Vaccine scepticism is now in a new phase

The stability of the US vaccine market rests on an obscure $4 billion fund known as the National Vaccine Injury Compensation Program. Health and Human Services Secretary Robert F. Kennedy Jr., long a critic of the fund, now appears intent on dismantling it.

Vaccine production can be a fickle business. Unlike other pharmaceutical products, which are designed for the sick, vaccines are meant for healthy people. To meet high safety standards, trials are large and development is costly. But whereas drugmakers typically can price their products to offset such expenses, vaccines are expected to be virtually free for huge populations and often are given just once, according to the Tribune News Service.

In such situations, unexpectedly high costs — say, a spate of litigation — can easily put a manufacturer out of business. In the 1970s and ’80s, that’s precisely what happened. Claims (since debunked) were circulating that the pertussis component of the DTP vaccine caused brain damage. Panic led to a surge of lawsuits, companies couldn’t get liability insurance and production became uneconomical. By the mid-1980s, just a single pertussis vaccine manufacturer remained.

Congress rightly worried about shortages. The pertussis vaccine protects against whooping cough, an infection that killed thousands of children annually before a shot became widely available in the 1940s. To stem a pending crisis, lawmakers created the VICP in 1986.

The VICP protects manufacturers of certain vaccines from most liability claims. In exchange, families who’ve suffered an established list of post-vaccination side effects — such as anaphylaxis or encephalitis — get compensated without lengthy and uncertain litigation. The process is run through a special court and is funded by a 75-cent excise tax per vaccine dose.

On the whole, the program has been a success. Vaccine makers quickly reentered the market and claims remain rare. Just one recipient per million vaccine doses administered has received compensation since the fund’s creation. And while complaints about backlogs are legitimate and the payout ceiling is out-of-date — with the maximum unchanged since the fund’s inception — almost half of adjudicated petitions get some compensation.

VICP has long been a target of vaccine critics such as Kennedy, who say the program shields manufacturers from litigation at patients’ expense. This claim simply isn’t true. Companies remain liable for negligence and misconduct, and nothing precludes petitioners unhappy with the vaccine court from suing. Encouragingly, very few have done so.

Although Kennedy dodged questions about the programme during his Senate confirmation hearings, he signaled that changes are coming. Last month, Kennedy abruptly removed almost half the panel that advises which injuries qualify to receive compensation. Should he pack the group with allies who agree to add autism to the list — thus endorsing the unfounded link between the disorder and vaccines — the volume of potential cases could leave the fund insolvent. Just one year of the most acute autism cases could require $30 billion of payouts, according to one estimate, more than 100 times the fund’s annual revenue. Another concern is that Kennedy could remove vaccines currently covered by the program, again exposing manufacturers to costly litigation and potentially triggering a cascade of shortages.

To an extent, Kennedy will be constrained by the law. Altering the so-called injury table would in theory require formal rulemaking, while removing a qualified vaccine would need legislation. Beyond that, Congress’ most effective tools are publicity and common sense. Most Americans know the value of vaccines, reject junk science and want their children protected from preventable diseases. Lawmakers should demand testimony from Kennedy and anyone else who enables such a shortsighted and ill-informed attack on an essential public-health program, and ensure the public knows where the blame lies.

In his year as secretary, Kennedy has taken several steps to restrict vaccine access. His most dangerous move may be discouraging manufacturers from making them altogether.