[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2769 Introduced in House (IH)]






108th CONGRESS
  1st Session
                                H. R. 2769

To permit commercial importation of prescription drugs from Canada, and 
                          for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 17, 2003

 Mrs. Emerson introduced the following bill; which was referred to the 
                    Committee on Energy and Commerce

_______________________________________________________________________

                                 A BILL


 
To permit commercial importation of prescription drugs from Canada, and 
                          for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Save Our Seniors Act of 2003''.

SEC. 2. IMPORTATION OF PRESCRIPTION DRUGS.

    (a) In General.--Chapter VIII of the Federal Food, Drug, and 
Cosmetic Act (21 U.S.C. 381 et seq.) is amended by striking section 804 
and inserting the following:

``SEC. 804. IMPORTATION OF PRESCRIPTION DRUGS.

    ``(a) Definitions.--In this section:
            ``(1) Importer.--The term `importer' means a pharmacist or 
        wholesaler.
            ``(2) Pharmacist.--The term `pharmacist' means a person 
        licensed by a State to practice pharmacy, including the 
        dispensing and selling of prescription drugs.
            ``(3) Prescription drug.--The term `prescription drug' 
        means a drug subject to section 503(b), other than--
                    ``(A) a controlled substance (as defined in section 
                102 of the Controlled Substances Act (21 U.S.C. 802));
                    ``(B) a biological product (as defined in section 
                351 of the Public Health Service Act (42 U.S.C. 262));
                    ``(C) an infused drug (including a peritoneal 
                dialysis solution);
                    ``(D) an intravenously injected drug;
                    ``(E) a drug that is inhaled during surgery; or
                    ``(F) a drug that is a parenteral drug, the 
                importation of which pursuant to subsection (b) is 
                determined by the Secretary to pose a threat to the 
                public health, in which case section 801(d)(1) shall 
                continue to apply.
            ``(4) Qualifying laboratory.--The term `qualifying 
        laboratory' means a laboratory in the United States that has 
        been approved by the Secretary for the purposes of this 
        section.
            ``(5) Wholesaler.--
                    ``(A) In general.--The term `wholesaler' means a 
                person licensed as a wholesaler or distributor of 
                prescription drugs in the United States under section 
                503(e)(2)(A).
                    ``(B) Exclusion.--The term `wholesaler' does not 
                include a person authorized to import drugs under 
                section 801(d)(1).
    ``(b) Regulations.--
            ``(1) Importation from canada.--The Secretary shall 
        promulgate regulations permitting pharmacists and wholesalers 
        to import prescription drugs from Canada into the United 
        States.
            ``(2) Importation from european union.--Not sooner than 3 
        years after the date of the enactment of the Save Our Seniors 
        Act of 2003, if the Secretary finds that drugs imported from 
        Canada into the United States under this section have proved 
        safe and effective, the Secretary may expand the application of 
        regulations promulgated under this section to permit 
        pharmacists and wholesalers to import prescription drugs from 
        any member of the European Union into the United States.
    ``(c) Limitation.--The regulations under subsection (b)--
            ``(1) shall require that safeguards be in place to ensure 
        that each prescription drug imported under the regulations 
        complies with section 505 (including with respect to being safe 
        and effective for the intended use of the prescription drug), 
        with sections 501 and 502, and with other applicable 
        requirements of this Act;
            ``(2) shall require that an importer of a prescription drug 
        under the regulations comply with subsections (d)(1) and (e);
            ``(3) may require the incorporation of--
                    ``(A) overt optically variable counterfeit 
                resistant packaging technologies that--
                            ``(i) are visible to the naked eye;
                            ``(ii) are similar to the technologies used 
                        by the Bureau of Engraving and Printing to 
                        secure United States currency;
                            ``(iii) are manufactured and distributed in 
                        a highly secure, tightly controlled 
                        environment; and
                            ``(iv) incorporate any additional visible 
                        and non-visible security features determined to 
                        be appropriate by the Secretary; or
                    ``(B) technologies that are determined by the 
                Secretary to have a function of security equivalent to 
                such optically variable counterfeit resistant packaging 
                technologies; and
            ``(4) may contain any additional provisions determined by 
        the Secretary to be appropriate as a safeguard to protect the 
        public health or as a means to facilitate the importation of 
        prescription drugs.
    ``(d) Information and Records.--
            ``(1) In general.--The regulations under subsection (b) 
        shall require an importer of a prescription drug under 
        subsection (b) to submit to the Secretary the following 
        information and documentation:
                    ``(A) The name and quantity of the active 
                ingredient of the prescription drug.
                    ``(B) A description of the dosage form of the 
                prescription drug.
                    ``(C) The date on which the prescription drug is 
                shipped.
                    ``(D) The quantity of the prescription drug that is 
                shipped.
                    ``(E) The point of origin and destination of the 
                prescription drug.
                    ``(F) The price paid by the importer for the 
                prescription drug.
                    ``(G) Documentation from the foreign seller 
                specifying--
                            ``(i) the manufacturer or the original 
                        source of the prescription drug; and
                            ``(ii) the quantity of each lot of the 
                        prescription drug originally received by the 
                        seller from that source.
                    ``(H) The lot or control number assigned to the 
                prescription drug by the manufacturer of the 
                prescription drug.
