The tort “reform” movement often argues that personal injury lawyers and lawsuits keep needed drugs from reaching the marketplace.  It turns out they’re half right.  Lawyers are keeping drugs from the market, but it’s the pharmaceutical industry’s lawyers – and not personal injury attorneys - that are doing it:  

The Federal Trade Commission has filed suit in federal court in an attempt to block a deal in which a manufacturer of a brand-name testosterone-replacement drug paid three competitors to delay rolling out cheaper generic versions.

The FTC said the "pay-for-delay" agreement violates antitrust laws, robs consumers of less-expensive alternatives and allows the brand-name drugmaker an unfair monopoly. The state of California joined the federal agency in its complaint, which was filed last week in U.S. District Court in the Central District of California.

Source: FTC Sues in 'Pay-for-Delay' Pact -- Drugmaker Paid Rivals to Keep Generic Off the Market, Agency Says - washingtonpost.com

More on the story at CNN and at FiercePharma.

When I hear a “reformer” argue in favor of FDA preemption because lawsuits might be keeping drugs off the market, I have an easy litmus test to see if he or she is concerned for public safety or is merely a corporate lackey who is paid to parrot the party line: I ask how he or she feels about “pay to delay” deals.

I would also answer the following rhetorical question by pointing to “pay to delay” deals:

[Pfizer Global PR Chief Ray] Kerins finds it incredible that despite making products designed to save lives and cure diseases, the drug industry enjoys such low esteem among the public. "How in the hell do we have such a bad reputation?" was his way of expressing it. "It makes no sense."

Source: Pharma Marketing Blog: Pfizer's PR Chief: "How in the hell do we have such a bad reputation?"

The fact that pharmaceutical companies enter into agreements with competitors to keep drugs off the market shows that those companies care far more about profits than they do about patient safety.  And it’s disingenuous to the extreme for those same companies to argue in favor of preemption on the grounds that lawsuits keep needed drugs off the market. 

(I cross posted this to Tortdeform.)