Mr. Chair and Senators, what you hear in this debate and see

a lot in this debate is the dangling of the shiny object. You see

folks who distract from what is actually happening or what is proposed in legislation to draw your attention to other concerns or aspects. Senator Kennedy, I think you hit it right on the nail when

you said earlier that we are not proposing to go out and encourage

people to use rogue Internet pharmacies or encourage people to access counterfeiters. If you go to licensed, established, credible, reputable Canadian pharmacies, there is no evidence, I repeat there

is no evidence that as applied to those pharmacies, those operations that the safety concerns exist in any manner.

So, what you see in the debate is advocates, the opponents who

come forward with the shiny object and say there are Indonesian

operations; there are Middle Eastern operations; they counterfeit;

they mislabel; they change the doses; they do all sorts of nasty

things. Well, that is all very interesting, but that is not what we

are proposing. We are proposing, ideally, the Federal Government

but at the very least State governments use their regulatory and

health and safety powers to step forward and identify for consumers in a credible, reliable way the licensed, established, credible opVerDate 11-MAY-2000 14:24 Jul 28, 2005 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6601 S:\DOCS\98923.TXT SLABOR3 PsN: SLABOR3
19

erations that can provide these medicines at a discount to Minnesotans and to American consumers, and if we do it that way, as is

the focus of your legislation, there is not a problem.

Then, the question becomes one of logistics. In Minnesota, MN,

like in every other State in the country, we have a large veterans

hospital. Every day, every week, they mail out hundreds, thousands of pharmacy prescription medicines. It is done safely, and so,

the premise being that they can do it from Minneapolis, but you

cannot mail or FedEx or UPS a prescription from Winnipeg to Duluth? I just do not buy it, Mr. Chairman. Neither do the consumers

who are using our service.

In short, what we have is two Web sites, one for all consumers

in Minnesota, one for our State employees. They go on the Web

site. They have to have a prescription from their own doctor. They

download an order form. They send it up to the pharmacy in Canada. It is countersigned by a Canadian doctor. We have gone up,

inspected, contracted with these Canadian pharmacies to meet our

protocols. They have done that.

We have over 9,000 prescriptions who have been fulfilled through

this process, and you know what the number one complaint is in

this process? Our own Federal Government. Our number one complaint is the FDA or the Postal Service or the Customs agency has

interfered and disrupted the delivery of the drugs or delayed the

service. We have had no, zero, none, safety complaints or incidents

with respect to our program.

I think you are well aware of the arguments for and against. I

will not belabor the point and will invite your questions, but I just

encourage you as this debate unfolds to not avert your gaze to the

shiny object, which is the horrible things that we all admit happen

on the Internet. It is full of bad characters, shady characters and

the like, but that is not what we are proposing. We are asking the

government, ideally the FDA, the ones who are best suited, well

suited, equipped, have specialty and expertise to step in and identify the credible, reputable operators in Canada or elsewhere, and

then, it is just a matter of trusting, like we do every day through

our American mail order pharmacies, that we have the logistics

and distribution systems to deliver the medicine. We have done it.

So in closing, I would just say if Congress cannot or will not or

is unable to act, please at least follow the advice of Paul

McCartney when he sang, Let It Be.

[Laughter.]

If you cannot help us, please stay out of the way, and let it be

so that we can continue to demonstrate that this can work. Eventually, we will mount enough evidence where it will become obvious

and compelling. So, help us if you can, but in the worst case, please

let it be. Thank you.

[The prepared statement of Governor Pawlenty follows:]

PREPARED STATEMENT OF GOVERNOR TIM PAWLENTY, GOVERNOR

OF ST. PAUL, MN

Chairman Enzi, Senator Kennedy, and members of the Senate Committee on

Health, Education, Labor, and Pensions, it is an honor to be with you today.

As I entered this building this morning, I saw the tribute to Senator Everett Dirksen carved in the marble downstairs. It strikes a fitting tone for his hearing.

20

It honored Senator Dirksen for ‘‘his unerring sense of the possible that enabled

him to know when to compromise; by such men are our freedoms retained.’’

In an increasingly polarized environment, we need to know when to compromise

and practice the art of the possible.

If ever there was an issue that we can come together on this is it. The rising cost

of prescription drugs has sparked a prairie fire that is spreading across our Nation.

Today we have an opportunity to make bold steps toward progress.

We’ve all heard the arguments about why Americans pay more for prescription

drugs than other countries. But the bottom line is that Americans pay more than

the rest of the world and the price differential puts prescription medicines out of

reach for too many Americans. The current situation is unfair and untenable.

That’s why in Minnesota we’ve decided to take action. We’re taking a method, trying it and finding strong success.

MINNESOTA’S PLAN

The Minnesota Plan for Prescription Drugs has a very simple goal—to get a better

deal for Minnesotans. We have established a program to facilitate the purchase of

prescription drugs from Canada by individuals.

We have established two Web sites—MinnesotaRxConnect.com for all Minnesota

citizens and Advantage-Meds.com for State employees, retirees and their dependents.

Through MinnesotaRxConnect, Minnesotans are able to determine if their prescription medications are available at a lower cost from a Canadian pharmacy, and

if so, how to order them. The site focuses on maintenance drugs that can be shipped

safely from Canada. Only reputable Canadian pharmacies licensed by a Canadian

province, willing to have their facilities and safety protocols reviewed by the Minnesota Department of Human Services are used. The four pharmacies affiliated with

MinnesotaRxConnect have each been visited by pharmacists employed by the State

of Minnesota, including Minnesota Board of Pharmacy inspectors. The site also lets

consumers know if there is a lower cost generic alternative about which they should

see their doctor.

In addition, MinnesotaRxConnect is about more than just Canadian importation.

It provides tips about how to become an informed consumer of prescription medicines including links to other programs that might assist consumers in purchasing

their medications, such as State and pharmaceutical manufacturer programs.

Those individuals wishing to take advantage of the program need to obtain a prescription from their own physician and send a copy of the prescription, an order

form and a medical history questionnaire to the Canadian pharmacy. To comply

with Canadian law, the prescription is reviewed and countersigned by a Canadian

physician. Assuming that all is in order, the pharmacy ships the medication to the

patient by mail in the manufacturer’s original, sealed container whenever possible.

Since the launch of MinnesotaRxConnect a little over 1 year ago, the Canadian

pharmacies have filled more than 9,000 prescriptions for people ordering through

the site. We have received only a couple of complaints about the pharmacies regarding billing issues. Those complaints were quickly resolved by the pharmacies when

the State contacted them. We have received no complaints about the quality, effectiveness or safety of the drugs.

Let me repeat—we have not received a single complaint, out of more than 9,000

prescriptions filled—regarding the quality, effectiveness or safety of the drugs that

were purchased utilizing our prescription drug Web site.

The top complaint we have received is not regarding Canadian pharmacies or

drugs, but about enforcement actions taken by the U.S. Government. A number of

packages shipped by the pharmacies affiliated with our Web sites have been seized

by the FDA, Customs or the Postal Service. When notified, the pharmacies promptly

ship another supply at no cost to the customer.

Consumers who use MinnesotaRxConnect must first visit with their personal physician and get a prescription from them. The prescription is reviewed by Canadian

pharmacists who contact the U.S. physician to clear up any potential problems. The

prescription and the patient’s medical history are then sent to the Canadian physician for yet another review. A Canadian physician then countersigns the prescription.

Recently, the Canadian government has raised concerns about the practice of

countersigning. Canada’s Minister of Health has said he considers physician

countersigning to be unethical. We disagree. We see the countersigning process as

an additional safety check, one more opportunity for a medical professional to review the prescription for potential problems.

21

If the Canadian physician was the only doctor involved, it would be unethical for

them to issue a prescription to someone they had never seen or examined. But in

this process, the Canadian physician is only double-checking a process that first included the patient being examined by their doctor and that doctor issuing a prescription.

Unfortunately, there are some unethical web-based operations that will have a

physician write prescriptions based only on an online questionnaire that the patient

fills out. In such cases, no physician sees the patient. Our system ensures that this

does not happen by requiring that the patient meet with and receive a prescription

from their physician.

Through a second Web site, Advantage-Meds.com, State employees, retirees and

their dependents can purchase certain prescription medicines at no cost through one

of the Canadian mail order pharmacies affiliated with MinnesotaRxConnect.

During 2004 (May 13—Dec 31):

1. 1,861 members enrolled.

• Eligible members include 48,000 employees and 72,000 dependents;

• A member can enroll but not order a drug;

• A member can order more than one drug.

2. 3,166 drugs were ordered.

• An order is one 3-month supply of one drug;

• Represents about 1 percent of the drugs purchased by members.

3. 27,526 persons made 42,232 visits to the Web site.

4. $577,479 was spent by program.

• Average of $76,992 per month (7.5 months);

• Average cost of $184 per drug (3 month order).

5. Approximately $300,000 was saved by program and members.

• $98 per drug;

• $53 to program in reduced costs;

• $45 to members in waived co-payments;

• Results meet initial expectations.

We recognize that these measures are not the long-term solution. They are, however, designed to provide short-term relief and to build pressure for long-term reform.

ENSURING SAFETY

Those who oppose reimportation often talk of great problems with safety. On this

point, it is important to be clear about what we have done.

We reference services available from established, reputable, credible, accredited

Canadian pharmacies. There is no evidence to suggest such pharmacies are unsafe.

To the contrary, Minnesota Board of Pharmacy surveyors have visited the pharmacies and found no significant problems. Canadians are not dying or at risk because of their system. Assertions that a program like Minnesota’s is unsafe suggests

either the pharmacies we have chosen are unsafe or they are too inept to properly

mail or deliver medicines safely. Neither is true. Moreover many reputable, established pharmacies in the United States already use a mail order, Internet or phone

order system. The FDA apparently thinks it works well for them. For example, the

Veterans Hospital in Minneapolis mails out a large number of prescriptions to patients each week.

Our program should not be confused with the questionable Internet pharmacy or

‘‘storefront’’ marketing entities that offer or have offered their services to U.S. citizens with little or no oversight. We agree that such operations present an unreasonable safety risk to consumers.

Our Department of Human Services conducted a review of Canadian practices,

similar but independent of that done by the State of Illinois. We came to the same

conclusion that they did: the Canadian system is comparable to ours in safety standards.

There is a misperception that reimportation from Canada is some risky endeavor

in which we give up safety to use a Third World apothecary just to save a dime.

Canada’s pharmaceutical regulatory system is strong and effective. At the State

level, we continue to monitor and ensure that those pharmacies serving our citizens

are held to the highest standards of safety.

Let me briefly explain to you some of the safety and security protocols we are

using as part of our reimportation program:

1. The pharmacies associated with our Web site are licensed by the Canadian

province in which they are located;

2. The pharmacies have agreed to allow unannounced inspections of their facilities, and the Minnesota Department of Human Services Pharmacy Program ManVerDate 11-MAY-2000 14:24 Jul 28, 2005 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 S:\DOCS\98923.TXT SLABOR3 PsN: SLABOR3
22

ager, who is a pharmacist, has conducted unannounced follow-up visits to all four

pharmacies;

3. Medications are dispensed in the manufacturer’s unopened, safety-sealed containers in appropriate amounts whenever possible;

4. Medications shipped are approved for use in Canada by the Therapeutic Products Directorate of Health Canada, which uses standards similar to those of the

FDA when approving drugs.

THE INDUSTRY’S ACTIONS

Pharmaceutical manufacturers such as Merck, Pfizer, Eli Lilly and others have

withheld supplies of prescription drugs from Canadian pharmacies that serve Americans.

Their actions are unfortunate. I urge this committee to review the comments and

actions of the companies involved.

MINNESOTA IS READY TO LEAD THE WAY

The States are often called the ‘‘laboratories of democracy.’’ The State of Minnesota is proving that again by moving ahead in implementing this prescription

medicine plan.

Let us be the experiment. Let us try it. Let us continue to put the arguments to

the test. If it doesn’t work, we’ll admit it. The current system is not ‘‘safe’’ because

too many people can’t afford their medicine.

Thank you very much.

MINNESOTA RXCONNECT ONLINE

Minnesota RxConnect Online, www.MinnesotaRxConnect.com, was created to provide Minnesotans information on issues related to prescription medicine, safety and

cost-saving tips, and programs to help low-income Minnesotans pay for prescription

medications.

This site also provides Minnesotans with information about accessing lower-cost

prescription medicine from Canada. The site hosts a list of medicines and prices

available through four Canadian pharmacies. Consumers can print order forms from

the site for individual use in placing an order with a pharmacy. (Orders cannot be

placed online through the site.)

SITE ACTIVITY FROM JAN. 30TH (LAUNCH DATE) THROUGH JANUARY 2005

Total number of site visits (aka ‘hits’): 174,599

Total number of prescriptions ordered: 9,006

Total cost of all prescriptions ordered: $1,119,190

Number of medications listed on the site (at launch): 821

Activity by Pharmacy

Total Care

Pharmacy

Granville

Pharmacy

Canada U.S.

Pharmacy

CanadaDrugs

.com Totals

New prescriptions .............................................................. 1,214 1,881 2,015 509 5,619

Refill prescriptions ............................................................ 1,198 1,018 918 253 3,387

Total prescriptions ............................................................ 2,412 2,899 2,933 762 9,006

Average cost of prescription ............................................. $126.38 $148.06 $136.00 $115.92

The CHAIRMAN. Thank you for your enthusiastic and innovative

testimony. We really appreciate that.

Mr. John Gray.

STATEMENT OF JOHN M. GRAY, PRESIDENT AND CEO,

HEALTHCARE DISTRIBUTION MANAGEMENT ASSOCIATION

(HDMA), RESTON, VA

Mr. GRAY. Thank you, Mr. Chairman, Senator Kennedy, members of the committee.

23

My name is John Gray. I am the president and CEO of the

Healthcare Distribution Management Association, HDMA. We have

worked with our members, the Nation’s 46 full-service distributors

to secure a safe, efficient, reliable distribution system that provides

life saving health care products and services. Our member companies are responsible for the daily delivery of over 9 million of the

Nation’s prescription drugs to more than 130,000 retail pharmacies, hospital, nursing homes, clinics and other provider sites in

all 50 States.

My purpose here is to emphasize four key points: the primary responsibility of the health care industry is to ensure patient safety

and health. Our mission as a health care distributor is to ensure

that the prescription drug supply chain remains safe, secure and

tightly regulated. Any efforts to permit importation of prescription

drugs from abroad must not weaken this system.

Significant efforts are underway and should continue to further

secure our own domestic supply chain in the face of what we see

as an increasing incidence of counterfeit and adulterated products

entering our markets from domestic and foreign sources. There is

no single solution to secure the integrity of the prescription drug

supply. The only effective response is a series of multiple strategies, including participation from all participants in our supply

chain here in the United States.

The Nation’s drug system is highly regulated at both Federal and

State levels. The Federal and State partnership has served the Nation well to date. However, even the United States now is no longer

immune from the growing and increasingly sophisticated threat of

counterfeiting. According to the FDA, the number of instances

where counterfeit products have been breached into the domestic

supply chain that have been reported to them have gone from six

cases just 5 years ago to over 22 cases in the year 2003.

Given the increasing sophistication and frequency of counterfeiting, it is imperative that we remain vigilant and seek new approaches to secure the domestic prescription drug supply. The effort should include three items: strengthening government regulation, oversight and enforcement; adopting new technologies; and

developing and implementing what we call best industry practices.

HDMA joined the FDA’s call for States’ review and revised their

current wholesale licensing statutes and regulations. We have undertaken the added step of drafting our own model legislation

under consideration in multiple States. This bill calls for additional

requirements to be met in order to receive a prescription drug distribution license as well as increased State oversight and enforcement measures. While many States have taken the licensure and

inspection responsibilities seriously, we at HDMA remain concerned that too few States have devoted sufficient attention and resources to this area.

We believe that significant variation in the levels of State regulation of pharmaceutical distributors has led to inconsistent standards being applied across the United States. We think this must

change and will continue to advocate for stronger, more uniform

national standards for the licensure of pharmaceutical distributors.

HDMA also believes that technology can serve an important role in

24

securing our drug supply. However, no single technology can prevent counterfeiting by itself.

We believe that deployment of electronic product codes, radio frequency ID or RFID hold the most promise for tracking and tracing

and authenticating product movement across our supply chain.

Using RFID technology, a tiny radio frequency chip containing essential data in the form of an electronic product code will allow

supply chain stakeholders to track the chain of custody, or as it is

called, pedigree of every unit of medication on an individual basis.

Tremendous progress is being made in the development of technology. It is a monumental endeavor. It is going to require a lot of

collaboration among all key players in the supply chain in order to

get this technology instituted across our country. We are working

closely with standard development organizations, for example, the

EPC Global, to further the awareness and adoption of the EPC in

health care both in the United States and abroad, and we have

been an advocate for the adoption of this technology here in this

country.

FDA’s November 15, 2004, issuance compliance guide for implementing RFID feasibility study and pilot programs we think was

an important and essential step in getting the technology off the

ground. It will take an unwavering commitment from both the government and each of the supply chain partners to realize the adoption of this RFID technology in any kind of measured or meaningful way.

Finally, the entire supply chain and HDMA are constantly working to identify new ways and developing voluntary business practices that will assure product safety. In conclusion, we recognize

the public trust placed upon them to ensure that our members provide authentic pharmaceutical products that are handled, stored

and ultimately dispensed to patients safely and efficiently. Our

message to the committee today is that securing the Nation’s prescription drug supply requires a constant vigilance in the face of

increasingly sophisticated international threats.

