Not a single case of human anthrax has been reported in the United States this year, but the nation is now officially in a state of anthrax emergency.
The emergency was declared earlier this month by the Department of Health and Human Services, and will last until 2015. Whether it will protect public health is debatable, but it will certainly protect makers of faulty anthrax vaccines.
Emergency exemption from legal liability is granted to vaccine manufacturers by the Public Readiness and Preparedness Act, passed in 2005 to protect against paralyzing lawsuits during outbreaks of anthrax, avian influenza or other potentially pandemic diseases.
The act is supposed to be invoked when the Secretary of Homeland Security has determined "that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a specified biological, chemical, radiological, or nuclear agent or agents."
But as Homeland Security chief Michael Chertoff explains in a letter to the DHHS, none of these conditions are met: there's neither emergency nor heightened risk of attack nor "credible information indicating an imminent threat of an attack." But that doesn't matter.
"These findings are not necessary to make a determination," Chertoff wrote. It's enough that anthrax was declared a threat four years ago, and that "were the government to determine in the future that there is a heightened risk of an anthrax attack ... that determination would almost certainly result in a domestic emergency."
In other words, there could be an emergency someday — so we might as well declare an emergency now.
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Sure, the economy is causing a crisis, but what about anthrax? How about smallpox?
In a little noticed move, federal officials this month have declared a series of public health emergencies relating to potential weapons of biological terror.
On Oct. 1, Health and Human Services Secretary Mike Leavitt declared an anthrax public health emergency. On Oct. 10, he declared health emergencies for smallpox, radiation sickness from the detonation of a nuclear device and poisoning from botulinum toxins, the active ingredient of Botox.
There's no clear evidence that terrorists have managed to weaponize anthrax or stolen large caches of Botox from cosmetic surgeons in Beverly Hills.
But by declaring these public health emergencies, HHS has granted manufacturers of anti-terrorism drugs and vaccines and others involved with the products protection from lawsuits if the drugs were to cause unfortunate side effects.
In the past, drug companies have shied from vaccine development because of low profit margins and legal risks. The actions of HHS are a necessary reassurance to persuade companies to make the drugs, and doctors and other providers to administer them, federal officials and some terrorism experts say.
But consumer advocates see it as a giveaway to the drug industry that strips the public of legal protections.
"It gives the manufacturers and other people involved a 'get out of jail free' card," said Joan Claybrook, president of Washington-based Public Citizen.
"These are potentially dangerous products. There could be a bad vaccine, and suppose people relied on that?" Claybrook asked. "There is no deterrent if there's no liability."
The emergency declarations cover a host of antibiotics to fight anthrax infection, anthrax and smallpox vaccines, and a drug to stimulate white blood cell production in people harmed by radiation.
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