FROM: Lt. Col. John J. Michels, Jr., USAFR; Major Bruce Smith, USAFR
"I think medicine is based on trust. If for whatever reason, in any individual’s mind he loses trust in his medicine, in his doctor, or he loses trust in his government, then those sorts of feelings will fall on more fertile ground… Our job is to regain that trust and make sure that our message is clear, that we are protecting our people, that we are doing everything we possibly can to make sure we are not harming them with the thing we give them to protect them."
There are essentially two ways to medically counter anthrax BW – antibiotics and vaccines. Antibiotics must be administered shortly before or after anthrax exposure to be effective. Antibiotics cannot prevent a lethal infection once the anthrax spore has produced signs of illness. Vaccines, on the other hand, can be administered years before exposure, are theoretically effective as long as the victim has enough immunity to neutralize the bacillus, and generally do not provide the kind of logistics problems associated with long-term, forward storage of antibiotics.
In December 1997, Secretary of Defense William Cohen announced a multi-service vaccination program for all active duty and Reserve and National Guard service members. Cohen’s directive, requiring that all active and Reserve component members receive anthrax vaccinations was ostensibly based on a threat to U.S. Forces from second and third world nations who sought ready access to a weapon of mass destruction ("WMD").
The sole production facility for anthrax vaccine was originally owned by the Michigan Department of Public Health ("MDPH"). In the mid 1990s the facility was sold to a corporation known as Michigan Biologic Products, Inc. ("MBPI"). In September 1998, MBPI was sold to a group of investors heading up a company called Bioport, Inc.
MDPH obtained approval for the anthrax vaccine in 1970 from the National Institute of Health ("NIH") Bureau of Biologics. This was some two years before efficacy and safety data were required by the FDA for drug approval and licensing. Long-term safety data for the vaccine was not supplied with the original license application and none has ever been supplied to the FDA. In addition, the vaccine now being produced by MBPI’s successor, Bioport, is produced under a different procedure and is apparently chemically different from the original vaccine approved by the NIH.
The license to produce anthrax vaccine was
originally the property of MDPH and later, MBPI
and Bioport. The original license for the anthrax
vaccine reflects its use in agricultural and
veterinary settings as a protection against
cutaneous (skin) contact anthrax. See Atch.
2, Anthrax Vaccine Adsorbed, various package
inserts, Michigan Dept. of Pub. Health, 1978. The
vaccine has never been licensed as a prophylaxis
against airborne anthrax, the most likely BW
variant.
These
substantive changes in the way the vaccine is
used and the purpose for which it is used render
the vaccine an IND under current federal law. As
an IND, the vaccine may not be administered to
service members without their informed consent,
as directed by President Clinton’s Executive
Order 13139 and 10 U.S.C. ¤ 1107. Accordingly,
orders to military personnel to submit to the
vaccine without their consent are per se
violative of a direct order from the President in
his role as Commander-in-Chief.
Vaccines, like other medical drugs, are closely monitored by the FDA and are licensed for production and marketing. The Center for Biologics Evaluation and Research ("CBER") is the FDA agency charged with oversight of the four-stage licensing process. See Bascom & Sutton, New Generation Vaccines, Center for Biologics Evaluation and Research, U.S. Food and Drug Administration (1997), at Atch. 3. The process consists of a pre-clinical stage, followed by an IND stage, followed by a Product License Application process, and finally, a post-licensure stage. See generally 21 C.F.R. ¤ 312. The FDA and CBER govern a vaccine license applicant in both its manufacturing and marketing procedures. The FDA does not govern the behavior of the end user, in this case, the Department of Defense. (1)
It is clear that the term "investigational" drugs also embraces so-called "new" drugs as defined by the FDA itself. See 21 C.F.R. ¤ 312.3(b) (cited in EO 13139). The determination of what is a "new" drug for purposes of FDA regulatory coverage (and coverage under EO 13139) hinges on a variety of factors. A drug is "new", even if it has been in use for years, if there is a proposed change in the target use of the product, a change in the formula, dilution of the drug, a change in its route of administration, or even repackaging of the drug product. See generally What Is A "New Drug" Within the Meaning of ¤ 201(p) of the Federal Drug and Cosmetic Act, 133 ALR Fed 229 (1999), and cases cited therein.
