Andrews v U.S. Department of Health and Human Services
Ban on Importation of Canadian Prescription Drugs Faces Constitutional Challenge
A class action has been filed against the U.S. Department of Health and Human Services on behalf of prescription drug purchasers, who allege that the federal prohibition on the importation of prescription drugs from Canada by anyone other than the manufacturer violates their constitutional rights on numerous counts. The action seeks a lifting of the present ban, and the prevention of future strictures on importation.
Named plaintiff Ray Andrews and his wife, Gaylee, live in a suburb of Chicago. They are senior citizens who need prescription medications for treatment of diabetes, high blood pressure, arthritis, and asthma. Their drugs, if purchased in Illinois, would allegedly cost them between $800 and $1,000 per month, but they could save between 26 percent and 67 percent on particular drugs if they could buy them in Canada.
Illinois Governor Rod Blagojevich, one of several state governors seeking to cut health care costs by importing drugs from Canada, issued a statement supporting the lawsuit. He said that, if it succeeded, his state and other government entities could go ahead with their import plans. In addition, he said, "Ray and Gaylee Andrews can buy their prescription drugs from Canada, and never have to worry about being prosecuted by the FDA for it."
Many of the drugs that individuals and government entities want to buy in Canada are manufactured in the United States, and allowing U.S. residents to bring them back for their own use would constitute reimportation. While the comparative pattern of drug prices varies between the two countries, many drugs in Canada are cheaper because of government involvement in price setting.
The lawsuit claims that the import ban is unconstitutional for a range of reasons: (1) it violates the Andrews' right of privacy by unlawfully restraining their autonomy to make important personal medical decisions; (2) it infringes on their right to equal protection through an irrational enforcement policy that draws an arbitrary distinction between persons who reside in areas adjacent to Canada --who are not prevented from traveling to Canada to purchase prescription drugs for personal use-- and persons who do not reside near the Canadian border (whose efforts to purchase Canadian prescription drugs for personal use by mail order are actively interdicted and prevented); and (3) it deprives the couple of liberty and property interests through an arbitrary policy that is not tailored to serve a compelling government interest.
Governor Blagojevich and other critics of the U.S. ban on imports say its main purpose is protecting the financial interests of the pharmaceutical industry. However, HHS and FDA officials say there is already a major problem with counterfeit and other unsafe drugs produced abroad, and allowing unregulated imports would only make the situation worse.
