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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2726 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 2726

To amend the Federal Food, Drug, and Cosmetic Act to increase criminal 
penalties for the sale or trade of prescription drugs knowingly caused 
to be adulterated or misbranded, to modify requirements for maintaining 
  records of the chain-of-custody of prescription drugs, to establish 
       recall authority regarding drugs, and for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                              June 4, 2009

  Mr. Israel introduced the following bill; which was referred to the 
                    Committee on Energy and Commerce

_______________________________________________________________________

                                 A BILL

 
To amend the Federal Food, Drug, and Cosmetic Act to increase criminal 
penalties for the sale or trade of prescription drugs knowingly caused 
to be adulterated or misbranded, to modify requirements for maintaining 
  records of the chain-of-custody of prescription drugs, to establish 
       recall authority regarding drugs, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as ``Tim Fagan's Law'' or the ``Counterfeit 
Drug Enforcement Act of 2009''.

SEC. 2. SALE OR TRADE OF PRESCRIPTION DRUGS KNOWINGLY CAUSED TO BE 
              ADULTERATED OR MISBRANDED; MISREPRESENTATION AS APPROVED 
              DRUGS.

    (a) Criminal Penalty.--Section 303(a) of the Federal Food, Drug, 
and Cosmetic Act (21 U.S.C. 333(a)) is amended by adding at the end the 
following paragraphs:
    ``(3) Notwithstanding paragraph (1) or (2), in the case of a person 
who violates section 301(a), 301(b), or 301(c) with respect to a drug 
that is subject to section 503(b)(1)(B), if the person knowingly caused 
the drug to be adulterated or misbranded and sells or trades the drug, 
or the person purchases or trades for the drug knowing or having reason 
to know that the drug was knowingly caused to be adulterated or 
misbranded, the person shall be fined in accordance with title 18, 
United States Code, or imprisoned for any term of years or for life, or 
both.
    ``(4) Notwithstanding paragraph (1) or (2), in the case of a person 
who violates section 301(d) with respect to a drug, if the person 
caused the drug to be misrepresented as a drug that is subject to 
section 503(b)(1)(B) and for which an approved application is in effect 
under section 505 and the person sells or trades the drug, or the 
person purchases or trades for the drug knowing or having reason to 
know that the drug was knowingly caused to be so misrepresented, the 
person shall be fined in accordance with title 18, United States Code, 
or imprisoned for any term of years or for life, or both.''.
    (b) Notification of Food and Drug Administration by 
Manufacturers.--Section 505(k) of the Federal Food, Drug, and Cosmetic 
Act (21 U.S.C. 355(k)) is amended by adding at the end the following 
paragraph:
    ``(3) A manufacturer of a drug that receives or otherwise becomes 
aware of information that reasonably suggests that a violation 
described in paragraph (3) or (4) of section 303(a) may have occurred 
with respect to the drug shall report such information to the Secretary 
not later than 48 hours after first receiving or otherwise becoming 
aware of the information.''.

SEC. 3. USE OF TECHNOLOGIES FOR PREVENTING COUNTERFEITING OF DRUGS.

    Section 502 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
352) is amended by adding at the end the following:
    ``(aa) If it is a drug and it is not manufactured in accordance 
with any regulations of the Secretary requiring the use of technologies 
that the Secretary has determined are technically feasible and will 
assist in preventing violations of this Act to which paragraphs (3) and 
(4) of section 303(a) apply (relating to the knowing adulteration or 
misbranding of drugs and the knowing misrepresentation of drugs).''.

SEC. 4. WHOLESALE DISTRIBUTION OF DRUGS; STATEMENTS REGARDING PRIOR 
              SALE, PURCHASE, OR TRADE.

    (a) Striking of Exemptions for Authorized Distributors of Record.--
Section 503(e) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
353(e)) is amended--
            (1) in paragraph (1)--
                    (A) by striking ``and who is not the manufacturer 
                or an authorized distributor of record of such drug'';
                    (B) by striking ``to an authorized distributor of 
                record or''; and
                    (C) by striking subparagraph (B) and inserting the 
                following:
    ``(B) The Secretary shall by regulation establish requirements 
(referred to in this subparagraph as `alternative requirements') that 
supersede subparagraph (A) to identify the chain of custody of a drug 
subject to subsection (b) from the manufacturer of the drug throughout 
the wholesale distribution of the drug to a pharmacist who intends to 
sell the drug at retail if the Secretary determines that--
            ``(i) the alternative requirements (which may include 
        standardized anticounterfeiting or track-and-trace 
        technologies) will identify such chain of custody, or the 
        identity of the discrete package of the drug from which the 
        drug is dispensed, with equal or greater certainty than the 
        requirements of subparagraph (A); and
            ``(ii) the alternative requirements are technically 
        feasible.''; and
            (2) in paragraph (3), by striking ``and subsection (d)--'' 
        in the matter preceding subparagraph (A) and all that follows 
        through ``the term `wholesale distribution' means'' in 
        subparagraph (B) and inserting the following: ``and subsection 
        (d), the term `wholesale distribution' means''.
    (b) Conforming Amendment.--Section 503(d) of the Federal Food, 
Drug, and Cosmetic Act (21 U.S.C. 353(d)) is amended by adding at the 
end the following:
    ``(4) Each manufacturer of a drug subject to subsection (b) shall 
maintain at its corporate offices a current list of the authorized 
distributors of record of such drug.
    ``(5) For purposes of this subsection, the term `authorized 
distributors of record' means any distributor that a manufacturer 
designates as an authorized distributor of record and whose name the 
manufacturer makes publicly available.''.
    (c) Final Rule.--The Secretary shall ensure that, not later than 90 
days after the date of the enactment of this Act, there is in effect a 
final rule to implement section 503(e) of the Federal Food, Drug, and 
Cosmetic Act, including the amendments made by this section.