Court decisions reinforce FDA’s interpretation. For example, in Hoffman v. Sterling Drug, Inc., 485 F.2d 132 (3d Cir. 1973) the court held that marketing a drug that had been approved by the FDA for the treatment of malaria as suitable for use in treating lupus caused the already approved drug to be considered a "new" drug, at least as far as the lupus treatment was concerned. Similarly, in U.S. v. Articles of Drug, etc., 442 F. Supp. 1236 (S.D.N.Y. 1978) the court found that a drug may be considered "new" if there is a change in the dosage, or method or duration of administration or application, or other condition of use prescribed, recommended or suggested in the labeling of such drug, despite the fact that the drug had previously had been approved, albeit with a different dosage and for a different purpose.
In addition, drugs that are not adequately tested are also considered "new" and investigational, regardless of usage. In U.S. v. Articles of Drug Consisting of the Following: 5906 Boxes, 745 F.2d 105 (1st Cir. 1984) the court found that a nausea-suppressing drug was a "new" drug in the absence of substantial evidence that it was recognized by experts as safe and effective. The court defined "substantial evidence" to mean consisting of adequate and well-controlled investigations, including clinical investigations conducted by experts. The court noted that substantial evidence that a drug is generally recognized by experts as safe and effective means adequate and well-controlled investigations including clinical investigations conducted by experts.
Finally, in U.S. v. Rutherford, 442 U.S. 544 (1979) the Supreme Court held that under 21 U.S.C. ¤ 321(p)(1) the term "new drug" described a drug not generally recognized as being safe and effective for use under the conditions prescribed, recommended or suggested in the labeling. Rutherford, 442 U.S. at 552-3.
Clearly then, federal statutes,
regulations and case law show
indisputably that even an established and
licensed drug that is modified with
regard to its dosage regimen, or the
purpose for which it is being offered, is
an "investigational new drug",
covered by the requirements of EO 13139
and 10 U.S.C. ¤ 1107.
The 1970 NIH-approved license for AVA indicates that it was approved as a prophylaxis only against cutaneous exposure to anthrax for a specific methodology of administration, and a specific vaccination schedule. See Atch. 2.
Recognizing the need for certification for pulmonary infections, in 1995 MDPH and the Army discussed establishing a plan for Investigational New Drug approval by the FDA. See Atch. 4, Anthrax Vaccine License Amendment Project Plan briefing slides (October 20, 1995). The briefing slides clearly show that the Army was well-aware that the AVA, in order to meet the above-described legal requirements for licensure, had to pass through the IND application process in order to become fully licensed as a prophylaxis for pulmonary anthrax. The focus of the proposed plan was to get approval from the FDA for a change to the immunization schedule (in this case to a series of three doses of vaccine versus the prescribed six) and to change the labeling to reflect that the vaccine was properly administered as protection against pulmonary or airborne anthrax. Id.
In fact, less than one year from the date of the briefing, on September 20, 1996, MBPI filed an Investigational New Drug application with the FDA. The application identified the three areas where the current license would be modified – showing a new designation for "inhalation anthrax", changing the "route of administration", and changing the "vaccination schedule". The application indicates that it is an "initial" investigational new drug application. See Atch. 5, IND Application (September 20, 1996).
Thus, as the DoD was preparing to kick-off its anthrax vaccination program, the sole producer of anthrax vaccine recognized that its product, as labeled, was not legally viable and undertook the appropriate steps to change product use labeling, method of administration, and vaccination schedule. These substantial changes in how this drug was to be used rendered it an IND. This is explicitly acknowledged by the September 20, 1996 application by MBPI. That application has never been withdrawn by MBPI or Bioport, nor has it ever been modified or acted on in any way.
