LINCOLN — Nebraska Attorney General Jon Bruning is urging federal officials to appeal a court order regarding a drug used in executions.
Bruning made the request in a letter sent Friday to the U.S. Food and Drug Administration.
At issue is whether Nebraska must turn over to federal officials its supply of sodium thiopental, one of three drugs used to carry out lethal injections.
U.S. District Judge Richard Leon ordered the FDA on March 27 to notify all state corrections departments having “any foreign manufactured thiopental” that use of the drug is illegal. He further ordered the return of all such thiopental to the FDA.
Last week, an FDA official sent a letter asking Nebraska to make arrangements for returning its supply of the drug.
Bruning responded with the Friday letter, which said the U.S. district court ruling “was clearly wrong” and contrary to a 1985 U.S. Supreme Court decision.
“Other than the court's erroneous order, we are unaware of any evidence or reasons why the Department of Correctional Services should be required to return any thiopental in its possession,” the letter stated.
The letter did not question whether the court order applied to the Nebraska supply of sodium thiopental.
Bruning brought up that issue in a press release, which said the case before Leon had no bearing on the sodium thiopental in the possession of the Nebraska Department of Correctional Services.
“Nebraska's supply of sodium thiopental was purchased from a different supplier and was approved for importation by the U.S. DEA, FDA and Customs,” he said in the release.
Nebraska's current supply of the drug was manufactured by a Swiss company and purchased through a broker based in India. The state paid $5,411 for 485 grams of the drug last year.
The court ruled in a case filed concerning sodium thiopental manufactured in Austria and purchased by several states from Dream Pharma, a London-based wholesaler.
The court found that the FDA had abused its discretion and violated federal law by allowing a “misbranded and unapproved” foreign manufactured drug into the country.
The order was not limited to the specific supply of thiopental that was the focus of the lawsuit.
In addition, the court concluded that the 1985 Supreme Court ruling did not apply in this case. The ruling, called Heckler v. Chaney, upheld the FDA's authority to decide about pursuing enforcement actions against others.
But the U.S. district court said the decision whether to admit an imported drug is not an enforcement action, and the FDA does not have the same discretion.
An FDA spokeswoman declined to comment, citing the ongoing litigation.
Sodium thiopental is a fast-acting sedative that would be the first of three used in Nebraska's lethal injection protocol.
Manufacturers in the United States quit making the drug early last year, forcing states to look overseas for supplies.
Like other states, Nebraska has struggled to get access to the drug. The state ran afoul of federal regulations last spring when it bought a batch of the drug from a supplier in Mumbai, India.
The U.S. Drug Enforcement Administration subsequently told the state that it lacked the proper licenses to import the drug and that the supplier was not a registered exporter. The DEA ordered to state to destroy that supply.
The state obtained its current supply last fall.
Nebraska has conducted no executions since changing its method of execution from the electric chair to lethal injection.
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