We do not believe there is a single solution to the effort; rather,

a combination of approaches involving both government and supply

chain partners. We think technology will play an important role,

but technology is evolving and has to be combined with stricter regulations and best business practices. Any consideration of the importation of drugs from abroad must incorporate, we think, these

multiple strategies. The health and safety of our Nation, literally,

is at stake.

Thank you very much.

[The prepared statement of Mr. Gray follows:]

PREPARED STATEMENT OF JOHN M. GRAY

Thank you, Mr. Chairman and members of the committee for this opportunity to

provide testimony on current efforts to further ensure and strengthen the integrity

of the Nation’s prescription drug supply. I appreciate the opportunity to provide the

perspective of the domestic healthcare distribution industry as this committee considers the issue of importation of prescription drug products from abroad.

My name is John Gray, and I am the President and CEO of the Healthcare Distribution Management Association (HDMA). For more than 125 years, HDMA has

worked with its members—the Nation’s 46 full-service healthcare distributors—to

secure a safe, efficient and reliable distribution system that provides life-saving

healthcare products and services. On any given day, HDMA’s member companies

25

1Pub.L.No. 100–293 (1988) (codified as amended at 21 U.S.C. § 353 et seq. (1992)).

2 Id. §§ 2(1), 2(8). 3 A drug is deemed legally adulterated unless it is manufactured and held in conformance with

current good manufacturing practice (GMP). GMP is intended, among other things, to assure

that drugs are properly handled and stored at all times before they are dispensed to consumers.

21 U.S.C. § (a)(2)(D)

are responsible for delivering 9 million of the Nation’s prescription drug products

to more than 130,000 retail pharmacies, hospitals, nursing homes, clinics and other

provider sites in all 50 States.

My purpose here today is to emphasize four principal points:

1. The primary responsibility of the healthcare industry is to ensure patient

health and safety.

2. Our mission as healthcare distributors is to ensure that the prescription drug

supply chain remains safe, secure and tightly regulated. Any efforts to permit the

importation of prescription drug products from abroad must not weaken this system.

3. Significant efforts are underway, and must continue, to further secure the domestic supply chain in the face of increasing incidents of counterfeit and adulterated

products entering markets, both domestic and abroad.

4. There is no single solution to secure the integrity of the prescription drug supply—the only effective response is one that involves multiple strategies and includes

the participation and commitment of all supply chain partners.

Patients in the United States expect that when they receive a prescription from

their medical provider, the medication will be available for dispensing upon their

arrival at a pharmacy. They expect and deserve authentic medicine that has been

handled and stored properly. Each member of the supply chain—from the manufacturer, to the distributor, to the pharmacy—has an important role and we must work

in tandem to ensure a safe and reliable supply of prescription drugs for patients.

CURRENT REGULATORY ENVIRONMENT

The responsibility to provide a safe and reliable supply of prescription drugs requires constant vigilance. The Nation’s drug distribution system is highly regulated

at both the Federal and State levels of government, under the Prescription Drug

Marketing Act1 (PDMA), which was enacted in 1988 and amended in 1992. At the

time of the PDMA’s original enactment, Congress found that ‘‘American consumers

[could not] purchase prescription drugs with the certainty that the products [were]

safe and effective,’’ and that there [was] an ‘‘unacceptable risk that counterfeit,

adulterated, misbranded, subpotent, or expired drugs will be sold to American consumers.’’ 2 The PDMA established a closed and highly regulated domestic supply

chain. The PDMA also established minimum Federal licensing standards and delegated to the States the responsibility to serve as the licensing bodies. The States,

therefore, are empowered to inspect, regulate and approve the firms conducting

business as pharmaceutical distributors.

HDMA full service distributor members are also strictly regulated by the Drug

Enforcement Administration (DEA), both as distributors of List I Chemicals and

Controlled Substances. The DEA, along with State Controlled Substance Authorities, add an additional and important level of inspection and regulation of our member facilities, ensuring that products with abuse potential are kept in a highly secure environment with strong recordkeeping requirements.

This Federal/State regulatory and oversight partnership has served the Nation

well to date. However, even the United States is not immune from the growing and

increasingly sophisticated threat of counterfeiting. According to FDA’s report entitled, ‘‘Combating Counterfeit Drugs’’ (February, 2004), patients in some countries actually have a better chance of getting a fake drug than the legitimate product.

While still extremely rare, instances of counterfeit or adulterated3 products entering

the domestic supply chain have been on the increase in recent years. According to

the FDA, the number of instances where counterfeit products have breached the domestic supply chain has increased from 6 cases in the year 2000 to 22 cases in 2003.

Each of these situations poses a serious public health threat. As healthcare distributors, we recognize there is no greater responsibility than doing everything we can

to ensure that the products we deliver to pharmacies and other healthcare providers

are authentic, and have been stored and handled properly.

ONGOING SUPPLY CHAIN IMPROVEMENTS

Given the increasing sophistication and frequency of product counterfeiting, it is

imperative that our Nation remains vigilant and constantly seeks new approaches

26

to further secure the domestic prescription drug supply. These ongoing efforts include:

1. strengthening government regulation, oversight and enforcement;

2. adopting new technologies; and

3. developing and implementing industry best practices.

1. STRENGTHENING GOVERNMENT REGULATION, OVERSIGHT & ENFORCEMENT

With regard to the strengthening of regulations that provide oversight and licensure of domestic healthcare distributors, HDMA joined in the FDA’s call for States

to review and revise their current wholesale licensing statutes and regulations.

HDMA has taken the added step of drafting model legislation that is under consideration in multiple States. This HDMA model bill calls for additional requirements

to be met in order to receive a prescription drug distribution license, as well as increased State oversight and enforcement measures.

While many States have taken their licensure and inspection responsibilities seriously, we remain concerned that too few States have devoted sufficient attention or

resources to this area. For example, some States will issue a distribution license

without ever conducting a pre-license inspection. Many States struggle with the

ability to regulate out-of-state distributors in an industry that is increasingly shipping products across State lines. Many States also are slow to update and make

publicly available the licensing status of a distributor or pharmacy.

HDMA believes that significant variation in the levels of State regulations of

pharmaceutical distributors has led to inconsistent standards being applied across

the States. We believe this must change and we will continue to advocate for stronger, more uniform national standards for the licensure of pharmaceutical distributors. HDMA believes an essential responsibility of government is to ensure that only

legitimate, law-abiding organizations are licensed to distribute pharmaceutical products.

2. ADOPTING NEW TECHNOLOGIES

HDMA strongly believes that technology can serve an important role in securing

the Nation’s prescription drug supply; however, no single technology can absolutely

prevent counterfeiting. Rather, a layering of various strategies can create a significant barrier to entry. Overt and covert authentication technologies currently are

being used by manufacturers today.

As those who seek to introduce counterfeit or adulterated products into the supply

chain become more sophisticated, so, too, must the technologies that manufacturers,

distributors and pharmacies employ to frustrate and defeat them. We believe technologies employing electronic product codes (EPC)/radio frequency identification

(RFID) hold the most promise for tracking, tracing and authenticating a product’s

movement across the supply chain. Using RFID technology, a tiny radio frequency

chip containing essential data in the form of an electronic product code will allow

supply chain stakeholders to track the chain of custody (or pedigree) of every unit

of medication on an individual basis. By tying each discrete product unit to a unique

electronic ID, a product can be tracked electronically through the supply chain.

Further, EPC/RFID technology represents an opportunity to significantly improve

efficiencies in managing supplies and inventory. According to a recent HDMA

Healthcare Foundation Report entitled, ‘‘Adopting EPC in Healthcare: Costs and

Benefits,’’ patient safety can be enhanced and efficiencies to the healthcare supply

chain can be achieved via the industry-wide adoption of EPC/RFID. EPC/RFID is

more efficient and cost-effective than paper pedigrees or alternative electronic tracking methods that do not involve the serialization of individual products. Paper pedigrees have been forged in previous domestic counterfeiting situations. Moreover,

paper pedigrees would literally halt the efficient distribution of drugs given the volume of products delivered and the sophisticated automation technology utilized to

do so safely and efficiently.

I am pleased to report to the committee that tremendous progress is being made

in the development and adoption of EPC/RFID technology with respect to pharmaceutical products. This is a monumental endeavor that will require close collaboration among all constituents of the healthcare supply chain and will take several

years to proliferate the market in the United States. Industry, commercial vendors

and government agencies are working together to develop the necessary standards

for communication of tagged items across the supply chain. HDMA is working closely with standards development organizations such as EPCglobal to further the

awareness, adoption and implementation of EPC in healthcare. While progress is extremely positive, there are many hurdles to overcome including business and technology challenges such as data management issues, interoperability of tags and

27

readers and standards development. HDMA’s focus has been to advocate for the

adoption of this technology in the United States.

FDA’s November 15, 2004 issuance of a Compliance Policy Guide (CPG) for implementing RFID feasibility studies and pilot programs was an important and essential

step in moving this technology forward. The policy guide clarified the Agency’s position with regard to any labeling or current Good Manufacturing Practices (GMP)

issues that may arise by affixing an RFID tag to a pharmaceutical product. Several

manufacturers and distributors simultaneously announced their intention to move

forward with pilot programs that will involve the tagging of products susceptible to

counterfeiting. These studies will significantly enhance the understanding and operability of this technology in the healthcare system.

Although the industry is moving forward in the development and adoption of

EPC/RFID technology, it will take time and an unwavering commitment on the part

of government and each partner in the supply chain to realize adoption of RFID

technology in a measured, meaningful and universal way. HDMA members look forward to the support of the committee in ensuring that our laws and regulations continue to support the adoption of this important and patient safety enhancing technology.

3. DEVELOPING AND IMPLEMENTING INDUSTRY BEST PRACTICES

Finally, the entire supply chain is constantly identifying new ways to improve

upon business practices that can enhance product safety. Many of HDMA’s full service distributor members have adopted a voluntary set of best practices known as the

‘‘Recommended Guidelines for Pharmaceutical Distribution System Integrity.’’ These

guidelines establish a rigorous due diligence process for pharmaceutical distributors

in order to further protect the integrity of the pharmaceutical supply chain.

CONCLUSION

In conclusion, HDMA members recognize the public trust placed upon them to ensure that authentic pharmaceutical products are handled, stored and ultimately,

dispensed to patients safely and efficiently. Our message to the committee today is

that securing the Nation’s prescription drug supply chain requires constant vigilance in the face of increasingly sophisticated threats. We do not believe there is

a single solution to this effort; rather, a combination of many approaches is required, involving the government and all supply chain partners. Technology plays

an important and essential role in this effort, but technology is evolving and must

be combined with strict regulation and best business practices to be most effective.

Any consideration of the importation of prescription drugs from abroad must, at a

minimum, incorporate these multiple approaches to safety and security. The health

and safety of our Nation, literally, is at stake.

HDMA appreciates this opportunity to provide the perspective of the Nation’s fullservice healthcare distributors on these critically important issues.

The CHAIRMAN. Thank you.

Mr. Carmen Catizone.

STATEMENT OF CARMEN A. CATIZONE, MS, RPH, DPH, EXECUTIVE DIRECTOR/SECRETARY, NATIONAL ASSOCIATION OF

BOARDS OF PHARMACY

Mr. CATIZONE. Thank you, Mr. Chairman, Senator Kennedy,

other members of the committee. I am honored to be here today

and respond to the committee’s request on if and how the National

Association of Boards of Pharmacy Verified Internet Pharmacy

Practice Site Program could be utilized to help assure the safety of

drugs purchased over the Internet if the United States were to legalize drug importation.

The VIPPS program was introduced in 1999 by NABP and incorporates traditional regulation and licensure with consumer empowerment to help consumers discern legal and legitimate pharmacies from rogue pharmacies. The VIPPS program allows consumers to make an educated choice about what pharmacies they should

use and directs them to licensed and regulated pharmacies. There

28

is no other program in the world that matches the VIPS program.

The majority of programs representing themselves as accreditation

or certification bodies for Internet pharmacies are simply promotional vehicles for Internet entrepreneurs and charlatans.

In NABP’s opinion, the only means of providing assurances for

the importation of medications into the United States is the development of a sound regulatory framework that allows only drug

products that are approved by the FDA and manufactured in FDAregistered facilities to be imported in the United States for dispensing to U.S. patients through U.S.-licensed pharmacists and pharmacies. Clearly, the VIPPS program can be implemented to ensure

that foreign pharmacies and wholesale distributors are dispensing

medications in accordance with State and Federal laws.

To structure an importation model, NABP would define a new

category within its VIPPS program: an international VIPPS patient

care pharmacy that would identify VIPPS-accredited pharmacies

outside the United States. NABP would amend the VIPPS criteria

to address international practice and focus on areas that document

and provide evidence on an ongoing basis that the drug products

being distributed were FDA-approved and originated from FDAregistered facilities. This discussion would focus, again, on the pedigree, which has been mentioned several times in the hearing.

We would also work with United States and foreign pharmacy licensing authorities to develop mutual enforcement agreements

with the pharmacy jurisdictions in the United States and other

countries that would regulate international pharmacies by requiring the licensure, registration of these entities by the appropriate

authority in the country where the facility is located as well as

where the patient resides.

As importation has evolved, the model has changed. We have

seen the medications go from the pharmacy to the patient, from the

pharmacy to a wholesale distributor to the patient, from the wholesale distributor to the pharmacy to the patient. It is critical to include the entire process in the regulatory model so that the loop

is closed, and the integrity of the U.S. distribution system is maintained.

On this important note, serious consideration should be given to

the regulation and the accreditation of foreign wholesale distributors. NABP’s Verified, Accredited Wholesale Distributors Program,

which is now in operation and was created in response to the

FDA’s report on counterfeit drugs, provides a mechanism for the

States and for the industry to accredit prescription drug and device

distributors that helps to ensure the safety of the U.S. drug distribution system and thwart the introduction of counterfeit products.

In closing, NABP appreciates the opportunity to share our comments with the committee. We respectfully request that the committee recognize that allowing and encouraging the illegal purchase

and importation of prescription medications from other countries

without the appropriate regulatory safeguards is a serious threat

to our regulatory foundation and patient safety. NABP requests

further the committee’s consideration and assistance in preserving

the sanctity of current regulations, so as to prevent patients from

being seriously injured by the illegal importation of drug products

29

from countries where U.S. laws and regulations are being ignored

or the laws and standards for drug safety and patient care are

below the standards here in the United States

NABP also respectfully asks consideration to the importance of

Federal and State laws, maintaining the FDA drug approval and

monitoring process, and the adoption of solutions that are focused

on patient safety such as the VIPPS and VAWDS programs. Thank

you.

[The prepared statement of Mr. Catizone follows:]

PREPARED STATEMENT OF CARMEN A. CATIZONE

Chairman Enzi and members of the committee, I am honored to respond to the

request of the committee and present information concerning the National Association of Boards of pharmacy (NABP) Verified Internet Pharmacy Practice Sites

(VIPPS) program. Hopefully this information can/will assist the committee in determining if and how the VIPPS program could be utilized to help assure the safety

of drugs purchased over the Internet if the United States were to legalize drug importation.

The NABP was founded in 1904. Our members are the pharmacy regulatory and

licensing jurisdictions in the United States, District of Columbia, Guam, Puerto

Rico, and the Virgin Islands, eight provinces of Canada, two Australian States, New

Zealand, and South Africa. Our purpose is to serve as the independent, international, and impartial Association that assists States and provinces in developing,

implementing, and enforcing uniform standards for the purpose of protecting the

public health.

In May, 2004, we appeared before the Health and Human Services’ (HHS) Task

Force on Importation chaired by Richard H. Carmona, M.D., M.P.H., F.A.C.S.,

United States Surgeon General. At that time we stated NABP’s opposition to the

illegal importation of drug products and presented information to document the

compromise of our medication system and State regulation of the practice of pharmacy that is occurring because of the illegal importation of drug products. Our testimony also noted that the member States of NABP adopted a resolution which resolved:

That NABP continue to oppose the illegal importation of medications and express

to the Food and Drug Administration (FDA) the concerns of its member boards and

strongly urge the FDA or appropriate legal authority to pursue actions against State

and local governments for endorsing, promoting, or engaging in the illegal importation of medications.

The illegal importation of drugs from Canada and other countries is one of the

most complicated and frustrating issues confronting pharmacy regulators. It is an

issue that has the potential of altering how drugs are approved, medications are dispensed in the United States, and the practice of pharmacy is regulated. In fact, if

the illegal importation of drugs into the United States is allowed to continue

unabated, the impact on patient safety will be devastating. Patients illegally importing drugs are bypassing the drug approval process of the Food and Drug Administration (FDA) and the safety of U.S. licensed pharmacists and pharmacies and placing their health and well being in the hands of the country, territory, or back room

with the seemingly, lowest prices for drugs.

Critics of the regulatory actions of the FDA and State boards of pharmacy against

entities illegally distributing or assisting in the illegal distribution of drugs from

countries outside of the United States contend that there have been only a few reports of patient harm and injury. Although the number of reports may be low, the

actual harm to patients could be significant. NABP maintains that the number of

reported patient injuries is low and immeasurable because patients may not be able

to discern whether the drugs received from other countries are authentic or appropriate and adverse reactions resulting from patients receiving wrong or counterfeit

drugs may not manifest in the health care system until sometime later when the

patient’s condition worsens and requires emergency treatment or hospitalization.

NABP also maintains that consumers purchasing drugs from other countries are reluctant to report any adverse consequences because of the fear of prosecution that

could result for violating Federal and State laws.