The formal record of the anthrax program is littered with references to the vaccine’s IND status. For example, as the Army began to move forward to try and license the vaccine as a prophylaxis against inhaled or pulmonary anthrax, it followed up its October 1995 meeting with a series of meetings designed to request that MBPI file an IND application for the vaccine. On November 13, 1995 the Joint Program Manager for Biological Defense, Army Brigadier General Walter L. Busbee, instructed the Joint Program Office for Biological Defense that the DoD needed to "…develop a … package for initiating and completing an amendment to MDPH anthrax license for: (1) reduced immunization schedule, (2) immunization by the intramuscular route, and (3) indication for protection against an aerosol challenge". Minutes of the Meeting on Changing the Food and Drug Administration License for the Michigan Department of Public Health (MDPH) Anthrax Vaccine to Meet Military Requirements (November 13, 1995), Atch. 6. As late as June 30, 1999, in testimony before the House Subcommittee on National Security, Veterans Affairs and International Relations, Atch. 7, at 12, Mr. Fuad El-Hibiri, President and CEO of Bioport, stated
[w]e continue to hold an Investigational New Drug application - IND 6847 – to improve administration of the anthrax vaccine.
The use of the AVA as currently contemplated by DoD is a clear change in how the drug was to be originally used and for which it was licensed, rendering the AVA an IND. There can be no doubt that "administration of the anthrax vaccine for mass prophylaxis in Biological Warfare should be considered an off-label use of the product to treat an indication for which it is not explicitly licensed… both the new indication and the new schedule should be undertaken only pursuant to FDA regulations governing clinical trials on investigational new drugs". The Department of Defense Anthrax Vaccination Immunization Program: Unproven Force Protection, p.3, House of Representatives Government Oversight Committee (March 9, 2000) Atch. 8.
This current vaccine is obviously a "new" drug under any FDA standard. Moreover, the Anthrax Vaccine is apparently is not even the same substance originally tested and approved by NIH. This bizarre conclusion is borne out in a GAO report dated April 29, 1999, entitled Medical Readiness: Safety and Efficacy of the Anthrax Vaccine, Atch. 9 where, at p. 3, it was revealed that the AVIP vaccine being administered to DoD members is not the same vaccine as originally tested prior to 1970. The import of this fact cannot be emphasized enough; the vaccine in current DoD inventories is NOT the same chemical compound as the original compound tested in advance of the 1970 NIH approval.
Finally, the AVA’s IND status is further bolstered by the fact that there is no reputable study or clinical evidence supporting the AVA’s use as safe and effective protection against pulmonary anthrax. In 5906 Boxes, the court held that a drug was a "new drug" in the absence of substantial evidence that it was generally recognized by experts as safe and effective. 5906 Boxes, 745 F.2d at 108. The manufacturer conceded that no investigations of any kind had ever been conducted to test the particular product’s efficacy; at trial it attempted to introduce three studies that had been conducted using a drug that was similar to the product in question containing the same amounts of active ingredients. Even though an expert testified that his theoretical opinion was that tests of a similar drug would lead to results identical to the drug in question, the court rejected the evidence and found that the material was a "new drug". 5906 Boxes, 745 F.2d at 118.
In United States v. Sene X Eleemosynary Corp., 479 F. Supp. 970 (S.D. Fla. 1979) the court found an orally administered solution of buffered novocaine originally used as a cardiovascular medicine was a "new drug" under 21 U.S.C. ¤ 321(p) when marketed for the treatment of arthritis and other geriatric diseases. The court noted that its conclusion was based in part in a letter written by the defendant stating that the defendant and others were currently conducting clinical trials of the drug to determine its effectiveness. The court specifically pointed out that anecdotal evidence by numerous individual patients or doctors concerning the efficacy of the medicine could not be used to establish general recognition of safety and efficacy. Sene X, 479 F. Supp. at 977, citing Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609 (1973).