                    ``(I) The name, address, telephone number, and 
                professional license number (if any) of the importer.
                    ``(J)(i) In the case of a prescription drug that is 
                shipped directly from the first foreign recipient of 
                the prescription drug from the manufacturer, 
                documentation demonstrating that the prescription drug 
                was received by the recipient from the manufacturer and 
                subsequently shipped by the recipient to the importer.
                    ``(ii) In the case of any subsequent shipment, 
                documentation identifying each prior sale, purchase, or 
                trade of the prescription drug (including the date of 
                the transaction and the names and addresses of all 
                parties to the transaction).
                    ``(iii) Documentation of the quantity of each lot 
                of the prescription drug received by the first foreign 
                recipient demonstrating that the quantity being 
                imported into the United States is not more than the 
                quantity that was received by the first foreign 
                recipient.
                    ``(iv)(I) In the case of an initial imported 
                shipment from the recipient involved, documentation 
                demonstrating that each batch of the prescription drug 
                in the shipment was statistically sampled and tested 
                for authenticity and degradation.
                    ``(II) In the case of any subsequent shipment, 
                documentation demonstrating that a statistically valid 
                sample of the shipment was tested for authenticity and 
                degradation.
                    ``(K) Certification from the importer of the 
                prescription drug that the prescription drug--
                            ``(i) is approved for marketing in the 
                        United States; and
                            ``(ii) meets all labeling requirements 
                        under this Act.
                    ``(L) Laboratory records, including complete data 
                derived from all tests necessary to ensure that the 
                prescription drug is in compliance with established 
                specifications and standards.
                    ``(M) Documentation demonstrating that the testing 
                required by subparagraphs (J) and (L) was conducted at 
                a qualifying laboratory.
                    ``(N) Any other information that the Secretary 
                determines is necessary to ensure the protection of the 
                public health.
            ``(2) Maintenance by the secretary.--The Secretary shall 
        maintain information and documentation submitted under 
        paragraph (1) for such period of time as the Secretary 
        determines to be necessary.
    ``(e) Testing.--The regulations under subsection (b) shall 
require--
            ``(1) that testing described in subparagraphs (J) and (L) 
        of subsection (d)(1) be conducted by the importer or by the 
        manufacturer of the prescription drug at a qualified 
        laboratory;
            ``(2) if the tests are conducted by the importer--
                    ``(A) that information needed to--
                            ``(i) authenticate the prescription drug 
                        being tested; and
                            ``(ii) confirm that the labeling of the 
                        prescription drug complies with labeling 
                        requirements under this Act;
                be supplied by the manufacturer of the prescription 
                drug to the pharmacist or wholesaler; and
                    ``(B) that the information supplied under 
                subparagraph (A) be kept in strict confidence and used 
                only for purposes of testing or otherwise complying 
                with this Act; and
            ``(3) may include such additional provisions as the 
        Secretary determines to be appropriate to provide for the 
        protection of trade secrets and commercial or financial 
        information that is privileged or confidential.
    ``(f) Registration of Foreign Sellers.--Any establishment within 
Canada (or within any member of the European Union with respect to 
which the Secretary promulgates regulations under subsection (b)(2)) 
engaged in the distribution of a prescription drug that is imported or 
offered for importation into the United States shall register with the 
Secretary the name and place of business of the establishment.
    ``(g) Suspension of Importation.--The Secretary shall require that 
importations of a specific prescription drug or importations by a 
specific importer under subsection (b) be immediately suspended on 
discovery of a pattern of importation of the prescription drugs or by 
the importer that is counterfeit or in violation of any requirement 
under this section, until an investigation is completed and the 
Secretary determines that the public is adequately protected from 
counterfeit and violative prescription drugs being imported under 
subsection (b).
    ``(h) Approved Labeling.--The manufacturer of a prescription drug 
shall provide an importer written authorization for the importer to 
use, at no cost, the approved labeling for the prescription drug.
    ``(i) Open Market Access.--
            ``(1) In general.--It shall be unlawful for a manufacturer 
        of a prescription drug to discriminate against, or cause any 
        other person to discriminate against, a pharmacist or 
        wholesaler that purchases or offers to purchase a prescription 
        drug from the manufacturer or from any person that distributes 
        a prescription drug manufactured by the drug manufacturer.
            ``(2) Application.--For the purposes of paragraph (1), a 
        manufacturer of a prescription drug shall be considered to 
        discriminate against a pharmacist or wholesaler if the 
        manufacturer enters into a contract for sale of a prescription 
        drug, places a limit on supply, or employs any other measure, 
        that has the effect of--
                    ``(A) providing pharmacists or wholesalers access 
                to prescription drugs on terms or conditions that are 
                less favorable than the terms or conditions provided to 
                a foreign purchaser (other than a charitable or 
                humanitarian organization) of the prescription drug; or
                    ``(B) restricting the access of pharmacists or 
                wholesalers to a prescription drug that is permitted to 
                be imported into the United States under this section.
    ``(j) Charitable Contributions.--Notwithstanding any other 
provision of this section, section 801(d)(1) continues to apply to a 
prescription drug that is donated or otherwise supplied at no charge by 
