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Flu Vaccine Makers Are Few Because of Economics – Not Lawsuits

Oct. 27, 2004

Flu Vaccine Makers Are Few Because of Economics – Not Lawsuits

Liability Has Nothing to Do With Flu Vaccine Shortage, Public Citizen Finds

WASHINGTON, D.C. – Lawsuits are not the reason that so few drug companies make the flu vaccine – few lawsuits have ever been filed over the flu vaccine. Instead, the problem is based on a lack of profit and the economic risks associated with making the vaccine, according to a Public Citizen fact sheet released today.

The production of flu shots is a complex process based on 50-year-old technology and fraught with the potential for error. Because doses cannot be used from year-to-year, excess doses must be discarded.

“Profits, not lawsuits, are the driving force behind the decision of flu vaccine manufacturers to drop out of the business,” said Public Citizen President Joan Claybrook. “Although President Bush has argued that it is the fear of being sued that deters companies from making the flu vaccine, the truth is that there is little economic incentive for them to do so. Lawsuits have nothing to do with it.”

In a full-page New York Times ad today, the business-funded Club for Growth erroneously claims that flu vaccine manufacturers have been crippled by hundreds of lawsuits. But that is wrong; only a few lawsuits have been litigated over the flu vaccine in the past 24 years. According to research by the Association of Trial Lawyers of America, since 1980, there have been just seven cases involving the standard flu vaccine reported in state and federal appellate courts. In five of those cases, the defendant prevailed; the results of the other two are unknown. Seven cases in 24 years does not make a liability crisis.

The Club for Growth also cites in the ad a case in which $30 billion is being sought against the vaccine industry. The implication is that this case is partly responsible for the flu vaccine shortage. However, the cited case is unrelated to the flu vaccine; instead, it involves the use of the preservative thimerosal in childhood vaccines.

History shows that shielding flu vaccine makers from lawsuits would do nothing to ensure a steady supply of vaccine. Manufacturers of childhood non-flu vaccines have been shielded from lawsuits through the Vaccine Injury Compensation Program, enacted in 1986.   Under that program, people who want to sue vaccine makers must first file for federal compensation. They cannot sue unless their request for a reward is rejected, or they reject the award. Still, this hasn’t prevented shortages in eight of 11 of the vaccines covered by the program.

In its definitive 2003 report on ensuring the availability of vaccines, the Institute of Medicine did not cite liability as a cause of vaccine shortages.  The Institute instead recommended mandating that all insurance plans cover vaccines, that the government subsidize vaccine providers and insurers, and that the government provide vouchers for uninsured patients to receive vaccines. Public Citizen’s fact sheet, “Flu Vaccine Shortage: Another Example of How Bush Dis-Torts the Truth About Lawsuits,” is available at https://www.citizen.org/sites/default/files/acf7d6.pdf.