Texas Sues Food and Drug Administration Over Seizure of Execution Drugs

The Texas Department of Criminal Justice filed suit on January 3, 2017 against the fed­er­al Food and Drug Administration (FDA) over the FDA’s con­tin­ued deten­tion of drugs Texas had attempt­ed to import for executions. 

In October 2015, Texas and Arizona attempt­ed to import sodi­um thiopen­tal, an anes­thet­ic com­mon­ly used in exe­cu­tions pri­or to 2010, from Harris Pharma, a sup­pli­er in India. The FDA halt­ed both ship­ments, say­ing that their import vio­lat­ed federal law. 

The FDA does not com­ment on lit­i­ga­tion, but has pre­vi­ous­ly said that sodi­um thiopen­tal has no legal uses in the United States. The agency has indi­cat­ed in the past that an injunc­tion issued by a fed­er­al dis­trict court in Washington in 2013, and which lat­er was upheld by the United States Court of Appeals for the District of Columbia Circuit, requires it to halt impor­ta­tion of the drug. 

No U.S. man­u­fac­tur­er cur­rent­ly pro­duces sodi­um thiopen­tal, and so the drug is unavail­able from domestic sources.

Texas argues that the drug should be allowed to be import­ed under a ​“law enforce­ment exemp­tion” to usu­al impor­ta­tion rules. In a state­ment about the law­suit, Texas Attorney General Ken Paxton attacked the agency, say­ing “[t]here are only two rea­sons why the FDA would take 17 months to make a final deci­sion on Texas’ impor­ta­tion of thiopen­tal sodi­um: gross incom­pe­tence or will­ful obstruc­tion.” Texas has used an alter­na­tive drug, pen­to­bar­bi­tal, in exe­cu­tions since 2012. 

A spokesman for the Texas Department of Criminal Justice said, ​“We can­not spec­u­late on the future avail­abil­i­ty [of] drugs, so the agency con­tin­ues to explore all options includ­ing the con­tin­ued use of pen­to­bar­bi­tal or alter­nate drugs to use in the lethal injection process.”