Congress Ignores Drug Safety with CREATES Act

By Peter J. Pitts

Over 60 percent of Americans want the government to take action to lower prescription drug prices, according to a new Kaiser Family Foundation survey.  Congress, for once, is listening to voters.

Lawmakers are pushing forward with the Creating and Restoring Equal Access to Equivalent Samples (CREATES) Act. The bill’s sponsors hope a series of new legal provisions will make it easier for drug companies to introduce generic alternatives, thus spurring competition and bringing down prices.

The bill is well-intentioned. Unfortunately, it’s also worded extremely poorly. Instead of bringing generics to market sooner, the bill could endanger patients’ lives and encourage costly, needless litigation.

The proposed law would address conflicts between innovator drug companies and their generic competitors. To protect consumers, the FDA requires that new drugs undergo a series of clinical trials to prove their safety and effectiveness before entering the market.   Generic drugs must also complete clinical trials, but only to prove they’re clinically similar to the already-approved brand-name drug. The generic drug creation process inherently requires that manufacturers obtain brand-name drug samples from innovators for comparative testing.

Many drugs are so potent, or have such dangerous side effects, that the FDA requires drug companies to develop and abide by specialized safety protocols, called “Risk Evaluation and Mitigation Strategies,” when selling or dispensing these medicines.

Generic drug companies are accusing brand-name manufacturers of dragging out negotiations regarding these Risk Evaluation and Mitigation Strategies to avoid handing over drug samples. Without the samples for comparative testing, generic manufacturers can’t enter the market.  And without competition, the brand-name manufacturers get to keep selling their medicines at inflated prices, even after the patent has expired.

That’s why some in Congress want to pass the CREATES Act. The bill would allow generic drug manufacturers to sue brand-name manufacturers if they fail to hand over their drug samples for testing within 31 days, or if the companies do not reach an agreement on shared Risk Evaluation and Mitigation Strategies for risky drugs.

Nobody wants brand-name companies to drag their feet and keep prices higher longer than necessary. But the CREATES Act’s language is so imprecise that it could lead to potent medicines falling into the wrong hands, without adequate safeguards for patients.

The bill strips the FDA of its watchdog role. Even if a generic drug maker’s proposed Risk Evaluation and Mitigation Strategies are inadequate, the FDA has no authority to reject or halt the transfer of medicines to the generic company for testing.

The experts at the FDA would have no choice but to approve the transfer within 90 days, even if they think doing so would put patients in danger.

The bill also lets generic drug companies sue innovators for not handing over samples within 31 days of a request, even if both companies are actively negotiating the terms of the sample distribution and safety protocols.

And though the proposed law requires innovators and generic companies to strike transfer deals on “commercially-reasonable market based terms,” the law doesn’t clarify what that means.

Congress deserves praise for trying to bring generic medicines to market faster, thereby relieving consumers from high drug prices. Yet good intentions don’t change the fact that the CREATES Act, as constructed, is deeply flawed. Congress could help consumers by reworking the law to ensure it stops isolated bad behavior without gutting safeguards for patients or enabling unscrupulous trial lawyers to file costly, pointless suits.

Peter J. Pitts, a former FDA associate commissioner, is the president and co-founder of the Center for Medicine in the Public Interest.