SEC. 5. COUNTERFEIT DRUGS; INCREASED FUNDING FOR INSPECTIONS, 
              EXAMINATIONS, AND INVESTIGATIONS.

    For the purpose of increasing the capacity of the Food and Drug 
Administration to conduct inspections, examinations, and investigations 
under the Federal Food, Drug, and Cosmetic Act with respect to 
violations described in paragraphs (3) and (4) of section 303(a) of 
such Act, there is authorized to be appropriated $60,000,000 for each 
of the fiscal years 2010 through 2014, in addition to other 
authorizations of appropriations that are available for such purpose.

SEC. 6. PUBLIC EDUCATION REGARDING COUNTERFEIT DRUGS.

    (a) In General.--The Secretary of Health and Human Services shall 
carry out a program to educate the public and health care professionals 
on counterfeit drugs, including techniques to identify drugs as 
counterfeit.
    (b) Authorization of Appropriations.--For the purpose of carrying 
out subsection (a), there is authorized to be appropriated $5,000,000 
for each of the fiscal years 2010 through 2014, in addition to other 
authorizations of appropriations that are available for such purpose.

SEC. 7. RECALL AUTHORITY REGARDING DRUGS.

    Subchapter A of chapter V of the Federal Food, Drug, and Cosmetic 
Act (21 U.S.C. 351 et seq.) is amended by inserting after section 506C 
the following section:

``SEC. 506D. RECALL AUTHORITY.

    ``(a) Order To Cease Distribution of Drug; Notification of Health 
Professionals.--
            ``(1) In general.--If the Secretary finds that there is a 
        reasonable probability that a drug intended for human use would 
        cause serious, adverse health consequences or death, the 
        Secretary shall issue an order requiring the appropriate person 
        (including the manufacturers, importers, distributors, or 
        retailers of the drug)--
                    ``(A) to immediately cease distribution of the 
                drug; and
                    ``(B) to immediately notify health professionals of 
                the order and to instruct such professionals to cease 
                administering or prescribing the drug.
            ``(2) Informal hearing.--An order under paragraph (1) shall 
        provide the person subject to the order with an opportunity for 
        an informal hearing, to be held not later than 10 days after 
        the date of the issuance of the order, on the actions required 
        by the order and on whether the order should be amended to 
        require a recall of the drug involved. If, after providing an 
        opportunity for such a hearing, the Secretary determines that 
        inadequate grounds exist to support the actions required by the 
        order, the Secretary shall vacate the order.
    ``(b) Order To Recall Drug.--
            ``(1) In general.--If, after providing an opportunity for 
        an informal hearing under subsection (a)(2), the Secretary 
        determines that the order should be amended to include a recall 
        of the drug with respect to which the order was issued, the 
        Secretary shall, except as provided in paragraphs (2) and (3), 
        amend the order to require a recall. The Secretary shall 
        specify a timetable in which the drug recall will occur and 
        shall require periodic reports to the Secretary describing the 
        progress of the recall.
            ``(2) Certain actions.--An amended order under paragraph 
        (1)--
                    ``(A) shall not include recall of a drug from 
                individuals; and
                    ``(B) shall provide for notice to individuals 
                subject to the risks associated with the use of the 
                drug.
            ``(3) Assistance of health professionals.--In providing the 
        notice required by paragraph (2)(B), the Secretary may use the 
        assistance of health professionals who administered the drug 
        involved to individuals or prescribed the drug for individuals. 
        If a significant number of such individuals cannot be 
        identified, the Secretary shall notify such individuals 
        pursuant to section 705(b).''.

SEC. 8. AUTHORITY TO ISSUE SUBPOENAS WITH RESPECT TO PREVENTING THREATS 
              TO THE PUBLIC HEALTH.

    Section 303 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
333(a)) is amended by adding at the end the following subsection:
    ``(h) The Secretary and the Attorney General shall develop and 
implement a procedure through which the Chief Counsel in the Food and 
Drug Administration is authorized to issue subpoenas regarding 
investigations under this Act of acts or omissions that may constitute 
a threat to the public health, including investigations of alleged 
violations to which paragraph (3) or (4) of subsection (a) apply and 
alleged violations with respect to which the Secretary is considering 
the use of authorities under section 304.''.
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