It’s a common complaint; why pay more for a brand-name anything when you could get the exact product, save the name (of course), for a lower price. It may seem obvious that the reason we do this has to do with social cues. Brand-name items carry social cache because the best and the brightest in advertising have engineered a public hungry to accept the zeitgeist.
Pharmaceutical drugs are no different in their appeal. Consumers buy brand names of drugs because there’s a comfort and appearance perpetuated that they are safe. However, the FDA requires that manufacturers of generic versions of drugs produce the same drug as the brand-name product. Chemically, the brand-name and the generic version of drugs are exactly the same in their active ingredients and the route of administration.
They are exactly the same.
So what gives? Why do brand-name drugs often costs multiple times more than the generic? One answer can be found in the legal liability these companies are subject to when they fail to warn physicians and patients of the dangers associated with their products.
Generic drug manufacturers are not held responsible for the harm their products cause.
Because the FDA requires the manufacturers of generic drugs to produce effectively the same drug as the brand-name manufacturer, the FDA also requires the corporations to maintain labeling and drug information that is consistent with the brand-name manufacturer.
The warnings are exactly the same.
A series of lawsuits have been waging their way through the courts in the United States over this issue because when someone is harmed by a generic drug, they are left with no one to seek compensation from. They can’t sue the brand-name manufacturer because the brand-name manufacturer didn’t make the specific drug they consumed. They can’t sue the generic manufacturer because the courts have decided that they can’t.
In 2011, the Supreme Court decided that consumers of generic drugs cannot sue the companies for failure to warn because the brand-name company made the label and the generic manufacturer was required to use that label.
In June of 2013, the Supreme Court decided that consumers of generic drugs cannot sue the companies for a defective design because they are required to make the same drug as the brand-name corporation.
So where is an injured person to turn when something like this happens?
Take the case of Tylenol for example. It’s a brand name drug that’s name is practically a household commodity. But recently, the FDA has been revising the label for Tylenol and the generic versions of it, Acetaminophen. The recent revisions have included acute liver failure and serious skin reactions both of which may result in death.
If you or someone you love took the generic version, took acetaminophen, it’s unlikely you would be able to succeed in court against the generic manufacturer.
“The risk associated with these drugs are often underplayed by the corporations,” commented Megan McBride, an attorney with the Levin, Papantonio law firm who practices in the areas of product liability and personal injury and is currently pursuing cases against McNeil Consumer Healthcare and Johnson & Johnson, Inc., the manufacturers of Tylenol. “The Supreme Court decision in Bartlett has a devastating effects on the ability of injured consumers to recover from generic manufacturers when consumers from brand name manufacturers are justly compensated. In that case, Ms. Bartlett suffered from toxic epidermal necrosis which kills your skin.” Ms. McBride continued, “She was left blind and disabled because she took sulindac and had an adverse reaction that she wasn’t properly warned of. Yet, the generic manufacture was immune from liability. The results would have been different had Ms. Bartlett consumed the brand product.”
Is the money you save by buying generic versions of drugs worth it then? If you don’t get hurt taking them, then sure, it just may be. But it’s definitely a gamble that you’re taking by using them.
Joshua is a writer and researcher with Ring of Fire. Follow him on Twitter @Joshual33.