the manufacturer of the drug to a charitable or humanitarian 
organization (including the United Nations and affiliates) or to a 
government of a foreign country.
    ``(k) Waiver Authority for Importation by Individuals.--
            ``(1) Declarations.--The Congress declares that in the 
        enforcement against individuals of the prohibition of 
        importation of prescription drugs and devices, the Secretary 
        should--
                    ``(A) focus enforcement on cases in which the 
                importation by an individual poses a significant threat 
                to public health; and
                    ``(B) exercise discretion to permit individuals to 
                make such importations in circumstances in which--
                            ``(i) the importation is clearly for 
                        personal use; and
                            ``(ii) the prescription drug or device 
                        imported does not appear to present an 
                        unreasonable risk to the individual.
            ``(2) Waiver authority.--
                    ``(A) In general.--The Secretary may grant to 
                individuals, by regulation or on a case-by-case basis, 
                a waiver of the prohibition of importation of a 
                prescription drug or device or class of prescription 
                drugs or devices, under such conditions as the 
                Secretary determines to be appropriate.
                    ``(B) Guidance on case-by-case waivers.--The 
                Secretary shall publish, and update as necessary, 
                guidance that accurately describes circumstances in 
                which the Secretary will consistently grant waivers on 
                a case-by-case basis under subparagraph (A), so that 
                individuals may know with the greatest practicable 
                degree of certainty whether a particular importation 
                for personal use will be permitted.
            ``(3) Drugs imported from canada.--In particular, the 
        Secretary shall by regulation grant individuals a waiver to 
        permit individuals to import into the United States a 
        prescription drug that--
                    ``(A) is imported from a licensed pharmacy for 
                personal use by an individual, with a valid 
                prescription, not for resale, in quantities that do not 
                exceed a 90-day supply;
                    ``(B) is imported from Canada, or from any member 
                of the European Union with respect to which the 
                Secretary promulgates regulations under subsection 
                (b)(2), from a seller registered with the Secretary;
                    ``(C) is a prescription drug approved by the 
                Secretary under chapter V;
                    ``(D) is in the form of a final finished dosage 
                that was manufactured in an establishment registered 
                under section 510; and
                    ``(E) is imported under such other conditions as 
                the Secretary determines to be necessary to ensure 
                public safety.
    ``(l) Studies; Reports.--
            ``(1) By the institute of medicine of the national academy 
        of sciences.--
                    ``(A) Study.--
                            ``(i) In general.--The Secretary shall 
                        request that the Institute of Medicine of the 
                        National Academy of Sciences conduct a study 
                        of--
                                    ``(I) importations of prescription 
                                drugs made under the regulations under 
                                subsection (b); and
                                    ``(II) information and 
                                documentation submitted under 
                                subsection (d).
                            ``(ii) Requirements.--In conducting the 
                        study, the Institute of Medicine shall--
                                    ``(I) evaluate the compliance of 
                                importers with the regulations under 
                                subsection (b);
                                    ``(II) compare the number of 
                                shipments under the regulations under 
                                subsection (b) during the study period 
                                that are determined to be counterfeit, 
                                misbranded, or adulterated, and compare 
                                that number with the number of 
                                shipments made during the study period 
                                within the United States that are 
                                determined to be counterfeit, 
                                misbranded, or adulterated; and
                                    ``(III) consult with the Secretary 
                                to evaluate the effect of importations 
                                under the regulations under subsection 
                                (b) on trade and patent rights under 
                                Federal law.
                    ``(B) Report.--Not later than 2 years after the 
                effective date of the regulations under subsection (b), 
                the Institute of Medicine shall submit to the Congress 
                a report describing the findings of the study under 
                subparagraph (A).
            ``(2) By the comptroller general.--
                    ``(A) Study.--The Comptroller General of the United 
                States shall conduct a study to determine the effect of 
                this section on the price of prescription drugs sold to 
                consumers at retail.
                    ``(B) Report.--Not later than 18 months after the 
                effective date of the regulations under subsection (b), 
                the Comptroller General of the United States shall 
                submit to the Congress a report describing the findings 
                of the study under subparagraph (A).
    ``(m) Construction.--Nothing in this section limits the authority 
of the Secretary relating to the importation of prescription drugs, 
other than with respect to section 801(d)(1) as provided in this 
section.
    ``(n) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as are necessary to carry out this section.''.
    (b) Conforming Amendments.--The Federal Food, Drug, and Cosmetic 
Act is amended--
            (1) in section 301(aa) (21 U.S.C. 331(aa)), by striking 
        ``covered product in violation of section 804'' and inserting 
        ``prescription drug in violation of section 804''; and
            (2) in section 303(a)(6) (21 U.S.C. 333(a)(6)), by striking 
        ``covered product pursuant to section 804(a)'' and inserting 
        ``prescription drug under section 804(b)''.
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