[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5404 Introduced in House (IH)]






108th CONGRESS
  2d Session
                                H. R. 5404

   To prohibit price gouging during a shortage of a covered vaccine.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           November 19, 2004

 Mr. Kucinich introduced the following bill; which was referred to the 
                    Committee on Energy and Commerce

_______________________________________________________________________

                                 A BILL


 
   To prohibit price gouging during a shortage of a covered vaccine.

    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 ``Fair Vaccine Price Act of 2004''.

SEC. 2. PROHIBITION AGAINST PRICE GOUGING DURING A SHORTAGE OF A 
              COVERED VACCINE.

    (a) Prohibition.--No person shall introduce or deliver for 
introduction into interstate commerce any covered vaccine with a price 
in violation of this section.
    (b) Unlawful Price.--The price of a covered vaccine is in violation 
of this section if--
            (1) at the time the vaccine is offered for sale at such 
        price--
                    (A) there is in effect a declaration of a shortage 
                of the vaccine under subsection (c); or
                    (B) the seller knows or has substantial reason to 
                believe there will be a shortage of the vaccine within 
                a period of 60 days, and not later than the end of such 
                period there is in effect a declaration of a shortage 
                of the vaccine under subsection (c); and
            (2) the price of the vaccine per dose is at least 150 
        percent of the baseline price of the vaccine per dose (as 
        determined under subsection (d)).
    (c) Declaration of Vaccine Shortage.--For any period for which the 
Secretary of Health and Human Services determines there will be a 
shortage of a covered vaccine, the Secretary may declare a shortage of 
that vaccine for purposes of this Act.
    (d) Baseline Price Determination.--
            (1) In general.--Subject to paragraph (2), the baseline 
        price of a covered vaccine per dose is--
                    (A) the average price of the brand of vaccine per 
                dose offered for sale by the seller on the date that is 
                60 days before the effective date of the applicable 
                declaration under subsection (c);
                    (B) if the seller did not offer for sale the brand 
                of vaccine on the date described in subparagraph (A), 
                the average price of the brand of vaccine per dose 
                offered by the seller during the 12-month period 
                preceding such date; or
                    (C) if the seller did not offer for sale the brand 
                of vaccine on the date described in paragraph (1)(A) or 
                during the period described in paragraph (1)(B), the 
                price determined by the Secretary under paragraph (3).
            (2) Exception.--If the Secretary finds that the average 
        price of a covered vaccine is substantially different at the 
        time of a declaration of a shortage of that vaccine under 
        subsection (c) than the average price of the vaccine during the 
        12-month period preceding such declaration because of factors 
        wholly unrelated to the causes of the shortage, the Secretary 
        may determine an appropriate baseline price of the vaccine.
            (3) Timing of determinations by secretary.--At the time of 
        declaring a shortage of a covered vaccine under subsection (c), 
        the Secretary shall determine an appropriate baseline price of 
        the vaccine per dose for purposes of paragraph (1)(C) and, if 
        applicable, for purposes of paragraph (2).
    (e) Penalties.--
            (1) In general.--Any person who violates subsection (a) 
        shall be imprisoned for not more than 30 days, fined in the 
        amount described in paragraph (2), or both. Each violation of 
        subsection (a) respecting a separate dose of a covered vaccine 
        constitutes a separate offense.
            (2) Amount.--The amount of a fine under paragraph (1) shall 
        be, for each dose of covered vaccine sold at a price in 
        violation of this section, 3 times the amount of the difference 
        between such price and the applicable baseline price.
    (f) Citizen Suits.--
            (1) In general.--Except as provided in paragraph (2), any 
        person may commence a civil action on his own behalf to compel 
        compliance with subsection (a) against any person (including 
        the United States and any other governmental instrumentality or 
        agency to the extent permitted by the Eleventh Amendment to the 
        Constitution) for any alleged violation of subsection (a). The 
        United States district courts shall have jurisdiction, without 
        regard to the amount in controversy or the citizenship of the 
        parties, to compel compliance with such subsection.
            (2) Notice required.--No action may be commenced under this 
        subsection--
                    (A) prior to 30 days after the plaintiff has given 
                notice of the alleged violation (in such manner as the 
                Secretary may require) to the Secretary and to each 
                alleged violator of subsection (a); or
                    (B) if the Secretary or the Attorney General of the 
                United States has commenced and is diligently 
                prosecuting a criminal or civil action in a court of 
                the United States to require each such alleged violator 
                to comply with subsection (a), but in any such civil 
                action in a court of the United States any person may 
                intervene as a matter of right.
            (3) Intervention.--In any action under this subsection, the 
        Secretary or the Attorney General of the United States, if not 
        a party, may intervene as a matter of right.
            (4) Award of costs.--The court, in issuing any final order 
        in any action brought under this subsection, may award costs of 
        litigation (including reasonable attorney and expert witness 
        fees) to any party whenever the court determines such an award 
        is appropriate.
    (g) Action for Damages.--If a person purchases a covered vaccine at 
a price in violation of this section, the person may bring a civil 
action against the seller of the vaccine in a district court of the 
United States to recover--
            (1) the amount that is 3 times the amount of the difference 
        between such price and the applicable baseline price; and
            (2) the costs of the action (including reasonable attorney 
        and expert witness fees).
    (h) No Preemption.--Nothing in this Act shall be construed as--
            (1) affecting the authority of a State to regulate the 
        distribution and sale of vaccines; or
            (2) restricting the right of any person (or class of 
        persons) under any statute or common law to seek enforcement of 
        a requirement relating to the distribution or sale of a vaccine 
        or to seek any other relief.
    (i) Definitions.--For purposes of this Act:
            (1) The term ``covered vaccine'' means a vaccine intended 
        to prevent or mitigate the effects of influenza or any 
        biological terrorist agent.
            (2) The term ``Secretary'' means the Secretary of Health 
        and Human Services.
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