There is no question that the claims of efficacy of the vaccine against pulmonary anthrax are unproven. In its March 9, 2000 report, the House Government Oversight Committee specifically noted that "no adequate and well-controlled investigations, including clinical investigations conducted by experts, have been performed regarding either the safety or the efficacy of the vaccine in humans". Unproven Force Protection, Atch. 8, supra.(2)
In what is generally regarded as the seminal test of the efficacy of the AVA as a prophylaxis against cutaneous or skin contract anthrax, there were no indications that the AVA provided significant protection against aerosolized anthrax. Brachman, Gold, et al., Field Evaluation of a Human Anthrax Vaccine, American Journal of Public Health, Vol. 52, No. 4, at 632 (April, 1962). Nothing has changed this early assessment of the AVA’s role, at least regarding human beings. The AVA is still considered untested as a mechanism for protecting human beings from aerosol anthrax exposure. See Col. Stanley L. Weinner, Strategies for the Prevention of a Successful Biological Warfare Aerosol Attack, Military Medicine, Vol. 161, No. 5 at 251-254 (May, 1996); Letter of Dr. Claire V. Broome, M.D., Deputy Director for Science and Public Health, Center for Disease Control, U.S. Department of Heath and Human Services, December 14, 1998, Atch. 11.(3)
Accordingly, there can be absolutely no claim
by DoD that the AVA is anything but an IND. This
fact is recognized by the AVA’s
manufacturer, Bioport, in its IND application,
which is still current and pending, and by the
complete failure of Bioport, DoD or any other
entity to provide verifiable clinical testing
showing that the AVA is either safe or effective,
in humans, as a prophylaxis to pulmonary anthrax.
The FDA testing regimen, which has not been
waived or excepted for the AVA, federal statutes,
and federal case law, all point to the
inescapable determination that the AVA is an IND
as it is currently being used on members of the
Armed Forces without their informed consent.(4)
10 U.S.C.
¤ 1107 (1999) entitled "Notice of
Use of an Investigational New Drug or a
Drug Unapproved for its Applied Use"
specifically provides:
2. The reasons why the investigational new drug or drug unapproved for its applied use is being administered.
3. Information regarding the possible side effects of the investigational new drug or drug unapproved for its applied use, including any known side effects possible as a result of the interaction of such drug with other drugs or treatments being administered to the members receiving such drug.
* * *
(emphasis added).
Sec. 2. Administration of Investigational New Drugs to Members of the Armed Forces. (a) The Secretary of Defense (Secretary) shall collect intelligence on potential health threats that might be encountered in an area of operations. The Secretary shall work together with the Secretary of Health and Human Services to ensure appropriate countermeasures are developed. When the Secretary considers an investigational new drug or a drug unapproved for its intended use (investigational drug) to represent the most appropriate countermeasure, it shall be studied through scientifically based research and development protocols to determine whether it is safe and effective for its intended use. (b) It is the expectation that the United States Government will administer products approved for their intended use by the Food and Drug Administration (FDA). However, in the event that the Secretary considers a product to represent the most appropriate countermeasure for diseases endemic to the area of operations or to protect against possible chemical, biological, or radiological weapons, but the product has not yet been approved by the FDA for its intended use, the product may, under certain circumstances and strict controls, be administered to provide potential protection for the health and well-being of deployed military personnel in order to ensure the success of the military operation. The provisions of 21 CFR Part 312 contain the FDA requirements for investigational new drugs.
Sec. 3. Informed Consent Requirements and Waiver Provisions.
(emphasis added).
In addition, the provisions of 21
C.F.R. ¤¤ 50, 312 (October 5, 1999)
support both the federal statute and the
Executive Order by specifically noting
situations where the informed consent
requirements may be waived. Echoing 10 U.S.C.
¤ 1107, the Regulations note that only
the President of the United States may
waive the informed consent requirements
mandated by his Executive Order and
federal law. Waiver is allowed only if
one of three preconditions is met –
if obtaining informed consent is not
feasible; if obtaining informed consent
is contrary to the best interests of the
recipient; or if informed consent is
contrary to national security interests.
