[Congressional Record Volume 146, Number 128 (Friday, October 13, 2000)]
[Extensions of Remarks]
[Page E1784]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    WAIVING POINTS OF ORDER AGAINST CONFERENCE REPORT ON H.R. 4461, 
   AGRICULTURE, RURAL DEVELOPMENT, FOOD AND DRUG ADMINISTRATION, AND 
               RELATED AGENCIES APPROPRIATIONS ACT, 2001

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                               speech of

                             HON. TOM DeLAY

                                of texas

                    in the house of representatives

                      Wednesday, October 11, 2000

  Mr. DeLAY. Mr. Speaker, I rise to address a provision in the FY01 
Agriculture Appropriations Conference Report that is not only 
disturbing, but highly objectionable on legal grounds. This provision 
was subject to absolutely no deliberative thought. In fact, the 
Chairmen of the House and Senate Judiciary Committee raised serious 
constitutional and legal concerns about it. The Chamber of Commerce and 
the National Association of Manufacturers decried it. I am referring to 
section 745 of the bill. It states, ``No manufacturer of a covered 
product may enter into a contract or agreement that includes a 
provision to prevent the sale or distribution of covered products 
imported pursuant to subsection (a).''
  Besides the fact that this provision baldly impedes the right of 
businesses to conduct affairs in the manner they so choose, what is 
perhaps most troubling about this provision, which restricts freedom of 
contract and clearly infringes on intellectual property and other 
constitutional rights, is that it was added to the Conference Report in 
the dark of night. This provision was not contained in either of the 
underlying House or Senate Agriculture Appropriations bills--or any 
other bill for that matter. Moreover, the provision was never the 
subject of any committee hearings or other public deliberation by the 
Congress.
  While it will slip past Members today because it is buried deep in an 
important appropriations bill that, among other things, provides 
billions of dollars in drought relief to American farmers, I take small 
comfort in knowing that this provision will not slip past the Courts 
and will not survive judicial review.
  Until that time, let us at least realize that this ill-advised 
provision requires narrow interpretation, not only because of the 
stealth with which it was included, but because an inappropriately 
broad reading would raise very serious questions with respect to 
conflicts with US patent and trade laws. To avoid--or at least 
minimize--such conflicts, the only interpretation of this provision 
(which replaced a broader proposed provision that the Conference 
Committee rejected) is that it is strictly limited to contacts or 
agreement involving drug reimports, and also containing explicit 
contractual provisions to this purpose and effect.
  Make no mistake--this provision is horrid. That's what you get when 
you have a flawed process--you get flawed policy. It profoundly affects 
both intellectual property rights and constitutional rights. It has no 
place in this bill and I am deeply disappointed the Conference 
Committee allowed such a provision to be included in this bill.

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