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NABP’S VERIFIED INTERNET PHARMACY PRACTICE SITESΤΜ (VIPPS) PROGRAM

The Verified Internet Pharmacy Practice Sites Program (VIPPS) was introduced

by NABP in 1999 and incorporates traditional regulation and consumer empowerment into a thorough and successful accreditation and certification system. The

VIPPS program was implemented with wide consumer acceptance and support. Information about the VIPPS program has appeared on national and local news media

programs and consumer information specials. The exposure included programming

on CNN, ABC World News Tonight, NPR Radio, NBC News, CBS News, and Fox

Special Report. Articles, stories and consumer advice recommending the VIPPS program have also appeared throughout the print media in local newspapers across the

country as well as in Time, Newsweek, the Ladies Home Journal, Consumer Reports, USA Today, Wall Street Journal, New York Times, Washington Post, and

other national publications. NABP estimates that more than 10 million consumers

have heard, watched, or read about the VIPPS program. Government agencies such

as the FDA and the Center for Medicare and Medicaid Services (CMS) also reference and recommend that consumers refer to the VIPPS program. Professional organizations such as the Federation of State Medical Boards (FSMB), American

Pharmacists Association (APhA), and the American Medical Association (AMA) have

also referenced and recommended consumers to the VIPPS program to consumers.

The VIPPS accreditation program is similar to the national accreditation of hospitals recognized by Federal and State agencies and health care insurance companies. The VIPPS program addresses the Internet pharmacy’s level of performance

in key functional areas and focuses on an Internet pharmacy’s ability to provide safe

medications and quality care. The VIPPS program is unique to the practice of pharmacy and the Internet. There are no equal or equivalent accreditation or certification programs in the world. Other certification or accreditation programs which

operate in the Internet arena lack NABP’s extensive evaluation process, access to

licensure and disciplinary information, and intense onsite inspection procedures.

The majority of programs representing themselves as accreditation or certification

bodies for Internet pharmacies are simply promotional vehicles for Internet entrepreneurs and charlatans.

The VIPPS process ensures compliance with State and Federal laws governing the

practice of pharmacy and verifies directly with the State boards of pharmacy the

licensure and disciplinary status of the Internet pharmacy seeking accreditation.

VIPPS also certifies compliance with an 18-point criterion (Attachment A) through

rigorous onsite inspections and the meticulous analysis of the site’s operations and

submitted written information. The VIPPS Criteria include criterion that concentrate on the distinctions of Internet practice, such as the transmission of prescription information and patient data, confidentiality of patient records, and quality improvement and monitoring of prescription processing and patient interactions.

The VIPPS Criteria also set forth performance expectations for activities that affect the integrity of the medications and quality of patient care. If an Internet pharmacy does the right things and does them well, there is a strong likelihood that its

patients will experience good outcomes. NABP develops its criteria in consultation

with health care experts, providers, measurement experts, regulators, and consumers. Achieving VIPPS accreditation is an indication that the Internet pharmacy is

recognized for complying with national performance standards that promote safe

medications and quality healthcare delivery.

In early 2003, NABP detected a major shift in activity on the Internet. At this

time, there appeared to be an unprecedented increase in the number of Internet

Web sites offering American consumers lower priced medications from Canada and

other foreign sources. Sites involved in this illegal activity jammed the Internet, deluged consumers with advertisements and solicitations at every turn and click, and

aggressively lobbied senior citizen groups and other special interest groups for Congressional support to protect their activities. NABP spoke out at the time, and continues to speak out, against these sites and their illegal activities. NABP has commented extensively on the need to close these sites and end their illegal operations.

Working with the States and the FDA, NABP has documented incidences of patient

harm from Internet sites and pharmacies operating in Canada and other parts of

the world. Most recently, with the proliferation of Canadian Internet pharmacies exporting prescription medications to the United States, NABP has discovered surreptitious Web sites designed to look like they are based in Canada, when in actuality

they are operated in and/or ship medications from Latin America or overseas and

have no ties to Canada other than their misappropriation of the Canadian flag.

In November of 2003, NABP and the National Association of Pharmacy Regulatory Authorities (NAPRA) in Canada expanded the VIPPS program to include legitimate, legal, and safe pharmacies duly registered in the various provinces. The

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VIPPS Canada program mirrors NABP’s VIPPS program in the United States and

identifies for Canadian patients Internet pharmacies accredited through a credible

process with standards focusing on the protection of the public health and patient

safety. Presently, those Canadian pharmacies which ship prescription drugs into the

United States, in direct violation of State and Federal laws, would not qualify for

VIPPS certification.

VIPPS: WHETHER AND HOW THIS TYPE OF PROGRAM COULD HELP ASSURE THE SAFETY

OF DRUGS PURCHASED OVER THE INTERNET IF THE UNITED STATES WERE TO LEGALIZE DRUG IMPORTATION

The importation of medications into the United States from Canadian and other

non-U.S. based pharmacies poses a public health concern and regulatory quagmire.

The public health concern rests with the inability of foreign and U.S. pharmacy regulators to ensure that medications illegally imported into the United States are legitimate and safe because the importation activities fall outside of the existing regulatory safeguards. The regulatory position advocated by NABP emphasizes the importance of ensuring that the dispensing and distribution of medications in the

United States are safe for American patients.

The only means of providing such assurances is the development of a sound regulatory framework that allows only drug products that are approved by the FDA and

manufactured in FDA registered facilities to be imported in the United States for

dispensing to U.S. patients from U.S. licensed pharmacists and pharmacies. If the

appropriate inter-border regulatory framework is not in place, then allowing for the

purchase and import of drugs from pharmacies or foreign operations that do not

comply with existing Federal and State laws and regulations places U.S. patients

at significant risk. If the safeguards in place for the U.S. drug approval system and

State regulation of pharmacists and pharmacies and wholesale distributors are not

in place or deliberately compromised, then U.S. patients will be subject to the dangers of a ‘‘buyers beware’’ environment and left unprotected to gamble with their

health and safety.

More importantly, each progression to extend the distribution source of drugs outside of the FDA drug approval process and U.S. licensed pharmacists and pharmacies to unknown borders exacerbates an already dangerous situation. The importation of drugs without an effective regulatory framework to countries lacking valid

drug approval processes, regulatory systems, or practice standards, provides for the

almost certain erosion and destruction of the entire drug approval process and regulatory structure of the United States. Allowing the illegal importation of drugs to

continue will, in effect, turn back the hands of time to the days of the Elixir Sulfanilamide disaster (1937) when 105 people died after ingesting a preparation containing diethylene glycol, anti-freeze. It was a time before the FDA was charged to ensure the safety of drugs and the drug development strategy was to throw drugs together and if they didn’t explode, they were appropriate to sell.

The U.S. system, based within the regulatory framework of State practice acts

and the FDA drug approval and monitoring processes, has been exemplary in protecting the citizens of the various States and providing patients and health care

practitioners with the assurances and confidence that the medications prescribed

and dispensed are safe and effective products. The State-based regulatory system

successfully protects patients and is flexible enough to extend the regulatory framework and safety net across State borders and allow for the practices of telepharmacy

and telemedicine.

A discussion of whether the VIPPS Program or a VIPPS model can be utilized to

allow for the importation of drugs is mute if the violation of Federal laws and compromise of the FDA drug approval process are not addressed and corrected. Clearly

the VIPPS program can be implemented to ensure that foreign pharmacies and

wholesale distributors are dispensing and distributing medications, respectively, in

accordance with State and Federal laws. This can be accomplished through the following modifications of the VIPPS program:

(1) NABP would define an International VIPPS Patient Care Pharmacy agreement

to certify VIPPS accredited pharmacies outside of the United States. NABP would

amend the VIPPS Criteria to require pharmacies dispensing medications across the

border and seeking VIPPS accreditation to document and provide evidence on an ongoing basis that the drug products being distributed were FDA approved and obtained from FDA registered facilities. The international pharmacy seeking VIPPS

accreditation would also have to document and demonstrate compliance with the

laws and the patient care standards of all jurisdictions in which the patient and the

pharmacy resides.

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(2) NABP would work with U.S. and foreign pharmacy authorities to develop mutual enforcement agreements with the pharmacy jurisdictions in other countries

that would regulate international pharmacies by requiring the licensure/registration

of these entities by the appropriate authority in the country where they are located

and where the patient resides. The mutual enforcement agreements would also require continued monitoring of the distribution and dispensing of medications in

order to ensure that the pharmacy maintains its compliance with all applicable

laws/regulations. This requirement could also be managed through the International

VIPPS Patient Care Pharmacy program.

However, and most importantly, absent action to resolve the violations of Federal

law, no modification of the VIPPS program is possible to create a legal and effective

regulatory framework for the importation of medications to U.S. patients. Legislation passed in Rhode Island requiring the Rhode Island Board of Pharmacy to license Canadian pharmacies despite the obvious and knowing violation of Federal

laws is a perilous and illogical action. The Rhode Island legislation is in effect requiring the agency mandated to uphold the pharmacy laws of the State to license

pharmacies willfully engaged in violation of Federal laws in complete defiance of the

legislative mandate of the State board. It is inconceivable to place such a confounding burden on the State board of pharmacy or to implement an importation model

that does not recognize the necessity of complying with Federal law. Similarly, to

implement a VIPPS-like program for the importation of drugs in direct violation of

Federal law would not be feasible and defy the entire enforcement and legal system

of the United States.

VERIFIED-ACCREDITED WHOLESALE DISTRIBUTORSΤΜ (VAWDΤΜ) PROGRAM

On a final but very important note, if an importation model is advanced, provided

Federal law is not violated, then serious consideration must be given to the regulation and accreditation of foreign wholesale distributors. NABP’s Verified-Accredited

Wholesale Distributors (VAWD) program, created in response to the FDA’s Report

on Counterfeit Drugs, provides a mechanism for the accreditation of prescription

drug and device distributors that helps to ensure the safety of the U.S. drug distribution system and thwart counterfeit products. Similar to the VIPPS program,

the VAWD program requires licensure verification, policy and procedure evaluation,

and an onsite inspection to ensure compliance with comprehensive drug distribution

laws and standards addressing such important issues as background checks, facility

security, pedigrees, authentications, quarantine of suspect product, and verification

of product sellers and purchasers. The VAWD program represents an additional regulatory model that can be utilized to oversee the safe cross-border distribution of

prescription medications to U.S. wholesale distributors and pharmacies.

CONCLUSIONS

NABP appreciates the opportunity to share its comments with the committee.

NABP respectfully requests that the committee recognize that allowing and encouraging the illegal purchase and importation of medications from other countries without the appropriate regulatory safeguards is a serious threat to our regulatory foundation and patient safety. NABP requests further, the committee’s assistance in preserving the sanctity of current regulations so as to prevent any patient from being

seriously injured by the illegal importation of drug products from countries where

U.S. laws and regulations are being ignored or the laws and standards for drug

safety and effectiveness of that country or territory are not equivalent to U.S. laws

and standards. NABP also respectfully requests that if importation of medications

to U.S. patients is allowed then careful consideration be given to the importance of

Federal and State laws, maintaining the FDA drug approval and monitoring process, and the adoption of solutions that are focused on patient safety.

Thank you for the opportunity to address this important issue.

ATTACHMENT A.—VERIFIED INTERNET PHARMACY PRACTICE SITES (VIPPS) CRITERIA

LICENSURE AND POLICY MAINTENANCE

Qualifying VIPPS Pharmacies (see definitions) must:

(1) Provide NABP with the information necessary to verify that the VIPPS pharmacy is licensed or registered in good standing to operate a pharmacy and/or engage

in the practice of pharmacy with all applicable jurisdictions;

(2) Provide NABP with the information necessary to verify that all persons affiliated with the site, including those affiliated through contractual or other responsible

33

arrangements, that are engaging in the practice of pharmacy are appropriately licensed or registered and in good standing in all applicable jurisdictions;

(3) Maintain and enforce a comprehensive policy and procedure that documents

how the pharmacy’s policies and procedures are organized, authorized for implementation, revised, retired and archived; and

(4) Comply with all applicable statutes and regulations governing the practice of

pharmacy where licensed or registered, and comply with the more stringent law or

regulation as determined by conflicts of law rules. VIPPS pharmacies must maintain

and enforce policies and procedures that address conflicts of law issues that may

arise between individual States or between State and Federal laws and regulations.

Said policies and procedures must assure compliance with applicable laws including

generic substitution laws and regulations, and must prohibit unauthorized therapeutic substitution from occurring without necessary patient or prescriber authorization and outside of the conditions for participation in State or Federal programs

such as Medicaid.

PRESCRIPTIONS

Qualifying VIPPS Pharmacies, in accordance with applicable State and Federal

laws and regulations, must:

(5) Maintain and enforce policies and procedures that assure the integrity, legitimacy, and authenticity of the Prescription Drug Order and seek to prevent Prescription Drug Orders from being submitted, honored, and filled by multiple pharmacies. Maintain and enforce policies and procedures that assure that prescription

medications are not prescribed or dispensed based upon telephonic, electronic, or online medical consultations without there being a pre-existing patient-prescriber relationship that has included an in-person physical examination.

PATIENT INFORMATION

Qualifying VIPPS Pharmacies, in accordance with applicable State and Federal

laws and regulations, must:

(6) Maintain and enforce policies and procedures ensuring reasonable verification

of the identity of the patient, prescriber, and, if appropriate, caregiver, in accordance

with applicable State law;

(7) Obtain and maintain in a readily accessible format, patient medication profiles

and other related data in a manner that facilitates consultation with the prescriber,

when applicable, and counseling of the patient or caregiver;

(8) Conduct a prospective drug use review (DUR) prior to the dispensing of a

medication or device in accordance with applicable State law; and

(9) Maintain and enforce policies and procedures to assure patient confidentiality

and the protection of patient identity and patient-specific information from inappropriate or non-essential access, use, or distribution while such information is being

transmitted via the Internet and while the pharmacy possesses such information.

[The NABP Guidelines for the Confidentiality of Patient Health Care Information

as It Relates to Patient Compliance and Patient Intervention Programs can serve

as a useful resource for addressing the confidentiality and security of patient data.]

COMMUNICATION

Qualifying VIPPS Pharmacies, in accordance with applicable State and Federal

laws and regulations and VIPPS program criteria must:

(10) Maintain and enforce policies and procedures requiring pharmacists to offer

interactive, meaningful consultation to the patient or caregiver;

(11) Maintain and enforce policies and procedures establishing a mechanism for

patients to report, and the VIPPS Pharmacy to take appropriate action regarding,

suspected adverse drug reactions and errors;

(12) Maintain and enforce policies and procedures that provide a mechanism to

contact the patient and, if necessary, the prescriber, if an undue delay is encountered in delivering the prescribed drug or device. Undue delay is defined as an extension of the normal delivery cycle sufficient to jeopardize or alter the patient

treatment plan;

(13) Maintain and enforce policies and procedures establishing mechanisms to inform patients or caregivers about drug recalls; and

(14) Maintain and enforce policies and procedures establishing mechanisms to

educate patients and caregivers about the appropriate means to dispose of expired,

damaged, and unusable medications.

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STORAGE AND SHIPMENT

Qualifying VIPPS Pharmacies, in accordance with applicable State and Federal

laws and regulations and VIPPS program criteria, must:

(15) Ship controlled substances to patients via a secure and traceable means; and

(16) Assure that medications and devices are maintained within appropriate temperature, light, and humidity standards, as established by the United States Pharmacopeia (USP), during storage and shipment.

OVER-THE-COUNTER PRODUCTS

Qualifying VIPPS Pharmacies must:

(17) Comply with all applicable Federal and State laws regarding the sale of Overthe-Counter Products identified as precursors to the manufacture or compounding

of illegal drugs.

QUALITY IMPROVEMENT PROGRAMS

Qualifying VIPPS Pharmacies must:

(18) Maintain a Quality Assurance/Quality Improvement Program.

REPORTING TO NABP

Qualifying VIPPS Pharmacies must:

(19) Notify NABP within thirty (30) days of any change of information provided

as part of the verification process, including change in pharmacist-in-charge, or involving data displayed on the VIPPS Web site. VIPPS pharmacies shall notify

NABP in writing within ten (10) days of ceasing operations. The written notification

shall include the date the pharmacy will be closed, and an affirmation that all

VIPPS Seals and references to the VIPPS program have been removed from the

Web site and wherever else they are displayed.

The CHAIRMAN. Thank you very much.

Dr. Peter Rost.

STATEMENT OF PETER ROST, M.D., VICE PRESIDENT OF

MARKETING FOR ENDOCRINE CARE, PFIZER

Dr. ROST. Thank you, Chairman Enzi, Senator Kennedy. Thank

you so much for inviting me here today.

My name is Peter Rost, and I am a physician who has spent 20

years marketing pharmaceuticals. I have been responsible for a region in Europe, and I am currently a vice-president with Pfizer.

The views I will present today are my own and do not reflect those

of my employer, which will become abundantly clear.

By now, most of you have noticed that I do not have an East

Coast accent. I am a naturalized U.S. citizen, came to this country,

voted with my feet, because I wanted to be here. I think this is a

wonderful country, a country where we have freedom of speech, a

freedom that I am choosing to exercise today.

The first question I usually get is you are a drug executive. How

can you speak in favor of reimportation? That does not make any

sense. What has influenced me is my own personal experience with

reimportation in Europe, working for another pharmaceutical company. I first assisted the President of Europe, and then, I was managing the northern region in Europe, and I had a problem over

there, I had a problem of a lot of reimported drugs coming into my

market, and I was not happy. So you know what I did? I lowered

my prices 30 to 40 percent. Do you know what happened? In 2

years, I doubled sales. My market company went from number 19

in the business to number 7, less than 2 years, best performance

in the history of the Swedish pharmaceutical industry.

