I'm Siding With Our Corporate Overolords on Pharmaceuticals, For Once

I was surprised to find myself siding with corporations and the Supreme Court on their recent decision on generic drugs.

Specifically, the NY Times states that:

The four dissenting moderate liberals argued persuasively that the company could, in fact, comply with state law without changing the drug’s label or ingredients. It could continue to sell the drug and pay compensation for any harm it caused as a cost of doing business, or it could remove the drug from the market.

Let us be clear about something. Every pharmaceutical is dangerous. I remember reading an academic article on how a very large number of deaths in the Spanish Flu were due to aspirin overdoses. The advantages of making these dangerous chemicals available at low prices through generics vastly outweighs the ease of liability suits of keeping them branded and thus accountable. Given very slim margins in the generics industry it would be highly likely that branded drugs would dominate to a far greater extent if generics companies had complete liability.

However, the FDA does seem to get this. The end of the Times article makes this clear:

For a more permanent solution, the F.D.A. told the high court it was considering a rule that would allow generic manufacturers, like brand-name manufacturers, to change their labeling in some circumstances. That could once again make them liable — and rightly so — for harm and allow consumers to sue them if they failed to warn of dangers.

 This is a first step towards what is necessary. Generics exist in a peculiar space, they are copying compounds proven to work by others. Except where the harm is caused by inactive ingredients or the flaws in the manufacturing process it is very difficult to see how they have individual liability for their products.

Where we should be going towards is holding the industry as a whole liable for these problems. Why should Mutual be held accountable when if the patient had instead taken a drug manufactured by Mylan, Sandoz, or Ranbaxy the result would have been the same? It simply isn't a case of individual responsibility, the responsibility accrues to the industry as a class. Mutual did nothing it could be individually held accountable for, regulation and liability is shared by all participants functioning under the same set of rules. This is simply another example of where the American impulse to individualize issues simply doesn't work with how the industry actually functions.