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The Government must not indemnify vaccine providers

“The issue of indemnity”, Taoiseach Micheál Martin told reporters last week, “is under discussion”.

If you’re not familiar with what he meant by the issue of indemnity, here’s a quick refresher:

In August, media outlets reported that vaccine makers were lobbying the EU for an indemnity in return for providing the vaccine:

The European pharmaceutical industry’s vaccines lobby has pushed the EU for exemptions that would protect its members from lawsuits if there are problems with any new coronavirus vaccines, according to people with knowledge of the discussions and an internal memo seen by the Financial Times.

In other words, the pharmaceutical lobby wants Governments to pay for the vaccine. And it also wants Governments to provide an indemnity – a guarantee that Governments, not the vaccine companies, will pay for any legal damages that might arise if the vaccine turns out to have nasty side effects, and those affected end up suing.

It’s worth noting here for the record that there are, at present, no indications that any of the putative covid vaccines are unsafe. All of them are set to go through regulatory approvals processes which have a significant emphasis on public safety. All of them have been through some form of trial, and, to date, no major safety issue has been discovered.

But that’s not the point.

These companies have invested tens of millions of euros and pounds and dollars into their vaccines, and, in return, they stand to make hundreds of millions, if not billions, in profits from selling those vaccines to Governments around the world.

When you put a product into the marketplace, you are liable if that product is unsafe. If Mercedes or Toyota released a new car tomorrow, they would stand to make money. But if that car had a fault which meant that the front wheels fell off regularly when it was driven at speed, then Mercedes or Toyota would be on the hook to be sued by those affected. There is no circumstance in which the Government would agree to pay their damages.

So why on earth would it be different for big pharma?

As of yet, Peadar Tóibín of Aontú is the only politician to speak out on this. Yesterday, he said:

“If companies are protected from the cost of serious side effects or other major issues that could arise, it reduces the economic reasons for those companies to get ensure that they do everything necessary to get the vaccine right. Lability for significant negative consequences such as ill health and even death is one of the primary driving forces for safety in medicine. The deletion of liability reduces the economic imperative for Pharma companies to get things right from the start. Its important to remember these are profit driven businesses. Serious questions needs to raised when any government indemnifies private companies”.

This is exactly right.

And there’s another point, too: To build public confidence in the vaccine, it seems important to be able to say that the companies who released it are liable to be sued if it’s not safe. When the public know that a company is putting its reputation and balance sheet behind a product, that helps to ease concerns. When the public sees a company taking steps to ensure it can’t be sued…… well.

There’s a final point, too:

Governments have no reason to make this deal with any company, because there is more than one vaccine being released. If one company, and one company alone, had a vaccine, then that company would be in a strong negotiating position, and might be able to bully the Irish Government – or other Governments – into providing an indemnity just to get access to the vaccine.

But there are now multiple companies all competing for business. The Government has a very expensive contract to hand to one of them. It should be given to the company that does not seek an indemnity.

Taking on a massive potential risk, when there is no need to do so, would be grossly irresponsible governance. There are no circumstances in which the Government should do it.

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