So I learned that the free market works and that there are several sides to this coin, and I think that the industry is making a

35

historic mistake right now opposing drug importation, and I am not

the only one thinking so. As a matter of fact, Roy Vagelos, the wellknown former chairman of Merck and one of the industry’s most

prominent boosters last year in the New York Times said the industry delivered miracles, and now, they are throwing it all away.

They just do not get it. He was referring to drug prices.

I am going to focus on two areas: safety and cost-effectiveness of

reimportation. Lester Crawford has been quoted as saying that his

main concern about reimportation is that Al Qaeda would attack

the supply of drugs. But being concerned about safety of imported

drugs assumes that you are safe already. I do not think we are.

What the FDA has forgotten is that we have thousands of secondary wholesalers in the United States today. States license them,

not the FDA. All it takes for a terrorist to become a drug wholesaler is $1,000 and a driver’s license.

Another problem, very important, right here in the United States

today is that our drugs are shipped in big vats to wholesalers, and

they pour them in smaller bulk-size bottles, and then, the pharmacists pour those drugs to the patients, lots of entry points for a

terrorist or anyone else. In Europe, it is different. Drugs are

shipped in individual bottles or blisters, and no one touches the

drug after it leaves the manufacturer. Pretty good system. We

should have it, too.

So I believe that getting drugs from Europe really could be safer

than getting it in the United States. The German Federal Health

Ministry has recently verified that not one single confirmed case of

a counterfeit medicine has ever come through the trade chain in

Europe.

Legalized and regulated reimportation is about the safe drug

supply. It is about getting drugs to consumers who cannot afford

them, because, you know, the biggest safety problem we have, the

safety problem nobody has mentioned today is when you do not

take a drug. It does not work. We have lots of patients in the

United States that do not take drugs: 15 percent of uninsured children did not take the drugs they needed because of cost. Twentyeight percent of adults, same thing. Diabetes care had a study

showing that 28 percent of elderly diabetes patients had to choose

between food and drugs in America today.

What is the effect of this? We have the numbers. I just checked

out the WHO Web site. In America, more babies die every year

than any other industrialized country and more elderly die. We

have higher infant mortality rates, child mortality rates and a

shorter life span than every other industrialized country: Singapore, Australia, New Zealand, Japan, Canada, Western Europe.

Now, I remember this was the country that put a man on the

moon, and here we are 40 years later not even taking care of our

babies. I mean, come on: this, we have to do something about.

Drugs help people. Drugs make a difference. We know that. That

is part of the solution.

You have also heard in the HHS report that savings would really

only represent 1 to 2 percent of drug expenditures, and the biggest

fallacy in the report is that it assumes that there would only be

a 20 percent discount, while we know that drugs are 100 percent

36

more expensive than in Europe. So this assumes that reimporters

would really do price gouging.

I need to wrap up, so I will say that my overall concern is that

every day, Americans die because they cannot afford life-saving

drugs, because we want to protect the profits of often foreign corporations. I believe we have to speak out for the people who cannot

afford drugs in favor of free trade and against the closed market.

Stopping good reimportation bills has a high cost, not just in

money but in American lives.

I and many of my colleagues joined the drug industry to save

lives, not to take them. That is the reason I am here today. Thank

you.

[The prepared statement of Dr. Rost follows:]

PREPARED STATEMENT OF PETER ROST

Chairman Enzi and Senator Kennedy thank you for inviting me today.

My name is Peter Rost and I’m a physician who has spent 20 years marketing

pharmaceuticals. I’ve been responsible for a region in Europe and I’m currently a

Vice President at Pfizer. The views I will present are my own and do not reflect

those of my employer.

By now, most of you have noted that I don’t have an East Coast accent. I’m a

naturalized U.S. citizen and I voted with my feet when I came here 20 years ago.

I think this is a great country, where we have the freedom of speech—a freedom

I’m exercising today.

The first question I usually get is ‘‘you’re a drug executive, how can you speak

in favor of reimportation.’’ What has influenced me is my own personal experience

with reimportation in Europe while working for another pharmaceutical company.

First I assisted the president of Europe; then I headed up the Nordic region. I had

lots of reimported drugs coming into my market, and I was not happy about this.

So I dropped my own prices. You know what happened? I doubled sales and increased my company ranking from No. 19 to No. 7 in less than 2 years. So I know

that the free market works and I think the industry is making a historic mistake,

opposing drug importation.

My concern is that we have 67 million Americans without insurance for drugs.

Many of them don’t get the drugs they need because they can’t afford them, because

drugs cost twice as much in the United States as in other countries.

And what really troubles me is that when we in the drug industry charge these

high prices to the uninsured, we sell the rest of our drugs, right here in the United

States, today, at the same low prices we charge in Canada and Europe. It’s done

through rebates. These are given to those with enough power to negotiate drug

prices, such as the Department of Veterans Affairs and various pharmacy benefit

mangers.

So the fight against reimportation is a fight to continue to charge our uninsured,

our elderly, our poor, our weakest, full price, while giving everyone else a rebate.

This is fundamentally unethical. This is not how we’re supposed to treat our grandparents who built this country.

Legalized reimportation can help these people. The biggest argument against reimportation is safety. [According to AP, FDA Commissioner] Lester Crawford has

said that his main concern about drug reimportation is that al Qaeda might attack

the supply of Canadian drugs.

But the FDA has forgotten that we have thousands of secondary wholesalers that

trade drugs. States license them, not the FDA. All it takes for a terrorist to become

a drug wholesaler is $1,000 and a driver’s license, [according to Aaron Graham,

head of security for Purdue Pharma, quoted in the Providence Journal]. Another

problem, right here in the United States, is that our drugs are shipped in big vats

to wholesalers, and then poured into smaller, bulk-size containers, from which tablets are dispensed manually to the patient. Lots of entry points for a terrorist. In

Europe, drugs are sold in tamper-proof individual bottles or blisters, and no one

touches a drug after it leaves the manufacturer.

So I believe that getting a drug from Europe is actually safer than getting it in

the United States. The German Federal Health Ministry has verified that not one

single confirmed case of a counterfeit medicine has ever come through the parallel

trade chain. The UK regulatory authority has described the level of pharmaceutical

37

counterfeiting as ‘‘virtually undetectable’’ [according to European Association of

Euro-Pharmaceutical Companies].

Legalized and regulated reimportation is about a safe drug supply. It’s about getting drugs to consumers who can’t afford them. The biggest problem we have today

is that drugs don’t work if you don’t take them. The Kaiser Family Foundation reported [in a 2001 study] that 15 percent of uninsured children and 28 percent of

uninsured adults had gone without prescription medication because of cost. The

journal Diabetes Care recently reported [February, 2004] on a study of older adults

with diabetes. Twenty-eight percent said they went without food to pay for drugs.

Is this how we want to treat our elderly, force them to choose between food and

medicines?

And by the way, not even the drug companies want to pay for brand name drugs

anymore. Novartis, one of the largest foreign drug makers, was so concerned about

drug costs that the CEO sent a memo to all U.S. employees urging them to choose

more generics. He didn’t realize the memo would make front page news [NJ StarLedger, Oct 15, 2004].

[Let’s also point out that half of the largest pharmaceutical companies are foreign

corporations [Novartis, Glaxo, Astra-Zeneca, Roche and Sanofi-Aventis]. Why should

we allow foreigners to come in and gouge American tax payers? Perhaps we

shouldn’t allow them to charge us more than their own governments are prepared

to pay for our drugs? In Europe that’s called reference pricing.]

So what do these foreign companies do? They take out big ads in American newspapers [Glaxo] and tell us that reimportation is not safe, while they know full well

that it’s been done safely and cost-effectively in their own home markets, in Europe,

for over 20 years.

And I know that some of you may tell me that reimportation is not the answer;

the HHS report speculates that savings would represent only 1 percent to 2 percent

of drug expenditures.

You know what, the short answer is that if this was true, reimportation of drugs

would never have existed in Europe with much smaller price differentials than the

United States, and it would never take off in the United States. Why, then, do you

think, the drug industry spends so much time and money fighting reimportation?

The answer is that the data in the HHS report don’t support this conclusion.

There is one simple flawed assumption in the report that drives their incorrect

conclusion. It’s that ‘‘U.S. drug buyers may get discounts of only 20 percent or less,

with the rest of the difference between U.S. and foreign prices going to commercial

importers.’’ This assumption is based on a London School of Economics study. Guess

who sponsored that study? You got it—the drug industry [Johnson & Johnson, according to Pharma Marketing].

[In fact, table 7.2 in the HHS report shows that U.S. drug prices are 100 percent

higher than in Europe. So the premise of less than 20 percent savings assumes price

gouging by importers and a complete lack of competition. Of course, we in the industry know that is not how the free market works.]

Every day Americans die because they can’t afford life-saving drugs, because we

want to protect the profits of foreign corporations. I believe we have to speak out

for the people who can’t afford drugs, in favor of free trade and against a closed

market. Stopping good reimportation bills has a high cost. Not just in money, but

in American lives.

I and many of my colleagues joined the drug industry to save lives, not to take

them. That’s the reason I’ve chosen to speak out today. Thank you.

The CHAIRMAN. Thank you. I appreciate the testimony of all of

the members of the panel. I particularly appreciate the work that

you put into an even fuller testimony, which will, of course, be a

part of the record, and I encourage everybody to take a look at

that. I appreciate your doing the summary so that we can get to

questions.

Governor Pawlenty, I want to congratulate you on your

RxConnect, a very innovative and obviously very effective system,

and I have a bunch of questions on the cost of that so that we can

relate it to what our costs might be on a Federal level were we to

do something similar, but that is a lot more detailed. I found that

that kind of puts people to sleep. So I will stick with some things

that might be of greater interest.

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In a poll that was released last fall that supports importation beyond Canada, there was about a 30 to 40 percent approval of that.

Do the Internet pharmacies that MinnesotaRxConnect has a relationship with in Canada get their medications from countries other

than Canada, and do you extend the Web site approvals beyond

Canada, and if so, is that disclosed to the consumers?

Governor PAWLENTY. Mr. Chairman, thank you for the question.

To clarify, the pharmacies that we have identified in Canada are

actual pharmacies. Just to be clear on the term Internet pharmacy,

sometimes, that leads people to think there is a virtual operation;

there is not a physical operation. These orders are placed, in most

instances, via a fax order form that is downloaded from our Web

site and then faxed to the pharmacy, so we do not even actually—

the consumers do not even place the order over the Internet. They

are placed on a fax that goes to the physical pharmacy.

In terms of the source of the drugs from Canadian pharmacies,

it varies, but as a general expectation, we expect the drugs to be

sourced from Canada or the United States. We are aware that in

certain instances, they are sourcing the drugs from certain European countries as well.

The CHAIRMAN. Thank you.

Mr. Gray, even in a closed distribution system like we have in

the United States, from time to time, counterfeit medicines have

been able to enter our system. How do you answer critics who

argue that if counterfeit drugs are already entering our closed system, what is the harm in expanding the marketplace internationally?

Mr. GRAY. Well, products have entered the system, and our obligation is to tighten that regulatory requirement on the points at

which those products have entered the system, and we have been

arguing for stiffer State licensing, more national uniform licensing

standards to close those loopholes, and our responsibility and our

objective here today is as distributors, as folks who look strictly at

the supply chain, the logistics aspects of the business, our feeling

and our responsibility, we feel, is to make as secure our U.S. domestic supply chain before we start introducing foreign products

into our system.

We acknowledge there are improvements to be made; there are

stricter regulations, more uniform regulations that are required.

There are technologies that need to be employed, and we think

looking at the 50-State supply chain we currently handle, we have

got enough to do there to make that supply chain as safe and secure and then start considering what other options there might be.

The CHAIRMAN. Thank you.

Mr. Catizone, I have heard arguments that the pharmacies in

Canada or other developed countries are about the same as the

pharmacies in the United States. Is that true, and if not, what are

the differences that would be important for us to recognize?

Mr. CATIZONE. We have heard that same statement, Senator, and

the fact of the matter is that the Canadian pharmacies that are licensed under the Canadian system are equivalent to the U.S. pharmacies and regulatory system. We cannot make that same statement for countries outside of Canada, because we have done an

analysis of their practice standards, we have done an analysis of

39

their products, and it appears that those standards and those product standards are below the standards within the United States.

The problem with importation is that it falls outside of the traditional regulatory schemes of Canada and the United States, and

many pharmacies are operating within that empty wasteland and

practicing and sending medicines to U.S. citizens without any regulation.

The CHAIRMAN. I will try and get some more information on that

from you.

Mr. Rost, instead of us worrying about the reimportation thing,

why do you not just reduce the price of the drugs in this country

that you control, and then, we would not have to bring them back

in through Canada?

Dr. ROST. Well, companies already do that. Companies today sell

their drugs, which is not very much talked about, at European and

Canadian prices today in the United States. They sell them to the

parties who can negotiate: pharmacy benefit managers, Department of Veterans Affairs. The people who pay full price are the

people who cannot negotiate: the uninsured, the poor, the elderly.

They are the ones who get stuck with the high bill. I believe that

is unethical.

The CHAIRMAN. Thank you. My time is expired. I do have some

other questions for all of you. I will submit those in writing.

Senator KENNEDY. Dr. Rost, do you still work for Pfizer?

Dr. ROST. Yes, I do. Yes, I do.

Senator KENNEDY. Are they an enlightened company to let you

loose up here?

[Laughter.]

Dr. ROST. Well, Pfizer reacted quite strongly the first time I was

down here on the Hill, and they hired a law firm and started I

would call it a bit of an inquisition, McCarthy-type hearing. They

asked me about everything Senators and Congressmen had told me

in their private chambers. They even asked me where I had slept

when I was in Washington, and if anybody wonders, it was next

to my wife.

[Laughter.]

But the Justice Department in New Jersey picked up on this and

called me in, and it turns out that to try to dissuade anybody from

appearing before Congress is a criminal act. You can get a year in

jail. There are also State laws that protect people’s legal political

activity in their free time, which this is.

So after, I think, everybody was informed what the ground rules

were, the investigation stopped.

Senator KENNEDY. Well, I was about to give them great credit for

encouraging this kind of discourse from a person who is clearly a

talented and concerned and experienced medical officer, but in any

event, we are very grateful for your presence here and your testimony.

Governor, I just listened to one of the most persuasive Republicans I have ever heard with your very excellent commentary. You

appeared before the task force. I am just wondering, it does not

seem like the task force embraced your story. Just quickly, do you

have any reactions to the task force or the task force report?

40

Governor PAWLENTY. Senator, I did appear before the task force

and provided testimony. In listening to the Surgeon General, I

think they viewed our approach or looking at it more critically beyond the scope of their charge from Congress. I will say the Surgeon General appeared to me and continues to appear to me to be

genuine and sincere in his review of these matters. I would hope,

though, that somebody would take a critical look at what Minnesota or other States are doing.

Senator KENNEDY. Okay.

Governor PAWLENTY. We have offered, by the way, to the FDA

to be a demonstration project that we would pay for, have their inspectors come in. We would follow their rules. If there were problems, we would agree to shut down our program. They have not

taken us up on the offer.

Senator KENNEDY. Well, it is an enormously impressive story.

Some of the pharmaceutical manufacturers are limiting the supplies of drugs to companies exporting drugs to Americans. Have

your Canadian pharmacies been able to maintain adequate supplies for the Minnesotans?

Governor PAWLENTY. Senator, yes, but they are under increasing

pressure, and more recently, we have signals that certain of the

pharmacies are going to be running short or having delays or

maybe running out of supply, because it is pretty clear that the

pharmaceutical companies are choking off supply to those pharmacies because of their participation in our program.

Senator KENNEDY. The Surgeon General also commented, Governor, that it costs billions of dollars to inspect all of the drugs

being shipped to individuals in the United States; do you feel it is

necessary to inspect all of the packaged drugs that are sent from

registered exporters to American consumers through the Federal

Postal Service?

Governor PAWLENTY. Senator, no, I think the point that you

raised earlier which is, again, the shiny object of—we concede, we

stipulate that there are all sorts of garbage and shady characters

on the Internet. We should not condone or promote that type of approach. What we should condone and promote is identifying and

contractually engaging in a relationship and hopefully regulating

established credible, reputable pharmacies, direct our consumers to

those, and then, it just becomes a matter of shipping logistics,

which I believe in an era, as we said, we put a man on the moon

some years ago, we should at least be able to mail a package from

Thunder Bay to Duluth without too much difficulty.

Senator KENNEDY. Dr. Rost, just if you would expand on this concept as a physician as well as a pharmaceutical company executive,

is drug importation under a closely regulated environment a better

alternative for consumers than not having access to the medicines

because they cannot afford them?

Dr. ROST. Well, in Europe, they have a system up and running

which they have had for over 20 years that works safely and costeffectively which does not mean that consumers have to go on the

Internet. This, what we have here today, is the Wild West. It is not

good. I do not think anybody thinks it is good. What I am in favor

of is the same thing as the American Medical Association is endorsVerDate 11-MAY-2000 14:24 Jul 28, 2005 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6601 S:\DOCS\98923.TXT SLABOR3 PsN: SLABOR3
41

ing, which is a closed system, where wholesalers and pharmacists

are up front importing drugs.

However, I know that takes time, and I believe when you see this

boat, this sinking boat with babies and elderly, you cannot just sit

around year after year after year and check on safety issues. If you

have shown in a number of States and cities like Springfield, MA,

that these programs work, let us get them running, because it can

make a difference in the lives of a number of people.