The President has yet to issue any such
waivers, or even initiate action to do so
regarding the AVA.
Air Force Instruction ("AFI") 40-403, "Clinical Investigations in Medical Research Guidance and Procedures" (May 19, 1994) deals directly with Air Force mandated policies on use of INDs on Air Force personnel. AFI 40-403 dictates that Air Force members must provide "informed consent" before any clinical use of an IND. Pertinent portions of that AFI follow:
CLINICAL INVESTIGATIONS IN MEDICAL RESEARCH GUIDANCE AND PROCEDURES
THE SCOPE OF THIS INSTRUCTION
2.1. Investigations Covered by This Instruction:
2.1.1. Clinical investigations...
2.1.1.1. Examples of clinical investigations
are:
Field trials of vaccines and prophylactic
drugs.
2.1.2 Use of drugs...that are not approved by the FDA, or use of FDA approved drugs...in a manner not provided for in the FDA approved indications. Using FDA approved drugs, devices or radiopharmaceuticals for therapeutic effects that are widely reported and are generally accepted within the scope of normal medical practice, does not constitute clinical investigation or research in the sense of this instruction.
All medications or devices will be used within the FDA approved indications for the drug ...
3.1.3. The investigator must avoid all unnecessary physical or mental discomfort to human subjects, by planning for adequate facilities and making proper research preparations. Studies are not permitted if there is significant possibility that the subject could suffer disease, injury, or death. The investigator must: Conduct an evaluation of the subject before the study begins and record the results.
3.1.6. Before a subject is permitted to give consent, the investigator or associate investigator must accurately explain the investigation in language the subject can understand. This explanation must be made a part of the informed consent document.
3.1.6.1. The informed consent document should contain, in addition to the components identified in 32 CFR 219, the following statements:
Any medical misadventure or unanticipated medical event will be brought immediately to the attention of the subject, or the subject's guardian or next of kin, if the subject is not competent at the time to understand the nature of the misadventure or unanticipated medical event.
Records of the study may be inspected by the FDA or sponsoring institution, if appropriate.
3.1.7. Informed Consent. The subject must give consent in writing. The investigator must attach a copy of the voluntary consent form to the protocol using these procedures:
3.1.7.1. The subject must sign the consent form in the presence of at least one witness, who attests to the subject's signature by signing in the place provided. If the subject is military (whether active duty or retired), enter the social security number (SSN) of the subject on the form under the subject's signature...
3.1.7.2. The investigator or associate investigator gives the advice that forms the basis for the informed consent. This individual must sign the consent form in the presence of the same witness.
3.1.7.3. Sign or reproduce the consent document in at least four copies.
3.4. Active Duty Personnel as Human Subjects. The investigator, in consultation with the subject, should determine whether participation in a study would affect the ability of the subject to mobilize for readiness, to perform duties, or to be available for duty. Normally, if their participation could affect their performance, they should not be considered for the clinical investigation.
Terms
Informed Consent:
Informed Consent Process. The informed consent process is intended to give a subject all the information that he or she reasonably would want about a study; to ensure that the subject understands this information; and to give the subject an opportunity to agree or decline to participate in the study. The process provides for interaction between the investigator and the subject.
Investigational Drugs or Devices--Drugs or devices that are not FDA approved for marketing. These include drugs or devices for which the FDA has provided either a notice of exemption as an Investigational New Drug (IND), or an Investigational Device Exemption (IDE), as appropriate…
2. Additional Information. If you will be using investigational drugs or devices, the following additional information is required:
a. The drug or device to be used, including the trade and generic name and the manufacturer.
b. If the drug or device is FDA approved, but it will be used outside of its approved labeling, indicate that this is an "investigational use" and give rationale (for example, route of administration, higher dose level, or treatment of another condition not approved by FDA).
c. FDA compliance. If an investigational new drug (IND) number or an investigational device exemption (IDE) number has been assigned, indicate the number and identify the holder; that is, Principal/or Associate Investigator, Medical Center, or manufacturer.
d. Side effects of the proposed drug or device, from most common to rarest.
e. Dosage rate schedule.
f. Modifications in treatment, if side effects occur.
g. Patient selection, including inclusion and exclusion criteria.
h. Schedule of patient evaluation studies to be performed before, during, and after completing the study.
