Category: Law

I remain stunned at how poorly we are responding to the threat from H5N1. Our poor response to COVID was regrettable but perhaps understandable given the US hadn’t faced a major pandemic in decades. Having been through COVID, however, you would think that we would be primed. But no. Instead of acting aggressively to stop the spread in cows we took a gamble that avian flu would fizzle out. It didn’t. California dairy herds are now so awash in flu that California has declared a state of emergency. Hundreds of herds across the United States have been infected.

I don’t think we are getting a good picture of what is happening to the cows because we don’t like to look too closely at our food supply. But I reported in September what farmers were saying:

The cows were lethargic and didn’t move. Water consumption dropped from 40 gallons to 5 gallons a day. He gave his cows aspirin twice a day, increased the amount of water they were getting and gave injections of vitamins for three days.

Five percent of the herd had to be culled.

“They didn’t want to get up, they didn’t want to drink, and they got very dehydrated,” Brearley said, adding that his crew worked around the clock to treat nearly 300 cows twice a day. “There is no time to think about testing when it hits. You have to treat it. You have sick cows, and that’s our job is to take care of them.”

Here’s another report from a vet:

…the scale of the farmers’ efforts to treat the sick cows stunned him. They showed videos of systems they built to hydrate hundreds of cattle at once. In 14-hour shifts, dairy workers pumped gallons of electrolyte-rich fluids into ailing cows through metal tubes inserted into the esophagus.

“It was like watching a field hospital on an active battlefront treating hundreds of wounded soldiers,” he said.

Here’s Reuters:

Cows in California are dying at much higher rates from bird flu than in other affected states, industry and veterinary experts said, and some carcasses have been left rotting in the sun as rendering plants struggle to process all the dead animals.

…Infected herds in California are seeing mortality rates as high as 15% or 20%, compared to 2% in other states, said Keith Poulsen, a veterinarian and director of the Wisconsin Veterinary Diagnostic Laboratory who has researched bird flu.

The California Department of Food and Agriculture did not respond to questions about the mortality rate from bird flu.

Does this remind you of anything? Must we wait until the human morgues are overrun?

The case fatality rate for cows appears to be low but significant, perhaps 2%. A small number of pigs have also been infected. On the other hand, over 100 million chickens, turkeys and ducks have been killed or culled.

There have now been 66 cases in humans in the US. Moreover, the CDC reports that in at least one case the virus appears to have evolved within its human host to become more infectious. We don’t know that for sure but it’s not good news. Recall that in theory a single mutation will make the virus much more capable of infecting humans.

When I wrote on December 1 that A Bird Flu Pandemic Would Be One of the Most Foreseeable Catastrophes in History Manifold Markets was predicting a 9% probability of greater than 1 million US human cases in 2025. Today the prediction is at 20%.

Once again, we may get lucky and that is still the way to bet but only the weak rely on luck. Strong civilizations don’t pray for luck. They crush the bugs. So far, we are not doing that.

Happy new year.

The FDA under President Trump and new FDA head Martin Makary should rapidly reverse the FDA’s powergrab on laboratory developed tests. To recap, laboratory developed tests (LDTs) are the kind your doctor orders, they are a service not a product and are not sold directly to patients. Congress has never given the FDA the authority to regulate LDTs. Indeed, in 2015, Paul Clement, the former US Solicitor General under George W. Bush, and Laurence Tribe, a leading liberal constitutional lawyer, wrote an article that rejected the FDA’s claims writing that the “FDA’s assertion of authority over laboratory-developed testing services is clearly foreclosed by the FDA’s own authorizing statute” and “by the broader statutory context.”

Moreover, in addition to legal reasons there are sound public policy reasons to reject FDA regulation of LDTs. Lab developed tests have never been FDA regulated, except briefly during the pandemic when the FDA used the declaration of emergency to issue so-called “guidance documents” saying that any SARS-COV-II test had to be pre-approved by the FDA. Thus, the FDA reversed the logic of emergency. In ordinary times, pre-approval was not necessary but when speed was of the essence it became necessary to get FDA pre-approval. The FDA’s pre-approval process slowed down testing in the United States and it wasn’t until after the FDA lifted its restrictions in March that tests from the big labs became available.

In a remarkably prescient passage, Clement and Tribe (2015, p. 18) had warned of exactly this kind of delay:

The FDA approval process is protracted and not designed for the rapid clearance of tests. Many clinical laboratories track world trends regarding infectious diseases ranging from SARS to H1N1 and Avian Influenza. In these fast-moving, life-or-death situations, awaiting the development of manufactured test kits and the completion of FDA’s clearance procedures could entail potentially catastrophic delays, with disastrous consequences for patient care.

We are seeing the same kind of FDA-caused delay for tests for bird-flu.

Moreover, unlike some of the proposals associated with incoming HHS head Robert Kennedy, reversing the FDA on lab-developed tests has significant support from a wide-variety of experts. Here, for example, is the American Hospital Association:

…we strongly believe that the FDA should not apply its device regulations to hospital and health system LDTs. These tests are not devices; rather, they are diagnostic tools developed and used in the context of patient care. As such, regulating them using the device regulatory framework would have an unquestionably negative impact on patients’ access to essential testing. It would also disrupt medical innovation in a field demonstrating tremendous benefits to patients and providers.

The Trump administration has a number of options:

…the LDT Final Rule was promulgated in time to escape Congressional Review Act scrutiny; however, the executive branch and a Republican-controlled Congress have other tools to limit or vitiate FDA’s authority. These include, in no particular order:

The U.S. Department of Health and Human Services (HHS) could revoke the LDT Final Rule. The recission of a rule is treated the same as the promulgation of a new rule. If HHS revokes the final rule, the cases will likely be dismissed as moot. The timing of such action is uncertain at this time.

FDA could extend or revise its policies of enforcement discretion. LDTs are currently subject to FDA’s phaseout policy which has five stages, the last of which begins in May 2028. Specific categories of IVDs will continue under an enforcement discretion policy indefinitely as described in the preamble to the final rule. HHS could quickly issue such a revised policy or policies without prior public comment if it determines such policy meets the threshold in 21 CFR 10.115(g)(2).

Congress could act. With a Republican-controlled House and Senate to start the new Trump administration, there is a chance that efforts to legislate the regulation of LDTs could be reignited. Based on prior congressional efforts, it is likely that such legislation would place LDTs under control by CMS and CLIA, rather than require LDTs to comply with FDA requirements.

HHS could let the litigation continue. The new administration may view the U.S. District Court for the Eastern District of Texas to be sympathetic to the Plaintiffs’ arguments and therefore proceed unabridged assuming the final rule will be struck-down, if that is indeed the deregulatory objective of the new administration.

The U.S. Department of Justice (DOJ) could act concerning the litigation. DOJ options are constrained by ethics rules but DOJ could request to amend its filings, pause the case pending rule-making proceedings, or take other actions intended to stall or moot the litigation in a deregulatory fashion.