We cannot wait. Every day we wait, we lose another person.

Senator KENNEDY. Thank you, Mr. Chairman. My time is up, I

think.

The CHAIRMAN. Thank you.

Senator Alexander.

Senator ALEXANDER. Thank you, Mr. Chairman.

I wonder if any of you would help me evaluate the news report

citing the Canadian Health Minister as suggesting that Canada

does not want to be the drug store for the United States. What did

you make of that? Was that an accurate statement? What does that

mean?

Mr. CATIZONE. From our review of the situation, what it means,

and our discussions with Canadian officials is one of the issues that

was noted earlier: first, there is concern that there will not be

medications for Canadian citizens because of the drain on the supply by U.S. patients, and second, the Canadian Government is also

concerned that the medications and distributors dispensing those

medications is falling outside of their regulated system, and they

have no way to manage that or to respond to complaints that they

are receiving from U.S. patients.

Senator ALEXANDER. Does anyone else have a comment on that?

Mr. GRAY. I would agree with that, and I think it is over the supply issue, because I know our companies have looked at this and

are concerned about the issue given, as suggested earlier, 40 million people in Canada, 300 million people here, in the logistic supply chain sense, you look at it and say where do you get the volume

of drugs to take care of 300 million Americans, most of who are

fast approaching the age of 60 or over when you are only getting

a small supply from Canada?

The question is when that drug comes over, and there is a limited supply, who makes the allocation decision as to where that

drug goes? Does it go to Duluth, MN? Does it go to Phoenix, AZ?

From our perspective we have looked at, we are trying to figure out

where is all this drug supply going to come from to replace the

drugs that we are currently selling in the United States at arguably or what is suggested to be maybe a cheaper price.

From a logistics point of view, we are questioning how we are

going to get the drugs and how there are going to be enough of

them.

Senator ALEXANDER. Dr. Rost.

Dr. ROST. Well, I think the sad situation we have today is that

a number of large drug companies are limiting supply to Canada

in the name of safety, but what really happens, then, is that they

force Americans who cannot afford our drug prices in our drug

stores here to buy those drugs somewhere else, which certainly

does not help safety. The other comment I would have is clearly,

42

Canada cannot supply the United States. However, the European

Union is a big market, and any functioning bill needs to include

the European Union. To start with Canada would not work.

Senator ALEXANDER. Governor, did you have any reaction to

that?

Governor PAWLENTY. Yes, Senator, just to put it in context, of

course, people who are currently insured or are part of a program

that has a prescription drug benefit are not the ones seeking Canada, so it is not the entire American market. It is just a slice of

it. I think it is a supply issue as I understand the Canadian officials’ concerns. That concern is really a function of the pharmaceutical companies limiting supply to Canada. It is not as if purchases that would have otherwise taken place in the United States,

now that demand is transferred to Canada.

Theoretically, the supply could also then be diverted to Canada

as more demand is generated in Canada, but what is happening,

of course, is that the supply is being manipulated as a message, I

think, to the Canadian pharmacies that you should not participate

in these programs.

Senator ALEXANDER. Thank you. How can we most fairly evaluate what the costs would be of a system that would properly regulate and try to make safe imported drugs? I assume there would

be—there has been some testimony about anticounterfeiting technology which might be developed, but I assume there would be an

expense to that. Whenever the FDA testifies here on this subject,

they talk to us about a fairly large cost of setting up the facilities

to handle the importation of drugs. How do we evaluate whether

taking this step would, in effect, with the added cost of

anticounterfeiting technologies and other administrative costs,

whether we would end up adding so much to the cost of the drugs

that there really would not be much cost savings?

Mr. GRAY. Well, I think the first thing to consider, and the industry is in the process of doing this now, is what is the cost of this

technology just within the domestic supply chain? We are actively

working on pilot projects now with a number of organizations

throughout the United States and in the industry already trying to

understand what it is going to cost to implement just this system

for track and trace within the 50 States.

I think until we have a grasp around that number, because that

track and trace is going not only into pharmaceutical but consumer

goods. Food industry and what have you are all quickly moving to

it, and quite frankly, the suppliers of the technology and the implementers, those of us who are distributors, are trying to figure out

what is this really going to cost, both the manufacturer cost, the

distributor cost, the retail cost, the warehouse to operations cost

and what have you.

Quite frankly, and as I said earlier, we have got to get our hands

around the U.S. system first before we get an understanding what

is going to be the implications of then extending this out beyond

the U.S. borders, whether it is to Canada or the European Union.

My adage is I think we have got to get our own house in order before we move outside to look at other systems. We have a lot of

work still to do to get this technology into place for the next 3 to

4 years.

43

Senator ALEXANDER. Thank you.

I see my time is up. Thank you, Mr. Chairman.

The CHAIRMAN. Senator Burr.

Senator BURR. Thank you, Mr. Chairman, and I appreciate the

fact that we are going to cover this issue over a number of hearings. I want to thank the witnesses and suggest this is probably

one of the most important things this committee will do.

Governor, thank you for your willingness to come in. I think it

is safe to say that what you exercise in Minnesota is, in fact, the

waiver that the FDA provides individuals to seek the fulfillment of

their prescriptions outside of the United States, something that

they are not breaking the law to do today and that is not being enforced under any other method. The only change is that Canadians

are now questioning whether the Canadian doctor’s sign-off of a

U.S. doctor’s prescription should be policy; in other words, accepting the medical decisions of somebody in another country which, in

fact, is what we are here discussing. Whether we are going to accept the medical decisions of the policies of other countries, and, as

you said, I am comfortable in doing it with Canada, and I think

as others have raised, if you cannot 100 percent with reliability understand the chain of custody—did that come from Italy. We could

not sign onto any kind of harmonization agreement in the international community, because we disagree with many of the things

that they use for their drug approval process.

We have a much bigger animal here that is not as simple as just

trying to replicate what Minnesota has done. We have to look down

the road and say how could it grow into something that was not

intended on your part and certainly not intended on our part? I

think you said that delivery was nothing to worry about. If delivery

were nothing to worry about, part of the jurisdiction of this committee would not be bioterrorism. I would not be a subcommittee

chairman concerned with the mail contamination of anthrax and

ricin.

In fact, delivery is a concern. It is a concern in terrorism; it is

a concern with adulterated products. It is a concern as to who we

use, here in the United States, to verify whether it is an approved

pharmacy or an approved outlet. Whether it is the Postal Service,

whether it is Customs, and one only has to travel to Dulles Airport

to see the challenge that a Customs agent has trying to determine

whether a counterfeit drug which people have matched the identical color, the identical stamp, the identical packaging. I think Dr.

Rost can agree to this, counterfeiting is rampant maybe not in our

borders but around the country or around the world today.

I take for granted the shiny object was the question of safety, so

I am not going to go to safety. But I think there are legitimate reasons that in an honest way, we can have that debate.

I want to go to U.S. Code. U.S. Code protects the patents of U.S.

companies. The U.S. patent law protects the patents of U.S. companies. The Food, Drug and Cosmetic Act protects the patents of companies and products that are regulated by that agency. The Prescription Drug Marketing Act protects the patents of companies

that are regulated under that marketing act.

44

Are you suggesting that we ignore U.S. Code, U.S. patent protection to facilitate a much broader access by U.S. consumers to prescription drugs?

Governor PAWLENTY. Senator, I hope my microphone is on. Senator, the question that you ask, I think, relates to intellectual property rights, and there are some who object to Canada’s approach

to either negotiating prices or how they deal with intellectual property. They do it somewhat differently than the United States does,

but they have a framework for it, and it is public, and it is, you

know, appropriate as far as they are concerned.

The concern that I have is when the United States is in the market for any other product, we shop the world for the best deal, and

so, we go to China, for example, for products, even though they

have a Communist Government, they have limited land rights, limited human rights, environmental policies that may be of concern

to Americans. We do not get——

Senator BURR. But, Governor, let me stop you there. We aggressively go after textile products that come from China that are not

authorized by the copyright holder. If, in fact, we have counterfeit

CDs and DVDs, we are aggressively at the table negotiating with

the Chinese today about the special nature of the way the United

States protects those patents and those copyrights of U.S.

innovators.

I guess my question is what do we do to the negotiators we have

got at the table who are trying to negotiate the breakthroughs for

3M? 3M in your State has a tremendous list of patents. I think Dr.

Rost would also agree that the ability to have patents allows innovation in the drug industry. I will come to you in a second.

I think that Senator Murray would agree that one of the reasons

that Microsoft is headquartered in the United States is that we

have a law that says we will protect your intellectual property. Yet

we are picking one sector out now, and we are saying we are going

to ignore that. The question is what precedent does this institution

set if we ignore U.S. Code? This is rooted in the Constitution, and

we are going to step on it.

Governor PAWLENTY. Senator, I do not understand that the Canadian patent system is somehow rogue or illegal or inappropriate.

They have modern and sophisticated intellectual practices and

property code in Canada.

Senator BURR. It is our patent system that I am—our patent system says that if it is against the patent holder’s wishes, that product cannot be reimported or exported or imported into the United

States. The question is are we going to enforce our own law, our

own protections?

Governor PAWLENTY. Senator, I know time is short, but the system is, of course, that Canada negotiates with the pharmaceutical

companies for their prices. They also negotiate over their patent

protocols and procedures and expectations. It is a mutually negotiated or agreed-upon arrangement in Canada.

Senator BURR. But one thing is that reimportation into the

United States is against U.S. Code, U.S. law. A patent holder

would have to sign off on the reimportation, which is not the case

when we move to a bulk situation.

45

Governor PAWLENTY. Senator, I understand your point. Now, as

applied to the way that Minnesota does it, we fall within the individual use exception.

Senator BURR. Right.

Governor PAWLENTY. If Congress were to move more broadly into

allowing this, then, you would have to address this issue. So I understand what you are saying now. It is not that it could not be

done, but you would have to address it in a way that is fair and

equitable.

Senator BURR. We would have to ignore U.S. law.

Governor PAWLENTY. If I might just quickly——

The CHAIRMAN. The Senator’s time has expired. I will have to

ask for each of you to respond to that in writing at this point——

Governor PAWLENTY. Okay.

The CHAIRMAN [continuing]. To any questions that he or the rest

of us might have the same way, because the record will be left open

for 10 days for witnesses to amplify their remarks and also members to propose different questions. I do thank the panel for the extensive knowledge that they have and their willingness to share it

and to take the extra time to answer our written questions.

I would also ask unanimous consent that we be allowed to include a letter from Pfizer for the record to explain that Dr. Rost

is not appearing on behalf of Pfizer.

Without objection.

[The information follows:]

PFIZER INC., CORPORATE AFFAIRS,

NEW YORK, NY,

February 16, 2005.

Hon. MICHAEL B. ENZI,

Chairman,

Committee on Health, Education, Labor, and Pensions,

Dirksen Senate Office Building,

Washington, D.C. 20510.

DEAR CHAIRMAN ENZI: We understand that Dr. Peter Rost will testify today before

the Senate Committee on Health, Education, Labor, and Pensions on the subject of

prescription drug importation. At the outset, it is important to note that while any

citizen is entitled to speak before the Congress, Dr. Rost is not speaking on behalf

of Pfizer. Dr. Rost has never been involved in the extensive analysis of this critical

issue that has been undertaken at Pfizer. He has not participated in Pfizer’s active

involvement in the government’s examination of this issue. These Pfizer activities

include the following:

• In April, Pfizer’s Vice President of Global Security, John Theriault, testified before the Department of Health and Human Services’ Importation Task Force, which

was mandated by Congress to study the feasibility of importation. In May, Pfizer

provided a submission to the Task Force that supports Pfizer’s position that foreign

authorities do not have the controls in place to guarantee the safety of exported regulated drugs.

• Pfizer also participated in the GAO’s study of drugs purchased online by helping determine whether these drugs are counterfeit. The GAO testified before a Senate subcommittee in June, concluding that consumers can easily buy drugs over the

Internet without a prescription. The GAO concluded by stating, ‘‘It is notable that

we identified these numerous problems despite the relatively small number of drugs

we purchased, consistent with problems recently identified by State and Federal

regulatory agencies.’’

In addition, we have no basis to support Dr. Rost’s purported expertise in this

area. It has been a number of years since Dr. Rost was stationed in Europe and

we believe that his knowledge is outdated. For example, he incorrectly suggests that

the price differences exploited by parallel trade in Europe have been passed on as

savings to consumers when virtually all objective analysis refutes that assertion. A

study conducted by the London School of Economics, which was published last year,

found that national health systems within the EU realized minimal savings from

46

1Minnesota Board of Pharmacy Office Memorandum, at 2–5 (December 24, 2003).

2 ‘‘National Association of Boards of Pharmacy Position Paper on the Importation of Foreign

Prescription Drugs, March 2003. 3 ‘‘No Prescription? No Problem,’’ Prevention.com http://www.prevention.com/cda/

feature2002/0,2479,s1-6568,00.html#top. 4 ‘‘Prescription Drug Importation, Investment and Employment in Michigan,’’ Dean G. Smith,

Ph.D., Professor and Chair of the Department of Health Management and Policy, School of Public Health, University of Michigan, Sept. 21, 2004.

parallel traded products. In fact, the study showed that no single national payer

saved more than 2.2 percent because of this trade despite wildly varying price discrepancies. In the UK, the study found that ‘‘The impact on patients in the UK from

parallel trade is zero’’ and that prices of parallel imported products ‘‘are on average

the same as those of locally sourced equivalents . . .’’ (despite average price differentials of more than 20 percent). Parallel trade in Europe involves trade between

pharmacies and wholesalers subject to regulations in their respective home markets.

It does not involve individuals importing medicines on their own from foreign jurisdictions. Our long experience analyzing parallel trade and considerable objective research shows the gains ultimately accrue to the middlemen rather than to consumers or payers.

The issue of importation and how it may impact the safety of American patients

is a serious health issue requiring informed debate. In 1987, Congress enacted important changes to prohibit the importation of unapproved medicines in response to

many instances of unsafe foreign medicines entering the United States. While the

public health threats caused by such medications were significant enough in 1987,

the potential threats from unapproved prescription drugs are even greater today.

Here are a few key points that we believe need to be factored into the discussion:

• Unapproved, unregulated and counterfeit medicines bought online can (and do)

come from virtually anywhere in the world. In light of the counterfeiting activity

Pfizer has investigated, the importation proposals we have seen in Washington and

some of the States are truly alarming. These programs open a tightly regulated system to a new drug distribution channel in which virtually every participant operates

outside the law, outside the standards of acceptable medical practice and without

effective oversight.

• In December 2003, the Minnesota Board of Pharmacy investigated eight Canadian Internet pharmacies and found 32 different unsafe or questionable pharmacy

practices (on pre-arranged visits!), including unsupervised technicians performing

pharmacist functions; shipping multiple labels unattached from multiple prescriptions in the same box; incomplete patient profiles; returned products re-labeled and

resold; and unsafe storage and shipping, particularly of temperature-sensitive drugs.

The Board investigators found that the standards followed by the Canadian Internet

export operations varied greatly from pharmacy to pharmacy—some ‘‘appearing to

have few standards at all.’’1

• A still larger concern is that consumers don’t have any real idea about the true

origin of the products. As the National Association of Boards of Pharmacy cautioned

in its Position Paper on importation:2 ‘‘An order for what is purported to be a Canadian drug may never be filled by a legitimate Canadian pharmacy with a Canadian

drug or even be filled in Canada. The well-known risks that all consumers take

when purchasing over the Internet, where, for example, an anonymous company

may be ‘here today and gone tomorrow’ or an illicit business is disguised as a legitimate organization, are heightened when purchasing foreign drugs.’’

• This concern is echoed in Prevention magazine’s detailed review of Internet

pharmacy practices: ‘‘Shoppers need to be aware of a deceptive tactic known as ‘hiding under the maple leaf ’: Web sites that advertise themselves as Canadian or

prominently display the familiar maple leaf flag but are actually registered elsewhere.’’ 3

• The dangerous nature of the products being shipped from foreign Internet pharmacies across the American border is exemplified by recent spot examinations conducted by the FDA and U.S. Customs. These found many shipments containing dangerous, unapproved and counterfeit drugs that pose serious safety problems. An

overwhelming majority of the parcels violated U.S. laws and regulations because

they contained unapproved drugs.’’

Finally, a study by the head of the University of Michigan School of Public

Health’s Department of Health Management and Policy warns that Federal drug

importation would result in the loss to the State of thousands of jobs, decreased

availability of U.S.-discovered medicines around the world, and diminished patient

health benefits as a result of reduced future availability of new medicines from an

overall reduction in R&D.4

47

5 ‘‘Counterfeit Drugs Set Alarm Bells Ringing,’’ Pharmaceutical Journal, 11 September 2004,

p1.6 ‘‘Fake medicines cost £180m, says ACG,’’ Pharmaceutical Journal, 23/30 December 2000,

p. 905.

The situation overseas is no better. Notably, in recent months the UK suffered

two high-profile counterfeit cases involving fake medicines in the legitimate supply

chain:5

• In August, a UK health care agency issued an alert recalling two batches of

Lilly’s Cialis when counterfeits were discovered after a patient reported to Lilly that

his 20mg tablets were crumbly.

• In September, the same UK agency issued a second alert recalling a batch of

Abbott’s Reductil after counterfeits were spotted by a wholesaler after it became

suspicious of the batch number.

The extent of counterfeit medicines in the UK is unclear. However, at the end of

2000, the Centre for Economic Business Research claimed that 6 percent of the

drugs in the UK were probably fake.6 Pfizer believes that international counterfeit

operations are clearly targeting Europe’s legitimate supply system.