5. Use of Investigational Drugs. If the investigation concerns human studies of treatment or diagnostic procedures involving the use of medications or radiopharmaceuticals not approved by the FDA, include the approved IND number and the following information about the investigational drug. (5)
The overwhelming authority cited above is concisely summarized in a February 18, 1997 memorandum written by Dr. Karen L. Goldenthal of the FDA CBER Office of Biologics, Atch. 12:
…if the military is interested in using a vaccine time schedule different from the currently licensed schedule for a mass vaccination effort, then informed consent would appropriate…
The same holds true, presumably, for the military’s use of a vaccine for a purpose different from the original licensing, as well as using a different route to administer the vaccine….a fact most recently recognized by the Army in a November 1997 briefing. Atch. 13.
It is abundantly clear that failure to get informed
consent from Armed Forces’ members prior to the
administration of the AVA, an IND, violates federal law
and supporting regulations, Presidential Order, and, in
the case of the Air Force, service regulations. An
order to submit to the DoD anthrax vaccination program,
as it is currently constructed, is therefore illegal.
In Atch. 8, Unproven Force Protection, at 72, Congress said plainly:
Use of the anthrax vaccine for force protection against biological warfare should be considered experimental and undertaken only pursuant to FDA regulations governing investigational testing for a new indication. (emphasis added).
The findings and recommendations of the Congressional report were underscored in a GAO report dated April 29, 1999, entitled Medical Readiness: Safety and Efficacy of the Anthrax Vaccine, supra, at Atch. 9. Therein, at 3, the report specifically reveals that: The long-term safety of the vaccine has not yet been studied.
The same conclusion was reached in an October 1999 GAO report entitled, Medical Readiness: DoD Faces Challenges in Implementing Its Anthrax Vaccine Immunization Program, p. 8, Atch. 14. The GAO reiterated that the effectiveness of the AVA against inhalational anthrax in humans has not been proven as it would be unethical to conduct such studies on humans. The report continued, noting that while some studies had proven that the vaccine was effective in animals no valid scientific evidence exists to link the results of animal studies to proof of efficacy in humans.
The most significant indictment of DoD’s repeated assurances that the AVA is effective against weaponized anthrax is contained in a March 13, 1997 letter from Michael A. Friedman, M.D., Lead Deputy Commissioner, Food and Drug Administration, Department of Health and Human Services (Atch. 15) which plainly said:
…there is a paucity of data regarding the effectiveness of the Anthrax Vaccine for prevention of inhalation anthrax.
Even more troubling to the AVA program is the
statement in 21 C.F.R. Part 312.3(b) that an
experiment is any use of a drug except for the
use of a marketed drug in the course of medical
practice. Clearly, as evidenced by the 1996
investigational new drug application and the
failure to show its effectiveness, the AVA is
investigational only and has never been licensed
for marketing by the FDA. The AVA is, therefore,
experimental and its use falls within the ambit
of both the Nuremberg Code, Atch. 16 and 50
U.S.C. ¤1520a. and 50 U.S.C. ¤1520a, Atch.
17. Both proscribe, inter alia, the
inoculation of military members with the AVA
without their prior expressed and informed
consent.
