[Congressional Record Volume 157, Number 176 (Thursday, November 17, 2011)]
[Senate]
[Pages S7705-S7706]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Grassley, Mr. Bennet, and Mr. 
        Blumenthal):
  S. 1886. A bill to prevent trafficking in counterfeit drugs; to the 
Committee on the Judiciary.
  Mr. LEAHY. Mr. President, few things are more important to consumer 
well being than ensuring the safety of our pharmaceutical supply chain. 
Yet today, the penalties for counterfeit drug offenses are outdated and 
insufficient to deter this epidemic problem. As a result, counterfeit 
medicines reportedly lead to 100,000 deaths globally each year, with 
upwards of 90 percent of drug sales estimated to be counterfeit.
  Similarly, few things are more important to the American economy and 
long-term job creation than protecting our companies' intellectual 
property. Yet businesses manufacturing and selling counterfeit drugs 
reportedly generate more than $75 billion in annual revenue. This means 
lost profits for American businesses and lost jobs for American 
workers. Such staggering numbers would be unacceptable in any economic 
climate, and they are devastating today.
  Combating the sale of counterfeit drugs is increasingly difficult. 
Whether it is the prevalence of Internet pharmacies, or the new and 
sophisticated methods of manufacturing, packaging and distributing 
counterfeit drugs, the obstacles to safeguarding the pharmaceutical 
supply chain in today's economy are many. As a result, large 
counterfeit drug enterprises are being funded on the backs of 
consumers, both in Vermont and around the country, whose health and 
safety are at stake.
  Under current law, it is illegal to introduce counterfeit drugs into 
interstate commerce, but the penalties are no different than those 
assessed for trafficking other counterfeit products, such as handbags 
or sneakers. While the manufacture and sale of any counterfeit product 
is a serious crime, counterfeit medication poses a grave danger to 
public health that warrants a harsher punishment. Legislation is needed 
to raise counterfeit drug penalties to a level commensurate with the 
severity of the offense in order to deter an epidemic problem.
  Today, I am introducing the bipartisan Counterfeit Drug Penalty 
Enhancement Act, which will raise the maximum penalties for counterfeit 
drug offenses, and direct the United States Sentencing Commission to 
consider amending its guidelines and policy statements to reflect the 
serious nature of these crimes.
  This legislation will protect the safety of American consumers, and 
the investment that American pharmaceutical companies make in 
developing the quality medicines that lead to reputable brands. 
Ensuring patient safety and combating intellectual property theft are 
not uniquely Democratic or Republican priorities, these are bipartisan 
priorities, and I hope that we can quickly take up and consider this 
much needed legislation.
  We should not expect that enactment of this or any legislation will 
completely deter this serious problem. But this bill is an important 
step towards countering a problem that harms American consumers, 
American businesses, and American jobs.
  I thank Senator Grassley and Senator Bennet for working with me on 
this legislation, and I look forward to working with all Senators to 
pass this important, bipartisan legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1886

       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 ``Counterfeit Drug Penalty 
     Enhancement Act of 2011''.

     SEC. 2. COUNTERFEIT DRUG PREVENTION.

       Section 2320(a) of title 18, United States Code, is 
     amended--
       (1) by redesignating paragraph (2) as paragraph (3);
       (2) by inserting after paragraph (1) the following:
       ``(2) Counterfeit drugs.--
       ``(A) In general.--Whoever commits an offense in violation 
     of paragraph (1) with respect to a drug (as defined in 
     section 201 of the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 321)) shall--
       ``(i) if an individual, be fined not more than $4,000,000, 
     imprisoned not more than 20 years, or both; and
       ``(ii) if a person other than an individual, be fined not 
     more than $10,000,000.
       ``(B) Multiple offenses.--In the case of an offense by a 
     person under this paragraph that occurs after that person is 
     convicted of another offense under this paragraph, the person 
     convicted--
       ``(i) if an individual, shall be fined not more than 
     $8,000,000, imprisoned not more than 20 years, or both; and
       ``(ii) if other than an individual, shall be fined not more 
     than $20,000,000.''; and
       (3) in paragraph (3)(B), as redesignated, by striking 
     ``paragraph (1)'' and inserting ``paragraph (1) or (2)''.

     SEC. 3. SENTENCING COMMISSION DIRECTIVE.

       (a) Directive to Sentencing Commission.--Pursuant to its 
     authority under section 994(p) of title 28, United States 
     Code, and in accordance with this section, the United States 
     Sentencing Commission shall review and amend, if appropriate, 
     its guidelines and its policy statements applicable to 
     persons convicted of an offense under section

[[Page S7706]]

     2320(a)(2) of title 18, United States Code, in order to 
     reflect the intent of Congress that such penalties be 
     increased in comparison to those currently provided by the 
     guidelines and policy statements.
       (b) Requirements.--In carrying out this section, the 
     Commission shall--
       (1) ensure that the sentencing guidelines and policy 
     statements reflect the intent of Congress that the guidelines 
     and policy statements reflect the serious nature of the 
     offenses described in subsection (a) and the need for an 
     effective deterrent and appropriate punishment to prevent 
     such offenses;
       (2) consider the extent to which the guidelines may or may 
     not appropriately account for the potential and actual harm 
     to the public resulting from the offense;
       (3) assure reasonable consistency with other relevant 
     directives and with other sentencing guidelines;
       (4) account for any additional aggravating or mitigating 
     circumstances that might justify exceptions to the generally 
     applicable sentencing ranges;
       (5) make any necessary conforming changes to the sentencing 
     guidelines; and
       (6) assure that the guidelines adequately meet the purposes 
     of sentencing as set forth in section 3553(a)(2) of title 18, 
     United States Code.
                                 ______