We hope you will take this information and the issues they raise into consideration as your committee considers this important issue.

Sincerely,

CHUCK HARDWICK,

Senior Vice President,

Worldwide Government & Public Affairs.

The CHAIRMAN. Thank you all for appearing here today. We will

look forward to your further answers.

[Editors Note—Due to the high cost of printing, previously published materials submitted by witnesses are maintained in the committee files.]

[Additional material follows.]

48

ADDITIONAL MATERIAL

PREPARED STATEMENT OF SENATOR VITTER

Mr. Chairman, I welcome the opportunity to discuss the issue of prescription drug

importation. This is an issue about which I feel strongly: my first legislative action

as a U.S. Senator was to introduce the Pharmaceutical Market Access Act of 2005

(S. 109).

I would have to say that introducing S. 109, which would put affordable prescription drugs within reach of all Americans, was not an easy first action. This bipartisan bill is opposed by some very powerful interests in Washington, including the big

drug companies. The bill is opposed by the Administration and it was not particularly welcomed by any leadership in Congress, Senate or House, Republican or Democrat. But I could not ignore the wishes of a vast majority of the citizens of my

State.

As I traveled throughout Louisiana over the past year, I heard countless seniors

in particular tell similar stories about the outrageous costs of their prescription

drugs and how it burdens their lives. The United States is the world’s largest market for pharmaceuticals. Yet we pay the world’s highest prices. American seniors

alone will spend $1.8 trillion on prescription drugs over the next decade. Meanwhile,

citizens of virtually every other industrialized country pay significantly lower prices,

lower by 30 percent or more. And this figure includes many countries which are not

dominated by old-fashioned price control regimes.

My bill would make prescription drugs more affordable by expanding free trade

and world commerce, by legalizing the importation of prescription drugs from 25 industrialized countries with pharmaceutical structures equivalent or superior to our

own. For the first time, individual consumers would be allowed to legally import

prescription drugs for their personal use.

Critics of drug importation cite safety as their primary concern. I share a belief

that the safety of prescription drugs is paramount. My bill takes steps to resolve

real safety concerns and strengthen existing laws by adding new requirements to

promote the safety of prescription drugs here at home and those brought in from

abroad. It includes new requirements that imported prescription drugs either be

packaged and shipped using state-of-the-art counterfeit-resistant technologies or be

carefully tested for authenticity before entering commerce in our country.

Not long ago, a team of specialists, appointed by the Governor of Illinois, exhaustively researched the question of whether Americans can safely and effectively purchase prescription drugs from other industrialized countries. Their findings are described in two recent reports: the first, entitled ‘‘Report on Feasibility of Employees

and Retirees Safely and Effectively Purchasing Prescription Drugs From Canadian

Pharmacies’’ (released October 27, 2003); and the second, entitled ‘‘Can Illinois Residents and Businesses Safely and Effectively Purchase Prescription Drugs From Europe’’ (released June 28, 2004).

The authors of the first report conclude that Canadian methods of ensuring the

safety and efficacy of prescription drugs are comparable to those of the United

States. As noted in the October 27, 2003 report, at virtually every level, the United

States and Canada have comparable requirements for the warehousing and storage

of pharmaceuticals. The authors also conclude that Canada’s system for the pricing

and distribution of prescription drugs is less likely to foster drug counterfeiting than

our own system in the United States.

The authors of the second report conclude that it is both possible and desirable

to allow purchases of prescription drugs from approved facilities in Europe; and they

say it can be done in a manner that protects consumer safety. The authors also predict that consumer cost-savings can be achieved if drug companies do not restrict

or stop supplies to foreign facilities that sell prescription drugs to Americans. Finally, the report details how residents of the United States spend more money on

health care than residents of any other country in the world, yet the higher spending does not guarantee lower mortality rates or longer life expectancies. I request

that the full text of both reports be included in the Record of this hearing with my

statement.

Drug importation is not a conservative or liberal issue. It is not a Democrat or

Republican issue. It is a universal issue and a challenge to provide our Nation’s consumers access to safe and affordable drugs. That is why I worked to assemble a coalition of Senators and Representatives from across the political spectrum in support

of this legislation. This coalition makes the bill unique as the first bipartisan and

bicameral drug importation proposal.

On January 25, 2005, U.S. Congressman Gil Gutknecht introduced the companion

measure to S. 109 in the House of Representatives. His bill, H.R. 328, is identical

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to the one that I introduced on January 24th; and, like my bill, it has bipartisan

support. An earlier version of the Gutknecht bill passed the House of Representatives in the 108th Congress with my strong support and it remains the only bill ever

to pass either chamber on this subject. Congressman Gutknecht and I share the

view that an unaffordable drug is neither safe nor effective.

I look forward to working with all of my new Senate colleagues to advance the

cause of drug importation for all Americans. And, of course, my door is always open

to those who want to join our effort or who have other ideas on how to bring the

high cost of prescription drugs down to an affordable level. This issue is too important for us not to act.

PREPARED STATEMENT OF THE AMERICAN PHARMACISTS ASSOCIATION (APHA)

The American Pharmacists Association (APhA) appreciates the opportunity to provide our perspective on the risks and benefits associated with prescription drug importation. APhA, founded in 1852 as the American Pharmaceutical Association, represents more than 52,000 practicing pharmacists, pharmaceutical scientists, student

pharmacists, and pharmacy technicians. APhA is the first-established and largest

national association of pharmacists in the United States.

THE LIKELY RISKS OF PRESCRIPTION DRUG IMPORTATION

The public pressure to address access to lower prescription prices has prompted

Congress to look at the possibility of legalizing prescription drug importation. This

charge carries with it a significant responsibility—to determine if prescription drug

importation can be conducted safely, and its potential impact on public health, medical costs, and the development of new medications. To make this determination,

Congress must consider a number of important questions ranging from the scope

and volume of imported drugs, the adequacy of safety protections, and potential liability issues, to the need for modifications in manufacturing and distribution technologies, the drug distribution system, and State and Federal laws.

We appreciate why many have rallied around importation as the ‘‘solution’’ to providing consumers access to lower cost prescription drugs. As pharmacists, we are

acutely aware that some patients—especially seniors—face challenges in accessing

valuable, but sometimes unaffordable, medications. Many pharmacists can vividly

recall the dismay of having to tell one of their patients—especially a senior on a

fixed income—the cost of their medication, knowing that the cost may be more than

the patient can afford. Consequently, APhA strongly supports efforts to enhance patient access to prescription medications. However, we have significant concerns with

proposals to ‘‘solve’’ the problem by expanding importation. Our concerns generally

fit in two areas: the integrity of the drug product itself and the impact on patient

care.

THE INTEGRITY OF THE MEDICATION

The current U.S. drug distribution system was designed to keep unapproved and

potentially unsafe medications from entering the U.S. drug supply. Current U.S.

laws and regulations were put in place after several critical incidents resulted in

patient harm. When patients were harmed by contaminated or ineffective medications, Congress took action to protect patients. Those actions included requiring evidence of safety and effectiveness, controlling the production and distribution of products, prohibiting the importation of unapproved medications, and other efforts to

limit the presence of counterfeit and contaminated medications. Intentionally circumventing the U.S. regulatory system—as prescription drug importation would

allow—creates an opportunity for mislabeled, mishandled, subpotent, or counterfeit

drugs to make their way onto the shelves of pharmacies and into the hands of patients.

In an attempt to reduce the risk, some Congressional proposals have limited importation to specific countries. While some countries, such as Canada, may have a

system to regulate medications comparable to the U.S. system, it is important to

recognize that a program limited to import prescription drugs from Canada—no

matter how carefully designed—will open the closed U.S. regulatory system to countries beyond Canada. ‘‘Opening the door’’ to Canada opens the door—period. And

opening the door creates opportunities for unscrupulous operators to penetrate the

system. Before any new system is adopted, we must be certain that, at a minimum,

U.S. regulatory authorities will be able to distinguish between a ‘‘legitimate’’ (a prescription filled through an ‘‘approved’’ importation program) package of prescription

drugs crossing the U.S. border and another package of prescription drugs entering

the United States from an unapproved country or drug seller.

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1William Hubbard. Statement before the Senate Committee on Finance Subcommittee on

Health Care and Subcommittee on International Trade. April 27, 2004.

It’s also critical to keep in mind that while Canada is touted most frequently as

the source of the imported products, there are no guarantees that the drugs U.S.

patients will receive are those that are being delivered to Canadian citizens. In fact,

as reports have indicated, Canada is not equipped to handle the demand that would

potentially occur if prescription drug importation was legalized in America. The

Internet pharmacies that are currently filling most of the orders—in violation of

U.S. law—are now threatening to move to other countries to increase their supplies

of drugs. Without a comprehensive, well-structured, well-funded new bureaucracy to

regulate prescription drug importation, American patients, pharmacists, and physicians will have no guarantee that the products that physicians prescribe, pharmacists dispense and work with, and patients ingest won’t do more harm to the patient than good.

But even with the comprehensive U.S. system, counterfeit drugs have penetrated

our system. According to the Food and Drug Administration (FDA), the number of

counterfeit drug investigations has increased fourfold since the late 1990’s.1 For example, in 2003, 11,000 boxes of counterfeit Epogen and Procrit were found on pharmacy shelves and in patients’ homes. Three months later, the FDA discovered five

lots of counterfeit Lipitor. And more recently, the FDA warned of counterfeit Ortho

Evra contraceptive patches that contain no active ingredient and were being sold

online by a company based in India. These examples support the need for review

and refinement of our existing safety net, not the expansion of efforts to circumvent

or relax that system. A poorly constructed importation proposal would relax our current system and damage our safety net. Opening the door to importation increases

the risk of counterfeit medications infiltrating our drug supply.

Even when a patient receives a ‘‘legitimate’’ drug, there are differences between

drugs that are sold in the United States and other countries. Medications obtained

outside of the United States may contain different formulations—with differences in

the amount of active ingredient or differences in the type of inactive ingredients—

both of which can affect the product’s stability and how the product works. Because

of these differences, any safe importation system must limit importation to products

approved by the Food and Drug Administration, not merely products that contain

the same, or similar, active ingredients. Medications are different—and minor differences matter.

Storage and shipping conditions can also affect drug stability and potency. Consumers who obtain their medications outside the United States have no way to

know how their medications were handled. Any safe importation system must ensure that the medication was maintained at the correct temperature, was stored in

the correct type of container, and was properly protected during shipment.

IMPACT ON PATIENT CARE

Importation not only removes the United States guarantee to patients that their

drugs will be safe, it also directly impacts patient care. While much of the importation debate is driven by disparities in drug pricing, those disparities are evident

only on the front end—when we only know the cost of the drug, not the value. The

most expensive medication is the one that doesn’t work: in the situation where the

drug doesn’t lower blood pressure appropriately, the consumer paid good money, but

received no benefit. In addition to paying cash, the patient paid a price with their

health as their condition went unmanaged. The value of a medication should be assessed after the consumer has used it, after consultation with their pharmacist and

doctor to make the best use of it. But this collaboration is challenged in many importation scenarios.

Because of the stigma involved in importing medications, many patients do not

tell their physician or pharmacist about medications they are securing outside of the

United States. This is understandable, but dangerous. When a patient obtains medications from multiple sources—in this case through importation and a local pharmacy—neither the domestic nor international pharmacist has the patient’s complete

medication profile unless the patient provides this information. The pharmacist is

unable to determine whether the new prescription will conflict with any other medications the patient takes, whether the new prescription has ingredients that duplicate a current prescription, or whether its mere presence suggests other medical

problems for the patient that should be followed-up with the patient’s physician.

This virtual blindness compromises the ability of physicians to care for their patients and the ability of pharmacists to partner with patients to improve medication

use and advance patient care.

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Not knowing a patient’s entire medication regimen or the content and strength

of a particular drug can also cause problems when a patient suffers unexpected complications or does not respond as expected to a medication. Consider a patient working with their local physician and pharmacist to treat their high blood pressure. The

patient imports a faulty medication that has no, or little, active ingredient. It is unlikely the patient will physically feel anything different; it is unlikely he would actually notice any difference in the product. Later the patient visits the physician and

his blood-pressure reading shows that the medication is not working. Because of our

trust in the medication supply, it is highly unlikely that the physician will consider

that there was a problem with the medication. Rather, the physician will likely assume that the medication did not work and will consequently either increase the

dose or choose another medication. This sets the stage for using a stronger, but potentially unnecessary, medication and increasing overall health care costs.

Also consider the scenario where a patient is in need of a prescription medication

on a short timeframe—such as an antibiotic for an infection or a pain medication

to treat symptoms from an injury. If that patient has been importing his or her

medications, the pharmacist is unable to determine whether the new prescription

will conflict with any other medications the patient takes, has ingredients that duplicate a current prescription, or whether its mere presence suggests other medical

problems for the patient that should be followed-up with the patient’s physicians.

This ‘‘blindness’’ compromises the ability of physicians to care for their patients and

the ability of pharmacists to partner with patients to improve medication use and

advance patient care.

Both of these scenarios help explain why it is difficult to answer the often asked

question, ‘‘Where are the bodies [the documented evidence of patient harm from importation]?’’ Counterfeit drugs can exacerbate illness and/or hasten death. But it’s

unlikely that either of these results would be linked to a faulty drug because of our

current faith in the U.S. drug supply. Importation could cloud the promise of improved health from medications; importation compromises the pharmacist’s role in

patient care.

THE NEED TO ADDRESS ISSUES OF CONCERN

Medications have become a critical aspect of patient care. But prescription medications are only safe and effective when patients receive ‘‘what the doctor ordered’’,

understand how to use the drug appropriately, and what side effects they should

watch. Direct interaction between the prescribers, pharmacists and patients is critical to ensuring appropriate medication use. Effective patient care is about real relationships—physician-patient, pharmacist-physician, and pharmacist-patient relationships. To remove such a basic component of our health care delivery system’s

safety net seems diametrically opposed to the ‘‘pro patient safety’’ environment we

are all working to achieve.

When you consider all of the risks associated with the importation of prescription

drugs, just a few of which have been described, it appears foolhardy to consider haphazardly opening our borders to imported pharmaceuticals. Allowing importation

carries the risk that mislabeled, mishandled, subpotent, or counterfeit drugs will

reach the hands of U.S. patients. We suggest that Congress stop asking the question

‘‘do we allow importation?’’, which has become highly politicized, and instead ask

‘‘what do we do to assure the safety and the integrity of the U.S. drug supply?’’

There appear to be two options. One, we begin strictly enforcing current law that

prohibits importation. Provide the FDA, the Drug Enforcement Administration, Customs Bureau, and other regulatory agencies the funds and resources necessary to

enforce the law; and continue efforts to find other means of increasing access to affordable medications. At a minimum, policymakers should avoid any further endorsement of this unregulated and unknown practice. Instead, we must continue to

educate consumers on the risks.

The second option is developing a new bureaucracy to assure the safety of our

medication supply. A new system, regardless of whether or not it allows importation, must resolve several issues of concern to ensure that patients continue to receive safe and effective medications—and that they know how to use those medications. Specifically, a new system must address the role of the FDA and the State

Boards of Pharmacy in maintaining a safe drug supply, respect the patientpharmacist-physician relationship, require valid prescriptions, assure consumer recourse for harm, prevent efforts to circumvent U.S. health care professionals, include measures to limit counterfeit and contaminated drugs, and address the differences between FDA-approved medications and foreign products. Even this long

litany of issues is not an exhaustive list of what must be tackled when evaluating

a system to protect the U.S. drug supply and American consumers.

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BALANCING RISK AND BENEFIT

Prescription drugs, unlike so many other products, are not just another commodity—we ingest them to affect our bodies. They are one of the most valuable weapons

we have in our health care arsenal today and we must treat them as such. Pharmacists rely on the quality of the U.S. prescription drug supply to provide their patients with safe and effective treatments. As the FDA does when it evaluates a new

prescription drug, we must look at both the risks and the benefits and determine

if the benefits outweigh the risks.

Importation may provide the benefit of lower cost prescription drugs, but as currently practiced it appears that the benefits do not outweigh the potential risks. We

caution against recommending importation as an alternative method of drug distribution without appropriate safeguards—both in statute or regulation and in enforcement. At a minimum, any legalization of importation should be limited to drug

products approved by the Food and Drug Administration and assure coordination

of care with the consumer’s doctor and pharmacist. The perils of personal importation via the Internet are many. If our closed system is opened, we must have strong

measures—and enforcement behind those measures—to help decrease the likelihood

of unscrupulous operators preying on consumers through their medicine cabinet.

APhA thanks you for the opportunity to provide comments on this important

issue. We appreciate the committee’s commitment to examining the wide range of

issues surrounding the prescription drug importation debate. We offer our assistance to the committee as you continue your valuable work to develop a safe and

effective system of providing prescription medications and pharmacists’ services to

all Americans.

PREPARED STATEMENT OF ALLERGAN, INC.

This testimony is submitted on behalf of Allergan, Inc., a biologics and pharmaceutical company headquartered in Irvine, California. Allergan develops innovative

therapies for vision, muscular, and other disorders and conditions. We have developed a number of orphan products, including Botox, which is a biologic used to treat

dystonia and related eye disorders, as well as muscular contracture in pediatric cerebral palsy patients.

We appreciate the opportunity to submit testimony on the matter of prescription

drug importation legislation, and in particular, on the need for an exemption in such

legislation for FDA-designated orphan drugs. Allergan believes that Congress should

exclude orphan drugs from prescription drug importation legislation for two reasons:

(1) permitting importation of orphan drugs would endanger patient safety, as many

orphan drugs have unique handling requirements which are critical for maintaining

their potency; and (2) permitting importation of orphan drugs would undermine the

Orphan Drug Act and thus jeopardize the future development of rare disease therapies.