It is indisputable that such international law is an integral part of United States domestic law, via treaties, executive agreements and customary international law. Paquete Habana, 175 U.S. 677 (1900). And, it is equally well grounded that the Nuremberg Code is a part of our domestic law. See dissent, Gibbons, Circuit Judge, Jaffee v. United States, 663 F. 2d 1226 (3rd. Cir., 1981) (Per the Nuremberg Code, "The international consensus against involuntary human experimentation is clear;" See also, Annas, GJ., Protecting Soldiers from Friendly Fire: The Consent Requirement for Using Investigational Drugs and Vaccines in Combat, 24 Am. J. Law & Med. 245-260 (1998), Atch. 18.
The Code has ten requirements, but the essence of the Code prohibits medical experimentation on human subjects without their expressed informed consent.
Congress has only recently declared
that the AVA program is nothing more than
an experiment. As such, it must meet the
requirements of the Nuremberg Code which
requires, absent the fully informed
consent of military members. See Annas,
CG, Changing The Consent Rules for
Desert Storm, Am. J. Law &
Med., Vol. 326, No. 11 at 770 (March 12,
1992).
The principles of the Nuremberg Code are codified in 50 U.S.C. ¤1520a (which also prohibits the Department of Defense from conducting a grand-scale experiment of the AVA drug on its members.
50 U.S.C. ¤1520a provides in pertinent part:
Sec. 1520a. Restrictions on use of human subjects for testing of chemical or biological agents
(a) Prohibited activities
The Secretary of Defense may not conduct (directly or by contract)
(1) any test or experiment involving the use of a
chemical
agent or biological agent on a civilian population; or
(2) any other testing of a chemical agent or biological
agent on human subjects.
(b) Exceptions
Subject to subsections (c), (d), and (e) of this section,
the prohibition in subsection (a) of this section does
not apply to a test or experiment carried out for any of
the following purposes:
(1) Any peaceful purpose that is related to a medical,
therapeutic, pharmaceutical, agricultural, industrial, or
research activity.
(2) Any purpose that is directly related to protection against toxic chemicals or biological weapons and agents.
(3) Any law enforcement purpose, including any purpose related to riot control.
(c) Informed consent required
The Secretary of Defense may conduct a test or experiment described in subsection (b) of this section only if informed consent to the testing was obtained from each human subject in advance of the testing on that subject. (emphasis added).
The government’s use of a drug that has never
been proven effective against preliminary BW anthrax is
properly construed as a large-scale test. The fact that
the government is attempting to field the drug on a wide
scale does not, a fortiori, determine that
the vaccinations are routine medical treatment. Indeed,
even the anecdotal evidence regarding the questionable
safety of the drug dictates otherwise. The informed
consent provisions of 50 U.S.C. ¤1520a, therefore,
mandate that the government administer the anthrax drug
to military member’s only after receiving their
informed and voluntary consent.
The purpose of this Memorandum has been to clearly delineate the legal requirements surrounding the use of an unproven and unapproved vaccine on members of the Armed Forces. Whatever the original intent of the DoD anthrax vaccination program, its originators and proponents have not followed the law in carrying out the Secretary of Defense’s instructions. The legal requirements described in this Memorandum may seem onerous to a military commander worried about the safety of her troops, however, the law provides adequate mechanisms to bypass the regulatory requirements established by the FDA for the protection of American forces in the event a real threat exists.
Simply put, federal law requires certain steps to be taken before the AVA legally can be administered without getting informed consent from service members. DoD has not taken those steps, nor has DoD or any other entity gone to the trouble of getting applicable waivers for the informed consent requirement.
Before Congress takes this matter completely out of the services’ hands, a prudent course of action for DoD would be to immediately suspend the AVA program until:
Such a response would cure the current aura of illegality that surrounds the anthrax program orders as well as provide a mechanism for accounting for the variety of reactions that may or may not be related to the vaccine. It is undeniable that certain units have been hit hard by what appear to be adverse vaccine reactions. The situation needs to be fully investigated by competent authorities in an environment free from political pressure to approve the program. The proposed steps will result in a better and efficacious vaccine, and will allow the Air Force to properly deal with whatever lasting damage has been done to its personnel and its morale as a result of this ill-considered program.
