The Austin Chronicle

DOJ Declares FDA Unable to Regulate Execution Drugs

Ruling could put an end to the legal fight between Texas and the FDA

By Sarah Marloff, May 17, 2019, News

The U.S. Department of Justice may have put an end to a four-year battle between Texas and the U.S. Food and Drug Administration. On Tuesday evening, May 14, the DOJ posted a 26-page memo declaring the FDA unable to regulate drugs used to carry out executions because its job is to ensure drugs are "safe and effective" for their intended use. Referencing a 2000 Supreme Court ruling that the FDA lacked authority to regulate tobacco – because there's no safe way to use tobacco – lethal injection drugs, the DOJ memo argues, aren't intended to be "safe."

Lethal injection drugs have been increasingly difficult to obtain in the U.S. as more and more pharmaceutical companies forbid their drugs to be used in executions. The fight between the Texas Department of Criminal Justice and the FDA dates back to 2015, when the administration intercepted a shipment of the lethal injection drug known as sodium thiopental from India; a 2012 federal court ruling (unrelated to Texas' case) had ordered the FDA to ban the import of the drug, and many countries continue to ban its export. In April 2017, the administration issued its final decision to refuse entry to the 2015 shipment. The TDCJ fought the ruling and a decision has been pending ever since. However, it remains unclear how the DOJ's Tuesday ruling will affect Texas, which has been using pentobarbital for executions since 2012.

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