I. BACKGROUND ON ORPHAN DRUGS

‘‘Orphan’’ drugs are drugs (including biologicals) that are developed specifically to

treat a rare disease or condition, i.e., generally, a disease or condition that affects

fewer than 200,000 people nationwide. According to the National Organization for

Rare Disorders, more than 6,000 rare diseases have been identified. Some rare diseases are as familiar as cystic fibrosis, hemophilia, and Lou Gehrig’s disease, while

others—such as Hamburger disease and Job syndrome—might be known only to the

relative few who are afflicted with the disease, along with their families and health

care professionals. By definition, the number of people with a particular orphan disease is relatively small, but collectively, rare diseases afflict more than 25 million

Americans. In fact, 1 out of every 10 people in the United States has received a rare

disease diagnosis. Rare disease patients rely on orphan drugs to treat their diseases,

which often are life-threatening acute or chronic conditions.

II. IMPORTATION OF ORPHAN DRUGS WOULD ENDANGER PATIENT SAFETY

Exempting orphan drugs from prescription drug importation legislation is imperative to ensure the safety of rare disease therapies administered in the United

States. Many orphan drugs are biologicals, which often require unique handling and

shipping measures, such as maintaining the product at specific and sometimes extreme temperatures, and limiting the product’s exposure to light. These unique handling requirements are critical to maintaining the product’s safety and efficacy. The

failure to adhere to these special handling requirements can endanger patient

health by making the product ineffective or even harmful. However, it is difficult,

if not impossible, to determine whether and the extent to which a drug’s potency

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has been compromised as a result of failure to adhere to prescribed shipping requirements.

The dosage form of many orphan drugs makes them particularly vulnerable to unscrupulous counterfeiters. Many orphan drugs are infused or injected. The liquid

form of these infused and injectable products makes them more susceptible to counterfeiting than tablets or pills—and more dangerous for patients. These products are

infused and injected directly into the bloodstream, and thus, the effects of counterfeit drugs are experienced immediately and severely.

These safety concerns are not hypothetical or exaggerated. Consider the following

reported examples of counterfeit or diluted orphan drugs that have entered the U.S.

drug supply under current law: • Epogen (epoetin alfa). Epogen is an injectable biologic used to stimulate red

blood cell production. On February 21, 2001, the manufacturer of Epogen disclosed

reported incidents of tampering. The flip caps from some vials had been removed

and the vial contents were replaced with varying amounts of a subpotent aqueous

solution. The vials bore counterfeit labels with phony lot numbers. Lab tests revealed that some vials contained active ingredient 20 times lower than expected. A

16-year-old liver transplant patient suffered severe muscle cramping after receiving

injections of the subpotent drug. His parents had purchased the drug from a national pharmacy chain store, which had in turn received it from one of three national drug distributors. • Gamimune N (immune globulin intravenous, human). Gamimune N is a liquid

formulation plasma concentrate used to treat various immune deficiencies. In early

2002, nurses noticed that certain vials of Gamimune N were atypically cloudy. The

manufacturer of Gamimune N recalled two separate lots of the drug, one on February 1, 2002, and one on March 14, 2002. An analysis revealed that someone had

tampered with the overseals of at least 13 vials. The damaged vials contained diluted Gamimune N, were contaminated with bacteria, had an unexpectedly low protein concentration, and demonstrated an elevated chloride level. • Neupogen (filgrastim). Neupogen is an injectable colon-stimulating factor used

mostly in cancer patients. In 2001, a distributor discovered counterfeit vials of the

drug that contained fake lot numbers and incorrect expiration dates. Laboratory

tests later revealed that the vials contained only saline solution. • Nutropin AQ (somatropin (rDNA origin) infection). Nutropin AQ is the liquid

formulation of Nutropin, a lyophilized recombinant human growth hormone.

Nutropin AQ is used to treat children with growth failure and patients suffering

from AIDS wasting. In 2001, patients, doctors, and pharmacists detected abnormal

vials of Nutropin AQ. Subsequent analysis revealed at least one vial contained insulin instead of Nutropin. • Procrit (epoetin alfa). Procrit helps anemic cancer and HIV patients increase

their red blood cell counts. Counterfeit versions of the drug were first discovered in

2002 and have been found at two large wholesalers and a number of retail outlets.

Counterfeit lots of the drug that purported to contain 40,000 units only had 2,000

units. Instead of active ingredients, some vials contained bacteria-tainted water that

can cause blood stream infections.

• Retrovir (zidovudine). Retrovir, also known as AZT, was the first drug approved

for the treatment of HIV. In 2001, a routine inspection revealed 52 bottles of counterfeit Retrovir. A spokesperson for the company that had sold the counterfeit drug

apologized, explaining that the large volume of sales prevented the adequate detection of counterfeit drugs.

• Serostim (somatropin (rDNA origin) for injection). There have been two counterfeit incidents associated with Serostim for injection, a growth hormone used to treat

AIDS wasting. In 2001, a recall at the distributor level was prompted by consumer

complaints about adverse events. In 2002, the manufacturer of the drug became

aware of another counterfeit batch. One batch reportedly contained a generic hormone, while the other contained a significantly smaller dose of the human growth

hormone.

Although prescription drug importation legislation may establish safeguards to

protect the Nation’s drug supply, safeguards can never be completely effective. Even

the legal safeguards currently in place have not prevented numerous cases of counterfeit and adulterated orphan drugs in the United States. Importation of orphan

drugs would only increase the risk of exposing rare disease patients to an ineffective

or harmful drug, because more entities that are far beyond the effective control of

FDA will handle the drug before it reaches the patient. This introduces a much

greater risk that a drug may be mishandled, contaminated, or counterfeited by an

unscrupulous or careless person willing to exploit or ignore patient safety for economic benefit. Congress therefore should exempt orphan drugs—with their higher

threat of adulteration and contamination, or compromised safety or efficacy due to

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mishandling—to reduce the risk of introducing unsafe products into the U.S. drug

supply.

III. IMPORTATION OF ORPHAN DRUGS WOULD JEOPARDIZE FUTURE DEVELOPMENT OF

RARE DISEASE THERAPIES

In enacting the Orphan Drug Act in 1983, Congress recognized the unique challenges that rare diseases pose for patients and drug manufacturers. Congress determined that there are ‘‘many diseases and conditions . . . which affect . . . small

numbers of individuals,’’ and that ‘‘because so few individuals are affected by any

one rare disease or condition,’’ companies that develop ‘‘orphan drugs’’ to treat these

diseases may ‘‘reasonably expect . . . to incur a financial loss’’ in doing so. Given

the inability of companies to recoup costs incurred in bringing these products to

market, Congress found that ‘‘orphan drugs will not be developed’’ absent changes

in Federal law to encourage their development.

To address this problem, Congress established certain incentives under Federal

law for orphan drug development, including market exclusivity for 7 years, tax credits, assistance for clinical research, and research grants. These incentives have been

essential to the development of orphan drugs. As a result of the Orphan Dug Act,

more than 240 orphan drugs have been developed to treat rare diseases affecting

approximately 12 million Americans.

Permitting importation of orphan drugs would thwart the goals of Orphan Drug

Act, because it would introduce competition during the period in which the Orphan

Drug Act promises market exclusivity. In addition to breaching the promise that

Congress made in the Orphan Drug Act, this would impair manufacturers’ ability

to recover the costs incurred in developing rare disease therapies and discourage future research and development efforts aimed at discovering treatments for rare diseases. This result is precisely what the Orphan Drug Act sought to avoid, and could

have disastrous consequences for the future development of orphan drugs—and thus

for the millions of Americans suffering from rare diseases for which effective treatments have not yet been developed.

IV. CONCLUSION

In conclusion, we believe it is imperative that Congress exempt orphan drugs from

prescription drug importation legislation to ensure the safety of rare disease therapies administered in the United States, and to maintain appropriate incentives to

encourage the future development of orphan drugs. Allergan has long been a supporter of the rare disease community and the Orphan Drug Program, and we remain committed to developing innovative therapies for the 25 million Americans

suffering from rare diseases. We would be happy to provide the committee with any

additional information that may be useful as it considers these important issues.

RESPONSE TO QUESTIONS OF SENATOR KENNEDY BY RICHARD CARMONA, M.D.

Question 1. The HHS Report explains that drug importation would reduce revenues for the drug industry, which would cause them to cut research and development, leading to fewer drugs on the market in the future, and huge societal costs.

Instead, the report suggests we find ways to encourage people to use generics whenever available, saying that would save as much or more anyway. Wouldn’t switching

to generics also decrease revenues for the drug industry, and have the same negative effect on R&D?

Answer 1. While both drug importation and switching to generics would reduce

revenue to innovator drug companies, the impacts on future research and development (R&D) are quite different. Many of the drugs likely to be imported are early

in their life cycle and are just beginning to repay innovators for their substantial

investments. Reductions in revenues in these cases are important because they

occur relatively soon after decisions to undertake research and development. When

a consumer switches to a generic version of an innovator’s drug, however, the reduction in revenues occur later in the life of the innovator’s drug—after the expiration

of all patents and exclusive marketing opportunities granted by the government.

These reductions in revenues are so long after R&D decisions that they are relatively unimportant from the perspective of potential investors in R&D. Thus, we

believe the impacts on R&D from increased generic utilization would be minimal.

By encouraging consumers to switch to generics whenever available, we are encouraging them to save money while still providing firms bringing costly innovations to

market a fair opportunity to recoup their investments.

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Question 2. In your testimony you stated that America would likely save less than

1 percent of our total drug bill through importation. That is based in large part on

the fact that much of our expenditures are for drugs that are biologics, or generics,

or drugs otherwise inappropriate for importation. But, page 75 of the report seems

to state that for drugs that would be eligible for importation, ‘‘discounts to U.S. drug

purchasers will average 20 percent of the price of equivalent U.S. pharmaceutical

products.’’ Do you agree that that would be a substantial savings for many individuals, similar to what seniors are receiving with Medicare drug discount cards?

Answer 2. The estimate of 20 percent savings would apply to those drugs eligible

for importation, where there would exist an importable supply, and to the extent

that intermediaries would not capture more than half of the potential savings. But

note that the report states that the discounts would accrue to U.S. ‘‘drug purchasers.’’ This is an important distinction. There is no guarantee that individual

consumers, in particular cash-paying seniors, would have direct access to these

cheaper drugs. The Task Force Report recognizes that, given the economic power of

large purchasers, it is possible that all of the available supply could be purchased

by large organizations or third-party payers and that few savings would ever reach

the individual consumer. While CMS can speak better about the details of the Medicare drug discount cards, it would seem that this program puts the buying power

of large groups into the hands of individual consumers, who would have access to

cheaper drugs without regard to importable supply or the market power of intermediaries. So one would expect the savings for individual consumers from legalized

commercial importation to be quite different from the Medicare drug benefits.

RESPONSE TO QUESTIONS OF SENATOR HATCH BY RICHARD CARMONA, M.D.

Question 1. You mentioned that there are significant safety concerns regarding

drug importation, but if Congress wants to legislate a system, it should be closed,

well-defined, and capable of ensuring the pedigree of the drugs. While these seem

to be valid principles if there were to be an import regime, I am concerned about

the practicality of designing a system to meet those requirements. Could you elaborate on what you meant by a closed system? For example, would other countries

have to participate? If so, how would the United States negotiate the agreement

with those other countries? How would this be enforced? Similarly, what are the

ways in which the United States would go about ensuring that pedigree?

Answer 1. The drug distribution network for legal prescription drugs in the

United States is a ‘‘closed’’ system that involves several entities (e.g., manufacturers, wholesalers, pharmacies) that move drug products from the point of manufacture to the end user, and provides against receiving unsafe, ineffective, or poor quality medications. All of these entities are known and subject to Federal and State

regulatory and legislative oversight. This system evolved as a result of legislative

requirements that drugs be treated as potentially dangerous consumer goods that

require professional oversight to protect the public health. The result has been a

level of safety for drug products that is widely recognized as the world’s ‘‘gold standard.’’ To maintain current levels of safety, the standards that currently exist in the

United States (or some equivalent) would need to apply to all foreign drug suppliers

who were authorized to sell drugs into the United States under a legalized commercial importation program. Legalized importation of drugs in such a way that creates

an opening in the ‘‘closed’’ system will likely result in some increase in risk, as the

evidence shows that weaknesses in the oversight of drug regulation and the distribution system have been exploited.

As stated in the Drug Importation Task Force Report, Memoranda of Understanding (MOU) may be needed with the affected countries to ensure effective enforcement of the terms of a new importation system.

Because electronic track and trace technology and capability is still in its infancy,

it would be logistically difficult and resource intensive to validate and authenticate

paper pedigrees that include, or originate in, a foreign country.

Question 2. The enforcement mechanism is also of great interest to me, especially

in reference to Internet pharmacies. Could you please advise the committee as to

how the Internet marketplace could be policed so that American consumers could

be assured about the safety, efficacy and pedigree of the medications they are receiving? In the United States, for example, pharmaceutical manufacturing plants

are registered and regularly inspected, pharmacies are licensed, etc. Would those

same regulatory safeguards exist with respect to products distributed through Internet pharmacies?

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Answer 2. The Drug Importation Task Force Report noted that there are an increasing number of foreign Internet pharmacies capitalizing on the vulnerability of

patients in search of less expensive prescription drugs. The Internet has created a

marketplace for the sale of unapproved drugs, prescription drugs dispensed without

a valid prescription, drugs of unknown origin, counterfeit drugs, and otherwise substandard drugs. Although there are a number of legitimate and reputable Internet

pharmacies in the United States that serve American consumers, there are a considerable number of Internet pharmacies that are not legitimate and that unlawfully

sell prescription drugs to American consumers. Unfortunately, it is very easy to set

up a webpage that misrepresents the pharmacy’s location, the source and country

of origin of its drugs, the regulatory status of the drugs (e.g., whether or not FDAapproved), and its compliance with applicable laws and regulations. It is extremely

difficult for highly trained investigators to tell the difference between legitimate and

illegal sites; it will be even more difficult for consumers to differentiate. Because of

the ease with which such Web sites can be established and because the Internet

helps obscure their physical location, it would be nearly impossible to monitor, find,

or inspect all of these pharmacies.

Furthermore, the volume of packages entering the United States today has been

increasing at a steady rate. Under a personal importation program, it would be very

difficult to distinguish which of these millions of packages are from ‘‘permitted’’

Internet pharmacies and which are from rogue Web sites, increasing the potential

safety risks associated with imported drugs.

There are efforts to help patients identify if an online pharmacy site is appropriately licensed, such as the Verified Internet Pharmacy Practice Site (VIPPS) certification program, run by the National Association of Boards of Pharmacy. Online

pharmacies with the VIPPS logo also have successfully completed a rigorous inspection and review.

RESPONSE TO QUESTIONS OF SENATOR ENZI BY CARMEN CATIZONE

Question 1. I am interested in the VIPPS program to certify Internet Pharmacies.

Third-party certification has been remarkably successful in other areas. I do note,

however, that you have an extensive disclaimer about the information in the VIPPS

database, which states that this information is advisory only, and voluntarily supplied by Boards of Pharmacy and the pharmacy site themselves. What level of resources would it take to verify—on an ongoing basis—the information necessary for

safe importation of prescription drugs from online pharmacies?

Answer 1. NABP considers the information provided by the VIPPS program as reliable and valid and certifies all such information with the primary source, State

licensing authorities. The disclaimers are legal formalities to recognize the legal authority of the State Agencies and to minimize NABP’s liability. Our disclaimers are

not meant to diminish the validity of the information. The VIPPS program as presently organized verifies information in a manner and to the extent that would be

needed for domestic-based pharmacy practice. The verification of foreign-based pharmacy operations would require extensive resources that NABP could not even estimate at this point.

Question 2. The VIPPS program is completely voluntary. How many Internet

pharmacies are participating in VIPPS? What fraction of Internet pharmacies does

that constitute?

Answer 2. Since its inception approximately 24 sites have received the VIPPS

seal. Over time some of the sites have consolidated or ceased operations or lost their

VIPPS accreditation. The 24 VIPPS seals awarded represent some 10–12,000 pharmacies in the United States out of approximately 78,000 total pharmacies in the

United States. The total number of legitimate pharmacy Web sites is estimated at

approximately 150. A number of these Web sites are local pharmacies that do not

serve patients outside of their local patient base and utilize the Internet simply to

facilitate refill authorizations or provide medication information.

RESPONSE TO QUESTION OF SENATOR ENZI BY JOHN GRAY

HEALTHCARE DISTRIBUTION MANAGEMENT ASSOCIATION (HDMA),

RESTON, VA 20190–5348,

March 15, 2005.

Below is the response of HDMA President and CEO John Gray to the question

for the record posed by Chairman Enzi as a follow-up to John’s presentation at the

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committee’s February 16th hearing, ‘‘Drug Importation: The Realities of Safety and

Security.’’ As always, please do not hesitate to contact me if you have any questions.

Question. I have heard a lot about Radio Frequency Identification (RFID). Can

you tell me a little more about this technology, and what sort of role it might play

in ensuring the pharmaceutical supply chain, both as it stands now and as things

might look if the United States were to legalize drug importation?

Answer. The Healthcare Distribution Management (HDMA) strongly believes that

technology can serve an important role in securing the Nation’s prescription drug

supply; however, no single technology can absolutely prevent counterfeiting. Rather,

a layering of various strategies can create a significant barrier to entry. We believe

technologies employing radio frequency identification (RFID) utilizing electronic

product codes (EPC) hold the most promise for tracking, tracing and authenticating

a product’s movement across the supply chain.