Footnotes:
(1) It is important
to note that the FDA approval is not a prerequisite for use by a
medical practitioner or the DoD. The FDA regulates the
manufacturer in the marketing of drugs, vaccines and devices, not
the use of the products. In fact, the FDA does not have
jurisdiction to regulate the administration of the AVA. It is
commonplace in the practice of medicine for physicians to make
use of drugs and devices that do not bear FDA approval. (See
e.g. FTC v. Simeon Mgmt. Corp., 391 F. Supp. 697
aff'd. 532 F.2d 708 (9th Cir. 1978); Talley v. Danek Medical
Inc., 179 F.3d 154 (4th Cir. 1999); In re: Orthopedic Bone
Screw Products Liability Litigation, 159 F.3d 817 (3d Cir.
1998).
(2) Indeed, it is unlikely that any BW vaccine could pass muster under the current FDA testing regimen. In a particularly frank article in Military Medicine, Vol. 157, (August 1992), attached as Atch. 10, Army physicians Col. Garland E. McCarty and Lt. Col. Gregory P. Berezuk said :
the studies of new drug or vaccine products are initiated in the appropriate animal species in order to define a safe and effective dose. The results of those studies are then submitted to the [FDA] as part of an Investigational New Drug (IND) application, and acceptance of the IND by the FDA a l lows for the initiation of studies in humans. Human studies are designed to demonstrate safety and efficacy of the investigational product. Once sufficient human data are collected, the sponsor of the IND may file a New Drug Application (NDA) for the pr o duct, and this can lead to approval or licensure for marketing. Approval of the NDA by the FDA is dependent upon the results of at least two adequate and well-controlled studies that demonstrate the efficacy of the product in humans. For products design ed to product against chemical and biological agents, a clear demonstration of efficacy would require exposure to humans to these lethal agents. Since this practice would be unethical and immoral, these products never advanced beyond the investigational stage.
(3)In fact, there have been only a few relevant animal studies regarding the efficacy of the AVA. These are widely touted by DoD officials as proving the efficacy of the vaccine. However, the Senate Committee on Veterans' Affairs in a 1994 report evaluating an anthrax program study stated
"although the results of this study suggest the vaccine might protect against anthrax that has been sprayed, it is not sufficient to prove that anthrax vaccine is safe and effective as used in the Persian Gulf. The vaccine should therefore be considered investigational when used as a protection against biological warfare. (emphasis added).
U.S. Senate Committee on Veterans\rquote Affairs Report at 14 (December 8, 1994) (citations omitted).
(4) DoD has produced two letters that it relies on in an effort to show that the AVA is not an IND when used for inhalation anthrax. The first is a letter from Dr. Michael Friedman to former DoD ASD/HA Dr. Joseph, dated March 13, 1997. The second letter was written to Representative D an Burton by FDA Associate Commissioner Melinda Plaisier on November 26, 1999. Both letters are circumspect in their assessment of the status of the AVA as an IND, but indicate that the AVA is not investigational. However, such letters have absolutely n o effect on the legal status of the AVA. FDA regulations specifically note that:
a statement made or advice provided by an FDA employee constitutes an advisory opinion only if it is issued in writing under this Section. A statement or advice given by an FDA employee orally, or given in writing but not under this Section or ¤10.90 is an informal communication that represents the best judgment of that employee at that time but does not constitute an advisory opinion, does not necessarily represent the formal position of the FDA, and does not bind or otherwise obligate or commit the agency to the views expressed.
Neither of the letters referenced by DoD were issued pursuant to the above Section. They do not bind the agency, they do not carry the weight of law and they cannot constitute a change in the legal status of the AVA from an IND to something else.
(5) Note that the AFI is completely consistent with FDA definitions as to what compromises an IND. Of particular note is the text identifying an "investigational use" - use outside of approved labeling, route of administration, higher dose level, or treatment of another con dition not approved by the FDA. Obviously, even under Air Force regulations, the AVA is an IND requiring consent from the service member prior to its application.