I 
108TH CONGRESS 
2D SESSION 
H. R. 5404 
To prohibit price gouging during a shortage of a covered vaccine. 
IN THE HOUSE OF REPRESENTATIVES 
NOVEMBER 19, 2004 
Mr. KUCINICH introduced the following bill; which was referred to the 
Committee on Energy and Commerce 
A BILL 
To prohibit price gouging during a shortage of a covered 
vaccine. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Fair Vaccine Price 
Act of 2004’’. 
SEC. 2. PROHIBITION AGAINST PRICE GOUGING DURING A 
SHORTAGE OF A COVERED VACCINE. 
(a) PROHIBITION.—No person shall introduce or de-
liver for introduction into interstate commerce any covered 
vaccine with a price in violation of this section.
(b) UNLAWFUL PRICE.—The price of a covered vac-
cine is in violation of this section if— 
(1) at the time the vaccine is offered for sale 
at such price— 
(A) there is in effect a declaration of a 
shortage of the vaccine under subsection (c); or 
(B) the seller knows or has substantial 
reason to believe there will be a shortage of the 
vaccine within a period of 60 days, and not 
later than the end of such period there is in ef-
fect a declaration of a shortage of the vaccine 
under subsection (c); and 
(2) the price of the vaccine per dose is at least 
150 percent of the baseline price of the vaccine per 
dose (as determined under subsection (d)). 
(c) DECLARATION OF VACCINE SHORTAGE.—For any 
period for which the Secretary of Health and Human 
Services determines there will be a shortage of a covered 
vaccine, the Secretary may declare a shortage of that vac-
cine for purposes of this Act. 
(d) BASELINE PRICE DETERMINATION.— 
(1) IN GENERAL.—Subject to paragraph (2), 
the baseline price of a covered vaccine per dose is— 
(A) the average price of the brand of vac-
cine per dose offered for sale by the seller on
the date that is 60 days before the effective 
date of the applicable declaration under sub-
section (c); 
(B) if the seller did not offer for sale the 
brand of vaccine on the date described in sub-
paragraph (A), the average price of the brand 
of vaccine per dose offered by the seller during 
the 12-month period preceding such date; or 
(C) if the seller did not offer for sale the 
brand of vaccine on the date described in para-
graph (1)(A) or during the period described in 
paragraph (1)(B), the price determined by the 
Secretary under paragraph (3). 
(2) EXCEPTION.—If the Secretary finds that 
the average price of a covered vaccine is substan-
tially different at the time of a declaration of a 
shortage of that vaccine under subsection (c) than 
the average price of the vaccine during the 12-month 
period preceding such declaration because of factors 
wholly unrelated to the causes of the shortage, the 
Secretary may determine an appropriate baseline 
price of the vaccine. 
(3) TIMING
OF
DETERMINATIONS
BY
SEC-
RETARY.—At the time of declaring a shortage of a 
covered vaccine under subsection (c), the Secretary
shall determine an appropriate baseline price of the 
vaccine per dose for purposes of paragraph (1)(C) 
and, if applicable, for purposes of paragraph (2). 
(e) PENALTIES.— 
(1) IN
GENERAL.—Any person who violates 
subsection (a) shall be imprisoned for not more than 
30 days, fined in the amount described in paragraph 
(2), or both. Each violation of subsection (a) re-
specting a separate dose of a covered vaccine con-
stitutes a separate offense. 
(2) AMOUNT.—The amount of a fine under 
paragraph (1) shall be, for each dose of covered vac-
cine sold at a price in violation of this section, 3 
times the amount of the difference between such 
price and the applicable baseline price. 
(f) CITIZEN SUITS.— 
(1) IN GENERAL.—Except as provided in para-
graph (2), any person may commence a civil action 
on his own behalf to compel compliance with sub-
section (a) against any person (including the United 
States and any other governmental instrumentality 
or agency to the extent permitted by the Eleventh 
Amendment to the Constitution) for any alleged vio-
lation of subsection (a). The United States district 
courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the par-
ties, to compel compliance with such subsection. 
(2) NOTICE
REQUIRED.—No action may be 
commenced under this subsection— 
(A) prior to 30 days after the plaintiff has 
given notice of the alleged violation (in such 
manner as the Secretary may require) to the 
Secretary and to each alleged violator of sub-
section (a); or 
(B) if the Secretary or the Attorney Gen-
eral of the United States has commenced and 
is diligently prosecuting a criminal or civil ac-
tion in a court of the United States to require 
each such alleged violator to comply with sub-
section (a), but in any such civil action in a 
court of the United States any person may in-
tervene as a matter of right. 
(3) INTERVENTION.—In any action under this 
subsection, the Secretary or the Attorney General of 
the United States, if not a party, may intervene as 
a matter of right. 
(4) AWARD OF COSTS.—The court, in issuing 
any final order in any action brought under this sub-
section, may award costs of litigation (including rea-
sonable attorney and expert witness fees) to any
party whenever the court determines such an award 
is appropriate. 
(g) ACTION FOR DAMAGES.—If a person purchases 
a covered vaccine at a price in violation of this section, 
the person may bring a civil action against the seller of 
the vaccine in a district court of the United States to re-
cover— 
(1) the amount that is 3 times the amount of 
the difference between such price and the applicable 
baseline price; and 
(2) the costs of the action (including reasonable 
attorney and expert witness fees). 
(h) NO PREEMPTION.—Nothing in this Act shall be 
construed as— 
(1) affecting the authority of a State to regu-
late the distribution and sale of vaccines; or 
(2) restricting the right of any person (or class 
of persons) under any statute or common law to 
seek enforcement of a requirement relating to the 
distribution or sale of a vaccine or to seek any other 
relief. 
(i) DEFINITIONS.—For purposes of this Act: 
(1) The term ‘‘covered vaccine’’ means a vac-
cine intended to prevent or mitigate the effects of in-
fluenza or any biological terrorist agent.
(2) The term ‘‘Secretary’’ means the Secretary 
of Health and Human Services. 
Æ