The EPC is a unique number that identifies a specific item in the supply chain.

The EPC may also include identifying information such as the manufacturer, product information and a unique serial number. A RFID tag, which is a silicon

microchip, smaller than a grain of sand, and an antenna is applied to the items and

contains the EPC number. Using RFID technology, the chip ‘‘communicates’’ its

number to a ‘‘reader’’ that picks up the signal and records the information. This

technology will allow supply chain stakeholders to track the chain of custody (or

pedigree) of every unit of medication on an individual basis. By tying each discrete

product unit to a unique electronic ID, a product can be tracked electronically

through the supply chain.

Furthermore, EPC/RFID technology represents an opportunity to significantly improve efficiencies in managing supplies and inventory. According to a recent HDMA

Healthcare Foundation Report entitled, ‘‘Adopting EPC in Healthcare: Costs and

Benefits,’’ patient safety can be enhanced and efficiencies to the healthcare supply

chain can be achieved via the industry-wide adoption of EPC/RFID. EPC/RFID is

more efficient and cost-effective than paper pedigrees or alternative electronic tracking methods that do not involve the serialization of individual products. Paper pedigrees have been forged in previous domestic counterfeiting situations. Moreover,

paper pedigrees would literally halt the efficient distribution of drugs given the volume of products delivered and the sophisticated automation technology utilized to

do so safely and efficiently.

Tremendous progress is being made in the development and adoption of EPC/

RFID technology with respect to pharmaceutical products. This is a monumental endeavor that will require close collaboration among all constituents of the healthcare

supply chain and will take several years to proliferate the market in the United

States. Industry, commercial vendors and government agencies are working together

to develop the necessary standards for communication of tagged items across the

supply chain. HDMA is working closely with standards development organizations

such as EPCglobal to further the awareness, adoption and implementation of EPC

in healthcare distribution. While progress is extremely positive, there are many hurdles to overcome including business and technology challenges such as data management issues, interoperability of tags and readers and standards development.

HDMA’s focus has been to advocate for the adoption of this technology in the United

States.

Although the industry is moving forward in the development and adoption of

EPC/RFID technology, it will take time and an unwavering commitment on the part

of government and each partner in the supply chain to realize adoption of RFID

technology in a measured, meaningful and universal way. HDMA members look forward to the support of the committee in ensuring that our laws and regulations continue to support the industry’s role in driving adoption of this important and patient

safety enhancing technology.

RESPONSE TO QUESTIONS OF SENATOR ENZI BY GOVERNOR TIM PAWLENTY

OFFICE OF GOVERNOR TIM PAWLENTY,

SAINT PAUL, MN 55155,

March 17, 2005.

Hon. MIKE ENZI, Chairman,

Committee on Health, Education, Labor, and Pensions,

U.S. Senate,

Washington, DC 20510–6300.

DEAR SENATOR ENZI: Thank you for the opportunity to testify before the U.S. Senate Committee on Health, Education, Labor, and Pensions on February 16th. It was

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my pleasure to share with you Minnesota’s success in supplying Minnesotans with

information and assistance in attaining affordable and safe prescription medicines.

You and Senator Hatch both requested additional information and analysis about

Minnesota RxConnect and Minnesota Advantage Meds. Below are answers to your

inquiries.

Question 1. I was intrigued by your description of the RxConnect program. What

does the program cost and how is it funded? Does the cost scale with the number

of users? In other words, how much would it cost to double the program? Triple it?

Answer 1. The program cost is minimal and is funded from general State revenues. The work done for the MinnesotaRxConnect program was completed by employees of the Minnesota Department of Human Services. Consequently, no additional funds were expended to hire vendors or contractors. The cost of sending State

personnel to inspect pharmacies was approximately $10,000. The cost of printing

brochures was $2,893.80.

The hard costs for setting up the program for State employees and their dependents, Advantage-meds.com, was also minimal. Several staff members were involved

in implementation and an actuary was paid a small amount to provide drug data.

All salaries and other costs were paid out of the employee insurance fund. E-mail

was used to announce the program to employees, so the communications costs were

minimal.

With both programs, the cost does not scale with the number of users. Expanding

the program would not significantly increase costs.

Question 2. Recently, many Canadian Internet pharmacies have announced that

they are going beyond Canada to get their medicines for American consumers, into

countries such as Israel, parts of the EU, New Zealand, etc. In a poll that was released this past fall on importation, support for importation beyond Canada was

around 30–40 percent. Do the Internet pharmacies that Minnesota RxConnect has

a relationship with in Canada get their medicines from countries other than Canada

and if so, is that information disclosed to consumers buying those medicines?

Answer 2. There are really two parts to the answer. Many of the medications used

in Canada are imported into Canada from other countries. However, the same thing

is true for the United States. Many brand and generic medications are imported into

the United States from Europe, Japan, Israel, India and other countries. Those

drugs are approved by the FDA and are purchased by U.S. wholesalers, sold to U.S.

pharmacies and dispensed by U.S. pharmacists directly to Americans every day. For

example, most of the Lipitor dispensed in both Canadian and American pharmacies

is made in a manufacturing plant in Ireland.

Similarly, drugs are imported into Canada with the approval of Health Canada

and are ultimately dispensed to Canadian citizens. The Canadian Internet pharmacies, of course, dispense those Canadian-approved drugs to U.S. citizens.

Many of the largest pharmaceutical manufacturers are trying to drive Canadian

mail-order pharmacies out of business. They are refusing to sell prescription drugs

directly to the pharmacies and are threatening to withhold product from wholesalers

that do business with the pharmacies. Consequently, some Canadian mail order

pharmacies have established relationships with pharmacies in other countries such

as the United Kingdom, Australia, New Zealand, Israel and Chile.

Two of the pharmacies affiliated with our Web site have such relationships. Those

pharmacies will not send a prescription to be filled by a pharmacy in another country without informing (and getting written permission from) the customer. The Canadian pharmacy still receives the written prescription, verifies that it is valid and

appropriate, checks for problems and enters the data into the pharmacy computer

system. Using a secure connection, the data is transmitted to the pharmacy in, say,

the United Kingdom, where it is checked again by the U.K. pharmacist and physician. The U.K. pharmacy then sends the filled prescription directly to the customer

in the United States. Billing is handled by the Canadian pharmacy. In this example,

the drug shipped to the U.S. customer would be approved for use in the United

Kingdom. Note that the Canadian pharmacy is not buying and importing the drug

from the U.K. and then dispensing it to the U.S. citizen. That would be illegal under

Canadian law.

Question 3. While you have advocated for allowing Minnesotans to import drugs

from pharmacies in Canada, most importation proposals pending at the Federal

level allow pharmacists and wholesalers to import drugs from 20 to 25 countries

around the world. What is your position on legislation that goes beyond just Canada

and goes beyond personal importation?

Answer 3. Employees of the Minnesota Department of Human Services have studied the pharmaceutical distribution system of the United Kingdom. As part of that

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study, they reviewed the U.K. parallel importation process and were favorably impressed. A large number of drugs used in the U.K. contain the same active ingredient in the same strength as the drugs used in the United States. They are made

by the same manufacturer, look the same, have the same brand name and are sometimes made in the same plant—no matter where they are shipped around the world.

A parallel importer in the United Kingdom must be registered by the appropriate

regulatory agency. In addition, it must obtain a license for each and every product

it wants to import from another European nation. The imported drug must be approved for use in the United Kingdom, in the country from which it is imported

and/or by the European Medicines Agency. The parallel importer must keep meticulous records that detail the sales history of each box of drug that is imported—from

manufacturer to foreign wholesaler to parallel importer. Products that are imported

into the U.K. typically come from Greece, Italy or Spain. Approximately 20 percent

of the drugs dispensed to patients in the United Kingdom are parallel imports. Britons don’t appear to be suffering adverse consequences due to drugs imported from

Greece, Italy and Spain.

European standards for drug manufacturing and distribution appear to be comparable to those used in the United States and certainly rigorous enough to adequately protect patients in Europe. If parallel importation can work so successfully

in Europe, there would seem to be no reason to believe that it couldn’t work for the

United States.

RESPONSE TO QUESTIONS OF SENATOR HATCH BY GOVERNOR PAWLENTY

I understand that Canadian pharmacies on the Internet require customers to sign

a waiver absolving the pharmacies of any liability. These waiver forms routinely

make U.S. customers waive many other rights, such as the right to privacy, the

right to consult a qualified pharmacist, the right to child-proof packaging, and any

warranties that the drugs are safe and effective.

Many of these requirements are well-established tenets of U.S. practice and law.

For example, the right to privacy of medical information was established by HIPAA,

an act passed overwhelmingly by the Congress. The U.S. standard of safety and efficacy for pharmaceuticals is the hallmark of our country’s drug approval system, and

a requirement that has led many to call our system the ‘‘gold standard’’ of the

world.

Question 1. My questions are this: Why should Minnesota consumers be required

to waive these important requirements, requirements that largely apply to the purchase of pharmaceuticals in other States? Have you developed any information, such

as public education or surveys, to gauge the measure to which your residents are

aware of these important rights and the fact that they are entering into legal agreements to waive them, agreements that would in effect make the consumers responsible for the potentially hazardous results of safety problems?

Answer 1. We agree that Minnesota consumers should not be required to sign

waivers of liability. The pharmacies affiliated with the MinnesotaRxConnect and

Minnesota Advantage-meds Web sites do not require patients to sign waivers of liability.

Question 2. You stated in your testimony that since the launch of

MinnesotaRxConnect, not a single complaint has been raised regarding the quality,

effectiveness, or safety of the drugs that were purchased utilizing your prescription

drug Web site. My questions are this: On what do you base these figures? Would

you please describe the post-marketing surveillance system you have put into place?

Answer 2. State agencies have received a number of letters, e-mails and phone

calls about the importation programs. No more than 20 have been complaints—with

three-fourths of the complaints involving FDA seizure of medications. The remaining complaints were about pricing issues or delayed shipments. We have received

no complaints about the quality, effectiveness or safety of drug products.

The pharmacies affiliated with our programs keep internal logs of complaints and

we have reviewed them. The complaints most commonly involve billing errors or delayed shipment. In many cases delayed shipments were traced to FDA drug seizures. In a few instances, the wrong drug had been shipped. However, U.S. pharmacies (both mail order and community) sometimes dispense an incorrect medication. Again, we noted no complaints involving the quality, effectiveness or safety of

the drug products shipped.

The actions taken by the pharmacies affiliated with our Web sites in response to

drug recalls provides further assurance that they take the safety of patients seriously. When Vioxx was voluntarily recalled by the manufacturer, the pharmacies

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contacted all of the patients to whom they had recently shipped Vioxx to notify them

of the recall. They even accepted returns of unused Vioxx. That was at a financial

loss because Merck won’t accept returns from the Canadian Internet pharmacies.

We have not surveyed users of the MinnesotaRxConnect or Advantage-meds.com

Web sites because we do not track them. We feel it would be inappropriate for the

State of Minnesota to track the identities and drug usage of the people who use our

Web sites.

Thank you again for the opportunity to testify before you. Please do not hesitate

to contact me or my staff if you have additional questions about Minnesota programs.

Sincerely,

TIM PAWLENTY,

Governor.

RESPONSE TO QUESTIONS OF THE COMMITTEE BY PETER ROST, M.D.

Question 1. Dr. Rost, you wrote in a January 2005 commentary published in the

Star-Ledger that Americans would save $37.8 billion annually from legalized importation. Your findings contradict modeling done by the HHS Task Force, as well as

calculations by the Congressional Budget Office, both of whom found savings of

about 1–2 percent of total drug spending. As you state in the editorial, your calculations were based on the assumption that legislation to permit importation would

also make it illegal to limit supply. What basis do you have to believe that the Congress would support those provisions and that they would pass Constitutional muster?

Answer 1. The house already passed the Pharmaceutical Market Access Act once,

(the ‘‘Gutknecht bill’’), which allow for drug importation to begin without first requiring certification by the Health and Human Services Secretary.

The new, bipartisan Pharmaceutical Market Access and Drug Safety Act introduced by Senator Byron L. Dorgan and others in February 2005 includes a number

of provisions intended to ensure that the drug industry cannot thwart the law and

prevent consumers from reaping the benefits of drug importation:

• Allows drug importation to begin without first requiring certification by the

HHS Secretary.

• Includes a non-discrimination provision that would make it an unfair and discriminatory act for drug manufacturers to get around the law by shutting down the

supply of prescription drugs they make available to pharmacists and wholesalers,

as they are currently doing in Canada. However, these provisions do not ‘‘force’’

drug companies to sell an unlimited quantity of their products in any given country,

nor would drug companies be selling their products for a loss in those countries

where they do choose to continue selling their products. Therefore, there is no unconstitutional ‘‘takings.’’

• Also includes features to prevent a drug company from blocking importation by

making subtle changes to a drug, such as changing the color or the place of manufacture, so that it is no longer FDA approved.

The Senate bill already has more than 30 cosponsors. Senator Frist blocked the

vote of a similar bill in 2004, because he feared it would be approved.

This may be the strongest indication that the bill would pass.

Question 2. What are your calculated savings if these forced sales provisions are

NOT included in legislation?

Answer 2. The Congressional Budget Office, when calculating savings of 1–2 percent assumed that pharmaceutical companies would limit supply. The HHS report

also states ‘‘The foreign supply of patented brand-name drugs may be limited relative to the total volume of such drugs consumed in the U.S. market. Imported

drugs may be around 12 percent of total use of such drugs in the United States,

depending on the scope of any importation program, because drug companies have

incentives to impede exports.’’ This is one key factor resulting in low savings in the

HHS report. I agree with the Congressional Budget Office and HHS report that if

provisions to guarantee free supply are NOT included in a bill, savings would

amount to 1–2 percent of total drug bill, although I believe the HHS report has

come to that conclusion using incorrect assumptions.

Average drug prices are 50 percent lower in Europe than in the United States

(HHS report, figure 7.2). HHS also assumes that manufacturers will restrict supply,

and that ‘‘imported drugs may be around 12 percent of total use of such drugs in

the United States’’ I think the number 12 percent is far too high in a scenario in

which manufacturers limit supply. More realistic may be around 4–6 percent. The

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HHS report also makes the fundamental mistake of assuming that ‘‘U.S. drug buyers may get discounts of only 20 percent or less, with the rest of the difference between U.S. and foreign prices going to commercial importers.’’ In my experience, in

Europe, parallel trade starts with price differences as low as 8–10 percent and I

think it is more realistic to assume that U.S. drug buyers will get discounts of about

40–45 percent. 40 percent discount on 4 percent of total use would result in savings

of 1.6 percent annually.

Please also note that the CBO and HHS numbers do not quantify indirect savings

that might accrue as a result of drug companies limiting price increases or lowering

their U.S. prices domestically in order to make importation less necessary.

Question 3. As you know, the Canadian market is very small relative to the U.S.

market. If importation became a widespread practice, how do you envision the Canadian government responding if shortages in their market develop? Do you foresee

any problems for Canadian or U.S. patients if that were to occur? Have you considered that even if Congress passes legislation to legalize importation, countries may

act to prohibit the export of medicines from their own countries?

Answer 3. Canada alone is not a large enough market and therefore any real drug

importation bill does need to allow parallel trade not just with Canada but with

other major industrialized nations, particularly the EU. If Congress passes a law

that makes limitation of supply illegal, with appropriate penalties, shortages would

be avoided. The example to use is Europe, in which the Rome treaty guarantees free

trade. Individual countries have laws or trade agreements that ensure that the local

market is fully supplied and that only excess drugs are exported. This has created

an effective distribution system without supply problems for over 20 years.

Clearly, if drug companies have the opportunity to limit supply, they will. In any

such instance local governments are likely to ensure that local supply is not jeopardized. Restricting supply within Europe is illegal, while clearly an increased demand

can result in supply restrictions until manufacturing can be increased, which may

take 12–24 months. Drug companies already today use this excuse to try to limit

supply within EU. A strong U.S. law with appropriate financial penalties could actually alleviate this situation, since it would make it even more difficult for companies

to limit production or take a chance on being sued by the European Union.

Question 4. You indicate in your testimony that many Americans cannot afford

prescription drugs, and you suggest importation as a solution. However, generics are

usually less expensive than brand drugs. In addition, the new Medicare prescription

drug benefit will come into full effect shortly, benefiting millions of seniors. There

are also a number of national and State programs to provide assistance with drug

costs to low-income Americans. Why should Americans look to Europe for imported

drugs, when there are often less expensive options here at home?

Answer 4. Generics are an excellent solution, when available. In reality that is

only an option for older drugs. It is reasonable for a wealthy country, such as the

United States, to provide a system in which all citizens have access to most recent

medical advances. The Medicare drug benefit will provide $1,000 for someone with

a $4,000 drug bill. That person is still better off importing drugs. Reality is that

national and State programs don’t work, otherwise the Kaiser Family Foundation

couldn’t have reported in a 2001 study that 15 percent of uninsured children and

28 percent of uninsured adults had gone without prescription medication because

of cost. The journal Diabetes Care reported in February, 2004 on a study of older

adults with diabetes. Twenty-eight percent said they went without food or other necessities to pay for drugs. Legalized and regulated reimportation would provide

cheaper drugs right at the pharmacy, without forcing patients to make phone calls,

write lengthy applications to drug companies, or go on the Internet in search of rebates or less costly drugs.

[Whereupon, at 11:34 a.m., the committee adjourned.]

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